First District Court of Appeal Upholds MND for Sonoma County Winery Project

On September 6, 2019, the First District Court of Appeal, Division Four, published a decision in Maacama Watershed Alliance v. County of Sonoma (2019) 40 Cal.App.5th 1007, in which the appellate court affirmed the trial court’s judgment and upheld a MND for a winery project after finding there was no substantial evidence to support a fair argument that the project as mitigated was “reasonably likely to cause significant environmental effects.”

In May 2013, Knights Bridge Vineyards applied for a use permit for a 5,500-square-feet, two-story winery with an adjoining 17,500 square-feet wine cave and other associated facilities.  The County prepared an MND and approved the use permit in 2015. Petitioners Maacama Watershed Alliance and Friends of Spence Lane (Maacama Alliance) appealed the Board of Zoning Adjustment’s approval to the Board of Supervisors. The appeal and subsequent public comments eventually led to County staff preparing two revised MNDs, primarily to address potential impacts to groundwater and water quality. The Board adopted the third MND and again approved the project in 2017. Maacama Alliance filed a petition for writ of mandate seeking to rescind the approval and to compel the County to prepare an EIR. The trial court denied the petition and Maacama Alliance appealed.

Maacama Alliance challenged the MND’s conclusions and mitigation measures related to geology and erosion, groundwater supply, visual resources, and fire hazards. First, relying on geological and hydrological experts, Maacama Alliance argued that soil erosion and runoff from removal and onsite relocation of 21,000 cubic yards of excavated material would have a significant impact on habitat in and around Bidwell Creek, which runs through the property. The petitioner argued that its experts demonstrated the County was incorrect when it concluded that erosion control measures in the MND and conditions of approval would mitigate those potential effects. The court disagreed and held that “[n]othing in the record” existed to support a fair argument that the project design and mitigation measures would be insufficient.

With respect to groundwater impacts, Maacama Alliance relied on two experts, including the National Marine Fisheries Service, to argue there was substantial evidence to support a fair argument that groundwater use by the project would significantly affect salmonids, neighboring groundwater supply, and fire suppression The court, however, agreed with the County. The court pointed to evidence that there likely was not a connection between the aquifer underlying the project site and the aquifer feeding Bidwell Creek. And, the court concluded, the evidence showed that the mitigated project would use less water than that of a residence, thereby reducing any potential impacts to less than significant.

Turning to visual resources, the court noted that lay public commentary “may constitute evidence supporting a fair argument of significant aesthetic effects.” Here, though, the court concluded that lay commentary pointed largely to views of an existing structure on the project site, but not to the potential visual impacts of the winery project itself. The lay opinions regarding a different structure, the court said, did not constitute substantial evidence to support the petitioner’s argument.

Lastly, regarding fire hazards, the court declined to take judicial notice of a Board agenda item addressing wildfire emergencies because it was not part of the administrative record and was created “after the County approved the project.” The court concluded that the County’s permit requirements, which include fire suppression measures such as sprinklers in the winery and an emergency onsite water supply, ensured that the project will not “cause an elevated risk for fire.” The court held, therefore, that the petitioner did not demonstrate that the project would increase the risk of fire hazards.

Although the court found that Maacama Alliance did not meet its burden under the fair argument standard, the court also repeatedly misstated that standard. Initially, the court set out the proper standard of review and burden—that an appellant must fairly argue “on the basis of substantial evidence” that the project “may” have a significant environmental impact, thereby requiring preparation of an EIR. The court reiterated this standard in the final synopsis of the opinion, stating that “[t]he record lacks substantial evidence to support a fair argument that, as now mitigated, the project is reasonably likely to [i.e., may] cause significant environmental effects.” (Emphasis added.) Throughout its discussion, however, the court repeatedly asserted that petitioners must, and here Maacama Alliance did not, show that the project “will” cause significant environmental impacts. Thus, the opinion is somewhat confusing regarding the actual standard that the court applied to its assessment of the record and the petitioner’s arguments.

 

Casey Shorrock