Who should have final say about how privately owned land is used?
Depending on your point of view, this story is about the state’s obstructionist policies that keep reasonable development from happening in Knights Valley; or it’s about its laxity in exercising environmental caution when ruling for or against development proposals; or it’s about the diligence of environmental watchdog groups to protect Sonoma County’s irreplaceable resources; or it’s about the meanness of neighbors who want to ruin landowners’ dreams.
However you look at it, the facts are the same: The hills above Knights Valley contain a rare combination of nearly pristine land and streams that are ideal for wildlife and fish; it’s also ideal for growing hardship-loving grapes. It’s off the beaten path and accessible by a steep and winding road with breathtaking turns, edged by precipitous declines. Personal opinions about the value of the land and how it should be used diverge. Some feel it should be preserved as one of the last spots of unspoiled land around; some recognize that, as a watershed, what happens there can impact streams and soils elsewhere; some feel they should be able to do on their own land what they choose, and if that includes development, they should be allowed.
Two plans guide the land’s future
Two planning documents serve to guide decision making about the area’s future, the County General Plan 2020, which is the guiding document for all of Sonoma County’s development, and the Franz Valley Area Plan, formed in 1979 as a way of guiding development while maintaining the unique character of the roughly 91,520 acres in the area, including Knights Valley, Franz Valley and part of the Mark West Creek watershed. The land use element of the current General Plan states that the Franz Valley Plan shall be amended as necessary to be consistent with the General Plan and that, “in any case where there appears to be a conflict between the General Plan and Area Plan policies or standards, the more restrictive shall apply.”
The permitting process is the mechanism by which the state and county balance private objectives against the environmental consequences and recognized public good. That process, according to Gerhard Reisacher, whose story follows, is sorely flawed.
What price growth?
In recent history, two vineyard owners have applied to the County of Sonoma for permission to build wineries on their Knights Valley land—and then have been thwarted by legal action and threat of legal action, respectively, which would force them to undergo the dreaded (expensive) environmental impact review (EIR) before receiving permission to build.
In March 2009, the Board of Supervisors approved the application of Jess Jackson and Barbara Banke to build the Pelton House Winery, a 5,000-case winery and event center on their land. Subsequently, two local “environmental watchdog groups,” the Maacama Watershed Alliance and Concerned Citizens of Knights Valley, took the county to court on the grounds that the permit had been given without proper environmental review. On June 15, 2010, the Superior Court, following environmental guidelines set out by the California Environmental Quality Act (CEQA), overturned the Board of Supervisors’ approval of the project, “finding the Petitioners persuasive on all the points discussed herein. The court finds that substantial evidence supports a fair argument that the project may have a significant effect on the environment and thus requires an environmental impact report, while respondents have improperly deferred both study and mitigation for certain aspects of the wastewater system for the Project or the effects on a potential wetland in the area.”
The court stated that under the “fair argument” test, an agency must prepare an EIR whenever “it can be fairly argued” based on substantial evidence in the record that the project may have a significant effect on the environment. “This is true even if other substantial evidence supports the conclusion that there are not significant impacts.” In other words, a fair argument would take on both sides and exercise the caution of proof.
What’s substantial evidence?
The ruling quotes PRC 201080(e)(1) in defining the fair argument as follows: “Substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.” Quoting the document further, it states that it’s not “argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous or evidence of social or economic impacts that do not contribute to or are not caused by physical impacts on the environment.”
In other words, the court shouldn’t take on testimony based on emotion, opinion or hearsay, or that’s not supported by fact—although “credible expert opinion” (which is based on professionally analyzed fact) is applicable.
To Reisacher, co-owner (with his wife, Linda) of Napa-based Delectus Winery, whose application for a winery and cave on his Knights Valley land was approved by the Board of Zoning Adjustments in April 2010 but challenged by the same groups that brought about the reversal of the Pelton House Winery approval, the approval process is fraught with unreasonable and arbitrary demands and excessive and unfair cost.
Delectus dream
The Reisachers bought 112 acres facing Mt. St Helena in 2005, with the idea of planting mountain estate vineyards and building a small winery. Above the fog line, from 1,200 to 2,200 feet in elevation, on mostly steep slopes, the land is ideal for grapes—and for wildlife, birds and seekers of beauty. Of the total acreage, 42 acres are permitted for vineyards and, of those, 18 are planted so far. The winery they’ve proposed would sit more than 2,000 feet above the valley floor and would be virtually invisible from Highway 128 (the area’s main thoroughfare). According to Reisacher, upon first visiting the site to investigate the reasons for opposition, Sonoma County Permit and Resource Management Department (PRMD) Director Pete Parkinson commented that the location was “the perfect site for a winery due to its remoteness and distance from any residential development.”
Unfortunately, in the years since that visit, Reisacher has become embittered to the way the county’s permit regulations can be strong-armed by clever and powerful opposition groups who seem to him to lack all sense of proportion. As an example of an irrational request, he quotes one individual he met as telling him she wants Knights Valley to “return to the way it was when the Indians lived here.” He says others wanted him to complete a multi-year study on the “emotional impact” on Peregrine falcons as result of added traffic his proposed development would bring to the area, which is located two miles from the nesting site.
The organized opposition, he says, enlists hydrologists and geologists to create the studies necessary to support their professional opinions when they deem a project could be detrimental to the watershed. The power of these groups to divert a property owner’s desire seems to have come as a surprise to Reisacher.
“We’ve been in business since 1992, long before we were able to take the next step” he says. “It starts very innocently. You look at a number of properties, find one and fall in love with it. Then starts the due diligence: You contact the county to find the zoning. And guess what? It allows planting vineyards and having a winery! Perfect! The permit process requires the experts to complete certain studies before it’s granted. Some of the studies you need to do are time-sensitive. You can do traffic studies any time, but water studies need to be done during the driest months—July 15 through September 15. For the wastewater percolation, you have to do that during the wettest time of the year.” All this makes sense, he allows. So they finished their studies in 2005 and submitted their complete application, with supporting documents, in February 2006.
The county’s process
After receiving a proposal, the county has to decide whether it can be approved with a Mitigated Negative Declaration, in which it will ask an applicant to pay for certain improvements, or, for large projects, a complete environmental impact review (EIR) up front. Reisacher made the rounds of the departments and agreed to all the various requirements (mitigations) and, he says, he was fine with them all—until he got to the last department: Public Works, Transportation Department.
“[The original department director (since retired)] looked at us like a golden goose and said they wanted us to build a brand new, two-lane road all the way from the intersection at Highway 128 and Ida Clayton Road to our gate—which is 3.4 miles!” He laughs, still in disbelief. “We said, ‘What? You’re talking millions of dollars!’” He points out that the current mountain road was built in 1875, with the ridge line on the left as you ascend and a steep drop off on the right, with several “blind” curves that limit sight distance. The road embankment is so precipitous at some sections that road widening would be impossible without cutting deeply into the mountain.
Reisacher turned to CEQA for support. “CEQA states that a public agency cannot require improvements from an applicant that are disproportionate [without a nexus] with the impact of the project. So if I’m building an amusement park up there and expecting thousands of cars, then I’m building a new road!” he laughs. “But if I have five employees and expect one additional car per day to come visit, it doesn’t justify the county asking us to build a new road. That’s extortion.” He worked with the county for four years on a solution to improve road safety and finally got it to agree to create widened two-lane segments around the several blind curves at Reisacher’s expense. There are also dozens of turnouts that can be used in the rare occasions that two trucks would meet traveling in opposite directions (a 10-year accident history on the 3.4 mile road segment shows no incidences). The Board of Zoning Adjustment approved his project.
Then, the fun began.
The public right and purpose of appeal
Before leaping to a conclusion that all appeal is ill-motivated and obstructionist, it will help to recall the purpose of CEQA for all residents of an area. PRMD’s Parkinson describes the purposes of CEQA as two: First, to make sure the decision makers and the public have all the information they need about the environmental effects of a project; and second, to identify the significant environmental effects and to look for ways to avoid or lessen those effects.
Thus, assuming environmental integrity is good for all, CEQA is for the all-round good.
“Essentially,” says Parkinson, “when someone requests a permit, particularly a conditional use permit for a winery, then we, as the public agency, have an obligation to comply with all the requirements of the California Environmental Quality Act.” He explains that these requirements are very detailed, with a raft of guidelines and interpretations forged by many court cases so that, over time, CEQA has become a sharper tool for protecting the public interest. “Controversy over a project adds to that in ways that vary according to the project,” he says. “So it depends on what the level of interest is and what kind of resources project opponents can bring to bear on it.”
This isn’t a bad thing, from his point of view. “Sometimes groups can bring up issues we haven’t thought of.” Those who are effective (and can afford it) hire experts to present “substantial evidence” of their concerns in terms of professional judgments based in scientific fact. “Professionals can disagree,” says Parkinson, “and they can look at a piece of property and come up with different conclusions. And we have to look at it and determine what the true facts are. There has to be a factual basis for opposition.”
In August 2010, the Board of Supervisors heard an appeal of the county Board of Zoning Adjustments’ earlier approval of the Delectus project by the Maacama Watershed Alliance and Concerned Citizens of Knights Valley (the groups that had successfully appealed the Pelton House project). The supervisors could not vote on the project, because the groups submitted letters of opposition within hours of the start of the hearing. “Our deadline to [submit material] was 17 days earlier!” says a frustrated Reisacher. “Unfortunately, CEQA gives the opposition such rights and they use it to the fullest—even though they had four months since the last hearing to submit opinions.” As a result of the last-minute submissions, the board set a new hearing date for the following month.
Two weeks prior to that September 2010 hearing, the Reisachers asked Sonoma County Board of Supervisors to postpone the resumption of the project indefinitely. The uncertainty of how many more hearings needed to be scheduled due to the actions of the opposition, all at the Reisacher’s expense, became too costly in the midst of a struggling economy. That left Reisacher, who’d already paid dearly to get this far in the process, facing more bills in case of a lawsuit or an EIR.
“CEQA states that the county is entitled to reasonable reimbursement of its fees if their time on your particular project ‘exceeds the norm’—up to an appeal” he says, adding that some counties split these fees between the applicant and the appellant (not Sonoma County, however). “Prior to the appeal, our bill with the county was $22,000. Since then, that number has mushroomed to $65,000. Cost to the opposition? Zero. So all the headache and delays the opposition caused the county—and us—comes out of my pocket.” To him, the opposition should share equally in the additional expense it causes during the permitting process. “The problem,” he says, “is the opposition has no skin in the game, and the county indirectly enables these abuses.”
What’s in it for the opposition?
Craig Enyart, a member of the Maacama Watershed Alliance, says that almost everyone who lives and works in Knights Valley can see that it’s a uniquely valuable place. “Unlike any other viticultural area in the county, Knights Valley has been left to a certain level of pristineness,” he says. This uniqueness, to him and the Alliance, along with the obvious values inherent in a watershed of wildlife and water and environmental quality, is valuable and should be managed with care and forethought.
Believing that the county wasn’t being appropriately diligent in its approval process for development, he and other members of the Alliance got together and organized their approach. They do research, gather experts, present supported objections to the project, and—their “skin in the game”—are willing to pay for legislation, when necessary. Their mission isn’t to stop development, per se, but to make sure it’s undertaken with a full environmental review, so that costly consequences can be avoided.
Take, for example, the problem of the road, which Reisacher says has been solved by his and the county’s compromise plan to widen some of the blind curves. “That’s just a bandaid,” says Enyart. “I think at least half the residents who live on Ida Clayton Road are concerned about the appropriateness of alcohol and winery traffic on that road.”
He and the Alliance contend there are environmental and safety issues that simply haven’t been satisfactorily addressed. “If they’re addressed in a satisfactory fashion, then [Reisacher] may get his project built,” says Enyart. “I think that roadmap has been set. It’s very clear now, from our standpoint, if he wanted to move forward, what he’d need to do. Some of the alterations to the project would be achievable, some less so.”
As for the costs, he’s unmoved by the complaints of undue burden on the applicant, using the cost of the road leading to the proposed Delectus winery as an example: “Who gets to pay for it? They capped [Reisacher’s] contribution at $50,000. You and I [taxpayers] get to pay for the rest.”
What can you do?
For Reisacher, the process is discouragingly expensive. “First, you go through all these hearings. The board grants you the project. Then opposition appeals and follows with a public threat to sue the county [if the project is approved]. The next expense depends on how many Board of Supervisors hearings we have to go through to get the final ‘Yes’ decision, at $20,000 each just to reimburse the county for its staff time, not counting even higher costs for more expert opinions. Once the permit is granted, we have to sign an indemnification agreement with the county so, if it gets sued, we’re responsible for the county’s legal defense, which is usually around $50,000 to $60,000. Then it continues in front of a Sonoma County superior judge and, at that point, I’m out $100,000 in just county fees. And then you put all your hopes into the judge, and even if the judge looks through it and upholds the decision of the county, [the opposition] can still appeal. So you’re going to have to spend another $250,000 in legal fees to get through that next step.” He laughs, once again, but sadly. “All of this is completely unnecessary and out of proportion for a small project like ours.”
What should be done? Should all this cost simply be divided in half, as Reisacher suggests—a situation he says would surely discourage opponents—or, as Enyart suggests, should the county tighten up its reality up front and save everyone time and money by just coming out and saying, “Your project needs a proper EIR.” The idea being that if everyone can know up front what the impacts are, they can all avoid lengthy appeals, court costs and mental anguish. “All we’re saying,” says Enyart, “is let’s do it carefully, let’s have it well thought out.”
He adds, “let’s also consider maybe this is one place where we don’t need 10 or 15 wineries. Maybe it’s more appropriate, even if agricultural tourism and agriculture in general is vital to our economy, that it’s OK to leave this area, to a certain degree, open, with vistas.”
Certainly, for this portion of Ida Clayton Road, at least, it looks as though the vistas will remain untouched, at least for a while.
