Real Estate and Land Use

By David L. McGrath

Subsequent Mitigated Negative Declaration Reviewed Under Substantial Evidence Test

Coastal Hills Rural Preservation v. County of Sonoma et al. (2016) 2 Cal.App.5th 1234

Why It Matters: The California Court of Appeal applied the substantial evidence standard of review and not the fair argument standard in affirming a County's decision to prepare a subsequent mitigated negative declaration (SMND) for a development project in Sonoma County (County). The Court also reiterated that local agencies are accorded deference in the interpretation and implementation of its land use policies.

Facts: Since the mid-1970s, the Tibetan Nyingma Meditation Center (TNMC) has operated a Buddhist monastery and retreat center known as the Ratna Ling Retreat Center (Ratna Ling) in the County. Ratna Ling is located on a 120-acre property that is designated by the County's General Plan as "Resources and Rural Development" (RRD).

In 2004, Ratna Ling submitted a master use permit (MUP) application to the County to construct 19 additional cabins, a library, a healing center, and an 18,750-square-foot facility to operate a printing press on site. Since the 1970s, a significant religious practice of TNMC has been the printing of Buddhist texts in the Tibetan language for worldwide distribution. After preparing and filing an initial study under CEQA, the County approved the 2004 application with a Mitigated Negative Declaration (2004 MND). In 2006, Ratna Ling added five additional printing presses to its facility. In 2008, the County adopted another MND in approving the construction of a water system and expansion of the Ratna Ling healing center (2008 MND).

In 2014, the County Board of Supervisors (Board) approved an MUP for a project that allowed Ratna Ling to permanently utilize four storage structures that were approximately 40,000 square feet (the Project). The structures, which were approved for temporary use in 2008, were used for paper and text storage to support the printing press operations and were equipped with automatic fire sprinklers and fire-retardant membranes. In approving the Project, the County released a 46-page SMND to the 2004 and 2008 MNDs. The SMND identified measures that were designed to mitigate all of the identified potential significant environmental impacts.

After the adoption of the SMND, a citizens group known as Coastal Hills Rural Preservation (CHRP) filed suit, arguing that (1) the County violated state and federal constitutional principles against the establishment of religion; (2) the Project was inconsistent with the County's General Plan and zoning policies; (3) the County violated CEQA by approving the Project without an EIR, particularly with regard to addressing fire impacts; and (4) the County's approval of the Project constituted spot zoning. The trial court denied CHRP's petition and CHRP appealed.

The Decision: The Court of Appeal affirmed the trial court's decision in its entirety.

Establishment of Religion. The Court ruled that CHRP waived any religious preference arguments because CHRP did not exhaust its administrative remedies on this issue. Additionally, the Court ruled that while new constitutional issues can be raised on appeal, such review requires a pure question of law with undisputed facts, but that the facts in this case were in dispute.

Consistency with General Plan and Zoning. The Court rejected CHRP's arguments that the Project violated the County's General Plan and zoning code, and deferred to the County's expertise in applying its land use policies. While CHRP argued that Ratna Ling's Project constituted "extraordinary levels of manufacturing productions (books and objects), massive storage structures and commercial Internet sales" inconsistent with the RRD land use category, the Court ruled that substantial evidence supported the County's decision that the Project was consistent with applicable land use regulations. The Court noted that "the body adopting a general plan has unique competence to interpret [its] policies when applying them to a proposed project" and that "it is not [the Court's] role to micromanage a local agency's development decisions." Moreover, the Court found that "there [was] no evidence in the record that Ratna Ling's printing activities [were] undertaken for profit," "the printing press use [had] been permitted since 2004," and the administrative record confirmed "that the Board fully considered the County's land use policies and the extent to which the [Project] conforms to those policies."

Standard of Review. CHRP argued that the "fair argument" test applied to the Court's review of the Board's decision to proceed with the SMND in lieu of an EIR because the change in the status of the storage tents from temporary to permanent constituted a new project under CEQA, as opposed to a modification of Ratna Ling's prior MUPs. The Court, however, elected to apply substantial evidence review to the Board's decision to adopt the SMND.

In proceeding under the substantial evidence test, the Court explained that "the fair argument test has been applied only to the decision whether to prepare an original EIR or a negative declaration." Importantly, the Court noted that "the issue of whether an agency's decision to forgo preparation of an EIR under [Public Resources Code § 21166] is reviewed under a substantial evidence standard or subject to an initial de novo determination is currently before the California Supreme Court" [citing Friends of the College of San Mateo Gardens v. San Mateo Community College Dist., Case No. S214061]. In response to CHRP's arguments regarding analysis of fire impacts, the Court ruled that substantial evidence supported the County's conclusions that any fire risks from the Project were adequately mitigated and were properly analyzed by the 2014 SMND. The Court also held that a mitigation measure requiring Ratna Ling to coordinate with the fire department and to install any additional infrastructure deemed appropriate was not improper and did not constitute unlawful deferred mitigation under CEQA.

Spot Zoning. The Court held that the County's approval of the Project did not involve impermissible spot zoning, concluding that this issue was not properly raised in the administrative proceeding. Moreover, the Court provided that Government Code § 65852 states that "[a]ll such [zoning] regulations shall be uniform for each class or kind of building or use of land throughout each zone, but the regulation in one type of zone may differ from those in other types of zones." The Court ruled that nothing in the record or in the relevant zoning regulations suggested that the use the County authorized for Ratna Ling was prohibited as to all other parcels in the same zone.

Practice Pointers:

  • Project proponents should always ensure that the administrative record includes substantial evidence supporting the legislative body's findings.
  • Local agencies are accorded deference in the interpretation and application of its land use policies.


pursuant to New York DR 2-101(f)

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