Appellant's Opening Brief, Coastal Hills Rural Preservation vs. County of Sonoma; 9-25-15

7/25/2019 Appellant's Opening Brief, Coastal Hills Rural Preservation vs. County of Sonoma; 9-25-15

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A

1

45573

I N THE C OU R T OF A P P EA L

OF TH E S TA TE OF C A LIF OR NI A

FIRST APPELLATE DISTRICT

D I V IS IO N O N E

C O A S T A L H IL L S R U R A L P R E S E R V A T I O N ,

Petitioner/Appellant

vs.

C O U N T Y O F S O N O M A ,

Respondent

JACK PETRANKER, an individual, et al. ,

Real parties in interest and Respondents

Appeal from Sonoma County Superior Court

The Honorable Eliot Lee Daum, presiding

(Case no. SC V 255694)

APPELLANT'S OPENING BRIEF

PROVENCHER & FIATT LLP

Janis H. Grattan SBN 68139

823 Sonoma Ave

Santa Rosa, CA 95404

Tel. (707) 284-2380 / Fax (707) 284-2387

Email: [email protected]

Attorney for Appellant Coastal Hills

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?

I G N A T U R

E O F PA R T Y O R A T T O R N E Y )

J A N IS H . G R A T T A N

T Y P E O R P R I N T N A M E )

Page 1 of 1

TO BE FILED IN THE COURT OF APPEAL

PP-008

COURT OF APPEAL,

FIRST

PPELLATE DIS TRICT, DIVISION

1

Cour t of Appeal Case Number

A145573

A T T O R N E Y O R P A R T Y W I T H OU T A T T O R N E Y

Name, State Bar numbe r, and address):

Janis H. Grattan 68139

)rovencher Flatt LLP

823 Sonoma Ave.

SANTA ROSA CA 95404

T E L E P H O N E N O . : 707-284-2380

AX NO. Optional): 07-284-2387

E - M A I L A D D R E S S

Optional): i

[email protected]

A T T O R N E Y

FOR

Name):

Coastal Hills Rural Preservation

Superior Court Case Number:

SCV 255694

FOR COURT USE ONLY

A P P E L L A N T / P E T I T I O N E R :

Coastal Hills Rural Preservation

RESPONDENT/REAL PARTY IN INTEREST: County of Sonoma et al

nd

Jack Petranker,

n individual et al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Check one):

NITIAL CERTIFICATE

U P P L E M EN T A L C E R T I FI CA T E

Notice: Please read rules 8.208 and 8.488 before comp leting this form. You m ay use this form for the initial

certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a

motion or application in the C ourt of Appeal, and when you file a petition for an extraordinary writ. You may

also use this form as a supplemental certificate when you learn of changed or additional information that must

be disclosed.

This form is being submitted on behalf of the following party

(name):coAsTAL

HILLS RURAL PRESERVATION

2 a x

There are no interested entities or persons that rqust be listed in this certificate under rule 8 208

b

nterested entities or persons required to be listed under rule 8 208 are as follows:

ull name of interested

entity or person

Nature of interest

Explain):

Continued on attachment 2

The undersign ed certifies that the above-listed persons or entities corporations, partnerships , firms, or any other

association, but not including government entities or their agencies) have either 1) an ownership interest of 10 percent or

more in the party if it is an entity; or 2) a financial or other interest in the outcom e of the proceeding that the justices

should consider in determining whether to disqualify themselves, as defined in rule 8.208 e) 2).

Date:

Septmeber 25, 2015

Form Approved for Optional Use

Judicial Council of California

APP-008 [Rev. January 1, 2009]

Cal. Rules of Court, rules 8.208, 8.488

CERTIFICATE OF INTERESTED ENTITIES OR PERS ONS

l

S o u t Qn s

-

EilA Plus

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TABLE OF CONTENTS

I.

I N T R O D U C T I O N

II.

S T A T E M

III.

S T A T E M E N T O F T H E C A S E

A. 2004 MND and use permit

B. New mission: book storage

C . 2008

storage caves proposal

D. Expansion: new construction, additional presses, ramped up

production, commercial activities, temporary storage structures

E. 2008

MND for reservoir

F. Violations of

2004

use permit

G. Religious preference objections; Petranker invokes RLUIPA

H. Revised Project approved on 3-2 vote

I. Major findings for Project approval

1. "Modest" expansion: storage structures are

baseline conditions

2.

Storage structures: "accessory" to religious use

a)

Religious rationale

b) Quantitative rationale

3. Storage structures: "no practical effect" on fire danger

a)

High fire hazard zone

b)

Training and equipment

c)

Exemption from Wildland Standards

d)

Ac cessory under C BC

4. Roads and hazardous materials

5. Alternatives

J. The Project compared to 2004

3

9

11

1111

14

15

15

18

18

19

19

20

20

20

21

23

24

25

25

26

27

28

28

29


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K. Appeal

I V . S T A N D A R D O F R E V I E W

V . A R G U M E N T

A. The Project violates the Establishment Clause of the U.S.

Constitution and the Establishment, No Preference, and No Aid

Clauses of the California Constitution

1.

The Establishment Clauses

2.

The No Preference Clause

3. The No Aid Clause

B. The Project is inconsistent with the General Plan and

zoning code

1.

General Plan and RRD zoning provisions

2.

No substantial evidence supports the County's General Plan

consistency finding

3.

The MUP is discriminatory spot zoning

C. The Project approval violates CEQA

1. Massive warehouses filled with paper in a high risk fire area is

a substantial change or new information warranting an EIR

a)

Fair argument standard if "new" project

b)

EIR is required because massive storage and other

expansions constitute a new project

2. In any event, the SMND is not supported by substantial

evidence

3. Storage structures are not part of baseline

4. The County improperly piecemealed the larger Project

V I . C O N C L U S IO N

4

31

31

33

33

34

39

43

46

46

48

50

52

52

53

53

55

56

59

61


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TABLE OF AUTH ORITIES

State Cases

Abbatti v. Imperial Irrig. Dist.

(2012) 205

Cal.App.4th 650

9

Apartment Ass'n of Greater LA,

go C al.App.4th

2

Arcadia Developm ent Co. v. City of Morgan H ill

(2011) 197

C al.App.4th 1526

5

Arviv Enterprises, Inc. v. So. Valley Area Plann ing

Comm'n

(2002) 101

Cal.App.4th 1333

4

Avenida San Juan Partnership v. City of San Clemente

(2011) 201

C al. App. 4th 1256

5

Banning Ranch Conservancy v.

City of Newport Beach,

S

22

7473

7

Barnes-W allace (Mitchell) v. City of San D iego/(Boy Scouts of

America-Desert Pacific Council),

2009 Cal. LE XIS 3507

4

California Statewide Communities Development Authority v. All

Persons Interested etc.

(2007)

40 Cal. 4th 788

8

Cham berlin v. City of Palo Alto (1986)186

C al.App.3d 181

2

Citizens Ass'n for Sensible Development of Bishop A rea v.

County of Inyo (1985)

172 C al.App.3d 151

4

Citizens for East Shore Parks v. State Lands Corn.

(2011) 202

Cal.

App. 4th 549

3

Citizens for Non-Toxic Pest Control v. Dept. Food Agr.

(1986) 187

C al.App.3d 1575

0

Com mun ities for a Better Env't v. Calif. Res. Agency

(2002)

103

C al.App.4th 98

6, 51, 52

Coun ty of Inyo v. City of Los Angeles (1977) 71

C al.App.3d 185

1

E. Bay Asian Local D ev. Corp. v. Cal.

(2000)

24 Cal. 4th

6

93

8, 29, 30,31

Fairview Neighbors v County of Ventura

(1999)

8

5


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70 Cal.App.4th 238

1

Fam ilies Unafraid to Upho ld Rural etc. County v.

Board of Supervisors (1998)

62 Cal.App.4th 1332

7

Fat v. County of Sacramento

(2002) 97 Cal.App.4th 1270

3

Fem inist W omen 's Health Ctr. v. Philibosian

(1984) 157

Cal. App. 3d 1076

1,34

Foothill Comm unities Coalition v. Cou nty of Orange

(2014) 222 Cal.

App. 4th 1302

0,45

Fox v. Los A ngeles

(1978) 22 Cal. 3d 792

1, 32

Friends of Davis v. City of Davis

(2000) 83 Cal.App.4th 1004

7

Friends of the College of San Mateo G ardens v. San Mateo Co unty

Com munity College Dist., S214o61

7

Jimmy Swaggart Ministries v. State Bd. of Equalization

(1988)

204 Cal. App. 3d 1269

3,40

Katzeff v. Dept. of Forestry Fire Protection

2010) 181 Cal.App.4th

601

4

Kings Co v. Hanford

(1990) 221 CA3d 692

0

Laurel H eights Improvemen t Ass'n. v. Regents of Univ. of Calif.

(1988) 47 Cal. 3d 376

7,47

Lucas Valley Hom eowners Ass 'n v. County of Mann

(1991) 233 Cal.

App. 3d 130

6, 29, 32,33

Pocket Protectors Protectors v. City of Sacram ento

(2004) 124

Cal.App.4th 903

8,46

Sands v. M orongo U nified School D ist.

(1991) 53 Cal. 3d 863

6

Save Our N eighborhood v. Lishman

(2006) 140 Cal.App.4th 129927,

47

8,46

Sierra Club v. County Of Sonom a

(1992) 6 Cal.App.4th 1307

7, 47,

48

8,46

6


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Sundstrom v. County of Mendocino

(

1

974) 202

Cal.App.3d 296 6

Wood land Hills Hom eowners Org. v. L.A. Cmty. College Dist.

(1990) 218

Cal. App. 3d 79

0, 31

State Statutes

14 CC R 15125(a)

2

14 CC R 15162

8,51

Cal Co nst, Art. I 4

8

Code of Civil Procedure 1094.5

6

Gov. Code, 66473.5

4

PR C 21166

8,51

Public Resources Code 21168.5

7

Federal Cases

Barnes-Wallace v. City of San D iego

(9th Cir. 2008) 530 F.3d 776

4

Bd. of Educ. of K iryas Joel Village Sch. Dist. v. Grum et

(1994) 512

U.S. 687

8,33

Centro Fa miliar Cristiano Buenas N uevas v. City of Yum a

(9th Cir.

2011) 651 F.3d 1163

5

McCreary County v. ACLU

(2005) 545 U.S. 844

28

Vernon v. City of Los A ngeles

(9th Cir. 1994) 27 F.3d 1385

33

Federal Statutes

Religious Land Use and Institutionalized Persons Act

(RLUIPA), 42 U.S.C.

2 0 0 0 C C et seq

9,35

U.S. Const., Amend. I, cl. 1

28

7


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Other Authorities

D avid A. Carrillo and Shane G. S mith,

California Constitutional

Law: T he Religion Clauses,

45 U .S.F. L. R ev. 689

5

H agman et al.,

Cal. Zoning Practice

(C ont.E d.Bar 1969) 5-33

5

Patricia E. Salkin and Amy Lavine,

The Genesis of RLUIPA and

Federa lism: Evaluating the Creation of a Federa l Statutory Right

and its Impact on Local Government,

40 U rb. Law.

1

95, P-79

(2008)

5

8


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I. INTRODUCTION

This appeal concerns a conflict between rural land use policies

and a large industrial expansion proposed by a religious entity.

Petitioner/appellant Coastal Hills Rural Preservation is a citizens

group in the remote forested rural hills of Sonoma County. Real

party in interest/respondent is Jack Petranker, an individual and

The Head Lama of the Tibetan Nyingma Meditation Center, a

corporation sole, a California nonprofit religious corporation (,

Petranker or Petranker/TNMC). (AA95) Petranker operates a

Tibetan Buddhist monastery, retreat center and religious printing

facility in the rural hills. This complex, founded in 2004, is Ratna

Ling.

In 2014, respondent County of Sonoma approved a major

expansion of Ratna Ling (the Project). The Project substantially

increases the retreat operations, triples the press workers, doubles

the press traffic, allows six presses instead of one, and authorizes

40,000 square feet of fabric membrane book storage structures

(warehouses)essentially a new project. The County allowed the

printing and book storage expansion because of claims these are

`accessory" uses integral to the Petranker/TNMC religious doctrine

of making and worshipping Tibetan Buddhist books.

In 2004, Petitioner had not objected to the modest-scale

religious press facility. However, the new Project was much larger

and inconsistent with the rural setting and constraints. Petitioner

brought a petition for writ of mandate alleging the County's approval

of the Project contradicted Sonoma County's policies for Rural

Resources and Development (RRD) land and violated the California

'The Administrative Record is referred to as "AR."

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Environmental Quality Act (CEQA). Petitioner appeals from the

denial of the petition.

The Project approval was in error on several grounds. The

County granted special preference to a religious organization, in

violation of Constitutional neutrality requirements. The massive

industrial printing and storage operation would not be allowed in

RRD land, according to the County's own words. (AR5986, 4755,

4124, 97, 4081-84) Yet the County allowed the storage structures by

finding they were an "accessory" religious use, and it granted this use

exclusively

to a Tibetan Buddhist landowner. (AR51, 62)

As our State copes with climate change, petitioner questions

why the County approved massive fabric storage structures filled

with paper and allowed a press facility producing over 350,000

books a year, in a high risk fire area. These industrial uses are

contrary to General Plan land use policies that restrict development

in fire prone areas. The County admits the fabric membrane

structures are not

compliant with Wildland-Urban Interface (Will)

fire standards in a high fire severity area. (AA 135, 1 0319, 7 625) A nd

the all-volunteer local Fire District states it has neither the

equipment nor the training to respond to an industrial fire at the

Project site. The County will point to a long (but incomplete) list of

fire mitigation measures. But these measures do not get at the root of

the problem: these industrial uses should be in an urban area with

appropriate zoning and infrastructure, as the General Plan requires.

The Project is inconsistent with the General Plan. Environmental

review of the Project w as also flawed, as discussed below.

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II.

TATEMENT OF ISSUES

A.

Did the Project violate Constitutional prohibitions

against establishment, preference, or aid to a

religion?

B.

Is the Project inconsistent with the General Plan and

zoning district?

C.

Is the Project's new mission of expansion and

massive long-term storage a "new project"

warranting an EIR?

D.

Did the County use the wrong baseline in finding no

"new project" and no significant environmental

impacts?

III. STATEMENT OF THE CASE

A.

004 MND and use permit

The Project site is at 35755 and 36000 Hauser Bridge Road,

Cazadercr on

120

acres in the rural hills of Sonoma County on land

zoned for RR D . (AR 1o9, 994, 17)

In 2004, Petranker/TNMC purchased3 the resort property to

create an annex to Odiyan, a nearby Buddhist monastery and retreat

center also operated by Petranker. (AA13511, 4599, 4619) He applied

to modify the previous use permit (AR4606-07) to operate a

monastery and a retreat center. (AA4598, 4602, 4615)

His application also sought to build an "accessory" religious

2

The Hauser Bridge Road address is relevant to petitioner's Motion

for Judicial Notice (MJN) that Hauser Bridge Road is an area of

concern for Sonoma County firefighters, as of September

20, 2015.

' T he P roject site is known as L ands of P etranker. (AR 13511 -12)

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printing facility of 18,750 square feet (AR4676, 4707) The Nyimgna

denomination of Tibetan Buddhism considers the production of

religious texts a religious vocation. (AR4612) The proposed press

facility would contain one press and allow monastery members to

continue to practice their religious service of printing and

distributing Buddhist texts. (AR4601, 4603) TNMC's Dharma

Publishing, then in Berkeley, would operate the printing facility.

(AR4603, 4599)

The application, proposal and Mitigated Negative Declaration

(MND) are at AR 4596-4675. They describe a limited press facility:

press facility includes a press (AR4603-o4, 4691 (MND))

Petranker estimated production at "a little under 100,000

books (including art) per year" (AR4612)

printing 100,000 books requires

12

40-foot truckloads of

paper, about one truckload per month. (AR4603)

Truck trips for the press and for supplies is estimated at .5 per

day (AR4602)

The 18,750 square foot press facility will accommodate

assembly

and storage

of completed books and art (AR4612)

Staff at Permit & Resource Management Department (PRMD)

considered the "large- scale" press facility to be somewhat

problematic in RRD zoning, stating:

[S]taff has some

concerns about the

compatibility

of this relatively large-scale

printing facility (100,00o books per year)

with the purposes of [the RRD] zoning

district.

Printed materials are to be

distributed on an international level rather

than just serving a local or regional need. To

approve the use permit, a finding must be

made indicating the printing facility is an

ancillary use to the retreat facility ...

The

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press facility would not be allowed if it was

not ancillary to the primary [retread use.

(Emphasis added)

(AR5985-86)

The staff report repeatedly stated total production of the press

facility was 100,000 books per year and the proposed printing

facility included "a press." (AR5985-86)

In September 2004, the Board of Zoning Adjustments (BZA)

approved the use and adopted a mitigated negative declaration

(MND). (AR 6-16) It required the use be operated under Petranker's

proposal statement (which estimated production at 100,000 books

including art per year). (AR9, 4603, 4612, 5985)

The BZA found the "noncommercial" monastery and retreat

center as conditioned followed the RRD zoning, as it was similar to a

noncommercial club or lodge, an allowed use. (AR6, 5985) It

imposed a maximum occupancy of 67 persons, with 27 persons in

the long-term housing and 40 persons at the retreat center. (AR7,

13) This housing ratio (27 workers vs. 40 retreatants) ensured the

press facility remained an accessory use. (AR13457)

T he BZA found the press facility was ac c essory to the

primary use, and "a non-profit organization [Dharma Publishing]"

which is directly related to the religious doctrine of TNMC. (AR7) It

required the use be operated under Petranker's proposal statement

(ioo,000 books and art per year). (AR9) The maximum occupancy

of the press facility was 27 persons, operations were limited to 15

hours per day, and "a commercial printing press facility is not

allowed as part of this Use Permit." (AR13)

The press facility began operation in August 2005. (AR2156)

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B.

ew mission: massive long-term book storage

The press facility served Petranker/TNMC's existing mission

of printing and distributing Tibetan books annually. However,

Petranker added a "new mission" to replace and store 6,000 libraries

of

2,000

volumes each (12 million books) destroyed during the

Chinese invasion of Tibet. This new mission implied a huge

expansion of printing facilities, storage, and book production over

many years. (AA

1

3434, 13050, 4859, 5639,3077, 6008-09) The key

focus at Ratna Ling became the Tibetan "text preservation" project

(Yeshe D e). (AA 5818-5819) T he mission c ontinues to this day.

(AR8862, 8864, 8877)

The new mission required lots of storage. Petranker began

geotechnical planning for a multi-story building (AR4716) and in

2006 proposed a four-story, 95,000 square foot "book depository"

("sacred text treasury"). (AR4755-56) In 2006, PRMD told Petranker

the book storage proposal was inadvisable. It rejected the RLIUPA

religious freedom argument he had raised

:

We met with County Counsel and discussed

RLUIPA

in general and determined that it

requires that all projects be equally evaluated

under the criteria of the zoning code.

(Emphasis added)

(AR4755)

Also, the proposed "sacred text treasury" was not consistent

with land use policies:

[Y]our proposal is not consistent with the land

use policies in our adopted General Plan or

zoning for this site. The proposal is much too

4

The Religious Land Use and Institutionalized Persons Act

(RL U IPA), 42 U.S.C. 2000CC

et seq., is a United States federal

law that gives religious institutions a way to avoid discriminatory

zoning law restrictions on their property use.

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large to permit as accessory to the retreat use

... nor would it be consistent with the use

permit which allowed the printing press only

as an accessory use to the retreat. ...

[The]

printing press and 18,000 sf of storage space

... we consider about the limit of what is

reasonable for an accessory use.

The 95,000

sf building is about the size of a big box or

large department store and would appear to

make the printing and warehouse the

predominant use. (Emphasis added)

Ibid.

Lastly, PRMD advised Petranker he could pursue a General

Plan amendment to request an exception for book storage, but

P R M D w o uld

not

recommend approval. PRMD suggested that he

consider alternatives:

Alternatives would include, printing only the

number of books that can be distributed in the

near term or seeking another warehouse site

with appropriate zoning to store the books for

an indefinite period.

Ibid.

C.

2008 storage caves proposal

Undeterred, in February 2008 Petranker applied for a general

plan amendment, special area policy, and use permit to expand the

retreat, construct two underground warehouse caves totaling 90,000

square feet to store books, and add an exhibition hall with an 800-

person capacity. (AR37) The caves were based on an acute need for

short-term and long-term storage. (AR4859, 3077, 3083, 13050,

6009) The caves were also intended to "protect printed texts from

nuclear disaster and other calamities." (AR5377)

D.

Expansion: new construction, additional presses,

ramped-up production, commercial activities,

temporary storage structures

The new mission coincided with expansions at the Project site,

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the most significant of which were a six-fold increase in the number

of printing presses and constructing 40,000 square feet of

temporary storage. PRMD permitted many but not all of these

expansions. There was no C E QA review.

In 2006, Petranker added a detached barn (AR6696), a

2,050

square foot meditation center (AR60, 4598-99, 4601), and a

2,010

square foot conference center (AR6o).

In

2006/2007,

Petranker moved the entire Dharma press

operation from Berkeley to the Project site, includingfive

additional

presses. (AR8214,

8221,

6745) This violated the

2004 use permit.

(AR1079)

In 2007, Petranker converted a "covered loading area" into

2,500

square feet of additional production area, changing the 18,750

square foot press facility into a 21,234 square foot facility. (AR5858,

37) The added production area contains new equipment (AR5968)

that allows the operation to print 8,00o sheets of paper per hour and

use four tons of paper per day. (AR37, 5827, 5840 8216, 8219, 12719)

Photos illustrate the highly industrial nature of the press

operation. (AR5935-5849)

The press operation produced books and objects in huge

amounts, far exceeding the 100,000 per year level. (AR8231, 8233)

In

2009,

the facility shipped 4040 ft containers with 395,000 books

to India, and that year also produced over 3,000,000 "thankas" and

prayer wheels. (AR8231, 8233-34;

see also

13433) E very day we

supply our presses with four tons of paper " (AR8230) In

2010,

PRMD observed that inventory in the storage exceeded 500,000

i tems. (AR 13433)

Commercial activities. In

2004,

Petranker claimed the

proposed press facility "does not operate as a conventional

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commercial business." (AR5979) In 2010, 551 products were offered

for sale on the Internet, including eye pillows, incense, cushions,

wrapping paper, and digital media. (AA5948-5955;

see MJN(2)

These products are made mostly by short-term volunteer workers,

heavily recruited for "work/study" programs at no pay or $150 per

month, not full time residential members of the monastery.

(AR5873

-

74, 5877, 6568, 6574

-

77)

In March/April 2008, while the proposal for the storage caves

was pending, PRMD issued a time-limited zoning permit allowing

construction of 39,270 (actually, 41,0905) square feet of fabric

membrane structures for storage of "sacred texts," as follows:

two structures of 2,870 and 6,000 square feet

two structures of 14,400 and 16,0oo square feet. (AR38.)

These are at least 40 feet high and have a volume of almost

one million cubic feet.

(AR 37-38, 1072)

PRMD wrote on the permit: "This is a temporary structure &

must demo on 3-25-11. (AA 5533, 4123)

When it issued these permits, PRMD staff

exempted

the

membrane structures from complying with Chapter 7A of the then-

existing C alifornia Building Code ( C BC ) because they were

"accessory" structures. (AR44, 113) The structures did

not have to

comply with the stricter fire safety standards applicable to a

Wildland-Urban Interface Fire Area such as the Project site. (AR135,

10319)

5

The County uses the figure "39,270." However, Petranker

understated the size of the "16,000" square foot tent. It is actually 90

feet by 198 feet, for a total of 17,820 square feet. (AR 3387, 3361 )

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No CEQA review was conducted in approving the temporary

storage structures. (Alt1073, AR21.60.)

The storage permit expired, was extended for one year, and

then expired on March

25, 2012.

(AR38) The 40,000 square feet of

warehouse storage then illegally remained at the Project site.

(AR7324-733o)

E.

2008 MND for reservoir

In August 2008, Petranker/TNMC obtained approval to build

a reservoir adding 20-acre feet of water supply, plus an additional

7,500 square feet to a previously-approved wellness center.

(AR5376)

The 2008 MND acknowledged the additional water supply

capacity was intended, in part, to serve Petranker's

other expansion

applicationthe

caves, exhibition hall etc.and had the potential to

induce growth. (AR 5377, 5397, 5399) H owever, the M N D did

not

study this potential impact because the other expansion proposal

would undergo its own separate environmental review:

The expansion of the retreat center uses, the

conference center and related activities and

cave buildings are the subject of a separate

application for a Use Permit and General Plan

Amendment that

is undergoing separate

environmental review ...

by the Sonoma

County Board of Supervisors. (Emphasis

added)

(AR5377)

The promised environmental review of Petranker's large-scale

storage plans never happened.

F.

Violations of 2004 use permit

In February

2010, 172

signers of a petition against the caves

proposal filed a 280-page Complaint with the County for

Petranker/TNMC's violations of the 2004 use permit. (5777-79,

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5782-96) Code Enforcement promised to investigate the "increase in

intensity of use of printing press operation and volume of

production." There was no report back. Eventually, petitioners were

told the notes from Code Enforcement's site visit were "lost."

(AR8263-65) Petitioner's complaint and a comprehensive 400-page

follow up were not addressed. (AR7315) In 2013, Code Enforcement

produced a summary memo, without any inspections, concluding

there are no active violations for the property. (AR1079)

G.

Religious preference objections; Petranker invokes

RLUIPA

On many occasions, petitioner and other citizens (and even

staff) objected to special treatment for Petranker/TNMC's religion,

exhausting administrative remedies. (AA4755, 9192-93, 9200, 4756,

13516, 5735212840,

12

74527572755, 702, 772, 781, 78527982

13672

2100)6

O n A pril 8, 2014, Petranker offic ially invoked R eligious

Freedom" rights under constitutional and statutory law, including

RL U IPA. (AA13603)

H.

Revised Project approved on 3-2 vote

In

2011,

Petranker dropped the 2008 proposed caves project,

and sought a Master Use Permit (MUP) to "clarify ambiguities" in

the

2004

approval. (AR38, 556-576, 6760-6766) The new Project is

described in Sections I and J,

infra.

It included deregulation of press

production, expanded press operations, and making the massive

temporary storage structures permanent.

6

Petitioner exhausted administrative remedies on other issues.

(AR7175-7245, 8428-8615, 8622-8651, 8654-8818, 8829-9207,

9291-9297, 12051-12063, 12233-12212283,

12

385

-

1253723800

-

742

3964

-

78, 4112-89; 4366-4421)

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In June

2012,

the BZA adopted a MND and approved the

2011

Project. (AR38) Petitioner timely appealed the BZA's decision.

(AR39)

Petranker submitted an updated proposal application. In

February 2014, PRMD released the Subsequent MND (SMND) at

issue. The Board of Supervisors heard the matters on April 8, 2014.

(AR39) On June 24, 2014, the Board reopened the hearing, and

ultimately certified the SMND and approved the Project by a 3-2

vote. (AR5o) The County made no findings regarding religious

preferenc e or free exerc ise of religion or R L U IP A.

I.

ajor findings for Project approval

1.

Modest expansion: storage structures are

baseline conditions

The County found "existing conditions" is the appropriate

"baseline" for environmental review of the Project, the temporary

storage structures are part of the baseline, and the expired permit for

the structures is not relevant. (AR42) By excluding the massive

temporary structures which are the physical embodiment of

T N M C 's new mission of massive long-term storage the C ounty

concluded the Project is merely a "modest" expansion. It found the

Project presented no substantial changes or circumstances or new

information requiring revisions to previous MNDs. (AR41-42)

2.

Storage structures: accessory to religious use

A s a spec ial land use polic y, available to only one religion, the

County found the storage structures are an "accessory" use, based on

TNMC's religious retreat and religious use of the structures. (AR45,

48) The County concluded the storage structures are permissible in

RRD land and are exempt from certain fire safety standards. (AR113,

135)

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a)

eligious rationale

The County abandoned its normal policies when it adopted the

religious rationale for an "accessory" use. In 2004, PRMD stated a

"large-scale" accessory structure such as the proposed 18,750 square

foot printing facility is not normally allowed in RRD zoning.

T he press facility would not be allowed [in R R D

zoning] if it was not ancillary to the primary use

[retreat].

(AR5986)

In 2006, the Deputy Director of PRMD confirmed the policy:

Your [2004] use permit allows the printing

press and 18,000 square feet of storage space

which we consider the limit of what is

reasonable for an accessory use.

(AR 4755, 4124,

see 4785)

PRMD Deputy Director Barrett testified, when accessory uses

are within another building, PRMD usually uses a rule of thumb of

10-15% of the floor area as a normal standard for an accessory use.

(AR4102)

The SMND confirmed the standard policy, stating, but for the

"accessory" designation,

"[t]the

sacred text storage buildings ...would

not be allowed as a stand alone separate use." (AR97)

Despite the policy, staff eventually capitulated to the demands

of this religious applicant. In 2008, PRMD issued temporary permits

for 40,000 square feet of membrane storage structures as an

"accessory" use. (AR113) In 2014, Petranker/TNMC requested the

County reaffirm this "accessory" designation for the storage

warehouses. Petranker asserted the storage structures are

"accessory" because the printing relates to the religious doctrine of

the retreat, and the "texts" are reverentially deposited and worshiped

in a S acred T ext T reasury. (AR 1669-70, 533)

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The County agreed. It found the press operations are an

"accessory"

use because volunteering or working in the religious

press facility is an integral part of the retreat use's religious

practice." (AA49) It also found the storage structures are not an

"industrial" use, but are "accessory" to the retreat center use. (AR45)

The County found this "accessory" designation is

not available

to a non-religious owner or any other religion.

The Conditions

require termination of the printing facility if the site is conveyed to a

property owner not affiliated with Tibetan Buddhism, and the

accessory use of the facility and associated storage shall no longer be

permitted accessory uses. (AR51, 62)

Some Supervisors were concerned with the calculations and

lack of consistency in the definition of "accessory," as demonstrated

during a hearing, when Supervisor Zane attempted to get

clarification from PRMD Deputy Director Barrett:

SUPERVISOR ZANE:

--how do you determine that this is

accessory? Because it seems like the square footage is far

greater in terms of the printing and the storage versus the

retreat. ...

BARRETT: --

that is the crux of the matter, and the difficult

question is how do you determine accessory use. ... it has to be

determined that it's incidental and subordinate to the primary

use of the land. In this case, because it's a religious land use

and they have demonstrated that they're it's part of their

religious practice to have community service, and their

community service is tied to the press, they demonstrated ... ,

that it's part of the religious land use and accessory to their

retreat function. That that's very different. Religious land

uses are kind of different than your standard, you know,

commercial facility where you might say, you know, 15 percent

of the floor area is devoted to this accessory or ancillary use. In

this case, it's integral to their religious practice.

SUPERVISOR ZANE:

So you're saying that it's kind of waived

when it comes to religious land use? I mean, can anybody set

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up some type of factory and say it's for religious purposes and

have that waived? I mean, that's the question.

BARRE FT:

That is a policy call for the board, really, as to

whether and how much accessory use you would feel

comfortable with on this site.

/

SUPERVISOR ZANE:

So the bottom line is I'm still trying to get

to the footprint and the term accessory use. There's no real

environmental analysis on the footprint in terms of the

publishing and printing versus the retreat, it's just we're using

a terminology called accessory use and religious land use, but

I'm not seeing the analysis. And that's what I'm trying to get at

is if there's any real analysis there that puts it into the

accessory use.

BARRETT:

I can share with you the analysis. And the findings

of the BZA was that it was integral to their practice, and for

that reason was considered accessory. ...

SUPERVISOR ZANE:

Okay. ... I'm asking for data. I'm asking for

scientific data that puts it into accessory use. That's what I'm

trying to determine, if there's if that analysis has been made.

BARRETT:

Yeah. The analysis is really qualitative, it's not

quantitative.

(AR4081-84)

b)

uantitative rationale

The County also made some quantitative findings to support

its "accessory" finding. (AA49) It relied entirely on a poorly-sourced

analysis submitted by Petranker/TNMC. (AR) The County cut

and pasted the Petranker analysis, incorporated it verbatim, and

found the storage structures and press facility are subordinate to the

retreat use. (AR48-49)

The County's analysis compared the press facility footprint

(1.5 acres or 1.25%) to

all the other land area at the Project site

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(118.5 ac res or 98.75%),

including undeveloped open space

such as

forested and steeply sloping area surrounding the retreat center and

the printing facility. (AA1668-1669, 9165)

Petitioner submitted a well-sourced analysis, showing the

printing facility was the primary use at the Project site. It compared

the total square feet of building area (132,602) to the uses of the

buildings. Printing (65,209) is the largest at 49%, retreat at 38%,

staff housing at 13%. (A R 9165-9166;

see

13517 [color graph])

Printing is also the largest use when one compares

undisputed

figures on the numbers of press workers, retreatants, retreat days and

printing days: 65 percent of people on site are working in the press

building, and there are 18,240 printing days per year, far exceeding the

5,301 retreat days per year. (AR 36-37, 7600, 9147, 9172; AA 118, 129-31)

2.

torage structures: no practical effect on fire

danger

The County imposed conditions and mitigation measures on the

Project to increase fire safety, and required sprinklers in the storage

structures. (AR39, 44

-

45, 57-60) It concluded making the 40,000 square

feet of temporary storage structures permanent will have "no practical

effect on fire danger. (AR 44)

The Timber Cove Fire Protection District, a rural all-volunteer fire

department, is the agency responsible for fire suppression at and around

the Project site. (AR134) The Fire District states the conditions imposed by

the County will not adequately protect the people, property and natural

resources within the District from the risk of industrial fire posed by the

Project's operations. (AR12702;

see also,

AR4125) This conclusion is based

on: 1) the Fire District's lack of training and equipment to fight industrial

fires, and 2) the storage structures' lack of compliance with the Wildland-

Urban Interface Fire Resistive standards. (AR12719)

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a)

High fire hazard zone

CAL FIRE ranks the Project location as a "high" wildland fire

hazard severity zone. (AR10319) It has identified several "historic

wildfire corridors" in Sonoma County. The Project site is in one of

those corridors, the Guerneville/Cazadero area which experienced

fires in 1923, 1951, and 1977. ( 13571; see MJN(1))

b)

Training and equipment

The Fire District states they do not have the capacity or

equipment to fight a fire of the scale and type associated with large

printing operations and text storage. (AR12704) Suppression of

industrial high-piled combustible storage fires requires specialized

equipment and training. (Alt1072) This Project presents a risk of

high-piled combustible storage; this risk is illustrated in site photos.

(950, 13528-29[photo], 5857 [photo]) Absent the required

equipment and training, the Project poses significant fire risks to

residents, neighbors, and forests. (AR12721.) All of the Fire District

is zoned RRD. Before the large press operations began at the Project

site, there were no significant industrial operations within the

D istrict. (AR 12704;

see AA159-60) The District does not have the

equipment or training to fight industrial fires and hazards.

(AR12704)

The Fire District and the Sonoma County Fire Chief agree it is

reasonable to identify a fire in the warehouse tents as an industrial

fire. (AR4449, 12702) The Fire District explained why it lacks the

training or equipment needed to address the risks of the Project's

industrial operations. (AR4125, 1072, 12702-12711) When an

industrial fire occurs, a fire department in an industrial zone would

respond with Multiple Type 1 engines, a ladder truck, an ambulance,

a Rapid Intervention Crew, a Breathing Air Salvage Truck, and

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Station coverage, and support from adjacent fire departments.

(ARI2705) The fire department would have the ability to pump

2,000-3,000 gallons of water per minute, and initial response times

would be five minutes or less. (AR12705)

The District has no Type 1 fire engine. (AR12705) The

engines the District has are designed to fight wildland fires and

conventional structure fires. (AR12705) One of the mutual aid

neighbor fire departments has a Type 1 fire engine, but their

response time to the District can range from 30 to 45 minutes, which

would not adequately mitigate this impact. (AR12705) Even with a

Type 1 engine, however, the District cannot guarantee it could

suppress a fully-involved industrial fire in the printing facility or

storage tents. (AR12705)

According to the Wildfire Hazard and Risk Assessment section

of the County's Hazard Mitigation Plan (AR13566-13587), problems

have resulted from the condition of existing equipment and

matching the type of equipment and staff training to the type of fire.

Fire-fighting responses alone cannot fully eliminate or reduce the

risks from wildland fires. Taking proactive steps to reduce the

incidence of, and potential risk from, wildland fires before they occur

is essential. (AR13574)

Municipal fire departments report thousands of structure fires

in a four-year period in manufacturing facilities and warehouse

storage, even in the presence of sprinklers. (AR12552)

c)

xemption from Wildland Standards

In 2008, PRMD exempted the storage structures from a major

fire code. (AR7625 [admission by building inspector]). Chapter 7 of

the 2007 California Building Code ("CBC") governs the materials and

construction methods for exterior wildfire exposure for structures in

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a WUI Fire Area. (AR135) PRMD determined the storage structures

were "accessory" and thus exempt from compliance with the WUI

standards. (AR 135, 45, 10317-19)

This was a major mistake, especially in a high fire severity

zone. The storage structures are made of "flame resistant"

membrane fabric . (AR 135, 1076) They do

not

comply with the W U I

Fire Resistive Standards, which require any structure built in the

District after January 1, 2008 be built with certified noncombustible

or ignition resistant materials. (C BC 701 A .3.1; A R 107 4) Ignition

resistant" fabric is tested at 30 minutes of direct flame exposure, as

compared to 10 minutes for "flame resistant" fabric. (AR1074-75) To

date, there are no membrane fabric structures that have been

certified as ignition resistant. (AR13531)

d)

Accessory under CBC

Regardless of whether the storage structures are deemed

`accessory" under the zoning code, the structures do not meet the

definition of "accessory" in the

building code,

and therefore must

comply with the WUI Standards. (AR1076)

T he C BC defines acc essory buildings as Group U occ upancy

(e.g., carports, barns, greenhouses) and

not otherwise classified in

any specific occupancy.

(CBC 311.2; AR io77)

The storage structures are classified as a specific occupancy

Group S-1 Moderate Hazard Storage: Books and paper in rolls or

packs. (CBC 311.2; AR 1077) The C ounty agrees the S-1

classification applies. (AR45)

Since the storage buildings are classified as a specific

occupancy, they are not "accessory" structures under the CBC and

must comply with the WUI Standards. However, they do not comply.

(ARio76-1078)

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4.

Roads, hazardous materials

Petranker and petitioner submitted studies of the Project's

impacts on Hauser Bridge Road (AA6136-37, 7205-09), conceded to

be a narrow, winding road, with ii curves with restricted sight

distance, with much of the road too narrow to allow opposing

vehicles to pass and lacking shoulders. The County required a

warning sign. (AA103) Petitioner's study, photos, traffic logs, and

map of area show inadequate access roads. (AA7205-09, 5923-36,

5920;

see also

7383, 5931, 6827, 6830, 6892)

The inadequate roads are one reason the Project must be

rejected as inconsistent with the intent of the General Plan. The

General Plan rejects proliferation of growth in areas with inadequate

public services and infrastructure. (See

Section III, I. 4, infra)

Petranker did not disclose all of the hazardous materials

generated by the press facility, or their quantity. (AR4126-4130,

9011-9023) The County found no changes since

2004 and no impact

(AR2995) but did not quantify increased hazardous material

generated by the expanded press operation.

(Compare

AR6645 [in

2004 7 gal. per week] with AR4709 [in 2005 rising to

11-12

gal. per

week]) The amount as of

2014

should have been analyzed, due to fire

risk. (AR4125-26)

5.

Alternatives

Petranker claimed the Project must be at Ratna Ling because

it is a sacred place, part of the Southern Quadrant of the Mandala of

Odiyan, the nearby sister monastery. (AR211, 9352)

There is a superior alternative location: Petranker/TNMC

conducted the press operation in an industrial area in Berkeley for

many years. (AR7468) The Project requires 730 100 mile truck trips,

annually, to bring the press products to a port, bookstore, Internet

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customer, or distribution point. (AR42) Because the County

prepared no EIR, it did not consider alternatives to the Project. Had

it done so, it would have found there are other areas zoned for this

use, with better access to transport heading to Asia, the main

destination for the press products. (AR789, 595) Under the General

Plan, press operations and warehouse storage are urban uses that

should be conducted in an industrial area, with access to shipping,

ports and public services such as industrial firefighting capacity.

(Section V. B. 1, 2,

infra)

J.

he Project compared to 2004 project

In a nutshell: the Project deregulates and expands printing,

adds warehousing, and adds commercial printing and

manufacturing, and Internet sales and distribution. It also nearly

doubles the maximum site occupancy and adds concomitant housing

and storage in at least 10 new structures. Arbitrarily, the County

concluded, compared to 2004, this is merely a "modest" expansion.

Press production. The

2004

project had a production limit of

100,000 books (including art) per year. (AR9, 4603,4612, 5985)

In 2013, the County interpreted the 2004 permit to set a specific

limit. (AR13051) Actual production levels at Ratna Ling have far

exceeded the limit. (Section

D

[350,000 books per year], 1080

["likely" violation]) The Project eliminates any production limit.

(AR61-62)

Presses. The

2004

project allowed one press. (AR4691, 4603-

04) The existing five presses are likely a violation of the 2004

permit. (AR20, 62, 1079) However, the Project eliminates the one

press limitation, sanctioning the five additional presses. (AR61-62,

1079)

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Press workers. The 2004 project limited the maximum

occupancy of the press building to 27 workers. (AR7, 13) The press

operation violated this limit. (AR1080) Now, the Project sanctions

8o press workers, which nearly triples the 2004 limit. (ARiii) The

Project also removes the worker/housing ratio that had attempted to

ensure the press facility remained an accessory use. (AA51, 13457)

Commercial manufacturing and sales. The 2004 permit stated

"a commercial printing press facility is not allowed." (AR13)

Commercial manufacturing and sales were rampant.

(See

Sec tion D ,

supra [551 items for

sale]);

MJN(2) This is not

de minimus

commercial activity. The commercial activity could be a permit

violation, depending on whether the County retroactively authorizes

it.

(See AR1082)

Now, the Project "clarifies" the 2004 permit allowed

commercial production and sales of books and "sacred" objects and

Internet sales (ARno). The approval loosely defines "sacred" objects

to include lifestyle products such as wrapping paper and calendars

and cushions and "similar objects" with approval of PRMD.

(Ibid.)

The approval allows production of commercial "sacred" objects on

io% of the press facility's floor area. (AR61) The County attached no

monitoring to this 10% limitation or placed any limit on commercial

products stored in the massive warehouse structures. (AR61-62)

Press trucks. The 2004 approval estimated truck trips to

transport books at .5 trips per day. Actual book shipping traffic was

much higher than .5 trips and violated the permit. (AA1081) The

Project increases truck trips to one 24-foot long truck round-trip per

day, Monday through Saturday. (ARiii). This doubles the estimated

traffic over the 2004 figure. (AR4602)

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Storage warehouses. The 2004 permit had no dedicated

storage space, just the press building itself. (AR4612) The Project

adds 40,000 square feet of permanent storage. (ARno)

This triples the size of permanent building space used for the

printing operations, from the original 18,750 to over 6o,000 square

feet. (AR3o) This allows a vast number of books, supplies and

"sacred" objects to be stored in the warehouse structures. (AR5684, a

photo of one warehouse with "upwards of a million inventory items

in here plus supplies"])

Maximum site occupancy. The 2004 permit allowed a

maximum of 67 persons. (AR7) The Project increases this to

122

persons, an 8o% increase. (ARno)

New housing. The Project adds eight tent structures

accommodating 24 persons, a 3,000 square foot, five-bedroom

residential dwelling for

12

persons, and 4,080 square feet of

residential storage in several buildings. (ARni, 6o-61) A 5,900

square foot senior center for resident seniors and caregivers,

previously approved, will also be constructed.

(Ibid.)

K Appeal

On July 24, 2014, petitioner sued the County and real party

Petranker/TNMC for writ of mandate and declaratory and injunctive

relief, alleging violations of CEQA and the County's General Plan and

R R D zoning regulations. (AA 6)

The Court denied the petition. On April 27, 2015, judgment

was entered, and on May 4, 2015, notice of entry of judgment was

filed. (AA261, 259) This appeal followed

On

June 25, 2015. (AA 276)

IV. STANDARD OF REVIEW

The decision to approve the Project is governed by Code of

Civil Procedure 1094.5. The standard is whether there was any

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prejudicial abuse of discretion. Abuse of discretion is established if

the respondent has not proceeded in the manner required by law, the

order or decision is not supported by the findings, or the findings are

not supported by the evidence. Where it is claimed the findings are

not supported by the evidence, abuse of discretion is established if

the court determines the findings are not supported by substantial

evidence in light of the whole record.

(Lucas Valley Homeowners

Ass'n v. County of Mann (1991) 233

C al. App. 3d 130, 141-142 [claim

of unconstitutional religious preference])

The determination of General Plan consistency is subject to a

strong presumption of regularity. Under the abuse of discretion

standard, the determination may be overturned if the County did

not proceed legally, or if the determination is not supported by

findings, or if the findings are not supported by substantial evidence.

(Families Unafraid to Uphold Rural etc. County v. Board of

Supervisors (1998) 62 Cal.App.4th1332,

1338)7

The CEQA decision is reviewed for prejudicial abuse of

discretion. The court does not pass upon the correctness of the EIR's

environmental conclusions, but only upon its sufficiency as an

informative document. (Public Resources Code 21168.5;

Laurel

Heights Improvement Ass'n. v. Regents of Univ. of Calif.

(1988) 47

Cal. 3d 376, 392)

7

The standard of review on general plan consistency decisions is

pending before the California Supreme Court.

(Banning Ranch

Conservancy v. City of Newport Beach, S227473)

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Whether a project is "new" or a minor change to an existing

project is a question of law, that the court reviews de novo.

(Save

Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1299,

1297)8

When a new project is reviewed, an agency's determination of

whether an EIR is required is reviewed under the "fair argument"

test.

(Friends of Davis v. City of Davis (2000)

83 Cal.App.4th 1004,

1016-1017;

Sierra Club v. County of Sonoma

(1992) 6 Cal.App.4th

1307, 1316) It mandates preparation of an EIR whenever it can be

fairly argued on the basis of substantial evidence the project may

have significant environmental impact. (6 Cal.App.4th 1307, 1316) If

there is substantial evidence of such impact, contrary evidence is not

adequate to support a decision to dispense with an EIR. If there is a

disagreement among experts over the significance of an effect, the

agency is to treat the effect as significant and prepare an EIR.

(Id.)

Whether a fair argument exists is a question of law that the court

reviews de novo, with a preference for resolving doubts in favor of

environmental review.

(Pocket Protectors Protectors v. City of

Sacramento (2004) 124 Cal.App.4th 903, 927)

V. ARGUMENT

A.

he Project violates the Establishment Clause of

the U.S. Constitution and the Establishment, No

Preference, and No Aid Clauses of the California

Constitution.

The establishment of religion is forbidden under the United

States and California Constitutions.

(U.S. Const., Amend. I, cl. 1; Cal

Const, Art. I 4)

The California Constitution has additional

8

The standard of review on the "new project" determination is also

pending before the Supreme Court.

(Friends of the College of San

Mateo Gardens v. San Mateo County Community College Dist.,

S214061)

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structures are an "accessory" use, the County exempted them from

compliance with WUI fire standards in a high fire severity area.

(AR135)

No Secular Purpose. There was no secular purpose to the

Project's approval of the expanded press and industrial storage

operation. These were approved as an "accessory use" due entirely to

their religious importance to the Petranker/TNMC religion. The

County's primary justification was that "volunteering or working in

the religious press facility is an integral part of the retreat use's

religious practice." (AR48) This "accessory" designation is

unavailable to a nonreligious entity or even a non-Tibetan Buddhist

entity. (AR51, 62)

The aim of the secular purpose test is preservation of

governmental neutrality in religious matters.

(E. Bay,

24 Cal. 4th at

707) In California, churches are to be treated like any other group in

determining compliance with zoning regulations.

(Lucas Valley

Homeowners Ass'n v. County of Mann, supra,

233 C al. App . 3d 130,

143) A "permissible neutral purpose" was found in a statutorily-

defined exemption to a recently-enacted landmark designation law,

available for any religious-entity-owned noncommercial property

with a showing of substantial hardship, because the Legislature

could have reasonably believed that the new restrictions could

burden the free exercise of religion.

(E.

Bay, 24 C al. 4th at 712-13)

Another secular purpose was found when a school district granted a

long-term lease of a surplus property to a religious entity, because

the lease provided the district with financial resources and both

religious and secular groups had equal opportunity to enter into the

lease.

(Woodland Hills Homeowners Org. v. L.A. Cmty. College

Dist. (1990) 21 8

C al. App. 3d 79, 94-95) Finally, when a c ounty

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enacted a change to their zoning code to allow senior housing

facilities the secular purpose was the need for senior housing

alternatives, and their approval of a religious entity's conforming

project did not violate the Establishment clause because the benefit

was available to any entity throughout the zoning area.

(Foothill

Communities Coalition v. County of Orange

(2014) 222

Cal. App.

4th 1302, 1320-21)

The County did not justify its action with a secular purpose,

and instead was explicit with its religious motivation. Before the

Board of Supervisors, Supervisor Zane asked for clarification on the

"accessory use" designation given the printing operation's greater

footprint as compared to the retreat. She received the following

answer:

In this case. . . it's part of the religious land use and

accessory to their retreat function. . . . Religious land

uses are kind of different than your standard

c ommerc ial facility where you might say you know, 15

percent of the floor area is devoted to this accessory

or ancillary use.

In this case, it's integral to their

religious practice. . . . The analysis is really

qualitative, it's not quantitative.

(AR4081-84) The answer reveals that the County's "qualitative"

analysis considered just one thing: the importance of this activity to

the TNMC religion. This is an impermissible secular purpose.

Primary Effect Advances Religion. The Project approval has

the primary effect of advancing religion because the County has

abandoned its typical zoning regulations to give special benefits to

Petranker/TNMC. This is no incidental benefit, but a discretionary,

explicit preference for one particular religion that allows this

religious entity alone to exceed the normal bounds of the zoning

laws. (AR5i, 62)

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A statutory exemption from a landmark designation law did

not advance religion, because it merely allowed religious groups to

use their noncommercial properties as they had done before the new

law was passed.

(E. Bay,

24 C al. 4th at 714) A ny benefit to a religious

entity from a lease entered into with a school district, beyond the

normal benefits of a lease, did not advance religion because it was

incidental.

(Woodland Hills,

218 Cal. App. 3d at 94) The illuminated

display of a cross on the side of the City Hall, however, advanced the

Christian religion by placing the "power, prestige, and financial

support" of the city government behind it.

(Fox v. Los Angeles

(1978) 22 Cal. 3d 792, 808-09 (J. Bird, concurrence)) Similarly, a

district attorney's proposed transfer of remains to a Catholic group

for burial was found to violate the Establishment clause, because the

primary effect would have been to give symbolic support to the

group's religious views.

(Feminist Women's Health Ctr. v.

Philibosian (1984)157

C al. App. 3d 1076, 1091)

The Project approval has the primary effect of advancing the

Petranker/TMNC religion because it affords special treatment to the

religion, providing symbolic support and placing the imprimatur of

the County's power and prestige behind this religious practice. This

preferential treatment also advances Petranker/TMNC by enabling

the entity to bring in substantial revenue via its industrial printing

operation, a benefit unavailable to similarly situated religious groups

or secular entities in the RRD zoning category. (AR51, 62)

Excessive Entanglement. Excessive governmental

entanglement with religion may be administrative or political.

(Lemon, 403

U.S. at 622) By approving the Project, the County has

opened itself up to successive requests for religiously-motivated

zoning exceptions to its RRD category, inviting political division

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along religious lines. It must now also discern between "secular and

sectarian subjects" and engage in excessive monitoring of project

conditions.

An illuminated cross displayed on the side of City Hall was

excessive entanglement with religion, because the city would be

subjected to successive requests for the same treatment, breeding

political division along religious lines.

(Fox, 22

Cal. 3d at 812 (J.

Bird, concurrence)) The opinion expressed concern these requests

had already begun, wondered what the limit would be, and noted the

impropriety of City determinations on what symbols might be

equivalent. (Id.)

The County, too, will be forced to deliberate on

future requests involving questions of which proposed industrial

uses are truly "accessory" to the religious uses invoked, inviting

political division along religious lines and causing unlawful

involvement in "discerning between secular and sectarian subjects,

values and beliefs."

(Lucas Valley,

233 C al. App . 3d at 149) Future

similar requests are an all-too-real possibility, as Petranker/TNMC is

not unique in its practice of printing religious tracts.

(See e.g.

Jimmy Swaggart Ministries v. State Bd. of Equalization

(1988) 204

Cal. App. 3d 1269) Should the next similarly-situated group not

receive equivalent treatment the County will violate the central

tenant of Establishment clause jurisprudence, neutrality.

(See Kiryas

Joel, 512 U .S. at 703)

The Project approval conditions, such as the io% non-book

storage, daily truck trips, number of workers, and hours of

operation, will also cause administrative entanglement, because

Petranker/TNMC has a ten year history and pattern of violating

zoning conditions.

(See supra,

Section III.F) In this circumstance,

these are not mere "mundane matters" subject to normal zoning

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oversight, but will instead require "excessive and enduring"

monitoring or risk becoming meaningless provisions subject to the

same bad-faith disregard demonstrated by Petranker/TNMC with

the 2004 permit conditions.

(Lucas Valley,

233 C al. App. 3d at 151)

Although an organization is given the chance to self-monitor in good

faith, lack of substantial compliance may require "excessive and

enduring" monitoring, causing excessive entanglement.

(Id.) The

Project conditions also force excessive administrative entanglement,

as the County must discern between "secular or sectarian subjects"

as part of its discretion over production of "other" sacred objects.

(AR62; Id.

at 151-52)

2.

he No Preference Clause

California courts have suggested that the No Preference clause

of the California Constitution offers protections greater than the No

Establishment clauses.

(Lucas Valley,

233 C al. A pp. 3d at 145;

see

Vernon v. City of Los Angeles (9th Cir. 1994) 27 F .3d 1385, 1395-96)

The most recent California Supreme Court decision on the topic

declined to "definitively construe" the clause, and held instead that

the No Preference clause was satisfied under the

Lemon test because

satisfaction of the

Lemon

prongs indicated a lack of "preference for

or discrimination against religion."

(E. Bay,

24 C al. 4th at 719)

Recently, 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.

(Barnes-Wallace 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 Pactflc Council), 2009

Cal.

LEXIS 3507) Still, "the California Constitution is a document of

independent force, [and] the rights it guarantees are not necessarily

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coextensive with those protected by the federal Constitution."

(E.

Bay at 718)

"Referring to this clause, the Attorney General's office has

said: 'It would be difficult to imagine a more sweeping statement of

the principle of government impartiality in the field of religion."

(Feminist Women's,

157 C al.A pp.3d at 1086 (quoting 25

O ps.Cal.Atty.Gen. 316, 319 (1955))) U nder the N o P referenc e c lause,

preference is forbidden even when there is no discrimination.

(Fox,

22

Cal. 3d at 796) "We must never forget that the religious freedom

of every person is threatened whenever government associates its

powers with one particular religious tradition. The threat today may

seem small, but the breach in principle is large."

(Id. at 805 (J. Bird,

concurrence)) The intent is to ensure that free exercise of religion is

guaranteed and that the state neither favors nor discriminates

against religion.

(E. Bay,

24 Cal. 4th at 719) "[T]he state constitution

requires greater government neutrality and has broader restrictions

on actual or apparent preference. This reduces the state's ability to

prefer one religion under the guise of accommodation, while

retaining the state's ability to alleviate a burden on all affected

religions equally. (D avid A . C arrillo and S hane G. Smith,

California

Constitutional Law: The Religion Clauses,

45 U .S.F. L. R ev. 689,

690 (2010))

There are strong policy arguments for giving an independent

analysis to the No Preference clause. Against the backdrop of the

California Supreme Court's unresolved stance on the No Preference

clause, Congress has enacted the Religious Land Use and

Institutionalized Persons Act (RLUIPA), which forbids governmental

land regulations from imposing substantial burdens on religious

exercise without a compelling state interest implemented by the least

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restrictive means.9 (42 U.S.C. 2000cc(a)) The Equal Terms

provision of RLUIPA mandates that land use regulations cannot be

implemented in a manner that treats a religious entity "on a less

than equal basis with a secular comparator."

(Centro Familiar

Cristiano Buenas Nuevas v. City of Yuma

(9th C ir. 2011) 651 F .3d

1163, 1173) RL U IP A protects religion from an adverse lack of

neutrality in land-use regulations. The No Preference clause may be

seen as providing protection from a lack of neutrality that is adverse

against secular interests in favor of religion. It is important as the

legal landscape is shaped by a powerful piece of legislation such as

RLUIPA that we maintain the integrity of our constitutional

protections and apply them to situations that call uniquely for their

guidance. In

E. Bay,

Chief Justice Mosk observed that "state law and

state constitutional principles should be our first and sole referent . .

. `[A]s the highest court of this state, we are independently

responsible for safeguarding the rights of our citizens. State courts

are, and should be, the first line of defense for individual liberties in

the federal system." (24 Cal. 4th at 722 (C.J. Mosk, dissent) (quoting

his concurrence in

Sands v. Moron go Unified School Dist.

(1991) 53

Cal. 3d 863, 906))

9

Respondent invoked RLUIPA in its claims that religious projects

are evaluated under a different standard. (AR4755-56, 13603)

Although the County initially asserted that all projects are to be

evaluated equally under the zoning code, it is very possible that the

C ounty eventually capitulated to the c hilling effect of R L U IP A.

(See P atricia E. S alkin and Amy L avine,

The Genesis of RLUIPA and

Federalism: Evaluating the Creation of a Federal Statutory Right

and its Impact on Local Government,

40 U rb. L aw. 195, p.79

(2008)) "Indeed, RLUIPA has had a chilling effect on local

government's ability to exercise the police power through zoning to

ensure that community character is preserved and that the public

health, safety, and welfare is protected."

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The County ignored significant distinctions between the 2004

approved use and the 2014 realities in evaluating whether the

Project's expanded press activities and new storage operation could

qualify as an "accessory" use. In allowing these changes to escape

review by sheltering them under the "accessory" umbrella, due to the

"integral" nature of the press operation to the TNMC religion, the

County demonstrated a strong preference for religion. The printing

facility was never an approved

type

of use, but was rather approved

in 2004 as a single printer facility, determined to be an accessory use

necessarily "related to and subordinate to the primary use." The

County transformed the 2004 printing facility's designation as an

"accessory use" into approval of a massive industrial production and

storage operation as accessory to the religious retreat, due to the

importance of printing to the religion. (AR4081-84)

The County's beneficial zoning interpretations were

inconsistent with the RRD land use category and the General Plan.

The County stated that because the ancillary printing of sacred texts,

"integral to the Ratna Ling Buddhist religious practice," had

previously been approved as an "acceptable" use in the RRD

category, it was consistent with the General Plan to approve 40k sq.

ft. of storage tents, printing facility expansion, increased commercial

activities associated with the printing facility, and increases in

permitted workers and worker housing. (AR46-47) When compared

with other types of uses in the zoning code, however, it is clear that

this use is inappropriate for the RRD category.

(See infra,

Section

V.B)

The County also failed to consider if the dramatic expansion of

the printing operation was still accessory to the retreat function, or if

it had instead become the primary use. To justify its decision, it used

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Petranker/TNMC-provided numbers in defending its accessory use

designation. (AR48-49) This only further demonstrated preference

for Petranker, as County did not conduct its own analysis, but cut-

and-pasted the numbers used in its resolution directly from the

TNMC-provided analysis, which is problematic in its assumptions.

(See supra,

Section III.I.2.(b))

In relying on its designation of the printing facility as an

already-approved "acceptable" type of use, and failing to consider

the expansion of that use in an "accessory" analysis, the County in

effect invented a new zoning category that escapes any critical

review: any religious entity claiming a use as accessory will have that

use permitted, regardless of the size, growth, or nature of the

operation. The preference displayed is obvious when we consider

the effect on the RRD use category should similar uses gain approval,

which will be required under the neutrality principle of the

Establishment clauses and the No Preference clause: with a

proliferation of industrial uses dotted throughout, the nature of the

RRD use category would be subverted completely. This preferential

approval sets a bad precedent for future zoning decisions, a concern

expressed several times by petitioners and acknowledged by County

staff, both in the context of inducing growth via other religious uses

and via secular land uses, particularly wineries, a dominant industry

in rural Sonoma County. (AR4099, 4756, 8995, 12024, 12068) By

allowing for Petranker what cannot be allowed for others, the County

displayed an illegal preference for religion.

3.

he No Aid Clause

The No Aid clause bans not just financial allocations, but any

official involvement, in any form, that has the "direct, immediate,

and substantial" effect of promoting religious purposes.

(E. Bay, 24

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C al. 4th at 721) The C ounty has violated the N o A id clause because it

has permitted a commercial, industrial printing operation to

function in a rural area under the guise it is a "noncommercial"

"accessory" use to the Ratna Ling retreat center, affording exclusive

benefits, both financial and intangible, to Petranker/TNMC.

A bond program that provided loans to educational

institutions did not violate this clause because it did not discriminate

between sectarian and secular entities, and requirements prevented

the funds from being used by a religious school to substantially

further its religious mission w hich wou ld have exc eeded the

permissible "incidental benefit" standard.

(California Statewide

Communities Development Authority v. All Persons Interested etc.

(2007) 40

Cal. 4th 788, 801-04) A statutory exemption from a

newly-enacted landmark designation law did not violate the No Aid

clause, because it did nothing more than leave the properties in the

state they would have been without the new law.

(E. Bay,

24 C al. 4th

at 721) A transfer of fetuses used in a criminal investigation from the

district attorney to the Catholic League for burial violated the No Aid

clause, however, because even aid in intangible forms, such as in

prestige and power, is prohibited.

(Feminist Women's,

157 C al. App.

3d at 1093)

The Project allows significant commercial activity despite an

express prohibition on commercial activity in the conditions of

approval. (AR61) The County in the same document attempts to

justify this rampant commercial activity as allowed under the

previous permit, despite a 2004 permit condition stating that a

commercial printing press was not allowed, and Petranker's 2004

proposal statement that the press facility "does not operate as a

c onventional c ommercial business. (AR 13, 51, 4603) By

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misrepresenting the commercial nature of the Project, the County

has given Petranker an exclusive benefit that cannot be described as

merely "incidental," in violation of the No Aid clause.

Within the Project approval and administrative record there is

ample evidence this printing operation operates as a commercial

activity. The Project itself approved of a dramatic expansion in

number of presses, workers, truck trips, production levels, and

associated storage, manufacture of "sacred objects," and Internet

sales. Evidence in the record suggests that Dharma Publishing

moved their entire operation to Ratna Ling, while simultaneously

operating both an online store and a bookstore in the City of

Berkeley to sell the books and other items produced at Ratna Ling.

(AR6322, 6324, 6747, 7316, 8214, 1079) The grand scale of the

commercial sales was described in multiple complaints to the

County, and is readily verifiable by looking on the Dharma

Publishing website, which offers hundreds of items for sale,

including a trademarked line of cushions. (AR6297, 6905, 7316,

8359-61; MJN(2))

In a previous zoning proposal, Petranker/TNMC suggested

that the entire site be rezoned to "K" zoning, "Recreation and Visitor-

Serving

Commercial

District." (Emphasis added) (AR4756; MJN(3))

Even Code Enforcement recognized the commercial nature of the

printing operation activities in the Project: when it investigated code

violations at the site during the approval process for the Project, it

noted that sales and distribution were a commercial activity that

potentially violated the 2004 permit but that the Project could allow

suc h uses, potentially resolving a code violation. (AR 1082) A lso in

the administrative record was reference to a Tax Court case involving

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the commercial printing activities of Dharma Enterprises, including

TN M C . (AR5682; M JN(4))

Just because an activity is undertaken by a religious entity

does not mean it cannot be described as a commercial practice. In a

First Amendment decision that decided whether revenues from the

sale of religious publications could be taxed despite the use of those

revenues to produce other religious materials to further spread the

gospel, the

Swag gart

case held that a religious organization that

sought to share its religious message should not enjoy rights not

afforded to organizations with secular ideologies, and required the

sales tax.

(Jimmy Swaggart Ministries, supra,

204 C al. Ap p. 3d

1269, 1284) Likewise, the County should not aid Petranker/TNMC

by granting a benefit that is unavailable to other entities, just

because it is a religious entity. No other entity may set up an

industrial printing facility and warehousing operation in the rural

forests of Sonoma County and sell items produced there in a

bookstore and on the Internet. (AR51, 62) This exclusive right

benefits and aids this religion in prestige and power by its

exclusivity, and financially in manufacturing and sales facilitation.

This violates the California Constitution.

B.

he Project is inconsistent with the General Plan and

the zoning code.

1.

eneral Plan and RRD zoning provisions

The General Plan, pp. LU-55-56, contains land use policies for

RRD land. It highlights the need for low densities of residents due to

lack of infrastructure, distance from public services, and poor access.

(AA159-60) RRD policy protects and accommodate local resource

production such as timber, geothermal, aggregate, agricultural and

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fisheries

not

resources imported from outside the area. (AA159;

AR5986 [PRMD])

Along with protecting productive lands and natural habitat,

the RRD policy is also intended to:

protect against intensive development in fire prone

areas

protect against proliferation of growth in areas with

inadequate public services and infrastructure [fire

service and roads]

(AA159)

RRD allows places of worship, lodging, campgrounds, and

similar recreational and visitor serving uses provided that they

"shall" not be inconsistent with the purpose of this c

Documents

Appellant's Opening Brief, Coastal Hills Rural Preservation vs. County of Sonoma; 9-25-15