Opinion
A145612
07-31-2017
WATERTROUGH CHILDREN'S ALLIANCE, Plaintiff and Appellant, v. COUNTY OF SONOMA, et al., Respondents; PAUL HOBBS WINERY, LP, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV-254679)
A local ordinance requires Sonoma County (County) landowners to obtain a permit from respondent Agricultural Commissioner of Sonoma County (Commissioner) prior to establishing or replanting a vineyard. Real Party in Interest Paul Hobbs Winery, L.P. (Winery) applied for a permit under the ordinance, intending to replace an existing apple orchard with grape vines. After review of its application and discussions with the Commissioner and other interested parties, the Winery modified its plans for the project and was granted a permit. The Commissioner found that issuance of the permit was a ministerial act for purposes of the California Environmental Quality Act, Public Resources Code sections 21000 et seq. (CEQA). Because ministerial acts are exempt from CEQA, the County did not conduct CEQA review of the project.
Unless indicated otherwise, all further statutory references are to the Public Resources Code.
Watertrough Children's Alliance (the Alliance), an interested community group, filed a petition for writ of mandate challenging the Commissioner's finding that issuance of the permit was ministerial and seeking an order requiring CEQA review. The trial court denied the petition. We affirm, concluding the Alliance failed to demonstrate that the ordinance authorized the Commissioner to exercise meaningful discretion with respect to the Winery's application.
BACKGROUND
A. The County's Vineyard Establishment Ordinance
Chapter 11 of the Sonoma County Municipal Code (ordinance) governs "grading, drainage improvement, and vineyard and orchard site development within the unincorporated area of the county." (Ordinance, § 11.02.020.) Prior to the enactment of the first version of the ordinance in 2000, the county allowed agriculturalists to plant or replant a vineyard "as a matter of right," requiring no governmental review or permission. (Sonoma County Ordinance No. 5216, § IV, subd. (b) (Feb. 1, 2000).) Article 8 of the ordinance now requires any person proposing to establish or replant a vineyard, other than hobbyists, to obtain a Vineyard Erosion and Sediment Control Ordinance permit (VESCO permit) from the Commissioner. (Ordinance, §§ 11.02.030, 11.08.010, subd. A, 11.08.020, 11.10.010, Table 11-4.) To obtain a VESCO permit, a would-be grower must submit appropriate plans and specifications for review by the Commissioner demonstrating compliance with the regulations of the ordinance, which are largely directed at controlling erosion and excess water run-off through proper grading, drainage, and cultural practices. For sites with lower erosion risk (Level I sites), plans prepared by the owner are sufficient. With respect to property having steeper slopes or highly erodible soils (Level II sites), the plans must be prepared by a civil engineer. (Ordinance, §§ 11.08.010, subd. B and Table 11-3; 11.10.020, subds. B, C.)
Further references to the ordinance will be in the form, "Ordinance, § 11.xx.xxx". The ordinance has been amended periodically over the years, most recently in October 2016. (Sonoma County Ord. No. 6182 (Oct. 4, 2016).) We will apply the ordinance as amended in 2012, since this was the version in effect when the challenged permit was issued.
Article 16 of the ordinance sets out the substantive standards for "the proper conduct of . . . vineyard and orchard site development" with which proposed vineyards must comply. (Ordinance, § 11.16.010.) In addition, various provisions of article 16 require the owner to comply with the strictures of a "best management practices guide" maintained by the Commissioner, which is not a part of the ordinance itself. A typical example of the latter is section 11.16.040, subdivision A, entitled "Management of storm water," which states, "Grading and vineyard and orchard site development shall include the drainage improvements or other methods necessary to manage storm water in compliance with the permit authority's best management practices guide."
The ordinance declares that the issuance of a permit constitutes a ministerial action, so long as the owner does not seek an exception from the standards established in its provisions. (Ordinance, § 11.10.020, subd. E.) Because CEQA exempts projects requiring only ministerial approval (Pub. Resources Code, § 21080, subds. (a), (b)(1)), the ordinance does not require an application for a VESCO permit to be reviewed under CEQA unless it seeks such an exception. (Ordinance, § 11.10.060.) In a 2008 resolution enacting a predecessor to the current version of the ordinance, the county Board of Supervisors explained its objective: "The application of CEQA to grading drainage improvement, and vineyard and orchard site development could result in inappropriate and burdensome delays of lawful activities in the county . . . . Accordingly, the Board of Supervisors declares its intention, in adopting the [ordinance] . . . to achieve certain environmental protections while, at the same time, creating a ministerial system of regulation that is consistent with the current practices of the county . . . and does not unduly complicate and discourage grading, drainage improvement, and vineyard and orchard site development activities." (Sonoma County Ordinance 5819, § XIV, subd. (b) (Oct. 14, 2008).)
B. The Winery's Permit Application
In March 2013, the Winery applied for a Level II VESCO permit with respect to a 48-acre parcel in Sebastopol (the property), seeking approval for the planting of 37 acres of vineyard on a portion of the property occupied by an apple orchard. The application was accompanied by plans prepared by an engineering firm, consisting of annotated topographical maps of the site.
As disclosed in the application, the slope of the property averages 10%, with a maximum slope of 20%. Because the land was already in agricultural use, there were no natural features requiring protection; neither non-apple trees nor watercourses were present on the portion of the property to be planted. The application proposed to retain a "comprehensive drainage system" that was installed "decades ago" and "remain[ed] functional," although certain components of the system were to be upgraded. Further, no grading or other land disturbance was proposed, beyond soil "ripping" and disking in preparation for vineyard installation. The primary means of soil erosion control proposed by the Winery was a ground cover of grasses and legumes, similar to the vegetation of the orchard, combined with other agricultural management practices for controlling erosion on sensitive areas. Rather than roads, the application proposed grass-covered lanes, as well as permanent vegetation in the "swales," which are natural depressions that function as drainage channels.
The application was initially evaluated on behalf of the Commissioner by a private engineering firm, LACO, which was tasked with reviewing the work of the Winery's engineers to insure the application's compliance with the ordinance. During the period March 30 to April 1, a senior geotechnical engineer with LACO spent four hours reviewing the application. An official from the Commissioner's office then visited the property in mid-April and completed a checklist with respect to the "erosion control plan" of the project. All of the items on the checklist relating to the substance of the project were marked as in compliance or not applicable, with the exception of certain "temporary or permanent erosion control measures." On May 2, the Winery's engineers submitted to the commissioner's office a "redline plan set," which does not appear to be in the administrative record.
The Winery has filed a request for judicial notice of LACO's contract with the County, describing LACO's duties. While we find the contract not to be a proper subject of judicial notice, and therefore deny the request, essentially the same information is contained in an agreement between the County and the Winery that is included in the administrative record.
The administrative record contains three sets of plans, the original plans, an interim set prepared on May 8, and the final plans. We did not locate a revised set of plans prepared on or before May 2.
The Commissioner met with concerned members of the public on May 1, 2013. At that meeting, the Commissioner informed the attendees that the project was being reviewed but "is meeting the standards" of the ordinance. Soon after, the Winery's engineers met separately with "downstream neighbors" of the property and an official from the County Permit and Resource Management Department (PRMD), which had regulatory authority over the issuance of a separate drainage permit sought by the Winery. On May 9, the Winery's engineers sent a memorandum to the Commissioner documenting a series of amendments to the project plans, including changes to vegetation and fencing at the border with neighboring properties, the use of "rock armor," stones placed to protect against erosion, on "driving surfaces" of "eroding avenue sections," alterations to the drainage system near the property line of an adjacent property, and "more extensive wattles on contour throughout the vineyard." Some of the changes, particularly the drainage changes regarding the neighboring property, appear to represent modifications to the project, while others appear to document elements of the project intended by the Winery but not specified on the plans. As an example of the latter, the initial plan map called for the installation of wattles, referred to as "fiber rolls," on the property, but it did not specify their location. The revised map designates the specific location of wattles on slopes throughout the property. It is unclear from the administrative record whether the particular changes were undertaken at the request of the Commissioner, in response to PRMD concerns, to satisfy the neighbors, or a combination of these.
The Winery has also sought judicial notice of the application for this permit and a questionnaire apparently completed by the Winery in connection with the application. We take judicial notice of the existence of the permit application, but not its content, and deny judicial notice with respect to the questionnaire. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-266, disapproved on other grounds; Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939, fn. 13.) While we grant judicial notice of the other document mentioned in the request for judicial notice, a judicial pleading, we have not considered the document in rendering this decision.
The "wattles" referred to are long, narrow cylinders of netting stuffed with straw or similar material and placed across slopes to slow the downslope flow of water and thereby reduce erosion. Their use is described at pages 15-16 of the Commissioner's publication entitled, "Best Management Practices for Agricultural Erosion and Sediment Control."
The Winery claims that it voluntarily " 'chose all alterations and informed the County accordingly,' " but the source for its contention is a statement by counsel in the briefs submitted below, rather than evidence in the record. It goes without saying that unsworn statements by counsel do not constitute evidence. (People v. Sattiewhite (2014) 59 Cal.4th 446, 471.)
A group of citizens met again with the Commissioner on May 13. The neighbors' concerns were directed primarily at the use and presence of residue of pesticides and other chemicals on the property, but they also addressed some issues raised by the VESCO permitting process. The Winery also received comments by other neighbors, in particular a downhill neighbor concerned with drainage onto her property.
The neighbors' concern with pesticide use is understandable, but it does not relate directly to the issues before us. The ordinance is designed to address issues of drainage and erosion control and does not grant the Commissioner the authority to regulate vineyard pesticide use.
In a memorandum to PRMD, the Winery declined to make any project changes to address this neighbor's concerns, which it characterized as arising from a "downstream system."
On May 28, the Winery's engineer met with representatives of the Commissioner for an "office review" of the plans. Following that meeting, on May 29, the engineer submitted a memorandum outlining additional changes to the plans. Virtually all of these changes were intended to document aspects of the project more accurately in the plans, rather than to alter the substance of the project. One apparently substantive change, the location of "perimeter avenues," was made to satisfy "[l]andowner preference," while the engineer declined to make any changes to address another concern of the neighbors, the generation of dust during vineyard operations. A separate portion of the memorandum addressed PRMD concerns. On June 4, 2013, the Commissioner marked as in compliance the items on the erosion control checklist that had originally been left open, with the notation, "add wattles."
By letter of June 5, 2013, the Commissioner's office notified the Winery that its application for a VESCO permit (Winery permit) had been approved.
C. Trial Court Proceedings
In November 2013, the Alliance, "an unincorporated association of residents and parents who are concerned about the environmental impacts of vineyard development in Sonoma County in the absence of proper CEQA review," filed a petition for a writ of mandate challenging the issuance of the Winery permit. The petition alleged that the environmental impact of the Winery's operations is of particular community concern because the property is "in close proximity to five schools." The Alliance contended in the petition that the County was required to conduct CEQA review of the project because issuance of the Winery permit was a discretionary, rather than a ministerial act.
Following briefing on the merits, the trial court denied the petition, issuing an extensive statement of decision. The court rejected a variety procedural arguments raised by the Commissioner and the Winery, but it affirmed the Commissioner's finding that issuance of the permit was exempt from CEQA as a ministerial act. As the court explained its conclusion, "Petitioner merely shows that Respondent required review to ensure compliance with the ministerial requirements, ordered compliance with the ministerial requirements, and acted with some limited discretion in determin[ing] the details of how to comply the ministerial requirements. None of this transforms the approval itself or the approval of applicable standards into a discretionary approval."
The Commissioner and the Winery raise some of the same procedural arguments here. Because we affirm the Commissioner's decision on the merits, we need not address them.
The Alliance appeals the trial court's decision, contending primarily that issuance of the Winery permit was a discretionary, rather than ministerial act, because the Commissioner exercised discretion in requiring the Winery to make various changes to the project as disclosed in the Winery's initial plan.
DISCUSSION
A. Governing Law
While this matter was pending, Division One of this court published a decision addressing generally the same issues, Sierra Club v. Sonoma County (2017) 11 Cal.App.5th 11 (Sonoma County). We quote the law relating to the distinction between discretionary and ministerial decisions under CEQA from Sonoma County, omitting the headings and
" 'CEQA was enacted to advance four related purposes: to (1) inform the government and public about a proposed activity's potential environmental impacts; (2) identify ways to reduce, or avoid, environmental damage; (3) prevent environmental damage by requiring project changes via alternatives or mitigation measures when feasible; and (4) disclose to the public the rationale for governmental approval of a project that may significantly impact the environment.' " (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382.)
"To ensure that environmental considerations inform public agencies' decisions, CEQA establishes a multitiered process. Here, we are concerned with the initial step of the process, which requires the agency to ' "conduct a preliminary review in order to determine whether CEQA applies to a proposed activity." ' (Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 776 [citation] (Parker Shattuck).) As part of this review, the agency is to determine whether the activity is a 'project' for purposes of CEQA and, if it is, whether it falls under an exemption. (Sunset Sky Ranch Pilots Assn. v. County of Sacramento (2009) 47 Cal.4th 902, 907.) . . . 'If the project is in an exempt category for which there is no exception, " 'no further environmental review is necessary.' " ' " (Parker Shattuck, supra, 222 Cal.App.4th at p. 776.) If the project is not exempt, the agency proceeds to the other tiers of the CEQA process, which involve the preparation of an initial study and, if appropriate, an environmental impact report (EIR). (Ibid.)
"CEQA applies only to 'discretionary projects proposed to be carried out or approved by public agencies.' (§ 21080, subd. (a).) The statute correspondingly exempts '[m]inisterial projects' (id., subd. (b)(1)), a term that has been assumed to refer to projects that are not discretionary. CEQA itself does not define either term, but both are defined in the Guidelines.[] Under Guidelines section 15357, a discretionary act is one that 'requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations.' Under Guidelines section 15369, a ministerial decision is one 'involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out.' If a project approval features both ministerial and discretionary elements, the project is deemed discretionary and subject to CEQA review." (Guidelines, § 15268, subd. (d).)
The regulations governing compliance with CEQA, commonly known as the "CEQA Guidelines," are published at California Code of Regulations, title 14, section 15000 et sequitur. Like Sonoma County, we will cite individual CEQA Guidelines in the form "Guidelines, § xxxxx."
"Our state Supreme Court has explained the legislative rationale behind CEQA's exclusion of ministerial actions: 'The statutory distinction between discretionary and purely ministerial projects implicitly recognizes that unless a public agency can shape the project in a way that would respond to concerns raised in an EIR, or its functional equivalent, environmental review would be a meaningless exercise.' (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 117 [citation].) As further explained in Leach v. City of San Diego (1990) 220 Cal.App.3d 389 [citation], ' "To properly draw the line between 'discretionary' and 'ministerial' decisions . . . , we must ask why it makes sense to exempt the ministerial ones from the EIR requirement. The answer is that for truly ministerial permits an EIR is irrelevant. No matter what the EIR might reveal about the terrible environmental consequences of going ahead with a given project the government agency would lack the power (that is, the discretion) to stop or modify it in any relevant way. The agency could not lawfully deny the permit nor condition it in any way which would mitigate the environmental damage in any significant way." ' (Id. at p. 394; see also Central Basin Municipal Water Dist. v. Water Replenishment Dist. of Southern California (2012) 211 Cal.App.4th 943, 949 ['CEQA does not apply to ministerial actions—actions in which the agency is not permitted to shape the process to address environmental concerns'].) Consistent with this understanding, the Guidelines recognize that '[w]hether an agency has discretionary or ministerial controls over a project depends on the authority granted by the law providing the controls over the activity. Similar projects may be subject to discretionary controls in one city or county and only ministerial controls in another.' " (Guidelines, § 15002, subd. (i)(2); see Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1014-1015 [citation].)
"The first appellate case to discuss the ministerial exemption was People v. Department of Housing & Community Development (1975) 45 Cal.App.3d 185 [citation] (Department of Housing), in which the court considered whether a construction permit to develop a mobilehome park, required by the Department of Housing and Community Development under the Mobilehome Parks Act (MPA), was ministerial or discretionary. ([Id.] at p. 192.) Rejecting the department's determination that the permit's issuance was ministerial, the court held that the approval was 'neither wholly ministerial nor entirely discretionary' and therefore required CEQA review. ([Id.] at pp. 193-194.) The court based its conclusion that the approval was partially discretionary on the MPA's building standards, which used imprecise adjectives to define compliance, and on a provision in the act that permitted a conditional permit: 'A third class of standards is relatively broad, relatively general. The applicant for a mobilehome construction permit must submit a "description of the water supply, ground drainage and method of sewage disposal." [Citation.] There must be a "sufficient" supply of artificial lighting. [Citation.] The water supply must be "adequate" and "potable." [Citation.] The site must be "well-drained and graded." [Citation.] Instead of an unqualified construction permit, the enforcement agency may issue a conditional permit which prescribes ongoing conditions on use or occupancy.' ([Id.] at p. 193.) As the court explained, '[w]hether the water supply is adequate and potable; whether sewage disposal is satisfactory; whether the site is well-drained and graded; whether lighting is sufficient; whether sub-optimum features call for use and occupancy restrictions—these are relatively personal decisions addressed to the sound judgment and enlightened choice of the administrator. These decisions may have great environmental significance relative to one physical site, negligible significance in another. Inevitably they evoke a strong admixture of discretion.' (Ibid.) [Fn. Omitted.]
"Courts continue to recognize that actions by a local agency are discretionary when they require the exercise of the administrator's subjective judgment and are ministerial when they are taken under regulations that allow for little or no exercise of such judgment. As Division Four of this court summarized, a permit is ministerial if '[t]he fixed approval standards delineate objective criteria or measures which merely require the agency official to apply the local law . . . to the facts as presented in a given . . . application. [Citation.] The approval process is one of determining conformity with applicable ordinances and regulations, and the official has no ability to exercise discretion to mitigate environmental impacts.' (Sierra Club v. Napa County Board of Supervisors (2012) 205 Cal.App.4th 162, 180 [citation] (Sierra Club).)" (Sonoma County, supra, 11 Cal.App.5th at pp. 21-22.)
"An important elaboration of the analysis for evaluating whether an action was ministerial was announced in Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259 [citation] (Friends of Westwood), and it is known as the 'functional test.' (Juana Briones House, supra, 190 Cal.App.4th at p. 302.) In Friends of Westwood, the court ruled that a city's issuance of a building permit to construct a 26-story office tower was discretionary. (Friends of Westwood, at pp. 262-263, 274-275.) In reaching its ruling, the court adopted a 'functional distinction' between discretionary and ministerial acts, explaining, '[T]he question here is whether the city had the power to deny or condition this building permit or otherwise modify this project in ways which would have mitigated environmental problems an EIR might conceivably have identified. If not, the building permit process indeed is "ministerial" within the meaning of CEQA. If it could, the process is "discretionary." . . . It is enough the city possesses discretion to require changes which would mitigate in whole or in part one or more of the environmental consequences an EIR might conceivably uncover.' (Id. at pp. 273, 273, italics omitted.)
"Following Friends of Westwood, courts recognize that ' "CEQA does not apply to an agency decision simply because the agency may exercise some discretion in approving the project or undertaking. Instead[,] to trigger CEQA compliance, the discretion must be of a certain kind; it must provide the agency with the ability and authority to 'mitigate . . . environmental damage' to some degree." ' (San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 934 [citation], italics omitted; see also Juana Briones House, supra, 190 Cal.App.4th at p. 308 [permit is discretionary if agency 'has [the] authority to condition the permit in environmentally significant ways'].) (Sonoma County, supra, 11 Cal.App.5th at p. 23.)
"Our review is de novo in the sense that 'our review of the administrative record for error is the same as the trial court's; we review the agency's action, not the trial court's decision.' (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 381 [citation] (Muzzy Ranch); Parker Shattuck, supra, 222 Cal.App.4th at p. 778.)
"The standard of review applicable to an agency's decision under CEQA depends on the nature of the action being reviewed and when in the multitiered process it occurred. Here, we are reviewing the Commissioner's determination, made in the initial step of the three-tiered process, that issuing the [VESCO] permit was exempt from CEQA review because the action was ministerial. We generally review an agency's determination that an activity falls under the ministerial exemption for ' "a prejudicial abuse of discretion." ' (Muzzy Ranch, supra, 41 Cal.4th at p. 381, quoting § 21168.5; Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 693.) [citation] 'Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' (§ 21168.5.) Guidelines section 15268, subdivision (a) makes clear that '[t]he determination of what is "ministerial" can most appropriately be made by the particular public agency involved based upon its analysis of its own laws, and each public agency should make such determination either as a part of its implementing regulations or on a case-by-case basis.' (See Friends of Davis v. City of Davis, supra, 83 Cal.App.4th at p. 1015; see also Sierra Club, supra, 205 Cal.App.4th at p. 178.)" (Sonoma County, supra, 11 Cal.App.5th at pp. 19-24.)
B. Sonoma County Decision
Sonoma County would appear to establish the legal framework for our analysis. In that case, like this one, the real party in interest had been granted a Level II VESCO permit under the ordinance for the establishment of a vineyard in Sonoma County. (Sonoma County, supra, 11 Cal.App.5th at p. 17.) Because the County found issuance of the permit to be ministerial, no CEQA review was performed. (Id. at p. 18.) The petitioners' primary argument was that issuance of the permit was necessarily a discretionary act because the language of many provisions of the ordinance is sufficiently general as to grant the Commissioner regulatory discretion in determining compliance with the ordinance. (Ibid.)
Following the publication of Sonoma County, we requested that the parties submit supplemental briefing on various issues raised by the decision, including the correctness of its analysis and its application to the issues raised here.
Sonoma County rejected the argument that " 'vague, subjective standards' " in the language of a regulation, standing alone, are sufficient to support a finding that issuance of a permit under the regulation is a discretionary act for purposes of CEQA. (Id. at pp. 27-28.) As the court noted, the argument "ignores the principle, arising out of the functional test, that ' "CEQA does not apply to an agency decision simply because the agency may exercise some discretion in approving the project or undertaking. Instead[,] to trigger CEQA compliance, the discretion must be of a certain kind; it must provide the agency with the ability and authority to 'mitigate . . . environmental damage' to some degree." ' [Citation.] For the reasons discussed above, the existence of discretion is irrelevant if it does not confer the ability to mitigate any potential environmental impacts in a meaningful way." (Id. at p. 28.)
Instead, Sonoma County, supra, 11 Cal.App.5th 11, established a three-part test for finding the issuance of a permit to be a discretionary act under CEQA. A litigant contending that issuance of a permit was discretionary must show (1) the language of a regulation governing issuance, as required by Guidelines § 15369, allows the regulator to exercise "personal, subjective judgment in deciding whether or how the project should be carried out," rather than establishing "fixed standards or objective measurements" for determining compliance (id., at p. 20), (2) the regulation applied to the project for which the permit was granted (id., at pp. 25-26 ["a regulation cited as conferring discretion must have been relevant to the project"]), and (3) the regulation conferred "meaningful" discretion on the agency, which means the regulation granted the agency "the ability to mitigate . . . potential environmental impacts [of the project] in a meaningful way." (Id. at p. 28.)
The latter requirement was premised on the functional test, which holds that an agency's authority to exercise discretion with respect to a project is irrelevant to the ministerial/discretionary issue unless exercise of the discretion could result in meaningful mitigation of the environmental impact of the project. As the Supreme Court recognized in Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, it is a "meaningless exercise" to prepare an EIR if the agency lacks the regulatory authority to require project changes to address impacts revealed by the EIR. (Id. at p. 117.) For that reason, the existence of regulatory discretion justifies CEQA review only if the agency could use that discretion to require changes to mitigate a project's environmental impact. The court concluded the petitioners had failed to demonstrate the Commissioner abused his discretion in finding issuance of the permit to be ministerial because there was no evidence that the regulations cited by the petitioners as conferring discretion on the Commissioner actually granted the authority, in the context of the permit under review, to "mitigate potential environmental impacts [of the project] to any meaningful degree." (Sonoma County, supra, 11 Cal.App.5th at p. 19.)
C. The Commissioner's Ministerial Determination
1. The Winery's Changes to the Project
For reasons discussed below, we conclude that this matter must be decided within the legal framework of Sonoma County. Before addressing the implications of that decision, however, we address the Alliance's argument in its Opening Brief, which was filed prior to the issuance of Sonoma County. There, the Alliance argued that issuance of the Winery permit must be deemed discretionary because the Commissioner required two sets of changes to the Winery's original application plans before approving the permit. The two plan revisions, it is argued, demonstrate the Commissioner's exercise of discretion under the subjective standards of the ordinance. We find this argument insufficient for three independent reasons.
First, it is not entirely clear that the changes reflected in the two plan revisions were made to comply with the ordinance. At the same time the Winery was seeking issuance of a VESCO permit, it was also trying to satisfy neighborhood concerns about the vineyard's impact on the local community and applying for a drainage permit from PRMD. The changes described in the memoranda could have been intended to address concerns of the Commissioner, the public, or PRMD. Necessarily, any changes made by the Winery to satisfy public concerns that were not required for compliance with the ordinance and any changes made in pursuance of a separate permit do not demonstrate an exercise of discretion by the Commissioner in connection with the issuance of the VESCO permit. (See Juana Briones House, supra, 190 Cal.App.4th at p. 309 [conditions voluntarily accepted by a permit applicant but not required under the applicable ordinance did not render the permit discretionary].) The administrative record is not clear in revealing for what reason and under what authority the Winery's various changes were made.
Second, the Commissioner's requirement of changes, assuming it occurred, does not necessarily demonstrate an exercise of subjective judgment. The Commissioner's task in evaluating a VESCO permit application is to insure the applicant's compliance with the regulations of the ordinance. To the extent the Winery's original plan application did not satisfy the ordinance, the Commissioner would presumably have required changes in the plans simply to achieve compliance. While the commissioner might have exercised subjective judgment in requiring those changes, the changes could just as easily been demanded in an exercise of ministerial judgment, depending upon the terms of the governing regulation. For that reason, the Commissioner's requirement of changes, standing alone, does not demonstrate an exercise of CEQA discretion.
Finally, a regulator's requirement of changes in a project is ultimately irrelevant to a determination of the discretionary nature of a regulatory act. As Sonoma County holds, a permit is discretionary if the regulator is merely vested with the authority to exercise meaningful discretion with respect to a particular project. (Sonoma County, supra, 11 Cal.App.5th 11.) The regulator need not actively exercise that discretion in order to cause project approval to be a discretionary act. In other words, if a regulator rubber stamps a project under regulations requiring an exercise of subjective judgment, the permit approval is not rendered ministerial by the regulator's failure to exercise its discretion. It is the authority to exercise subjective judgment that makes a project approval discretionary, not its actual exercise. For that reason, it is unnecessary for the Alliance to demonstrate that the Commissioner demanded discretionary changes in order to demonstrate a discretionary approval. Rather, all the Alliance must demonstrate is that the Commissioner had the authority to exercise meaningful discretion with respect to the project.
2. Sonoma County Was Correctly Decided
Alternatively, the Alliance contends that we should disregard the analytic framework established by Sonoma County because the case was incorrectly decided. We find its arguments unavailing.
First, the Alliance argues the decision "places an unreasonable and unfair burden on members of the public" because it requires them "to prove, in the absence of any public administrative process, that the factual predicates for the exercise of discretion . . . exist." As an example, the Alliance discusses a regulation requiring diversion of storm water runoff to the nearest practicable disposal location, which the Sonoma County petitioners cited as conferring discretion on the Commissioner. (Sonoma County, supra, 11 Cal.App.5th at p. 30.) The application in question had stated that runoff would flow to the ditches, which in turn drained into storm drains. (Ibid.) The Sonoma County court rejected the petitioners' claim of discretion because they failed to demonstrate that any other means for diversion of runoff existed and that the selection of an alternative, had it been proven, would have resulted in a materially different environmental impact. (Ibid.) The Alliance argues the analysis was improper because the petitioners could not reasonably be expected to obtain such information.
We find nothing improper in Sonoma County's assignment of this burden. In CEQA challenges, the burden falls on the challenger to demonstrate an abuse of agency discretion. (American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 460.) One aspect of demonstrating an abuse of discretion in connection with an agency's ministerial determination is the identification of meaningful discretion. While that might be easier in some situations than others, the Alliance cites no authority to suggest that mere difficulty of proof permits a court to excuse an element of a legal claim.
In any event, the Alliance exaggerates the potential difficulties in demonstrating an exercise of discretion under the ordinance. When submitting an application for a VESCO permit, the applicant is required to submit various documents, including a topographical map of the property identifying features relevant to the ordinance's regulations. It is this information on which the Commissioner relies in evaluating the applicant's compliance with the regulations. If the information is sufficient for the Commissioner, it is presumably adequate for CEQA petitioners as well. In addition, as Sonoma County points out, a CEQA petitioner challenging a decision made without a public hearing is entitled to submit evidence in the mandamus proceeding. (Sonoma County, supra, 11 Cal.App.5th at p. 30, fn. 19.) To the extent issues relating to the Commissioner's discretion are not evident from the face of documents in the administrative record, the petitioner can introduce evidence to supplement and explain the administrative record. (See California Oak Foundation v. Regents of the University of California (2010) 188 Cal.App.4th 227, 255.)
With respect to the example cited by the Alliance, the regulation governing storm water runoff, the maps required by the ordinance would presumably demonstrate to an engineer the natural flow of water, and therefore an alternative means of drainage, if it existed.
Second, the Alliance contends that by considering the effect of individual regulations, Sonoma County "ignores the inherently discretionary nature of the permitting scheme as a whole." The Alliance argues the focus ought to be on whether the approval process "allows the government to shape the project in any way which could respond to any of the concerns which might be identified in an environmental impact report," quoting Friends of Westwood, supra, 191 Cal.App.3d at pp. 266-267. We reject the premise of the Alliance's argument. An agency can only shape a project through, and in the manner allowed by, the authority vested in the agency by individual regulations. The "nature of the permitting scheme as a whole" is therefore the sum of the discretion conferred by the individual regulations that make up the permitting scheme. Accordingly, if the Commissioner lacks discretion under those regulations, the "permitting scheme as a whole" confers no further discretion.
An exception to the general rule articulated above occurs if the agency has final, discretionary approval authority over a project—in other words, if the agency can refuse, in an exercise of its discretion, to allow a project to proceed, notwithstanding the project's compliance with applicable regulations. In that case, the agency's discretion over the substance of a project could extend beyond the authority conferred on the face of applicable regulations. This exception does not apply to the ordinance, however, because the Commissioner has no authority to disapprove an application so long as it complies with the requirements of the ordinance.
Finally, the Alliance contends Sonoma County will generate excessive litigation because it requires an individualized determination of the discretionary or ministerial nature of each VESCO permit. Assuming the premise of the argument to be true, a rule of law is not rendered invalid because it might generate more litigation than an alternative rule. In any event, the Alliance's proposed alternative—declaring the ordinance per se discretionary and subjecting the establishment of every Sonoma County vineyard to CEQA procedures—would appear to generate far greater burdens for the County than periodic litigation over the ministerial nature of disputed permits.
The Alliance also contends that Sonoma County "conflates discretion with project size," but nothing in the decision suggests that project size is in any way related to the ministerial or discretionary nature of a permit approving the project.
3. Discretion Under Sonoma County.
We therefore apply the legal standard articulated by Sonoma County. In order to demonstrate that the Commissioner abused his discretion in finding that issuance of the Winery permit was a ministerial act, the Alliance must demonstrate that regulations applicable the Winery's application granted discretion to the Commissioner and that the exercise of this discretion in the processing of the Winery's application could have mitigated the environmental impact of the project in a meaningful manner.
In its supplemental briefing, the Alliance relies on the following regulations of the ordinance as conferring discretion:
Ordinance § 11.16.040, subd. D: "Drainage improvements shall carry storm water to the nearest practicable disposal location and shall dissipate the energy or diffuse the flow prior to releasing the storm water off the site."
Ordinance § 11.16.090, subd. A: "Topsoil removed from the surface in preparation for grading, drainage improvement, and vineyard and orchard site development shall be stored on or near the site and protected from soil loss while the work is underway, provided that such storage shall not cause damage to root systems of trees intended to be preserved."
Best Management Practice No. 4.2: "Incorporate natural drainage features into the vineyard/orchard plan to maintain natural sheet flow whenever possible. Consider using vegetated swales as an option to drain pipe whenever possible."
Best Management Practice No. 2.7: "Out-slope roads wherever possible to prevent the concentration of flow within the ditch, to promote even draining of the road surface and to minimize disruption of the natural sheet flow pattern off the hill slope to the stream."
Best Management Practice No. 3.3: "Whenever possible, avoid tilling early in the spring or late in the fall. Leave filter strip areas or other perimeter erosion control in place if the vineyard rows are tilled early."
Best Management Practice No. 3.4: "Minimize tillage practices, especially if slopes are greater than nominal (>5-10%) or if soils are highly erodible."
a. Applicability
There seems little question that Ordinance § 11.16.040, subd. D and Best Management Practice (BMP) no. 4.2 were applicable to the Winery application, since they relate to drainage systems, which featured prominently in the approval of the Winery permit.
On the other hand, there is no evidence to support the Alliance's claim that Ordinance § 11.16.090, subd. A, applied to the Winery permit. This subdivision governs the removal and storage of topsoil during the grading process. The approved plans, however, state that "[n]o grading is proposed that would subject the work to a GRD [presumably "grading"] permit." In support of its claim of applicability, the Alliance cites the Winery's statement in the application that, "a light ripping of about 2' may be applied where it will not conflict with existing drainage, and the prepared soil then disked and ring-rolled in preparation for vineyard installation." The Alliance cites to nothing in the record to suggest that "ripping" or "disking" involve the removal of topsoil, nor have they asked us to take judicial notice of treatises explaining these terms. In the absence of some evidence that these procedures require topsoil removal, we find the regulation inapplicable.
For a different reason, BMP Nos. 3.3 and 3.4, which require the grower to avoid tilling during rainy periods, leave vegetated areas in place if tillage occurs early, and to minimize tillage practices on highly erodible locations, are irrelevant here. In contrast to the regulations of the ordinance, which govern vineyard establishment, these BMPs concern the on-going operations of a vineyard. In a review of the ordinance, we found no regulations that require compliance with these BMPs, either expressly or in general terms, and the Alliance has called our attention to no such regulations. Accordingly, they played no role in the Commissioner's decision to issue a permit under the ordinance. As noted in Sonoma County with respect to these and similar BMPs, "many of the best management practices petitioners cite applied to ongoing vineyard operations, and there is no evidence in the record to suggest that they played any role in issuing the [applicants'] permit." (Sonoma County, supra, 11 Cal.App.5th at p. 27.)
Finally, BMP no. 2.7 governs the surfacing of vineyard roads. Within the Winery vineyard, transit will be accomplished by means of vegetated swales, which are also used for drainage, rather than roads. A series of avenues runs around the perimeter of the property, most of which are vegetated as well. In two distinct sections of the perimeter avenues, representing five percent or less of the total perimeter, rock armor has been added where erosion had occurred. The BMP therefore applies to the property, although to a limited extent.
b. Meaningful Discretion
As discussed in Sonoma County, some regulations grant such broad authority to the regulator that they can be assumed to confer meaningful discretion. When a regulation does not unquestionably confer such discretion, however, a petitioner will be required to provide evidence to support the claim. As Sonoma County, supra, 11 Cal.App.5th 11, pointed out with respect to the ordinance in particular:
"We recognize that some older [judicial] decisions treated the mere existence of discretion as conclusive, without expressly discussing its meaningfulness in the context of the particular project approval. In those decisions, however, such a discussion was unnecessary because the scope of the discretion granted was obviously meaningful. In Department of Housing, for example, the agency had broad discretion with respect to the water supply, drainage, and method of sewage disposal at the site, and it could issue a conditional permit imposing a variety of conditions on use and occupancy. [Citation.] There was no question that such broad authority conferred on the agency the power to influence the project's environmental impact. Similarly, Friends of Westwood involved the discretionary approval of a 26-story building in a crowded urban area [citations], and Day v. City of Glendale (1975) 51 Cal.App.3d 817 [citations] (Day) considered the approval of a grading permit 'to fill canyons . . . with 1,556,000 cubic yards of material . . . and movement of 343,000 cubic yards of material to be cut from a ridge to form a [huge] notch' as part of a highway construction project [citation]. Again, there was no question that the discretion involved in approving both of these large projects allowed for environmentally meaningful mitigation.
"The contrast between those circumstances and the [applicants'] project is dramatic. First, and most importantly, in contrast to the significant discretion granted to the agencies in those cases, the Commissioner's consideration of the . . . application was confined by a series of finely detailed and very specific regulations. The substantive provisions in article 16 of the ordinance run to 17 pages in the administrative record and the best management practices add a further 36 pages, covering a wide range of circumstances and prescribing specific measures to address them. While these provisions may grant some discretion, the scope of any such discretion is drastically narrower than that which was conferred by the broad language of the regulations in Department of Housing, Day, and Friends of Westwood. In addition, the provisions here are technical. A provision that appears to a lay person to grant discretion to an agency might, as understood by a person with technical knowledge, grant little or none in the context of a particular proposed project." (Sonoma County, supra, 11 Cal.App.5th at pp. 28-29.) With that background, we review the applicable regulations cited by the Alliance as vesting meaningful discretion.
Ordinance § 11.16.040, subd. D, requires the drainage system to carry surface runoff to "the nearest practicable disposal location" and to "dissipate the energy or diffuse the flow prior to releasing the storm water off the site." It seems likely that drainage engineers, presented with a particular hillside, would generally agree on the site's practicable disposal locations for drainage water, which are presumably dictated by the topography of the site, and an appropriate means for dissipating flow. We recognize, however, that the term "practicable" is open to some interpretation and may, as to a particular site, permit more than one engineering solution, allowing an exercise of discretion by the Commissioner. For that reason, we are willing to assume that the Commissioner possesses some discretion under the regulation.
There is no evidence in the record, however, to support a finding that the discretion conferred by Ordinance § 11.16.040, subd. D, was meaningful in the context of the Winery permit. In order to demonstrate that the Commissioner's exercise of discretion under this regulation could have mitigated the environmental impact of the project in a meaningful way, the Alliance was required to demonstrate that the regulation permitted the Commissioner to require a different means of accomplishing drainage on the property than the one selected by the Winery and that the use of the alternative means might have materially reduced the environmental impact of water flow on and from the site. There is no evidence that any other drainage system was feasible, let alone that it would have reduced or controlled drainage in a materially superior manner. Further, there is no reason to assume that the various possible drainage systems that complied with the regulation by directing surface water to "the nearest practicable disposal location" and "dissipat[ing] the energy or diffuse the flow prior to releasing the storm water off the site" would have resulted in materially different environmental impacts.
BMP No. 4.2 requires the applicant to use natural drainage features of the site "whenever possible" and to "consider" using "vegetated swales" as an alternative to drainage pipes, again "whenever possible." Given the uncertainty inherent in the term "whenever possible," we are willing to assume its use confers discretion on the Commissioner. In addition, the BMP's precatory language, requiring an applicant merely to "consider" using swales rather than requiring their usage, could open the door for an exercise of discretion regarding that provision.
Again, however, there is no evidence to support a conclusion that the exercise of this discretion would have been meaningful in the context of the project. BMP No. 4.2 requires the applicant to use natural drainage features, particularly vegetated swales. This is precisely the drainage system selected by the applicant. There is no reason to believe, and certainly no evidence in the record to suggest, that an alternative means of drainage using natural features was available that might have reduced the environmental impact of water flow from the property even further than the approach selected by the Winery.
BMP No. 2.7 requires an applicant to "out-slope" roads "wherever possible." As with BMP No. 4.2, we are willing to assume a grant of discretion from the regulations use of the term "whenever possible." Again, however, the Winery confirmed in its application that it had, indeed, out-sloped the roads. Because compliance with the regulation was straight-forward, it is difficult to conceive what the Commissioner could have required of the Winery under the BMP to further reduce the environmental impact of road erosion from the property. In any event, there is no evidence in the record to suggest that the Commissioner could have required some other approach, consistent with the BMP, that might have further reduced the environmental impact of the project's roadways.
The Alliance also claims discretion through certain post-application measures. We agree with Sonoma County that these do not confer meaningful discretion because they are directed only at insuring compliance with the permit. For that reason, they "have nothing to do with whether the Commissioner exercised discretion in issuing the permit in the first instance." (Sonoma County, supra, 11 Cal.App.5th at p. 27, fn. 16.) --------
DISPOSITION
The judgment of the trial court is affirmed. Respondent and the Winery may recover their costs on appeal. (Cal. Rules of Court, rule 8.278, subds. (a)(1), (2).)
/s/_________
McGuiness, P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.