Court considers appeal on tiered winery ordinance

A panel of three State of California Court of Appeal justices heard oral arguments Friday, June 14, on the San Diego Citizenry Group’s appeal of its 2011 environmental challenge to the San Diego County four-tiered winery ordinance. The discussion focused mainly on the adequacy of the Environmental Impact Report (EIR) and the by-right Boutique Winery tier. An adequate EIR is one that identifies all possible environmental impacts that might result from a project, and provides the public and elected officials all the meaningful information that is needed to provide input and to decide whether there are sufficient overriding benefits to proceed with the project despite the potential unavoidable impact of the project on the environment.

History

In 2006, the winery ordinance committee of the Ramona Valley Winery Association (RVWA) was joined by the San Diego Farm Bureau and approached County Supervisor Dianne Jacob with a proposal to amend the San Diego County winery ordinance to provide for four tiers of winery operations, one of which would allow visitors on-site for tasting and sales without first obtaining a use permit from the county.

That year the supervisors directed the county staff to work with the RVWA in drafting an ordinance for their consideration. After much debate, threats of lawsuits by two wineries as well as their neighbors, and a compromise limiting tasting rooms to public roads, a three-tier winery ordinance was approved by the supervisors on April 23, 2008.

The Appellant is a Ramona resident who formed a nonprofit corporation and hired the Coast Law Group to argue in 2008 that the winery ordinance could not be implemented without a two-year $260,000 county-wide environmental impact report.

Upon threat of lawsuit, the county Board of Supervisors chose to immediately rescind the ordinance they had just passed, provided for an interim administrative permit process for some situations, and agreed to fund the EIR.

Two years later, when the EIR was completed, the supervisors adopted a statement of overriding considerations and approved the four-tiered winery ordinance which removed the private road restriction on boutique wineries and added the small winery tier, effective in September 2010. The Appellant then had Coast Law Group prepare and pursue a lawsuit against the county in California Superior Court alleging that the EIR was inadequate.

In April 2011 the Superior Court issued a ruling that found it was proper for the supervisors to rely upon the conditions imposed on the by-right Boutique Winery to mitigate the environmental impact of the ordinance, and that the EIR was adequate under the California Environmental Quality Act (CEQA). It advised the Petitioners to take any remaining issues to the ballot box.

Appeal Issues

In the appeal, which to be successful requires that it be shown the lower court exhibited a prejudicial abuse of discretion, the attorney for the Coast Law Group argued that the EIR did not adequately consider or provide enough enforceable conditions to mitigate the environmental impacts posed from by-right winery operations. The Coast Law Group cited many of the EIR’s 18 separate areas of environmental impact as being inadequately addressed, including biological resources, cultural resources, hydrology and water quality, noise, travel, air quality and water supply.

One of the justices hearing the case wondered aloud whether once a by-right activity is allowed, will impacts never again matter? The county responded that the winery ordinance itself included sufficient operating conditions to operate as impact avoidance measures, and the addition of more conditions (such as Appellant’s suggestions that the wineries should be required to reduce water usage 50 percent in drought years, and that tasting rooms should not be allowed on private roads without a use permit) were not necessary.

The specific conditions and restrictions for a by-right Boutique Winery under the ordinance include the prohibition of events, no food preparation, no vehicles accommodating more than 12 passengers, no amplified music, no activities after sunset, mitigation of dust, outdoor seating limited to accommodate 20 people, an on-premises producing vineyard from which at least 25 percent of the wine is sourced, at least 75 percent of the wine comes from San Diego County grapes, etc. If any additional privileges or relief is desired by the winery operation, the discretionary permitting process is available (Small Winery or Winery tiers) because CEQA reviews are conducted as part of the permitting process.

Building permits and grading permits are still required of any winery, and those, too, operate to ensure the impact of the ordinance is restrained, and that environmental issues associated with structures and vineyards are addressed when necessary.

Status

If the court agrees with the county that the by-right Boutique Winery conditions/restrictions are adequate, enforceable, and fulfill CEQA’s requirement for the consideration of mitigation measures, then the Boutique Winery ordinance should survive this legal challenge. If it does not agree that the conditions and permit requirements are adequate or effective, then the winery industry of San Diego County may be forced to take a giant step back.

I’ve been asked to assist the county in the preparation of a supporting brief due in one week. Once that is submitted, the next step is to await the court’s decision. No timetable was provided for that decision.