Sierra Club v. County of Sonoma

(CEQA).^[1] Appellants Sierra Club and Center for Biological Diversity (petitioners) challenged the Commissioner’s determination by petitioning for a writ of mandate in the trial court. The trial court agreed with the Commissioner and ruled in favor of the Ohlsons.

We affirm. Although the ordinance may allow the Commissioner to exercise discretion when issuing erosion-control permits in some circumstances, petitioners fail to show that the Commissioner improperly determined that issuing the Ohlsons’ permit was ministerial. Most of the ordinance’s provisions that potentially confer discretion did not apply to the Ohlsons’ project, and petitioners fail to show that the few that might apply conferred the ability to mitigate potential environmental impacts to any meaningful degree.

BACKGROUND

Until 2000, grape growers in Sonoma County could plant or replant a vineyard “as a matter of right” without any governmental review or permission. (Sonoma County Ord. No. 5216, § IV, subd. (b) (Feb. 8, 2000).) In 2000, the county enacted the ordinance, which governs “grading, drainage improvement, and vineyard and orchard site development within the unincorporated area of the county.”^[2] (Ord., § 11.02.020.) The ordinance has been amended over the years, most recently in October 2016. (Sonoma County Ord. No. 6182.) We will consider and apply the ordinance as amended in 2012, since this was the version in effect when the Ohlsons’ permit was issued.

Article 8 of the ordinance requires growers, other than hobbyists, to obtain an erosion-control permit from the Commissioner before establishing or replanting a vineyard. (Ord., §§ 11.02.030, 11.08.010, subd. A, 11.08.020, 11.10.010, table 11-4.) An applicant must submit plans and specifications demonstrating compliance with certain directives and must accept certain ongoing agricultural practices. The ordinance allows growers to prepare and submit plans for sites with a low erosion risk (level I sites), but it requires a civil engineer to prepare plans for sites having steeper slopes or a higher erosion risk (level II sites). (Ord., §§ 11.08.010, subd. B & table 11-3, 11.10.020, subds. B, C.)

Article 16 of the ordinance sets out the substantive standards for “the proper conduct of grading, drainage improvement, and vineyard and orchard

site development.” (Ord., § 11.16.010.) Some of its directives require the grower to comply with a publication of the Commissioner, “Best Management Practices for Agricultural Erosion and Sediment Control” (best management practices), which is not part of the ordinance itself. A typical example of such a directive is ordinance former section 11.16.040, subdivision A, titled “Management of storm water,” which states, “Grading and vineyard and orchard site development shall include the drainage improvements or other methods necessary to manage storm water in compliance with the permit authority’s best management practices guide.”

The Ohlsons’ application was filed in October 2013 for a level II erosion-control permit. The application sought to convert into a vineyard 108 of 132 acres of rangeland.^[3] Filed with the application were site maps, a drainage report prepared by a certified engineer, and a biological-resources report. The application indicated that the property included wetland areas and seasonal swales, but no trees or streams. The wetland areas were to be protected by minimum setbacks, as set forth in the biological-resources report, and circular pipe and vee ditch drains were to be installed to drain 27 acres of the property. Erosion was to be controlled through various means, including by using grass avenues (rather than roads), straw mulch, filter strips, and cover crops. According to the drainage report, water runoff was not expected to increase and would be directed to the seasonal swales.

Inspectors for the Commissioner visited the Ohlsons’ property in December 2013. The primary review of the Ohlsons’ application appears to have been by means of a form checklist containing 69 separate items, some with subparts. These items address whether an applicant submitted the required components of the application, as well as substantive matters such as “[protection fencing for waterways & sensitive areas,” “[tjemporary and permanent erosion control measures,” “[ljocation of storm water management and sediment control measures,” and “BMP [best management practice] details & specifications.” For each item, the reviewer indicated whether the project “me[t] standards” or alternatively indicated that the item did not apply to the project. In no instance did the Commissioner find the Ohlsons’ application to be out of compliance, although some items were not marked either way. In a subsequent list of 10 comments on the application, the Commissioner sought corrections or clarifications to the writings and maps,

but it appears no substantive changes were sought.^[4] A letter from the Ohlsons’ civil engineer confirmed that the requested corrections and clarifications had been made.

The Commissioner approved the permit on December 30, 2013.^[5] Several months later, the Commissioner issued a notice declaring that the permit’s issuance was ministerial and exempt from CEQA review. The notice stated that ‘“[t]he applicant does not seek changes in the ministerial standards set in [the ordinance] and the Best Management Practices . . . .” It further stated that “the issuance of permits [under the ordinance is a] ministerial action[], except in one situation not applicable here.”

The parties agree that CEQA does not require an environmental review for ministerial acts by local agencies. (§ 21080, subds. (a), (b)(1).) Their dispute centers on whether the Commissioner’s issuance of the Ohlsons’ permit was such a ministerial act. Friends of the Gualala River and the Center for Biological Diversity challenged the permit by filing a petition for a writ of mandate in the trial court. The Sierra Club was added as a petitioner in an amended petition.^[6] Following briefing on the merits, the trial court denied the petition in a lengthy written decision. It rejected various procedural arguments raised by the respondents and real parties in interest, but it affirmed the Commissioner’s determination that issuing the permit was ministerial and therefore exempt from CEQA review.^[7]

DISCUSSION

In their appeal, petitioners continue to maintain that the Ohlsons’ permit application was subject to an environmental review under CEQA. Their primary argument is that issuing the permit must have been a discretionary act because many provisions of the ordinance are broad and vague and therefore allow the Commissioner to exercise discretion. We are unpersuaded by this argument because most of the provisions that potentially confer discretion did not apply to the Ohlsons’ project, and petitioners fail to show that the few that did apply conferred on the Commissioner the ability to

mitigate potential environmental impacts to any meaningful degree. As a result, we must defer to the Commissioner’s determination that issuing the Ohlsons’ permit was a ministerial act.

A. The Initial Determination of CEQA’s Applicability.

“CEQA was enacted to advance four related purposes: to (1) inform the government and public about a proposed activity’s potential environmental impacts; (2) identify ways to reduce, or avoid, environmental damage; (3) prevent environmental damage by requiring project changes via alternatives or mitigation measures when feasible; and (4) disclose to the public the rationale for governmental approval of a project that may significantly impact the environment.” (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369 , 382 [ 196 Cal.Rptr.3d 94 , 362 P.3d 792 ].)

To ensure that environmental considerations inform public agencies’ decisions, CEQA establishes a multitiered process. Here, we are concerned with the initial step of the process, which requires the agency to “ ‘conduct a preliminary review in order to determine whether CEQA applies to a proposed activity.’ ” (Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768 , 776 [ 166 Cal.Rptr.3d 1 ] (Parker Shattuck).) As part of this review, the agency is to determine whether the activity is a “project” for purposes of CEQA and, if it is, whether it falls under an exemption. (Sunset Sky Ranch Pilots Assn. v. County of Sacramento (2009) 47 Cal.4th 902 , 907 [ 102 Cal.Rptr.3d 894 , 220 P.3d 905 ].) There are two types of exemptions: statutory, which are enacted by the Legislature and are not subject to exceptions, and categorical, which are adopted in the regulations developed to guide CEQA implementation (CEQA Guidelines)^[8] and are subject to exceptions. (North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832 , 850-851 [ 174 Cal.Rptr.3d 229 ].) “If the project is in an exempt category for which there is no exception, ‘ “no further environmental review is necessary.” ’ ” (Parker Shattuck, at p. 776.) If the project is not exempt, the agency proceeds to the other tiers of the CEQA process, which involve the preparation of an initial study and, if appropriate, an environmental impact report (EIR). (Parker Shattuck, at p. 776.)

B. The Ministerial Exemption.

CEQA applies only to “discretionary projects proposed to be carried out or approved by public agencies.” (§ 21080, subd. (a).) The statute

correspondingly exempts ‘“[m]inisterial projects” (id., subd. (b)(1)), a term that has been assumed to refer to projects that are not discretionary.^[9] CEQA itself does not define either term, but both are defined in the guidelines. Under Guidelines section 15357, a discretionary act is one that ‘“requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations.” Under Guidelines section 15369, a ministerial decision is one “involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out.” If a project approval features both ministerial and discretionary elements, the project is deemed discretionary and subject to CEQA review. (Guidelines, § 15268, subd. (d).)

Our state Supreme Court has explained the legislative rationale behind CEQA’s exclusion of ministerial actions: “The statutory distinction between discretionary and purely ministerial projects implicitly recognizes that unless a public agency can shape the project in a way that would respond to concerns raised in an EIR, or its functional equivalent, environmental review would be a meaningless exercise.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105 , 117 [ 65 Cal.Rptr.2d 580 , 939 P.2d 1280 ].) As further explained in Leach v. City of San Diego (1990) 220 Cal.App.3d 389 [ 269 Cal.Rptr. 328 ], “ ‘To properly draw the line between “discretionary” and “ministerial” decisions . . . , we must ask why it makes sense to exempt the ministerial ones from the EIR requirement. The answer is that for truly ministerial permits an EIR is irrelevant. No matter what the EIR might reveal about the terrible environmental consequences of going ahead with a given project the government agency would lack the power (that is, the discretion) to stop or modify it in any relevant way. The agency could not lawfully deny the permit nor condition it in any way which would mitigate the environmental damage in any significant way.’ ” (Id. at p. 394; see also Central Basin Municipal Water Dist. v. Water Replenishment Dist. of Southern California (2012) 211 Cal.App.4th 943 , 949 [ 150 Cal.Rptr.3d 354 ] [“CEQA does not apply to ministerial actions—actions in which the agency is not permitted to shape the process to address environmental concerns”].) Consistent with this

understanding, the guidelines recognize that ‘“[w]hether an agency has discretionary or ministerial controls over a project depends on the authority granted by the law providing the controls over the activity. Similar projects may be subject to discretionary controls in one city or county and only ministerial controls in another.” (Guidelines, § 15002, subd. (i)(2); see Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004 , 1014-1015 [ 100 Cal.Rptr.2d 413 ].)

The first appellate case to discuss the ministerial exemption was People v. Department of Housing & Community Development (1975) 45 Cal.App.3d 185 [ 119 Cal.Rptr. 266 ] (Department of Housing), in which the court considered whether a construction permit to develop a mobilehome park, required by the Department of Housing and Community Development under the Mobilehome Parks Act (MPA), was ministerial or discretionary.^[10] (Department of Housing, at p. 192.) Rejecting the department’s determination that the permit’s issuance was ministerial, the court held that the approval was ‘“neither wholly ministerial nor entirely discretionary” and therefore required CEQA review. (Department of Housing, at pp. 193-194.) The court based its conclusion that the approval was partially discretionary on the MPA’s building standards, which used imprecise adjectives to define compliance, and on a provision in the act that permitted a conditional permit: ‘“A third class of standards is relatively broad, relatively general. The applicant for a mobilehome construction permit must submit a ‘description of the water supply, ground drainage and method of sewage disposal.’ [Citation.] There must be a ‘sufficient’ supply of artificial lighting. [Citation.] The water supply must be ‘adequate’ and ‘potable.’ [Citation.] The site must be ‘well-drained and graded.’ [Citation.] Instead of an unqualified construction permit, the enforcement agency may issue a conditional permit which prescribes ongoing conditions on use or occupancy.” (Department of Housing, at p. 193.) As the court explained, ‘“[w]hether the water supply is adequate and potable; whether sewage disposal is satisfactory; whether the site is well-drained and graded; whether lighting is sufficient; whether sub-optimum features call for use and occupancy restrictions—these are relatively personal decisions addressed to the sound judgment and enlightened choice of the administrator. These decisions may have great environmental significance relative to one physical site, negligible significance in another. Inevitably they evoke a strong admixture of discretion.” (Ibid.)

implementing regulations or on a case-by-case basis.” (See Friends of Davis v. City of Davis, supra, 83 Cal.App.4th at p. 1015; see also Sierra Club, supra, 205 Cal.App.4th at p. 178.)

To the extent an agency’s determination that an activity is exempt involves factual determinations, we review those determinations for substantial evidence. (See, e.g., Save Our Carmel River v. Monterey Peninsula Water Management Dist., supra, 141 Cal.App.4th at p. 694.) And to the extent the agency’s determination that an activity is exempt involves pure questions of law, we review those questions de novo. (Juana Briones House, supra, 190 Cal.App.4th at p. 303; Prentiss v. City of South Pasadena (1993) 15 Cal.App.4th 85 , 89 [ 18 Cal.Rptr.2d 641 ].)

D. The Commissioner’s Determination That Issuing the Erosion-control Permit Was Ministerial Involved No Prejudicial Abuse of Discretion.

With this standard of review in mind, we turn to consider the Commissioner’s determination that issuing the Ohlsons’ permit was a ministerial act. We begin by pointing out that the ordinance itself categorically declares that issuing erosion-control permits is ministerial, except when an application seeks exceptions from the established standards. (Ord., §§ 11.10.020, subd. E, 11.10.060.)^[11] Because, as we discuss below, a determination whether issuing a permit is ministerial or discretionary generally must be made on the basis of the project’s particular circumstances, we are skeptical of such a categorical declaration. But we need not decide here whether the declaration is always binding—i.e., whether the issuance of every erosion-control permit is necessarily ministerial unless an exception is sought—because petitioners have not shown that any provisions that arguably grant discretion actually apply to the Ohlsons’ application so as to refute the Commissioner’s determination that issuing the permit was ministerial.

Petitioners argue that issuing an erosion-control permit is always a discretionary act because provisions in the ordinance establish “vague, subjective standards that require County personnel to use deliberation and personal

judgment to determine whether and how vineyard developments should be carried out.” Petitioners argue, for example, that a provision governing ‘“[cjuts and fills” states that cuts and fills shall be “limited to the amount necessary for the intended use,” be graded “to achieve a consistent grade and natural appearance,” and have slope tops rounded “to blend with the natural terrain.” (Ord., § 11.16.020, former subd. A.l, 2, 2.a.) Other provisions require stormwater to be diverted to “the nearest practicable disposal location,” a method of soil storage that “shall not cause damage to root systems of trees intended to be preserved,” and “suitable stabilization measures” to protect against a loss of topsoil during grading activities. (Ord., §§ 11.16.040, former subd. D, 11.16.090, former subds. A, B.) According to petitioners, these and a number of other provisions demand the exercise of discretion because they contain insufficiently precise standards for compliance.^[12]

1. Most of the ordinance ’s provisions that potentially confer discretion on the Commissioner did not apply to the Ohlsons’ permit.

We need not decide whether most of the provisions cited by petitioners confer discretion on the Commissioner because they did not apply to the Ohlsons’ application. The relevant question in evaluating whether the approval of a particular project was discretionary is not whether the regulations granted the local agency some discretion in the abstract, but whether the regulations granted the agency discretion regarding the particular project. In other words, a regulation cited as conferring discretion must have been relevant to the project.

This point was made in Prentiss v. City of South Pasadena, supra, 15 Cal.App.4th 85 , in which the petitioners challenged a city’s conclusion that issuing a building permit to alter a historic building was ministerial. (Id. at p. 86.) Under state law governing historical structures, the building owner could have sought a permit to alter the building in various ways that did not

comply with local building codes. The owner made no attempt to take advantage of this provision, however, and submitted plans in full compliance with local ordinances. The petitioners argued that issuing the permit was discretionary because the city could have exercised discretion under state law to permit a departure from those ordinances. Prentiss rejected that argument because the city had not exercised any state law discretion that may have been available to it. As the court explained, ‘“[t]he fact that discretion could conceivably be exercised in projects arising under the State Historical Building Code does not mean that respondents’ project was discretionary.” (Id. at p. 97.)

The principle that a discretion-conferring provision must have been relevant to the project grows directly out of CEQA’s focus on individual projects. (§ 21080, subd. (a) [CEQA applies to ‘“projects”].) Our review is directed not to the regulations themselves but to the agency’s action in approving the project under those regulations. Thus, any regulation cited as granting discretion to the agency must actually have applied to the project under review. If it did not, the agency could not have exercised discretion under that regulation in approving the project.

Some of the provisions cited by petitioners were facially inapplicable to the Ohlsons’ application. For example, ordinance section 11.16.020, former subdivision C.8 regulated the use of fill ‘“in [a] flood-prone urban area.” This provision was obviously inapplicable since the Ohlsons’ property is in a remote agricultural area. Similarly, the many regulations cited by petitioners concerning the treatment of watercourses, lakes, and trees were inapplicable because the Ohlsons’ property has no such features.^[13]

Other provisions cited by petitioners, while facially applicable, involved activities the Commissioner expressly excluded in considering the Ohlsons’ application. Many of these provisions concerned cuts, fills, and other aspects of grading.^[14] ‘“Total volume of cuts,” ‘“total volume of fills,” and ‘“acres to be graded” were all marked as ‘“not applicable” in the application, which was approved without material modification.^[15] In the same vein, best management

practice No. 2.7 governs roads, but the Ohlsons’ property will have no roads and will instead have grass-covered avenues. And ordinance section 11.10.020, former subdivision B required an applicant to submit “any reports and studies necessary to verify compliance with the standards in article 16 (e.g., hydrology study, hydraulic analysis, compaction report, geotechnical or soils report, liquefachon study, wetlands assessment, wetlands delineation),” but contrary to petitioners’ suggestion otherwise, this provision did not give the Commissioner discretion either to require reports for conditions that were not present or to excuse reports for conditions that were present. Nor have pehtioners cited anything in the record that points to any condition on the Ohlsons’ property that triggered an unmet need for some other report.

Finally, many of the best management practices petitioners cite applied to ongoing vineyard operations, and there is no evidence in the record to suggest that they played any role in issuing the Ohlsons’ permit. These included directives for growers to avoid planting in frost-prone areas (No. 1.8), to avoid tilling early in the spring or late in the fall (No. 3.3), to minimize tillage on erodible slopes (No. 3.4), to leave downed trees in the riparian corridor (No. 5.6), and to minimize tilling on erodible slopes (No. 3.4). None of these topics was included on the Commissioner’s approval checklist.^[16]

In short, most of the provisions cited by pehtioners as conferring discretion on the Commissioner were inapplicable to the Ohlsons’ project and do not refute the Commissioner’s determination that issuing the Ohlsons’ permit was ministerial. We decline petitioners’ invitahon to hold that the issuance of erosion-control permits is always discretionary, even in cases in which no discretion-conferring provision applies, simply because provisions conferring discretion are present in the ordinance.

2. Nothing in the language of the three potentially applicable provisions that arguably confer discretion or in the record indicates that the Commissioner was able to mitigate potential environmental impacts to any meaningful degree.

After eliminating inapplicable provisions, only three provisions remain that were potentially material to the Ohlsons’ permit: one requiring a 50-foot setback from wetlands “unless a wetlands biologist recommends a different setback” (Ord., former § 11.16.150, table 11-7), another requiring stormwater to be diverted “to the nearest practicable disposal location” (Ord.,

§ 11.16.040, former subd. D), and a third requiring the applicant to ‘“[i]ncor-porate natural drainage features . . . whenever possible” (best management practice No. 4.2).

Petitioners argue that the language of these provisions is general enough to confer discretion. But even assuming we could interpret these provisions to grant some discretion to the Commissioner, we reject petitioners’ argument that this alone requires us to hold that the Commissioner’s issuance of the Ohlsons’ permit was a discretionary act. The argument ignores the principle, arising out of the functional test, that “ ‘CEQA does not apply to an agency decision simply because the agency may exercise some discretion in approving the project or undertaking. Instead[,] to trigger CEQA compliance, the discretion must be of a certain kind; it must provide the agency with the ability and authority to ‘“mitigate . . . environmental damage” to some degree.’ ” (San Diego Navy Broadway Complex Coalition v. City of San Diego, supra, 185 Cal.App.4th at p. 934, italics omitted.) For the reasons discussed above, the existence of discretion is irrelevant if it does not confer the ability to mitigate any potential environmental impacts in a meaningful way. (See also Johnson v. State of California (1968) 69 Cal.2d 782 , 788 [ 73 Cal.Rptr. 240 , 447 P.2d 352 ] [“ ‘[I]t would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail’ ”].)^[17]

We recognize that some older decisions treated the mere existence of discretion as conclusive, without expressly discussing its meaningfulness in the context of the particular project approval. In those decisions, however, such a discussion was unnecessary because the scope of the discretion granted was obviously meaningful. In Department of Housing, for example, the agency had broad discretion with respect to the water supply, drainage, and method of sewage disposal at the site, and it could issue a conditional permit imposing a variety of conditions on use and occupancy. (Department of Housing, supra, 45 Cal.App.3d at p. 193.) There was no question that such broad authority conferred on the agency the power to influence the project’s environmental impact. Similarly, Friends of Westwood involved the discretionary approval of a 26-story building in a crowded urban area (Friends of Westwood, supra, 191 Cal.App.3d at p. 262), and Day v. City of Glendale

different setback. (Ord., former § 11.16.150.) Petitioners point out that the Commissioner relied on this provision in accepting a 35-foot setback for the Ohlsons’ permit. In a report submitted with the Ohlsons’ application, a wetlands biologist stated that a 35-foot setback was sufficient because the slopes would be covered with vegetation and because cattle grazing, which had damaged the wetlands, would be eliminated. The provision required the Commissioner to allow the 35-foot setback in the absence of some reason to reject the biologist’s report. As the trial court put it, “[ajlthough the details for the size of any setback for undesignated wetlands are left open, the qualification is itself ministerial because the Ordinance provides that the setback will be whatever a wetlands biologist recommends. The actual size of the setback is not set, but the requirement to accept a biologist recommendation is set.” Petitioners point to nothing demonstrating that the Commissioner had discretion under this provision or, even assuming there was some discretion, could mitigate potential environmental impacts to any meaningful degree.^[18]

The second provision that potentially conferred discretion requires the diversion of stormwater to the nearest practicable disposal location. The Ohlsons’ application stated that the vineyard would not result in any increase in water runoff and that rainwater would move by surface sheet flow to vee ditches, which in turn would drain into storm drains. By failing to demonstrate that other means of diversion were even available, petitioners have not established that the Commissioner had discretion under this provision. And even assuming there was some discretion, petitioners fail to show that it allowed the Commissioner to mitigate potential environmental impacts to any meaningful degree.^[19]