Académique Documents
Professionnel Documents
Culture Documents
_______________________________
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 Elliot Lee Daum, presiding
(Case no. SCV 255694)
__________________________
APPELLANTS REPLY BRIEF
_________________________
PROVENCHER & FLATT 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
TABLE OF CONTENTS
INTRODUCTION ................................................................................ 7
KEY UNDISPUTED FACTS AND ADMISSIONS................................ 8
ARGUMENT ......................................................................................... 9
A.
B.
2.
3.
4.
5.
2.
3.
4.
5.
6.
7.
8.
9.
10.
C.
D.
E.
1.
2.
3.
4.
2.
CONCLUSION .................................................................................... 50
TABLE OF AUTHORITIES
California Cases
Bayside Timber Co. v. Board of Supervisors (1971)
20 Cal.App.3d 1 .............................................................................. 20
California Farm Bureau Federation v. California Wildlife
Conservation Bd. (2006) 143 Cal.App.4th 173 ............................... 42
County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.
App. 4th 1544 ............................................................................ 40, 39
E. Bay Asian Local Dev. Corp. v. Cal. (2000) 24 Cal. 4th 693 .. 26, 34
Estate of Powell (2000) 83 Cal.App.4th 1434.................................... 23
Evans v. City of San Jose (2005) 128 Cal.App.4th 1123 ................... 10
Families Unafraid to Uphold Rural etc. County v. Board of
Supervisors (1998) 62 Cal.App.4th 1332 ........................................ 50
Fisher v. City of Berkeley (1984) 37 Cal.3d 644 ............................... 20
Foothill Communities Coalition v. County of Orange
(2014) 222 Cal.App.4th 1302......................................................... 35
Fox v. Los Angeles, 22 Cal.3d 792 ..................................................... 33
Jimmy Swaggart Ministries v. State Bd. of Equalization
(1988) 204 Cal.App.3d 1269.......................................................... 48
Lucas Valley Homeowners Ass'n v. County of Marin
(1991) 233 Cal. App. 3d 130 ...................................................... 32, 33
Moss v. County of Humboldt (2008) 162 Cal. App. 4th 1041 .......... 37
Neighbors for Smart Rail v. Exposition Metro Line Construction
Authority (2013) 57 Cal. 4th 439 ................................................... 45
Neighbors in Support of Appropriate Land Use v. County of
Tuolumne (2007) 157 Cal.App.4th 997 ..................................... 35, 36
People v. Brisendine (1976) 13 Cal. 3d 528 ....................................... 34
Pocket Protectors v. City of Sacramento (2004)
4
I.
INTRODUCTION
The County asserts it properly applied religion as a factor in
ARGUMENT
A.
1.
The Planning and Zoning Law limits issues that may be raised in a
proceeding to attack a public agency's finding or determination to those that
were previously raised in a public hearing or in written correspondence
delivered to the agency. (Gov. Code 65009 (b)(1)) The objections should be
sufficiently specific so as to allow the agency the opportunity to evaluate and
respond to them. (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123,
1138) The exact issue need not be raised. (Woodward Park Homeowners
Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712)
What is the issue? Petitioners constitutional argument is that the
County violated the constitutional principle of neutrality toward religion.
This principle requires governmental neutrality between different religions
and between religion and non-religion. A government action violates the
principle if it lacks a neutral, secular purpose, or advances the religion by
affording it special treatment, or lends symbolic support or prestige to a
groups religious views, or by excessive administrative or political
entanglement such as government opening itself up to successive requests
for religiously-motivated exceptions, inviting political division along
religious lines. (AOB 34-46)
The Countys violations of the constitutional neutrality principal were
specifically described by Petitioner and other citizens, countered by proProject attorneys, and debated among the Board of Supervisors during the
administrative process. The AR citations already provided (AOB 19, 43) are
supported by additional record evidence summarized below.
Below is a comprehensive summary of relevant comments.
2006 PRMD and Petranker communication
AR4756-57
Petranker privately tells PRMD that under federal law religious
projects are evaluated by a different set of standards. County Counsel
10
advises that RLUIPA requires all projects be equally evaluated under the
criteria of the zoning code.
2012 comments on MND and BZA proceedings
AR1168
Tsering Gellek, the head lamas daughter, comments that the
monumental task of preserving the sacred texts of Tibet is
protected under Americas cherished freedom of religion. These
freedoms have not been abstract ideals but are the lifeblood of our
work.
AR753, 755
Friends of the Gualala River objects to special case treatment for
the religion and concludes these private interests should not override
public interest review. The precedent this proposal establishes for
county land use planning is atrocious: it provides incentive for taxexempt religious organizations to acquire relatively inexpensive real
estate outside urban industrial areas and establish industrial
operations, with after-the-fact, ad hoc zoning changes and piecemeal
permits. This is contrary to the public interests protected by the
General Plan.
AR757
Citizen comments that, posing as a religious retreat center, Ratna
Ling created an industrial complex focused on printing books; this
sets a precedent for other development projects only marginally
connected to the land.
AR782
Citizen objects to the Countys favoritism toward Petranker/TNMC
in allowing industrial uses and forgiving code violations. Its a taxexempt religious organization with huge financial backing the
11
12
for nonprofit status as a church and have an ancillary use because its
important to my faith.
2014 comments related to CHRPs appeal to Board of Supervisors
AR9193
A CHRP letter objects to special dispensation for
Petranker/TNMC:
The issue is whether Sonoma County should allow
manufacturing and warehousing in RRD zoning as
special dispensation to a religious organization
simply because they claim that manufacturing and
warehousing is a religious practice ... Land use laws
should apply equally to both religious and nonreligious landowners.
The claimed special dispensations by the County were: ignoring
the 300-page code enforcement complaint filed by CHRP;
converting temporary warehouses to permanent status based on
religious use; failing to apply the zoning code equally; allowing an
80% increase in site occupancy that a non-religious landowner
would not receive; and calling lavender eye pillows sacred art,
allowing commercial manufacturing of lifestyle products at the site.
(AR13516)
In a letter, CHRP states that while the Rimpoches visions of printing
and storing 12 million books at the Ratna Ling site may be an
imperative to his religious sect, religious visions should not
determine land use policy for Sonoma County.
AR1362-67
AR2096
CHRPs Master Issue Statement for the appeal says everyone, no
matter how rich or devout, must comply with zoning regulations.
Civil laws apply to all citizens equally, no matter what their faith. The
evolving mandates of one religious sect should not alter land use
regulations or zoning enforcement in rural Sonoma County.
AR8853-55
Citizen objects to Spot Zoning.
April 8, 2014: Religious Freedom Statement
AR13603
Petrankers counsel delivers to the Board of Supervisors a Statement
invoking the religious freedoms protected by the Federal and California
Constitutions and RLUIPA. The letter denies TNMC asked for any special
treatment because of its religious activities.
April 8, 2014 Board of Supervisors hearing
AR4082
At the outset, Supervisor Zane objects to injecting religion into land
use. So you're saying that it's kind of waived when it comes to
religious land use? I mean, can anybody set up some type of factory
and say it's for religious purposes and have that waived? I mean,
that's the question.
AR4110-11
Disclosing she had once been paid professional clergy, Supervisor
Zane states: I support the U.S. [C]onstitutions separation between
church and state we have a responsibility to support that
constitution and to make a decision about land use its about land
use.
AR4250-52
14
AR4142
Precedent could bring claims of unequal treatment.
AR4196
Head lama determines what is sacred, but county regulations are
based on what you do on the land, not what you believe.
AR4198
Believes in right of religious freedom, but equitable treatment of the
community must be protected; Ratna Ling has misused its religious
status.
AR4200-01
Grievous error to grant special dispensation to a religion.
AR4204-05
The press work benefits the world.
AR4213
Different land use for wealthy tax-exempt organization with legal
team is unfair to neighbors who followed the rules.
AR4223-25
A critic of the Project with a loving history with Buddhism: this
doesnt fit what he knows about Buddhism; the books belong in
Berkeley; zoning laws should be uniformly applied; Sonoma County
gains nothing by caving in to this disregard of planning regulations.
AR4227-28
Calls for equitable treatment; the BZA considers a religious
organization a special entity, the rest of us are not.
AR4229
Calls for equal treatment under the law; granting exception to land
use regulations is not in the public interest.
AR4232
16
AR12840
Citizen objects to special privileges to one landowner to capitalize
on coastal hills area, trucking urban risks to a forested, fire-danger
zone.
June 24, 2014 final hearing
AR4338-39
Supervisor Zane questions the rationale for industrial storage at the
Ratna Ling site, given the fire hazard: So why do the texts need to
be stored at this location? Staff states this was a religion-based
decision:
[I]t is part of their traditional Tibetan Buddhist
practice. It is an honor for people to be involved in
the wrapping of the sacred texts It is part of their
religion.
(AR4457-58)
Supervisor Carrillo praises the religious aspect of the Project, calling
it historic, of international renown, and a lasting contribution to
the Tibetan Buddhist religion and culture. He is pleased the Board is
making possible this monumental project.
AR4466
Supervisor Zane wraps up her comments by warning about the
precedent set by approval of this charismatic project.
Public comments feature differing opinions about interjecting
religion into the land use decision.
AR4408-4409:
Curtis Caton, a constitutional lawyer who is helping TNMC with its
Project application (AR8985), states: Ratna Ling is conducting
religious practice there in the form of the production of the sacred
texts.
AR4374
18
19
2.
21
3.
Countys accessory use findings for the press expansion and the
storage structures ran in 2004 (approval of press facility) and 2008
(approval of temporary structures). It also asserts interference with
Petranker/TNMCs vested rights makes any challenge untimely.
(ROB13; AA182)
The Countys accessory use findings in 2004 and 2008
concerned different projects than the current Project. The 2004
project was a monastic retreat with a modest-sized noncommercial
press facility including storage, which the County considered about
the limit of what is reasonable for an accessory use. (AR6-7, 4755)
The 2014 Project, among other things, triples occupancy of the press
facility, lifts the 100,000 book-production limit, and authorizes
(clarifies) the commercial sale of products manufactured in the
press facility. (AR36-37) In scale and purpose, this is a markedly
different accessory use than the 2004 project. Thus, in 2014 staff
advised that, to approve the Project, a finding must be made that the
printing facility, including storage, is an accessory use. (AR532)
The 2008 project for temporary storage was an interim
solution while Petranker pursued the massive caves proposal (which
he later dropped). In 2008, County staff granted Petranker a
categorical exemption from CEQA for the temporary structures
and determined they were accessory. 4 (AR865, 7625) The current
Project is a different project that proposes to make the structures
3
4
22
23
5.
24
B.
this case whether the Countys 2014 accessory use finding, leading
to approval of the drastic press expansion and massive storage, was
based on the importance of certain religious activities to the TNMC
religion. Instead, the ROB argues about a purported
accommodation as well as the rigorous process provided. The
ROBs assertion that the Countys action was a permissible religious
accommodation is paired with its admission that no accommodation
occurred. (28, fn 13, 29, 36) This logical fallacy must be rejected. As
for the existence of a process, that is beside the point. The issue here
is whether there was unconstitutional religious favoritism in
approving the Project.
1.
Standard of review
In mandamus actions, the appellate court applies the de novo
25
28
quotes Lynch for the idea that a purpose must be wholly motivated
by religious considerations in order to violate the Establishment
Clause. (Lynch v. Donnelly (1984) 465 U.S. 668, 680) The Supreme
Court rejected this interpretation as timid because it fails to
recognize that a governmental entity can proffer a non-religious
purpose and still violate the Establishment Clause. (McCreary
County v. ACLU (2005) 545 U.S. 844, 864-65) A governmental
One can foresee a Rastafarian organization applying to grow and
store marijuana in the storage structures, or a sectarian business
seeking equal treatment.
29
7.
31
like the one found in Lucas, and that since the County is a regulatory
agency adopting and enforcing permit conditions, there is no
entanglement. On both counts, it is wrong.
First, the conditional permits are distinct. In Lucas, the type
of use approved, a synagogue in a residential neighborhood, was
specifically allowed with a use permit. (Lucas Valley Homeowners
Ass'n v. County of Marin (1991) 233 Cal.App.3d 130, 140) Here, by
contrast, we have an accessory use designation that has been
utilized to permit a use admittedly not otherwise allowed in the RRD
category.
The ROB denies that political entanglement has occurred
because any entity can seek approval of accessory uses. It doesnt
take an inferential leap to understand that the approvals of similar
projects as mandated under Establishment Clause neutrality would
32
33
code. (Ibid.) The court held this exception violated Gov. Code
65852. (Id. at 1015)
As in our case, the neighboring property owners in Tuolumne
protested greatly to the special treatment received by the exempted
property. (Id. at 1002-1003) Although recognizing that county
governmental zoning control is broad, the court looked to the
limitations placed on that control by state law, including 65852.
(Id. at 1008) Uniformity, the court recognized, is critical in
preventing the unjustified variance awards that can subvert the
reciprocity necessary to uphold zoning regulations. (Id. at 1009) In
that case, as in ours, the County ignored uniformity and instead let
one parcel and owner off the hook. (Ibid.) it is precisely this lack of
uniformity and grant of special benefits that Petitioner and other
neighbors have objected to all along in this case. The spot zoning
occurred when the County chose to make a zoning decision that
exempted TNMC from the general regulations and broke the rule of
uniformity.
D.
1.
37
38
The fire district is one of the last all volunteer districts in the
County. It does not have the training or equipment to combat an
industrial fire and protect the people, property and natural resources
within its district. (AR1072, 12705, 12702, 12711, 12713, 12717-19) It
does not have a reliable or adequate Type 1 engine that would be
needed to take on a major industrial fire. Its engines are over 30
years old and would not pass a NFPA/ISO pump test without
overhaul. (AR12705, 12718)
The fire districts evidence is based on expertise and local
knowledge of the area and the Project. It establishes a fair argument
that the Project may result in significant environmental impacts.
This question is one of one of law. (Pocket Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903, 928)
The RPOB 39-40 without citing to the record contends
the fire district officials gave biased and unreliable evidence. The
County made no findings against the credibility of the fire officials.
Their statements are legitimate and must be deemed substantial
evidence supporting a fair argument. (County Sanitation Dist. No. 2
v. County of Kern (2005) 127 Cal. App. 4th 1544, 1597)
The RPOB 39-40 points to County-imposed conditions and
mitigation measures, saying these justify the conclusion that the
Project will not expose people or structures to a significant risk
involving wildland fires. If substantial evidence exists to support a
fair argument that a significant effect may result from the project,
the agency is required to prepare an EIR, irrespective of whether
there is other substantial evidence in the record to the contrary. If
substantial evidence establishes a reasonable possibility of a
significant environmental impact, then the existence of contrary
evidence in the administrative record is not adequate to support a
39
40
2.
41
43
1.
code as allowing accessory uses that are inconsistent with both the
permitted primary use (similar to a noncommercial club or lodge)
and the overall RRD designation, based on nothing more than the
importance of those accessory uses to the entity holding the primary
use permit. According to the ROB, the religious desires of a
particular religious group are sufficient to make a consistency
finding. (ROB16, 19-20, 22, 23) The County interprets its code as
having no set criteria for an accessory use determination, but if an
accessory use is integral to the religious practice of the primary
use, a subordinate finding can follow. (ROB20)
Inasmuch as the County allows religious considerations to
override the neutral zoning code, this is abuse of discretion because
religious favoritism is illegal, and the County is not proceeding in the
manner required by law. Furthermore, the Project approval findings
represent an unreasonable interpretation of the Countys land use
47
merits, but this scale of use sets a precedent that will be difficult to
deny to another applicant. (See III.A.1.; III.B.5. supra)
2.
Standard of review
The ROB goes to great lengths to describe the standard of
review, without ever actually naming it, and alleges that CHRP asked
the Court to ignore the deferential standard. On the contrary, the
AOB32 correctly identified the abuse-of-discretion standard of
review and acknowledged that a General Plan consistency
determination is subject to a strong presumption of regularity. The
ROB dances around the topic with quotes that merely describe the
standard of review, but, as acknowledged in every single case cited
by the ROB, the standard is abuse of discretion. Even under this
deferential standard which allows a decision to be overturned if
the County did not proceed legally, if the determination is not
supported by the findings, or if the findings are not supported by
substantial evidence the Countys actions fail. (Families Unafraid
to Uphold Rural etc. County v. Board of Supervisors (1998) 62
Cal.App.4th 1332, 1338)
VI.
CONCLUSION
For the foregoing reasons, Petitioner respectfully requests the
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51
DECLARATION OF SERVICE
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 December 14, 2015, I served the following documents:
APPELLANTS REPLY BRIEF
on the interested parties in the action identified below by electronic
means as follows:
ADDRESSED TO:
Verne Ball
Office of County Counsel
575 Administration Drive, Room
105A
Santa Rosa, CA 95403
Tina Wallis
Clement, Fitzpatrick & Kenworthy
333 Mendocino Avenue, Suite 200
Santa Rosa, CA 95403
Michael Lozeau
Rebecca Davis
Lozeau Drury LLP
410 12th Street, Suite 250
Oakland, CA 94507
s/ Janis H. Grattan
Janis H. Grattan #68139
52