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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)
REAL PARTIES IN INTEREST OPPOSITION BRIEF

TINA WALLIS
State Bar No. 194729
twallis@cfk.com
Clement, Fitzpatrick & Kenworthy
3333 Mendocino Avenue, Ste. 200
Santa Rosa, CA 95403
(707) 523-1181
Attorneys for Real Parties in Interest,
Jack Petranker and The Head Lama of
the Tibetan Nyingma Meditation Center

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

TINA WALLIS
State Bar No. 194729
twallis@cfk.com
Clement, Fitzpatrick & Kenworthy
3333 Mendocino Avenue, Ste. 200
Santa Rosa, CA 95403
(707) 523-1181
Attorneys for Real Parties in Interest,
Jack Petranker and The Head Lama of
the Tibetan Nyingma Meditation Center

Pursuant to California Rules of Court, rule 8.208, Real Parties in


Interest, Jack Petranker and Head Lama of the Tibetan Nyingma Meditation
Center, to the best of their knowledge hereby identify the following
interested entities or persons in regard to this appeal:
1.

Jack Petranker and

2.

Head Lama of the Tibetan Nyingma Meditation Center.

DATED: November 24, 2015


CLEMENT, FITZPATRICK & KENWORTHY

By: /S/________________________________
TINA WALLIS
Attorneys for Real Parties in Interest,
Jack Petranker and Head Lama of the
Tibetan Nyingma Meditation Center

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................. 8
II. JOINDER IN COUNTY BRIEF ......................................................... 9
III. STATEMENT OF FACTS ................................................................. 9
A. Timberhill Resort. ............................................................................... 9
B. Ratna Lings Due Diligence, Acquisition and 2004 Use Permit. ....... 9
C. 2008 Cave Application. ..................................................................... 13
D. Zoning Permit for the Sacred Text Storage Membrane Structures... 14
E. 2008 Use Permit for a Reservoir. ...................................................... 15
F. Master Use Permit Application. ........................................................ 15
G. Superior Court Proceeding. ............................................................... 25
IV. ARGUMENT ..................................................................................... 25
A. CHRPs Constitutional, Spot Zoning, and CEQA Arguments
Should Not be Considered Because of Fatal Procedural Defects. ..... 25
1. CHRP cannot raise its constitutional arguments for the first time on
appeal when CHRP failed to exhaust these arguments during the
administrative process and even failed to raise them before the
Superior Court. ..................................................................................... 26
2. CHRPs constitutional and spot zoning claims are prohibited
because they are factual issues that were not raised with the trial court.
....................................................................................................... 27
3. CHRP committed a fatal procedural error by failing to identify the
evidence favorable to the County and show why that evidence is
inadequate. ........................................................................................... 28
B. The County Exceeded CEQAs Requirements by Preparing the
SMND. ..................................................................................................... 29
1. The MUP was a modified project, not a new project. ................... 30
2. There were no significant changes in circumstances or impacts, so
only an addendum was required. The County should not be penalized
for doing more than CEQA requires in order to ensure maximum
4

public input. ......................................................................................... 34


3. The substantial evidence standard applies to the Countys decision
to prepare the SMND. .......................................................................... 36
4. The Project easily meets the substantial evidence standard for
subsequent environmental review. ....................................................... 39
5. The fair argument standard does not apply, but even if it did, the
SMND passes muster. .......................................................................... 39
C. CHRP's Baseline Argument is Wrong, but the Argument Would
Fail Even if it was Correct Because Petitioner Cannot Show
Prejudice. ................................................................................................ 40
D. CHRP's Piecemealing Argument is Meritless. ............................. 42
V. CONCLUSION ................................................................................... 43

TABLE OF AUTHORITIES

CASES
Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650 .... 30, 31, 32
Al Larson Boat Shop v. Board of Harbor Commissioners (1993) 18
Cal.App.4th 729 ................................................................................. 29, 38
Associated Home Builders, Inc. v. City of Livermore (1976) 18 Cal.3d 582
................................................................................................................. 43
Barthelemy v. China Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609
........................................................................................................... 29, 38
Bayside Timber Co. Board of Supervisors (1971) 20 Cal.App.3d 1 ........... 28
Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467 .. 31, 36, 38, 41
California Native Plant Society v. City of Rancho Cordova (2009) 172
Cal.App.4th 603 ....................................................................................... 37
Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149
Cal.App.4th 91 ........................................................................................ 29
Communities for A Better Environment v. South Coast Air Quality
Management District (2010) 48 Cal.4th 310 ..................................... 40, 41
CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488 ................... 30
Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261 .................. 29
Environmental Council of Sacramento v.City of Sacramento (2006) 142
Cal.App.4th 1018 ..................................................................................... 29
Evans v. City of San Jose (2005) 128 Cal.App.4th 1123 ............................ 26
Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359............................. 29
Hale v. Morgan (1978) 22 Cal.3d 388 ........................................................ 28
Hershey v. Reclamation Dist. No. 108 (1927) 200 Cal. 550 ....................... 27
Jenner v. City Council of Covina (1958) 164 Cal.App.2d 490 ................... 27
Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192 ..........
..................................................................................................... 29, 32, 36
Laurel Heights Improvement Assn. v. Regents of Univ. of Cal. (1988) 47
Cal.3d 376 .................................................................................... 37, 38, 39
Mani Brothers v.City of Los Angeles (2007) 153 Cal.App.4th 1385 ... passim
Oakland Heritage Alliance (2011) 195 Cal.App.4th 884, 900 ................... 37
Perley v. Board of Supervisors (1982) 137 Cal.App.3d 424....................... 39
Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288 ..... 32, 33
Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412
........................................................................................................... 27, 28
Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523 ....................... 26
Sierra Club v. San Joaquin Local Agency Formation Comm'n (1999) 21
Cal.4th 489 ............................................................................................... 26

State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674
..................................................................................................... 28, 29, 38
Taschner v. City Council (1973) 31 Cal.App.3d 48 .................................... 43
Temecula Band of Luiseno Mission Indians v Rancho Cal. Water Dist.
(1996) 43 Cal.App.4th 425 ...................................................................... 41
Tuolumne County Citizens for Responsible Growth v. City of Sonora (2007)
155 Cal.App.4th 1214 .............................................................................. 42
Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559
........................................................................................................... 37, 38
STATUTES
42 USC 2000cc ........................................................................................ 27
Code Civ. Proc., 1085................................................................................ 38
Code Civ. Proc., 1094.5(c) ........................................................................ 37
Code Civ. Proc., 338(a) ............................................................................. 38
Code Civ. Proc., 343.................................................................................. 38
Evid. Code, 664 ......................................................................................... 29
Gov. Code, 65009(b)(2) ............................................................................ 26
Pub. Res. Code, 21080(e)(1-2) .................................................................. 37
Pub. Res. Code, 21082.2(c) ....................................................................... 37
Pub. Res. Code, 21166 ........................................................................ 30, 31
Pub. Res. Code, 21167(b) .......................................................................... 43
Pub. Res. Code, 21168 .............................................................................. 37
OTHER AUTHORITIES
Sonoma County Code 7-2 & 7-13 ........................................................... 17
TREATISES
Kostka & Zischke, Practice Under the California Environmental Quality
Act (Cont. Ed. Bar 2015) 6.78.............................................................. 40
REGULATIONS
14 Cal. Code Regs., 15064(f)(5) ......................................................... 37, 40
14 Cal. Code Regs., 15064(f)(5-6) ............................................................ 37
14 Cal. Code Regs., 15125 ........................................................................ 40
14 Cal. Code Regs., 15126.2 ..................................................................... 40
14 Cal. Code Regs., 15162 .................................................................. 30, 31
14 Cal. Code Regs., 15384(a).............................................................. 39, 40
14 Cal. Code Regs., 15384(a-b) ................................................................ 37
14 Cal. Code Regs., Appendix G ................................................................ 35

I.

INTRODUCTION

The appellant, Coastal Hills Rural Preservation (CHRP),


asks this Court to reverse the carefully considered decision of the Sonoma
County Superior Court and set aside Respondent, Sonoma Countys
(County), adoption of a Subsequent Mitigated Negative Declaration
(SMND) and approval of a Master Use Permit (MUP) for the Ratna
Ling 1 Buddhist Retreat Center. This matter originates from an ambiguous
2004 use permit, which allowed a primary retreat center with an accessory,
noncommercial press facility to produce sacred texts. A desire to resolve
confusion about earlier use permits, modestly expand the retreat center, and
a need for on-site storage of the sacred texts, prompted Ratna Lings MUP
application (Project). As approved, the MUP expands the retreat use, but
reduces the press use relative to the earlier approvals.
After an exhaustive administrative process and with extensive
citations to substantial evidence supporting the Countys findings, the
Superior Court ruled that the County followed all applicable laws when
granting its approvals. Given the strength of the Superior Courts decision,
CHRP now impermissibly resorts to raising totally new arguments on
appeal, implicitly conceding the weakness of its positions on the core land
use and CEQA 2 issues.
Ratna Ling respectfully requests that CHRPs appeal be
denied and the Superior Courts decision be affirmed.
1

The named Real Parties in Interest are Jack Petranker and a religious nonprofit California Corporation Sole called Head Lama of the Tibetan
Nyingma Meditation Center (TNMC). TNMC owns the Ratna Ling
Tibetan Buddhist Retreat Center. Unless otherwise specified, this brief will
collectively refer to Mr. Petranker and TNMC as Ratna Ling since that is
the name of the center at issue. Ratna Ling means jeweled crest.

CEQA means Californias Environmental Quality Act.


8

II.

JOINDER IN COUNTY BRIEF

The Real Parties in Interest join in the Countys Opposition Brief.

III.

A.

STATEMENT OF FACTS

Timberhill Resort.
In 1983, the County first approved a use permit for the real

property commonly known as 35755 Hauser Bridge Road (Property or


Project Site). (AR 4486) This use permit included a lodge facility,
dining room, and cabins. (AR 4489-4490)

In 2000, with virtually no

neighborhood opposition, the County approved a new application for a


greatly expanded and highly impactful Timberhill Resort on the Property
which included additional guest facilities, a restaurant, wine tasting room,
dining terrace, tennis courts, pub, resort arrival room, conference room, and
a spa. (AR 4576 & 3785)

B.

Ratna Lings Due Diligence, Acquisition and 2004 Use Permit.

The TNMC spiritual community first established its presence


in western Sonoma County in 1975, purchasing property on Tin Barn Road
in Cazadero, now known as Odiyan, a monastery and retreat center on
which beautiful sacred temples and related structures have been erected.
(AR 6159) Here, the senior members of the community conduct traditional
rituals for peace and harmony. (AR 6159-6160) The Head Lama is on

permanent retreat at Odiyan, which is closed to the public. 3 (AR 6160)


One of the many religious practices of TNMC since the
1970s, designed to preserve and transmit the teachings and practices of the
Buddha, known as the Dharma, has been the printing of sacred texts. The
sacred texts are the writings of the Buddha and subsequent commentaries,
in the Tibetan language for shipment to Asia and free distribution to
Buddhist monks, nuns, and lay practitioners whose libraries were destroyed
by the Chinese. 4 (AR 6160)
In 2003, when the partially constructed Timberhill Resort was
put up for sale, an opportunity was presented for TNMC to extend the
spiritual purposes of Odiyan by obtaining a nearby parcel of land that could
serve as a more accessible Buddhist retreat and teaching center. (AR 6160)
The Property has special significance because it completes the Odiyan
mandalas southern quadrant, the direction of the mandala traditionally
associated with land and spiritual roots. (AR 4618-4619) Thus, within the
spiritual tradition, the Property is a suitable location for a retreat center,
including retreats devoted to working on sacred texts, a central religious
practice of Tibetan Buddhists since the 8th century. (AR 4619 & 6170) As
part of its due diligence and prior to purchasing the Property, TNMC
representatives met with County staff and explained their hoped-for uses of
the Property. (AR 6159-6160) These included retreats and an ancillary
religious printing facility. After completing its investigation, TNMC
purchased the Property and still owns it. (AR 4596, 5330 & 6160-6161)

There is more information about the Head Lamas background and


journey to Sonoma County at AR 6159.

The record includes a 10-minute video called Heart of the Lotus with
additional information about the sacred texts.
10

2004 Use Permit Approvals. 5


In 2004, Ratna Ling submitted an application for a use
permit. (AR 4596) Without neighborhood opposition, the Sonoma County
Board of Zoning Adjustments (BZA) unanimously adopted a Mitigated
Negative Declaration (2004 MND) and approved the use permit on
September 9, 2004 (collectively, 2004 Approvals). (AR 9-16) The 2004
Approvals authorized a primary use of the Property as a retreat center and
an ancillary use as a non-commercial religious printing facility 6 that was
found to be directly related to the doctrine of TNMC. (AR 6-7 & 13) The
press facility is not visible from Hauser Bridge Road (AR 7558), nor does it
produce any meaningful noise or vibration. (AR 12213-12214) As with
any other use permit, the 2004 Approvals required a myriad of subsequent
ministerial permits, such as building and grading permits. (See e.g., AR 913) The 2004 Approvals are now vested. (AR 47-48 & 113)
The 2004 Approvals were later interpreted by the County to
include an annual printing limit of 100,000 books because the approvals
incorporated estimates in the previously submitted proposal statements into
the 2004 conditions of approval. (AR 13) For many reasons, but most
significantly because in the Tibetan tradition a single book can comprise
multiple separate volumes, there has been considerable ambiguity and
confusion about the 100,000 book limit. (AR 570571, 595, 4160-4161)
After receiving the 2004 Approvals, Ratna Ling began
5

For the readers convenience, there are photographs of Ratna Ling at AR 75547579, 7611 & 12861-12873.

CHRP repeatedly and incorrectly argues that the 2004 use permit
authorizing the press facility limited the facility to one press machine. As
is discussed later in this brief, the County authorized the press use, but did
not limit or regulate specific press equipment because equipment can
change over time. (See AR 4096-4097)
11

holding retreats on the Property and producing sacred texts in the religious
printing facility. Retreats include many activities, such as Tibetan yoga,
meditation, instruction in Buddhist teachings, and working on the sacred
texts. Many people go on retreat primarily for the purpose of working on
the sacred texts because ongoing transmission of the Dharma is a central
practice of this spiritual community. 7
The sacred texts and religious printing facility are not
commercial endeavors.

Senior members of the Buddhist community,

supervisors, and volunteers work on the sacred texts along with visiting
retreatants in the press building. All work is without pay, consistent with
the Dharma. The community observes strict rules of behavior and must
abstain from non-essential speech and consuming meat or alcohol when
working on the sacred texts. (AR 6764-6765) Each day in the religious
printing facility begins with a morning meditation practice and ceremony
where traditional Buddhist prayers are chanted. (AR 6765)

The silent

meditation is followed by a reading from Buddhist teachings, followed by a


brief exercise of Tibetan yoga. (AR 6766) There is an altar with seven
offering bowls, representing the Buddhas first seven steps. At the end of
the day, there is a closing ceremony that includes a Buddhist reading and
the chanting of a prayer to dedicate merit from sacred book-making to the
well-being of others. (AR 6766)
7

AR 212, 623, 637, 639, 645646, 657, 661, 663, 668, 669, 674-675, 688
689, 698, 709, 1091, 1095, 1098, 1101, 1118, 1124, 1125, 1128, 1129,
1130, 1135, 1139-1140, 1148, 11491150, 1153, 1154, 1163, 1168, 1171,
1188-1189, 1192, 1198-1199, 12011202, 1203, 1205, 1208, 1216-1217,
1224, 1226, 1290, 1291, 1292, 1297, 1299, 1307, 1311-1312, 1319, 1323,
1327, 1329, 1334, 1339, 1341, 1344-1346, 1348, 1349-1350, 13531354,
1356, 2536, 2537, 2541, 2542, 2545, 2548, 2560, 2569, 2570, 2585, 3439,
3460, 3465, 3477, 3479, 37903795, 3843-3844, 4111, 4154-4156, 70957096, 7102, 7125, 7127, 8329, 8657, 8760, 8772, 8801-8803, 8832, 8847,
8865, 8880, 8888-8890, 8999, 9136, 10630, 12277, 12283, 12392, 1241212413, 12462, 12468, 12472, 12495, 12526.
12

After the 2004 Approvals, and because of repressive


restrictions imposed by the Chinese government on shipments of books to
Tibet, Ratna Ling found it needed a suitable location to store sacred texts
that could not be shipped overseas. 8 Not just any location is suitable. For
religious reasons, a suitable location means that the texts can be safely
stored and ceremonially respected by daily religious rituals. (AR 6174)
Since the texts embody the Buddha, the storage structures must have strict
climate control and be available for daily prayer and chanting. (AR 6174)

C.

2008 Cave Application.


To meet this need, on February 14, 2008, Ratna Ling

submitted an application for, among other things, underground caves that


would provide storage for the sacred texts. (AR 4847-4851) Neighbors
immediately formed a five person Steering Committee, which included
Michael Zippy Singer and Bob Dickson, and prepared a petition
opposing the cave application. 9 (AR 4909-4914 & 5736)
Ratna Ling then initiated a series of community meetings.
(AR 3852-3853, 4174, 4176, 41774178, 4179, 9287) In an effort to be a
good neighbor, Ratna Ling did not pursue the cave application. At the same
time, it voluntarily instituted a myriad of construction and traffic
mitigations to ameliorate noise from build-out of the 2004 Approvals. (AR
3852, 3853-3854, 4177, 41754179 & 9289)
8

CHRP misunderstands the issue and alleges that Ratna Ling sought to
store 12 million books on the Project site. (Appellants Opening Brief,
hereinafter AOB, p. 14.) Ratna Ling does not seek to store the equivalent
of all texts destroyed by the Chinese invasion on the site; it only seeks to
store far fewer volumes that cannot be shipped to Tibet.
9

As is set forth at various places in this brief, Mr. Singer and Mr. Dickson
opposed the cave application and MUP in both their individual capacities
and as public officials, the Fire Chief and President, respectively, for the
Timber Cove Fire Protection District (TCFPD).
13

Following a community meeting, Steering Committee member


and TCFPD Fire Chief, Mr. Singer, asked if Ratna Ling would financially
assist TCFPD since Ratna Ling has a religious exemption from property
taxes.

Mr. Singer asked Ratna Ling to donate a new fire truck and

supplemental equipment. In response, Ratna Ling donated a new, high


performance fire truck, at a cost of $273,477.50 and $15,000 worth of
supplemental equipment to TCFPD. (AR 213, 574 & 4381-4382) Ratna
Ling also donated $10,000 for an emergency shelter trailer to the Red Cross
and a playroom in a local school. (AR 213 & 574)

D.

Zoning Permit for the Sacred Text Storage Membrane Structures.


Ratna Ling still needed a suitable place to store the sacred

texts and, after consulting with County staff, applied for permits to erect
membrane structures. On March 26, 2008, the County conducted design
review and issued a zoning permit for two membrane structures. (AR 37)
The Sonoma County Permit and Resource Management Department
(PRMD) revised this approval on April 21, 2008, to allow two additional
membrane structures.

(AR 38)

The four structures were originally

intended to be temporary while Ratna Ling explored alternative on-site


permanent storage. In reviewing the application, PRMD nevertheless
required the membrane structures to meet the same standard as a permanent
structure.

(AR 228, 254 & 10391040) All four structures have flame

retardant membranes, fire sprinklers, steel frames, and are situated on


asphalt. (AR 7611-7615) The membranes covering the structures met the
applicable National Fire Protection Association (NFPA) 701 standards,
are flame resistant and self-extinguishing. (AR 44-45, 134-135, 334-336 &
1052)

14

E.

2008 Use Permit for a Reservoir.


On August 22, 2008, PRMD adopted a Mitigated Negative

Declaration (2008 MND) and approved a use permit for a 20 acre-foot


reservoir on the Property. (AR 38 & 5428) (2008 Approvals) The 2008
Approvals also required subsequent ministerial permits. (AR 5428, 54305439 & 6027-6037)

F.

Master Use Permit Application.


On February 20, 2009, Ratna Ling asked PRMD to put a hold

on the cave application so it could submit a revised application and


proposal statement, clarifying ambiguities in the 2004 Approvals. (AR 38)
On February 25, 2010, PRMD received an approximately
three-hundred-page complaint alleging that Ratna Ling violated the 2004
Approvals. (AR 5777-6081) None of the alleged violations involved fire
safety issues. This complaint was signed by, among others, Mr. Singer and
Mr. Dickson, this time acting as members of the Steering Committee to
Oppose Ratna Ling. (AR 5783) In response, Ratna Ling and County staff
members met several times regarding the complaint.

(AR 6084-6091)

PRMD did not issue a citation or any other violation notice in response to
the complaint.
On March 15, 2011, Ratna Ling submitted a Proposal
Statement for a Master Use Permit (AR 38, 556576), supplemented by a
further filing on December 19, 2011. (AR 6760-6766)
On April 5, 2012 the BZA held a public hearing on this
version of the project. For the first time, members of the public alleged that
there may be fire impacts from the Project. (See e.g. AR 3832) Mr. Singer
appeared at the hearing, stating that as a nearby neighbor he was personally
15

opposed to Ratna Lings project and confirmed that he was not appearing as
a TCFPD representative. (AR 3836)
On June 7, 2012, the BZA conducted another public hearing
and unanimously approved the MUP.

(AR 38-39)

The opposition

appealed the BZAs unanimous approval to the Sonoma County Board of


Supervisors (Board). (AR 39)
In response to more complaints, Ben Neuman, the head of PRMDs
Code Enforcement Division, inspected the four sacred text storage
structures on June 15, 2012 and observed that all four tents had fire
sprinklers and the text material stored in the tents was stacked at an
appropriate height. (AR 7324)
On March 26, 2013, Ratna Ling submitted an updated
proposal statement for the MUP. (AR 7478-7548) The revised proposal
included, among other things: 10

A Master Use Permit allowing expanded retreat operations


with seasonally varied occupancy limits (AR 110);

Increasing the total site occupancy to a maximum of 122


people at any one time, with lower seasonal occupancy limits
(AR 110);

Clarifying that Ratna Ling may produce non-textual sacred


art projects on the Project Site (AR 110);

Limiting truck traffic related to the religious printing facility


to one round-trip per day and restricting the size of the
trucks 11 (AR 1003);

10

There is a site plan for the 120-acre parcel at AR 7550.

11

Under the 2004 Approvals, Ratna Ling had an average of one-half


truck trip per day. Unused trips could be aggregated meaning that, for
example, there could be no truck trips for a week and then 3.5 trips in one
day. Under the 2013 proposal and in the approved MUP, the truck trips are
16

Terminating and dismantling the religious printing facility if


the Property is conveyed to a property owner who is not
affiliated with the traditions and practices of Buddhism (AR
111);

Increasing the occupancy of the religious printing facility


(AR 1009); and

Ratna Ling continued to volunteer to pay the equivalent of


Transient Occupancy Taxes to the County even though, as a
non-profit religious organization, Ratna Ling is exempt from
collecting this money and making these payments. (AR 815,
3953 #82 & 3959)

On July 17, 2013, in response to renewed complaints, Mr.


Neuman conducted another investigation and concluded that there were no
pending investigations and no active violations for the property. (AR
7607) In spite of this, the opposition alleged that the membrane structures
were not fire-safe and did not comply with the applicable building codes.
(AR 78247827, 78547856 & 7864)
In an effort to clarify the applicable code requirements for the
membrane structures, DeWayne Starnes, the Countys Chief Building
Official, issued an October 10, 2013 Administrative Determination. (AR
7624)

By law, the Chief Building Official administers and interprets

Chapter 7 of the Sonoma County Code, which incorporates the California


Building Code. (AR 7624 & Sonoma County Code 7-2 & 7-13) Mr.
Starnes determination concluded that: (i) the date of the permit application

limited to one trip per day that is use it or lose it. (AR 4350-4351)
Additionally, the truck size is limited to 24 in length, measured from
kingpin to axle (AR 110), as compared to the 2004 conditions of approval,
which did not impose any size limit on trucks. (AR 9-16)
17

determines the applicable building code; (ii) Ratna Ling applied for
building permits in 2008, therefore the 2007 California Building Code was
the applicable code for the membrane structures; (iii) the 2010 California
Building Code did not apply to the membrane structures because it was not
in effect at the time of the permit application; (iv) the membrane structures
were not required to comply with Chapter 7A of the 2010 California
Building Code because the County had exempted all accessory structures
from Chapter 7A; and (v) changing the classification of the membrane
structures from temporary to permanent had no practical effect because
PRMD plan-checked the structures as permanent structures. (AR 76247625)
On January 21, 2014, Ratna Ling provided exhaustive
documentation for each of the four membranes used in the sacred text
storage structures. (AR 8078-8196) Specifically, the labels on the tent
membranes indicated that each structure met NFPA 701 flammability
standards. (AR 8194-8196, 8082-85, 8119, 8152 & 8184)

The Chief

Building Official reviewed the documentation and on February 14, 2014,


concluded that there is sufficient evidence and information to show that
the membrane structures are code compliant. (AR 8209)
The County continued to process the MUP application, and
based on the updated March 26, 2013 Proposal Statement, concluded that
only an addendum was warranted under CEQA. (AR 114) However, since
addenda are not circulated, in the interest of full public disclosure the
County prepared a Subsequent Mitigated Negative Declaration (SMND)
for the Project. (AR 111 & 108-154)
During an April 8, 2014 Board of Supervisors hearing on the
appeal of the unanimous BZA approval, Cynthia Demidovich, PRMDs
Project planner, explained that the Project was consistent with the Countys
General Plan because: (1) the Project will not interfere with resources on
18

the site; (2) the sacred text storage and printing press are accessory uses;
(3) the sacred text storage and religious printing facility are integral parts
of the Tibetan Buddhist practice and that retreatants and volunteers
participate in religious practice in the press facility and sacred text storage
structures; (4) the sacred text storage structures and printing facility are
subordinate to the primary retreat use; and (5) the proposed Project is
compatible with the surrounding neighborhood. (AR 4060-4062)
The Deputy Director of PRMD confirmed that the 2004
Approvals regulated the accessory use (e.g., the religious printing facility),
not the specific equipment in the printing press facility:

Supervisor Gorin: [s]o the specific pieces of


equipment, the number was not really conditioned as
part of the approval. (AR 4097)
Deputy Director Barrett: No . . . (AR 4097)
Mr. Singer claimed, among other things, that the sacred text storage
structures posed a fire threat and that the TCFPD does not have the training
to fight industrial fires. (AR 4115-4125)
After receiving public testimony, the Board closed the public
hearing and conducted a straw vote, preliminarily denied the appeal, and
approved the Project. (AR 39) The Board directed staff to: prepare a final
resolution memorializing the Boards decision; meet with Ratna Ling to
discuss further restricting the hours of operation for the printing facility, the
need for the sacred text storage structures, and potential financial support
for fire services; and to return to the Board with revised conditions of
approval for the Boards consideration. (AR 39)
Staff responded to the Boards direction by meeting with
Ratna Ling, CHRP, and TCFPD. (AR 39) Ratna Ling offered to reduce
19

the hours of operation for the religious printing facility by eliminating


Sunday operations for all but peak season operations. (AR 12014) Even
though Ratna Ling is exempt from property taxes because it is a religious
organization, Ratna Ling also offered to pay TCFPD up to $2,500 per year
for training and to make a good faith effort to provide two people to serve
as volunteer fire fighters with the TCFPD. (AR 12013)
TCFPD responded by submitting a letter, dated May 29, 2014
and signed by its President, Bob Dickson, stating that it objected to the
straw vote and rejecting Ratna Lings offer to pay $2,500 out of hand.
(AR 12029) TCFPD went on to ask the County to require Ratna Ling to:
(i) fund another fire truck, 12 estimated to cost $375,000; (ii) fund an
expansion to the existing fire station, estimated at $150,000; and (iii) fund
annual training in an unspecified amount. (AR 12030-12031)

TCFPD

submitted another letter, dated June 23, 2014 also signed by Bob Dickson,
erroneously claiming that the Project was industrial and would create a
fire hazard. (AR 12702-12711)
The County reopened the public hearing on June 24, 2014 for
the limited purpose of considering proposed revisions to the conditions of
approval. (AR 40 & 12037) The Board Chair reminded everyone that the
printing presses were not before the Board because they were approved in
2004. (AR 4321-4322) Staff then updated the Board on discussions with
Ratna Ling, CHRP, and TCFPD. (AR 4322-4324 & 4328-4330) During a
lengthy public hearing, the Board heard evidence on whether or not the
Project will create a significant risk of loss from wildland fires. 13 CHRP
12

Ratna Ling previously donated approximately $290,000 for a highperformance fire engine and supplemental equipment to TCFPD around
2008, as is set forth earlier in this brief. (See AR 213, 574 & 4381-4382)

13

Mr. Singer appeared during this hearing. He objected to the Project and
admitted that he was wearing two hats (e.g., a member of the
20

unsuccessfully tried to argue that the Project would expose people to a


significant risk of loss due to a wildland fire. The extensive and contrary
evidence in the Administrative Record (Record) favorable to the County
and Ratna Ling on fire safety and wildland fire issues is summarized here:

1.

The religious texts are sacred to the Tibetan Buddhist


community, which has a tremendous interest in ensuring
that they are preserved and do not burn. (AR 4375-4378);

2.

The Fire Marshal testified that with the fire protection


systems, fire hydrants, water supply, etc.: we have got a
pretty safe outfit. (AR 4452);

3.

There are only minimal amounts of hazardous materials on


the site. Ratna Ling uses non-toxic vegetable based ink
dyes and a water based plate-making process in the press
facility. The only hazardous waste is rags from wiping out
ink cans, which are stored in appropriate containers until
they are removed by a licensed hazardous materials removal
service. (AR 43 & 132)

4.

The probability of fire starting at the sacred text storage


structures and causing a wildland fire is less than 1.3%.
(AR 4364);

5.

The sacred text storage structures have steel frames with


fire-resistant membranes. (AR 4447 & 8078-8193);

6.

The County mandated fire sprinklers in all new construction


in 2002 because fire sprinklers are the most effective way to
extinguish fires, especially in rural areas with limited fire
department resources. (AR 4363-4364) This is because
sprinklers operate automatically at the origin of a fire while
simultaneously sending an alarm to the fire department.
(AR 4364, see also 12538-12629) The Countys fire

neighborhood opposition and a fire chief.) (AR 4371) Mr. Dickson also
had a dual role and opposed Ratna Ling individually and as a TCFPD
official. (See AR 5676, 5680, 5739, 5777-5783, 6304, 7195-7196, 1203012031 & 12702-12711)
21

sprinkler requirements are more stringent than State


requirements. (AR 4074);
7.

The sacred text storage structures have fire sprinklers. (AR


3403 & 4091) These sprinklers are part of the water system
and have water running directly to them (e.g. wet
sprinklers). (AR 4436-4437) NFPA statistics show that
where storage uses have wet sprinklers, 98% of the
sprinklers operated effectively. (AR 12568);

8.

The sacred text structures are classified as storage


structures, not industrial structures, and are not big enough
to be classified as large area buildings by the Fire
Marshal. (AR 4449-4450);

9.

The sacred text storage structures have existed on the


Project Site since 2008. Since then, County records show
there have been no emergency calls for a fire. (AR 1210012132 & 12134);

10.

The tank that provides water to the fire sprinklers always


has a minimum of 100,000 gallons of water in it for fire
suppression purposes. (AR 4437);

11.

In the event of a power outage, there is a backup generator


that runs the fire pump and other systems at Ratna Ling.
(e.g. even if the power is out, the fire sprinklers will still
work and have water) (AR 4478);

12.

The Countys Chief Building Official concluded that


changing the storage structures from temporary to
permanent had no practical effect because the County
required the structures to meet building standards for
permanent structures. (AR 44 & 254);

13.

The Countys Fire Marshal is satisfied that the structures


met applicable NFPA 701 and building standards for fire
protection. (AR 44, 135 & 334);

14.

Ratna Ling volunteered to exceed all code requirements by


installing a heat detection system in the structures. (AR
4364);
22

15.

According to the Countys REDCOM 14 records, TCPFD


has a Type 1 fire engine. (AR 45 & 4366);

16.

Ratna Ling donated approximately $290,000 to TCFPD to


purchase the engine of the TCFPDs choice and
supplemental equipment in 2008. (AR 213, 574 & 43814382);

17.

The Countys REDCOM system allows a fire district to list


specific equipment it needs to respond to a fire at an address
in advance of a fire incident. REDCOMs records show that
TCFPDs existing Type 1 engine would respond to a fire at
Ratna Ling, along with other equipment. (AR 134, 4366,
12128-12129);

18.

The County has Mutual Aid Agreements with other


jurisdictions to provide supplemental responses to fire or
other emergencies. (AR 13533-36);

19.

Condition of approval 79 requires Ratna Ling to pay


$2,500/year to TCFPD for training. (AR 65);

20.

Condition of approval 80 requires Ratna Ling to make a


good faith effort to provide volunteers to TCFPD. (AR 65);

21.

Condition of approval 81 requires Ratna Ling to provide


and maintain its own on-site fire engine. (AR 65);

22.

Condition of approval 82 requires Ratna Ling to coordinate


with the County Fire Marshal and TCFPD to install any
additional on-site infrastructure deemed appropriate by the
Fire Marshal. (AR 65);

23.

Vern Losh, a qualified fire professional with 40 years of


experience, who previously served as the Chief/Director of
the Countys Department of Emergency Services from 1995
through 2008 (AR 9217-9219), testified that:
a.

14

There is a low likelihood of fire starting at Ratna Ling


because there is no ignition source, Ratna Ling is a
non-smoking campus and the sacred text storage

REDCOM stands for Redwood Empire Dispatch Communications.


23

structures only have minimal electrical service.


Therefore, the most likely ignition source is a lawn
mower or lightning. (AR 4363, 12143);

15

b.

If lightning did start a fire, the automatic fire sprinklers


in the sacred text storage structures would extinguish
the fire. (AR 4363);

c.

If the sprinklers did not extinguish the fire in the


sacred text storage structures, it is highly unlikely that
the fire would spread beyond the structure because
Ratna Ling has 200-300 feet of defensible space
around each structure, when only 100 feet is required.
(AR 4441-4442);

d.

CalFires records show there were 229 wildland 15 fires


in California from 2008 to 2012. Only three of them
were caused by structure fires. (AR 4364-4365, 12647,
12144-12145 & 12147-12161);

e.

In his 40 years of experience as a fire professional, Mr.


Losh has never seen a large-scale fire or even a
significant fire event originate from a structure that has
heat detection, automatic sprinklers, and defensible
space. (AR 4365)

24.

The Project Site has a 20 acre-foot reservoir on it. The


reservoir is filled only with water that falls on its surface or
banks or buildings. (AR 137) It has a capacity of 6.5
million gallons of water and even after four years of drought
still has 3.6 million gallons of water in it that could be used
for fire suppression. (AR 4435 & 4439);

25.

In addition to the reservoir, the Project Site contains a


reflection pond. The reflection ponds capacity is
2,000,000 gallons of water. In drought conditions, the
reflection pond is estimated to have 1,000,000 gallons of
water in it. In the event of a fire, the water in the reflection
pond could be drafted by fire engines or used by helicopters
for fire suppression purposes. (AR 4439 - 4440);

A wildland fire is any fire that burns 300 acres or more. (AR 12647)
24

26.

In addition to the reservoir and reflection pond, there are


two other ponds, the Press Pond and the Fishing Hole
Pond, that could be used for fire suppression purposes.
(AR 7550);

27.

Ratna Ling will use its best efforts to raise $100,000 for
donation to TCFPD over a five-year period. (AR 43614362 & 12838-12839)
The Board adopted the SMND and approved the Project,

affirming its April 8, 2014, 3-2 straw vote, in Sonoma County Board of
Supervisors Resolution No. 14-0283. (AR 36) The County recorded a
Notice of Determination on June 25, 2014, (AR 2) and this lawsuit was
filed on July 24, 2014.

G.

Superior Court Proceeding.

The Honorable Elliot Daum of the Sonoma County Superior


Court held a bench trial on CHRPs Petition for Writ of Mandate on March
30, 2015.

In his subsequent written opinion, Judge Daum denied the

petition and found in favor of the County and Real Parties on all points.
(AA 261-273)
IV.
A.

ARGUMENT

CHRPs Constitutional, Spot Zoning, and CEQA Arguments


Should Not be Considered Because of Fatal Procedural Defects.

Ratna Ling respectfully requests that this Court decline to


consider CHRPs constitutional and spot zoning arguments because CHRP
failed to raise these issues prior to this appeal. Ratna Ling also requests
that the Court rule that CHRP failed to meet its required burden of citing
evidence favorable to the County and showing why the evidence is
deficient.
25

1.

CHRP cannot raise its constitutional arguments for the first


time on appeal when CHRP failed to exhaust these arguments
during the administrative process and even failed to raise
them before the Superior Court.
CHRP did not satisfy the administrative exhaustion

requirement for its constitutional arguments. CHRP had the opportunity to


raise these arguments before the County but did not.

Administrative

agencies must be given the opportunity to reach a reasoned and final


conclusion on each and every issue upon which they have jurisdiction to act
before those issues are raised in a judicial forum. (Sierra Club v. San
Joaquin Local Agency Formation Comm'n (1999) 21 Cal.4th 489, 510.)
CHRP was represented by counsel in the Board of Supervisors hearings
and was aware of the exhaustion requirement. The public was repeatedly
advised that objections not raised could not be the subject of judicial
review. Thus, CHRP's failure to raise its new argument is not excusable.
(AR 7017, 7113, 7025, 8382, 8389; see Gov. Code, 65009(b)(2).) The
exhaustion requirement gives agencies an opportunity to respond to
objections, decide issues where the agency has expertise, and correct any
errors before court challenge. (Sierra Club v. City of Orange (2008) 163
Cal.App.4th 523, 535.) Proper exhaustion requires that the exact issues
advanced in the litigation must be raised during the administrative process.
(Ibid.)
CHRP now raises four new constitutional arguments. None
were raised before CHRPs Opening Brief on appeal. CHRP's conduct
improperly deprived the County of the opportunity to address them in the
first instance. (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123,
1140.)
CHRP gives a conclusory string cite to the Record, arguing
that it properly exhausted its administrative remedies by raising these
26

arguments during the administrative proceeding. (AOB, p. 19.) These


citations are general comments. The mere mention of the word religion is
not enough to show that CHRP met its duty to exhaust these specific issues.
For example, CHRP cites AR 755, 790, and 9200. However, these cites
refer to religion in the context of a federal property tax exemption for
religious organizations. CHRP also provides cites that merely include the
word religious or religion or RLUIPA 16, such as AR 772, 4756,
5735, and 13516, but none of these cites mention the Federal or State
Constitution or CHRPs specific constitutional challenges.

The closest

CHRP gets to raising the issue is AR 9193 and 12840. AR 9193 states:
[t]his also appears like special dispensation.

AR 12840 mentions

special privileges. CHRPs AR cites are either irrelevant, not on point, or


are general statements about special treatment. These general statements
do not even remotely raise the detailed constitutional claims CHRP now
belatedly argues.

CHRP cannot meet its burden of proving that it

exhausted its administrative remedies on these claims.


2.

CHRPs constitutional and spot zoning claims are prohibited


because they are factual issues that were not raised with the
trial court.
As a general rule, an issue cannot be raised for the first time

on appeal. 17 (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983)
34 Cal.3d 412, 417, citations omitted.) A court may relax this rule to hear
16

RLUIPA stands for the Religious Land Use and Institutionalized Persons
Act found at 42 USC 2000cc et seq.
17

Constitutional questions must be raised at the earliest opportunity or the

claim is waived. (Hershey v. Reclamation Dist. No. 108 (1927) 200 Cal.
550, 547-548 & Jenner v. City Council of Covina (1958) 164 Cal.App.2d
490, 498.)

27

pure questions of law when there are undisputed facts. (Ibid.)

CHRP

improperly makes disputed factual arguments for the first time on appeal.
In Hale v. Morgan, the California Supreme Court noted the general rule
that constitutional challenges must be raised as early as possible, but
allowed a late constitutional challenge to the enforcement of a penal statute
because it was a clear question of law, based on undisputed facts, which
was of great public interest. (Hale v. Morgan (1978) 22 Cal.3d 388, 394.)
In another decision, an appellate court allowed the constitutionality of the
Forest Practices Act to be raised for the first time on appeal because it was
a pure question of law and regulating the logging industry was a current
issue of great public interest. (Bayside Timber Co. Board of Supervisors
(1971) 20 Cal.App.3d 1, 5-6.)
CHRPs constitutional arguments are manifestly different
from these cases because they are intensely factual and focus on numerous
instances of the Countys administrative conduct. Thus, they cannot be
raised for the first time on appeal. CHRP also argues, for the first time, that
the County engaged in impermissible spot zoning when it approved the
Project. (AOB pp. 50-52) This is not a constitutional issue and CHRP
failed to cite any authority allowing an exception to the general rule that
new issues cannot be raised for the first time on appeal. (Sea & Sage
Audubon Society, Inc. v. Planning Com., supra, 34 Cal.3d at p. 417.)
3.

CHRP committed a fatal procedural error by failing to


identify the evidence favorable to the County and show why
that evidence is inadequate.
When the substantial evidence standard applies 18 courts must

presume the correctness of an agencys decision. (State Water Resources


Control Bd. Cases (2006) 136 Cal.App.4th 674, 723.)
18

The burden of

See Section B.3 of this brief for a discussion of why the substantial
evidence is the correct standard of review.
28

affirmatively showing inadequacy is on the petitioner.

(Id. at p. 723;

Barthelemy v. China Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609,


1617; Al Larson Boat Shop v. Board of Harbor Commissioners (1993) 18
Cal.App.4th 729, 740.) To carry that burden, a project opponent must lay out
the evidence favorable to the other side and show why it is lacking.
(Environmental Council of Sacramento v. City of Sacramento (2006) 142
Cal.App.4th 1018, 1028.)
Failure to do so relieves the court of the burden of independently
reviewing the record and is fatal. (Latinos Unidos de Napa v. City of Napa
(2013) 221 Cal.App.4th 192, 205-206; Citizens for a Megaplex-Free Alameda
v. City of Alameda (2007) 149 Cal.App.4th 91, 110; Defend the Bay v. City of
Irvine (2004) 119 Cal.App.4th 1261, 1266; see also Gentry v. City of Murrieta
(1995) 36 Cal.App.4th 1359, 1385; Evid. Code, 664 [presumption that
official duty regularly performed].)
CHRP failed to point to any of the substantial evidence
favorable to Ratna Ling recited in the Superior Courts order or the Record
and show why it is lacking.

The Superior Court extensively cited the

substantial evidence in the Record. (AA 261-273)


CHRP also failed to discuss the substantial fire safety and
wildland fire evidence listed at pages 21 to 25 of this brief and explain why
this evidence is lacking. CHRPs omission is egregious and fatal.

B.

The County Exceeded CEQAs Requirements by Preparing the


SMND.
CHRP argues that the sacred text storage structures constitute

new information, thus an EIR was required. In a different section of its


brief, CHRP argues that the massive storage and other expansions
constitute a new project. (AOB, p 53.) CHRPs arguments ignore the plain
29

language of CEQA. Since both of these arguments turn on the same facts
and law, this brief will address them together. This analysis has three steps.
First, a lead agency must first decide if a project is a new project or a
modification to a previously approved project. Second, if the project is a
modified project, the lead agency must decide if any of the three facts or
circumstances that trigger subsequent environmental review exist. Third, if
a subsequent CEQA document is prepared, the substantial evidence
standard of review applies. It is important to remember that the County
determined only an addendum was warranted for this Project. (AR 114)
Addendums are not circulated, so the County chose to prepare and circulate
the SMND to ensure maximum public disclosure. (AR 114)
1.

The MUP was a modified project, not a new project.


The Superior Court found this to be a modified project

because it: involved 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 at all. Contrary to [CHRPs] argument it
does not involve a huge increase of printing facilities. (AA 267)
When an approved project changes, it is rarely a new
project. Once CEQA review has occurred, finality is favored over public
comment, and either there is no additional environmental review or there is
subsequent environmental review. (Mani Bros Real Estate Group v. City of
Los Angeles (2007) 153 Cal.App.4th 1385, 1398-1399.)

To this end,

CEQA prohibits a lead agency from requiring another EIR unless specific
circumstances exist.

(Pub. Res. Code, 21166, 14 Cal. Code Regs.,

15162, CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 501
& Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650, 661.)
30

The circumstances that trigger subsequent environmental review are:


changes to the project, its circumstances or new, previously unavailable
information such that the old CEQA document must be substantially
rewritten because there is a new, significant environmental impact or a
significant increase in the severity of a previously identified impact. (Pub.
Res. Code, 21166 & 14 Cal. Code Regs., 15162. Almost every case
analyzing this issue has found that even significant changes amount to a
modified project, not a new project.
Moving a winery project to an adjacent parcel was a modified
project, subject to subsequent environmental review. In Benton v. Board of
Supervisors, a county adopted a mitigated negative declaration, approved a
winery, and the owner began construction. (Benton v. Board of Supervisors
(1991) 226 Cal.App.3d 1467, 1473.) A year later, the owner submitted an
application to move the winery next door. The county correctly treated the
second application as a modification of the first application and compared
the environmental impacts of the modified project to the previously
approved project. (Id. at p. 1476.) In a case of first impression, the court
held that CEQA Guideline section 15162, addressing subsequent
environmental, review applied to mitigated negative declarations. (Benton
at pp. 1477-1483.)
Changes in water distribution regulations did not constitute a
change in circumstances requiring a new CEQA document. A special
district adopted water distribution regulations and amended them two years
later without performing additional CEQA analysis. (Abatti v. Imperial
Irrig. Dist., supra, 205 Cal.App.4th at p. 661.) The districts actions were
challenged on the ground that there was a change in the projects
circumstances that required an EIR.

31

The court disagreed and noted:

it stands to reason that no greater review should be


required of a project that initially raised so few
environmental questions that an EIR was not required,
but a negative declaration was found to satisfy the
environmental review requirements of CEQA. To
interpret CEQA as requiring a greater level of review
for a modification of a project . . . would be absurd.
(Id. at p. 670.)
Similarly, in Latinos Unidos, additional CEQA review was not required for
an amendment to the housing element portion of a general plan and minor
amendments to zoning ordinances. (Latinos Unidos de Napa v. City of
Napa, supra, 221 Cal.App 4th at p. 203.)
CHRPs sole citation to legal authority on this issue is Save
Our Neighborhood v. Lishman, an outlier and criticized decision based on
unique facts. In that case, the lead agency prepared a Mitigated Negative
Declaration for a project that included a 106 room hotel, restaurants,
lounge, gas station, convenience store, and car wash. (Save Our
Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288, 1291.) The project
was never built. Seven years later, a different entity applied for a new
project on the same site. The new project also included a hotel, gas station,
and convenience store. However, the new project included filling a 1.4 acre
seasonal wetland and realigning an intermittent drainage channel that
traversed the wetland. (Id. at p. 1292.) In spite of new environmental
impacts filling a wetland and realigning a drainage channel - the lead
agency prepared an addendum to the earlier Mitigated Negative
Declaration. The reviewing court used a novel totality of the
circumstances test and ruled that an addendum was not the appropriate

32

CEQA document because this was a new project, not a modified project.
(Id. at p.1301.)
One year later another appellate district appropriately declined
to follow Save Our Neighborhood:

Even if Save Our Neighborhood was not distinguishable on


its facts, its fundamental analysis is flawed. The court in Save
Our Neighborhood tackled what it perceived to be the
threshold question [of] whether we are dealing with a change
to a particular project or a new project altogether, and
declared that section 21166 and Guidelines section 15162
apply to the former but not the latter. (Save Our
Neighborhood, supra, 140 Cal.App.4th at p. 1301.) This
novel new project test does not provide an objective or
useful framework. Drastic changes to a project might be
viewed by some as transforming the project to a new project,
while others may characterize the same drastic changes in a
project as resulting in a dramatically modified project. Such
labeling entails no specific guidelines and simply is not
helpful to our analysis.
The new project test in Save Our Neighborhood, also
inappropriately bypassed otherwise applicable statutory and
regulatory provisions (i.e., 21166; Guidelines, 15162)
when it considered it a question of law for the court
whether the changed project was to be reviewed under section
21166 at all. (Save Our Neighborhood, supra, at p. 1297.) We
disagree with that approach and view the issue of whether an
agency proceeded properly in treating a project as subject to
section 21166 not as a question of law, but rather as a
question of the adequacy of evidence in the record to support
the agency's determination. (Mani Brothers v. City of Los
Angeles, supra, 153 Cal.App.4th 1385, 1400, emphasis
added.)
In Mani Brothers, a 16-year gap between the initial CEQA review
combined with an 18% increase in project size was found not to be a new

33

project. It was a modified project, subject instead to subsequent


environmental review. (Id. at pp. 1403-1405)
The changes to the Ratna Ling Project are smaller than those in
Abbatti, Latinos Unidos, and Mani Brothers. This Project is a modified one
because it clarifies ambiguities in earlier approvals and is a modest
expansion of the pre-existing retreat use. (AR 556-576)

The Project

increases occupancy of the pre-existing press facility, but it decreases work


days, operating hours, truck size, and truck trips 19 related to the sacred
texts. The County carefully reviewed the Project and determined that only
an addendum to the 2004 and 2008 MNDs was required.

(AR 110)

However, since addendums are not circulated to the public, the County took
the extraordinary step of preparing the SMND. (AR 110)
2.

There were no significant changes in circumstances or


impacts, so only an addendum was required. The County
should not be penalized for doing more than CEQA requires
in order to ensure maximum public input.
Since the Project was a modification of the 2004 and 2008

Approvals and not a new project, the Board evaluated whether or not any of
the circumstances triggering subsequent environmental review to the 2004
and 2008 MNDs were present and made the findings required by CEQA
Guideline section 15162. These findings and substantial evidence are:
a.
There are no substantial changes to the Project that
require major revisions to the previous MNDs due to the
involvement of a new or substantially more severe significant
environmental effect. (AR 41) The evidence supporting this
finding is recited in the resolution approving the Project: the
Project is a modest expansion of an existing retreat center and will
make four existing membrane structures permanent instead of
temporary. (AR 41) The Board noted that the Project will reduce
19

See footnote 11 for an explanation of reductions in truck trips and truck


sizes.
34

the number of truck trips, clarify ambiguous terms in the prior


approvals, and will result in very few physical changes to the
environment. (AR 41 & 4350-4351)
b.
There are no substantial changes to circumstances
under which the Project is undertaken that would require major
revisions to the prior MNDs due to the involvement of a new or
substantially more severe environmental impact. (AR 41) The
evidence supporting this finding is: the applicant is the same, the
uses are the same, the Project site is the same; and no substantial
change in circumstances was identified in the SMND or through
public comments. (AR 41)
c.
There is no new information of substantial importance,
showing that the Project will have a new or substantially more
severe effect than what was disclosed in the prior MNDs, which was
not known at the time of the prior MNDs. (AR 41) There was no
evidence showing that new, different or more feasible mitigation
measures were needed or that the applicant declined to adopt any
mitigation measures necessary to reduce or avoid a significant
impact. (AR 41)
Nothing more is required.
CHRP argues that mere changes to the Project warrant a new
EIR and that that a subsequent MND may only be used for a later project
that is essentially the same project. (AOB, p. 54) This is not what
CEQA requires, nor does it comport with the case law discussed above.
CHRP also argues that testimony from Mr. Singer and Mr.
Dickson (i.e. as neighborhood project opponents and TCFPD officials), is
evidence that the sacred text storage, which has existed without incident on
the Project Site since 2008, creates a wildland fire danger. CEQAs test is,
will the Project expose people or structures to a significant risk of loss,
injury or death involving wildland fires? (14 Cal. Code Regs., Appendix
G & AR 114-117) The record is replete with evidence that the Project will
not expose people or structures to a significant risk of loss, injury or death
involving wildland fires, as is set forth in the list on pages 21 to 25 of this
35

brief. This substantial evidence fully supports the conclusion the Project
did not require major revisions to prior CEQA documents due to a
significant risk of loss, injury or death involving wildland fires or any other
perceived impact. The Countys use of the SMND was proper and more
than adequate.

3.

The substantial evidence standard applies to the Countys


decision to prepare the SMND.
The standard of review for an agencys decision to prepare a

Subsequent Mitigated Negative Declaration is the substantial evidence


standard. (Benton v. Board of Supervisors, supra, 226 Cal.App.3d at p.
1481; Latinos Unidos de Napa v. City of Napa, supra, 221 Cal.App.4th at
pp. 200-202.) A courts role is to determine whether substantial evidence
supports the agencys decision not to require additional environmental
review. (Id. at p. 204.) Since environmental review had already been done
in 2004 and 2008, the question is have circumstances changed enough to
justify repeating a substantial portion of the process? (Bowman v. City of
Petaluma, supra, 185 Cal.App.3d at p. 1073.) This process balances the
burdens of environmental review and ensures that prior decisions are indeed
final.
Under the substantial evidence test, courts determine whether
the record as a whole contains substantial evidence to support the agencys
determination that the changes in the project were not so substantial as to
require a modification to the prior CEQA document. (Benton v. Board of
Supervisors, supra, 226 Cal.App.3d at p. 1481.) In applying the substantial
evidence standard of review, a court shall not exercise its independent
judgment on the evidence, but shall only determine whether the [agencys]
act or decision is supported by substantial evidence in light of the whole
36

record. (Pub. Res. Code, 21168.5; Mani Brothers v. City of Los Angeles,
supra, 153 Cal.App.4th at pp. 1396-1399.) 20 The courts limited function is
to determine whether there is substantial evidence supporting the agencys
conclusions. (Mani Bros. at p. 1397, citing the definition of Substantial
Evidence in 14 Cal. Code Regs., 15384(a); Laurel Heights Improvement
Assn. v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 393.)

Substantial

evidence does not include evidence that is clearly inaccurate or erroneous or


evidence that is not credible. (14 Cal. Code Regs., 15064(f)(5).) The
whole record is available to a reviewing court in determining whether there
is substantial evidence.

(A Local & Regional Monitor v. City of Los

Angeles [ALARM] (1993) 12 Cal.App.4th 1773, 1793, citing Code Civ.


Proc., 1094.5(c); Pub. Res. Code, 21168.)
A reviewing court may not independently review or reweigh
the evidence considered by the agency. (Western States Petroleum Assn. v.
Superior Court (1995) 9 Cal.4th 559, 571.) Further, an agency may choose
between differing expert opinions or rely upon the opinion of its staff in
reaching decisions, and the opinion of staff has been recognized as
constituting substantial evidence. (Oakland Heritage Alliance (2011) 195
Cal.App.4th 884, 900.) Thus, the agency is the finder of fact, and courts
must indulge all reasonable inferences from the evidence that would
support the agencys determinations and resolve all conflicts in the
evidence in favor of the agencys decision. (California Native Plant
Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 613-614

20

Substantial evidence includes facts, reasonable assumptions based on facts,


and expert opinion supported by facts; it does not include argument,
speculation, unsubstantiated opinion or narrative, evidence that is clearly
inaccurate or erroneous, or evidence of social or economic impacts that do not
contribute to, or are not caused by physical impacts on the environment. (Pub.
Res. Code, 21080(e)(1-2), Pub. Res. Code, 21082.2(c), and 14 Cal. Code
Regs., 15064(f)(5-6), 14 Cal. Code Regs., 15384(a-b).)
37

(CNPS); Laurel Heights, supra, 47 Cal.3d at p. 393; Western States


Petroleum, supra, 9 Cal.4th at p. 571.)
Under the substantial evidence standard, courts also must
presume the correctness of an agencys decision. (Mani Bros., supra,
153 Cal.App.4th at p. 1397; State Water Resources Control Bd. Cases,
supra, 136 Cal.App.4th at p. 723.) The burden of affirmatively showing
inadequacy is on the petitioner. (Barthelemy v. Chino Basin Mun. Water
Dist., supra, 38 Cal.App.4th at p. 1617; Al Larson Boat Shop v. Board of
Harbor Commissioners, supra, 18 Cal.App.4th at p. 740.)
Since the County adopted the SMND, the substantial
evidence standard must be applied. CHRP argues that this Court must
apply the fair argument standard of review, but the fair argument
standard is not relevant to modified projects.

(Benton v. Board of

Supervisors, supra, 226 Cal.App.3d at pp. 1481-1482.)


CHRP also erroneously argues that the Countys 2008
exemption of the storage structures from Wildland Urban Interface
(WUI) requirements was not lawful. First, the statute of limitations to
make this challenge lapsed long ago. (Code Civ. Proc., 338(a), Code Civ.
Proc., 343, and Code Civ. Proc., 1085.) Second, this was a county-wide
exemption that applied in every zoning district and to every accessory
structure. In order for CHRP to prevail in this argument, the Court would
have to retroactively rewrite the County Code to eliminate a county-wide
exemption for accessory structures. Additionally, if the exemption did not
apply to these structures, Ratna Ling would be treated more harshly than
any other building owner in the County, which is an unjust result.

38

4.

The Project easily meets the substantial evidence standard for


subsequent environmental review.
As is set forth earlier in this brief, there is ample substantial

evidence supporting the Countys findings that the Project will not expose
people or structures to significant risk of loss, injury or death involving
wildland fires. In the interest of brevity, the list will not be repeated here.
Under the substantial evidence standard, it does not matter that there is
contrary evidence, such as Mr. Singers biased testimony or Mr. Dicksons
biased May 29, 2014 and June 23, 2014 letters, or that the opposite
conclusion can be reached. (14 Cal. Code Regs., 15384(a) and Laurel
Heights Improvement Assn. v. Regents of Univ. of Cal., supra, 47 Cal.3d at
p. 393.) All that matters is that there is substantial evidence to support the
Countys findings that the Project will not significantly increase the risk of
loss due to wildland fires.
5.

The fair argument standard does not apply, but even if it did,
the SMND passes muster.
The fair argument standard is not relevant because this is a

modified project with an SMND. Under the fair argument standard, a


Mitigated Negative Declaration could be set aside if there is substantial
evidence supporting a fair argument that a project may have a significant
adverse impact on the environment after mitigation. CHRPs arguments
fall short in three ways. First, a court must assume that conditions of
approval will be effective. (Perley v. Board of Supervisors (1982) 137
Cal.App.3d 424, 434.) The County imposed 97 conditions of approval
when it approved the MUP, many of which eliminate hypothetical fire
impacts.

Second, the mitigation measures must be considered when

evaluating if there will be a significant adverse impact to the environment.


(2 Kostka & Zischke, Practice Under the California Environmental Quality
39

Act (Cont. Ed. Bar 2015) 6.78.) CHRP ignored the mitigation measures
in the SMND and has never claimed that they are inadequate or will be
ineffective.

Third, unreliable, argumentative, speculative or biased

statements from Mr. Singer and Mr. Dickson are not substantial
evidence.

(14 Cal. Code Regs., 15384(a) [excluding argument,

speculation and erroneous and inaccurate information from the definition of


substantial evidence] and 14 Cal.Code Regs., 15064(f)(5)[evidence that is
not credible does not constitute substantial evidence].)

C.

CHRP's Baseline Argument is Wrong, but the Argument Would


Fail Even if it was Correct Because Petitioner Cannot Show
Prejudice.
The County followed the general rule under CEQA and used the

existing physical condition at the time environmental analysis began as the


baseline for the SMND. (14 Cal. Code Regs., 15125(a).) Since the sacred
text storage structures existed when the County prepared the SMND, the
County had discretion to include them in the baseline. (Communities for a
Better Environment v. South Coast Air Quality Management District (2010)
48 Cal.4th 310, 336 & 14 Cal. Code Regs., 15126.2 (a).) (AR 113-114)
However, in an abundance of caution, the SMND also analyzed the
environmental impacts of the sacred text storage structures. (AR 115, 134135)

As the Superior Court ruled, the temporary permits for the sacred

text storage structures expired, but the structures were still on the Project
Site. Thus, the County had discretion to include them in the baseline. (AA
270)
CEQA review must start from existing physical conditions,
not from hypothetical conditions. (Citizens for East Shore Parks v. State
Lands Com. (2011) 202 Cal.App.4th 549, 561 [the baseline must include
existing conditions, even when those conditions have never been reviewed
40

and are unlawful].)

Citizens for East Shore Parks, in considering

arguments about a holdover tenant and the expiration of a lease, explicitly


rejected the argument that the baseline "must exclude current conditions
because the approving agency can eliminate them by refusing the renewal."
(Id. at p. 560.) Rather than "hypothetical" conditions, "a CEQA baseline
must reflect the existing physical conditions in the affected area, that is the
real conditions on the ground, rather than the level of development or
activity that could or should have been present according to a plan or
regulation. (Id. at p. 558 [quoting Communities for a Better Environment
v. South Coast Air Quality Management Dist., supra, 48 Cal.4th at p. 336
internal punctuation omitted].) In spite of the fact that the sacred text
storage structures were existing structures and were included in the
baseline, the SMND conservatively analyzed the environmental impacts of
making them permanent.
CHRP argues that the sacred text storage should have been
excluded from the baseline because it was originally permitted as
temporary.

CHRPs argument is irrelevant given that the SMND studied

the impacts of the sacred text storage. (AR 115, 134-135) The structures
have been in place for six years and making them permanent rather than
temporary does not include any physical changes to them.
Next, CHRP argues that the SMND should have compared the 2004
and 2008 MNDs analysis to the Project. (AOB, p. 57) CEQA Guideline
section 15262 requires an analysis of the changes from prior CEQA review
to the current CEQA review. (Benton v. Board of Supervisors, supra, 226
Cal.App.3d at p. 1477; Temecula Band of Luiseno Mission Indians v
Rancho Cal. Water Dist. (1996) 43 Cal.App.4th 425, 438.)
The County did this analysis too because it analyzed the impacts of
the sacred text storage structures. CHRP asserts that the "baseline" concept
was used to avoid "analyzing the structures' environmental effects as part of
41

the Project." (AR 56.) This is not correct.

The storage structures were

acknowledged as changed circumstances, and contrary to CHRP's


argument, the implications and associated fire issues were analyzed. (AR
134-135) The County was not required to pretend that existing structures
did not exist, nor did the County take the position that fire concerns were
outside of the scope of the SMNDs review.
Even if the County should have excluded the storage structures from
the baseline, CHRPs claim must fail because there was no informational
prejudice to anyone. The trial court found: "Any prejudice claimed by
Petitioner in the handling of this [baseline] element is belied by the
procedure that was followed." (AA 272-273) CHRP does not discuss this
finding at all in its opening brief. The trial court's finding is correct. The
SMND informs the public regarding the physical impacts of the Project and
the changes from previous review. (AR 115) This includes the fact that the
"structures will convert from temporary to permanent as a result of the
MUP." (AR 110)

D.

CHRP's Piecemealing Argument is Meritless.


CEQA prohibits an agency from dividing a single project into

several, smaller bite sized pieces to avoid analyzing the impacts of the
project as a whole. (Tuolumne County Citizens for Responsible Growth v.
City of Sonora (2007) 155 Cal.App.4th 1214, 1223.) The Superior Court
ruled that the County did not engage in impermissible piecemealing
because physical changes to the Project Site were later developments that
arose after [earlier] project approvals. (AA 268-269)
The 2004 and 2008 Approvals are use permits, authorized by
the Countys zoning ordinance. These uses must meet additional
requirements, such as building, plumbing, fire, and electrical codes. As an
42

example, building codes deal with structures and are designed to ensure the
safety and structure of buildings. Building codes regulate construction and
material details. (Taschner v. City Council (1973) 31 Cal.App.3d 48, 60,
disapproved on other grounds in Associated Home Builders, Inc. v. City of
Livermore (1976) 18 Cal.3d 582, 594.) Subsequent ministerial permits are
not evidence of unlawful piecemealing, as CHRP argues. (AOB, p. 60) The
additional ministerial permits were to protect the public health, welfare, and
safety by requiring building, electrical, septic, sewer, and other permits.
CHRP argues that the County erred by failing to include
sacred text storage in the 2008 MND. The 2008 MND was subject to a 90
day statute of limitations and is now unassailable.

(Pub. Res. Code,

21167(b).) Contrary to the remainder of CHRPs arguments, the SMND


analyzed the impacts of making the sacred text storage structures
permanent as well as the whole of the Project. (AR 115) No unlawful
piecemealing occurred.
V.

CONCLUSION

For the reasons set forth above, the Real Parties respectfully
request that CHRPs appeal be denied and that all aspects of the Superior
Courts decision be upheld.
DATED: November 24, 2015
Respectfully submitted,
CLEMENT, FITZPATRICK & KENWORTHY

By: /S/______________________________
TINA WALLIS
Attorneys for Real Parties in Interest,
Jack Petranker and Head Lama of the
Tibetan Nyingma Meditation Center
43

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 10,299 words.
Dated: November 24, 2015

/S/_______________________________
TINA WALLIS
Attorney for Real Parties in Interest,
Jack Petranker and Head Lama of the
Tibetan Nyingma Meditation Center

44

PROOF OF SERVICE
Case No. A145573
I am employed in the County of Sonoma, State of California. I am over the
age of 18 years and not a party to the within action. My business address is
3333 Mendocino Avenue, Suite 200, Santa Rosa, California 95403.
On November 24, 2015, I served the attached REAL PARTIES IN
INTEREST OPPOSITION BRIEF on the following parties:
Janis Grattan
Provencher & Flatt, LLP
823 Sonoma Avenue
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

Bruce D. Goldstein, County Counsel


Verne Ball, Deputy County Counsel
Office of the County Counsel
County of Sonoma
575 Administration Drive, Room 105A
Santa Rosa, CA 95403
Email: verne.ball@sonoma-county.org

Attorneys for Respondents


County of Sonoma, et al.

The document was served as follows:


/XX/ BY ELECTRONIC FILING: By transmission of the Notification of
Electronic Filing through TrueFiling by the Clerk to Registered Participants
who have consented to service.

45

I also served said document on the Trial Court by U.S. Mail, as indicated
below, as follows:
/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 Clement, Fitzpatrick & Kenworthy 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.
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 State of California
that the foregoing is true and correct.
Executed at Santa Rosa, California on November 24, 2015.

/S/__________________________
Ashley O'Neal

46

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