The First District Court of Appeal has issued another published decision applying the “substantial evidence” standard of review to a local agency’s decision not to prepare an EIR for approval of revisions to a project for which a Mitigated Negative Declaration was initially prepared. Coastal Hills Rural Preservation v. County of Sonoma (Jack Petranker, et al., Real Parties In Interest) (1st Dist., Div. One, 8/31/16) ___Cal.App.5th___, 2016 WL 4538384. The project at issue was “the third in a series of master use permits (MUPs) for … the Tibeten Nyingma Meditation Center[’s] (TNMC)” Buddhist retreat center (Ratna Ling) located on a 120-acre property, designated as Resources and Rural Development (RRD) in County’s general plan, in a rural area of western Sonoma County. A citizens group opposed to retreat expansion, Coastal Hills Rural Preservation (CHRP), sued under CEQA claiming an EIR was required because the project greatly expanded an existing “industrial” printing press operation on the property (used by retreatments to print sacred Buddhist texts for free distribution in Asia to Buddhists whose libraries have been destroyed by Chinese authorities). The most recent MUP application sought to:  authorize as permanent four (4) previously temporary steel-frame, fire-retardant membrane storage tents totaling approximately 40,000 square feet (equipped with automatic sprinklers and used to store the texts); add to the property’s extensive existing facilities a six-bedroom residence and eight tent cabins for volunteers; and increase the retreat’s total occupancy limit to 98 persons with 24 additional persons allowed on a seasonal basis (apparently fluctuating with the intensity of the volunteer printing activities).

In early 2014, after numerous public hearings, County’s Permit Resource and Management Department (PRMD) released a 46-page Subsequent Mitigated Negative Declaration (SMND) to previous 2004 and 2008 MNDs and superseding a 2012 MND.  The 2014 SMND assessed potential environmental impacts of the revised project using the CEQA Guidelines’ 18-factor initial study checklist, and identified mitigation measures for all identified less-than-significant impacts.  CHRP administratively appealed the County BZA’s project approval to the Board, which held 2 public hearings, revised the project’s proposed conditions of approval, denied the appeal, adopted the SMND, and approved the project subject to 96 conditions of approval.

CHRP challenged the Project approval under CEQA, and also alleged it was inconsistent with County’s General Plan and zoning.  The trial court denied CHRP’s writ petition, and the Court of Appeal affirmed that judgment.  The opinion’s general plan consistency and spot zoning issues will be covered in my partner Bryan Wenter’s Land Use Developments blog post; key takeaways from other portions of the Court of Appeal’s published opinion include:

• CHRP failed to exhaust administrative remedies on its arguments that County’s approvals violated California Constitutional provisions respecting the establishment of religion. The Court considered these constitutional issues waived and declined to exercise its discretion to hear them anyway; placed in proper context, they ultimately turned on controverted facts and presented a “narrow, fact-specific issue [that] does not concern a matter of public interest[,]” i.e., whether, against a backdrop of numerous never-challenged permits, the “incremental increase in activities authorized under the SMND, in and of itself, violates constitutional principles[.]”
• The Court rejected CHRP’s and its amici’s argument that the “fair argument” test applied to the Board’s decision to adopt the SMND instead of an EIR because “the change in the status of the storage tents from temporary to permanent constituted a new project … as opposed to a modification of Ratna Ling’s prior MUPs.” The Court elected instead to apply “substantial evidence” review.  (Citing Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 202.)
• The Court reasoned that the “fair argument” test has been applied only to the initial decision whether to prepare an original EIR or negative declaration (citing Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1135; Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650, 653; Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479-1481; CEQA Guidelines, § 15162), while noting that “the issue of whether an agency’s decision to forgo preparation of an EIR under [Public Resources Code] section 21166 is reviewed under a substantial evidence standard or subject to an initial de novo determination [of whether a “new project” is involved] is currently before the California Supreme Court.” (Citing Friends of the College of San Mateo Gardens v. San Mateo Community College Dist., Case No. S214061.)
• The Court distinguished its decision in Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, which involved a program EIR for a resource management plan regulating mining, and held the case was more similar to Benton, supra, which involved approval of a modified use permit for a winery project following a prior MND for the same project in a different location on an adjoining parcel. Like Benton, the case concerned a “purported modification to a project after initial [MNDs] … had been adopted” and “unlike the mining of exempt agricultural land [outside the scope of the prior program EIR] in Sierra Club, … the storage tents do not violate any prior approved conditions”; further, “there is substantial evidence that the [modified] Project will not expose people or structures to a significant [wildland fire] risk ….”
• Under the appropriate “substantial evidence” standard of review both trial and appellate courts review the whole record to determine whether the agency’s findings are supported by substantial evidence, i.e., “evidence of ponderable legal significance, reasonable in nature, credible, and of solid value, evidence that a reasonable mind might accept as adequate to support a conclusion,” and the burden is on appellant to show no such evidence exists. (Citing Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334, 336.)  Here, substantial evidence supported the Board’s determination that the storage tents’ fire risks were adequately mitigated, as their fire-retardant membranes met applicable fire protection standards for permanent structures in effect when they were first constructed; they also had heat detection and fire sprinkler systems, a back up generator, and 200-300 feet of defensible space around each tent, and Ratna Ling was required by conditions of approval to have its own onsite fire engine.
• The Court gave short shrift to CHRP’s and amici’s improper “baseline” arguments, holding that “[e]ven if the storage tents [which the County noted “were part of the existing physical conditions”] were improperly incorporated into the SMND’s baseline, we again find substantial evidence supports the conclusion that the SMND adequately addresses the fire safety concerns raised by the storage tents.”
• In disposing of the case’s final CEQA issue, the Court rejected a claim of improperly deferred mitigation based on an SMND condition requiring that “applicant shall coordinate with the Sonoma County Fire Marshal and the [TCFPD] to review the previously approved and existing onsite fire fighting infrastructure for the sacred text storage structures and to install any additional onsite infrastructure deemed appropriate by the Sonoma County Fire Marshal.”  The Court noted that while “CEQA usually requires mitigation measures to be defined in advance[,] … deferral is permitted if, in addition to demonstrating some need for the deferral, the agency (1) commits itself to mitigation; and (2) spells out … the possible mitigation options that would meet “specific performance criteria” ….”  Per the Court, there was no “unlawful deferred mitigation” here because:  “The mitigation measure requires Ratna Ling to comply with all fire-related conditions, and does not defer the implementation of any of these requirements.  Rather, it grants the County the right to impose new, stricter requirements should such requirements be deemed necessary; without first having to initiate an enforcement action.”