SIERRA CLUB еt al., Plaintiffs and Appellants, v. COUNTY OF SONOMA et al., Defendants and Respondents; RONALD OHLSON et al., Real Parties in Interest and Respondents.
No. A147340
First Dist., Div. One.
Apr. 21, 2017
11 Cal. App. 5th 11
M.R. Wolfe & Associates, Mark R. Wolfe and Justin Augustine for Plaintiffs and Appellants.
Bruce D. Goldstein, County Counsel, and Jeffrey M. Brax, Chief Deputy Counsel, for Defendant and Respondents.
Miller Starr Regalia, Arthur F. Coon, Matthew C. Henderson; Passalacqua, Mazzoni, Gladden, Lopez, and Maraviglia and Thomas R. Passalacqua for Real Parties in Interest and Respondents.
OPINION
HUMES, P. J.—Respondent Agricultural Commissioner of Sonoma County (Commissioner) issued a permit, which we will refer to as an erosion-control permit, under the county‘s Grading, Drainage, and Vineyard and Orchard Site Development Ordinance (Sonoma County Code of Ord., § 11.02.010 et seq.; the ordinance) to real parties in interest Ronald Ohlson and his brother, Ernest. The permit allowed them to establish a vineyard on land they own that was being used for grazing. The Commissioner determined that issuing the permit was a ministerial act and therefore exempt from the California Environmental Quality Act,
We affirm. Although the ordinance may allow the Commissioner to exercise discretion when issuing erosion-control permits in some circumstances, petitioners fail to show that the Commissioner improperly determined that issuing the Ohlsons’ permit was ministerial. Most of the ordinance‘s provisions that potentially confer discretion did not apply to the Ohlsons’ project, and petitioners fail to show that the few that might apply conferred the ability to mitigate potential environmental impacts to any meaningful degree.
BACKGROUND
Until 2000, grape growers in Sonoma County could plant or replant a vineyard “as a matter of right” without any governmental reviеw or permission. (Sonoma County Ord. No. 5216, § IV, subd. (b) (Feb. 8, 2000).) In 2000, the county enacted the ordinance, which governs “grading, drainage improvement, and vineyard and orchard site development within the unincorporated area of the county.”2 (
Article 8 of the ordinance requires growers, other than hobbyists, to obtain an erosion-control permit from the Commissioner before establishing or replanting a vineyard. (Ord., §§ 11.02.030, 11.08.010, subd. A, 11.08.020, 11.10.010, table 11.4.) An applicant must submit plans and specifications demonstrating compliance with certain directives and must accept certain ongoing agricultural practices. The ordinance allows growers to prepare and submit plans for sites with a low erosion risk (level I sites), but it requires a civil enginеer to prepare plans for sites having steeper slopes or a higher erosion risk (level II sites). (Ord., §§ 11.08.010, subd. B & table 11-3, 11.10.020, subds. B, C.)
Article 16 of the ordinance sets out the substantive standards for “the proper conduct of grading, drainage improvement, and vineyard and orchard
The Ohlsons’ application was filed in October 2013 for a level II erosion-control permit. The application sought to convert into a vineyard 108 of 132 acres of rangeland.3 Filed with the application were site maps, a drainage report prepared by a certified engineer, and a biological-resources report. The application indicated that the property included wetland areas and seasonal swales, but no trees or streams. The wetland areas were to be protected by minimum setbacks, as set forth in the biological-resources report, and circular pipe and vee ditch drains were to be installed to drain 27 acres of the property. Erosion was to be controlled through various means, including by using grass avenues (rather than roads), straw mulch, filter strips, and cover crops. According to the drainage report, water runoff was not expected to increase and would be directed to the seаsonal swales.
Inspectors for the Commissioner visited the Ohlsons’ property in December 2013. The primary review of the Ohlsons’ application appears to have been by means of a form checklist containing 69 separate items, some with subparts. These items address whether an applicant submitted the required components of the application, as well as substantive matters such as “[p]rotection fencing for waterways & sensitive areas,” “[t]emporary and permanent erosion control measures,” “[l]ocation of storm water management and sediment control measures,” and “BMP [best management practice] details & specifications.” For each item, the reviewer indicated whether the project “met standards” or alternatively indicated that the item did not apply to the project. In no instance did the Commissioner find the Ohlsons’ application to be out of compliance, although some items were not marked either way. In a subsequent list of 10 comments on the application, the Commissioner sought corrections or clarifications to the writings and maps,
The Commissioner approved the permit on December 30, 2013.5 Several months later, the Commissioner issued a notice declaring that the permit‘s issuance was ministerial and exempt from CEQA review. The notice stated that “[t]he applicant does not seek changes in the ministerial standards set in [the ordinance] and the Best Management Practices . . . .” It further stated that “the issuance of permits [under the ordinance is a] ministerial action[], except in one situation not applicable here.”
The parties agree that CEQA does not require an environmental review for ministerial acts by local agencies. (§ 21080, subds. (a), (b)(1).) Their dispute centers on whether the Commissioner‘s issuance of the Ohlsons’ permit was such a ministerial act. Friends of the Gualala River and the Center for Biological Diversity challenged the permit by filing a petition for a writ of mandate in the trial court. The Sierra Club was added as a petitioner in an amended petition.6 Following briefing on the merits, the trial court denied the petition in a lengthy written decision. It rejected various procedural arguments raised by the respondents and real parties in interest, but it affirmed the Commissioner‘s determination that issuing the permit was ministerial and therefore exempt from CEQA review.7
DISCUSSION
In their appeal, petitioners continue to maintain that the Ohlsons’ permit application was subject to an environmental review under CEQA. Their primary argument is that issuing the permit must have been a discretionary act because many provisions of the ordinance are broad and vague and therefore allow the Commissioner to exercise discretion. We are unpersuaded by this argument because most of the provisions that potentially confer discretion did not apply to the Ohlsons’ project, and petitioners fail to show that the few that did apply conferred on the Commissioner the ability to
A. The Initial Determination of CEQA‘s Applicability.
“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 [196 Cal.Rptr.3d 94, 362 P.3d 792].)
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 [166 Cal.Rptr.3d 1].) 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 [102 Cal.Rptr.3d 894, 220 P.3d 905].) There are two types of exemptions: statutory, which are enacted by the Legislature and are not subject to exceptions, and categorical, which are adopted in the regulations developed to guide CEQA implementation (CEQA Guidelines)8 and are subject to exceptions. (North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 850-851 [174 Cal.Rptr.3d 229].) “If the project is in an exempt category for which there is no exception, ‘no further environmental review is necessary.’ ” (Parker Shattuck, supra, at p. 776.) If the prоject 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). (Parker Shattuck, at p. 776.)
B. The Ministerial Exemption.
CEQA applies only to “discretionary projects proposed to be carried out or approved by public agencies.” (
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 wоuld 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 [65 Cal.Rptr.2d 580, 939 P.2d 1280].) As further explained in Leach v. City of San Diego (1990) 220 Cal.App.3d 389 [269 Cal.Rptr. 328], ” ‘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 [150 Cal.Rptr.3d 354] [” ‘CEQA does not apply to ministerial actions—actions in which the agency is not permitted to shape the process to address environmental cоncerns’ “].) Consistent with this
The first appellate case to discuss the ministerial exemption was People v. Department of Housing & Community Development (1975) 45 Cal.App.3d 185 [119 Cal.Rptr. 266] (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.10 (Department of Housing, 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. (Department of Housing, 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.” (Department of Housing, 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 gradеd; 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.)
The Commissioner characterizes the holdings in Department of Housing and similar early cases as “outdated” and “superseded” by Sierra Club and Friends of the Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286, 302 [118 Cal.Rptr.3d 324] (Juana Briones House). According to the Commissioner, a regulation is now viewed as granting discretion only if it does not establish an objective rule for decision by the local agency. We are not persuaded. The applicable guidelines have not changed in decades, and we find nothing in Sierra Club or Juana Briones House to support the notion that the analysis has been altered for evaluating whether an action was ministerial. In Juana Briones House, the court cited the traditional standard from
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 [235 Cal.Rptr. 788] (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
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 [110 Cal.Rptr.3d 865], 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“].)
C. Standard of Review.
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 [60 Cal.Rрtr.3d 247, 160 P.3d 116] (Muzzy Ranch); see 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 Ohlsons’ 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
To the extent an agency‘s determination that an activity is exempt involves factual determinations, we review those determinations for substantial evidence. (See, e.g., Save Our Carmel River v. Monterey Peninsula Water Management Dist., supra, 141 Cal.App.4th at p. 694.) And to the extent the agency‘s determination that an activity is exempt involves pure questions of law, we review those questions de novo. (Juana Briones House, supra, 190 Cal.App.4th at p. 303; Prentiss v. City of South Pasadena (1993) 15 Cal.App.4th 85, 89 [18 Cal.Rptr.2d 641].)
D. The Commissioner‘s Determination That Issuing the Erosion-control Permit Was Ministerial Involved No Prejudicial Abuse of Discretion.
With this standard of review in mind, we turn to consider the Commissioner‘s determination that issuing the Ohlsons’ permit was a ministerial act. We begin by pointing out that the ordinance itself categorically declares that issuing erosion-control permits is ministerial, except when an application seeks exceptions from the established standards. (Ord., §§ 11.10.020, subd. E, 11.10.060.)11 Bеcause, as we discuss below, a determination whether issuing a permit is ministerial or discretionary generally must be made on the basis of the project‘s particular circumstances, we are skeptical of such a categorical declaration. But we need not decide here whether the declaration is always binding, i.e., whether the issuance of every erosion-control permit is necessarily ministerial unless an exception is sought—because petitioners have not shown that any provisions that arguably grant discretion actually apply to the Ohlsons’ application so as to refute the Commissioner‘s determination that issuing the permit was ministerial.
Petitioners argue that issuing an erosion-control permit is always a discretionary act because provisions in the ordinance establish “vague, subjective standards that require County personnel to use deliberation and personal
1. Most of thе ordinance‘s provisions that potentially confer discretion did not apply to the Ohlsons’ permit.
We need not decide whether most of the provisions cited by petitioners confer discretion on the Commissioner because they did not apply to the Ohlsons’ application. The relevant question in evaluating whether the approval of a particular project was discretionary is not whether the regulations granted the local agency some discretion in the abstract, but whether the regulations granted the agency discretion regarding the particular project. In other words, a regulation cited as conferring discretion must have been relevant to the project.
This point was made in Prentiss v. City of South Pasadena, supra, 15 Cal.App.4th 85, in which the petitioners challenged a city‘s conclusion that issuing a building permit to alter a historic building was ministerial. (Id. at p. 86.) Under state law governing historical structures, the building owner could have sought a permit to alter the building in vаrious ways that did not
The principle that a discretion-conferring provision must have been relevant to the project grows directly out of CEQA‘s focus on individual projects. (
Some of the provisions cited by petitioners were facially inapplicable to the Ohlsons’ application. For example, ordinance section 11.16.020, former subdivision C.8 regulated the use of fill “in [a] flood-prone urban area.” This provision was obviously inapplicable since the Ohlsons’ property is in a remote agricultural area. Similarly, the many regulations cited by petitioners concerning the treatment of watercourses, lakes, and trees were inapplicable because the Ohlsons’ property has no such features.13
Other provisions cited by petitioners, while facially applicable, involved activities the Commissioner expressly excluded in considering the Ohlsons’ application. Many of these provisions concerned cuts, fills, and other aspects of grading.14 “Total volume of cuts,” “total volume of fills,” and “acres to be graded” were all marked as “not applicable” in the application, which was approved without material modification.15 In the same vein, best management
Finally, 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 Ohlsons’ permit. These included directives for growers to avoid planting in frost-prone areas (No. 1.8), to avoid tilling early in the spring or late in the fall (No. 3.3), to minimize tillage on erodible slopes (No. 3.4), to leave downed trees in the riparian corridor (No. 5.6), and to minimize tilling on erodible slopes (No. 3.4). None of these topics was included on the Commissioner‘s approval checklist.16
In short, most of the provisions cited by petitioners as conferring discretion on the Commissioner were inapplicable to the Ohlsons’ project and do not refute the Commissioner‘s determination that issuing the Ohlsons’ permit was ministerial. We decline petitioners’ invitation to hold that the issuance of erosion-control permits is always discretionary, even in cases in which no discretion-conferring provision applies, simply because provisions conferring discretion are present in the ordinance.
2. Nothing in the language of the three potentially applicable provisions that arguably confer discretion or in the record indicates that the Commissioner was able to mitigate potential environmental impacts to any meaningful degree.
After eliminating inapplicable provisions, only three provisions remain that were potentially material to the Ohlsons’ permit: one requiring a 50-foot setback from wetlands “unless а wetlands biologist recommends a different setback” (Ord., former § 11.16.150, table 11-7), another requiring stormwater to be diverted “to the nearest practicable disposal location” (Ord.,
Petitioners argue that the language of these provisions is general enough to confer discretion. But even assuming we could interpret these provisions to grant some discretion to the Commissioner, we reject petitioners’ argument that this alone requires us to hold that the Commissioner‘s issuance of the Ohlsons’ permit was a discretionary act. 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.’ ” (San Diego Navy Broadway Complex Coalition v. City of San Diego, supra, 185 Cal.App.4th at p. 934, italics omitted.)17 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. (See also Johnson v. State of California (1968) 69 Cal.2d 782, 788 [73 Cal.Rptr. 240, 447 P.2d 352] [” ‘[I]t would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail’ “].)
We recognize that some older 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 thе 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. (Department of Housing, supra, 45 Cal.App.3d at p. 193.) 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 (Friends of Westwood, supra, 191 Cal.App.3d at p. 262), and Day v. City of Glendale (1975) 51 Cal.App.3d 817 [124 Cal.Rptr. 569] (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 (id. at pp. 819-820). 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 Ohlsons’ 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 Ohlsons’ 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.
Turning to examine the three specific provisions that potentially conferred discretion on the Commissioner, we are mindful of the applicable standard of review, which requires us, as we have mentioned, to review the Commissioner‘s determination that issuing the Ohlsons’ permit was a ministerial act for ” ‘a prejudicial abuse of discretion.’ ” (Muzzy Ranch, supra, 41 Cal.4th at p. 381, quoting
The first provision that potentially conferred discretion requires a 50-foot setback for wetlands unless a wetlands biologist recommends a
The second provision that potentially conferred discretion requires the diversion of stormwater to the nearest practicable disposal location. Thе Ohlsons’ application stated that the vineyard would not result in any increase in water runoff and that rainwater would move by surface sheet flow to vee ditches, which in turn would drain into storm drains. By failing to demonstrate that other means of diversion were available, petitioners have not established that the Commissioner had discretion under this provision. And even assuming there was some discretion, petitioners fail to show that it allowed the Commissioner to mitigate potential environmental impacts to any meaningful degree.19
As to the third provision that potentially conferred discretion, the best management practice requiring the incorporation of natural drainage features “whenever possible,” petitioners make no attempt to demonstrate what type of natural drainage features were present on the Ohlsons’ property. By not identifying any alternative natural drainage features, petitioners agаin fail to show that the Commissioner had discretion under this provision. And even assuming there was some discretion, petitioners do not demonstrate that it allowed the Commissioner to mitigate potential environmental impacts to any meaningful degree.
3. The Commissioner‘s ability to request additional voluntary actions does not refute the determination that issuing the Ohlsons’ permit was ministerial.
Finally, petitioners argue that the issuance of the Ohlsons’ permit was discretionary based on two requests the Commissioner made before approving the application. The Commissioner required as a condition of the permit several mitigation measures that the Ohlsons adopted in their engineering plans. But because the ordinance does not require these measures, as petitioners concede, the Commissioner had no authority to require them. The Ohlsons’ acceptance of them, therefore, did not establish an exercise of discretion by the Commissioner. (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].) We decline to hold that the issuance of a permit, otherwise ministerial, is rendered discretionary and therefore subject to further CEQA review because the applicant offers to mitigate potential impacts in ways that are not required.
Petitioners also contend that the Commissioner‘s request for corrections to and clarifications of the Ohlsons’ application demonstrates discretion because the Ohlsons could not have compelled issuance of the permit without making those changes. In so arguing, petitioners rely on Friends of Westwood‘s observation that a project is ministerial “[o]nly when a private party can legally compel approval without any changes in the design of its project which might alleviаte adverse environmental consequences.” (Friends of Westwood, supra, 191 Cal.App.3d at p. 267.) But the simple fact that an agency asks for more information does not establish that the applicant must
In sum, we cannot conclude on this record that the Commissioner‘s determination that issuing the Ohlsons’ erosion-control permit was a ministerial act constituted a prejudicial abuse of discretion.
DISPOSITION
The judgment of the trial court is affirmed. Respondents may recover their costs on appeal. (
Margulies, J., and Banke, J., concurred.