RL Petranker Response Brief 11-24-15

7/25/2019 RL Petranker Response Brief 11-24-15

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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 PRESERVATIONPetitioner and Appellant

v.

COUNTY OF SONOMA, SONOMA COUNTY BOARD OFSUPERVISORS, SONOMA COUNTY PERMIT AND RESOURCE

MANAGEMENT DEPARTMENTRespondents

and

JACK PETRANKER and THE HEAD LAMA OFTHE 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 WALLISState Bar No. 194729

[email protected]

Clement, Fitzpatrick & Kenworthy3333 Mendocino Avenue, Ste. 200Santa Rosa, CA 95403

(707) 523-1181Attorneys for Real Parties in Interest,

Jack Petranker and The Head Lama ofthe Tibetan Nyingma Meditation Center


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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 PRESERVATIONPetitioner and Appellant

v.

COUNTY OF SONOMA, SONOMA COUNTY BOARD OFSUPERVISORS, SONOMA COUNTY PERMIT AND RESOURCE

MANAGEMENT DEPARTMENTRespondents

and

JACK PETRANKER and THE HEAD LAMA OFTHE 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 WALLISState Bar No. 194729

[email protected], Fitzpatrick & Kenworthy

3333 Mendocino Avenue, Ste. 200Santa Rosa, CA 95403

(707) 523-1181Attorneys for Real Parties in Interest,

Jack Petranker and The Head Lama ofthe Tibetan Nyingma Meditation Center

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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 WALLISAttorneys for Real Parties in Interest,

Jack Petranker and Head Lama of the

Tibetan Nyingma Meditation Center

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TABLE OF CONTENTS

I. INTRODUCTION ................................................................................. 8

II. JOINDER IN COUNTY BRIEF ......................................................... 9

III. STATEMENT OF FACTS ................................................................. 9A. Timberhill Resort. ............................................................................... 9B. Ratna Lings Due Diligence, Acquisition and 2004 Use Permit. ....... 9C. 2008 Cave Application. ..................................................................... 13D. Zoning Permit for the Sacred Text Storage Membrane Structures... 14E. 2008 Use Permit for a Reservoir. ...................................................... 15F. Master Use Permit Application. ........................................................ 15

G. Superior Court Proceeding. ............................................................... 25

IV. ARGUMENT ..................................................................................... 25

A. CHRPs Constitutional, Spot Zoning, and CEQA ArgumentsShould Not be Considered Because of Fatal Procedural Defects. ..... 25

1. CHRP cannot raise its constitutional arguments for the first time onappeal when CHRP failed to exhaust these arguments during theadministrative process and even failed to raise them before the

Superior Court. ..................................................................................... 26

2. CHRPs constitutional and spot zoning claims are prohibitedbecause they are factual issues that were not raised with the trial court.

....................................................................................................... 27

3. CHRP committed a fatal procedural error by failing to identify theevidence favorable to the County and show why that evidence isinadequate. ........................................................................................... 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, soonly an addendum was required. The County should not be penalizedfor doing more than CEQA requires in order to ensure maximum

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

3. The substantial evidence standard applies to the Countys decisionto prepare the SMND........................................................................... 36

4. The Project easily meets the substantial evidence standard forsubsequent environmental review. ....................................................... 39

5. The fair argument standard does not apply, but even if it did, theSMND passes muster. .......................................................................... 39

C. CHRP's Baseline Argument is Wrong, but the Argument WouldFail Even if it was Correct Because Petitioner Cannot Show

Prejudice. ................................................................................................ 40

D. CHRP's Piecemealing Argument is Meritless. ............................. 42

V. CONCLUSION ................................................................................... 43

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TABLE OF AUTHORITIES

CASES

Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650 .... 30, 31, 32Al Larson Boat Shop v. Board of Harbor Commissioners(1993) 18Cal.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 ........... 28Benton v. Board of Supervisors(1991) 226 Cal.App.3d 1467 .. 31, 36, 38, 41California Native Plant Society v. City of Rancho Cordova (2009) 172

Cal.App.4th 603 ....................................................................................... 37Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149

Cal.App.4th 91 ........................................................................................ 29Communities for A Better Environment v. South Coast Air Quality

Management District(2010) 48 Cal.4th 310 ..................................... 40, 41CREED-21 v. City of San Diego(2015) 234 Cal.App.4th 488................... 30Defend the Bay v. City of Irvine(2004) 119 Cal.App.4th 1261 .................. 29Environmental Council of Sacramento v.City of Sacramento(2006) 142

Cal.App.4th 1018 ..................................................................................... 29Evans v. City of San Jose(2005) 128 Cal.App.4th 1123 ............................ 26Gentry v. City of Murrieta(1995) 36 Cal.App.4th 1359 ............................. 29

Hale v. Morgan(1978) 22 Cal.3d 388 ........................................................ 28Hershey v. Reclamation Dist. No. 108 (1927) 200 Cal. 550 ....................... 27Jenner v. City Council of Covina (1958) 164 Cal.App.2d 490................... 27Latinos Unidos de Napa v. City of Napa(2013) 221 Cal.App.4th 192 ..........

..................................................................................................... 29, 32, 36Laurel Heights Improvement Assn. v. Regents of Univ. of Cal.(1988) 47

Cal.3d 376 .................................................................................... 37, 38, 39Mani Brothers v.City of Los Angeles(2007) 153 Cal.App.4th 1385 ... passimOakland Heritage Alliance(2011) 195 Cal.App.4th 884, 900 ................... 37Perley v. Board of Supervisors(1982) 137 Cal.App.3d 424 ....................... 39

Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288 ..... 32, 33Sea & Sage Audubon Society, Inc. v. Planning Com.(1983) 34 Cal.3d 412

........................................................................................................... 27, 28Sierra Club v. City of Orange(2008) 163 Cal.App.4th 523 ....................... 26Sierra Club v. San Joaquin Local Agency Formation Comm'n(1999) 21

Cal.4th 489 ............................................................................................... 26

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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 .................................... 43Temecula 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 ........................................................................................ 27Code Civ. Proc., 1085................................................................................ 38Code Civ. Proc., 1094.5(c) ........................................................................ 37Code Civ. Proc., 338(a) ............................................................................. 38

Code Civ. Proc., 343.................................................................................. 38Evid. Code, 664 ......................................................................................... 29Gov. Code, 65009(b)(2) ............................................................................ 26Pub. Res. Code, 21080(e)(1-2) .................................................................. 37Pub. Res. Code, 21082.2(c) ....................................................................... 37Pub. Res. Code, 21166 ........................................................................ 30, 31Pub. Res. Code, 21167(b) .......................................................................... 43Pub. Res. Code, 21168 .............................................................................. 37

OTHER AUTHORITIES

Sonoma County Code 7-2 & 7-13 ........................................................... 17

TREATISES

Kostka & Zischke, Practice Under the California Environmental QualityAct (Cont. Ed. Bar 2015) 6.78.............................................................. 40

REGULATIONS

14 Cal. Code Regs., 15064(f)(5) ......................................................... 37, 4014 Cal. Code Regs., 15064(f)(5-6) ............................................................ 3714 Cal. Code Regs., 15125 ........................................................................ 40

14 Cal. Code Regs., 15126.2 ..................................................................... 4014 Cal. Code Regs., 15162 .................................................................. 30, 3114 Cal. Code Regs., 15384(a) .............................................................. 39, 4014 Cal. Code Regs., 15384(a-b) ................................................................ 3714 Cal. Code Regs., Appendix G ................................................................ 35

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I.

INTRODUCTION

The appellant, Coastal Hills Rural Preservation (CHRP),

asks this Court to reverse the carefully considered decision of the SonomaCounty 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

Ling1Buddhist 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 CEQA2issues.

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 non-profit California Corporation Sole called Head Lama of the TibetanNyingma Meditation Center (TNMC). TNMC owns the Ratna LingTibetan Buddhist Retreat Center. Unless otherwise specified, this brief willcollectively refer to Mr. Petranker and TNMC as Ratna Ling since that isthe name of the center at issue. Ratna Ling means jeweled crest.

2CEQA means Californias Environmental Quality Act.

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II.

JOINDER IN COUNTY BRIEF

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

III.

STATEMENT OF FACTS

A.

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

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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. Thesacred 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 8thcentury. (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)

3 There is more information about the Head Lamas background and

journey to Sonoma County at AR 6159.

4The record includes a 10-minute video called Heart of the Lotus with

additional information about the sacred texts.

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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 facility6 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 itproduce 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. (Seee.g., AR 9-

13) 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 7554-7579, 7611 & 12861-12873.

6CHRP repeatedly and incorrectly argues that the 2004 use permit

authorizing the press facility limited the facility to one press machine. Asis discussed later in this brief, the County authorized the press use, but didnot limit or regulate specific press equipment because equipment canchange over time. (SeeAR 4096-4097)

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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 onthe 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)

7AR 212, 623, 637, 639, 645646, 657, 661, 663, 668, 669, 674-675, 688689, 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, 7095-7096, 7102, 7125, 7127, 8329, 8657, 8760, 8772, 8801-8803, 8832, 8847,8865, 8880, 8888-8890, 8999, 9136, 10630, 12277, 12283, 12392, 12412-12413, 12462, 12468, 12472, 12495, 12526.

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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. Forreligious 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 equivalentof all texts destroyed by the Chinese invasion on the site; it only seeks tostore far fewer volumes that cannot be shipped to Tibet.

9As is set forth at various places in this brief, Mr. Singer and Mr. Dickson

opposed the cave application and MUP in both their individual capacitiesand as public officials, the Fire Chief and President, respectively, for theTimber Cove Fire Protection District (TCFPD).

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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 andsupplemental 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 samestandard 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)

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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, 5430-

5439 & 6027-6037)

F.

Master Use Permit Application.

On February 20, 2009, Ratna Ling asked PRMD to put a holdon 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. (Seee.g. AR 3832) Mr. Singer

appeared at the hearing, stating that as a nearby neighbor he was personally

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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 oppositionappealed 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

trucks11(AR 1003);

10There 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, forexample, there could be no truck trips for a week and then 3.5 trips in oneday. Under the 2013 proposal and in the approved MUP, the truck trips are

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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 fromkingpin to axle (AR 110), as compared to the 2004 conditions of approval,which did not impose any size limit on trucks. (AR 9-16)

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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 notin 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 allaccessory 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 7624-

7625)

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

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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 storagestructures; (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 ofequipment, the number was not really conditioned aspart 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

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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 yearfor 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 high-

performance fire engine and supplemental equipment to TCFPD around2008, as is set forth earlier in this brief. (SeeAR 213, 574 & 4381-4382)

13Mr. Singer appeared during this hearing. He objected to the Project andadmitted that he was wearing two hats (e.g., a member of the

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

2. The Fire Marshal testified that with the fire protectionsystems, fire hydrants, water supply, etc.: we have got apretty safe outfit. (AR 4452);

3.

There are only minimal amounts of hazardous materials onthe site. Ratna Ling uses non-toxic vegetable based inkdyes and a water based plate-making process in the pressfacility. The only hazardous waste is rags from wiping outink cans, which are stored in appropriate containers untilthey are removed by a licensed hazardous materials removalservice. (AR 43 & 132)

4. The probability of fire starting at the sacred text storagestructures and causing a wildland fire is less than 1.3%.

(AR 4364);

5. The sacred text storage structures have steel frames withfire-resistant membranes. (AR 4447 & 8078-8193);

6. The County mandated fire sprinklers in all new constructionin 2002 because fire sprinklers are the most effective way toextinguish fires, especially in rural areas with limited firedepartment resources. (AR 4363-4364) This is becausesprinklers 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 alsohad a dual role and opposed Ratna Ling individually and as a TCFPDofficial. (SeeAR 5676, 5680, 5739, 5777-5783, 6304, 7195-7196, 12030-12031 & 12702-12711)

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sprinkler requirements are more stringent than Staterequirements. (AR 4074);

7. The sacred text storage structures have fire sprinklers. (AR3403 & 4091) These sprinklers are part of the water system

and have water running directly to them (e.g. wetsprinklers). (AR 4436-4437) NFPA statistics show thatwhere storage uses have wet sprinklers, 98% of thesprinklers operated effectively. (AR 12568);

8. The sacred text structures are classified as storagestructures, not industrial structures, and are not big enoughto be classified as large area buildings by the FireMarshal. (AR 4449-4450);

9.

The sacred text storage structures have existed on theProject Site since 2008. Since then, County records showthere have been no emergency calls for a fire. (AR 12100-12132 & 12134);

10.

The tank that provides water to the fire sprinklers alwayshas a minimum of 100,000 gallons of water in it for firesuppression 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 stillwork and have water) (AR 4478);

12. The Countys Chief Building Official concluded thatchanging the storage structures from temporary topermanent had no practical effect because the Countyrequired the structures to meet building standards forpermanent structures. (AR 44 & 254);

13. The Countys Fire Marshal is satisfied that the structuresmet applicable NFPA 701 and building standards for fireprotection. (AR 44, 135 & 334);

14. Ratna Ling volunteered to exceed all code requirements byinstalling a heat detection system in the structures. (AR4364);

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15. According to the Countys REDCOM14

records, TCPFDhas a Type 1 fire engine. (AR 45 & 4366);

16. Ratna Ling donated approximately $290,000 to TCFPD topurchase the engine of the TCFPDs choice and

supplemental equipment in 2008. (AR 213, 574 & 4381-4382);

17. The Countys REDCOM system allows a fire district to listspecific equipment it needs to respond to a fire at an addressin advance of a fire incident. REDCOMs records show thatTCFPDs existing Type 1 engine would respond to a fire atRatna Ling, along with other equipment. (AR 134, 4366,12128-12129);

18.

The County has Mutual Aid Agreements with otherjurisdictions to provide supplemental responses to fire orother 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 agood faith effort to provide volunteers to TCFPD. (AR 65);

21.

Condition of approval 81 requires Ratna Ling to provideand maintain its own on-site fire engine. (AR 65);

22. Condition of approval 82 requires Ratna Ling to coordinatewith the County Fire Marshal and TCFPD to install anyadditional on-site infrastructure deemed appropriate by theFire Marshal. (AR 65);

23. Vern Losh, a qualified fire professional with 40 years ofexperience, who previously served as the Chief/Director ofthe Countys Department of Emergency Services from 1995through 2008 (AR 9217-9219), testified that:

a.

There is a low likelihood of fire starting at Ratna Lingbecause there is no ignition source, Ratna Ling is anon-smoking campus and the sacred text storage

14 REDCOM stands for Redwood Empire Dispatch Communications.

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structures only have minimal electrical service.Therefore, the most likely ignition source is a lawnmower or lightning. (AR 4363, 12143);

b.

If lightning did start a fire, the automatic fire sprinklers

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

c. If the sprinklers did not extinguish the fire in thesacred text storage structures, it is highly unlikely thatthe fire would spread beyond the structure becauseRatna Ling has 200-300 feet of defensible spacearound each structure, when only 100 feet is required.(AR 4441-4442);

d.

CalFires records show there were 229 wildland15

firesin California from 2008 to 2012. Only three of themwere 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 asignificant fire event originate from a structure that hasheat detection, automatic sprinklers, and defensiblespace. (AR 4365)

24. The Project Site has a 20 acre-foot reservoir on it. Thereservoir is filled only with water that falls on its surface orbanks or buildings. (AR 137) It has a capacity of 6.5million gallons of water and even after four years of droughtstill has 3.6 million gallons of water in it that could be usedfor fire suppression. (AR 4435 & 4439);

25. In addition to the reservoir, the Project Site contains areflection pond. The reflection ponds capacity is2,000,000 gallons of water. In drought conditions, thereflection pond is estimated to have 1,000,000 gallons ofwater in it. In the event of a fire, the water in the reflectionpond could be drafted by fire engines or used by helicoptersfor fire suppression purposes. (AR 4439 - 4440);

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

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26. In addition to the reservoir and reflection pond, there aretwo other ponds, the Press Pond and the Fishing HolePond, that could be used for fire suppression purposes.(AR 7550);

27.

Ratna Ling will use its best efforts to raise $100,000 fordonation to TCFPD over a five-year period. (AR 4361-4362 & 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.

ARGUMENT

A. CHRPs Constitutional, Spot Zoning, and CEQA Arguments

Should Not be Considered Because of Fatal Procedural Defects.

Ratna Ling respectfully requests that this Court decline toconsider 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.

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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

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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 citesrefer 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 RLUIPA16, 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 prohibitedbecause 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

16RLUIPA 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.2d490, 498.)

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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, butallowed 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 applies18

courts must

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

Control Bd. Cases (2006) 136 Cal.App.4th 674, 723.) The burden of

18SeeSection B.3 of this brief for a discussion of why the substantialevidence is the correct standard of review.

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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 outthe 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

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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 amodified 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 BrosReal 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.)

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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 asignificant 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. InBenton 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.

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The court disagreed and noted:

it stands to reason that no greater review should berequired of a project that initially raised so few

environmental questions that an EIR was notrequired,but a negative declaration was found to satisfy theenvironmental review requirements of CEQA. Tointerpret CEQA as requiring a greater level of reviewfor a modification of a project . . . would be absurd.(Id. at p. 670.)

Similarly, inLatinos 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

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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 Neighborhoodwas not distinguishable onits facts, its fundamental analysis is flawed. The court in SaveOur Neighborhood tackled what it perceived to be thethreshold question [of] whether we are dealing with a changeto a particular project or a new project altogether, anddeclared that section 21166 and Guidelines section 15162apply to the former but not the latter. (Save OurNeighborhood, supra, 140 Cal.App.4th at p. 1301.) Thisnovel new project test does not provide an objective oruseful framework. Drastic changes to a project might beviewed by some as transforming the project to a newproject,while others may characterize the same drastic changes in aproject as resulting in a dramatically modifiedproject. Suchlabeling entails no specific guidelines and simply is nothelpful to our analysis.

The new project test in Save Our Neighborhood, alsoinappropriately bypassed otherwise applicable statutory and

regulatory provisions (i.e., 21166; Guidelines, 15162)when it considered it a question of law for the courtwhether the changed project was to be reviewed under section21166 at all. (Save Our Neighborhood, supra, at p. 1297.) Wedisagree with that approach and view the issue of whether anagency proceeded properly in treating a project as subject tosection 21166 not as a question of law, but rather as aquestion of the adequacy of evidence in the record to supportthe agency's determination. (Mani Brothers v. City of LosAngeles, 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

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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,LatinosUnidos, andMani Brothers. This Project is a modified onebecause 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 trips19

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 thatrequire major revisions to the previous MNDs due to theinvolvement of a new or substantially more severe significant

environmental effect. (AR 41) The evidence supporting thisfinding is recited in the resolution approving the Project: theProject is a modest expansion of an existing retreat center and willmake four existing membrane structures permanent instead oftemporary. (AR 41) The Board noted that the Project will reduce

19Seefootnote 11 for an explanation of reductions in truck trips and trucksizes.

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the number of truck trips, clarify ambiguous terms in the priorapprovals, and will result in very few physical changes to theenvironment. (AR 41 & 4350-4351)

b.

There are no substantial changes to circumstances

under which the Project is undertaken that would require majorrevisions to the prior MNDs due to the involvement of a new orsubstantially more severe environmental impact. (AR 41) Theevidence supporting this finding is: the applicant is the same, theuses are the same, the Project site is the same; and no substantialchange in circumstances was identified in the SMND or throughpublic 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 wasnot known at the time of the prior MNDs. (AR 41) There was noevidence showing that new, different or more feasible mitigationmeasures were needed or that the applicant declined to adopt anymitigation measures necessary to reduce or avoid a significantimpact. (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 significantrisk of loss, injury or death

involving wildland fires, as is set forth in the list on pages 21 to 25 of this

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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 morethan 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

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record. (Pub. Res. Code, 21168.5; Mani Brothers v. City of Los Angeles,

supra,153 Cal.App.4that 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 SubstantialEvidence 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 clearlyinaccurate or erroneous, or evidence of social or economic impacts that do notcontribute 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. CodeRegs., 15064(f)(5-6), 14 Cal. Code Regs., 15384(a-b).)

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(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.

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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 exposepeople 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 atp. 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 approvalwhen 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

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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 substantialevidence. (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, 134-

135) 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

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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

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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 structuresdid 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

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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 ofLivermore(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 WALLISAttorneys for Real Parties in Interest,



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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 WALLISAttorney for Real Parties in Interest,



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PROOF OF SERVICECase No. A145573

I am employed in the County of Sonoma, State of California. I am over theage 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 attachedREAL PARTIES ININTEREST OPPOSITION BRIEF on the following parties:

Janis Grattan

Provencher & Flatt, LLP

823 Sonoma Avenue

Santa Rosa, CA 95404

Email:[email protected]

Michael R. Lozeau

Rebecca L. Davis

Lozeau Drury LLP

410 12th

Street, Suite 250

Oakland, CA 94607

Email: [email protected]


Attorneys for Appellant

Coastal Hills Rural

Preservation

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


Attorneys for Respondents

County of Sonoma, et al.

The document was served as follows:

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

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I also served said document on the Trial Court by U.S. Mail, as indicatedbelow, as follows:

/XX/ BY U.S. MAIL: I placed each such sealed envelope, with postagethereon fully prepaid for first-class mail, for collection and mailing at SantaRosa, California, following ordinary business practices. I am readilyfamiliar with the practice of Clement, Fitzpatrick & Kenworthy forprocessing of correspondence, said practice being that in the ordinarycourse of business, correspondence is deposited in the United States PostalService the same day as it is placed for processing.

Superior Court of the State of CaliforniaCounty of Sonoma - Appeals Division

600 Administration DriveSanta Rosa, CA 95403-2878

I declare under penalty of perjury under the laws of the State of Californiathat the foregoing is true and correct.

Executed at Santa Rosa, California on November 24, 2015.

/S/__________________________Ashley O'Neal

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