Reprinted with the permission of LexisNexis.
SIERRA CLUB, Plaintiff and Appellant,
COUNTY OF NAPA et al., Defendants and Respondents. BERINGER WINE ESTATES et al., Real Parties in Interest and Respondents.
COURT OF APPEAL OF
COUNSEL: Thomas Neil Lippe, Michael W. Graf and Stephen E. Velyvis for Plaintiff and Appellant.
Dickenson, Peatman & Fogarty, David W. Meyer, Linda Emerson; Remy, Thomas, Moose & Manley, James G. Moose and Sabrina V. Teller for Real Parties in Interest and Respondents.
STEIN, Acting P. J.--Sierra Club appeals from a judgment denying its petition for writ of
mandate to overturn the decision of the Napa County Conservation, Development,
and Planning Department (Department) to certify an environmental impact report
Sierra Club appealed the Department's decision to the
Sierra Club then filed a petition for writ of mandate in the superior court. The superior court entered judgment denying the petition, and Sierra Club appeals, contending that the use permit violates the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) n2 and is fatally inconsistent with the Airport Industrial Area Specific Plan (the Specific Plan).
Standard of Review
The inquiry for the issuance of a writ of
administrative mandamus is whether the agency in question prejudicially abused
its discretion; that is, whether the agency action was arbitrary, capricious,
in excess of its jurisdiction, entirely lacking in evidentiary support, or
without reasonable or rational basis as a matter of law. (Code Civ. Proc., § 1094.5, subds.
(b) & (c); San Franciscans Upholding the Downtown Plan v. City and
"In the context of an administrative mandamus action challenging an agency's determination under CEQA or the applicable general [or specific] plan, 'substantial evidence' means 'enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.' [Citations.] Such substantial evidence may include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts, but not argument, speculation, unsubstantiated opinion, or clearly erroneous evidence." (San Franciscans, supra, 102 Cal.App.4th at p. 675.)
The Project, Beringer's Objectives and the Project's Impact on Wetlands
The project site, located in the Napa County Airport Industrial Area Specific Plan area, is zoned for general industrial use. Napa County's General Plan designates the property at issue for industrial land use, including "industry, limited commercial and related facilities which are ancillary to the primary industrial uses, agricultural, wineries, [and] no residential uses." The Specific Plan for the area calls for non-nuisance light industrial and office uses, specifically including "cooperage, bottling plants, and wine warehousing and distributing." The General Plan allows a maximum density for industrial uses of 50 percent coverage. The Specific Plan limits the maximum lot coverage for buildings to 35 percent.
The site is at the intersection of South Kelly and
Devlin Roads, is adjacent to the
Beringer proposes to establish a 1,424,400-square-foot facility on the site. 1,167,590 square feet of the facility will be used for warehousing and storing wine. Sixty thousand square feet will be devoted to office, administrative and laboratory uses, and 196,810 square feet will be dedicated to related uses, including grape crushing, blending, bottling and employee areas. Beringer plans to plant a 115-acre vineyard, to be irrigated by the winery's treated wastewater. It intends to construct three 1-acre ponds for treating winery wastewater and to construct a maximum of nine acres of storage ponds for the purpose of providing reclaimed treated wastewater to irrigate and frost-protect the vineyard and perimeter landscaping.
Beringer's stated objectives for the facility are to: (1) construct a new winery facility that will provide expansions for barreling, blending, bottling and warehousing to meet growing demands and limit operating costs associated with the expansions; (2) locate the new facility in close proximity to Beringer's existing St. Helena facility so that the same winemaking staff can efficiently and effectively manage both facilities; (3) locate the new facility in an area that supports the County's agricultural preservation goals; (4) reduce existing traffic and minimize future traffic along the County's highways; (5) protect wine quality and reduce truck traffic by minimizing bulk shipments of unfinished wines by providing a fermenting and barreling facility adjacent to blending operations; (6) protect wine quality and reduce truck traffic by minimizing bulk shipments of finished wines by consolidating blending and bottling processes; (7) minimize traffic impacts and operating costs by locating the distribution warehouse adjacent to the new bottling facility; and (8) provide a large enough site to support on-site wastewater treatment ponds and appropriate vineyard acreage for additional grape supply and wastewater recycling.
No Name Creek and much of the wetlands are located on the northern and northwestern portion of the site. The facility's buildings are to be clustered on the eastern portions of the site, but the project, as designed, still will result in the destruction of .461 of an acre of wetlands. As mitigation measures, Beringer plans to end cattle grazing in the area, restore No Name Creek, replant it with native vegetation and protect it by establishing 50-foot setbacks on both sides of the bank, permanently protecting approximately 20 acres as an aquatic/riparian corridor through the site. Beringer also intends to protect approximately 2.9 acres of wetlands located on the northeastern portion of the site by means of a buffer zone of 250 feet. Beringer will create an additional 1.14 acres of wetlands that also will be protected by a 250-foot buffer zone.
The No Project alternative considers the possibility
either that the site will remain undeveloped or that it will
be developed in some other manner consistent with the County's zoning
Under the Wetlands Preservation alternative, Beringer would build around the wetlands. The
In certifying the
The Department further found that the benefits from the project would significantly outweigh its significant effects on the environment. These benefits are identified as (1) habitat restoration; (2) reduced traffic; (3) promotion of the County's planning goals of having the Airport Industrial Area Specific Plan area as an industrial center; (4) preserving and enhancing the County's economy by ensuring that Beringer, "the longest operating winery in the County," remains headquartered in the County; (5) allowing Beringer to use the railway for transportation purposes, reducing vehicle trips and air emissions and promoting the use of alternative modes of transportation, and (6) maintaining a visual perception of open space by devoting 120 acres of the property to vineyards.
In rejecting Sierra Club's appeal of the Department's decision, the Board, too, found the analyzed alternatives to be infeasible. The Board made detailed findings of fact, including a finding that the facility could not be reconfigured to avoid filling in the wetlands while at the same time preserving Beringer's "objective of reducing energy consumption, operational temperature exposure changes, truck traffic, pollution, cost, noise and safety concerns by the proposed integrated layout of its buildings along the eastern boundary of the site immediately adjacent to rail and road access, including particularly [Beringer's] objective for major reduction of the existing and future traffic from its present scattered facilities along the congested Napa-St. Helena Highway 29 corridor." The Board also found that Beringer could not comply with the requirement of maintaining 250-foot setbacks from all existing wetlands without reducing the proposed vineyard acreage by approximately 30 percent, rendering Beringer unable to recycle and dispose of facility-generated wastewater through vineyard irrigation.
CEQA recognizes that the policy of the state is
"that public agencies should not approve projects as proposed if there are
feasible alternatives or feasible mitigation measures available
which would substantially lessen the significant environmental effects of such
projects ... ." (§
21002.) This policy is furthered by
"Under CEQA, the public is notified that a draft
As a means of furthering the state's policy, CEQA requires EIRs "to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided." (§ 21002.1, subd. (a).)
In the present case, the
Sierra Club, however, complains that the
In San Franciscans, supra, 102
Cal.App.4th 656, Division Three of this court rejected an argument similar to
that made by Sierra Club here. The court there found nothing in CEQA
The court pointed out, further, that it is the public
agency that bears the responsibility for the decisions that must be made before a project can go forward, including
determinations of feasibility and whether the benefits of a project outweigh
the significant effects the project will have on the environment. (San
Franciscans, supra, 102 Cal.App.4th at pp. 690-691, citing § § 21002.1, subds.
(b) & (c), 21081.) In addition, in section
21081.5, CEQA specifically provides that in making these determinations, the
public agency shall base its findings on substantial evidence in the record,
a provision reflecting an understanding that the decision-making entity will
not limit its review to matters set forth in the
Sierra Club suggests that the San Franciscans holding
on this point is dicta, noting that the record there included a comprehensive
analysis of the economic
impacts and feasibility of the proposed project and of five
alternatives addressed by the
Sierra Club contends that the holding in San Franciscans, and a similar holding by the Fifth District in Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1401 [133 Cal. Rptr. 2d 718], is inconsistent with the purpose of CEQA and with the Supreme Court's decision in Laurel I, supra, 47 Cal.3d 376.
Laurel I involved
a project to relocate a university's biomedical research facilities to a
building in a residential area. The regents of the university apparently had
considered several other sites for the facilities, but had rejected them as
being infeasible. The
In finding the
Nothing in Laurel I requires EIRs to analyze the economic feasibility of a particular
alternative or limits the evidence an agency can consider in deciding issues of
economic feasibility. The court found only that an
Sierra Club cites several cases finding EIRs to be inadequate for failing to analyze a project's
cumulative impacts. (E.g., Schoen v. Department of
Forestry & Fire Protection (1997) 58 Cal.App.4th 556, 573-574 [68 Cal. Rptr. 2d 343]; Mountain Lion Coalition v. Fish and Game
Com. (1989) 214 Cal. App. 3d 1043, 1052 [263 Cal. Rptr.
104].) That CEQA requires the public to be informed
of the cumulative impacts of a project on the environment does not support the
argument that the
Sierra Club complains that unless the
In short, Sierra Club may be correct that the public was not part of the debate of the economic feasibility of the project, but as we read CEQA, it does not require the public to be a part of that debate, although it requires the public to be informed if its officials choose economic feasibility over environmental concerns in approving a project.
Each party submitted material to the Board just before the hearing on Sierra Club's appeal from the Department's decision. Sierra Club submitted a letter from Robert Curry, Ph.D., an expert on wetlands, stating his opinion that the information about Beringer's plans to restore wetlands was insufficient to show that restoration efforts would be successful. Beringer submitted a letter from its vice-president explaining why it would not be feasible for Beringer to configure its facility in such a way as to preserve all wetlands on the site. The letter explains, generally, that Beringer sought to consolidate its warehousing, bottling and distribution operations, allowing it to eliminate costly and inefficient multiple trucking movements of bottled and unbottled wine between the five facilities currently supporting those operations. A smaller facility would not satisfy Beringer's needs. The configuration of the buildings was dictated in part by operational concerns, including the need for access to the railway spur along the east side of the property, the need to cluster the buildings as far as possible from the restored stream and wetlands to the west and the need to plant sufficient vineyards to handle the wastewater generated by the facility. Beringer's vice-president summarized the situation: "Given the site constraints imposed by No Name Creek, the wetlands to be preserved, the utilities easement bisecting the property, the railway location, and the required access from Devlin Road, the approved project is the only place on the property to construct a facility of the size and layout that we must have to meet our fundamental business needs of operational efficiency and consolidation, which is the justification for this large and expensive project."
Sierra Club complains that the Board relied, in part,
on the letter from Beringer's vice-president, arguing
that even if the Board was entitled to consider evidence that was not contained
As discussed above, we find nothing in CEQA requiring
We conclude, therefore, that the Board did not err by considering the letters submitted by Beringer and Sierra Club.
Evidence of Economic Infeasibility
CEQA does not require agencies to select the alternative course most protective of the environmental status quo. It does not and cannot guarantee that the agency's decisions will always be those that favor environmental considerations. (Laurel I, supra, 47 Cal.3d at p. 393; San Franciscans, supra, 102 Cal.App.4th at p. 695.) For purposes of CEQA review, therefore, "feasibility" does not mean that an alternative exists that could eliminate an environmental effect irrespective of difficulty or expense. It means that the alternative is "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors." (§ 21061.1; Guidelines, § 15364; Goleta II, supra, 52 Cal.3d at p. 565; Laurel I, supra, 47 Cal.3d at p. 402, fn. 10.)
One of Beringer's objectives in developing the project was to consolidate its operations and reduce its costs. As to the Wetlands Preservation alternative, Beringer made a persuasive argument that the project could not be reconfigured so as to allow it to install the buildings, the ponds and the vineyards and yet maintain required setbacks from No Name Creek and all wetlands. The Reduced Development alternative, while potentially protecting the wetlands, would not achieve the objective of consolidating Beringer's operations to minimize costs and reduce highway usage. On this, and other evidence, the Department, and later the Board, was entitled to find these alternatives to be infeasible.
Sierra Club asserts that in analyzing the Reduced
Development alternative, the
Sierra Club also complains that the findings that the alternatives were infeasible were conclusory. As discussed earlier, the findings of feasibility must be supported by the record. (§ 21081.5.) Although the record certainly could have included more evidence on the point, there is evidence, even without the Beringer letter, from which the Department and the Board were entitled to find that none of the alternatives were feasible. Finally, the Board's findings were supported by some 20 pages of findings and analysis, and cannot reasonably be characterized as conclusory.
It is of no matter that the evidence of economic infeasibility here was far less detailed than the evidence in San Franciscans, supra, 102 Cal.App.4th 656. The question is simply whether the agency's finding was supported by substantial evidence. Moreover, as was true of the appellants in San Franciscans, Sierra Club neither introduced, nor can it cite to, evidence suggesting that some alternative was in fact fully feasible. It follows that there is uncontradicted evidence that the project is the only feasible means of accomplishing Beringer's objectives.
Failure to Analyze Alternatives
Sierra Club also emphasizes that Beringer's
letter asserted that Beringer had "determined
that if the facility, as sized and sited, was not approved by
Sierra Club complains that there is no analysis of the feasibility of having Beringer
dispose of some or all of the project wastewater through the sewer
system, thereby eliminating the need for the ponds and some or all of the
vineyards and potentially protecting at least some of the threatened wetlands.
This complaint assumes that Beringer has no objective
other than consolidating operations. Beringer also
had the specific objective of putting vineyards on the site and irrigating them
with wastewater resulting from its operations. The
Consistency with Specific Plan
A project is consistent with a county's general plan (and any specific plan adopted to further the objectives of the general plan) " ' "if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment." ' [Citation.] A given project need not be in perfect conformity with each and every general plan policy. [Citation.] To be consistent, a [project] must be 'compatible with' the objectives, policies, general land uses and programs specified in the general plan. [Citation.]" (Families Unafraid to Uphold Rural Etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1336 [74 Cal. Rptr. 2d 1] (FUTURE), quoting from Corona-Norco Unified School Dist. v. City of Corona (1993) 17 Cal.App.4th 985, 994 [21 Cal. Rptr. 2d 803].)
In reviewing an agency's decision for consistency
with its own plan, "we accord great deference to the agency's
determination. This is because the body which adopted the general plan policies
in its legislative capacity has unique competence to interpret those polices
when applying them in its adjudicatory capacity. [Citation.]
Because policies in a general plan reflect a range of competing interests, the
governmental agency must be allowed to weigh and balance the plan's policies
when applying them, and it has broad discretion to construe its policies in
light of the plan's purposes. [Citations.] A reviewing
court's role 'is simply to decide whether the city officials considered the
applicable policies and the extent to which the proposed project conforms with those policies.' [Citation.]"
Here, the county designated the area at issue for "light industrial and office," specifically recognizing that "cooperage, bottling plants, and wine warehousing" are activities appropriate to the area. The Department and the Board found that the project was perfectly consistent with nearly every goal or policy in the Specific Plan. It is true that, as Sierra Club points out, the Specific Plan also provides that "[a]ll wetland and stream habitat shall be protected in their natural state, unless this is proved to be infeasible. Mitigation compensation shall be provided on a replacement basis for all such habitats impacted." Sierra Club argues that the destruction of the wetlands therefore renders the project fatally inconsistent with the Specific Plan.
Sierra Club's reading of the Specific Plan is too narrow. The Specific Plan allows impacts on habitat upon a finding that it is infeasible to preserve them in their natural state. The Department and the Board found that it was not feasible to protect the wetlands at issue. On this finding, the approval of the project was perfectly consistent with the Specific Plan.
Sierra Club's argument, again, is with the County's finding that it was infeasible to protect the wetlands. They interpret the term "infeasible" as meaning "impossible," suggesting that the Specific Plan requires preservation of the wetlands if it can be done, irrespective of difficulty or cost, and irrespective of whether the additional difficulty or cost will prevent the project from going forward.
We find no basis in the wording of the Specific Plan itself, or in the law, justifying such a narrow reading of the term "feasible." First, Sierra Club's interpretation ignores the second part of the stated policy. If the term "feasible" means "possible," few projects would go forward that impact wetlands because it nearly always would be possible to protect the wetlands. By providing for mitigation compensation for impacted habitats, however, the plan clearly contemplates that development will occur even though it will have effects on streams and wetlands.
Second, as noted above, general and specific plans attempt to balance a range of competing interests. It follows that it is nearly, if not absolutely, impossible for a project to be in perfect conformity with each and every policy set forth in the applicable plan. An agency, therefore, has the discretion to approve a plan even though the plan is not consistent with all of a specific plan's policies. It is enough that the proposed project will be compatible with the objectives, policies, general land uses and programs specified in the applicable plan. (Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal. App.4th 704, 719-720 [29 Cal. Rptr. 2d 182]; and see San Franciscans, supra, 102 Cal.App.4th at p. 678, applying the same principle to a project to demolish an historically significant building.) In Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261 [15 Cal. Rptr. 3d 176], for example, the court found no inconsistency between a general plan's policy of striving to improve a city's jobs-to-housing relationship and a project creating more jobs than housing. The court found that it was enough that the public agency weighed pros and cons to achieve an acceptable mix. (Id. at pp. 1268-1269.) The Specific Plan presumably was drafted with these principles in mind, and used the term "feasible" to allow the County's agencies a measure of flexibility in their decisionmaking.
Finally, as discussed earlier, under CEQA,
"feasibility" means "capable of being accomplished in a
successful manner within a reasonable period of time, taking into account
economic, environmental, social, and technological
21061.1; Guidelines, §
Sierra Club cites FUTURE, supra, 62 Cal.App.4th 1332. The general plan there specified without exception that the designation "low density residential" would be restricted to certain areas. The agency, however, approved a project proposing to develop "low density residential" in another area, thereby approving a project that directly conflicted with a mandatory policy set forth in the plan. It followed that the agency's implied finding of consistency was not supported by substantial evidence. Here, the plan specifically allows development that will impact wetlands when it is not feasible to protect those wetlands, allowing the agency to decide whether protection of the wetlands in a project is or is not feasible. The Department and the Board found that protection of the wetlands was not feasible. Substantial evidence supports that finding. FUTURE, therefore, is inapposite.
As Sierra Club contends, the
The judgment is affirmed. Defendants are awarded their appellate costs.
Swager, J., and Margulies, J., concurred.
n1 The final
n2 Except as specifically noted, all further statutory references are to the Public Resources Code.
n3 One rejected alternative considers a site that is well
located but not large enough for Beringer's purposes.
In addition, there are significant wetland areas within the property. A second
alternative is well located and large enough, but is not for sale. A third
alternative contemplates expanding Beringer's
existing facilities at another location. The
n4 References to Guidelines are to California's CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.)
n5 One point that tends to cause some confusion arises
out of the need to limit the number of alternatives discussed in the
n6 That Sierra Club submitted its own letter also disposes of its argument that the Board violated the County's code by accepting and considering Beringer's letter. Napa County Code section 2.88.010 et seq. governs appeals to the Board from the decision to grant a permit. Section 2.88.090, subdivision A provides that the Board shall exercise its independent judgment in determining whether the decision appealed was correct. Subdivision A further provides that the board's decision shall be based on a review of the record and such additional evidence as may be presented which could not have been presented at the time the decision appealed from was made. Subdivision B qualifies that provision, providing upon request at the hearing by the appellant or any interested party, and a showing of good cause, the board may permit additional evidence to be presented which could have been presented at the time the decision appealed from was made but was not or may order that the matter be heard de novo.
Sierra Club, characterizing Beringer's letter as "additional evidence," complains that Beringer made no showing of good cause for failing to produce that evidence prior to the Department's decision. We view Beringer's letter more as argument than as evidence, although it refers to and summarizes evidence. In any event, Napa County Code section 2.88.090, subdivision A, which also permits the Board to order that the matter be heard de novo, is broad enough to allow the Board to consider any and all evidence it believes to be relevant to the questions before it. Moreover, again, Sierra Club waived any procedural defect when it asked the Board to consider Dr. Curry's letter.
n7 Beringer also produced evidence that it was more cost effective to recycle the wastewater than to pretreat the wastewater generated at its facility, dispose of it through the sewer system and purchase water to irrigate and protect the proposed vineyard. Beringer would have to pay a one-time fee of approximately $ 6 million to hook into the system, and would be charged for the continued use of the system. In addition, as Beringer would be required to pretreat any water disposed of through the sewer system, it still would need treatment ponds and holding ponds.