No.

A145573
(Sonoma County Superior Ct. No. SCV-255694)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION 1
________________________
COASTAL HILLS RURAL PRESERVATION
Petitioner and Appellant
v.
COUNTY OF SONOMA, SONOMA COUNTY BOARD OF
SUPERVISORS, SONOMA COUNTY PERMIT AND RESOURCE
MANAGEMENT DEPARTMENT
Respondents
and
JACK PETRANKER and THE HEAD LAMA OF
THE TIBETAN NYINGMA MEDITATION CENTER,
Real Parties in Interest
_________________________
Appeal from Judgment of the Superior Court for the County of Sonoma
(Honorable Elliot Lee Daum, Presiding)
________________________________________________________
RESPONDENTS OPPOSITION BRIEF
_________________________________________________________

BRUCE D. GOLDSTEIN, State Bar No. 135970

County Counsel
VERNE BALL, State Bar No. 244014
Deputy County Counsel
Office of Sonoma County Counsel
575 Administration Drive, Room 105A
Santa Rosa, CA 95403
Tel. (707) 565-2421/Fax (707) 565-2624
Email: Verne.Ball@sonoma-county.org
Attorneys for Respondents
1

No. A145573
(Sonoma County Superior Ct. No. SCV-255694)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION 1
________________________
COASTAL HILLS RURAL PRESERVATION
Petitioner and Appellant
v.
COUNTY OF SONOMA, SONOMA COUNTY BOARD OF
SUPERVISORS, SONOMA COUNTY PERMIT AND RESOURCE
MANAGEMENT DEPARTMENT
Respondents
and
JACK PETRANKER and THE HEAD LAMA OF
THE TIBETAN NYINGMA MEDITATION CENTER,
Real Parties in Interest
_________________________
Appeal from Judgment of the Superior Court for the County of Sonoma
(Honorable Elliot Lee Daum, Presiding)
________________________________________________________
CERTIFICATE OF INTERESTED PERSONS
_________________________________________________________

BRUCE D. GOLDSTEIN, State Bar No. 135970

County Counsel
VERNE BALL, State Bar No. 244014
Deputy County Counsel
Office of Sonoma County Counsel
575 Administration Drive, Room 105A
Santa Rosa, CA 95403
Tel. (707) 565-2421/Fax (707) 565-2624
Email: Verne.Ball@sonoma-county.org
Attorneys for Respondents
2

Pursuant to Rule 8.208 of the California Rules of Court,

Respondents County of Sonoma, Sonoma County Board of Supervisors,
and the Permit and Resources Management Department, to the best of their
knowledge hereby identify the following interested entities or persons in
regard to this appeal:
1. Sonoma County;
2. Sonoma County Board of Supervisors;
3. The Permit and Resources Management Department, which is not a
separate legal entity from Sonoma County.
DATED: November 24, 2015

BRUCE D. GOLDSTEIN
County Counsel
By: /s/ Verne Ball
VERNE BALL
Deputy County Counsel
Attorneys for Respondents,
County of Sonoma, Sonoma
County Board of Supervisors,
Sonoma County Permit and
Resource Management
Department

TABLE OF CONTENTS
CERTIFICATE OF INETERESTED PARTIES ......................................... 8
I.

INTRODUCTION ............................................................................ 10

II.

JOINDER IN BRIEF OF REAL PARTIES ..................................... 10

III.

STATEMENT OF FACTS ............................................................... 10

IV.

ARGUMENT ................................................................................... 10
A. The Board Properly Found That The Project Complies With
General Plan 2020 And The Countys Zoning Ordinance ......... 11
1. CHRPs General Plan And Zoning Consistency
Challenges Are Time-Barred. .................................... 12
2. The Boards General Plan Consistency Findings Were
Appropriate And Are Entitled To Deference ............. 14
3. The Board Properly Confirmed That Under The
Countys Zoning Ordinance The Printing And Printing
Storage Remain Accessory To The Retreat Use. ....... 19
4. An Accessory Use Determination Is Not An
Exemption To County Code Requirements .............. 22
5. CHRPs Zoning Argument Regarding Commercial
Uses Is A Red Herring ............................................... 24
6. The County Did Not Exempt The Project From
Building Code Requirements ..................................... 25
7. The Project Did Not Involve A Change In Zoning,
And Accordingly Did Not Involve Spot Zoning ........ 26

B. The Countys Action Approving The Master Use Permit Raises

No First Amendment Or Establishment Clause Issue ................ 27
1. The County Had A Secular Purpose When It Applied Its
Facially Neutral Zoning Ordinance, Approved The
Project, And Confirmed That The Presses Are Still An
Accessory Use. ........................................................... 28
2. Approval Of The Master Use Permit Neither Advances
Nor Inhibits Religion.................................................. 30
3. Approval Of A Use Specific To The Applicant Is Not
Excessive Entanglement............................................. 32
C. The County Did Not Afford An Unconstitutional Preference To
Religion When It Approved The Project .................................... 34
D. The County Complied With The No Aid Clause When It
Approved The Project ................................................................. 36
V.

CONCLUSION ................................................................................ 37

TABLE OF AUTHORITIES
Cases
A Local and Regional Monitor (ALARM) v. City of Los Angeles
(1993) 16 Cal.App.4th 630 ...................................................................... 14
Avenida San Juan Partnership v. City of San Clemente
(2011) 201 Cal.App.4th 1256 .................................................................. 26
California Native Plant Society v. City of Rancho Cordova
(2009) 172 Cal.App.4th 603 .................................................................... 13
Corp. of the Presiding Bishop of the Church of Jesus Christ
Latter-Day Saints v. Amos, (1987) 483 US 327 ............................... 28, 29
East Bay Asian Local Development Corp. v. State of California
(2000) 24 Cal.4th 693 ....................................................................... passim
Fairfield v. Superior Court of Solano County (1975) 14 Cal.3d 768.......... 36
Foothill Communities Coalition v. County of Orange
(2014) 222 Cal.App.4th 1302 .................................................................. 25
Friends of Lagoon Valley v. City of Vacaville
(2007) 154 Cal.App.4th 807 .............................................................. 13, 14
Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519......... 12
Lemon v. Kurtzman (1971) 403 U.S. 602 ............................................ passim
Lucas Valley Homeowners Assn. v. County of Marin
(1991) 233 Cal.App.3d 130 ......................................................... 31, 32, 35
Lynch v. Donnelly (1984) 465 U.S. 668 ............................................... 28, 29
McCreary County v. ACLU of Ky. (2004) 545 US 844 .............................. 28
MHC Operating Limited Partnership v. City of San Jose
(2003) 106 Cal.App.4th 204 .............................................................. 18, 25
People v. Department of Housing & Community Development
(1975) 45 Cal.App.3d 185 ....................................................................... 12

Rowe v. Superior Court (1993) 15 Cal.App.4th 1711 ................................. 28

San Franciscans Upholding the Downtown Plan v. City & County
of San Francisco (2002) 102 Cal.App.4th 656 ....................................... 14
San Francisco Tomorrow v. City and County of San Francisco
(2014) 229 Cal.App.4th 498 .................................................................... 16
Sedlock v. Baird (2015) 235 Cal.App.4th 874 ........................................... 29
Sequoyah Homeowners Assn v. City of Oakland
(1993) 23 Cal.App.4th 704 ...................................................................... 14
Sierra Club v. Cal. Coastal Commission (2005) 35 Cal.4th 839 ................ 35
Wollmer v. City of Berkeley (2009) 179 Cal.App.4th 933 .......................... 14
Yamaha Corp. of Am. v. State Board of Equalization
(1998) 19 Cal.4th 1 .................................................................................. 25
Statutes
42 U.S.C. 2000cc ...................................................................................... 35
Govt Code 65009 .................................................................................... 13
Other Authorities
Cal. Const., art. 1, 6 .................................................................................. 34
Cal. Const., art. XI, 7 .......................................................................... 13, 29
Cal. Const., art. XVI, 5 ............................................................................. 36
Sonoma County Code 26-02-010 ............................................................. 29

I. INTRODUCTION
This case concerns a Tibetan Buddhist retreat that the County of
Sonoma (County) approved in 2004. The religious retreat, called Ratna
Ling, took over the site of a luxury resort that went out of business. The
Countys 2004 use permit approval authorized the Ratna Ling retreat as a
primary use of the property, and a Buddhist printing press as an accessory
use to the retreat. In 2008, the County also approved four storage structures
to house the religious texts produced in the printing facility.
In 2014, the County Board of Supervisors approved a Master Use
Permit for the site, authorizing a variety of minor changes to the existing
facility. (AR 36-67.)1 This action challenges that approval. The Master
Use Permit makes permanent the text storage structures that were approved
in 2008, and approves a seasonal campground and five-bedroom house as
additions to the retreat. As the trial court summarized, the Master Use
Permit involves a number of changes to the existing, approved uses and
facilities but they are all of the same kind, each rather small, each change
merely modifies individual components of the existing ones and sometimes
without any increase [in what is allowed] at all. Contrary to [Appellants]
argument it does not involve a huge increase of printing facilities. (AA
267.)2

1
2

AR stands for Administrative Record.

AA stands for Appellants Appendix.
8

The Master Use Permit was considered and approved by the County
Board of Zoning Adjustment (BZA) after two hearings, and was considered
and approved by the County Board of Supervisors (Board) after two more
hearings. In reaching its decision to approve the Master Use Permit, the
Board carefully considered the project and various arguments regarding the
proper application of the Countys own General Plan and zoning ordinance.
The Board found that the project is consistent with all County requirements,
in part based on the imposition of 97 conditions of approval. Appellant
Coastal Hills Rural Preservation (CHRP) sued, arguing that the County
violated its General Plan, zoning code, and the California Environmental
Quality Act (CEQA). The trial court rejected CHRPs claims.
CHRPs present appeal followed, which focuses primarily on
arguments never raised in the administrative proceedings or in the trial
court. In this brief, the County explains why CHRPs General Plan and
zoning claims fail. The County also explains why CHRPs new attempt to
recast its land use arguments into a rather surprising tale about the County's
unconstitutional establishment of religion namely, Tibetan Buddhism
misunderstands both the Countys requirements and the record. In broad
terms, CHRP objects to the special treatment of Ratna Ling. CHRPs
new argument necessarily fails, however, as there is no evidence of special
treatment.

II. JOINDER IN BRIEF OF REAL PARTIES.

The brief filed by Real Parties in Interest addresses the CEQA issues
raised in CHRPs appeal. The County joins in the Real Parties Opposition
Brief.

III. STATEMENT OF FACTS

For a full discussion of the facts in this case, the County respectfully
refers the Court to the Statement of Facts in the Real Parties Opposition
Brief.
IV. ARGUMENT
Sonoma County carefully considered its decision to approve a
Master Use Permit for the Ratna Ling Buddhist Retreat Center. CHRPs
latest challenge to the Countys approval fails because it misapplies the
deferential standard of review, ignores and mischaracterizes the record
evidence, and makes an untimely challenge to a 2004 accessory use
determination. The record demonstrates that the Board properly exercised
its unique expertise and discretion when it required a multitude of
conditions of approval to address concerns expressed by CHRP and other
members of the public, and found that the project complies with Sonoma
Countys General Plan and zoning ordinance.
For the first time in the long procedural history of this project, in an

10

attempt to resuscitate its land use arguments, CHRP seeks to raise

constitutional arguments. This approach suffers from fatal procedural
defects, as CHRP did not properly exhaust its administrative remedies on
these claims. The claims are also substantively wrong. The Countys
recognition of the retreats religious activity in its confirmation of the
printing press accessory use determination raises no constitutional issues.
CHRPs arguments fail on both procedural and substantive grounds.

A.

The Board Properly Found That The Project Complies

With General Plan 2020 And The Countys Zoning
Ordinance.

The Ratna Ling retreat site has a Resources and Rural Development
(RRD) land use designation under the Countys current General Plan,
General Plan 2020.3 (AR 46.) The purpose of the RRD land use
designation is to protect lands used for timber, geothermal and mineral
resource production and for natural resource conservation. (AA 159.) The
RRD land use designation also expressly allows [l]odging, campgrounds,
and similar recreational and visitor serving uses provided they are not
inconsistent with the resource purposes of the area. (AA 160.) The

As in other jurisdictions, parcels in Sonoma County are mapped with both a

General Plan and zoning designation. The project site has a General Plan
designation of RRD and zoning that is also RRD. The County updated its
General Plan in 2008; the 1989 General Plan was in effect at the Countys 2004
approval, and General Plan 2020 applied to the Countys 2014 approval. General
Plan 2020 did not change the language for the RRD land use designation. (AR
46-47.)
11

religious retreat, like the resort that came before it, is a visitor serving use.
(AR 47.)
CHRPs challenge focuses primarily on the printing facility and
storage. In the 2014 approval, the Board found that the printing facility has
been and will continue to be an accessory use since it continues to be
related to, subordinate to, and appurtenant to the primary retreat use.4 (AR
48.) The Board found that [t]he uses sought [under the MUP] are
clarifications and expansions of the previously approved uses already
determined to be consistent with the General Plan, and that [t]he Project
would not involve the loss of timber and would not interfere with
geothermal resource production (the Project Site is not identified as an
aggregate resource site in the Aggregate Resources Management Plan).
Further, watersheds, fish, and wildlife habitat will be protected. (AR 47.)
The Board found that various arguments raised before it that attempted to
reopen the prior accessory use determination for the print facility were
untimely. (AR 46-49.)
1. CHRPs General Plan and Zoning Consistency
Challenges Are Time-Barred.
The County made the determination that press facility is an
accessory use to the primary retreat use in 2004, and authorized the press
on that basis. CHRP impermissibly asks this Court to set aside a decade4

The County used the terms ancillary use and accessory use interchangeably,
and explained why. (AR 48).
12

old General Plan and zoning code consistency determination. (AR 6.) In
approving the Master Use Permit, the Board explicitly noted what was and
was not new. The 2014 Master Use Permit approval changed some aspects
of the printing facility operations -- such as increasing occupancy, and
reducing hours and workdays -- but the broader issue of the permissibility
of the printing facility use was never at issue. The Board explained:
The Project being approved at this time does not include the
religious printing facility, which TCFPD describes as an industrial
use. The religious printing facility was approved [in 2004] as part
of Use Permit UPE04-0032 as an ancillary use to the retreat use, and
has been constructed in compliance with all applicable codes. The
aspect of the Project at issue here is making the sacred text storage
structures permanent.
(AR 45 [modification supplied]; see also AR 4321-22 [explaining that the
printing presses are not part of the Master Use Permit].)
The statute of limitations to challenge the approval and General Plan
consistency of the printing use lapsed in 2004. The statute of limitations to
challenge the use determination for the storage structures to which CHRP
objects lapsed in 2008. CHRPs claims are time-barred both by statute and
by equity. (Gov. Code 65009; People v. Dept. of Housing & Community
Development (1975) 45 Cal.App.3d 185, 200.) Furthermore, the County
had independent adjudicatory authority to determine that CHRPs
allegations were untimely attempts to reopen established findings for the
Ratna Ling site. (AR 47; Cal. Const., art. XI, 7; cf. Goat Hill Tavern v.
City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1529 [Interference with
13

the right to continue an established business is far more serious than the
interference a property owner experiences when denied a conditional use
permit in the first instance].)
2.

The Boards General Plan Consistency Findings

Were Appropriate and Are Entitled to Deference.

An agencys general plan consistency determination is subject to a

deferential standard of review that CHRP asks this Court to ignore. The
Board is the legislative body that adopted the General Plan and has unique
expertise when interpreting and applying the plan in an adjudicatory
context. (Friends of Lagoon Valley v. City of Vacaville (2007) 154
Cal.App.4th 807, 816.) Courts will not substitute their view for the
agencys, nor reweigh conflicting evidence. The courts role is to decide if
the County considered the applicable policies and the extent to which a
project conforms to those policies. (Ibid.; see California Native Plant
Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 638 [[I]t
is the province of elected officials to examine the specifics of a proposed
project to determine whether it would be in harmony with the policies
stated in the plan. It is, emphatically, not the role of the courts to
micromanage these development decisions.].)
Since general plans have many competing goals and policies, an
agency is allowed to weigh and balance the plans policies. (Friends of
Lagoon Valley, supra, 154 Cal.App.4th 807, 816; see also San Franciscans

14

Upholding the Downtown Plan v. City & County of San Francisco (2002)
102 Cal.App.4th 656, 678; Wollmer v. City of Berkeley (2009) 179
Cal.App.4th 933, 941; Sequoyah Homeowners Assn. v. City of Oakland
(1993) 23 Cal.App.4th 704, 719.) A county has broad discretion in
deciding how to interpret its policies in light of the plans purpose.
(Friends of Lagoon Valley, supra, 154 Cal.App.4th at p. 816.) The
Countys general plan consistency finding can only be reversed if the
finding is based on evidence from which no reasonable person could have
reached the same conclusion. (A Local and Regional Monitor (ALARM)
v. City of Los Angeles (1993) 16 Cal.App.4th 630, 648.)
All of CHRPs arguments challenging the Countys General Plan
consistency findings fail. First, CHRPs repeated assertion that the Board
could not approve the project because it is industrial (AOB, 47, 48)5 is a
red herring. The RRD General Plan designation does not preclude
industrial uses. The RRD General Plan designation allows for extremely
intensive industrial uses, including large-scale geothermal power plants,
energy transmission facilities and pipelines, biomass energy facilities, oil
and gas production wells, mining, hardrock quarries, and lumber mills.
(AA 170-171.) By any measure, these uses are much more intensive and
industrial than a printing press and storage of religious texts. CHRP
ignores this fact, and instead argues that because industrial designations
5

AOB stands for Appellants Opening Brief.

15

exist in the General Plan, this implicitly means that industrial uses are not
permitted in the RRD designation. As demonstrated by the zoning code, the
County does not interpret or implement its General Plan in this manner, and
it is not required to do so.6
CHRP correctly says that County staff have stated that a press would
not be allowed in the RRD designation unless it was accessory to the
primary use (see AR 5986), but CHRP misunderstands and misstates the
reason why. A printing press in the RRD designation must be an accessory
use not because of the industrial nature of the use, but because a free
standing press would neither be a resource-based use nor a visitor serving
use. (See AA 160 [RRD permitted uses], see also AA 163 [section 26-10005, discussing visitor serving uses], and AA 168 [section 26-10-010(ii)]
and AA 172 [section 26-10-020(ss)], both permitting uses similar to uses
enumerated in the code.) Here, however, we do not have a free standing
press. Rather, the printing press is completely intertwined with the visitorserving religious retreat use.
Second, CHRP alleges that the General Plan required that the Board
find that the public services and infrastructure are inadequate, specifically
in terms of the road hazards and fire risks allegedly presented by the

CHRPs assertion that the County has redefined industrial is thus irrelevant to
General Plan compliance, and CHRP's assertion is also based on unfortunate crop
quoting of findings related to storage, fire, and the building code. (AOB 49; AR
45.)
16

printing press. CHRP fails to recognize the Boards imposition of

conditions of approval that address these risks. With respect to roads, the
Board found that the project will reduce the impact of truck trips by
placing limits on the number and time of day of trips and the size of
trucks. (AR 41.) The Master Use Permit imposed new conditions
limiting truck traffic related to sacred text and non-textual sacred art
production to a maximum of one, twenty-four foot long truck round trip per
day Monday through Saturday and no truck trips on Sundays. (AR 51,
emphasis added; AR 62 [condition 61].) The Master Use Permit also
imposes numerous fire-related conditions, including funding for training at
the local volunteer fire district and a new on-site fire truck with trained
firefighters. (AR 65-66 [conditions 79, 80, 81, 86].)
CHRP asserts that the County's fire risk findings are not supported
by substantial evidence. (AOB, 48-49.) CHRP's argument misstates
CHRPs burden, but it does not matter. (See San Francisco Tomorrow v.
City & County of San Francisco (2014) 229 Cal.App.4th 498, 514
[consistency determination must be demonstrated to be entirely lacking in
evidentiary support].) As is recited in the Real Parties brief, abundant
and more than substantial evidence supports the Boards approach to fire
risk. (RPOB,7 at 21-25; AR 44-45, 65 [condition 81], 135, 4430-4431,
12143-12145.)
7

RPOB stands for Real Parties Opening Brief.

17

Finally, CHRPs assertion that the County should have applied

General Plan Policy LU-6e (AOB 47, 50; AA 149 [policy LU-6e]) to the
site cannot overcome deference to the Boards proper exercise of its
discretion. General Plan Policy LU-6e addresses the siting of community
and public assemblies, which include traditional churches. The retreat
involves lodging, and is not like a traditional church. County staff
explained why Policy LU-6e does not apply to this use in the hearing
before the Board:
[T]hose standards related to places of religious worship, those were
added, and evaluated, and discussed at length during the general plan
update. In this case, though, this use was a retreat, not a church or a
place of public assembly and worship, so that we were comparing
this to lodging-type facility when it was originally approved. So
those standards were not applied to this [retreat].
(AR 4271.) Unlike a church, but very much like the resort that the
Buddhist retreat took over, the retreat is a visitor-serving lodging rather
than a community assembly. (See AA 163 [section 26-10-005 of the
County Code, allowing visitor-serving uses in the RRD zone].) The Board
reviewed and considered the distinctions between a public or community
assembly and a private retreat, and properly found it did not apply. CHRP
cannot carry its burden of showing that the Countys interpretation of its
own General Plan is entirely lacking in evidentiary support and that no
reasonable person would agree with the County.8

Policy LU-6e does not apply, but it bears note that the project is also not at all at
18

3. The Board Properly Confirmed That Under The

Countys Zoning Ordinance The Printing And
Printing Storage Remain Accessory To The Retreat
Use.
For zoning ordinance consistency determinations in quasiadjudicatory proceedings, a reviewing court looks to see whether
substantial evidence supports the findings, and uses its independent
judgment in interpreting the ordinance, while affording deference to the
agencys own expertise that derives from enacting and interpreting its
ordinance. (MHC Operating Limited Partnership v. City of San Jose
(2003) 106 Cal.App.4th 204, 219.)
Confirming that the religious printing press would still be an
accessory use to a religious retreat was well within the Boards discretion
under the Sonoma County zoning code. Sonoma County Code section 2602-140 defines accessory use as: [a] use of land that is related to and
subordinate to the primary use of the land or building located on the same
lot. In this case, the retreat and printing press were already in operation
and the relationship between them was abundantly documented. (See AR
odds with its various requirements. The project has obtained a use permit; is not
on agricultural lands designated Land Intensive Agriculture; does not result in
conflicts with agricultural or visitor serving uses; is consistent with Agricultural
Resources Element Policy AR-4a; avoids conflicts with other resource production
activities; has adequate public services and infrastructure available for the use; is
limited to 50% of the parcel or 10 acres, and is in keeping with the rural character
of the area. The site is not on a designated collector or arterial roadway, but it
does not need to be because this private retreat is not comparable to a church or
other place of community or public assembly.
19

cites in RPOB, footnote 7.) Volunteering at the presses is an integral

component of the retreat use. (AR 48.) Before the Board, retreat
participants discussed the retreat and the value they placed on their
participation in book production.
Addressing the subordinate to component, County staff explained
that the County made the accessory use determination for the printing
facility in 2004, and that staff sometimes uses informal rules of thumb for
making accessory use determinations, but that there is no set criteria. (AR
4102). Floor area is not always the appropriate metric. County staff
explained that the County also uses [n]umbers of people, numbers of truck
trips; things like that (AR 4102.)
The Board found that [v]olunteering or working in the religious
printing facility is an integral part of the retreat uses religious practice.
(AR 48.) The uses are thus related and intertwined, and the Boards finding
is supported by substantial evidence. (E.g., AR 4154-4163; see AR
citations in RPOB, footnote 7.) Recognizing that the uses are intertwined,
the Board found that the retreat use is the primary use based on six
objective factors establishing that the printing facility is subordinate and
appurtenant to the primary retreat use. (AR 48-49, 532.) These factors are:
(1) land the retreat use occupies 98.75% of the site while the printing
facility occupies 1.25%; (2) septic the retreat use consumes 95% of
capacity while the printing facility uses just 5%; (3) water demand 97.5%
20

for the retreat use as compared to 2.5% for the printing facility; (4) energy
consumption 76% (retreat) compared to 24% (printing facility); (5) hours
of operation 24 hours a day compared to limited hours; (6) traffic
94.27% compared to 5%; and (7) revenue the retreat use generates 89%
of the revenue while the printing facility generates just 11%, which is used
to off-set the cost of producing the sacred texts. (AR 48-49.) As the trial
court concluded: Obviously, there are many factors to consider in
determining whether a use is accessory and simple floor area is only one
of these. (AA 265.)
CHRP argues that the Board should have relied solely on building
floor area. (AOB 24.) However, as County staff explained before the
Board, there were sound policy reasons not to do so, including the fact that
storage is a relatively low intensity use for a building. (AR 4061.) CHRP
also suggests in passing that the changes to the occupancy limits on the
press removes the worker/housing ratio that had attempted to ensure the
press facility remained an accessory use. (AOB 13, 20.) This suggestion
is meritless. Both the press and the non-press occupancies were increased
with the Master Use Permit in similar proportions. (AR 51.)9 CHRPs
focus on the worker/housing ratio does not advance a valid challenge.
9

Ratna Lings original intent with the Master Use Permit was to increase the
press occupancy to what is allowed by code, but after discussion with Ratna Ling,
the County conditioned the occupancy limit below this level. (AR 51, 88198820.) The occupancy level was increased, but the hours and days of operation
were decreased.
21

Nothing requires the Board to take the approach CHRP advocates

for on appeal. Applying the County Codes accessory use definition was a
matter of policy that was within the Boards discretion. The evidence that
volunteering to work on the texts in the press facility is an integral part of
this religious retreat is abundant, and the Board did not abuse its discretion
when it found that the press continued to be an accessory use.
4. An Accessory Use Determination Is Not An Exemption
To County Code Requirements.
CHRPs apparent logic is that the printing press should not have
been approved because it would not have been approvable had it not been
an accessory use. There is no requirement in the General Plan or the
County Code that an accessory use be approvable as a primary or nonaccessory use. If this were true, the County would not need an accessory
use provision. Beyond this suggestion, CHRPs core argument is that the
County abandoned its practices to exceed the normal bounds of the zoning
laws, and that the applicant received special treatment. (AOB, 36, 19.)
CHRP even says the County in effect invented a new zoning category
peculiar to religious uses. (AOB, 43.)
CHRP is fundamentally mistaken. The County made findings
pursuant to its Zoning Code, which are routine when accessory uses are
part of a proposed use permit. (AR 48-49.) In making its special
treatment argument, CHRP asserts that other applicants would not be

22

allowed to have accessory printing facilities in the area (AOB, 46), and
repeatedly makes statements like the accessory designation is not
available to a non-religious owner or any other religion. (AOB, 22.)
These conclusions find no support in the record or the Countys process.
CHRPs argument is based on a misunderstanding of how the language in
the conditions relates to the adjudicatory process applicable to use permits.
Like this Court, the Board considers the facts of each particular case. (AR
49.) Because the Boards findings hinged on the accessory use
determination, and because the accessory use determination could be
different for new occupants (for whom, one can hypothesize, a lodging use
and a printing press use might not be related), the Board conditioned the
project such that the underlying determinations would have to be revisited
if new and different occupants took over the facility. (AR 62 [condition
65].) CHRP states: [The] accessory designation is unavailable to a
nonreligious entity or even a non-Tibetan Buddhist entity. (AOB, 35).
The Board did not opine on applications that were not before it, and there is
no basis in the record to raise concerns about other projects. Nor is CHRP
correct in its suggestion that the accessory use analysis was made as a
religious accommodation. Instead, the religious nature of the retreat and
the religious nature of the press were considered because they are, in this
particular case, reasons why the primary and subordinate uses are related.

23

5. CHRPs Zoning Argument Regarding Commercial

Uses Is A Red Herring.
CHRP asserts at some length that the Countys findings are
unsupported because the printing press is commercial. There is no
evidence that the Project is for profit, which is the standard the County used
in both 2004 and 2014. (AR 7, 9, 17, 20, 29, 30, 110.) In the context of
printing, volunteers produce the texts for a nonprofit organization. (AR
581-583, 999-1003.) Eighty-nine percent (89%) of the revenue from the
project site comes from the retreat use and 11% from the press use. While
98% of the total press output is given away, 2% of the press output
produces revenue. (AR 4163-64.) The 2% press output is from the sales of
religious texts produced in English. (AR 4163.) This figure is for sales,
not profit. (AR 4164.) The small amount of revenue generated from the
press is then used to support the production of more religious texts. (AR
4163.)
CHRP asserts that the finding in 2004 that the retreat use is similar
to a non-commercial club or lodge uses the wrong category of use and
[is] unsupported by any evidence. (AOB 48.) CHRP ignores the fact that
the Board only had to make a finding that the use is similar and [has a]
compatible nature to other uses explicitly permitted with a use permit.
(AA 172 [section 26-10-020(ss)].) The County applied its ordinance in a
manner that took into account the fact that a nonprofit organization has

24

taken over what was formerly a commercial lodging (which had also
previously been referred to as a lodge facility (AR 4489)). Lodging,
campgrounds, and non-commercial clubs and lodges are all permissible
uses in the RRD land use designation. (AR 47; see AA 170-171 [sections
26-10-020(v) and (ee)].) The Boards finding that the retreat continues to
be similar to enumerated uses is supported by the entire permit history and
common sense. (AR 6, AR 4597-4598, AR 46-47, AR 4489-4490.)
CHRP also completely ignores the fact that commercial uses are
permitted in the RRD zone. The use that preceded Ratna Ling was a resort
lodging that operated for profit. This was a permitted commercial use.
(AA [section 26-10-020(ee)].) The County required that the printing
facility be non-commercial so that it remains accessory to the primary use,
not because commercial uses are prohibited as CHRP suggests.
6. The County Did Not Exempt The Project From
Building Code Requirements.
CHRP makes scattershot and inexplicable arguments that the
Countys 2008 determination that the Wildland Urban Interface (WUI)
building code requirements do not apply to the site's accessory structures10
somehow violated the Countys General Plan. (AOB, 17, 26, 49.) First,
the statute of limitations to make the building code claim has lapsed.

10

CHRPs briefing is unclear, so it is important to emphasize that accessory uses

under the Zoning Ordinance and accessory structures under the building code
involve separate ordinances.
25

Second, the relevant County action with respect to the WUI requirements
was not unique to either Ratna Ling or the RRD General Plan designation
and zone as CHRP suggests. (AOB, 49.) Rather, when the County
amended Chapter 7 of the County Code, it exempted all accessory
structures in the County from Chapter 7A of the County Code, which is the
County Code chapter that contains the WUI requirements. (AR 76247625.) This County-wide legislative action was not particular to Ratna
Ling. The Chief Building Official, the official who interprets Chapter 7,
confirmed the 2008 determination that the County-wide exemption applied.
(AR 7624-7625.) The Chief Building Official is entitled to deference.
(Yamaha Corp. of Am. v. State Board of Equalization (1998) 19 Cal.4th 1,
8; MHC Operating Limited Partnership v. City of San Jose (2003) 106
Cal.App.4th 204, 219.)
7. The Project Did Not Involve A Change In Zoning, And
Accordingly Did Not Involve Spot Zoning.
CHRP asserts the Master Use Permit constitutes spot zoning. Spot
zoning occurs when an agency allows more or less restrictive zoning for a
parcel, or island, than surrounding parcels. (Foothill Communities
Coalition v. County of Orange (2014) 222 Cal.App.4th 1302, 1311, review
denied.) CHRP did not raise this issue in the trial court, and for good
reason. The approval did not include a legislative change in zoning, so the
spot zoning argument must fail. The County did not zone the project site

26

with different restrictions than surrounding parcels, and all but one
surrounding parcel is zoned RRD. (AR 858.)11

B.

The Countys Action Approving The Master Use Permit

Raises No First Amendment Or Establishment Clause
Issue.12

The First Amendment to the U.S. Constitution states: Congress

shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof. (First Amendment). The First Amendment
protects against three main evils: sponsorship, financial support, and active
involvement of the sovereign in religious activity. (Lemon v. Kurtzman
(1971) 403 U.S. 602, 612.) Article 1, Section 4 of the California
Constitution, in relevant part, similarly states: [t]he Legislature shall make
no law respecting an establishment of religion. (Establishment Clause.)
Since the Establishment Clause in our State Constitution does not provide
any greater protection than the First Amendment, these arguments will be

11

CHRP sites no authority for the odd proposition that spot zoning can occur
without a change in zoning because the argument finds no support in precedent or
logic. In Avenida San Juan Partnership v. City of San Clement, a city rezoned a
parcel to be more restrictive than surrounding parcels. The court found that this
was unpermitted spot zoning because the uses on the parcel would be less dense
than every parcel surrounding it and proceeded to a regulatory takings analysis.
(Avenida San Juan Partnership v. City of San Clemente (2011) 201 Cal.App.4th
1256, 1270.) Foothill Communities similarly involved a rezone that was found
not to be spot zoning. (Foothill Communities Coalition v. County of Orange
(2014) 222 Cal.App.4th 1302.)
12
As is set forth in the Real Parties' brief, CHRP's constitutional arguments are
procedurally barred. Without waiving the argument, in an abundance of caution,
the County will address their lack of merit.
27

addressed together in this brief. (East Bay Asian Local Development Corp.
v. State of California (2000) 24 Cal.4th 693, 718-719.)
California courts apply the three-prong Lemon test when deciding if
an act or statute violates the Establishment Clause. (East Bay at p. 706.)13
The three prongs are: (1) did the conduct have a secular purpose; (2) is the
principal effect of the governmental conduct to advance or inhibit religion;
and (3) does the governmental conduct create an excessive entanglement
with religion? (Id. at 706.) Notably, Lemon itself states: [f]ire
inspections, building and zoning regulations . . . are examples of necessary
and permissible contacts. (Lemon, supra, 403 U.S. at p. 614.) Ironically,
CHRP cites to many cases, but almost all uphold the government actions
because they were sound.
1. The County Had A Secular Purpose When It Applied
Its Facially Neutral Zoning Ordinance, Approved The
Project, And Confirmed That The Presses Are Still An
Accessory Use.
A governmental action can be invalidated for lacking a secular
purpose only when the activity was motivated wholly by religious
13

However, the U.S. Supreme Court has also stated: we have repeatedly
emphasized our unwillingness to be confined to any single test or criterion in this
sensitive area . . . [i]n two cases, the Court did not even apply the Lemon test.
(Lynch v. Donnelly (1984) 465 U.S. 668, 679.) East Bay applied the Lemon test
only after noting that it should not be interpreted as preventing accommodation.
(East Bay at p. 708, quoting Rowe v. Superior Court (1993) 15 Cal.App.4th 1711
[Under well-established principles of establishment clause analysis, the
government can legitimately relieve religious institutions of [a burden that] . . .
can rationally be seen as posing a significant deterrent to the free exercise of
religion.]). CHRP's notion that the Lemon test categorically prohibits special
treatment is wrong.
28

considerations. (Lynch v. Donnelly (1984) 465 U.S. 668, 680, citations

omitted, emphasis added.) The purpose of the government act must be
evaluated from the perspective of an objective observer who has taken
account of a comparable official act. (McCreary County v. ACLU of Ky.,
(2005) 545 U.S. 844, 860.) The purpose requirement prevents
government decision makers from abandoning neutrality and acting with
the intent of promoting a particular point of view in religious matters.
(Corp. of the Presiding Bishop of the Church of Jesus Christ Latter-Day
Saints v. Amos (1987) 483 US 327, 335.) Although the present action does
not involve a religious accommodation, alleviating a significant
government interference with the practice of religion, such as exempting
religious organizations from local landmark preservation laws, is a
permissible and neutral purpose under the Establishment Clause. (East
Bay, supra, 24 Cal.App.4th at p. 708.)
The California Constitution delegates a police power to counties.
(Cal. Const., art XI, 7.) This is the basis of every countys authority to
regulate land use matters through zoning ordinances and other tools. The
legitimate government interest and secular purpose of the Sonoma County
zoning ordinance is to regulate the public health, welfare and safety, and to
provide for the orderly development of land. (Sonoma County Code, 2602-010.)
Here, the County found that the retreat center, the primary use, is
29

allowed in the RRD zone because it is a visitor-serving use similar to

noncommercial lodges and would not result in the loss of timber,
geothermal, or aggregate resources. (AR 47.) The Countys application of
its zoning ordinance -- using objective criteria and supported by the
evidence before it -- has a legitimate secular purpose. The Countys
motivation was to follow its zoning ordinance, and nothing whatsoever
suggests the County was wholly motivated by religious considerations.
(Lynch v. Donnelly, supra, 465 U.S. at p. 680.) In considering Ratna
Lings application, applying the Countys facially neutral zoning ordinance,
and approving the project with 97 conditions of approval, the Board
exercised its legitimate secular purpose under the County Code.
2. Approval Of The Master Use Permit Neither Advances
Nor Inhibits Religion.
The second prong of the Lemon test is that the government action
must not advance or further religion. (Lemon, supra, 403 U.S. at p. 613.)
Like the first prong, this evaluation must be conducted from the perspective
of a reasonable observer. (Sedlock v. Baird (2015) 235 Cal.App.4th 874,
887, citations omitted.) Government runs afoul of this prong only through
sponsorship, financial support, and actions that actively involve the
sovereign in religious activity. (Corp. of the Presiding Bishop of the
Church of Jesus Christ Latter-Day Saints v. Amos, supra, 483 U.S. at p.
337.) Merely allowing a religious entity to advance its own religion is not

30

unconstitutional. (Ibid.)
Here, the County accepted a use permit application, considered and
analyzed the proposal at multiple public hearings, and approved the project
with conditions. This is the same process that all applicants for use permits
undergo. The County did not offer sponsorship or financial support, and
has never actively involved itself with any of Ratna Lings religious
activities.14
CHRP argues that approving the Master Use Permit had the primary
effect of advancing religion because the County abandoned its own zoning
ordinance, gave special benefits to Ratna Ling, and put the imprimatur of
the Countys power and prestige behind a religious practice. To the
contrary, the County held Ratna Ling to the same rigorous standard as any
other applicant. There were two hearings before the BZA (AR 38), two
hearings before the Board, and tremendous investments in time engaging
interested stakeholders. (AR 38-41.) The County only approved the
project after Ratna Ling spent significant time working with both the
County and its neighbors to resolve concerns, and after Ratna Ling made
adjustments to its proposed project. The County eventually approved a use
permit with 97 conditions of approval, which required significant annual
payments to the Timber Cove Fire Protection District, as well as annual
14

Ironically, CHRPs argument that the County should have treated the retreat
like a community church rather than a lodge (AOB 48) effectively argues that the
County should be less neutral toward religious uses.
31

payments equivalent to the Countys Transit Occupancy Tax. (AR 51-67.)

The County further imposed a condition requiring removal of the printing
presses if the property is conveyed to a non-Tibetan Buddhist affiliate.
This does not benefit the applicant at all, and instead establishes that the
printing use does not run with the land. CHRP argues the County advanced
religion by enabling Ratna Ling to generate substantial revenues from the
presses, a benefit other religious groups do not have. (AOB, p. 37.) Other
proposals were not before the County, but the record does not support the
premise. The presses do not generate substantial revenue as 98% of the
total press output is given away, free. (AR 4163.)
The record demonstrates that the County did not endorse, advance,
or confer any special benefit on the basis of religion. The County only
considered the religious particularities of the use because it was necessary
to evaluate the particularities of the project before it. (Lucas Valley
Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130.) The
County was not required to ignore the religious practices of the applicant in
evaluating the use, as CHRP suggests.
3. Approval of a Use Permit Specific to the Applicant Is
Not Excessive Entanglement.
The third prong of the Lemon test, excessive entanglement, requires
an analysis of the character and purpose of the benefitted institutions, the
nature of the governmental aid and the resulting relationship between the

32

government and the religious entity. (Lemon, supra, 403 U.S. at p. 615.) In
Lucas Valley, an orthodox Jewish congregation applied for a use permit to
convert a single-family home in a residentially zoned neighborhood to a
synagogue for religious uses. (Lucas Valley Homeowners Assn. v. County
of Marin, supra, 233 Cal.App.3d at 139.) The religious uses included life
cycle events, classes, holiday festivals, a ritual bath, and administrative
services. (Ibid.)
Neighbors challenged the use permit arguing that enforcing the
conditions of approval was excessive entanglement. The appellate court
disagreed and quoted the Lemon court: [f]ire inspections, building and
zoning regulations . . . are examples of necessary and permissible
contacts. (Lucas Valley at p. 150, citing Lemon at p. 614, emphasis in
original.) The conditions did not entangle the county in divining religious
content or otherwise passing on the religious affairs of the orthodox Jewish
community because they dealt with mundane matters, such as operating
hours, attendance or occupancy limits, noise, etc. (Id. at 151.) The court
noted that if enforcing conditions of approval to a use permit constituted
excessive entanglement under the First Amendment, no religious
organization could ever obtain a permit in any jurisdiction. (Id. at 152.)
The permit at issue here is a conditional use permit, much like the
approval at issue in Lucas Valley. The Countys role is that of a regulatory
agency adopting and enforcing permit conditions. The conditions address a
33

myriad of issues to protect the public health, welfare, and safety. (AR 5167.) Enforcing them does not require the County to participate in any
religion, divine religious content, or pass on any religious affair. They
merely help the County meet its objective, neutral, and secular
responsibility to protect the public health, safety, and welfare, and to
provide for the orderly development of land.
CHRP offers a parade of horribles in which there will be excessive
entanglement in the future because other religious organizations will seek
zoning exceptions, inviting political divisions along religious lines. (AOB
pp. 37-39.) Besides basing its argument on speculation about cases that are
not before this Court, CHRP ignores the fact that both religious and nonreligious entities can seek approval of accessory uses.
C.

The County Did Not Afford An Unconstitutional

Preference To Religion When It Approved The Project.

The California Constitution guarantees free exercise and enjoyment

of religion without discrimination or preference. (Cal. Const., art. 1, 6,
"No Preference Clause".) The California Supreme Court declined to
analyze a claim alleging that a statutory exemption from a landmark
preservation law violated the No Preference Clause because the exemption
satisfied the Lemon test, and there was thus no preference for or against
religion. (East Bay, supra, 24 Cal.4th at p. 719.) Here, no exemptions were
provided. There is no evidence that religious uses has received any

34

preference from the County, nor that religion in general was given any
preference by the approval.
CHRPs invitation to this Court to create new law with respect to the
No Preference Clause is foreclosed by existing precedent. CHRP cites an
appellate decision that predates the California Supreme Courts East Bay
decision by nine years, for the proposition that the No Preference Clause
provides greater protection than the Establishment Clause. (AOB, p. 39.)
The plaintiffs in East Bay made the same argument that CHRP now makes.
(East Bay, supra, 24 Cal.App.4th at p. 719.) The California Supreme Court
has already rejected it. (Ibid.)
CHRP urges this Court on policy grounds to create an independent
analysis for the No Preference clause because of the chilling effect of
RLUIPA.15 (AOB, p. 41, footnote 9.) Intentionally interpreting California
law to create a conflict with federal law is not a canon of construction
worthy of this Court's consideration, and it is a particularly unwarranted
suggestion on the facts of this case. CHRP suggests that Ratna Ling
brandished RLUIPA and bullied the County into giving it preferential
treatment, but the suggestion is contradicted by the record. The Countys
decision was based on the County Code, not concerns about RLUIPA.16 In

15

RLUIPA stands for the Religious Land Use and Institutionalized Persons Act
found at 42 U.S.C. 2000cc et seq.
16
CHRPs insinuation to the contrary is baseless, and CHRPs invitation to
factual speculation about unstated concerns about RLUIPA violates the basic rule
35

fact, the record reveals that County staff was advised that RLUIPA requires
all projects to be evaluated equally under County ordinances. (AR 475556.) The record also reveals that Ratna Ling clearly stated during the
proceedings that it has never once asked for special treatment just because
of the religious nature of its activities. It does not do so now. (AR
13603.)
In sum, CHRPs argument fails on two grounds: The No Preference
Clause does not preclude religious accommodation as CHRP suggests, but
the record shows that no issue of religious accommodation or "preference"
arose here in any event.
D.

The County Complied With The No Aid Clause When It

Approved The Project.

The No Aid Clause prohibits government from providing public

funds or granting anything to aid religion. (Cal. Const., art. XVI, 5.)
The clause bans any official involvement that has the direct, immediate
and substantial effect of promoting a religious purpose. (East Bay, supra,
24 Cal.App.4th at p. 721.) As set forth above, approving a use permit
under a neutral zoning ordinance does not constitute the provision of
improper aid to a religious group. (Lucas Valley Homeowners Assn., supra,
233 Cal.App.3d 130.)

that the Court will base its review on the Boards findings. (Fairfield v. Superior
Court of Solano County (1975) 14 Cal.3d 768, 779; Sierra Club v. Cal. Coastal
Commission (2005) 35 Cal.4th 839, 864.)
36

Rather than providing aid, the County has required compliance with
its use permit conditions, including the payment of a variety of fees. There
is no evidence that the County violated the No Aid Clause. Nonetheless,
CHRP argues that the County aided the Tibetan Buddhist religion by
allowing a printing facility because the accessory use is an exclusive
benefit unavailable to others. (AOB, pp. 45-46.) Any owner of RRDzoned property secular or religious can request an accessory use
determination, so there is no exclusive benefit vis--vis other landowners.
The fact that Ratna Ling is required to remove the press facility if the
Property is ever conveyed to a buyer not affiliated with Tibetan Buddhism
is not aid. (AR 62 [condition 65].) It means that only part of the permit
runs with the land, and that the land use entitlement obtained is accordingly
not marketable. There is no evidence that the County violated the No Aid
Clause, and CHRP's argument must be rejected.
V. CONCLUSION
After a lengthy process, the County properly approved the Master
Use Permit for sound reasons stated in the Boards findings. The County

37

respectfully requests that CHRPs appeal be denied and that the Superior
Courts decision be upheld.

Dated: November 24, 2015

Bruce D. Goldstein, County Counsel

/s/ Verne Ball
Verne Ball
Deputy County Counsel
Attorneys for Respondents
County of Sonoma, Sonoma County
Board of Supervisors, and Sonoma
County Permit and Resource
Management Department

38

Word Count Certification

Pursuant to California Rules of Court, Rule 8.204(c)(1), I certify that

the attached brief contains less than 14,000 words, according to the word
count of the Microsoft Word program used to prepare the brief. According
to the word count, this brief contains 8,663 words.
Dated: November 24, 2015

Bruce D. Goldstein, County Counsel

/s/ Verne Ball
Verne Ball

39

PROOF SERVICE
I am employed in the County of Sonoma, California; I am over the
age of 18 years and not a party to the within action; my business address is
575 Administration Dr., Rm. 105A, Santa Rosa, California.
On November 24, 2015, I served the attached RESPONDENTS
OPPOSITION BRIEF on the interested parties in the action by serving:
Janis Grattan
Provencher & Flatt, LLP
823 Sonoma Ave.
Santa Rosa, CA 95404
Email: jhg@provlaw.com
Attorneys for Appellant
Coastal Hills Rural Preservation
Michael R. Lozeau
Rebecca L. Davis
Lozeau Drury LLP
410 12th Street, Suite 250
Oakland, CA 94607
Email: Michael@lozeaudrury.com
Email: Rebecca@lozeaudrury.com
Attorneys for Appellant
Coastal Hills Rural Preservation
Tina Wallis
Clement, Fitzpatrick & Kenworthy
333 Mendocino Ave., Suite 200
Santa Rosa, CA 95403
Email: twallis@cfk.com
Attorneys for Real Parties in Interest
Jack Petranker and The Head Lama of
The Tibetan Nyingma Meditation Center.
XX By Electronic Service: Based on a court order or agreement of
the parties to accept service by electronic transmission, I caused the
documents to be sent to the persons at the electronic notification addresses
listed above. I did not receive, within a reasonable time afterwards, any
electronic message or other indication that the transmission was
unsuccessful.

40

XX By U. S. Mail: I placed each such sealed envelope, with

postage thereon fully prepaid for first-class mail, for collection and mailing
at Santa Rosa, California, following ordinary business practices. I am
readily familiar with the practice of Sonoma County Counsel for processing
of correspondence, said practice being that in the ordinary course of
business, correspondence is deposited in the United States Postal Service
the same day as it is placed for processing.
I served said document on the trial court by U.S. Mail, as indicated
above, as follows:
Superior Court of the State of California
County of Sonoma Appeals Division
600 Administration Drive
Santa Rosa, CA 95403-2878
I declare under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct, and that this declaration
was executed on November 24, 2015, at Santa Rosa, California.
/s/ Eileen Shired
Eileen Shired

41