MOUNTAINLANDS CONSERVANCY, LLC, et al., Plaintiffs and Appellants, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent; COUNTY OF LOS ANGELES, Real Party in Interest and Respondent.
B287079
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Filed 4/1/20
CERTIFIED FOR PUBLICATION
(Los Angeles County Super. Ct. No. BS149063)
APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed.
Damien M. Schiff for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants.
Xavier Becerra, Attorney General, Daniel A. Olivas, Senior Assistant Attorney General, Christina Bull Arndt, Supervising Deputy Attorney General, and David Edsall Jr., Deputy Attorney General, for Defendant and Respondent.
No appearance for Real Party in Interest and Respondent.
SUMMARY
This is an appeal from a decision of the California Coastal Commission certifying a local coastal program for the Santa Monica Mountains that prohibits any new vineyards in the Santa Monica Mountains coastal zone.
Three limited liability companies that own land subject to the local coastal program sought a writ of mandate to vacate the certification, challenging the commission‘s decision on both procedural and substantive grounds. The trial court denied the writ petition.
We affirm the judgment.
1. The Legal Background: General Principles
The California Coastal Act (the Coastal Act) was passed in 1976.
A local coastal program (or LCP) is defined as “a local government‘s (a) land use plans, (b) zoning ordinances, (c) zoning district maps, and (d) within sensitive coastal resources areas, other implementing actions . . . .” (
The local coastal program may be submitted to the commission all at once or in two phases. The two phases are, first, the land use plan (or LUP), and second, the zoning ordinances, zoning maps and any other implementing actions (
The commission will certify a land use plan, or any amendments to it, if the land use plan “meets the requirements of, and is in conformity with, the policies of Chapter 3 (commencing with Section 30200).” (
The commission‘s review of a local government‘s land use plan is expressly limited to its determination that the plan “does, or does not, conform with” the requirements of chapter 3. (
“A certified local coastal program and all local implementing ordinances, regulations, and other actions may be amended by a local government, but no such amendment shall take effect until it has been certified by the commission.” (
2. The Factual and Procedural Background
Los Angeles County (the county) has divided its coastal zone into three areas. One of these is the Santa Monica Mountains.
In 1986, the commission certified the land use plan portion of a proposed local coastal program for the Santa Monica Mountains. (This is referred to as the 1986 Malibu land use plan.) No zoning ordinances or other implementing actions were adopted or certified, so the county did not have a complete certified local coastal program for the Santa Monica Mountains. (This meant that the commission retained jurisdiction over land use in the Santa Monica Mountains, and applicants for any development project in that coastal zone had to obtain permits from the commission rather than from the county.)
In 2007, the county‘s regional planning commission recommended approval of a proposed local coastal program that included an “updated land use plan . . . to replace the Malibu LUP” as well as a proposed local implementation plan. The Board of Supervisors (the board) indicated its intent to approve the proposed program with modifications, but the commission never considered or certified it.
In 2012, the commission began to encourage certification of uncertified areas and to work with local agencies to update existing coastal plans. After negotiations between commission staff and the county, clarifications and amendments were made to the 2007 proposed local coastal program.
a. The county‘s proposed local coastal program
On January 2, 2014, the county gave notice the board would consider a proposed local coastal program for the Santa Monica Mountains at a public hearing on February 11, 2014.
The county‘s proposed program included a land use plan replacing the 1986 Malibu land use plan, and an implementation plan with amendments to the zoning code and a zone change ordinance. The county summarized the
Among the significant differences was that “[a]gricultural uses are proposed for restriction in the proposed [local coastal program].” For reasons the county enumerated, “the County has elected to respect the vineyards and crop areas already in existence, and to prohibit further establishment of such uses in the future.” Another significant difference involved critical habitat; in the 1986 plan, “there was a far smaller designation of critical habitat than is now presented as H1.” (“H1” is the designation for “[t]he most sensitive and geographically constrained habitats.“)
The board held a public hearing, and on February 18, 2014, approved a resolution stating its intent to approve the proposed program and submit it to the commission.
b. The commission staff‘s March 27 report
On March 27, 2014, the commission staff issued a report on the county‘s proposed land use plan amendment. The staff recommended denial as submitted, but recommended approval subject to 60 suggested modifications. Most were clarifications and refinements, but several modifications were suggested as necessary to ensure the land use plan was in conformity with chapter 3 policies.
As relevant here, in modification No. 27, the staff clarified the provision prohibiting new crop, orchard, vineyard, and other crop-based nonlivestock agricultural uses, adding that existing agricultural uses “may not be expanded.” The staff also suggested a new policy (modification No. 28) stating that “[e]xisting, legally-established, economically-viable crop-based agricultural uses on lands suitable for agricultural use shall not be converted to non-agricultural use” unless certain requirements were met. (This modification tracked a policy stated in
The commission staff‘s report reviewed
The staff report concluded
Further, “other lands in existing agricultural use and suitable for agricultural use are very limited in area. [A] large percentage of the plan area consist[s] of very steep slopes and poor soils, which are unsuitable for agriculture. . . . The steep slopes, poor soils, limited water availability, and other constraints within the Santa Monica Mountains make the cultivation of vineyards and other crops either infeasible, or extremely difficult and costly.” In addition, “[a]ctivities such as vineyards or other intensive crop cultivation can have significant adverse impacts on the biological
integrity of the surrounding mountain environment and receiving waterbodies.” The staff described a “confluence of factors—including steep slopes, poor soils, scenic considerations, sensitive watersheds, abundant [environmentally sensitive habitat areas], and lot size limitations—[t]hat render the vast majority of the land in the Santa Monica Mountains unsuitable for agricultural use.” Consequently, “the prohibition on the conversion of lands suitable for agricultural use to non-agricultural use” in
The report stated that the only areas in existing agricultural production were “very limited vineyard areas, encompassing a very small percentage of the plan area.” The “very limited areas where agriculture is possible” were “the one or two areas that are already in active agricultural production,” and these were to be protected by modification No. 28. These two vineyard areas encompassed approximately 50 acres. “Otherwise, the remaining vineyards in the plan area are a very limited number of very small, ‘hobby’ vineyard plots (less than 2 acres) that are accessory to single-family residences,” and “these areas are very limited and often not commercially viable.”
c. Public comments
On April 7, 2014, plaintiffs—Mountainlands Conservancy, LLC; Third District Parklands, LLC; and Third District Meadowlands, LLC—submitted their comments. They contended the proposed land use plan, even with the staff‘s proposed modifications, “raises substantial issues as to conformity with” chapter 3 policies, in particular the “policy of preserving land in the Coastal Zone for agriculture.” Plaintiffs asked the commission either to decline certification or to “set an additional hearing on all matters that raise such ‘substantial issues.‘” (
Specifically, plaintiffs first challenged the staff‘s finding that the only prime agricultural soils were located in public parkland areas or developed with existing uses. Plaintiffs said they were “aware of at least one property within the Coastal Zone containing a deed restriction indicating the presence of ‘prime agricultural land’ on that property.” (Plaintiffs did not identify or document this property.)
Plaintiffs also challenged the staff‘s conclusion that the vast majority of land in the Santa Monica Mountains was unsuitable for agricultural use. Plaintiffs contended these findings were “purely speculative“; and the report contained “no information on the amount of land . . . that is currently under cultivation,” and no persuasive explanation of why there is no further land suitable for agriculture.
Plaintiffs submitted a soil survey of the Santa Monica Mountains National Recreation Area (as well as other soil surveys, soil maps and related materials). The Santa Monica Mountains survey stated that “[a]bout 3,470 acres, or less than 2 percent of the survey area, would meet the requirements for prime farmland if an adequate and dependable supply of irrigation water were available.”
Plaintiffs also submitted an opinion from geologist Scott Hogrefe, to refute the staff‘s assertion that the Santa Monica Mountains, because of steep topography, poor soils, limited water availability, and constrained access, have never been an area particular conducive for agriculture. Mr. Hogrefe, who has been a consulting geologist on many properties in the area during the past 30 years, opined that the “vast majority of sites across the Santa Monica Mountains do contain good to excellent soil conditions for agricultural purposes.”
d. The commission staff‘s April 9 addendum
On April 9, 2014, the commission staff issued an addendum to its March 27 report, one day in advance of the April 10 public hearing. Among other matters, the April 9 addendum responded to concerns raised by the public, including by plaintiffs, about the proposed prohibition of all new crop-based agriculture. The addendum stated the commission staff had conferred with county staff and agreed on some proposed changes, including its recommendations on modifications No. 27 and 29, “to temper the wholesale prohibition on new crop-based agriculture that appears in the County‘s original proposal.”
The trial court aptly summarized the recommended changes. “In light of the comments received,” commission staff recommended a modification “to
The commission staff‘s new findings “justified the allowance for new agriculture because ‘small-scale crop-based agricultural operations (with the exceptions of vineyards) can avoid adverse impact to biological resources and water quality,’ if ‘organic and biodynamic farming practices are followed.‘” The staff “explained that ‘organic and biodynamic farming practices are required to prevent the use of pesticides, herbicides, and fertilizers, which can adversely impact the biological productivity of coastal waters and human health.‘” New vineyards “would remain prohibited due to a number of identified adverse impacts attributed specifically to those operations, including increased erosion from removal of all vegetation, use of pesticides, large amounts of water required, their invasive nature, and their adverse impact to scenic views.”
e. Plaintiffs’ response
Plaintiffs responded to the April 9 addendum on April 10, the date of the public hearing.
First, plaintiffs contended that allowing affected parties less than 24 hours to respond to the proposed revisions would violate
Second, plaintiffs argued that even as revised, the proposed land use plan “still raises substantial issues as to its compliance” with chapter 3 policies, so that the commission “must set an additional hearing to discuss those issues.” Plaintiffs cited three “substantial issues.”
Plaintiffs said the revised proposal “would still exclude new agriculture from the vast majority of land” in the Santa Monica Mountains coastal zone. This was because new agriculture was allowed, with two limited exceptions, “only in certain H3 habitat areas,” and “the bulk of the area in the Coastal
Plaintiffs also challenged the staff‘s justification for the prohibition of new vineyards, contending the staff‘s statements (reproduced in the next footnote)5 were “newly presented
. . .without substantiation and without the benefit of public comment.” (Plaintiffs similarly challenged the limitation of additional agriculture solely to organic and biodynamic farming methods, but they do not pursue this point on appeal.)
In addition, plaintiffs submitted two documents for the record. The one relevant to this appeal is a June 2012 study prepared by researchers at the UCLA Institute of the Environment & Sustainability, entitled “Potential Extent of Vineyard Development in the Santa Monica Mountain National Recreation Area [SMMNRA]” (the UCLA study). The UCLA study sought to identify “areas where vineyard development could potentially occur given current zoning and land use regulations,” and stated that, of the 48,394 acres in the study site, 62.5 percent had favorable physical conditions and appropriate zoning for development. In addition to potential vineyard development, the report identified existing vineyards in the area (38, some with slopes greater than 33 percent). These included “large commercial vineyards, as well as small hobby vineyards.” (We will describe the UCLA study further in connection with our legal discussion of plaintiffs’ substantial evidence claim.)
f. The April 10 hearing and subsequent proceedings
After presentations by county and commission staff, the commission heard from many members of the public. Counsel for plaintiffs argued the commission had a duty to determine whether there were any substantial issues concerning the compliance of the land use plan with chapter 3 policies, and that there were such issues, “especially with compliance with section 30242.”
The commission voted unanimously to approve the land use plan with the modifications suggested by the commission staff.
Three months later, after a staff report, objections from plaintiffs, and a public hearing, the commission approved the county‘s proposed local implementation plan, with modifications. On August 26, 2014, the board issued a resolution adopting the local coastal program, consisting of the land use plan and the local implementation plan, both as modified by the commission. Final commission certification took place at its meeting on October 10, 2014.
g. The writ petition proceedings
In June 2014, after the commission‘s approval of the land use plan, plaintiffs filed a petition for writ of mandate. The amended petition filed December 9, 2014, is the operative pleading. Plaintiffs alleged the commission did not proceed in the manner required by law, because it did not make a “substantial issues” determination under
Plaintiffs also alleged that, by considering the addendum made available to the public the day before the hearing, the commission denied them a meaningful opportunity to address the findings that “new vineyards deserved to be separated from other forms of agriculture for categorical prohibition.”
Plaintiffs further alleged the commission‘s findings were not supported by substantial evidence, including insufficient evidence to justify a categorical prohibition of vineyards as opposed to other types of agriculture.
The trial court denied plaintiffs’ petition, issuing two comprehensive rulings.
And, the court found substantial evidence supported the commission‘s findings “that a large percentage of the plan area is not suitable for agricultural use and not subject to section 30242‘s restriction on the conversion of lands suitable for agricultural use.”
The trial court continued the hearing and ordered further briefing, limited to the question whether the total ban on vineyards was supported by substantial evidence. Along with their supplemental brief, plaintiffs filed a motion to augment the record with documents relating to the federal designation of the Santa Monica Mountains coastal region as an American Viticultural Area. At the continued hearing, the court denied the motion as unauthorized and untimely.
In its second ruling, the court described and analyzed the evidence in great detail, concluding there was substantial evidence that vineyards are harmful to the Santa Monica Mountains ecology “because they require clearing and scarification, increase erosion and sedimentation, require pesticide use, and constitute an invasive monoculture.” Further, “[o]f these harms, many are inherent to the nature of viticulture, and there is no evidence that they could be mitigated.”
Judgment was entered on November 20, 2017, and this appeal followed.
DISCUSSION
With minor variations, plaintiffs make the same claims they made to the trial court: that
Under
The trial court considers all relevant evidence, but does not substitute its own findings and inferences for those of the commission. (Ross, supra, 199 Cal.App.4th at pp. 921-922.) The trial court may reverse the commission‘s decision “‘only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by [the commission].‘” (Id. at p. 922.) “Our scope of review is identical to that of the trial court. [Citations.] We, like the trial court, examine all relevant materials in the entire administrative record to determine whether the [commission‘s] decision is supported by substantial evidence.” (Ibid.)
When interpreting a statute, our review is de novo, but the commission‘s interpretation of its governing statutes “is entitled to great weight.” (Ross, supra, 199 Cal.App.4th at p. 922.)
2. Section 30512 versus Section 30514
Plaintiffs contend the commission was required to proceed under
substantial issue as to conformity” with chapter 3 policies “as would otherwise be required by Section 30512.” (
The record shows the county identified its February 14, 2014 submission to the commission with a caption that begins with the words, “formal submittal of amendment to the 1986 land use plan.” The submission included a “summary of the major differences between 1986 Malibu LCP, LUP and the current submittal.” Similarly, the commission staff‘s March 27 report describing the county‘s proposed local coastal program stated that, “[f]or the Land Use Plan portion, the County is requesting an amendment to its existing certified Land Use Plan, consisting of a comprehensive update to replace the existing Land Use Plan with a new proposed Land Use Plan.”
In the trial court, plaintiffs argued that
On appeal, plaintiffs take a different tack, telling us that
Plaintiffs insist that when a land use plan entirely replaces an existing land use plan, it is not an amendment. The cases plaintiffs cite do not support that proposition. For example, plaintiffs tell us that the repeal and replacement of a statute “supersedes all prior statutes,” rendering them “annulled, repealed and void.” For this rule, plaintiffs cite Wood v. Roach (1932) 125 Cal.App. 631, 638. The aptness of plaintiffs’ analogy is questionable, but in any event Wood v. Roach repeatedly refers to the enactments at issue, which established “a new and complete scheme,” as the “amendments.” (Id. at pp. 636-638.)
In short, we see no basis in legal authority or sound reasoning for concluding that an amendment to a land use plan must do something less extensive than to replace the plan entirely. This is a circumstance where it is entirely appropriate to defer to the commission‘s interpretation of its own procedures. (See Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830, 849 [” ‘it is well established that great weight must be given to the administrative construction of those charged with the enforcement and interpretation of a statute. [Citations.] We will not depart from the Commission‘s interpretation unless it is clearly erroneous’ “].) We note as well that the commission has used the amendment process in analogous circumstances in the past. (Cf. Headlands Reserve, LLC v. Center for Natural Lands Management (C.D.Cal. 2007) 523 F.Supp.2d 1113, 1120-1121 [referring to the commission‘s certification of an amendment to a local coastal program where “[t]he new amendment replaced the pre-existing 1986 [local coastal program] and covered [a] previously uncertified . . . area“].)
3. The “Blanket Determination” Issue: Agricultural Policies in Sections 30241 and 30242
Plaintiffs next argue the commission failed to proceed in the manner required by law because “it made a blanket determination that the Santa Monica Mountains are not suitable for agriculture.” Plaintiffs say that
First, plaintiffs cite no authority for their “case-by-case basis” claim. As the commission points out, the whole point of a local coastal program is to allow local governments to do area-wide planning in conformity with the policies of the Coastal Act.
Second,
a. Section 30241
As we have said,
As we also said earlier,
Plaintiffs contend it was “arbitrary and capricious” to find, as stated in the staff report, that a “confluence of factors—including steep slopes, poor soils, scenic considerations, sensitive watersheds, abundant [environmentally sensitive habitat areas], and lot size limitations—render the vast majority of the land in the Santa Monica Mountains unsuitable for agricultural use.” Plaintiffs point to Mr. Hogrefe‘s testimony that the “vast majority of sites” contain good to excellent soil conditions for agricultural purposes, and that topographic conditions allow sustainable agricultural uses.
We see nothing arbitrary or capricious about the commission‘s conclusion.
First, there was ample evidence in the staff report that the plan area is generally unsuitable for agriculture. In addition to steep slopes and poor soils, water availability is limited, and the area contains significant biological and scenic resources. “Activities such as vineyards or other intensive crop cultivation can have significant adverse impacts on the biological integrity of the surrounding mountain environment and receiving waterbodies.”
Second, as the trial court pointed out, “[t]he mere possibility of successful agricultural use,” as presented in the comments of plaintiffs’ experts, is not sufficient. Plaintiffs did not show that land in the plan area is actually suitable or feasible for agricultural uses. The Coastal Act defines “feasible” as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (
The staff report found that, in combination with the relatively steep topography, “vegetation removal, increased soil exposure, and chemical/fertilizer and irrigation requirements from crop-based agriculture can result in significant impacts to biological resources and water quality from increased erosion, sedimentation of streams, pollution, slope instability, and loss of habitat.” And plaintiffs completely ignore the requirement for protection of environmentally sensitive habitat areas. (Recall that more than 87 percent of the 50,000 acres in the land use plan is designated either H1 or H2 (sensitive environmental resource areas), making those areas unsuitable for agriculture.) An assessment of “feasibility” requires consideration of these factors. Further, the Legislature recognized there would be conflicts between the policies of the Coastal Act, and declared that “such conflicts be resolved in a manner which on balance is the most protective of significant coastal resources.” (
Thus the trial court correctly gave no credence to testimony that the Santa Monica Mountains area has been zoned for agriculture “[f]or nearly 100 years.” The pertinent point was that “[t]here simply is no evidence that the [local coastal program] converts to a non-agricultural use any land that actually has been used for agricultur[e] anytime within the past 100 years.” The local coastal program approved by the commission fully protects areas currently in agricultural production, as dictated by
There is no doubt that the preservation of agricultural land uses is an important public policy in California. (
4. The Fair Trial Issue
Our inquiry extends to “whether there was a fair trial.” (
Plaintiffs contend the April 10 hearing was unfair and denied them due process because the commission “gave less than 24-hours’ notice of a new [land use plan] that would completely ban vineyards.” Plaintiffs are referring to the staff‘s April 9 addendum, which responded to the public comments on the staff‘s March 27 report. The staff responded by proposing modifications to the land use plan that would allow new agriculture (but not vineyards), subject to slope and “organic or biodynamic farming” requirements.
To be clear, the April 9 addendum was not a “new” land use plan, nor did it propose a new treatment of vineyards. The addendum was issued in
Several regulations govern commission action on land use plans. (
The succeeding section of the regulations (
The April 9 addendum was the staff‘s response to the comments received concerning the agricultural ban, taking them into account and recommending the modified policy described above. As the trial court found, the staff response and recommendation “met the requirements of 14 CCR section 13533, which only requires that it be ‘available at the hearing on the [local coastal program] for all persons in attendance.’ ”
Plaintiffs assert the commission‘s compliance with the regulations “is of no moment,” citing a case that states an affected person “might well be able, in the circumstances of a given case,” to demonstrate a denial of procedural due process notwithstanding full compliance with all applicable regulations. (Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 456, 449 [rejecting claim that a statute and rules (on forest resources) as written denied procedural due process].) Plaintiffs have made no such demonstration, nor could they in the circumstances of this case. (Cf. Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1072 [due process ” ’ “varies according to specific factual contexts” ’ “; in some cases, ” ’ “due process may require only that the administrative agency comply with the statutory limitations on its authority” ’ “].)
Instead, all plaintiffs do is insist that the April 9 addendum “significantly altered the fundamental premise” of the land use plan and was a “complete change in position without any advance knowledge” that “flies in the face of due process ‘dignity’ and fairness.” Plaintiffs’ rhetoric does not comport with the facts or the law.
Nothing about the proposed modifications—responsive to public comment on the plan—altered the plan‘s original objective: “Agricultural uses are proposed for restriction in the proposed [local coastal plan].” The modification merely eased, to a very limited extent, the categorical restriction on new agriculture. To call this a “complete change in position” is simply wrong.
Plaintiffs repeatedly protest that they had no time to refute the “special, distinct prohibition of all new vineyards.” But the prohibition on new vineyards never changed, and plaintiffs present no rational explanation of their assertion that the “complete and singular vineyard ban” would generate a significantly different response from the original ban on “[n]ew crop, orchard, vineyard, and other crop-based non-livestock agricultural uses.” Moreover, plaintiffs in fact responded to the “new” ban on vineyards in the April 9 addendum, both in writing (by letter and with the submission of two research reports), and at the hearing.
In addition, there is precedent for the issuance of a staff addendum under similar circumstances. In Ross, the court rejected a claim that availability of a staff report 13 days before the hearing was unreasonable, observing it was nearly twice the period (seven days) required by the regulations. (Ross, supra, 199 Cal.App.4th at p. 939.) As relevant here, an addendum to the staff report was issued two days before the hearing. The court held the addendum was “not subject to the notice requirement under
Plaintiffs argue Ross does not apply because the addendum in that case “made minor changes to the prior commission staff report” (Ross, supra, 199 Cal.App.4th at p. 915), and did not involve a proposed new local coastal plan, but rather was directed primarily at a particular beach-front property. These are distinctions that make no difference. Ross did not base its analysis on a minor-versus-major basis. Nor do we consider the continued ban on vineyards to be a major change.
Further, we note that the commission‘s regulations permit a local government to amend its land use plan “prior to the commencement of the vote” on the plan as submitted, and the commission then determines whether or not the amendment “is material and includes changes that have not been the subject of public review and comment before the Commission.” (
Plaintiffs’ final argument on its due process claim is that the trial court erred in refusing to augment the record with documents relating to the federal designation of the Santa Monica Mountains coastal region as an American Viticultural Area. But plaintiffs did not even seek augmentation of the record until after the September 5, 2017 hearing on the merits of their writ petition. At that hearing, the court resolved all other issues, and the vineyard ban was briefed and argued. The court requested supplemental briefing, solely on whether the ban on vineyards was supported by substantial evidence. Plaintiffs did not request augmentation until a month later, contemporaneously with filing their supplemental brief.
The court denied the motion as unauthorized and untimely. The court stated that plaintiffs “did not ask, and the court did not authorize, a motion to augment the record,” and plaintiffs provided “no excuse for their failure to bring this motion at the original writ hearing.” The court further stated that the documents could have been obtained in time for the commission hearing had plaintiffs exercised reasonable diligence. Indeed, plaintiffs “admit that many of the documents they seek to add to the Administrative Record existed at the time of the Commission‘s April 10, 2014 hearing.”
Plaintiffs do not explain why the court‘s ruling was an abuse of discretion, and of course it was not. They simply assert—again—that they were “misled” and could have produced more evidence to challenge the vineyard ban if more than 24 hours’ notice had been given, and thus they “were prejudiced
5. The Substantial Evidence Issue
Plaintiffs contend, in essence, there is no evidence vineyards are any worse than other crops that are not subject to a total ban: They contend “there was no substantial evidence that vineyards were deserving of isolation or distinction as being uniquely disruptive of watersheds, erosion, [environmentally sensitive habitat areas], scenic views or of any other coastal resource.” Our review of the record, like the trial court‘s, leads to a contrary conclusion.
There are, in particular, two pieces of evidence—the UCLA study (mentioned in the fact section) and expert testimony from Dr. Jonna Engel, the commission‘s staff ecologist—that directly support the commission‘s conclusion that vineyards pose a threat to coastal resources and therefore should be banned.10 The evidence plaintiffs cite, on the other hand, while it supports the suitability of lands in the Santa Monica Mountains for vineyards, does nothing to counter the evidence of environmental harm caused by vineyards. As the trial court pointed out, it is feasibility, not suitability of the land, that is critical, and feasibility as defined in the Coastal Act requires the consideration of environmental factors.
The UCLA study
The UCLA study sought to identify areas where vineyard development could potentially occur, and to identify existing vineyards in the area. Plaintiffs cited the study to the trial court as “directly on point” and characterized it as “an unbiased report.” They emphasized its finding that 62.5 percent of the land in the Santa Monica Mountains is favorable for vineyard development.
Remarkably, however, plaintiffs completely ignored the substance of the report. (They do not refer to it at all in their appellate briefing.) The abstract of the study begins with the observation that, despite conservation efforts, urbanization “has already contributed to widespread disturbance throughout the [Santa Monica Mountains National Recreation Area (SMMNRA)], and recent trends in the development of vineyards could pose further threats.
The abstract of the study summarizes: “Analysis indicated that unprotected areas in the SMMNRA are at risk of being disturbed by vineyard development. Of the 48,394 acres in the study site, 62.5% had favorable physical conditions and appropriate zoning for development. A land cover analysis underscored the potential effects of widespread development as 74.5% of native vegetation in the study site was at risk.” (Italics added.)
The report explained in its introduction that an increasing number of private landowners were beginning to explore opportunities for developing hobby vineyards, and “[w]e attempted to identify potential areas for vineyard development in order to distinguish habitats at risk of disturbance and improve land use policy.” The report identified “vegetation types that were at high risk of being displaced or disturbed by development.” The study explained that “[t]he extent of maximum development and displaced vegetation are important due to the adverse effects that vineyard development may have on an ecosystem.” The authors cited other studies showing that “[d]isplacement of natural vegetation is a direct cause of habitat loss and is disruptive to ecosystem health,” and that “[d]evelopment effects include fragmentation and increased edge effects[,] decreases in habitat size and complexity, changes in predominant vegetation types, effects on local hydrology, water pollution, soil erosion, and air pollution [citations].”
Dr. Engel‘s rebuttal statement
Testimony at the April 10 hearing likewise supported the ban on vineyards. Dr. Engel testified that vineyards present “numerous significant adverse impacts upon the native Mediterranean habitats” in the Santa Monica Mountains, including habitat loss, habitat fragmentation, disruption of wildlife corridors, and a significant reduction of biodiversity. “From myriad species of plants and animals, to a near monoculture of non-native species, peer reviewed research has demonstrated that the insect community associated with vineyards tends to support more non-native species, and that the modified insect community spills over to the adjacent native habitats.”
Further, “[d]ue to the inherent biology of grapevines, vineyards in particular introduce significant negative changes to the soil chemistry from the perspective of Mediterranean plant communities.” Dr. Engel also testified that, while vineyards in general “may not require much fertilization, they typically require pesticides and fungicides, which are introduced into the
Dr. Engel concluded by citing a recent paper in the proceedings of the National Academy of Sciences, in which the author stated: “Vineyards have long lasting effects on habitat quality, and may significantly impact fresh water resources. In addition to introducing sterilizing chemicals and fertilizer, which remake the ecosystem, mature vineyards have low habitat value for native species, and are visited more often by non-native species.”
As noted above, plaintiffs do not address the evidence in the UCLA study, and they refer to Dr. Engel‘s testimony only to challenge her statement that vineyards “typically require pesticides and fungicides,” and to wrongly characterize her testimony as “inherently untrustworthy.” Instead, plaintiffs contend the evidence “that was specifically related to vineyards” was “undisputed that vineyards were ideally suited for the Santa Monica Mountains,” as vineyards require much less water and thrive on steep slopes and in poor soils. That evidence misses the point: As the trial court observed, “suitability does not make vineyard development feasible,” because feasibility requires an evaluation of environmental, social, and economic factors. (
In short, we are in complete agreement with the trial court‘s summary of the substantial evidence in the record: “[V]ineyards are harmful to the Santa Monica Mountains ecology because they require clearing and scarification, increase erosion and sedimentation, require pesticide use, and constitute an invasive monoculture. Of these harms, many are inherent in the nature of
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.