Winery Zoning Ordinance Allowing Establishment of Boutique Wineries Without Discretionary Permits Survives CEQA Challenge

A county prepared an environmental impact report (“EIR”) and adopted a zoning ordinance allowing the development of small wineries “by right,” without a discretionary permit.  A citizens group opposed to the ordinance sued, claiming the EIR was inadequate and the adoption of the ordinance violated the California Environmental Quality Act (“CEQA”).  The trial court disagreed, upholding the EIR and the ordinance.  On appeal, the appellate court upheld the trial court decision in all respects except that the appellate court reduced the amount charged to the citizens group for preparation of the administrative record in the case.  (San Diego Citizenry Group v. County Of San Diego (— Cal.Rptr.3d —-, Cal.App. 4 Dist., July 30, 2013).


Seeking approaches to stimulate development of local grape and wine production, the County of San Diego (“County”) considered ways to streamline the approval process for small, boutique wineries.  These efforts led to the development of a Tiered Winery Zoning Ordinance Amendment Project (“Ordinance”).  The Ordinance aimed to allow small wineries “by right,” without a discretionary permit, in unincorporated areas of the County zoned A70 (Limited Agriculture and A72 (General Agriculture).

The County prepared a conceptual EIR for the Ordinance.  Because the EIR found the Ordinance could have significant, unmitigated environmental impacts, the Board adopted a statement of overriding considerations finding that the goals advanced by the Ordinance outweighed the potential environmental impacts.  A corporation formed to oppose the Project, San Diego Citizenry Group (“Citizenry”) filed a lawsuit petitioning for the approval of the Ordinance to be set aside.  The trial court denied the petition and ordered Citizenry to pay costs for preparation of the administrative record.


The Fourth District Court of Appeal upheld the trial court decision, except that the appellate court reduced the administrative record bill to Citizenry by about $6,000 to exclude the cost of preparation of County planning commission transcripts.

The appellate court rejected Citizenry’s arguments that the Board impermissibly narrowed the description of the Ordinance’s objectives in order to limit mitigation measures and that the EIR omitted possible “additional” mitigation measures.  The court found that the EIR examined mitigation measures that were consistent with the project’s purpose and were adopted to mitigate effects of allowing more small wineries, including prohibiting amplified sound and on-site events, and limiting tasting room hours and the size of passenger vehicles allowed on-site.

The court also disagreed with Citizenry’s contention that the EIR should have incorporated an earlier traffic ordinance that allowed small wineries to be established without a discretionary permit on public roads, but required an administrative permit or a private road maintenance agreement for wineries on private roads.  The court stated that the measure was discarded for good reason, because the purpose of the project was to promote local grape and wine production by eliminating the need to obtain a discretionary permit, including on private roads.

The court rejected Citizenry’s assertion that the EIR failed to provide sufficient information on water supply impacts.  The Court stated that a conceptual EIR, such as this one, was only required to identify the “likely source of water for new development, noting the uncertainties involved, and discussing measures being taken to address the situation in the foreseeable future.”

The one argument of Citizenry’s that the court did agree with was the assertion that the trial court erred in ordering Citizenry to pay the cost of preparing certain county planning commission transcripts.  The court explained that the Public Resources Code section 21167.2(e) requires transcripts only for proceedings “presented to the decisionmaking body prior to action on the environmental documents or on the project.”  However, the planning commission hearings in question were not transcribed until four months after the Board hearing approving the Ordinance and the EIR, and therefore could not have been before the Board prior to action on the Project.

The court rejected the County’s argument that it risked losing the case if it did not include the transcripts in the record because a court could have found the County prepared an incomplete record.  The court stated that section 21167.2(e) gives explicit directions on which transcripts to prepare, and so the County faced no chance of losing the case on that issue.  Moreover, the County’s preparation of unnecessary transcripts violated the CEQA requirement to prepare the record “at reasonable cost.”

The court also denied the County’s reliance on the case County of Orange v. Superior Court (2003) 113 Cal.App.4th 1.  The County of Orange decision held that the CEQA statute “contemplates that the administrative record will include pretty much everything that ever came near a proposed development or to the agency's compliance with CEQA in responding to that development,” including early EIR materials.  However, the court of appeal concluded that the County of Orange holding did not apply to the case at hand.  The early EIR materials in question in County of Orange needed to be included in the record “because they were part of the history of the "project" leading up to approval of a final EIR.”  In contrast, “in this case the planning commission transcripts were not part of the history of approval of the FEIR because they did not come into existence until after the County's approval.”


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