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A145573

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


FIRST APPELLATE DISTRICT
DIVISION ONE

_______________________________
COASTAL HILLS RURAL PRESERVATION,
Petitioner/Appellant
vs.
COUNTY OF SONOMA,
Respondent
______________________________
JACK PETRANKER, an individual, et al.,
Real Parties in Interest and Respondents
______________________________
Appeal from Sonoma County Superior Court
The Honorable Elliot Lee Daum, presiding
(Case no. SCV 255694)
__________________________
APPELLANTS REPLY BRIEF

_________________________
PROVENCHER & FLATT LLP
Janis H. Grattan SBN 68139
823 Sonoma Ave
Santa Rosa, CA 95404
Tel. (707) 284-2380 / Fax (707) 284-2387
Email: jhg@provlaw.com
Attorney for Appellant Coastal Hills

TABLE OF CONTENTS
INTRODUCTION ................................................................................ 7
KEY UNDISPUTED FACTS AND ADMISSIONS................................ 8
ARGUMENT ......................................................................................... 9
A.

B.

Response to procedural objections ........................................... 9


1.

Petitioner exhausted administrative remedies


on its constitutional argument ....................................... 9

2.

The constitutional argument may be raised as


a pure question of law and a question of public
policy or public concern ................................................ 20

3.

The statute of limitations has not run on the


accessory use findings ................................................ 22

4.

The statute of limitations has not run on


the objection to the WUI standards .............................. 23

5.

Petitioner adequately identified the evidence


favorable to Petranker and the County ......................... 24

Unconstitutional Special Treatment is Established


on Undisputed Facts ................................................................ 25
1.

Standard of Review ....................................................... 25

2.

Accessory use finding is special treatment


for a religion ................................................................... 25

3.

ROB admits accommodation is not at issue .............. 26

4.

In any event, accommodation argument lacks


merit ............................................................................... 26

5.

The process is not at issue ......................................... 28

6.

Any secular purpose was secondary ............................. 29

7.

Commercial opportunity advances religion .................. 31


2

8.

Exclusive right to large-scale press is Aid.................. 32

9.

Excessive political and administrative


entanglement exists ...................................................... 32

10.

No Preference Clause is ripe for interpretation ........... 34

C.

Spot Zoning is a Viable Claim, Based on Undisputed


Evidence of Discrimination ..................................................... 35

D.

The Project Approval Violates CEQA ...................................... 36

E.

1.

The new mission of major press expansion and


perpetual storage is a new project subject to the
fair argument standard ................................................. 36

2.

The accessory use finding is not supported by


substantial evidence .......................................................41

3.

The erroneous baseline is prejudicially misleading


and confusing................................................................. 44

4.

No substantial evidence supports the Countys


fire risk finding .............................................................. 46

The County Unreasonably Interpreted its General Plan


and Zoning Code ...................................................................... 47
1.

General Plan consistency findings were


abuse of discretion ......................................................... 47

2.

Standard of review ......................................................... 50

CONCLUSION .................................................................................... 50

TABLE OF AUTHORITIES
California Cases
Bayside Timber Co. v. Board of Supervisors (1971)
20 Cal.App.3d 1 .............................................................................. 20
California Farm Bureau Federation v. California Wildlife
Conservation Bd. (2006) 143 Cal.App.4th 173 ............................... 42
County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.
App. 4th 1544 ............................................................................ 40, 39
E. Bay Asian Local Dev. Corp. v. Cal. (2000) 24 Cal. 4th 693 .. 26, 34
Estate of Powell (2000) 83 Cal.App.4th 1434.................................... 23
Evans v. City of San Jose (2005) 128 Cal.App.4th 1123 ................... 10
Families Unafraid to Uphold Rural etc. County v. Board of
Supervisors (1998) 62 Cal.App.4th 1332 ........................................ 50
Fisher v. City of Berkeley (1984) 37 Cal.3d 644 ............................... 20
Foothill Communities Coalition v. County of Orange
(2014) 222 Cal.App.4th 1302......................................................... 35
Fox v. Los Angeles, 22 Cal.3d 792 ..................................................... 33
Jimmy Swaggart Ministries v. State Bd. of Equalization
(1988) 204 Cal.App.3d 1269.......................................................... 48
Lucas Valley Homeowners Ass'n v. County of Marin
(1991) 233 Cal. App. 3d 130 ...................................................... 32, 33
Moss v. County of Humboldt (2008) 162 Cal. App. 4th 1041 .......... 37
Neighbors for Smart Rail v. Exposition Metro Line Construction
Authority (2013) 57 Cal. 4th 439 ................................................... 45
Neighbors in Support of Appropriate Land Use v. County of
Tuolumne (2007) 157 Cal.App.4th 997 ..................................... 35, 36
People v. Brisendine (1976) 13 Cal. 3d 528 ....................................... 34
Pocket Protectors v. City of Sacramento (2004)
4

124 Cal.App.4th 903 ...................................................................... 39


San Joaquin Raptor Rescue Center v. County of Merced
(2007) 149 Cal.App.4th 645 .......................................................... 45
Save Our Carmel River Monterey Peninsula Water Management
Dist. (2006) 141 Cal.App.4th 677 ................................................... 43
Sedlock v. Baird, 235 Cal.App.4th 874.............................................. 25
Stevens v. Roman Catholic Bishop of Fresno (1975)
49 Cal.App.3d 877 .......................................................................... 19
Ward v. Taggert (1959) 51 Cal.2d 736 .............................................. 20
Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007)
150 Cal.App.4th 683 ................................................................. 10, 20
Statutes
Gov. Code 65009 (b)(1) ................................................................... 10
Gov. Code 65852........................................................................ 35, 36
Pub. Res. Code 21166....................................................................... 37
Sonoma County Code 26-02-010 .............................................. 26, 49
Sonoma County Code 26-02-140 .................................................... 49
Regulations
14 Cal. Code Reg. 15300 et seq ...................................................... 42
14 Cal. Code Regs. 15162 ................................................................. 37
14 Cal. Code Regs. 15302 ................................................................. 42
14 Cal. Code Regs. 15311 .................................................................. 43
Federal Cases
Barnes-Wallace v. City of San Diego (9th Cir. 2008)
530 F.3d 776 ................................................................................... 34
Corp. of Presiding Bishop of the Church of Jesus Christ of LatterDay Saints v. Amos (1987) 483 U.S. 327 ....................................... 27
5

Lynch v. Donnelly (1984) 465 U.S. 668 ............................................ 29


McCreary County v. ACLU (2005) 545 U.S. 844 ....................... 29, 30
San Jose Christian College v. City of Morgan Hill (9th Cir. 2004)
360 F.3d 1024 ................................................................................. 28
Stone v. Graham (1980) 449 U.S. 39 ................................................ 30
Texas Monthly, Inc. v. Bullock (1989) 489 U.S. 1 ............................. 27
Other Authorities
David A. Carrillo and Shane G. Smith, California Constitutional
Law: The Religion Clauses, 45 U.S.F. L. Rev. 689 (2010) .............21
Karen L. Antos, A Higher Authority: How the Federal Religious
Land Use and Institutionalized Persons Act Affects State Control
over Religious Land Use Conflicts, 35 Boston College
Environmental Affairs L. Review 557 (2008) .................................21
Patricia E. Salkin and Amy Lavine, The Genesis of RLUIPA and
Federalism: Evaluating the Creation of a Federal Statutory Right
and its Impact on Local Government, 40 Urb. Law. 195, p.79
(2008) ..............................................................................................21

I'm trying to understand if a use permit


cancels out the zoning requirements that if
you get a use permit, you can basically do
whatever you want on the property.
--Supervisor Shirlee Zane
(AR4086)

I.

INTRODUCTION
The County asserts it properly applied religion as a factor in

granting approval of the Project. It says there was no favoritism


involved, as this approach is available to other future applicants. The
Countys interpretation of its land use code is alarming to neighbors,
citizens, and groups, who rightly see an erosion of the social contract
in which all agree to play by the same rules. The Countys expansive
definition of accessory as including industrial-scale manufacturing
and warehousing when integral to a religious doctrine is precedent
for future applications. How can the County deny the same
treatment to a similarly-situated sectarian group, or another
religion? That is the dilemma created by the Project approval.
The Project approval is a microcosm of current public policy
challenges on the subject of religious freedom and freedom from
religion. As seen in this case, religious favoritism (perceived or real)
leads to political division. Another challenge is environmental
protection. Here, the County did not apply the current WildlandUrban Interface (WUI) fire code to the Project, on a very weak
rationale, and in the face of stated deficiencies in firefighting
capacity. They also misapplied the CEQA standards, based on the
erroneous accessory use determination. This could represent a trend,
where local governments feel pressure to weaken protections where
the cause of religious freedom is invoked, to the detriment of
7

neutrally-applicable, but ever-critical, public zoning and


environmental laws.
II.

KEY UNDISPUTED FACTS AND ADMISSIONS


1. The County allowed the massive storage structures and

major expansion of the press facility (nearly tripling occupancy


[AR111]) because these are integral to the TNMC religious doctrine of
manufacturing and worshiping Tibetan Buddhist books. (AR97, 45,
46-48, 531-533). The uses would not otherwise be allowed in RRD
land, according to the Countys own words. (AR97, 531-33, 96-97,
4755, 4338-89, 62 [#65], 5985-86) The County concedes this point
in its brief. (ROB 1 16)
2. County policy is to minimize storage on RRD lands,
although this policy was not applied to the Project. (AR533) The
2012 staff report on the Project states:
The printing facility would not be permitted as a
stand-alone use, or with any other non-religious use.

A finding must be made that the printing facility


[including text storage] is an accessory use.

Generally, storage is limited on resource lands to the


minimum necessary [the proposed expansion]
might otherwise overshadow the retreat use. In this
case, the press and book storage is an integral part of
their retreat purpose and spiritual practice. (AR53133)
3. In its 2014 approval, the County found warehousing
religious books is not an industrial use because it is accessory to
the religious retreat. (AR 45, 48)

For ease of reference, the Respondents Opposition Brief is ROB,


the Real Parties in Interest Opposition Brief is RPOB, and the
Appellants Opening Brief is AOB.
1

4. Chapter 7A of the 2007 CBC, the Wildland-Urban Interface


(WUI) Fire Code, requires that structures built in a high fire hazard
severity zone after January 1, 2008 have ignition-resistant exterior
materials. The ignition-resistant rating is based on 30 minutes
exposure to flame. (AR1892-93, 12720)
5. The Project site is in a high wildland fire hazard severity
zone. (AR254, fn 4)
6. TNMC built the temporary 40,000 square feet storage
structures in 2008. In 2008 (staff) and 2014 (Board), the County
exempted the structures from compliance with the WUI Fire Code.
(AA135, 254, 45, 512) Their membrane exteriors are flame
resistant, not ignition-resistant. (AR135, 1901, 1073-75) The flame
resistant rating is based on 10 minutes exposure to flame. (AR12720)
7. There is no tent fabric or membrane material that has
received ignition-resistant material listing. (AR1075)
8. Representatives from the fire district serving the Project
state the Projects lack of compliance with WUI standards is an
industrial fire risk, and the district lacks the training and equipment
to fight a major industrial fire exposure, such as associated with
large printing operations and book and paper storage. (AR12702 et
seq.; see Section III. D. 4)
III.

ARGUMENT

A.

Response to procedural objections

1.

Petitioner exhausted administrative remedies on its


constitutional argument.
The RPOB asserts that during the administrative process

Petitioner did not sufficiently raise the constitutional arguments it is


now making. (26-27)

The Planning and Zoning Law limits issues that may be raised in a
proceeding to attack a public agency's finding or determination to those that
were previously raised in a public hearing or in written correspondence
delivered to the agency. (Gov. Code 65009 (b)(1)) The objections should be
sufficiently specific so as to allow the agency the opportunity to evaluate and
respond to them. (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123,
1138) The exact issue need not be raised. (Woodward Park Homeowners
Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712)
What is the issue? Petitioners constitutional argument is that the
County violated the constitutional principle of neutrality toward religion.
This principle requires governmental neutrality between different religions
and between religion and non-religion. A government action violates the
principle if it lacks a neutral, secular purpose, or advances the religion by
affording it special treatment, or lends symbolic support or prestige to a
groups religious views, or by excessive administrative or political
entanglement such as government opening itself up to successive requests
for religiously-motivated exceptions, inviting political division along
religious lines. (AOB 34-46)
The Countys violations of the constitutional neutrality principal were
specifically described by Petitioner and other citizens, countered by proProject attorneys, and debated among the Board of Supervisors during the
administrative process. The AR citations already provided (AOB 19, 43) are
supported by additional record evidence summarized below.
Below is a comprehensive summary of relevant comments.
2006 PRMD and Petranker communication
AR4756-57
Petranker privately tells PRMD that under federal law religious
projects are evaluated by a different set of standards. County Counsel

10

advises that RLUIPA requires all projects be equally evaluated under the
criteria of the zoning code.
2012 comments on MND and BZA proceedings
AR1168
Tsering Gellek, the head lamas daughter, comments that the
monumental task of preserving the sacred texts of Tibet is
protected under Americas cherished freedom of religion. These
freedoms have not been abstract ideals but are the lifeblood of our
work.
AR753, 755
Friends of the Gualala River objects to special case treatment for
the religion and concludes these private interests should not override
public interest review. The precedent this proposal establishes for
county land use planning is atrocious: it provides incentive for taxexempt religious organizations to acquire relatively inexpensive real
estate outside urban industrial areas and establish industrial
operations, with after-the-fact, ad hoc zoning changes and piecemeal
permits. This is contrary to the public interests protected by the
General Plan.
AR757
Citizen comments that, posing as a religious retreat center, Ratna
Ling created an industrial complex focused on printing books; this
sets a precedent for other development projects only marginally
connected to the land.
AR782
Citizen objects to the Countys favoritism toward Petranker/TNMC
in allowing industrial uses and forgiving code violations. Its a taxexempt religious organization with huge financial backing the

11

perfect example of people with unlimited financing getting away with


whatever they want.
AR785
Citizen asks the County to stop the misuse of land zoning and scale
of operations, and flagrant violation of use permits. If a private
citizen acted as such there would be no question of penalty
Recognizing that money talks, this organization has the resources to
keep pushing. Please stop them.
AR798
Citizen states: As bad as Ratna Ling is, the [next] group that wants
to build a large inappropriate facility could simply point to this
existing activity as a justification for theirs.
AR2100
Citizen criticizes the contention that printing must be allowed
because it is important to TNMCs religious mission: [T]heir
mission is not a land-use, and it should have no bearing on land use
rulings what would stop any nonprofit organization with any
industrial operation from building anywhere in a rural area?
AR3792
Robin Caton, TNMC spokesperson and senior student at Ratna Ling,
defends the press expansion as sacred, a blessing and a thank
you to Sonoma County for its religious freedom and for the
opportunity to practice and confirm the constitutional right to
practice Tibetan Buddhism in this County.
AR3864-65
Citizen comments that an accessory finding based on religion would
create a discriminatory circumstance that favors this faith, not
others. What is a church? Anyone can go to the IRS and you can file

12

for nonprofit status as a church and have an ancillary use because its
important to my faith.
2014 comments related to CHRPs appeal to Board of Supervisors
AR9193
A CHRP letter objects to special dispensation for
Petranker/TNMC:
The issue is whether Sonoma County should allow
manufacturing and warehousing in RRD zoning as
special dispensation to a religious organization
simply because they claim that manufacturing and
warehousing is a religious practice ... Land use laws
should apply equally to both religious and nonreligious landowners.
The claimed special dispensations by the County were: ignoring
the 300-page code enforcement complaint filed by CHRP;
converting temporary warehouses to permanent status based on
religious use; failing to apply the zoning code equally; allowing an
80% increase in site occupancy that a non-religious landowner
would not receive; and calling lavender eye pillows sacred art,
allowing commercial manufacturing of lifestyle products at the site.
(AR13516)
In a letter, CHRP states that while the Rimpoches visions of printing
and storing 12 million books at the Ratna Ling site may be an
imperative to his religious sect, religious visions should not
determine land use policy for Sonoma County.

AR1362-67

Another CHRP letter comments that Petranker/TNMC is a religious


conglomerate of great wealth that believes it is doing exceptional
work, which allows it to violate conditions, obtain sweetheart
permits from PRMD (e.g., 40,000 square feet in temporary storage
tents), and seek unprecedented industrial uses.
13

AR2096
CHRPs Master Issue Statement for the appeal says everyone, no
matter how rich or devout, must comply with zoning regulations.
Civil laws apply to all citizens equally, no matter what their faith. The
evolving mandates of one religious sect should not alter land use
regulations or zoning enforcement in rural Sonoma County.
AR8853-55
Citizen objects to Spot Zoning.
April 8, 2014: Religious Freedom Statement
AR13603
Petrankers counsel delivers to the Board of Supervisors a Statement
invoking the religious freedoms protected by the Federal and California
Constitutions and RLUIPA. The letter denies TNMC asked for any special
treatment because of its religious activities.
April 8, 2014 Board of Supervisors hearing
AR4082
At the outset, Supervisor Zane objects to injecting religion into land
use. So you're saying that it's kind of waived when it comes to
religious land use? I mean, can anybody set up some type of factory
and say it's for religious purposes and have that waived? I mean,
that's the question.
AR4110-11
Disclosing she had once been paid professional clergy, Supervisor
Zane states: I support the U.S. [C]onstitutions separation between
church and state we have a responsibility to support that
constitution and to make a decision about land use its about land
use.
AR4250-52

14

Supervisor Carrillo supports bringing religion into the Project


decision. He cites the Constitutions First Amendment protection for
freedom of religion but denies the First Amendment involves the
constitutional separation of state and religion. He praises the Ratna
Ling press facility for preserving a spiritual tradition, making the
world a better place, and enhancing diversity in the County.
AR11966, 11968
After a straw vote, Supervisor Zane posts on social media: [T]he
greatest temptation, and danger, for all religions, is to presume and
impose what is sacred to the rest of humanity. A social media
friend comments that the constitutional right of freedom of religion
and the two prong balancing test may cause legal action, if the
County said no.
(AR4100-01)
Staff acknowledges that Project approval could set precedent for
local land use decisions.
Public comments object to and advocate for injecting religion into
the land use decision.
AR4217-4219:
Ms. Pasternak, an attorney and senior editor of the Ratna Ling text
preservation project, is concerned about bias against the religion.
She has lawsuit experience in asserting religious and property rights.
She knows the subtleties of religious freedom in the Bill of Rights
and the subtleties of the need to be very careful in its application.
Similarly, many here are questioning what is retreat, what is creating
sacred texts. She knows Buddhist practice. Everything were doing
at Ratna Ling is Buddhist practice. It cant be parsed out.
AR4120
Does not oppose mission to print religious texts, but this is a land
use issue; RLUIPA does not preempt the normal zoning code.
15

AR4142
Precedent could bring claims of unequal treatment.
AR4196
Head lama determines what is sacred, but county regulations are
based on what you do on the land, not what you believe.
AR4198
Believes in right of religious freedom, but equitable treatment of the
community must be protected; Ratna Ling has misused its religious
status.
AR4200-01
Grievous error to grant special dispensation to a religion.
AR4204-05
The press work benefits the world.
AR4213
Different land use for wealthy tax-exempt organization with legal
team is unfair to neighbors who followed the rules.
AR4223-25
A critic of the Project with a loving history with Buddhism: this
doesnt fit what he knows about Buddhism; the books belong in
Berkeley; zoning laws should be uniformly applied; Sonoma County
gains nothing by caving in to this disregard of planning regulations.
AR4227-28
Calls for equitable treatment; the BZA considers a religious
organization a special entity, the rest of us are not.
AR4229
Calls for equal treatment under the law; granting exception to land
use regulations is not in the public interest.
AR4232

16

Creating sacred text benefits others; Sonoma County is blessed to be


home to this sacred activity.
AR4232, 4234
No religion has a corner on the truth; what if Hugh Hefner starts a
new religion called the Church of Sexuality and wants to make sacred
pornography in pristine lands, to bring peace to the world?
April-June 2014 post-hearing comments on religion and land use
AR11993
Letter to editor highlights the connection between religion and big
business.
AR11976-77
Ratna Ling can call anything they do a religious practice and get
approval.
AR11980
Enlarged project is industrial/commercial and not compatible with
RRD; while regulations cannot unreasonably burden a religious
practice, churches are not exempt from zoning requirements.
AR12055
If Toyota employees bow in before their work, is manufacturing
cars a religious practice? Exempting temporary membrane
warehouses from current fire standards is special dispensation.
AR12399-01:
Tsering Gellek, the head lamas daughter, lauds Ratna Lings
priceless preservation work for the world and Sonoma, asserting we
have been given freedoms under the American Constitution
AR12745
Press volunteer is saddened that the monumental text preservation
project made possible by the unique religious freedom of this
country could be decimated.
17

AR12840
Citizen objects to special privileges to one landowner to capitalize
on coastal hills area, trucking urban risks to a forested, fire-danger
zone.
June 24, 2014 final hearing
AR4338-39
Supervisor Zane questions the rationale for industrial storage at the
Ratna Ling site, given the fire hazard: So why do the texts need to
be stored at this location? Staff states this was a religion-based
decision:
[I]t is part of their traditional Tibetan Buddhist
practice. It is an honor for people to be involved in
the wrapping of the sacred texts It is part of their
religion.
(AR4457-58)
Supervisor Carrillo praises the religious aspect of the Project, calling
it historic, of international renown, and a lasting contribution to
the Tibetan Buddhist religion and culture. He is pleased the Board is
making possible this monumental project.
AR4466
Supervisor Zane wraps up her comments by warning about the
precedent set by approval of this charismatic project.
Public comments feature differing opinions about interjecting
religion into the land use decision.
AR4408-4409:
Curtis Caton, a constitutional lawyer who is helping TNMC with its
Project application (AR8985), states: Ratna Ling is conducting
religious practice there in the form of the production of the sacred
texts.
AR4374
18

Supervisors, you owe citizens an answer: how does this large


industrial activity in RRD zoning benefit the people and land of
Sonoma County?
AR4375
Do not consider the storage buildings as ordinary warehouses; they
are treasuries of sacred, illuminating materials, with altars.
AR4402
What if the Catholic Church wanted an industrial-scale, sacramental
wine-producing facility and retreat?
AR4408
Their mission is not financial gain but preservation of knowledge
that benefits all mankind.
AR4461, 4464
Sees a troubling precedent for event centers and other development;
wonders about distinction for a religion.
(AR50)
Supervisor Carrillo votes for the Project and Supervisor Zane votes
against the Project.
In sum, Petitioners constitutional argument is not a new issue.
Petitioner and citizens repeatedly raised the constitutional argument during
the administrative proceedings, provoking constitutional counterattacks by
Petranker/TNMC and associates, and constitutional commentary, pro and
con, by sitting Supervisors. The Religious Freedom Statement submitted to
the Supervisors by Petranker/TNMCs counsel (AR13603) is an admission
that citizens had lodged complaints of constitutional violations. (See Stevens
v. Roman Catholic Bishop of Fresno (1975) 49 Cal.App.3d 877, 886-887)

19

2.

The constitutional argument may be raised as a pure


question of law and a question of public policy or public
concern.
This Court may consider the constitutional argument as a new

theory pertaining only to a question of law on undisputed facts.


(Ward v. Taggert (1959) 51 Cal.2d 736, 742) Appellate courts tend to
apply this exception where the issue involves important questions of
public policy or public concern. (Fisher v. City of Berkeley (1984) 37
Cal.3d 644, 695; Woodward Park Homeowners Assn., Inc. v. City of
Fresno, supra, 150 Cal.App.4th 683, 712 [erroneous baseline meets
the standard as it concerns impacts of the project on the
environment, a matter involving the public interest or the due
administration of justice]); Bayside Timber Co. v. Board of
Supervisors (1971) 20 Cal.App.3d 1, 5 [constitutional question
regarding regulation of logging industry was of great interest to the
public, so the case was within the exception for pure questions of law
relating to the public interest]
The key facts material to Petitioners constitutional argument
are undisputed. On religious grounds, the County approved an ad
hoc exception to normal zoning rules, allowing massive temporary
structures that violated a major fire code to become permanent,
thereby risking public land and public safety. (See Section II, supra)
The RPOB does not cite any disputed fact to support its assertion
there are disputed factual issues. (27-28)
Petitioners constitutional argument presents significant
issues of public policy and public interest. Public interest in this
issue is high. Many neighbors, citizens, and groups have expressed
concern, passion and fear about the precedent-setting nature and
favoritism of the Project approval, as shown in Section III.A.1, supra.
20

Academics are writing about religious preference, its effect on


local land use decisions, and RLUIPA policy issues. (See David A.
Carrillo and Shane G. Smith, California Constitutional Law: The
Religion Clauses, 45 U.S.F. L. Rev. 689 (2010); Patricia E. Salkin
and Amy Lavine, The Genesis of RLUIPA and Federalism:
Evaluating the Creation of a Federal Statutory Right and its Impact
on Local Government, 40 Urb. Law. 195, p.79 (2008); and Karen L.
Antos, A Higher Authority: How the Federal Religious Land Use
and Institutionalized Persons Act Affects State Control over
Religious Land Use Conflicts, 35 Boston College Environmental
Affairs L. Review 557 (2008))
Local governments seem to be experiencing an erosion of their
land use policies. The law review article by Ms. Antos highlights the
land use conflicts and financial pressures facing local government as
religious groups seek approval for construction projects. 2

Conflicts arise because RLUIPA enables religious groups to receive


approval for construction projects in situations where state law
would have allowed local governments to prevent the construction.
Since its inception, several interest groups have funded litigation
under RLUIPA to encourage religious institutions to fight adverse
land use decisions. While not all challenges under RLUIPA have
been successful, many religious facilities have been able to use
RLUIPA, or even the mere threat of litigation under the Act, to
persuade municipalities to grant special use permits that were
originally denied. As a result of such litigation, religious institutions
are able to engage in large-scale, multi-use construction to a much
greater extent than nonreligious institutions would have been able to
on the same parcels of land. (Footnotes omitted) (Anton, 35 Boston
College E. A. L. Review, at 558.

21

3.

The statute of limitations has not run on the


accessory use findings.
The ROB 12-13 contends the statute of limitations 3 on the

Countys accessory use findings for the press expansion and the
storage structures ran in 2004 (approval of press facility) and 2008
(approval of temporary structures). It also asserts interference with
Petranker/TNMCs vested rights makes any challenge untimely.
(ROB13; AA182)
The Countys accessory use findings in 2004 and 2008
concerned different projects than the current Project. The 2004
project was a monastic retreat with a modest-sized noncommercial
press facility including storage, which the County considered about
the limit of what is reasonable for an accessory use. (AR6-7, 4755)
The 2014 Project, among other things, triples occupancy of the press
facility, lifts the 100,000 book-production limit, and authorizes
(clarifies) the commercial sale of products manufactured in the
press facility. (AR36-37) In scale and purpose, this is a markedly
different accessory use than the 2004 project. Thus, in 2014 staff
advised that, to approve the Project, a finding must be made that the
printing facility, including storage, is an accessory use. (AR532)
The 2008 project for temporary storage was an interim
solution while Petranker pursued the massive caves proposal (which
he later dropped). In 2008, County staff granted Petranker a
categorical exemption from CEQA for the temporary structures
and determined they were accessory. 4 (AR865, 7625) The current
Project is a different project that proposes to make the structures

The brief cites Gov. Code 65009.


There is no basis for staffs categorical exemption. (See Section, III.
D. 2), infra.)

3
4

22

permanent, as an accessory religious use. The County made that


accessory finding in 2014, and Petitioner timely appealed that
decision.
The trial court rejected Petrankers timeliness challenge. It
found Petitioners attack on the 2014 approval of the permanent
permit for the tents was timely. (AA263) The court also found
Petranker had failed to establish any vested right in the temporary
tents. (Ibid.) Having failed to appeal that factual finding, Petranker
cannot now challenge the ruling. (Estate of Powell (2000) 83
Cal.App.4th 1434, 1439)
4.

The statute of limitations has not run on the


objection to the WUI exemption.
In a similar argument, the RPOB 38 contends various statutes

of limitations for the Countys 2008 exemption of the storage


structures from the WUI requirements have lapsed.
As mentioned, the determination in 2008 concerned a
different project than the current Project: the 2008 project allowed
temporary storage while Petranker pursued permanent storage via
his caves proposal. In 2008, County staff granted Petranker a
categorical exemption from CEQA on the temporary structures and
exempted them from the WUI standards, as discussed above. The
current Project is a different project that proposes to make the
structures permanent, despite their lack of compliance with the WUI
standards. The County made that determination in 2014, and
Petitioner has timely appealed that decision.

23

5.

Petitioner adequately identified the evidence


favorable to Petranker and the County.
The RPOB 29 says the AOB did not sufficiently cite to and

discuss the evidence supporting the trial courts ruling, particularly


the fire safety evidence.
The AOB has a 20 page summary of the factual and procedural
history of the Project, which the RPOB does not dispute. The only
specific thing the RPOB says is missing is fire safety evidence
favorable to Petrankers position. On this subject, the AOB cites to
the Countys conditions of approval, mitigation measures, and
ultimate finding, and discusses in some detail the 2008 staff action
exempting the structures from the WUI standards, evidence on
which the RPOB also relies. (AOB 24, 26-27)
No detailed discussion of fire safety evidence favorable to
Petrankers position is required. Petitioner makes the legal argument
that the Project is a new project subject to the fair argument
standard. Under that standard, the fire safety evidence given by local
fire district officials is sufficient to require the County to prepare an
EIR, irrespective of whether there is other substantial evidence in
the record to the contrary. The evidence favorable to Petranker need
not be discussed.
Petitioner also makes the legal argument, on undisputed facts,
that the County erred as a matter of law when it exempted fabric
structures in wildlands from a major fire code the WUI standards.
Again, Petitioners legal argument is such that the evidence favorable
to Petranker need not be discussed.

24

B.

Unconstitutional Special Treatment is Established on


Undisputed Facts.
The ROB 27-37 avoids discussing what is actually at issue in

this case whether the Countys 2014 accessory use finding, leading
to approval of the drastic press expansion and massive storage, was
based on the importance of certain religious activities to the TNMC
religion. Instead, the ROB argues about a purported
accommodation as well as the rigorous process provided. The
ROBs assertion that the Countys action was a permissible religious
accommodation is paired with its admission that no accommodation
occurred. (28, fn 13, 29, 36) This logical fallacy must be rejected. As
for the existence of a process, that is beside the point. The issue here
is whether there was unconstitutional religious favoritism in
approving the Project.
1.

Standard of review
In mandamus actions, the appellate court applies the de novo

standard of review on questions of law and the application of law to


facts. (Sedlock v. Baird, 235 Cal.App.4th 874, 884) De novo review
applies here because there are no material disputed facts regarding
the issue of favoritism toward the TNMC religion.
2.

Accessory use finding is special treatment for a


religion.
The undisputed facts demonstrate that religious

considerations were the driving force behind the accessory use


determination made by the Board of Supervisors. (AR97, 45, 46-48,
531-533; ROB16, 22, 23; see Section II, supra) This determination
approved of a drastic press facility expansion and permitted massive
storage warehouses, despite these uses being otherwise forbidden in

25

the RRD designation. (AR97, 531-33, 96-97, 4755, 4338-89, 62


[#65], 5985-86; ROB 16; see Section II, supra)
3.

ROB admits accommodation is not at issue.


The ROB 29 admits the present action does not involve a

religious accommodation. This admission makes irrelevant the


ROBs various attempts to characterize the accessory use finding as a
mere accommodation to the religious particularities of the project
before it, while applying a facially neutral ordinance. (ROB30, 32).
The accommodation argument must be rejected on this ground
alone.
4.

In any event, accommodation argument lacks merit.


In an abundance of caution, Petitioner will address the ROBs

accommodation argument on its merits.


The ROB cites East Bay several times on this point. East Bay
was a radically different case than the one at hand. East Bay
involved a statutory exemption to an historic landmark law, available
to any religious entity that owned an affected noncommercial
property and could demonstrate a substantial hardship. (E. Bay
Asian Local Dev. Corp. v. Cal. (2000) 24 Cal.4th 693, 702) The law
was based upon legislative findings that the historic preservation law
was unrelated to health or safety, and that the exemptions ensured
protection of constitutional religious freedoms. (Ibid.) The court
found that the exemption could be upheld if the Legislature had a
reasonable basis for finding that the historic landmark law could
impose a significant burden on religious activity. (Id. at 708)
In our case, the County conferred a benefit upon just one
religious entity, exempting it from generally-applicable zoning
regulations which exist to protect the public health, safety and
general welfare. (Sonoma County Code 26-02-010) TNMC was not
26

required to demonstrate a hardship, and the County made no finding


that a government-imposed hardship or burden on religious activity
existed to warrant an accommodation.
The ROB 30-31 also cites the U.S. Supreme Court for the
notion that merely allowing a religious entity to advance its own
religion is not unconstitutional. That case dealt with another
statutory exemption, found in the Civil Rights Act, that allowed
religious employers to discriminate on the basis of religion. (Corp. of
Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints
v. Amos (1987) 483 U.S. 327, 329) The exemption was passed as an
accommodation available to all religious entities, designed to remove
a legislatively-determined governmental burden on religious
exercise. (Id. at 338) Once again, in our case we have an exemption
aimed at a single religious entity, with no corresponding burden.
The burden or hardship finding is critical to the granting of an
accommodation. A governmental subsidy to a religious entity that
cannot reasonably be seen as removing a significant state-imposed
deterrent to the free exercise of religion represents a message of
endorsement. (Texas Monthly, Inc. v. Bullock (1989) 489 U.S. 1, 15
(plurality opinion) This is particularly true where . . . the subsidy is
targeted at writings that promulgate the teachings of religious
faiths. (Ibid.) In our case, the accessory use finding helps to spread
TNMCs written religious teachings and represents an endorsement
of that religion because this special treatment was not an
accommodation made to alleviate a state-imposed burden.
No burden findings were made, and none could have been
made. Even under RLUIPA, which specifically protects religious
exercise from burdensome zoning decisions, no burden would lie in
this context. Generally-applicable zoning regulations do not
27

represent a substantial burden to religious exercise. (San Jose


Christian College v. City of Morgan Hill (9th Cir. 2004) 360 F.3d
1024, 1035) Also, the availability of other sites within a jurisdiction
weighs against a burden finding. (Ibid.) Several urban areas exist
within the County zoning scheme where an intensive printing and
warehousing facility would have been allowed and appropriate.
(AR4338; AA151)
5.

The process is not at issue.


The ROB 29, 30-32, 36 claims the use permit application

process itself (hearings, 97 conditions of approval, etc.) show the


County had a secular purpose and did not advance the TNMC
religion. It cites a single case, Lucas, in support of this argument.
Petitioners constitutional argument does not contend the
process itself was somehow deficient. The issue is that religious
favoritism was injected into the accessory use determination,
violating the constitutional religion clauses.
Lucas does not stand for the notion that a process alone is
sufficient to foreclose an Establishment Clause violation. The court
there considered the religious constitutional arguments even though
a process was provided. As in Lucas, the complaints here involve
independent constitutional issues, not procedural deficiencies.
The ROB 34, 37 claims neutrality is demonstrated by the idea
that any applicant can request the same accessory use finding.
Under Establishment Clause neutrality mandates, not only this same
process but this same treatment will be required for the next
applicant, likely resulting in future General Plan violations. This bad
precedent will follow the RRD designation and this property for
years to come. (See examples in next paragraph).

28

The ROB 37 argues that the terminating condition (press


facility terminates if the land passes to a non-Tibetan Buddhist
owner) is evidence of a lack of special treatment for TNMC because it
cannot sell the use permit. In fact, the terminating condition shows
the utter nonconformance of this use with the RRD designation,
which is conclusive evidence of special treatment. Furthermore, the
terminating condition does not prevent a future landowner from
benefitting from the Countys accessory use finding. When a future
landowner purchases the Ratna Ling site already equipped with
industrial buildings, in which the previous owner was allowed to run
a commercial printing press and warehousing facility, constitutional
principles of neutrality will (or should) prevent the County from
denying the new landowner the same special treatment. 5
Nonconforming uses permitted under the accessory use designation
will become the norm, and the County will be helpless to deny future
applicants. The problem has never been with the process it is with
the special treatment.
6.

Any secular purpose was secondary.


The ROB 28 misstates the proper standard when it selectively

quotes Lynch for the idea that a purpose must be wholly motivated
by religious considerations in order to violate the Establishment
Clause. (Lynch v. Donnelly (1984) 465 U.S. 668, 680) The Supreme
Court rejected this interpretation as timid because it fails to
recognize that a governmental entity can proffer a non-religious
purpose and still violate the Establishment Clause. (McCreary
County v. ACLU (2005) 545 U.S. 844, 864-65) A governmental
One can foresee a Rastafarian organization applying to grow and
store marijuana in the storage structures, or a sectarian business
seeking equal treatment.

29

action can violate the Establishment Clause despite a stated secular


purpose when that purpose is a sham or merely secondary to the
religious purpose. (Ibid.) Even cases that pre-dated Lynch
recognized that an avowed secular purpose may be insufficient to
avoid conflict with the Establishment Clause. (See, e.g., Stone v.
Graham (1980) 449 U.S. 39, 41)
The ROB 29-30 argues that the Countys secular purpose was
to follow its zoning code. They point, however, to their approval of
the primary use as a visitor-serving use. That approval is not being
challenged.
The primary justification for approving the expanded printing
facility as an accessory use was the integral nature of this activity
to the TNMC religion. (AR48, 97, 45, 46-48, 531-533, 62 [condition
#65: use terminates if ownership passes to non-Tibetan Buddhist])
Staff explicitly stated the accessory decision was in this case . . .
qualitative . . . not quantitative. (AR4083-84) The very language of
the Countys Resolution is laden with religious designations instead
of normal words; for example, the warehouses are approved as
sacred text treasuries, and staff reports repeatedly refer to the
religious importance of the sacred texts. (AR45, 813, 86) While the
County included a secondary justification for approving the
expanded printing press as an accessory use by including
quantitative numbers pulled from a TNMC consultants report
(AR48-49, 97, 577), the inclusion of these applicant-provided
numbers does not outweigh the Countys overriding religious
motivation for the accessory use determination. Rather, it
demonstrates a secondary purpose that cannot cure the
Establishment Clause violation. (McCreary County v. ACLU (2005)
545 U.S. 844, 864-65)
30

7.

Commercial opportunity advances religion.


As if an exemption from a generally applicable zoning law

werent enough of a benefit, there is no dispute that the press


expansion provides Petranker with an exclusive opportunity to
garner income. The County has approved the Project as similar to
the category of noncommercial club or lodge. Nonetheless, it
permits on-site manufacturing and commercial internet sales of
non-textual sacred art. 6 (AR37, 51) The ROB 32 argues, relying
upon an unverified number offered by a member of the religious
community in her hearing comments and not based on any County
findings, that the income derived is small (from book sales, it is
around $6,000 a month). (ROB32; AR4163) The record contains
evidence of the online store with products and prices for hundreds of
items such as books, art, yoga gear, etc., available for purchase on
the TNMC website. (AR5812-13, 5854, 5944-45, 5948-55, 5959,
6485-94)
Project conditions include permission to manufacture for-sale
sacred items on-site, as well as approval of internet sales. (AR61,
36) Even accepting that the Project approval generates only $6,000
a month, that income generation opportunity exists only because the
County approved the Project as a nonconforming religious use. (AR
4165). A 2014 code enforcement report noted the 2004 use permit
stated that a commercial printing press was not allowed, resulting in
a possible violation, but that the proposed permit specifically

The 2004 project description included a request to produce prayer


wheels and art prints that will be donated at no charge to Tibetan
refugees living in India and Nepal. (AR867) The 2014 Project
approval clarifies the 2004 permit to allow commercial internet
sales to the general public.

31

allows sales and advertisement, potentially curing possible


violations. (AR1082-83)
8.

Exclusive right to large-scale press facility is Aid.


The ROB 37 argues that the terminating condition, that TNMC

remove the press facility if the property is conveyed to an entity not


associated with Tibetan Buddhism, is evidence that no aid was
provided to this religion. The requirement of removal of the press
facility if the property should ever be sold to a non-Tibetan Buddhist
entity demonstrates both the exclusivity of this use and its
nonconformance with the zoning category. TNMC unfairly
benefitted from special treatment that is unavailable to other
entities. (See Section III. B. 5, supra)
9.

Excessive Political and Administrative


Entanglement Exists.
The ROB 33-34 argues that the conditional use permit here is

like the one found in Lucas, and that since the County is a regulatory
agency adopting and enforcing permit conditions, there is no
entanglement. On both counts, it is wrong.
First, the conditional permits are distinct. In Lucas, the type
of use approved, a synagogue in a residential neighborhood, was
specifically allowed with a use permit. (Lucas Valley Homeowners
Ass'n v. County of Marin (1991) 233 Cal.App.3d 130, 140) Here, by
contrast, we have an accessory use designation that has been
utilized to permit a use admittedly not otherwise allowed in the RRD
category.
The ROB denies that political entanglement has occurred
because any entity can seek approval of accessory uses. It doesnt
take an inferential leap to understand that the approvals of similar
projects as mandated under Establishment Clause neutrality would
32

lead to an RRD zoning district full of uses that are otherwise


forbidden. (See Fox v. Los Angeles, 22 Cal.3d 792, 812 (1978) (J.
Bird concurring) The public comments to the Board gave
impassioned examples of other nonconforming uses that could
logically gain approval following this decision. Those public
comments also reveal the extent to which the political divisiveness
has already begun. (See Section III, A.1, supra)
For the administrative entanglement analysis, Lucas
treatment of condition enforcement is instructive. Under Lucas, a
governmental entity may not be placed in the position to divine
religious content. (233 Cal.App. 3d 130 at 151) Although the ROB
attempts to characterize the Countys conditions oversight as purely
secular, at least one permit condition explicitly requires the director
of PRMD to divine the sacred nature of an item to determine
whether it may be produced and sold. (AR61-62) Another condition
requires that, if the land sells, the printing press facility use permit
can only transfer to another Tibetan Buddhist party, requiring the
County to determine whether that particular sect of Buddhism also
holds the printing of religious texts and the manufacturing of
sacred objects to be integral to their religious practice. (AR62)
Also under Lucas, although an applicant should be given the
opportunity to demonstrate its good faith, Id. at 152, the record
here shows a history of Petranker exceeding permit conditions.
(AR1079) The 2014 project approval in fact retroactively authorized
possible violations that occurred under the previous use permit.
(AR1082-83) In Lucas, the monitoring was presumed to be
innocuous and not excessive and enduring so long as compliance
was substantial. (Id. at 151) The decision suggests that lack of

33

substantial compliance would necessitate permit cancellation or


monitoring levels that would result in entanglement.
10.

No Preference Clause is ripe for interpretation.


The ROB 35 demonstrates a fundamental misunderstanding of

the state of No Preference law in the State of California. The


Supreme Court of California has never rejected the idea that the
No Preference Clause provides greater protection than the
Establishment Clause. It is, in fact, an open legal question. This
court has never had occasion to definitively construe the no
preference Clause of article I, section 4 and we need not do so here.
(E. Bay Asian Local Dev. Corp. v. Cal., supra, 24 Cal. 4th 693, 719)
The California Supreme Court was asked by the Ninth Circuit to
answer definitively whether and how the No Preference Clause
protections exceed the federal standard, but it declined. (BarnesWallace v. City of San Diego (9th Cir. 2008) 530 F.3d 776, 788; cert.
denied Barnes-Wallace (Mitchell) v. City of San Diego/(Boy Scouts
of America-Desert Pacific Council), 2009 Cal. LEXIS 3507) This
question is ripe for adjudication in these times of increased claims of
burdens on religious exercise and powerful federal legislation such
as RLUIPA.
Nor is there anything about interpreting the California
Constitution as greater than the scope of the federal Establishment
Clause that creates a conflict with federal law, intentionally or
otherwise. The California Constitution is a document of
independent force, and California courts are the final arbiters of
those rights, which may extend beyond the baseline protections
provided in the US Constitution. (People v. Brisendine (1976) 13
Cal.3d 528, 549-52) This legal question is one that has import in this
case, and should the Court deem it necessary to explore the
34

protections offered by the California Constitution as distinct from


the federal no Establishment Clause, we welcome their
interpretation.
C.

Spot Zoning is a Viable Claim, Based on Undisputed


Evidence of Discrimination.
The RPOB 28 claims the spot zoning issue is waived because it

is raised for the first time on appeal.


A citizens letter objected that Spot Zoning is a dangerous
land use decision, especially when used to legalize clearly nonconforming uses with significant un-mitigated impacts. (AR8853)
Other citizens made similar objections to discriminatory or nonuniform application of zoning rules. (AR783, 798, 3864, 2096, 4142,
4213, 4224, 4228, 4229, 12840, 4461, 4464) The claim is not waived.
The ROB 26 contends the spot zoning argument fails as a
matter of law because the Project did not involve a change in zoning.
Gov. Code 65852 and Neighbors in Support of Appropriate
Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997 rebut
this argument. Spot zoning is shorthand for a type of
discriminatory zoning that can burden or benefit a single parcel in
relation to surrounding properties. (Foothill Communities Coalition
v. County of Orange (2014) 222 Cal.App.4th 1302, 1311-12, 1314)
Gov. Code 65852 compels uniformity of regulations within
particular zones. An ad hoc zoning exception that benefits one
parcel is a type of zoning decision that violates uniformity.
(Neighbors in Support of Appropriate Land Use v. County of
Tuolumne, supra, at 1009) In Tuolumne, the County allowed an
exception for a commercial use on a property located within
agricultural zoning, without changing the zoning code and without
issuance of a conditional use permit in conformance with the zoning
35

code. (Ibid.) The court held this exception violated Gov. Code
65852. (Id. at 1015)
As in our case, the neighboring property owners in Tuolumne
protested greatly to the special treatment received by the exempted
property. (Id. at 1002-1003) Although recognizing that county
governmental zoning control is broad, the court looked to the
limitations placed on that control by state law, including 65852.
(Id. at 1008) Uniformity, the court recognized, is critical in
preventing the unjustified variance awards that can subvert the
reciprocity necessary to uphold zoning regulations. (Id. at 1009) In
that case, as in ours, the County ignored uniformity and instead let
one parcel and owner off the hook. (Ibid.) it is precisely this lack of
uniformity and grant of special benefits that Petitioner and other
neighbors have objected to all along in this case. The spot zoning
occurred when the County chose to make a zoning decision that
exempted TNMC from the general regulations and broke the rule of
uniformity.
D.

The Project Approval Violates CEQA.

1.

New mission of major press expansion and


perpetual storage is a new project subject to the fair
argument standard.
As the ROB 32 indicates, cases disagree as to whether the

standard of review on a new project determination under CEQA is


a question of law or a question of substantial evidence. This issue is
still pending before the California Supreme Court.
The legal effect, on the new project determination, of
exempting fabric structures in wildlands from a major fire code is
not a factual question, nor is it a matter that would typically be
within a local agency's realm of expertise. It is a question of law
36

subject to de novo review on appeal. (See Moss v. County of


Humboldt (2008) 162 Cal. App. 4th 1041, 1053, and cases cited
therein) Here, the new project issue largely turns on the Countys
decision to not apply a major fire code, an interpretative act that
calls for independent review.
The RPOB fails to discuss Petitioners new mission argument
at all. In another section, it footnotes its objection to the 12 million
book figure, without any citation to the record. (RPOB 13) The figure
is accurate. (AR4860)
A new project is one that may have significant environmental
impacts arising from new information or changes in the project or
changes in the circumstances. (Pub. Res. Code 21166; 14 Cal. Code
Regs. 15162) Such impacts exist here.
The SMND finds no impact involving wildland fires. (AR135,
see 90, 44-45 [Resolution])
However, expert evidence from the Timber Cove Fire
Protection District (TCFPD or fire district) establishes that the new
mission requiring expanded book production and massive storage
structure presents a new significant impact arising since the 2004
MND. The AOB 24-27, 54-56 covered the fire risk issue and evidence
in considerable detail. The key evidence may be found at AR1892-94
(Chapter 7A of the WUI fire code, Materials and Construction
Methods for Exterior Wildfire Exposure), 1072 (TCFPD December 2,
2013 letter), 12702-21 (TCFPD June 23, 1214 letter as well as
rebuttal comments), 13526-30 (TCFPD comments], 13531-32
(personal comments of TCFPD Chief), 4115-20, 4124-26 (TCFPD
Chiefs comments at April 8, 2014 hearing), and 4366-71 (TCFPD
Chiefs comments at June 24, 2014 hearing)

37

The Project site is in a high wildland fire hazard severity zone.


(AR254, fn 4, 135) The County decided the temporary storage
structures need not comply with the Wildland-Urban Interface Fire
Code standards (WUI), Chapter 7A of the CBC. (AR135-36, 254)
Local fire district officials explained this is a significant risk. Not all
details will be recounted here, but the fire district advised that the
decision to exempt the tents from Chapter 7A was a serious error
because they do not have ignition-resistant material on the exterior.
(AR12708) 7A requires a type of ignition-resistant exterior material
that strongly resists intrusion of flames and embers, going beyond
the flame resistant material on the existing storage structures.
(AR1073-75, 1893, 12720) To date, there are no membrane fabric
structures that have been certified as ignition resistant. (AR1075,
13531)
The local fire district is concerned a fire may start in or spread
to the combustible storage structures. (AR12720-21, 12708, 1271819) The term industrial fire is the nomenclature for a large scale
fire in these warehouses. AR12721) Warehouse fires pose
considerable challenges for fire protection because they contain
books and paper that can propagate fire, even in the presence of
sprinkler systems. (AR12719, 13526, 12740, 12552) Warehouses pose
special risks to firefighters themselves as they contain collapse
hazards. (AR13526) This Project presents a risk of
high-piled combustible storage. (AR950, 13528-29)
The fire district also regarded the expanded printing plant as
an industrial exposure, due to its added electrical capacity (1600
amps), six presses instead of one, and current 4 tons per day paper
usage. (AR12704, 12707, 12715, 12719)

38

The fire district is one of the last all volunteer districts in the
County. It does not have the training or equipment to combat an
industrial fire and protect the people, property and natural resources
within its district. (AR1072, 12705, 12702, 12711, 12713, 12717-19) It
does not have a reliable or adequate Type 1 engine that would be
needed to take on a major industrial fire. Its engines are over 30
years old and would not pass a NFPA/ISO pump test without
overhaul. (AR12705, 12718)
The fire districts evidence is based on expertise and local
knowledge of the area and the Project. It establishes a fair argument
that the Project may result in significant environmental impacts.
This question is one of one of law. (Pocket Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903, 928)
The RPOB 39-40 without citing to the record contends
the fire district officials gave biased and unreliable evidence. The
County made no findings against the credibility of the fire officials.
Their statements are legitimate and must be deemed substantial
evidence supporting a fair argument. (County Sanitation Dist. No. 2
v. County of Kern (2005) 127 Cal. App. 4th 1544, 1597)
The RPOB 39-40 points to County-imposed conditions and
mitigation measures, saying these justify the conclusion that the
Project will not expose people or structures to a significant risk
involving wildland fires. If substantial evidence exists to support a
fair argument that a significant effect may result from the project,
the agency is required to prepare an EIR, irrespective of whether
there is other substantial evidence in the record to the contrary. If
substantial evidence establishes a reasonable possibility of a
significant environmental impact, then the existence of contrary
evidence in the administrative record is not adequate to support a
39

decision to dispense with an EIR. (County Sanitation Dist. No. 2 v.


County of Kern, supra, 127 Cal. App. 4th at 1579)
The record also contains evidence supporting a fair argument
that the new mission of expanded press operations and storage
adversely impacts the rural roads in the area and precludes a finding
of General Plan consistency. Petranker/TNMCs unauthorized press
expansion began in 2006/2007, leading to book production levels
far exceeding the 100,000 book level, and truck trips exceeding the
allowed number. (AOB 16, 29-31; AR1081) The unauthorized press
truck trips were at least double the 2004 figure. (AR4602 [2004: .5
daily trips], AR 37, 41 [2014: limit of 1 daily trip will reduce the
truck impact])
The impact of doubling truck trips was not analyzed. (AR4085,
534-35) The County found the truck trips associated with the
expanded press production and storage are existing conditions in
other words, included in the baseline and not analyzed as part of the
Project. (AR43) Thus, the County misleadingly found the Project will
reduce the impact of truck trips when in fact the trips had doubled
or more. (AR41))
The General Plan and RRD zoning policies protect against the
proliferation of growth in areas where there are inadequate public
services such as roads (AA158, 152-53, 160) The unanalyzed truck
trips may have a significant impact on the essentially one-lane
Hauser Bridge Road and other rural roads in the area. (See road
photos in the attachment to the AOB). The unstudied effect of the
truck trips is an omission in the CEQA analysis, which therefore fails
to establish consistency with the General Plan and RRD zoning
policies.

40

2.

The accessory use finding is not supported by


substantial evidence.
To approve the Project, a finding must be made that the

printing facility, including storage, is an accessory use. (AR532, 45,


48 [Resolution])
The ROB 19-22, 26 in its general plan argument says
substantial evidence supports the accessory use finding based on: 1)
the religious importance of book storage to the TNMC religion, and
2) the quantitative analysis provided by Petrankers consultant.
(AR577)
The Countys religious motivation is unconstitutional, as
shown above, and does not constitute substantial evidence.
The quantitative analysis manifests a sham or secondary
purpose to disguise the Countys primary religious motivation. The
County simply cut-and-pasted the applicant-provided quantitative
analysis into its accessory use finding, without verifying the
underlying data. The analysis is unreliable and arbitrary on its face.
(AR577) The press workers impacts in septic, water, and traffic are
largely attributed to the retreat (about 95% retreat versus 5% press).
Yet the press workers are the large majority of the total occupants of
the site (80 workers versus 122 maximum occupancy) (AR110, 111)
Furthermore, in arguments related to General Plan conformance, the
ROB repeatedly acknowledges the religious considerations were
primary in the accessory use determination. (ROB 16, 19, 20, 22, 23)
The accessory finding is also discredited by the Countys
unquestioning reliance on previous accessory findings that the
County deferentially incorporated into its ultimate finding making
the storage structures permanent. Its helpful to review the history.

41

In 2008, PRMD approved the massive storage structures


without a public hearing or CEQA analysis because the membrane
structures were allowed a Categorical Exemption based on the fact
they were constructed over former tennis courts on a site that was
previously developed. (AR865) At that time, PRMD also determined
the structures were exempt from complying with Chapter 7A of the
CBC because they were accessory structures. (AR254)
How could the massive structures be exempt? They violated
scale, use, storage, height and visibility polices. (AR 38; Section II.1,
Facts 1-3) It seems likely PRMD deemed them a religious use, like
the printing press. But there really is no explanation or factual or
statutory support for the categorical and accessory exemptions.
Where a project is categorically exempt, it is not subject
to CEQA requirements and may be implemented with no
CEQA compliance. Thirty three classes of categorical exemptions are
found in 14 Cal. Code Reg. 15300 et seq. of the CEQA Guidelines.
Exemptions are construed narrowly and will not be unreasonably
expanded beyond their terms. (California Farm Bureau Federation
v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th
173,187, 192 [class 4 exemption applies to only minor alterations,
which this project is not])
Can massive warehouses replace tennis courts in RRD zoning
without any environmental review, as the 2008 exemption suggests?
The answer is no. The Class 2 exemption, 14 Cal. Code Regs. 15302,
allows replacement or reconstruction of existing structures and
facilities where the new structure will be located on the same site as
the structure replaced and will have substantially the same purpose
and capacity as the structure replaced A Class
2 exemption cannot be extended beyond the reasonable scope of its
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plain language. (Save Our Carmel River Monterey Peninsula Water


Management Dist. (2006) 141 Cal. App. 4th 677, 697-698) This
exemption is obviously inapplicable.
Another example, Class 11, 14 Cal. Code Regs. 15311, is
inapplicable on its face. It applies to construction or placement of
minor structures accessory to existing commercial, industrial, or
institutional facilities. The 40,000 square feet, 1 million cubic feet
storage structures are not minor, and the press facility is not
officially categorized as commercial, industrial, or institutional.
Petranker has always denied the press is commercial or
industrial, and the County has agreed. (AR45, 48; Section II.1,
Fact 3)
As of January 2011, the fire code standards applicable to the
storage structures became more restrictive. (AR845) In 2011,
Petranker proposed to make the temporary tents permanent. In
2012, a County building official authored a memo stating the
structures were exempt from the WUI fire standards, Chapter 7A.
(AR863) In 2013, the interim director of PRMD authored a letter
determining the structures were not required to comply with the
WUI fire standards, Chapter 7A, because they are accessory
structures and the date of the building permit application governs
the standards that apply to the structures. (AR513, see also 864,
7625)
The 2014 SMND found no impact from the Chapter 7A
exemption, citing the 2012 and 2013 administrative determinations.
(AR134-35, 116-117). The County then approved the noncompliant
storage structures, stating: The Board concurs in the findings of the
Chief Building Official that the sacred text storage structures meet

43

the applicable standards for fire safety. (Emphasis added.) (AR4445)


At the time of Project approval, the WUI fire code required
accessory structures to comply with Chapter 7A. (AR845, 815, 514,
253) The County rubberstamped the 2008 accessory exemption from
the current fire code because the SMND and staff said it had no
choice.
The record as a whole shows the accessory finding is not
supported by substantial evidence because the County failed to apply
the correct standard for determining the significance of the fire risk.
Also, the County failed to exercise its discretion and adopted
anothers determination without a measured assessment of the fire
risk of making the non-code-compliant tents permanent.
3.

The erroneous baseline is prejudicially


misleading and confusing.
The RPOB 40-42 says including the temporary storage

structures in the Projects baseline is within the Countys discretion,


and in any event, the SMND analyzed the impacts of making the
structures permanent, citing AR115, 134-35.
As the AOB 57 states, the normal baseline of existing
conditions is not an inflexible rule; the requirement is that the
analysis be informative, not illusory or misleading.
An omission in the significant impacts analysis of an
environmental impact report is deemed prejudicial if it deprived the
public and decision makers of substantial relevant information about
the project's likely adverse impacts. An agency's failure to disclose
information called for by CEQA may be prejudicial regardless of
whether a different outcome would have resulted if the public agency
had complied with the law. A prejudicial abuse of discretion occurs if
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the failure to include relevant information precludes informed


decision-making and informed public participation, thereby
thwarting the statutory goals of the EIR process. (Neighbors for
Smart Rail v. Exposition Metro Line Construction Authority (2013)
57 Cal. 4th 439, 463) That an EIR does not present information in a
manner calculated to reasonably inform the public and decision
makers about the project, contributes to its inadequacy as
an informational document. (San Joaquin Raptor Rescue Center v.
County of Merced (2007) 149 Cal.App.4th 645, 659)
Here, putting the temporary structures in the baseline led the
County to minimize their environmental impact.
The most troubling finding concerns the SMNDs finding of
no impact to wildland fire risk. (AR135-36) The SMND cites a
confusing array of codes and chapters and sections (from different
years) without explaining what any of them mean. It does not
indicate that making the storage structures permanent could affect
fire safety or wildland fire risk. The sense is that the structures are in
full compliance with building code and fire safety requirements and
flame resistance certificates. (AR134-135, see also 101, 107, 25, 28,
113) The SMND mentions exemption from Chapter 7A but it does
not clearly explain how 7A could affect the tents, and it does not state
that the temporary structures lack of compliance with a major fire
safety code could mean increased fire safety risk, if made permanent.
The Fire Districts lack of training and equipment to fight industrial
warehouse fires goes completely unmentioned. (AR134-135)
The SMND fails as an informational document, due to the
misleading baseline and the nondisclosure of the effects of
noncompliance with Chapter 7A. This is well-demonstrated at the
Board of Supervisors level when Supervisor Zane questioned the Fire
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Marshall about the flame resistant fabric and received a confusing


answer that reassured but did not reveal the current WUI fire code
required a more fire-safe fabric. (AR4183-86)
The SMNDs discussion of the fire safety aspect of the
structures is arcane, contradictory, confusing and incomplete. The
SMND also failed to include a clear picture of the traffic impacts
from the expanded press operations and storage structures, because
they were included in the baseline. (See Section III.D.1)
The erroneous baseline is highly prejudicial. It led the County
to conclude the Project was a modest expansion not requiring an
EIRdespite the massive warehouses. It led to approval of
warehouses that are not compliant with a major fire safety code
while dismissing the local fire departments lack of capacity to fight
fires in those structures. It also allows the Board to claim the Project
reduced truck trips when actually the trips are doubled. It allows
nonconforming industrial warehouses under RRD zoning, as a
consistent land use, contrary to CEQA.
4.

No substantial evidence supports the Countys fire


risk finding.
The County abused its discretion when it decided to not apply

a major wildland fire code to the storage structures and determined


the Project presents no significant wildland fire risk because it meets
applicable fire standards meaning outdated standards from
2008. (AR44-45; Section III. D. 3) The Countys environmental
documents found no impact. (AR90, 135)
The basis for the Countys finding is staffs administrative
determination that the current WUI fire code does not apply to the
storage structures based on the date of permit application, thus the
permanent tents are exempt from Chapter 7A. The County failed to
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exercise its judgment and simply adopted a lesser, non-current


standard without any analysis of the environmental impacts.
In addition, the Fire Marshall acknowledged the fire hazards
had not been fully analyzed and mitigated, and the 2010 CBC should
be applied. (AR7331, 4332)
The above demonstrates the finding of no impact is not
supported by substantial evidence, and that the County abused its
discretion, failed to exercise its discretion, and failed to proceed in
the manner required by law.
E.

The County Unreasonably Interpreted its General


Plan and Zoning Code

1.

General Plan consistency findings were abuse of


discretion
In this case, the County interprets its General Plan and zoning

code as allowing accessory uses that are inconsistent with both the
permitted primary use (similar to a noncommercial club or lodge)
and the overall RRD designation, based on nothing more than the
importance of those accessory uses to the entity holding the primary
use permit. According to the ROB, the religious desires of a
particular religious group are sufficient to make a consistency
finding. (ROB16, 19-20, 22, 23) The County interprets its code as
having no set criteria for an accessory use determination, but if an
accessory use is integral to the religious practice of the primary
use, a subordinate finding can follow. (ROB20)
Inasmuch as the County allows religious considerations to
override the neutral zoning code, this is abuse of discretion because
religious favoritism is illegal, and the County is not proceeding in the
manner required by law. Furthermore, the Project approval findings
represent an unreasonable interpretation of the Countys land use
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policies. The expanded press facility operations and 40,000 square


feet of warehouses are inconsistent with the General Plan, the RRD
designation, and the approved primary use. (AOB46-50) This
amounts to an abuse of discretion.
The primary use, the retreat, was approved as similar to a
noncommercial lodge or club. (AR47) The Project conditions even
state that a commercial printing facility is not allowed. (AR61) Yet
commercial activity runs rampant on site, perhaps to levels beyond
the $6,000/month claimed by TNMC (e.g., $5,000 shipment, after
discount, in one day). (AR4164, 5959; See III.B.7. supra; AOB45)
That it is a religious entity or a nonprofit entity does not negate the
commercial activity. (Jimmy Swaggart Ministries v. State Bd. of
Equalization (1988) 204 Cal.App.3d 1269, 1284; AOB46) In fact,
TNMC and Dharma Enterprises are recognized by the Tax Court to
engage in commercial printing activities. (AR5682; AOB, MJN(4))
The intention of TNMC at one point was to seek commercial zoning
for the entire site. (AR4756; AOB45) The commercial nature of the
activities at the site cannot be denied, and as such, the primary use
and the accessory use are inconsistent. This interpretation violates
the Countys land use regulations.
Manufacturing and warehousing are industrial activities.
(AA151) Those activities are restricted to urban areas or under
limited circumstances with conditions that do not exist at this site.
(AOB49) The County found that the expanded printing press and
massive warehouses, industrial uses, are allowed as accessory uses.
The Board decided that warehousing is not an industrial use
because it is accessory to the religious retreat. (AR 45) This
interpretation is inconsistent with the General Plan, the RRD
designation, and the purposes of each to protect public health and
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safety, protect local resource production, and limit development in


fire-prone/low-infrastructure areas. (Sonoma County Code 26-02010; AA159-60; AOB46-48)
The warehouses are made of membrane fabric, and were
exempted from the WUI fire code when constructed because at the
time they were temporary and purportedly accessory. (AR254) When
the Project came up for approval, the WUI fire code required
accessory uses to comply with that code. (AR845, 815, 514, 253) In
making the warehouses permanent, the County ignored that code
because the warehouses were accessory. (AR45) This is inconsistent
with the WUI fire code, the RRD purpose to protect from fires and
the General Plan purpose to ensure public health and safety.
(Sonoma County Code 26-02-010)
The ROB argues that there is no provision in the code that an
accessory use must be allowable as a primary use. There is, however,
the definition of accessory use that requires the use be related to
and subordinate to the primary use. (Sonoma County Code 26-02140) The accessory use category cannot be limitless eventually it
must be contained by the overriding purposes of both the General
Plan and the RRD land use category, as consistency with these
purposes is required. In 2012, the County considered the 18,000
square foot press facility about the limit of what is reasonable for an
accessory use. (AR4755) Now it points almost exclusively to the
importance of the activities to the religious purposes of TNMC as
justifying a subordinate finding. (ROB16, 19-20, 22, 23) Allowing
this use is an expansive interpretation of the Accessory Use category
that has implications on future non-local-resource uses. PRMD and
the Board both expressed concerns about precedent. (AR4756, 410001) The ROB 23 argues that each case can be judged on its own
49

merits, but this scale of use sets a precedent that will be difficult to
deny to another applicant. (See III.A.1.; III.B.5. supra)
2.

Standard of review
The ROB goes to great lengths to describe the standard of

review, without ever actually naming it, and alleges that CHRP asked
the Court to ignore the deferential standard. On the contrary, the
AOB32 correctly identified the abuse-of-discretion standard of
review and acknowledged that a General Plan consistency
determination is subject to a strong presumption of regularity. The
ROB dances around the topic with quotes that merely describe the
standard of review, but, as acknowledged in every single case cited
by the ROB, the standard is abuse of discretion. Even under this
deferential standard which allows a decision to be overturned if
the County did not proceed legally, if the determination is not
supported by the findings, or if the findings are not supported by
substantial evidence the Countys actions fail. (Families Unafraid
to Uphold Rural etc. County v. Board of Supervisors (1998) 62
Cal.App.4th 1332, 1338)
VI.

CONCLUSION
For the foregoing reasons, Petitioner respectfully requests the

relief previously requested, and the award of costs on appeal.


DATED: December 14, 2015
PROVENCHER & FLATT LLP
By s/ Janis H. Grattan
Janis H. Grattan #68139,
Attorneys for Appellant Coastal
Hills Rural Preservation

50

CERTIFICATE OF WORD COUNT


Pursuant to California Rules of Court, rule 8.204(c)(1), the
undersigned certifies that the word count for the Motion to Dismiss is
less than 14,000 words, excluding the tables and this certificate. The
undersigned relied on the word count of a Microsoft Word processing
program in preparing this certificate.
I certify under penalty of perjury under the laws of the State of
California that the foregoing is true and correct. Executed in Santa
Rosa, California.
DATED: December 14, 2015
PROVENCHER & FLATT LLP
By s/ Janis H. Grattan
Janis H. Grattan #68139
Attorneys for Appellant Coastal
Hills Rural Preservation

51

DECLARATION OF SERVICE
I declare that I am over the age of eighteen years and am not a party to
this action. I am a resident of or employed in the county where the
mailing took place. My business address is Provencher & Flatt LLP,
823 Sonoma Avenue, Santa Rosa, CA 95404.
On December 14, 2015, I served the following documents:
APPELLANTS REPLY BRIEF
on the interested parties in the action identified below by electronic
means as follows:
ADDRESSED TO:
Verne Ball
Office of County Counsel
575 Administration Drive, Room
105A
Santa Rosa, CA 95403

Tina Wallis
Clement, Fitzpatrick & Kenworthy
333 Mendocino Avenue, Suite 200
Santa Rosa, CA 95403

Michael Lozeau
Rebecca Davis
Lozeau Drury LLP
410 12th Street, Suite 250
Oakland, CA 94507

Coastal Hills Rural Preservation


[service
via
email;
address
omitted]

(x) (BY ELECTRONIC FILING) By transmission of the Notification of


Electronic Filing by the Clerk to Registered Participants who have
consented to service.
(x) (State) I declare under penalty of perjury under the laws of the State
of California that the foregoing is true and correct.
Executed on December 14, 2015.

s/ Janis H. Grattan
Janis H. Grattan #68139

52