Professional Documents
Culture Documents
A145573
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):
APP-008
Court of Appeal Case Number
SCV 255694
FOR COURT USE ONLY
and
INITIAL CERTIFICATE
SUPPLEMENTAL CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing this form. You may 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 Court 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.
1. This form is being submitted on behalf of the following party (name):coAsTAL HILLS RURAL PRESERVATION
2. a.
b.
x There are no interested entities or persons that rqust be listed in this certificate under rule 8.208.
Interested entities or persons required to be listed under rule 8.208 are as follows:
Full name of interested
entity or person
Nature of interest
(Explain):
Continued on attachment 2.
The undersigned 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 outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).
JANIS H. GRATTAN
01'
(TYPE OR PRINT NAME)
E OF PARTY OR ATTORNEY)
?/
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SIGNATUR
Page 1 of 1
Cal. Rules of Court, rules 8.208, 8.488
TABLE OF CONTENTS
I.
INTRODUCTION
9
II.
STATEMENT
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14
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a) Religious rationale
b) Quantitative rationale
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5. Alternatives
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K. Appeal
IV. STANDARD OF REVIEW
V. ARGUMENT
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
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39
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VI. CONCLUSION
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TABLE OF AUTHORITIES
State Cases
Abbatti v. Imperial Irrig. Dist. (2012) 205 Cal.App.4th 650
Apartment Ass'n of Greater LA, go Cal.App.4th
49
52
45
54
45
27
34
54
Citizens for East Shore Parks v. State Lands Corn. (2011) 202 Cal.
App. 4th 549
53
Citizens for Non-Toxic Pest Control v. Dept. Food & Agr. (1986) 187
Cal.App.3d 1575
50
Communities for a Better Env't v. Calif. Res. Agency (2002) 103
Cal.App.4th 98
46, 51, 52
County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185
51
E. Bay Asian Local Dev. Corp. v. Cal. (2000)
24 Cal. 4th 693
48
70 Cal.App.4th 238
51
27
53
31,34
30,45
31, 32
27
27
33,40
54
50
27,47
Lucas Valley Homeowners Ass 'n v. County of Mann (1991) 233 Cal.
App. 3d 130
28,46
36
28,46
28,46
46
30, 31
State Statutes
14 CCR 15125(a)
14 CCR 15162
52
48,51
28
26
44
48,51
27
Federal Cases
Barnes-Wallace v. City of San Diego
(9th Cir. 2008) 530 F.3d 776
34
Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet (1994) 512
U.S. 687
28,33
35
28
33
Federal Statutes
Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. 2000CC et seq
9,35
28
Other Authorities
David A. Carrillo and Shane G. Smith, California Constitutional
Law: The Religion Clauses, 45 U.S.F. L. Rev. 689
Hagman et al., Cal. Zoning Practice (Cont.Ed.Bar 1969) 5-33
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45
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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
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II.
STATEMENT 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?
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B.
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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 800person 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.
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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) "Every day we
supply our presses with four tons of paper!" (AR8230) In 2010,
PRMD observed that inventory in the storage exceeded 500,000
items. (AR13433)
Commercial activities. In 2004, Petranker claimed the
proposed press facility "does not operate as a conventional
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E.
F.
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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
preference or free exercise of religion or RLUIPA.
I.
1.
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a)
Religious rationale
The County abandoned its normal policies when it adopted the
21
SUPERVISOR ZANE:
BARRETT: -- that
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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
/
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.
SUPERVISOR ZANE:
quantitative.
(AR4081-84)
b)
Quantitative rationale
The County also made some quantitative findings to support
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a)
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
District. (AR12704; 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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`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)
The CBC defines "accessory" buildings as Group U occupancy
(e.g., carports, barns, greenhouses) and not otherwise classified in
any specific occupancy. (CBC 311.2; ARio77)
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; AR1077) The County 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.
Alternatives
Petranker claimed the Project must be at Ratna Ling because
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J.
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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 Cal. 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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Cal. 4th at 721) The County has violated the No Aid 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 which would have exceeded 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 Cal. 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 Cal. 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
conventional commercial business." (AR13, 51, 4603) By
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1.
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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industrial fires. Massive paper storage in substandard (not WUIcompliant) membrane structures presents an industrial fire risk that
the local rural fire district is not equipped or trained to handle, and
that risk has not been mitigated, according to the Fire District. This
evidence requires preparation of an EIR.
2.
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Timber Cove Fire and Sonoma County fire, and the facility operators
get together and basically get down and look at, okay, what are the
real risks, what are the hazards, and if those if we do, in fact, have
real hazards and risks, how are we going to mitigate those."]) The
County abused its discretion by finding that the Project will have no
significant impacts, despite the substantial unrebutted evidence in
the record to the contrary (Section III. I. 3)
The final basis for the County's conclusion that the Project will
have no significant impacts is based on its findings that warehouse
tents comply with building and fire code standards. (AR44-45) But
again, this conclusion is not based on substantial evidence. The
tents are not exempt from the VVUI Standards because they are not
defined as "accessory" under the CBC. (Section III. I. 3(c))
Moreover, compliance with the rules of another agency does not per
se mean that the project will not have an environmental impact.
(See, Kings Co v. Hanford (1990) 221 CA3d 692, 712-718; Citizens
for Non-Toxic Pest Control v. Dept. Food & Agr. (1986) 187
Cal.App.3d 1575, 1587-88)
3.
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JANIS H. G TTAN
Attorneys forlAppellant Coastal Hills
Rural Preservation
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DECLARATION OF SERVICE
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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 the interested parties in the action by ELECTRONIC COPY at Santa Rosa, California,
addressed as follows:
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ADDRESSED TO:
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Verne Ball
Office of County Counsel
575 Administrative Dr., Rm 105A
Santa Rosa, CA 95403
Tina Wallis
Clement, Fitzpatrick 86 Kenworthy
333 Mendocino Ave., Ste 200
Santa Rosa, CA 95403
Michael Lozeau
Rebecca Davis
Lozeau Drury LLP
410 12th St., Ste 250
Oakland, CA 94507
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(X )(State) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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( ) (Federal) I declare under penalty of perjury that I am a member of the State Bar of this
Court or I am an employee in the offices of a member of the State Bar of this Court at whose
direction service was made.
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