Posts Tagged ‘Exemptions’


On April 21, 2017, the First District Court of Appeal in Sierra Club v. County of Sonoma (2017) __ Cal.App.5th __ (Case No. SCV-255465), affirmed the trial court and ruled that Sonoma County’s ordinance, issuing an erosion-control permit to establish a vineyard was a ministerial act, not subject to CEQA.

Sonoma County allows for the development or replanting of commercial vineyards, subject to issuance of an erosion-control permit from the County Agricultural Commissioner. In December 2013, the commissioner issued a permit to the Ohlson Ranch to establish a 108-acre vineyard. Several months later, the commissioner issued a notice of exemption indicating that issuance of the permit was ministerial and therefore did not require environmental review. The Sierra Club and Center for Biological Diversity filed suit challenging the commissioner’s determination and the trial court denied the petition.

The Court of Appeal upheld the trial court’s decision that the county’s determination was ministerial and the approval was exempt from CEQA. In determining whether granting the permit was ministerial, the court applied the “functional distinction” test from Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259. Under Friends of Westwood, an action is ministerial when the agency does not have the power to deny or condition the permit, or otherwise modify the project, in ways which can mitigate the environmental impacts identified in an EIR.

The court was unpersuaded by the petitioners’ key argument—that the ordinance’s terms were broad and vague, and therefore the entire permit process conferred discretion on the county. In reaching this decision, the court emphasized that CEQA analysis is project-specific. That discretion could conceivably be exercised in one project does not mean that the particular project at issue was discretionary. Here, many of the terms and conditions in the ordinance that may have conferred discretion to the county did not apply to the Ohlson Ranch permit application, because they were factually inapplicable; expressly excluded from consideration by the commissioner with regard to this project; or there was no evidence in the record to suggest that they played any role in issuing the permit.

Second, even where some of the applicable provisions could have conferred discretion on the commissioner, under the functional distinction test, the county could not have modified the project or denied the permit to mitigate the environmental impacts. Rather, county decision-making was guided by nearly 50 pages of technical guidance documents. A required wetland setback conferred discretion only to the extent that the distance of the setback would be determined by the biologist’s report, but did not confer discretion on the agency to modify the biologist’s recommendations. A requirement to divert storm water to the nearest “practicable” disposal location was similarly ministerial, in that the permit application provided a means of water diversion, and petitioner failed to establish that other diversion methods were even available. If other methods had been available, it may have granted discretion to the commissioner to select an option or otherwise mitigate impacts.  The petitioners’ reliance on a provision to incorporate natural drainage features “whenever possible” was flawed for the same reasons, as petitioners failed to identify the types of features present on the site and the commissioner’s ability to choose the least environmentally significant option.

Third, the court declined to hold that issuing a permit, an otherwise ministerial act, becomes discretionary because the applicant “offers” to mitigate potential impacts. The ordinance does not require mitigation measures and the commissioner has no authority to condition granting the permit application on them.

Similarly, the commissioner’s request for corrections and clarifications on the permit application did not demonstrate discretion, but rather was a simple request for information in order to complete an otherwise non-discretionary act. These corrections and clarifications were not significant enough to have alleviated any adverse environmental consequences.

On January 3, 2014, the First District Court of Appeal ordered publication of Save the Plastic Bag Coalition v. City and County of San Francisco. We previously wrote about the case here.

The League of California Cities and the California State Association of Counties jointly submitted a request for publication. In support of this request, the groups pointed out that: no other published decision has applied the rules of preemption to single-use plastic bag bans; the opinion suggests that if environmentally beneficial components are an integral aspect of a project from its inception, they may be considered when determining that a categorical exemption from CEQA applies to the project; the opinion clarifies that local agencies can use the Class 7 and Class 8 categorical exemptions and operate in a regulatory capacity; and the opinion provides helpful guidance regarding what qualifies as substantial evidence under the fair argument standard. The court did not state which, if any, of these arguments influenced its decision to publish the opinion.