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A145573

IN THE COURT OF APPEAL


OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE

COASTAL HILLS RURAL PRESERVATION,


Petitioner/Appellant
vs.
COUNTY OF SONOMA,
Respondent
JACK PETRANKER, an individual, et al.,
Real parties in interest and Respondents

Appeal from Sonoma County Superior Court


The Honorable Eliot Lee Daum, presiding
(Case no. SCV 255694)
APPELLANT'S OPENING BRIEF

PROVENCHER & FIATT LLP


Janis H. Grattan SBN 68139
823 Sonoma Ave
Santa Rosa, CA 95404
Tel. (707) 284-2380 / Fax (707) 284-2387
Email: jhg@provlaw.com
Attorney for Appellant Coastal Hills

TO BE FILED IN THE COURT OF APPEAL


COURT OF APPEAL, FIRST

APPELLATE DISTRICT, DIVISION 1

A145573

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):

Superior Court Case Number:

Janis H. Grattan 68139


-1)rovencher & Flatt LLP
823 Sonoma Ave.
SANTA ROSA CA 95404
TELEPHONE NO.: 707-284-2380
FAX NO. (Optional): 707-284-2387
E-MAIL ADDRESS (Optional): i hg@provlaw.corn
ATTORNEY FOR (Name): Coastal Hills Rural Preservation
APPELLANT/PETITIONER: Coastal

APP-008
Court of Appeal Case Number

SCV 255694
FOR COURT USE ONLY

Hills Rural Preservation

RESPONDENT/REAL PARTY IN INTEREST: County of Sonoma et al.

and

Jack Petranker, an individual et al.


CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one):

INITIAL CERTIFICATE

SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial
certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a
motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may
also use this form as a supplemental certificate when you learn of changed or additional information that must
be disclosed.
1. This form is being submitted on behalf of the following party (name):coAsTAL HILLS RURAL PRESERVATION
2. a.
b.

x There are no interested entities or persons that rqust be listed in this certificate under rule 8.208.
Interested entities or persons required to be listed under rule 8.208 are as follows:
Full name of interested
entity or person

Nature of interest
(Explain):

Continued on attachment 2.

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other
association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or
more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Date: Septmeber 25, 2015

JANIS H. GRATTAN

01'
(TYPE OR PRINT NAME)

E OF PARTY OR ATTORNEY)
?/
61
SIGNATUR

Form Approved for Optional Use


Judicial Council of California
APP-008 [Rev. January 1, 2009]

Page 1 of 1
Cal. Rules of Court, rules 8.208, 8.488

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS


al
So ut QnsEilA Plus

TABLE OF CONTENTS
I.

INTRODUCTION

9
II.
STATEMENT

III. STATEMENT OF THE CASE

11

A. 2004 MND and use permit

11

B. New mission: book storage

11
14

C. 2008 storage caves proposal


D. Expansion: new construction, additional presses, ramped up
production, commercial activities, temporary storage structures

15

E. 2008 MND for reservoir

15

F. Violations of 2004 use permit

18

G. Religious preference objections; Petranker invokes RLUIPA

18

H. Revised Project approved on 3-2 vote

19

I. Major findings for Project approval


1. "Modest" expansion: storage structures are
baseline conditions
2. Storage structures: "accessory" to religious use

a) Religious rationale
b) Quantitative rationale

19
20
20
20
21

a) High fire hazard zone

23
24

b) Training and equipment

25

c) Exemption from Wildland Standards

25
26

3. Storage structures: "no practical effect" on fire danger

d) "Accessory" under CBC


4. Roads and hazardous materials

27

5. Alternatives

28

J. The Project compared to 2004

28
29

K. Appeal
IV. STANDARD OF REVIEW
V. ARGUMENT
A. The Project violates the Establishment Clause of the U.S.
Constitution and the Establishment, No Preference, and No Aid
Clauses of the California Constitution

31
31
33
33

1. The Establishment Clauses

34

2. The No Preference Clause

39

3. The No Aid Clause

43

B. The Project is inconsistent with the General Plan and


zoning code

46

1. General Plan and RRD zoning provisions

46

2. No substantial evidence supports the County's General Plan


consistency finding

48

3. The MUP is discriminatory spot zoning

50

C. The Project approval violates CEQA

52

1. Massive warehouses filled with paper in a high risk fire area is


a substantial change or new information warranting an EIR 52
a) Fair argument standard if "new" project
b) EIR is required because massive storage and other
expansions constitute a new project

53
53

2. In any event, the SMND is not supported by substantial


evidence

55

3. Storage structures are not part of baseline

56

4. The County improperly piecemealed the larger Project

59

VI. CONCLUSION

61

TABLE OF AUTHORITIES
State Cases
Abbatti v. Imperial Irrig. Dist. (2012) 205 Cal.App.4th 650
Apartment Ass'n of Greater LA, go Cal.App.4th

49
52

Arcadia Development Co. v. City of Morgan Hill (2011) 197


Cal.App.4th 1526

45

Arviv Enterprises, Inc. v. So. Valley Area Planning


Comm'n (2002) 101 Cal.App.4th 1333

54

Avenida San Juan Partnership v. City of San Clemente (2011) 201


Cal. App. 4th 1256

45

Banning Ranch Conservancy v.


City of Newport Beach, S227473

27

Barnes-Wallace (Mitchell) v. City of San Diego/(Boy Scouts of


America-Desert Pacific Council), 2009 Cal. LEXIS 3507

34

California Statewide Communities Development Authority v. All


Persons Interested etc. (2007) 40 Cal. 4th 788
38
Chamberlin v. City of Palo Alto (1986)186 Cal.App.3d 181
52
Citizens Ass'n for Sensible Development of Bishop Area v.
County of Inyo (1985) 172 Cal.App.3d 151

54

Citizens for East Shore Parks v. State Lands Corn. (2011) 202 Cal.
App. 4th 549
53
Citizens for Non-Toxic Pest Control v. Dept. Food & Agr. (1986) 187
Cal.App.3d 1575
50
Communities for a Better Env't v. Calif. Res. Agency (2002) 103
Cal.App.4th 98

46, 51, 52
County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185
51
E. Bay Asian Local Dev. Corp. v. Cal. (2000)
24 Cal. 4th 693

Fairview Neighbors v. County of Ventura (1999)

28, 29, 30,31

48

70 Cal.App.4th 238

51

Families Unafraid to Uphold Rural etc. County v.


Board of Supervisors (1998) 62 Cal.App.4th 1332

27

Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270

53

Feminist Women's Health Ctr. v. Philibosian (1984) 157


Cal. App. 3d 1076

31,34

Foothill Communities Coalition v. County of Orange (2014) 222 Cal.


App. 4th 1302

30,45

Fox v. Los Angeles (1978) 22 Cal. 3d 792

31, 32

Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004

27

Friends of the College of San Mateo Gardens v. San Mateo County


Community College Dist., S214o61

27

Jimmy Swaggart Ministries v. State Bd. of Equalization (1988)


204 Cal. App. 3d 1269

33,40

Katzeff v. Dept. of Forestry & Fire Protection (2010) 181 Cal.App.4th


601

54
50

Kings Co v. Hanford (1990) 221 CA3d 692


Laurel Heights Improvement Ass'n. v. Regents of Univ. of Calif.
(1988) 47 Cal. 3d 376

27,47

Lucas Valley Homeowners Ass 'n v. County of Mann (1991) 233 Cal.
App. 3d 130

26, 29, 32,33

Pocket Protectors Protectors v. City of Sacramento (2004) 124


Cal.App.4th 903

Sands v. Morongo Unified School Dist. (1991) 53 Cal. 3d 863

28,46
36

Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 129927,


47

28,46

Sierra Club v. County Of Sonoma (1992) 6 Cal.App.4th 1307 27, 47,


48

28,46

Sundstrom v. County of Mendocino (1974) 202 Cal.App.3d 296

46

Woodland Hills Homeowners Org. v. L.A. Cmty. College Dist.


(1990) 218 Cal. App. 3d 79

30, 31

State Statutes
14 CCR 15125(a)
14 CCR 15162

52
48,51

Cal Const, Art. I 4

28

Code of Civil Procedure 1094.5

26

Gov. Code, 66473.5


PRC 21166

44
48,51

Public Resources Code 21168.5

27

Federal Cases
Barnes-Wallace v. City of San Diego
(9th Cir. 2008) 530 F.3d 776

34

Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet (1994) 512
U.S. 687

28,33

Centro Familiar Cristiano Buenas Nuevas v. City of Yuma (9th Cir.


2011) 651 F.3d 1163

35

McCreary County v. ACLU (2005) 545 U.S. 844

28

Vernon v. City of Los Angeles (9th Cir. 1994) 27 F.3d 1385

33

Federal Statutes
Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. 2000CC et seq

U.S. Const., Amend. I, cl. 1

9,35
28

Other Authorities
David A. Carrillo and Shane G. Smith, California Constitutional
Law: The Religion Clauses, 45 U.S.F. L. Rev. 689
Hagman et al., Cal. Zoning Practice (Cont.Ed.Bar 1969) 5-33

35
45

Patricia E. Salkin and Amy Lavine, The Genesis of RLUIPA and


Federalism: Evaluating the Creation of a Federal Statutory Right
and its Impact on Local Government, 40 Urb. Law. 195, P-79
(2008)

35

I. INTRODUCTION
This appeal concerns a conflict between rural land use policies
and a large industrial expansion proposed by a religious entity.
Petitioner/appellant Coastal Hills Rural Preservation is a citizens
group in the remote forested rural hills of Sonoma County. Real
party in interest/respondent is Jack Petranker, an individual and
The Head Lama of the Tibetan Nyingma Meditation Center, a
corporation sole, a California nonprofit religious corporation (,
Petranker or Petranker/TNMC). (AA95) Petranker operates a
Tibetan Buddhist monastery, retreat center and religious printing
facility in the rural hills. This complex, founded in 2004, is Ratna
Ling.
In 2014, respondent County of Sonoma approved a major
expansion of Ratna Ling (the Project). The Project substantially
increases the retreat operations, triples the press workers, doubles
the press traffic, allows six presses instead of one, and authorizes
40,000 square feet of fabric membrane book storage structures
(warehouses)essentially a new project. The County allowed the
printing and book storage expansion because of claims these are
`accessory" uses integral to the Petranker/TNMC religious doctrine
of making and worshipping Tibetan Buddhist books.
In 2004, Petitioner had not objected to the modest-scale
religious press facility. However, the new Project was much larger
and inconsistent with the rural setting and constraints. Petitioner
brought a petition for writ of mandate alleging the County's approval
of the Project contradicted Sonoma County's policies for Rural
Resources and Development (RRD) land and violated the California

'The Administrative Record is referred to as "AR."

Environmental Quality Act (CEQA). Petitioner appeals from the


denial of the petition.
The Project approval was in error on several grounds. The
County granted special preference to a religious organization, in
violation of Constitutional neutrality requirements. The massive
industrial printing and storage operation would not be allowed in
RRD land, according to the County's own words. (AR5986, 4755,
4124, 97, 4081-84) Yet the County allowed the storage structures by
finding they were an "accessory" religious use, and it granted this use
exclusively to a Tibetan Buddhist landowner. (AR51, 62)
As our State copes with climate change, petitioner questions
why the County approved massive fabric storage structures filled
with paper and allowed a press facility producing over 350,000
books a year, in a high risk fire area. These industrial uses are
contrary to General Plan land use policies that restrict development
in fire prone areas. The County admits the fabric membrane
structures are not compliant with Wildland-Urban Interface (Will)
fire standards in a high fire severity area. (AA135, 10319, 7625) And
the all-volunteer local Fire District states it has neither the
equipment nor the training to respond to an industrial fire at the
Project site. The County will point to a long (but incomplete) list of
fire mitigation measures. But these measures do not get at the root of
the problem: these industrial uses should be in an urban area with
appropriate zoning and infrastructure, as the General Plan requires.
The Project is inconsistent with the General Plan. Environmental
review of the Project was also flawed, as discussed below.

10

II.

STATEMENT OF ISSUES
A. Did the Project violate Constitutional prohibitions
against establishment, preference, or aid to a
religion?
B. Is the Project inconsistent with the General Plan and
zoning district?
C. Is the Project's new mission of expansion and
massive long-term storage a "new project"
warranting an EIR?
D. Did the County use the wrong baseline in finding no
"new project" and no significant environmental
impacts?

III. STATEMENT OF THE CASE


A.

2004 MND and use permit


The Project site is at 35755 and 36000 Hauser Bridge Road,

Cazadercr on 120 acres in the rural hills of Sonoma County on land


zoned for RRD. (AR1o9, 994, 17)
In 2004, Petranker/TNMC purchased3 the resort property to
create an annex to Odiyan, a nearby Buddhist monastery and retreat
center also operated by Petranker. (AA13511, 4599, 4619) He applied
to modify the previous use permit (AR4606-07) to operate a
monastery and a retreat center. (AA4598, 4602, 4615)
His application also sought to build an "accessory" religious
The Hauser Bridge Road address is relevant to petitioner's Motion
for Judicial Notice (MJN) that Hauser Bridge Road is an area of
concern for Sonoma County firefighters, as of September 20, 2015.
2

' The Project site is known as "Lands of Petranker." (AR13511-12)

11

printing facility of 18,750 square feet (AR4676, 4707) The Nyimgna


denomination of Tibetan Buddhism considers the production of
religious texts a religious vocation. (AR4612) The proposed press
facility would contain one press and allow monastery members to
continue to practice their religious service of printing and
distributing Buddhist texts. (AR4601, 4603) TNMC's Dharma
Publishing, then in Berkeley, would operate the printing facility.
(AR4603, 4599)
The application, proposal and Mitigated Negative Declaration
(MND) are at AR 4596-4675. They describe a limited press facility:
press facility includes a press (AR4603-o4, 4691 (MND))
Petranker estimated production at "a little under 100,000
books (including art) per year" (AR4612)
printing 100,000 books requires 12 40-foot truckloads of
paper, about one truckload per month. (AR4603)
Truck trips for the press and for supplies is estimated at .5 per
day (AR4602)
The 18,750 square foot press facility will accommodate
assembly and storage of completed books and art (AR4612)
Staff at Permit & Resource Management Department (PRMD)
considered the "large- scale" press facility to be somewhat
problematic in RRD zoning, stating:
[S]taff has some concerns about the
compatibility of this relatively large-scale
printing facility (100,00o books per year)
with the purposes of [the RRD] zoning
district. Printed materials are to be
distributed on an international level rather
than just serving a local or regional need. To
approve the use permit, a finding must be
made indicating the printing facility is an
ancillary use to the retreat facility ... The

12

press facility would not be allowed if it was


not ancillary to the primary [retread use.
(Emphasis added)
(AR5985-86)
The staff report repeatedly stated total production of the press
facility was 100,000 books per year and the proposed printing
facility included "a press." (AR5985-86)
In September 2004, the Board of Zoning Adjustments (BZA)
approved the use and adopted a mitigated negative declaration
(MND). (AR 6-16) It required the use be operated under Petranker's
proposal statement (which estimated production at 100,000 books
including art per year). (AR9, 4603, 4612, 5985)
The BZA found the "noncommercial" monastery and retreat
center as conditioned followed the RRD zoning, as it was similar to a
noncommercial club or lodge, an allowed use. (AR6, 5985) It
imposed a maximum occupancy of 67 persons, with 27 persons in
the long-term housing and 40 persons at the retreat center. (AR7,
13) This housing ratio (27 workers vs. 40 retreatants) ensured the
press facility remained an accessory use. (AR13457)
The BZA found the press facility was "accessory" to the
primary use, and "a non-profit organization [Dharma Publishing]"
which is directly related to the religious doctrine of TNMC. (AR7) It
required the use be operated under Petranker's proposal statement
(ioo,000 books and art per year). (AR9) The maximum occupancy
of the press facility was 27 persons, operations were limited to 15
hours per day, and "a commercial printing press facility is not
allowed as part of this Use Permit." (AR13)
The press facility began operation in August 2005. (AR2156)

13

B.

New mission: massive long-term book storage


The press facility served Petranker/TNMC's existing mission

of printing and distributing Tibetan books annually. However,


Petranker added a "new mission" to replace and store 6,000 libraries
of 2,000 volumes each (12 million books) destroyed during the
Chinese invasion of Tibet. This new mission implied a huge
expansion of printing facilities, storage, and book production over
many years. (AA13434, 13050, 4859, 5639,3077, 6008-09) The key
focus at Ratna Ling became the Tibetan "text preservation" project
(Yeshe De). (AA5818-5819) The mission continues to this day.
(AR8862, 8864, 8877)
The new mission required lots of storage. Petranker began
geotechnical planning for a multi-story building (AR4716) and in
2006 proposed a four-story, 95,000 square foot "book depository"
("sacred text treasury"). (AR4755-56) In 2006, PRMD told Petranker
the book storage proposal was inadvisable. It rejected the RLIUPA
religious freedom argument he had raised4:
We met with County Counsel and discussed
RLUIPA in general and determined that it
requires that all projects be equally evaluated
under the criteria of the zoning code.
(Emphasis added)
(AR4755)
Also, the proposed "sacred text treasury" was not consistent
with land use policies:
[Y]our proposal is not consistent with the land
use policies in our adopted General Plan or
zoning for this site. The proposal is much too
The Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. 2000CC et seq., is a United States federal
law that gives religious institutions a way to avoid discriminatory
zoning law restrictions on their property use.
4

14

large to permit as accessory to the retreat use


... nor would it be consistent with the use
permit which allowed the printing press only
as an accessory use to the retreat. ... [The]
printing press and 18,000 sf of storage space
... we consider about the limit of what is
reasonable for an accessory use. The 95,000
sf building is about the size of a "big box" or
large department store and would appear to
make the printing and warehouse the
predominant use. (Emphasis added)
Ibid.
Lastly, PRMD advised Petranker he could pursue a General
Plan amendment to request an exception for book storage, but
PRMD would not recommend approval. PRMD suggested that he
consider alternatives:
Alternatives would include, printing only the
number of books that can be distributed in the
near term or seeking another warehouse site
with appropriate zoning to store the books for
an indefinite period.
Ibid.
C.

2008 storage caves proposal


Undeterred, in February 2008 Petranker applied for a general

plan amendment, special area policy, and use permit to expand the
retreat, construct two underground warehouse caves totaling 90,000
square feet to store books, and add an exhibition hall with an 800person capacity. (AR37) The caves were based on an acute need for
short-term and long-term storage. (AR4859, 3077, 3083, 13050,
6009) The caves were also intended to "protect printed texts from
nuclear disaster and other calamities." (AR5377)
D.

Expansion: new construction, additional presses,


ramped-up production, commercial activities,
temporary storage structures
The new mission coincided with expansions at the Project site,

15

the most significant of which were a six-fold increase in the number


of printing presses and constructing 40,000 square feet of
temporary storage. PRMD permitted many but not all of these
expansions. There was no CEQA review.
In 2006, Petranker added a detached barn (AR6696), a 2,050
square foot meditation center (AR60, 4598-99, 4601), and a 2,010
square foot conference center (AR6o).
In 2006/2007, Petranker moved the entire Dharma press
operation from Berkeley to the Project site, includingfive additional
presses. (AR8214, 8221, 6745) This violated the 2004 use permit.
(AR1079)
In 2007, Petranker converted a "covered loading area" into
2,500 square feet of additional production area, changing the 18,750

square foot press facility into a 21,234 square foot facility. (AR5858,
37) The added production area contains new equipment (AR5968)
that allows the operation to print 8,00o sheets of paper per hour and
use four tons of paper per day. (AR37, 5827, 5840 8216, 8219, 12719)
Photos illustrate the highly industrial nature of the press
operation. (AR5935-5849)
The press operation produced books and objects in huge
amounts, far exceeding the 100,000 per year level. (AR8231, 8233)
In 2009, the facility shipped 4040 ft containers with 395,000 books
to India, and that year also produced over 3,000,000 "thankas" and
prayer wheels. (AR8231, 8233-34; see also 13433) "Every day we
supply our presses with four tons of paper!" (AR8230) In 2010,
PRMD observed that inventory in the storage exceeded 500,000
items. (AR13433)
Commercial activities. In 2004, Petranker claimed the
proposed press facility "does not operate as a conventional

16

commercial business." (AR5979) In 2010, 551 products were offered


for sale on the Internet, including eye pillows, incense, cushions,
wrapping paper, and digital media. (AA5948-5955; see MJN(2)
These products are made mostly by short-term volunteer workers,
heavily recruited for "work/study" programs at no pay or $150 per
month, not full time residential members of the monastery.
(AR5873-74, 5877, 6568, 6574-77)
In March/April 2008, while the proposal for the storage caves
was pending, PRMD issued a time-limited zoning permit allowing
construction of 39,270 (actually, 41,0905) square feet of fabric
membrane structures for storage of "sacred texts," as follows:
two structures of 2,870 and 6,000 square feet
two structures of 14,400 and 16,0oo square feet. (AR38.)
These are at least 40 feet high and have a volume of almost
one million cubic feet.
(AR37-38, 1072)
PRMD wrote on the permit: "This is a temporary structure &
must demo on 3-25-11." (AA 5533, 4123)
When it issued these permits, PRMD staff exempted the
membrane structures from complying with Chapter 7A of the thenexisting California Building Code ("CBC") because they were
"accessory" structures. (AR44, 113) The structures did not have to
comply with the stricter fire safety standards applicable to a
Wildland-Urban Interface Fire Area such as the Project site. (AR135,
10319)

5 The County uses the figure "39,270." However, Petranker

understated the size of the "16,000" square foot tent. It is actually 90


feet by 198 feet, for a total of 17,820 square feet. (AR3387, 3361)

17

No CEQA review was conducted in approving the temporary


storage structures. (Alt1073, AR21.60.)
The storage permit expired, was extended for one year, and
then expired on March 25, 2012. (AR38) The 40,000 square feet of
warehouse storage then illegally remained at the Project site.
(AR7324-733o)

E.

2008 MND for reservoir


In August 2008, Petranker/TNMC obtained approval to build

a reservoir adding 20-acre feet of water supply, plus an additional


7,500 square feet to a previously-approved wellness center.
(AR5376)
The 2008 MND acknowledged the additional water supply
capacity was intended, in part, to serve Petranker's other expansion
applicationthe caves, exhibition hall etc.and had the potential to
induce growth. (AR5377, 5397, 5399) However, the MND did not
study this potential impact because the other expansion proposal
would undergo its own separate environmental review:
The expansion of the retreat center uses, the
conference center and related activities and
cave buildings are the subject of a separate
application for a Use Permit and General Plan
Amendment that is undergoing separate
environmental review ... by the Sonoma
County Board of Supervisors. (Emphasis
added)
(AR5377)
The promised environmental review of Petranker's large-scale
storage plans never happened.

F.

Violations of 2004 use permit


In February 2010, 172 signers of a petition against the caves

proposal filed a 280-page Complaint with the County for


Petranker/TNMC's violations of the 2004 use permit. (5777-79,

18

5782-96) Code Enforcement promised to investigate the "increase in


intensity of use of printing press operation and volume of
production." There was no report back. Eventually, petitioners were
told the notes from Code Enforcement's site visit were "lost."
(AR8263-65) Petitioner's complaint and a comprehensive 400-page
follow up were not addressed. (AR7315) In 2013, Code Enforcement
produced a summary memo, without any inspections, concluding
there are no active violations for the property. (AR1079)
G.

Religious preference objections; Petranker invokes


RLUIPA
On many occasions, petitioner and other citizens (and even

staff) objected to special treatment for Petranker/TNMC's religion,


exhausting administrative remedies. (AA4755, 9192-93, 9200, 4756,
13516, 5735212840, 1274527572755, 702, 772, 781, 78527982 13672
2100)6
On April 8, 2014, Petranker officially invoked "Religious
Freedom" rights under constitutional and statutory law, including
RLUIPA. (AA13603)
H.

Revised Project approved on 3-2 vote


In 2011, Petranker dropped the 2008 proposed caves project,

and sought a Master Use Permit (MUP) to "clarify ambiguities" in


the 2004 approval. (AR38, 556-576, 6760-6766) The new Project is
described in Sections I and J, infra. It included deregulation of press
production, expanded press operations, and making the massive
temporary storage structures permanent.
Petitioner exhausted administrative remedies on other issues.
(AR7175-7245, 8428-8615, 8622-8651, 8654-8818, 8829-9207,
9291-9297, 12051-12063, 12233-12212283, 12385-1253723800-742
3964-78, 4112-89; 4366-4421)
6

19

In June 2012, the BZA adopted a MND and approved the 2011
Project. (AR38) Petitioner timely appealed the BZA's decision.
(AR39)
Petranker submitted an updated proposal application. In
February 2014, PRMD released the Subsequent MND (SMND) at
issue. The Board of Supervisors heard the matters on April 8, 2014.
(AR39) On June 24, 2014, the Board reopened the hearing, and
ultimately certified the SMND and approved the Project by a 3-2
vote. (AR5o) The County made no findings regarding religious
preference or free exercise of religion or RLUIPA.
I.

Major findings for Project approval

1.

"Modest" expansion: storage structures are


baseline conditions
The County found "existing conditions" is the appropriate

"baseline" for environmental review of the Project, the temporary


storage structures are part of the baseline, and the expired permit for
the structures is not relevant. (AR42) By excluding the massive
temporary structures which are the physical embodiment of
TNMC's "new mission" of massive long-term storage the County
concluded the Project is merely a "modest" expansion. It found the
Project presented no substantial changes or circumstances or new
information requiring revisions to previous MNDs. (AR41-42)
2.

Storage structures: "accessory" to religious use


As a special land use policy, available to only one religion, the

County found the storage structures are an "accessory" use, based on


TNMC's religious retreat and religious use of the structures. (AR45,
48) The County concluded the storage structures are permissible in
RRD land and are exempt from certain fire safety standards. (AR113,
135)

20

a)

Religious rationale
The County abandoned its normal policies when it adopted the

religious rationale for an "accessory" use. In 2004, PRMD stated a


"large-scale" accessory structure such as the proposed 18,750 square
foot printing facility is not normally allowed in RRD zoning.
The press facility would not be allowed [in RRD
zoning] if it was not ancillary to the primary use
[retreat].
(AR5986)
In 2006, the Deputy Director of PRMD confirmed the policy:
Your [2004] use permit allows the printing
press and 18,000 square feet of storage space
which we consider the limit of what is
reasonable for an accessory use.
(AR4755, 4124, see 4785)
PRMD Deputy Director Barrett testified, when accessory uses
are within another building, PRMD usually uses a rule of thumb of
10-15% of the floor area as a normal standard for an accessory use.
(AR4102)
The SMND confirmed the standard policy, stating, but for the
"accessory" designation, "[t]the sacred text storage buildings ...would
not be allowed as a stand alone separate use." (AR97)
Despite the policy, staff eventually capitulated to the demands
of this religious applicant. In 2008, PRMD issued temporary permits
for 40,000 square feet of membrane storage structures as an
"accessory" use. (AR113) In 2014, Petranker/TNMC requested the
County reaffirm this "accessory" designation for the storage
warehouses. Petranker asserted the storage structures are
"accessory" because the printing relates to the religious doctrine of
the retreat, and the "texts" are reverentially deposited and worshiped
in a "Sacred Text Treasury." (AR1669-70, 533)

21

The County agreed. It found the press operations are an


"accessory" use because "volunteering or working in the religious
press facility is an integral part of the retreat use's religious
practice." (AA49) It also found the storage structures are not an
"industrial" use, but are "accessory" to the retreat center use. (AR45)
The County found this "accessory" designation is not available
to a non-religious owner or any other religion. The Conditions
require termination of the printing facility if the site is conveyed to a
property owner not affiliated with Tibetan Buddhism, and the
accessory use of the facility and associated storage shall no longer be
permitted accessory uses. (AR51, 62)
Some Supervisors were concerned with the calculations and
lack of consistency in the definition of "accessory," as demonstrated
during a hearing, when Supervisor Zane attempted to get
clarification from PRMD Deputy Director Barrett:
--how do you determine that this is
accessory? Because it seems like the square footage is far
greater in terms of the printing and the storage versus the
retreat. ...

SUPERVISOR ZANE:

BARRETT: -- that

is the crux of the matter, and the difficult


question is how do you determine accessory use. ... it has to be
determined that it's incidental and subordinate to the primary
use of the land. In this case, because it's a religious land use
and they have demonstrated that they're it's part of their
religious practice to have community service, and their
community service is tied to the press, they demonstrated ... ,
that it's part of the religious land use and accessory to their
retreat function. That that's very different. Religious land
uses are kind of different than your standard, you know,
commercial facility where you might say, you know, 15 percent
of the floor area is devoted to this accessory or ancillary use. In
this case, it's integral to their religious practice.
So you're saying that it's kind of waived
when it comes to religious land use? I mean, can anybody set
SUPERVISOR ZANE:

22

up some type of factory and say it's for religious purposes and
have that waived? I mean, that's the question.
BARRE'FT: That

is a policy call for the board, really, as to


whether and how much accessory use you would feel
comfortable with on this site.

/
So the bottom line is I'm still trying to get
to the footprint and the term accessory use. There's no real
environmental analysis on the footprint in terms of the
publishing and printing versus the retreat, it's just we're using
a terminology called accessory use and religious land use, but
I'm not seeing the analysis. And that's what I'm trying to get at
is if there's any real analysis there that puts it into the
accessory use.
SUPERVISOR ZANE:

I can share with you the analysis. And the findings


of the BZA was that it was integral to their practice, and for
that reason was considered accessory. ...
BARRETT:

SUPERVISOR ZANE: Okay.

... I'm asking for data. I'm asking for


scientific data that puts it into accessory use. That's what I'm
trying to determine, if there's if that analysis has been made.
BARRETT: Yeah.

The analysis is really qualitative, it's not

quantitative.
(AR4081-84)
b)

Quantitative rationale
The County also made some quantitative findings to support

its "accessory" finding. (AA49) It relied entirely on a poorly-sourced


analysis submitted by Petranker/TNMC. (AR) The County cut
and pasted the Petranker analysis, incorporated it verbatim, and
found the storage structures and press facility are subordinate to the
retreat use. (AR48-49)
The County's analysis compared the press facility footprint
(1.5 acres or 1.25%) to all the other land area at the Project site

23

(118.5 acres or 98.75%), including undeveloped open space such as


forested and steeply sloping area surrounding the retreat center and
the printing facility. (AA1668-1669, 9165)
Petitioner submitted a well-sourced analysis, showing the
printing facility was the primary use at the Project site. It compared
the total square feet of building area (132,602) to the uses of the
buildings. Printing (65,209) is the largest at 49%, retreat at 38%,
staff housing at 13%. (AR9165-9166; see 13517 [color graph])
Printing is also the largest use when one compares undisputed
figures on the numbers of press workers, retreatants, retreat days and
printing days: 65 percent of people on site are working in the press
building, and there are 18,240 printing days per year, far exceeding the
5,301 retreat days per year. (AR36-37, 7600, 9147, 9172; AA118, 129-31)
2.

Storage structures: "no practical effect" on fire


danger
The County imposed conditions and mitigation measures on the

Project to increase fire safety, and required sprinklers in the storage


structures. (AR39, 44-45, 57-60) It concluded making the 40,000 square
feet of temporary storage structures permanent will have "no practical
effect" on fire danger. (AR44)
The Timber Cove Fire Protection District, a rural all-volunteer fire
department, is the agency responsible for fire suppression at and around
the Project site. (AR134) The Fire District states the conditions imposed by
the County will not adequately protect the people, property and natural
resources within the District from the risk of industrial fire posed by the
Project's operations. (AR12702; see also, AR4125) This conclusion is based
on: 1) the Fire District's lack of training and equipment to fight industrial
fires, and 2) the storage structures' lack of compliance with the WildlandUrban Interface Fire Resistive standards. (AR12719)

24

a)

High fire hazard zone


CAL FIRE ranks the Project location as a "high" wildland fire

hazard severity zone. (AR10319) It has identified several "historic


wildfire corridors" in Sonoma County. The Project site is in one of
those corridors, the Guerneville/Cazadero area which experienced
fires in 1923, 1951, and 1977. ( 13571; see MJN(1))
b)

Training and equipment


The Fire District states they do not have the capacity or

equipment to fight a fire of the scale and type associated with large
printing operations and text storage. (AR12704) Suppression of
industrial high-piled combustible storage fires requires specialized
equipment and training. (Alt1072) This Project presents a risk of
high-piled combustible storage; this risk is illustrated in site photos.
(950, 13528-29[photo], 5857 [photo]) Absent the required
equipment and training, the Project poses significant fire risks to
residents, neighbors, and forests. (AR12721.) All of the Fire District
is zoned RRD. Before the large press operations began at the Project
site, there were no significant industrial operations within the
District. (AR12704; see AA159-60) The District does not have the
equipment or training to fight industrial fires and hazards.
(AR12704)
The Fire District and the Sonoma County Fire Chief agree it is
reasonable to identify a fire in the warehouse tents as an industrial
fire. (AR4449, 12702) The Fire District explained why it lacks the
training or equipment needed to address the risks of the Project's
industrial operations. (AR4125, 1072, 12702-12711) When an
industrial fire occurs, a fire department in an industrial zone would
respond with Multiple Type 1 engines, a ladder truck, an ambulance,
a Rapid Intervention Crew, a Breathing Air Salvage Truck, and

25

Station coverage, and support from adjacent fire departments.


(ARI2705) The fire department would have the ability to pump
2,000-3,000 gallons of water per minute, and initial response times
would be five minutes or less. (AR12705)
The District has no Type 1 fire engine. (AR12705) The
engines the District has are designed to fight wildland fires and
conventional structure fires. (AR12705) One of the mutual aid
neighbor fire departments has a Type 1 fire engine, but their
response time to the District can range from 30 to 45 minutes, which
would not adequately mitigate this impact. (AR12705) Even with a
Type 1 engine, however, the District cannot guarantee it could
suppress a fully-involved industrial fire in the printing facility or
storage tents. (AR12705)
According to the Wildfire Hazard and Risk Assessment section
of the County's Hazard Mitigation Plan (AR13566-13587), problems
have resulted from the condition of existing equipment and
matching the type of equipment and staff training to the type of fire.
Fire-fighting responses alone cannot fully eliminate or reduce the
risks from wildland fires. Taking proactive steps to reduce the
incidence of, and potential risk from, wildland fires before they occur
is essential. (AR13574)
Municipal fire departments report thousands of structure fires
in a four-year period in manufacturing facilities and warehouse
storage, even in the presence of sprinklers. (AR12552)
c)

Exemption from Wildland Standards


In 2008, PRMD exempted the storage structures from a major

fire code. (AR7625 [admission by building inspector]). Chapter 7 of


the 2007 California Building Code ("CBC") governs the materials and
construction methods for exterior wildfire exposure for structures in

26

a WUI Fire Area. (AR135) PRMD determined the storage structures


were "accessory" and thus exempt from compliance with the WUI
standards. (AR135, 45, 10317-19)
This was a major mistake, especially in a high fire severity
zone. The storage structures are made of "flame resistant"
membrane fabric. (AR135, 1076) They do not comply with the WUI
Fire Resistive Standards, which require any structure built in the
District after January 1, 2008 be built with certified noncombustible
or "ignition resistant" materials. (CBC 701A.3.1; AR1074) "Ignition
resistant" fabric is tested at 30 minutes of direct flame exposure, as
compared to 10 minutes for "flame resistant" fabric. (AR1074-75) To
date, there are no membrane fabric structures that have been
certified as ignition resistant. (AR13531)
d)

"Accessory" under CBC


Regardless of whether the storage structures are deemed

`accessory" under the zoning code, the structures do not meet the
definition of "accessory" in the building code, and therefore must
comply with the WUI Standards. (AR1076)
The CBC defines "accessory" buildings as Group U occupancy
(e.g., carports, barns, greenhouses) and not otherwise classified in
any specific occupancy. (CBC 311.2; ARio77)
The storage structures are classified as a specific occupancy
Group S-1 Moderate Hazard Storage: Books and paper in rolls or
packs. (CBC 311.2; AR1077) The County agrees the S-1
classification applies. (AR45)
Since the storage buildings are classified as a specific
occupancy, they are not "accessory" structures under the CBC and
must comply with the WUI Standards. However, they do not comply.
(ARio76-1078)

27

4.

Roads, hazardous materials


Petranker and petitioner submitted studies of the Project's

impacts on Hauser Bridge Road (AA6136-37, 7205-09), conceded to


be a narrow, winding road, with ii curves with restricted sight
distance, with much of the road too narrow to allow opposing
vehicles to pass and lacking shoulders. The County required a
warning sign. (AA103) Petitioner's study, photos, traffic logs, and
map of area show inadequate access roads. (AA7205-09, 5923-36,
5920; see also 7383, 5931, 6827, 6830, 6892)
The inadequate roads are one reason the Project must be
rejected as inconsistent with the intent of the General Plan. The
General Plan rejects proliferation of growth in areas with inadequate
public services and infrastructure. (See Section III, I. 4, infra)
Petranker did not disclose all of the hazardous materials
generated by the press facility, or their quantity. (AR4126-4130,
9011-9023) The County found no changes since 2004 and no impact
(AR2995) but did not quantify increased hazardous material
generated by the expanded press operation. (Compare AR6645 [in
2004 7 gal. per week] with AR4709 [in 2005 rising to 11-12 gal. per
week]) The amount as of 2014 should have been analyzed, due to fire
risk. (AR4125-26)
5.

Alternatives
Petranker claimed the Project must be at Ratna Ling because

it is a sacred place, part of the Southern Quadrant of the Mandala of


Odiyan, the nearby sister monastery. (AR211, 9352)
There is a superior alternative location: Petranker/TNMC
conducted the press operation in an industrial area in Berkeley for
many years. (AR7468) The Project requires 730 100 mile truck trips,
annually, to bring the press products to a port, bookstore, Internet

28

customer, or distribution point. (AR42) Because the County


prepared no EIR, it did not consider alternatives to the Project. Had
it done so, it would have found there are other areas zoned for this
use, with better access to transport heading to Asia, the main
destination for the press products. (AR789, 595) Under the General
Plan, press operations and warehouse storage are urban uses that
should be conducted in an industrial area, with access to shipping,
ports and public services such as industrial firefighting capacity.
(Section V. B. 1, 2, infra)

J.

The Project compared to 2004 project


In a nutshell: the Project deregulates and expands printing,

adds warehousing, and adds commercial printing and


manufacturing, and Internet sales and distribution. It also nearly
doubles the maximum site occupancy and adds concomitant housing
and storage in at least 10 new structures. Arbitrarily, the County
concluded, compared to 2004, this is merely a "modest" expansion.
Press production. The 2004 project had a production limit of
100,000 books (including art) per year. (AR9, 4603,4612, 5985)
In 2013, the County interpreted the 2004 permit to set a specific
limit. (AR13051) Actual production levels at Ratna Ling have far
exceeded the limit. (Section D [350,000 books per year], 1080
["likely" violation]) The Project eliminates any production limit.
(AR61-62)
Presses. The 2004 project allowed one press. (AR4691, 460304) The existing five presses are likely a violation of the 2004
permit. (AR20, 62, 1079) However, the Project eliminates the one
press limitation, sanctioning the five additional presses. (AR61-62,
1079)

29

Press workers. The 2004 project limited the maximum


occupancy of the press building to 27 workers. (AR7, 13) The press
operation violated this limit. (AR1080) Now, the Project sanctions
8o press workers, which nearly triples the 2004 limit. (ARiii) The
Project also removes the worker/housing ratio that had attempted to
ensure the press facility remained an accessory use. (AA51, 13457)
Commercial manufacturing and sales. The 2004 permit stated
"a commercial printing press facility is not allowed." (AR13)
Commercial manufacturing and sales were rampant. (See Section D,
supra [551 items for sale]); MJN(2) This is not de minimus
commercial activity. The commercial activity could be a permit
violation, depending on whether the County retroactively authorizes
it. (See AR1082)
Now, the Project "clarifies" the 2004 permit allowed
commercial production and sales of books and "sacred" objects and
Internet sales (ARno). The approval loosely defines "sacred" objects
to include lifestyle products such as wrapping paper and calendars
and cushions and "similar objects" with approval of PRMD. (Ibid.)
The approval allows production of commercial "sacred" objects on
io% of the press facility's floor area. (AR61) The County attached no
monitoring to this 10% limitation or placed any limit on commercial
products stored in the massive warehouse structures. (AR61-62)
Press trucks. The 2004 approval estimated truck trips to
transport books at .5 trips per day. Actual book shipping traffic was
much higher than .5 trips and violated the permit. (AA1081) The
Project increases truck trips to one 24-foot long truck round-trip per
day, Monday through Saturday. (ARiii). This doubles the estimated
traffic over the 2004 figure. (AR4602)

30

Storage warehouses. The 2004 permit had no dedicated


storage space, just the press building itself. (AR4612) The Project
adds 40,000 square feet of permanent storage. (ARno)
This triples the size of permanent building space used for the
printing operations, from the original 18,750 to over 6o,000 square
feet. (AR3o) This allows a vast number of books, supplies and
"sacred" objects to be stored in the warehouse structures. (AR5684, a
photo of one warehouse with "upwards of a million inventory items
in here plus supplies"])
Maximum site occupancy. The 2004 permit allowed a
maximum of 67 persons. (AR7) The Project increases this to 122
persons, an 8o% increase. (ARno)
New housing. The Project adds eight tent structures
accommodating 24 persons, a 3,000 square foot, five-bedroom
residential dwelling for 12 persons, and 4,080 square feet of
residential storage in several buildings. (ARni, 6o-61) A 5,900
square foot senior center for resident seniors and caregivers,
previously approved, will also be constructed. (Ibid.)
K. Appeal
On July 24, 2014, petitioner sued the County and real party
Petranker/TNMC for writ of mandate and declaratory and injunctive
relief, alleging violations of CEQA and the County's General Plan and
RRD zoning regulations. (AA6)
The Court denied the petition. On April 27, 2015, judgment
was entered, and on May 4, 2015, notice of entry of judgment was
filed. (AA261, 259) This appeal followed On June 25, 2015. (AA276)
IV. STANDARD OF REVIEW
The decision to approve the Project is governed by Code of
Civil Procedure 1094.5. The standard is whether there was any

31

prejudicial abuse of discretion. Abuse of discretion is established if


the respondent has not proceeded in the manner required by law, the
order or decision is not supported by the findings, or the findings are
not supported by the evidence. Where it is claimed the findings are
not supported by the evidence, abuse of discretion is established if
the court determines the findings are not supported by substantial
evidence in light of the whole record. (Lucas Valley Homeowners
Ass'n v. County of Mann (1991) 233 Cal. App. 3d 130, 141-142 [claim
of unconstitutional religious preference])
The determination of General Plan consistency is subject to a
strong presumption of regularity. Under the abuse of discretion
standard, the determination may be overturned if the County did
not proceed legally, or if the determination is not supported by
findings, or if the findings are not supported by substantial evidence.
(Families Unafraid to Uphold Rural etc. County v. Board of
Supervisors (1998) 62 Cal.App.4th1332, 1338)7
The CEQA decision is reviewed for prejudicial abuse of
discretion. The court does not pass upon the correctness of the EIR's
environmental conclusions, but only upon its sufficiency as an
informative document. (Public Resources Code 21168.5; Laurel
Heights Improvement Ass'n. v. Regents of Univ. of Calif. (1988) 47
Cal. 3d 376, 392)

7 The standard of review on general plan consistency decisions is


pending before the California Supreme Court. (Banning Ranch
Conservancy v. City of Newport Beach, S227473)

32

Whether a project is "new" or a minor change to an existing


project is a question of law, that the court reviews de novo. (Save
Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1299, 1297)8
When a new project is reviewed, an agency's determination of
whether an EIR is required is reviewed under the "fair argument"
test. (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004,
1016-1017; Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th
1307, 1316) It mandates preparation of an EIR whenever it can be
fairly argued on the basis of substantial evidence the project may
have significant environmental impact. (6 Cal.App.4th 1307, 1316) If
there is substantial evidence of such impact, contrary evidence is not
adequate to support a decision to dispense with an EIR. If there is a
disagreement among experts over the significance of an effect, the
agency is to treat the effect as significant and prepare an EIR. (Id.)
Whether a fair argument exists is a question of law that the court
reviews de novo, with a preference for resolving doubts in favor of
environmental review. (Pocket Protectors Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903, 927)
V. ARGUMENT
A.

The Project violates the Establishment Clause of


the U.S. Constitution and the Establishment, No
Preference, and No Aid Clauses of the California
Constitution.
The establishment of religion is forbidden under the United

States and California Constitutions. (U.S. Const., Amend. I, cl. 1; Cal


Const, Art. I 4) The California Constitution has additional

The standard of review on the "new project" determination is also


pending before the Supreme Court. (Friends of the College of San
Mateo Gardens v. San Mateo County Community College Dist.,
S214061)
8

33

provisions: the No Preference clause states, "Free exercise and


enjoyment of religion without discrimination or preference are
guaranteed"; under the No Aid clause, no governmental entity may
"grant anything to or in aid of any religious sect, church, creed, or
sectarian purpose." (Cal Const, Art. I 4; Art. XVI 5)
1.

The Establishment Clauses


The Establishment clauses of the California and U.S.

Constitutions are coextensive and are both interpreted under the


Lemon test. (E. Bay Asian Local Dev. Corp. v. Cal. (2000) 24 Cal.
4th 693, 708, 718) Under the Lemon test, a governmental practice
violates the Establishment Clause if (1) it has no secular purpose, (2)
its principal or primary effect advances or inhibits religion, or (3) it
fosters an excessive government entanglement with religion. (Lemon
v. Kurtzman (1971) 403 U.S. 602, 612-13) The fundamental
touchstone for an Establishment clause analysis is neutrality
between different religions and between religion and nonreligion.
(McCreary County v. ACLU (2005) 545 U.S. 844,860; see also Bd.
of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet (1994) 512 U.S.
687, 696)
Here, the County approved Petranker's massive industrial
storage operation and drastic print facility expansion even though
the Project would not otherwise be allowed in RRD land, according
to the County's own words. (AR97, 5986,4755, 4124, 4081-84) The
County allowed the industrial uses because it is an "accessory" use
integral to the Petranker/TNMC religious doctrine of making and
worshipping Tibetan Buddhist books. The storage structures and the
expansion in general are intensive industrial uses, inconsistent with
the General Plan intent to protect against intensive development in
fire prone areas (AA159, 152-53) Even worse, because the storage

34

structures are an "accessory" use, the County exempted them from


compliance with WUI fire standards in a high fire severity area.
(AR135)
No Secular Purpose. There was no secular purpose to the
Project's approval of the expanded press and industrial storage
operation. These were approved as an "accessory use" due entirely to
their religious importance to the Petranker/TNMC religion. The
County's primary justification was that "volunteering or working in
the religious press facility is an integral part of the retreat use's
religious practice." (AR48) This "accessory" designation is
unavailable to a nonreligious entity or even a non-Tibetan Buddhist
entity. (AR51, 62)
The aim of the secular purpose test is preservation of
governmental neutrality in religious matters. (E. Bay, 24 Cal. 4th at
707) In California, churches are to be treated like any other group in
determining compliance with zoning regulations. (Lucas Valley
Homeowners Ass'n v. County of Mann, supra, 233 Cal. App. 3d 130,
143) A "permissible neutral purpose" was found in a statutorilydefined exemption to a recently-enacted landmark designation law,
available for any religious-entity-owned noncommercial property
with a showing of substantial hardship, because the Legislature
could have reasonably believed that the new restrictions could
burden the free exercise of religion. (E. Bay, 24 Cal. 4th at 712-13)
Another secular purpose was found when a school district granted a
long-term lease of a surplus property to a religious entity, because
the lease provided the district with financial resources and both
religious and secular groups had equal opportunity to enter into the
lease. (Woodland Hills Homeowners Org. v. L.A. Cmty. College
Dist. (1990) 218 Cal. App. 3d 79, 94-95) Finally, when a county

35

enacted a change to their zoning code to allow senior housing


facilities the secular purpose was the need for senior housing
alternatives, and their approval of a religious entity's conforming
project did not violate the Establishment clause because the benefit
was available to any entity throughout the zoning area. (Foothill
Communities Coalition v. County of Orange (2014) 222 Cal. App.
4th 1302, 1320-21)
The County did not justify its action with a secular purpose,
and instead was explicit with its religious motivation. Before the
Board of Supervisors, Supervisor Zane asked for clarification on the
"accessory use" designation given the printing operation's greater
footprint as compared to the retreat. She received the following
answer:
In this case. . . it's part of the religious land use and
accessory to their retreat function. . . . Religious land
uses are kind of different than your standard
commercial facility where you might say you know, 15
percent of the floor area is devoted to this accessory
or ancillary use. In this case, it's integral to their
religious practice. . . . The analysis is really
qualitative, it's not quantitative.
(AR4081-84) The answer reveals that the County's "qualitative"
analysis considered just one thing: the importance of this activity to
the TNMC religion. This is an impermissible secular purpose.
Primary Effect Advances Religion. The Project approval has
the primary effect of advancing religion because the County has
abandoned its typical zoning regulations to give special benefits to
Petranker/TNMC. This is no incidental benefit, but a discretionary,
explicit preference for one particular religion that allows this
religious entity alone to exceed the normal bounds of the zoning
laws. (AR5i, 62)

36

A statutory exemption from a landmark designation law did


not advance religion, because it merely allowed religious groups to
use their noncommercial properties as they had done before the new
law was passed. (E. Bay, 24 Cal. 4th at 714) Any benefit to a religious
entity from a lease entered into with a school district, beyond the
normal benefits of a lease, did not advance religion because it was
incidental. (Woodland Hills, 218 Cal. App. 3d at 94) The illuminated
display of a cross on the side of the City Hall, however, advanced the
Christian religion by placing the "power, prestige, and financial
support" of the city government behind it. (Fox v. Los Angeles
(1978) 22 Cal. 3d 792, 808-09 (J. Bird, concurrence)) Similarly, a
district attorney's proposed transfer of remains to a Catholic group
for burial was found to violate the Establishment clause, because the
primary effect would have been to give symbolic support to the
group's religious views. (Feminist Women's Health Ctr. v.
Philibosian (1984)157 Cal. App. 3d 1076, 1091)
The Project approval has the primary effect of advancing the
Petranker/TMNC religion because it affords special treatment to the
religion, providing symbolic support and placing the imprimatur of
the County's power and prestige behind this religious practice. This
preferential treatment also advances Petranker/TMNC by enabling
the entity to bring in substantial revenue via its industrial printing
operation, a benefit unavailable to similarly situated religious groups
or secular entities in the RRD zoning category. (AR51, 62)
Excessive Entanglement. Excessive governmental
entanglement with religion may be administrative or political.
(Lemon, 403 U.S. at 622) By approving the Project, the County has
opened itself up to successive requests for religiously-motivated
zoning exceptions to its RRD category, inviting political division

37

along religious lines. It must now also discern between "secular and
sectarian subjects" and engage in excessive monitoring of project
conditions.
An illuminated cross displayed on the side of City Hall was
excessive entanglement with religion, because the city would be
subjected to successive requests for the same treatment, breeding
political division along religious lines. (Fox, 22 Cal. 3d at 812 (J.
Bird, concurrence)) The opinion expressed concern these requests
had already begun, wondered what the limit would be, and noted the
impropriety of City determinations on what symbols might be
equivalent. (Id.) The County, too, will be forced to deliberate on
future requests involving questions of which proposed industrial
uses are truly "accessory" to the religious uses invoked, inviting
political division along religious lines and causing unlawful
involvement in "discerning between secular and sectarian subjects,
values and beliefs." (Lucas Valley, 233 Cal. App. 3d at 149) Future
similar requests are an all-too-real possibility, as Petranker/TNMC is
not unique in its practice of printing religious tracts. (See e.g.
Jimmy Swaggart Ministries v. State Bd. of Equalization (1988) 204
Cal. App. 3d 1269) Should the next similarly-situated group not
receive equivalent treatment the County will violate the central
tenant of Establishment clause jurisprudence, neutrality. (See Kiryas
Joel, 512 U.S. at 703)
The Project approval conditions, such as the io% non-book
storage, daily truck trips, number of workers, and hours of
operation, will also cause administrative entanglement, because
Petranker/TNMC has a ten year history and pattern of violating
zoning conditions. (See supra, Section III.F) In this circumstance,
these are not mere "mundane matters" subject to normal zoning

38

oversight, but will instead require "excessive and enduring"


monitoring or risk becoming meaningless provisions subject to the
same bad-faith disregard demonstrated by Petranker/TNMC with
the 2004 permit conditions. (Lucas Valley, 233 Cal. App. 3d at 151)
Although an organization is given the chance to self-monitor in good
faith, lack of substantial compliance may require "excessive and
enduring" monitoring, causing excessive entanglement. (Id.) The
Project conditions also force excessive administrative entanglement,
as the County must discern between "secular or sectarian subjects"
as part of its discretion over production of "other" sacred objects.
(AR62; Id. at 151-52)
2.

The No Preference Clause


California courts have suggested that the No Preference clause

of the California Constitution offers protections greater than the No


Establishment clauses. (Lucas Valley, 233 Cal. App. 3d at 145; see
Vernon v. City of Los Angeles (9th Cir. 1994) 27 F .3d 1385, 1395-96)
The most recent California Supreme Court decision on the topic
declined to "definitively construe" the clause, and held instead that
the No Preference clause was satisfied under the Lemon test because
satisfaction of the Lemon prongs indicated a lack of "preference for
or discrimination against religion." (E. Bay, 24 Cal. 4th at 719)
Recently, the California Supreme Court was asked by the Ninth
Circuit to answer definitively whether and how the No Preference
clause protections exceed the federal standard, but it declined.
(Barnes-Wallace v. City of San Diego (9th Cir. 2008) 530 F.3d 776,
788; cert. denied Barnes-Wallace (Mitchell) v. City of San
Diego/(Boy Scouts of America-Desert Pactflc Council), 2009 Cal.
LEXIS 3507) Still, "the California Constitution is a document of
independent force, [and] the rights it guarantees are not necessarily

39

coextensive with those protected by the federal Constitution." (E.


Bay at 718)
"Referring to this clause, the Attorney General's office has
said: 'It would be difficult to imagine a more sweeping statement of
the principle of government impartiality in the field of religion."
(Feminist Women's, 157 Cal.App.3d at 1086 (quoting 25
Ops.Cal.Atty.Gen. 316, 319 (1955))) Under the No Preference clause,
preference is forbidden even when there is no discrimination. (Fox,
22 Cal. 3d at 796) "We must never forget that the religious freedom

of every person is threatened whenever government associates its


powers with one particular religious tradition. The threat today may
seem small, but the breach in principle is large." (Id. at 805 (J. Bird,
concurrence)) The intent is to ensure that free exercise of religion is
guaranteed and that the state neither favors nor discriminates
against religion. (E. Bay, 24 Cal. 4th at 719) "[T]he state constitution
requires greater government neutrality and has broader restrictions
on actual or apparent preference. This reduces the state's ability to
prefer one religion under the guise of accommodation, while
retaining the state's ability to alleviate a burden on all affected
religions equally." (David A. Carrillo and Shane G. Smith, California
Constitutional Law: The Religion Clauses, 45 U.S.F. L. Rev. 689,
690 (2010))
There are strong policy arguments for giving an independent
analysis to the No Preference clause. Against the backdrop of the
California Supreme Court's unresolved stance on the No Preference
clause, Congress has enacted the Religious Land Use and
Institutionalized Persons Act (RLUIPA), which forbids governmental
land regulations from imposing substantial burdens on religious
exercise without a compelling state interest implemented by the least

40

restrictive means.9 (42 U.S.C. 2000cc(a)) The Equal Terms


provision of RLUIPA mandates that land use regulations cannot be
implemented in a manner that treats a religious entity "on a less
than equal basis with a secular comparator." (Centro Familiar
Cristiano Buenas Nuevas v. City of Yuma (9th Cir. 2011) 651 F.3d
1163, 1173) RLUIPA protects religion from an adverse lack of
neutrality in land-use regulations. The No Preference clause may be
seen as providing protection from a lack of neutrality that is adverse
against secular interests in favor of religion. It is important as the
legal landscape is shaped by a powerful piece of legislation such as
RLUIPA that we maintain the integrity of our constitutional
protections and apply them to situations that call uniquely for their
guidance. In E. Bay, Chief Justice Mosk observed that "state law and
state constitutional principles should be our first and sole referent . .
. `[A]s the highest court of this state, we are independently
responsible for safeguarding the rights of our citizens. State courts
are, and should be, the first line of defense for individual liberties in
the federal system." (24 Cal. 4th at 722 (C.J. Mosk, dissent) (quoting
his concurrence in Sands v. Moron go Unified School Dist. (1991) 53
Cal. 3d 863, 906))

Respondent invoked RLUIPA in its claims that religious projects


are evaluated under a different standard. (AR4755-56, 13603)
Although the County initially asserted that all projects are to be
evaluated equally under the zoning code, it is very possible that the
County eventually capitulated to the "chilling" effect of RLUIPA.
(See Patricia E. Salkin and Amy Lavine, The Genesis of RLUIPA and
Federalism: Evaluating the Creation of a Federal Statutory Right
and its Impact on Local Government, 40 Urb. Law. 195, p.79
(2008)) "Indeed, RLUIPA has had a chilling effect on local
government's ability to exercise the police power through zoning to
ensure that community character is preserved and that the public
health, safety, and welfare is protected."
9

41

The County ignored significant distinctions between the 2004


approved use and the 2014 realities in evaluating whether the
Project's expanded press activities and new storage operation could
qualify as an "accessory" use. In allowing these changes to escape
review by sheltering them under the "accessory" umbrella, due to the
"integral" nature of the press operation to the TNMC religion, the
County demonstrated a strong preference for religion. The printing
facility was never an approved type of use, but was rather approved
in 2004 as a single printer facility, determined to be an accessory use
necessarily "related to and subordinate to the primary use." The
County transformed the 2004 printing facility's designation as an
"accessory use" into approval of a massive industrial production and
storage operation as accessory to the religious retreat, due to the
importance of printing to the religion. (AR4081-84)
The County's beneficial zoning interpretations were
inconsistent with the RRD land use category and the General Plan.
The County stated that because the ancillary printing of sacred texts,
"integral to the Ratna Ling Buddhist religious practice," had
previously been approved as an "acceptable" use in the RRD
category, it was consistent with the General Plan to approve 40k sq.
ft. of storage tents, printing facility expansion, increased commercial
activities associated with the printing facility, and increases in
permitted workers and worker housing. (AR46-47) When compared
with other types of uses in the zoning code, however, it is clear that
this use is inappropriate for the RRD category. (See infra, Section
V.B)
The County also failed to consider if the dramatic expansion of
the printing operation was still accessory to the retreat function, or if
it had instead become the primary use. To justify its decision, it used

42

Petranker/TNMC-provided numbers in defending its accessory use


designation. (AR48-49) This only further demonstrated preference
for Petranker, as County did not conduct its own analysis, but cutand-pasted the numbers used in its resolution directly from the
TNMC-provided analysis, which is problematic in its assumptions.
(See supra, Section III.I.2.(b))
In relying on its designation of the printing facility as an
already-approved "acceptable" type of use, and failing to consider
the expansion of that use in an "accessory" analysis, the County in
effect invented a new zoning category that escapes any critical
review: any religious entity claiming a use as accessory will have that
use permitted, regardless of the size, growth, or nature of the
operation. The preference displayed is obvious when we consider
the effect on the RRD use category should similar uses gain approval,
which will be required under the neutrality principle of the
Establishment clauses and the No Preference clause: with a
proliferation of industrial uses dotted throughout, the nature of the
RRD use category would be subverted completely. This preferential
approval sets a bad precedent for future zoning decisions, a concern
expressed several times by petitioners and acknowledged by County
staff, both in the context of inducing growth via other religious uses
and via secular land uses, particularly wineries, a dominant industry
in rural Sonoma County. (AR4099, 4756, 8995, 12024, 12068) By
allowing for Petranker what cannot be allowed for others, the County
displayed an illegal preference for religion.
3.

The No Aid Clause


The No Aid clause bans not just financial allocations, but any

official involvement, in any form, that has the "direct, immediate,


and substantial" effect of promoting religious purposes. (E. Bay, 24

43

Cal. 4th at 721) The County has violated the No Aid clause because it
has permitted a commercial, industrial printing operation to
function in a rural area under the guise it is a "noncommercial"
"accessory" use to the Ratna Ling retreat center, affording exclusive
benefits, both financial and intangible, to Petranker/TNMC.
A bond program that provided loans to educational
institutions did not violate this clause because it did not discriminate
between sectarian and secular entities, and requirements prevented
the funds from being used by a religious school to substantially
further its religious mission which would have exceeded the
permissible "incidental benefit" standard. (California Statewide
Communities Development Authority v. All Persons Interested etc.
(2007) 40 Cal. 4th 788, 801-04) A statutory exemption from a
newly-enacted landmark designation law did not violate the No Aid
clause, because it did nothing more than leave the properties in the
state they would have been without the new law. (E. Bay, 24 Cal. 4th
at 721) A transfer of fetuses used in a criminal investigation from the
district attorney to the Catholic League for burial violated the No Aid
clause, however, because even aid in intangible forms, such as in
prestige and power, is prohibited. (Feminist Women's, 157 Cal. App.
3d at 1093)
The Project allows significant commercial activity despite an
express prohibition on commercial activity in the conditions of
approval. (AR61) The County in the same document attempts to
justify this rampant commercial activity as allowed under the
previous permit, despite a 2004 permit condition stating that a
commercial printing press was not allowed, and Petranker's 2004
proposal statement that the press facility "does not operate as a
conventional commercial business." (AR13, 51, 4603) By

44

misrepresenting the commercial nature of the Project, the County


has given Petranker an exclusive benefit that cannot be described as
merely "incidental," in violation of the No Aid clause.
Within the Project approval and administrative record there is
ample evidence this printing operation operates as a commercial
activity. The Project itself approved of a dramatic expansion in
number of presses, workers, truck trips, production levels, and
associated storage, manufacture of "sacred objects," and Internet
sales. Evidence in the record suggests that Dharma Publishing
moved their entire operation to Ratna Ling, while simultaneously
operating both an online store and a bookstore in the City of
Berkeley to sell the books and other items produced at Ratna Ling.
(AR6322, 6324, 6747, 7316, 8214, 1079) The grand scale of the
commercial sales was described in multiple complaints to the
County, and is readily verifiable by looking on the Dharma
Publishing website, which offers hundreds of items for sale,
including a trademarked line of cushions. (AR6297, 6905, 7316,
8359-61; MJN(2))
In a previous zoning proposal, Petranker/TNMC suggested
that the entire site be rezoned to "K" zoning, "Recreation and VisitorServing Commercial District." (Emphasis added) (AR4756; MJN(3))
Even Code Enforcement recognized the commercial nature of the
printing operation activities in the Project: when it investigated code
violations at the site during the approval process for the Project, it
noted that sales and distribution were a commercial activity that
potentially violated the 2004 permit but that the Project could allow
such uses, potentially resolving a code violation. (AR1082) Also in
the administrative record was reference to a Tax Court case involving

45

the commercial printing activities of Dharma Enterprises, including


TNMC. (AR5682; MJN(4))
Just because an activity is undertaken by a religious entity
does not mean it cannot be described as a commercial practice. In a
First Amendment decision that decided whether revenues from the
sale of religious publications could be taxed despite the use of those
revenues to produce other religious materials to further spread the
gospel, the Swag gart case held that a religious organization that
sought to share its religious message should not enjoy rights not
afforded to organizations with secular ideologies, and required the
sales tax. (Jimmy Swaggart Ministries, supra, 204 Cal. App. 3d
1269, 1284) Likewise, the County should not aid Petranker/TNMC
by granting a benefit that is unavailable to other entities, just
because it is a religious entity. No other entity may set up an
industrial printing facility and warehousing operation in the rural
forests of Sonoma County and sell items produced there in a
bookstore and on the Internet. (AR51, 62) This exclusive right
benefits and aids this religion in prestige and power by its
exclusivity, and financially in manufacturing and sales facilitation.
This violates the California Constitution.
B.

The Project is inconsistent with the General Plan and


the zoning code.

1.

General Plan and RRD zoning provisions


The General Plan, pp. LU-55-56, contains land use policies for

RRD land. It highlights the need for low densities of residents due to
lack of infrastructure, distance from public services, and poor access.
(AA159-60) RRD policy protects and accommodate local resource
production such as timber, geothermal, aggregate, agricultural and

46

fisheries not resources imported from outside the area. (AA159;


AR5986 [PRMD])
Along with protecting productive lands and natural habitat,
the RRD policy is also intended to:
protect against intensive development in fire prone
areas
protect against proliferation of growth in areas with
inadequate public services and infrastructure [fire
service and roads]
(AA159)
RRD allows places of worship, lodging, campgrounds, and
similar recreational and visitor serving uses provided that they
"shall" not be inconsistent with the purpose of this category. (AA16o)
Places of worship and similar places of public or community
assembly in rural areas land "shall" meet all of the following criteria:
adequate public services and infrastructure must be available,
without inducing unplanned growth
the site has frontage on a designated collector or arterial
roadway, and
the size, scale and design of the use shall be in keeping with
the rural character of the area
(AA149[General Plan Policy LU-6e, p. LU-30])
Industrial land use policies are a separate category at LU-4649. (AA150-53) General Industrial is restricted to urban service
areas. (AA150-51) Limited Industrial is not restricted to urban areas,
but it must meet access, public services and local employment
criteria. (AA152-53)
The RRD zoning ordinance is Section 26-10-005 through 2610-020. (AA163-75) It repeats the General Plan's injunction to

47

protect lands needed for resource and agricultural production, and


allows "very low density" residential and visitor-serving uses where
compatible with available public services. (AA163)
Permitted Uses include "accessory" buildings and uses
appurtenant to the operation of the permitted uses. (AA166)
Uses permitted with a use permit include "noncommercial"
clubs and lodges. (AA170) Places of worship and places of public or
community assembly are also allowed with a use permit (AA170) but
are subject, at a minimum, to the mandatory criteria of General Plan
Policy LU-6e (set forth above). (AA149)
2.

No substantial evidence supports the County's


General Plan consistency finding
In 2004, the BZA found the project was similar to a

"noncommercial club or lodge." (AR47) In 2014, the County relied


on this finding to determine the current Project is also similar to a
noncommercial club. (AR47-48, 61) It did this despite the Project's
extraordinary levels of manufacturing production (books and
objects), massive storage structures and commercial Internet sales.
The County's decision to apply General Plan criteria for a
"noncommercial club" is the wrong category of use and unsupported
by any evidence. The Project approval sanctions rampant
commercial activity already taking place and permits Petranker to
store commercial products, as they are produced, in the immense
warehouses as inventory. It is an abuse of discretion to analyze the
Project as a "noncommercial" use.
The County found that the industrial-size storage structures
and expanded press operations are consistent with the General Plan
and RRD zoning because they are "accessory." (AR 46, 48) In doing
so, it redefined "industrial":

48

[H]housing the sacred texts in permanent


membrane structures is not an industrial use,
but is accessory to the [religious] retreat.
(Emphasis added.)
(AR45)
This is an abuse of discretion. PRMD has repeatedly
confirmed that the industrial uses at the Project site are not normally
allowed in RRD. (AR5986, 4755,4124, 97, 4081-84)
The General Plan states that general industrial uses must be in
urban service areas and, if classified as "limited" industrial, must
serve a local employment need, be near population concentrations,
convenient to an arterial highway, and not in areas subject to fires.
(AA [GP, LU-48-49]) Petitioner objected that the Project meets
none of these criteria. (AA12675 [map of historic fires, main
arterials], 13516, 12025) The remote location of the Project, the
inadequate roads, fire risks arising from the storage structures and
hazardous materials at the press facility disqualify any industrial use
on this site.
The Project contradicts the General Plan intent to protect
against intensive development in fire prone areas (AM59, 152-53)
Because the storage structures are an "accessory" use, the County
exempted them from compliance with 'VVUI fire standards. (AR135)
The County violated the General Plan when it allowed an industrial
operation with lower fire standards in a high fire risk area.
Likewise, the industrial component of the Project violates
Policy, p. LU-56 (AM.60), to protect county residents from
proliferation of growth in areas where there are Inadequate public
services." The Project approval exposes county residents to a fire
department unequipped for industrial fires and narrow rural roads
burdened by large trucks and increased traffic.

49

Given the County's aggressive definition of "religious" use to


include industrial and commercial uses, the entire Project site is now
devoted to religion and religious worship. The County should apply
Policy, p. LU-6(e) for "places of worship, and similar places of public
or community assembly." (See AR4893) This Policy requires findings
of adequate public services (e.g., fire protection and roads), location
on an arterial roadway, and size and scale in keeping with rural
character. None were made, or with fire services, adequately made.
(See AM.2675, 13516, 12025) This is an abuse of discretion.
3.

The MUP is discriminatory spot zoning.


The County engaged in discriminatory spot zoning when it

approved the MUP. Petitioner raised this objection during the


administrative process. (AR8853)
A particular project must be compatible with the objectives,
policies, general land uses, and programs specified in the general
plan or any applicable, officially adopted specific plan. (Gov. Code,
66473.5) Section 66473.5 has been interpreted as requiring that a
project be in agreement or harmony with the terms of the applicable
plan, not in rigid conformity with every detail thereof. Foothill
Communities Coalition v. County of Orange (2014) 222 Cal. App.
4th 1302, 1310-1311. 'A spot zone results when a small parcel of land
is subject to more or less restrictive zoning than surrounding
properties." Id. at 1312 (quoting Hagman et al., Cal. Zoning Practice
(Cont.Ed.Bar 1969) 5.33, p. 152).
The essence of spot zoning is irrational discrimination.
(Avenida San Juan Partnership v. City of San Clemente (2011) 201
Cal. App. 4th 1256, 1268) Spot zoning is a type of discriminatory
zoning ordinance. (Arcadia Development Co. v. City of Morgan Hill
(2011) 197 Cal.App.4th 1526, 1536) Spot zoning may or may not be

50

impermissible, depending on the circumstances, such as if the spot


zoning is in the public interest. (Foothill Communities Coalition, 222
Cal. App. 4th at 1314)
In Foothill Communities, a county created a senior housing
residential zoning district by ordinance at the same time it approved
a particular project that would benefit from the new zoning
classification. (Id. at 1308) The zoning change at the project site
was upheld, however, because it followed the general plan, the
housing element, and the specific plan, also served the public
interest, and was not "arbitrary or capricious." (Id. at 1315-19) The
new zoning district also applied throughout the specific plan area,
and did not just benefit the property owner of the
contemporaneously-approved project. (Id. at 1320-21)
Impermissible spot zoning was found, however, in Avenida
San Juan Partnership v. City of San Clemente, where a single
property was affected by the enactment of a particular zoning code
that none of the surrounding properties were subjected to. (Avenida,
201 Cal. App. 4th at 1261) Also, the zoning code was intended to

preserve biological and geographic features that were not present on


the affected property. (Id.) "This parcel, in this neighborhood, was
being singled out for discriminatory treatment independent of the
reason for [the specific type of] zoning in the first place." (Id. at
1271) The court found that the zoning was "arbitrarily and
capriciously" enacted and a writ of mandate forbidding it was
upheld.
The MUP is not consistent with the General Plan because the
Project's industrial uses are not allowed in RRD land. This property
has been singled out for the benefit of an industrial use forbidden on

51

surrounding lands. This capricious and arbitrary decision has


enacted discriminatory spot zoning.
C.

The Project approval violates CEQA.


The foremost principle in interpreting CEQA is that the

Legislature intended the act to be read to afford the fullest possible


protection to the environment within the reasonable scope of the
statutory language. (Cmtys. for a Better Env't v. Calif. Res. Agency
(2002) 103 Cal.App.4th 98, 109.)
The EIR is the very heart of CEQA. (Pocket Protectors v. City
of Sacramento (2004) 124 Cal.App.4th 903,926-27; Sundstrom v.
County of Mendocino (1974) 202 Cal.App-3d 296, 304) The EIR is
an "environmental 'alarm bell' whose purpose is to alert the public
and its responsible officials to environmental changes before they
have reached the ecological points of no return." (Bakersfield
Citizens for Local Control v. City of Bakersfield (2004) 124
Cal.App.4th 1184, 1220) The EIR also functions as a "document of
accountability," intended to "demonstrate to an apprehensive
citizenry that the agency has, in fact, analyzed and considered the
ecological implications of its action." (Laurel Heights
Improvements Ass'n v. Regents of Univ. of Calif., supra, 47 Ca1.3d
376, 392)
1.

Massive warehouses filled with paper in a high risk


fire area is a substantial change or new information
warranting an EIR.
Whether a project is "new" or a minor change to an existing

project is a question of law, that the court reviews de novo. (Save


Our Neighborhood, supra, 140 Cal.App.4th at 1297)
The County found the Project is a "modest" expansion that
presents no substantial changes requiring revisions to previous

52

MNDs. (AR41-42) This finding was based on an erroneous "baseline"


that did not count the warehouses, the expanded production, and the
increased truck trips. (AA42-43) The County concluded a subsequent
EIR is not required. (AA40)
This finding is in error. Petranker's "new mission" of increased
industrial and manufacturing production and massive long term
storage has transformed a small press facility into a "new project"
warranting an EIR.
a)

Fair argument standard if "new" project


If this is a "new" project never analyzed previously under

CEQA, preparation of an EIR is required because it can be fairly


argued on the basis of substantial evidence that the project may have
significant environmental impact. (Sierra Club, supra, 6 Cal.App.4th
at 1316) 6 Cal.App.4th 1307, 1316) The Fire District evidence by itself
(Section IV. I. 3) is substantial evidence.
b)

EIR is required because massive storage and other


expansions constitute a new project
After an EIR or MND has been certified, an agency may

prepare a SMND only if none of the conditions triggering


preparation of a subsequent EIR has occurred. (14 CCR 15162.) A
subsequent or supplemental EIR must be prepared in any of the
following instances: (a) substantial changes are proposed in the
project which will require major revisions of the environmental
impact report; (b) substantial changes occur regarding the
circumstances under which the project is being undertaken which
will require major revisions in the environmental impact report; (c)
new information, which was not known and could not have been
known when the environmental impact report was certified as
complete, becomes available. (PRC 21166; 14 CCR 15162)

53

A subsequent MND may only be used for a later project that is


"essentially the same project" as analyzed in the prior MND, and
minor changes are proposed. (Sierra Club, 6 Cal.App.4th at 1320)
The changes proposed to the 2004 project are substantial and
constitute a new project for which an EIR must be prepared.
Petranker's new mission of "text preservation" (i.e., perpetual
massive storage) amounts to new information and substantial
change constituting a new project. The 2004 MND approved a
relatively small press facility (18,000 square feet) with a single press,
limited production and no high risk warehouse storage. Petranker's
plan of massive book storage emerged after approval of the 2004
MND. The Project includes 40,000 square feet (more than a million
cubic feet) of storage structures filled with tons of paperstructures
that admittedly are not compliant with WUI fire hazard standards in
a high fire severity area. It can be "fairly argued" this new warehouse
storage may have a significant impact on fire safety, requiring an
EIR. (Section III. I. 3)
The 80% retreat expansion and ramped up production from
six presses added new burdens. The County dismissed the additional
impacts on roads and the risk from undisclosed and unquantified
hazardous materials generated by the press expansion. However, it
can be "fairly argued" these expansions may have a significant
impact on fire safety, existing inadequate roads, and hazardous
materials fire safety. (Section III. I. 3, 4) This establishes a "fair
argument" of environmental harm, requiring an EIR.
With EIR review, the County will be required to evaluate
urban alternatives to industrial scale warehousing of paper products
in a remote rural area. The Fire District states that an urban location
is a better location because it has services capable of handling

54

industrial fires. Massive paper storage in substandard (not WUIcompliant) membrane structures presents an industrial fire risk that
the local rural fire district is not equipped or trained to handle, and
that risk has not been mitigated, according to the Fire District. This
evidence requires preparation of an EIR.
2.

The SMND is not supported by substantial evidence.


A subsequent MND will be upheld only if supported by

substantial evidence. (Abbatti v. Imperial Irrig . Dist. (2012) 205


Cal.App.4th 650, 675.)
Even if the Project is not a "new" project, the County
improperly concluded that the Project will not expose people or
structures to a significant risk of loss, injury, or death involving
wildland fires, including where wildlands are adjacent to urbanized
areas or where residences are intermixed with wildlands. (AR135136)
This conclusion is not supported by substantial evidence. The
SMND's "no significant impact" conclusion is based in part on a
County-wide mutual aid agreement among all Sonoma County Fire
Districts. (AR136.) But the SMND does not analyze the response
times of the other districts, that would range from 30 to 40 minutes
according to the local Fire District, and does not analyze whether the
equipment and training of any of the other districts is sufficient to
fight an industrial fire at the Project site. (AR12707)
The County also relies heavily on statements of the Fire
Marshall. (AR44-45) This reliance is misplaced, however, because
the Fire Marshall never concludes that the Project will have no
significant impacts. Instead, she testified that the analysis has not
yet been done to determine if the Project will have significant
impact. (AR4332 [if Project is approved Fire Chiefs intent "is that

55

Timber Cove Fire and Sonoma County fire, and the facility operators
get together and basically get down and look at, okay, what are the
real risks, what are the hazards, and if those if we do, in fact, have
real hazards and risks, how are we going to mitigate those."]) The
County abused its discretion by finding that the Project will have no
significant impacts, despite the substantial unrebutted evidence in
the record to the contrary (Section III. I. 3)
The final basis for the County's conclusion that the Project will
have no significant impacts is based on its findings that warehouse
tents comply with building and fire code standards. (AR44-45) But
again, this conclusion is not based on substantial evidence. The
tents are not exempt from the VVUI Standards because they are not
defined as "accessory" under the CBC. (Section III. I. 3(c))
Moreover, compliance with the rules of another agency does not per
se mean that the project will not have an environmental impact.
(See, Kings Co v. Hanford (1990) 221 CA3d 692, 712-718; Citizens
for Non-Toxic Pest Control v. Dept. Food & Agr. (1986) 187
Cal.App.3d 1575, 1587-88)
3.

Storage structures are not part of baseline


Every CEQA document must start from a "baseline"

assumption. The CEQA baseline is the set of environmental


conditions against which to compare a project's anticipated impacts.
(Communities for a Better Environment (CBE) v. South Coast Air
Quality Management Distr. (2010) 48 Ca1.4th 310, 321) Here, the
County dismissed the evidence that this was, indeed, a significant
new project, and included the temporary storage structures as part
of the CEQA baseline, rather than analyzing the structures'
environmental effects as part of the Project. (AR42) The storage

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structures were new, significant changes and should have been


included as part of the Project rather than as part of the baseline.
The storage structures should not be included in the baseline
because they were not analyzed in the previous CEQA documents.
(AR2160) When a project has already been analyzed under CEQA,
as done here, the standards in PRC 21166 and 14 CCR 15162 apply
instead of CEQA's rules relating to the existing physical conditions
baseline. Under that standard, the proper CEQA baseline is the level
of operations analyzed and permitted in the last CEQA document.
(Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th
238, 243) By incorporating portions of a proposed project into the
baseline, as the County did here, the agency in effect grants a
unilateral exemption from CEQA for that activity. (See County of
Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 195-97)
The 2004 use permit was based on CEQA review allowing a
specified level of operation. It is that level of operation that the
County must compare the Project to. Since the 40,000 square feet of
storage warehouses have never undergone CEQA review, the County
abused its discretion by including them in the baseline providing the
structures a CEQA exemption.
Use of a proper baseline is critical to a meaningful assessment
of a project's impacts. While existing physical conditions are
"normally" used (14 CCR 15125(a), the baseline may not be
unrealistic, illusory or result in misleading comparisons rather than
an analysis that informs decision-makers and the public.
Importantly, the baseline must describe the environment "absent the
project" under review. (CBE v. SCAQMD, 48 Ca1.4th at 321) Here,
the tents are part of the Project, which seeks to convert them to
permanent status. Also, the 2008 MND specifically stated the

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proposed book storage (caves) would undergo separate


environmental review. But the County's baseline betrays this implicit
assurance and exempts the text storage tents from review.
The structures should also not be included in the baseline
because they were only temporary. A temporary project does not
form the baseline for a similar but permanent project. (Apartment
Ass'n of Greater LA, 90 Cal.App.4th at 1169; Chamberlin v. City of
Palo Alto (1986)186 Cal.App.3d 181, 187.) Even though the
temporary tents existed when CEQA review commenced, they did so
illegally and temporarily, as their temporary permits had expired.
(See, AR38.) The temporary tents are just that temporary. "This is
a temporary structure & must demo [demolish] on 3-25-11." (AA
5533) As the PRMD explained at a hearing, if the SMND is not
approved, the 40,000 sq. ft. of tents must be removed, and the books
stored elsewhere. (AR4269) It is misleading to compare the fire
danger from 40,000 square feet of permanent book storage to that of
temporary storage, since the temporary tents will be removed if the
Project is not approved.
Cases relied by the lower court are distinguishable. (AA26970) Citizens for East Shore Parks v. State Lands Corn. (2011) 202
Cal. App. 4th 549, involved renewal of an existing marine terminal
that had been in operation for over 100 years; it was appropriate to
select existing conditions as the baseline. Fat v. County of
Sacramento (2002) 97 Cal.App.4th 1270 involved a 1997 proposal to
legalize, and slightly expand, operations at a privately owned airport
that had been in operation since 1934. The court found it was
appropriate to use the existing (permanent) conditions in 1997 as the
baseline. It also noted that the facilities had undergone CEQA review
in 1992. The court upheld the current negative declaration and the

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baseline "under the circumstances of this case" which included the


long-standing environmental setting, the prior environmental
review, the limited impact of the current proposed expansion, and
County's desire to bring the development under County supervision
for the first time.
Longstanding, permanent conditions (legal or not) are part of
the baseline. But fairly new, "temporary" structures that are part of
the Project, subject to "demolition," and implicitly slated for
environmental review (according to the 2008 MND) are not.
The erroneous baseline led the County to characterize the
Project as a "modest" modification. Had it acknowledged the massive
structures represent a substantial change to the 2004 project, the
"fair argument" standard of review would apply. Under the "fair
argument" standard of review, the Fire District's opinion on the
industrial fire risks posed by the Project would require an EIR.
The erroneous baseline led the County find General Plan and
zoning compliance. As discussed above, the industrial-scale press
and storage facility was inconsistent with the applicable land use
polices and should have been rejected. (Section V.B.)
4.

The County improperly piecemealed the larger


Project.
If the Court analyses the Project as part of a larger project,

then the County improperly piecemealed its analysis of the larger


Project, resulting in inadequate analysis and disclosure of
environmental impacts. CEQA prohibits a project proponent from
seeking approval of a large project in a piecemeal fashion to take
advantage of environmental exemptions or less robust CEQA
requirements for smaller projects. (Arviv Enterprises, Inc. v. So.
Valley Area Planning Comm'n (2002) 101 Cal.App.4th 1333, 1340;

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Bozung v. LAFCO (1975) 13 Ca1.3d 263, 283-84; Citizens ASS'n for


Sensible Development of Bishop Area v. County of Inyo (1985) 172
Cal.App.3d 151) This is true even if one of the smaller parts might
require only ministerial, rather than discretionary, approval. (Katzeff
v. Dept. of Forestry & Fire Protection (2010) 181 Cal.App.4th 6o1, 611.13) In Bishop Area a county issued two separate negative
declarations for a single project, each analyzing different impacts of
the project. (172 Cal.App.3d at 165-166.) The court held this
approach illegally segmented the environmental analysis, and
required an EIR. (Id.)
If, as the County contends, this Project is not a new project
and should instead be analyzed under 21166, then the piecemealing
here is explicit. The County improperly segmented its
environmental review of the Project by proceeding with piecemealed
MNDs and over 140 permit approvals made outside of the CEQA
process for a single project. (AR6027-6o37) No CEQA document,
including the SMND, analyzes the Project and its environmental
impacts, as a whole.
The County knows that piecemeal approvals are wrong. In
2007, Petranker openly planned the "text treasury" project
(AR4846) while he also pressed PRMD to move forward with several
different permits. PRMD resisted this piecemeal approach: "We
would like all new uses to be on one Use Permit rather than having
several different Use Permits applied for at different times."
(AA6682) But, for this particular applicant, the County did not
follow its own policy. It conducted environmental review of the 2008
reservoir project (2008 MND) while allowing numerous other
expansion projects to go forward without environmental review,

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including the 40,000 square feet warehouse structures. (AR5532-33,


5858, 5737, 5771)
The 2008 MND said that the next environmental document
(SMND) would analyze the environmental impacts of the book
storage. But the SMND says there is no new project and no impact
because the book storage is part of the baseline!
Neither the SMND nor any previous CEQA document has
analyzed the entire Project including the additional 40,000 square
feet of storage structures. By piecemealing the Project, the County
has hidden the environmental impacts of the warehouse tents from
the public and decision makers.
Because of the County's failure to adequately analyze the
whole of the Project, the County failed to analyze the potentially
cumulative considerable impacts of the Project when combined with
related past, present, and reasonably foreseeable projects. The
SMND's conclusion that the Project will have no cumulative impacts
is unsupported by any evidence. The County must prepare an EIR
that adequately describes the Project and analyzes it as a whole.
VI. CONCLUSION
Petitioner respectfully requests that the Project approval be
set aside and the lower court directed to enter a judgment in favor of
petitioner on the Second Cause of Action, or to direct an EIR be
prepared.
DATED

,2015 PROVENCHER & FLATT, LLP


By
Janis H. Gm an, Attorneys for
Appellant Coastal Hills Rural
Preservation

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CERTIFICATE OF WORD COUNT


Pursuant to California Rules of Court, rule 8.204(c)(1),
the undersigned certifies that the word count for the Motion to
Dismiss is 14,000 words, excluding the tables and this
certificate. The undersigned relied on the word count of a
Microsoft Word processing program in preparing this
certificate.
I certify under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
Executed in Santa Rosa, California.
DATED: September 25, 2015
PROVENCHER & FLATT LLP

JANIS H. G TTAN
Attorneys forlAppellant Coastal Hills
Rural Preservation

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DECLARATION OF SERVICE

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I declare that I am over the age of eighteen years and am not a party to this action. I am a
resident of or employed in the county where the mailing took place. My business address
is Provencher & Flatt LLP, 823 Sonoma Avenue, Santa Rosa, CA 95404.

On September 25, 2015, I served the following documents:

APPELLANT'S OPENING BRIEF

on the interested parties in the action by ELECTRONIC COPY at Santa Rosa, California,
addressed as follows:

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ADDRESSED TO:
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Verne Ball
Office of County Counsel
575 Administrative Dr., Rm 105A
Santa Rosa, CA 95403

Tina Wallis
Clement, Fitzpatrick 86 Kenworthy
333 Mendocino Ave., Ste 200
Santa Rosa, CA 95403

Michael Lozeau
Rebecca Davis
Lozeau Drury LLP
410 12th St., Ste 250
Oakland, CA 94507

Coastal Hills Rural Preservation


[service via email; address omitted]

(X) (BY ELECTRONIC FILING) By transmission of the Notification of Electronic Filing by


the Clerk to Registered Participants who have consented to service.

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(X )(State) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

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( ) (Federal) I declare under penalty of perjury that I am a member of the State Bar of this
Court or I am an employee in the offices of a member of the State Bar of this Court at whose
direction service was made.

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Executed on September 25, 2015.

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