Escolar Documentos
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Cultura Documentos
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
2.
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
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 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.
II.
III.
A.
STATEMENT OF FACTS
Timberhill Resort.
In 1983, the County first approved a use permit for the real
B.
The record includes a 10-minute video called Heart of the Lotus with
additional information about the sacred texts.
10
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.
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
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
C.
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
Mr. Singer asked Ratna Ling to donate a new fire truck and
D.
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)
(AR 228, 254 & 10391040) All four structures have flame
14
E.
F.
(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
10
11
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
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:
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
1.
2.
3.
4.
5.
6.
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
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
14
15
b.
c.
d.
e.
24.
25.
A wildland fire is any fire that burns 300 acres or more. (AR 12647)
24
26.
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.
petition and found in favor of the County and Real Parties on all points.
(AA 261-273)
IV.
A.
ARGUMENT
1.
Administrative
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
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
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
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.
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
(Id. at p. 723;
B.
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.
To this end,
CEQA prohibits a lead agency from requiring another EIR unless specific
circumstances exist.
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
31
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:
33
The Project
(AR 110)
However, since addendums are not circulated to the public, the County took
the extraordinary step of preparing the SMND. (AR 110)
2.
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
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.
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
20
(Benton v. Board of
38
4.
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
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.
statements from Mr. Singer and Mr. Dickson are not substantial
evidence.
C.
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
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
D.
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.
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
/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
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
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
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