TO: Board of Supervisors
FROM: David Morrison, Director of Planning, Building and Environmental Services
REPORT BY: Brian Bordona, Assistant Director
SUBJECT: Walt Ranch Vineyard ECP - GHG Mitigation Appeal
RECOMMENDATION
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PUBLIC HEARING 1:30 P.M. - (Walt Ranch Appeal)
Consideration and possible action regarding an appeal filed by Center for Biological Diversity (Appellant) to a decision by the Director of the Napa County Department of Planning, Building and Environmental Services on October 6, 2021, to approve a revision to Mitigation Measure 6-1 and to incorporate the revised mitigation measure into the Mitigation Monitoring and Reporting Plan applicable to the Walt Ranch Vineyards Agricultural Erosion Control Plan - File No. P11-00205-ECPA submitted by Hall Brambletree Associates, LP (Applicant) to allow earthmoving associated with the development of approximately 209 net acres of vineyard (±316 gross acres) (the Project) as further described in the Board Agenda Letter for this matter. The Project is located on the west side of Monticello Road, approximately one mile southwest of its intersection with Highway 128, and approximately one-half mile north of its intersection with Waters Road, approximately 6.25 miles east of the Town of Yountville in Napa County located within the Milliken Reservoir Watershed and Capell Creek-Upper Reach Drainage. (Assessor Parcel Numbers: 032-120-028, 032-480-007, -008, -011 through -024, -027, -028, 032-490-004, -005, -006, -008 through -020.)
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EXECUTIVE SUMMARY
The matter before the Board involves the appeal of a revision to a mitigation measure adopted to offset the impacts on the environment of the greenhouse gas (GHG) emissions from the construction and operation of the Project. The Environmental Impact Report (EIR) was adopted and certified in December 2016 and was not invalidated or decertified by the subsequent petitions for writ of mandate filed by the Appellant, among others. Instead, the Court issued a writ of mandate requiring the County to revise and substantiate the mitigation of GHG impacts caused by the Project. The Director approved the revised Mitigation Measure 6-1, which requires the Applicant to (1) place no less than 124 acres of oak woodland on the Project site into a perpetual conservation easement, and (2) plant no fewer than 16,790 oak trees within lands protected by conservation easements identified in this and other mitigation measures applicable to the Project. After the appeal was filed, the Applicant submitted a revised proposal that would substantiate the mitigation measure originally adopted by the County in the EIR by identifying and mapping 292.6 acres of woodland habitat, from which 248 acres would be conserved, on specific portions of the property that meet the conditions for adequate conservation easements, as required by the Court of Appeal. The Project is located in the AW (Agricultural Watershed) Zoning District and has a General Plan land use designation of AWOS (Agriculture, Watershed and Open Space).
PROCEDURAL REQUIREMENTS
1. Chair introduces item.
2. Chair invites disclosures from Board members.
3. Chair invites the Staff Report presentation.
4. Chair opens the public hearing and invites testimony from Appellant and their witnesses as previously disclosed on their witness list and in the order noted on the witness list attached as Attachment 7.
5. Chair invites any other interested members of the public to testify regarding the appeal.
6. Chair invites testimony from the Applicant and their witnesses as previously disclosed on their witness list attached as Attachment 7.
7. Chair then invites Appellant to have final rebuttal, if any.
8. Chair closes the public hearing.
9. A motion of intent is made and seconded to deny, uphold, and/or remand the appeal.
10. Chair refers the matter to County Counsel’s office for preparation of a Resolution of Findings of Fact and Decision on Appeal. Staff recommends that the Board direct County Counsel’s office to return to the Board on June 7, 2022, with the proposed Resolution for the Board’s consideration and adoption.
FISCAL & STRATEGIC PLAN IMPACT
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Is there a Fiscal Impact? |
No |
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County Strategic Plan pillar addressed: |
Vibrant and Sustainable Environment |
ENVIRONMENTAL IMPACT
ENVIRONMENTAL DETERMINATION: The Final Environmental Impact Report was certified on August 1, 2016 (State Clearinghouse No. 2012-02046); an Addendum was prepared to analyze the impact and effectiveness of the revised Mitigation Measure 6-1. The Applicant’s revised proposal substantiates the mitigation measure described in the EIR.
BACKGROUND AND DISCUSSION
On August 1, 2016, the Director approved the Hall Brambletree Associates, LP - Walt Ranch Vineyard Conversion - File No. P11-00205-ECPA, which consisted of an erosion control plan for the earthmoving associated with the development of approximately 209 net acres of vineyard (±316 gross acres). The Director also approved the Environmental Impact Report (“EIR”) (SCH #2012102046), finding that, as mitigated, the environmentally superior alternative project would not result in any significant impacts to the environment.
The decision followed 134 days of public comment on the Draft EIR, including two public hearings before the Director. Thereafter, the Director’s decision was appealed by four parties on numerous identified grounds. In December of 2016, the Board held three separate hearings on the consolidated appeals, including public comment on the Project. After due consideration, the Board upheld the Director’s approval, with some modification to mitigation measures and conditions of approval. The EIR was certified on December 22, 2016, and the project approved.
On January 19, 2017, three Petitions for Writ of Mandate were filed challenging the approval in Napa Superior Court, on numerous grounds. On April 5, 2018, the Superior Court denied the Petitions and upheld the County’s decision to certify the EIR and approve the Project. The petitioners appealed the Superior Court’s decision and on September 30, 2019, the Court of Appeal upheld the Superior Court’s decision on all grounds except one. (Attachment 22.) The Court of Appeal held that there was insufficient evidence that the preservation of 248 acres of woodlands would offset the GHG emissions resulting from the project because the record did not identify the specific woodlands to be preserved. For this reason, there was insufficient evidence to show that such woodlands were otherwise subject to conversion to other uses. The Court of Appeal therefore directed the County to reconsider the adequacy of Mitigation Measure 6-1.
On May 6, 2020, the Superior Court entered judgment and issued a writ consistent with the Court of Appeal’s decision. (Attachment 21.) The judgment and writ directed the County to set aside its findings “concerning whether the Project, as mitigated, will have a less-than-significant impact with respect to GHG emissions.” The judgment provided that no Project activity that may result in GHG emissions may proceed unless and until such findings are reconsidered and supported by substantial evidence on the record. Nevertheless, the judgment did not set aside the approval of the Project, nor did the judgment decertify the EIR. Therefore, the only issue that was left to resolve is the adoption of adequate mitigation for GHG emissions; all other issues related to the Project and the EIR are conclusively resolved.
The Judgment concluded, in relevant part, as follows:
1. As set forth in the Opinion, the Petition for Writ of Mandate, filed by Petitioners is granted in part as to the following EIR issue: to ensure that the greenhouse gas (“GHG”) emissions associated with the project, as mitigated, constitute a less-than-significant impact. As set forth in Section II.F of the Opinion, substantial evidence does not support the County of Napa’s (the “County’s”) conclusion that the conservation easement that the Project must provide will provide sufficient mitigation to reduce the Project’s GHG emissions to less-than-significant levels.
2. In all other respects, the petition is denied.
(Attachment 21, p. 9.)
Based on the Court of Appeals opinion, even the analysis of the impact of the project with respect to GHG emissions is conclusively resolved. The EIR estimated that installing the vineyard would result in GHG emissions totaling 105,753 metric tons of carbon dioxide equivalent (“MTCO2e”). The EIR also concluded that these emissions would not result in a significant impact if they were offset by reductions in GHG emissions by 26 percent. This translates to a reduction in GHG emissions of 27,496 MTCO2e. The Court also did not question the County’s conclusion in the EIR that preserving 248 acres of woodlands would result in a reduction of the GHG impact by 27,528 MTCO2e, provided the appropriate woodland could be identified. This conclusion was based on estimates generated by the California Emissions Estimator Model (“CalEEMod”), which was developed by the California Air Pollution Officers Association in collaboration with the California air districts, including the Bay Area Air Quality Management District (“BAAQMD”). The methodology was deemed appropriate.
On July 14, 2020, pursuant to the judgment, the Napa County Board of Supervisors adopted Resolution No. 2020-98 (Attachment 20), which vacated and set aside the finding in Attachment A to Resolution No. 2016-184 regarding Impact 6-1 and directed staff to file a return to the peremptory writ of mandate informing the Court that the Board had adopted this resolution.
The proposed project approved by the Director consists of an amendment to Mitigation Measure 6-1, which, as previously approved, required the applicant to place into permanent protection no less than 248 acres of oak woodland habitat to offset 27,528 MTCO2e of the project’s GHG emissions. The proposed project would amend Mitigation Measure 6-1 to combine a smaller conservation easement area with a substantial tree-planting program. The proposed revision to Mitigation Measure 6-1 would require permanent protection of no less than 124 acres of woodland habitat, which must be located on slopes less than 30 percent and outside any other preservation areas required by the EIR, and the planting of no less than 16,790 native oak trees, as further described in project documents. An Addendum to the EIR in accordance with the CEQA Guidelines, Section 15164, has been prepared, which analyzes the amendment to Mitigation Measure 6-1 and provides further details. (Attachment 17.)
Since the filing of the appeal, the Applicant submitted a revised proposal, which would substantiate the original mitigation measure requiring conservation of 248 acres of woodland habitat. (Attachments 2 and 3.) The revised proposal identifies 292.6 acres of woodland habitat on the Property, from which the Applicant would be required to conserve 248 acres. The proposal includes detailed mapping to show that the land identified: (1) consists of mapped woodland habitat; (2) is located on slopes less than 30 percent; (3) is located outside the Milliken Reservoir watershed; (4) is located outside required setbacks for riparian corridors; (5) does not overlap with land to be converted to other uses as part of the project; and (6) is not designated for preservation under adopted mitigation measures to protect other resources on the Property. The revised proposal would revise the previously adopted Mitigation Measure 6-1 to reflect the change and to incorporate the accountability and oversight provisions of the Biological Resources Management Plan (“BRMP.”)
Code Compliance:
There are no active code violations at the project site.
Public Process:
Erosion Control Plans are subject to review and approval by the Director of the Department of Planning, Building and Environmental Services (the “Director”), pursuant to Napa County Code section 18.108.070. While no specific process is provided for approval of a revision to a mitigation measure for an approved project with a certified EIR, the County sought to provide an opportunity for public review and input. To that end, the Director issued a tentative decision on September 21, 2021, providing for a comment period of at least 10 days before the decision became final. The tentative decision stated that the final decision would be made on October 1, 2021.
In response to the tentative decision, the County received approximately 60 comments from the public, including a letter submitted by the Appellant, CBD, on October 1, 2021 (Attachment 11, Exhibit 2). The Director reviewed each comment and, on October 6, 2021, issued a final decision approving the revision to Mitigation Measure 6-1 (Attachment 15).
Findings:
The writ of mandate issued on May 6, 2020, required the County to vacate and set aside its findings regarding the impact of the Project on GHG emissions. The Board, by resolution passed on July 14, 2020, set aside the following finding, which was previously adopted in Resolution 2016-184:
Compliance with MM 6-1, which has been required or incorporated into the Project, will reduce impacts from GHG emissions through preservation of woodland on the property. The Board hereby directs that this mitigation measure be adopted. Pursuant to Public Resources Code Section 21081(a) and CEQA Guidelines Section 15091(a), the Board hereby finds that changes or alterations have been required in, or incorporated into, the Project which avoid or substantially lessen this impact to a less-than-significant level.
The Director reviewed the proposal from the Applicants (Attachment 19), the report from Ascent Environmental (Attachment 19), the Addendum to the FEIR (Attachment 17), and other documents and information in the record and found that substantial evidence supported the conclusion that “the revised Mitigation Measure 6-1 will reduce the impact of the Project on Greenhouse Gas emissions to a less than significant level, in accordance with the Superior Court judgment.” (See Attachment 15.)
Appeal:
On November 5, 2021, Appellant Center for Biological Diversity filed a timely Appeal Packet (the Appeal) challenging the approval of the amendment to Mitigation Measure 6-1 in the Walt Ranch Vineyards Agricultural Erosion Control Plan and EIR documents. (Attachment 11.)
Pursuant to the County’s appeals ordinance (Napa County Code Chapter 2.88) a public hearing on an appeal must be scheduled not less than 25 days nor more than 90 calendar days from submittal of an appeal. The County scheduled the hearing for December 14, 2021, and the parties confirmed their availability for that date.
The Board held the hearing on December 14, 2021, and, after all presentations and public comment were received, adopted a tentative action. After the hearing and before the final action on the matter, however, the County became aware of allegations of a potential conflict of interest of one supervisor who voted in the majority for the tentative action taken at the December 14, 2021, hearing. On March 1, 2022, the Board considered whether to adopt the findings of fact as presented after the tentative action, or to reconsider the matter without the participation by the supervisor. Out of an abundance of caution, and at staff’s recommendation, the Board decided by a 4-0 vote (with one supervisor recused) to re-set the hearing on the appeal to April 19, 2022, with a new prehearing conference to be presided over by the new chair.
Pre-Hearing Conference:
To clarify the County’s procedural requirements and expectations regarding land use appeals, the County requires the parties to attend a pre-hearing conference with the Chair of the Board to discuss estimates on presentation lengths, scope of evidence, and testimony to be presented, together with witness lists. Any witness not appearing on a witness list at the pre-hearing conference is treated as an ordinary member of the public and allotted the usual three minutes of speaking time.
A pre-hearing conference was held on March 17, 2022, with the Chair and representatives of the Appellant, the Applicant, and a Deputy County Counsel. At the conference, Appellant and Applicant agreed to provide a list of their respective witnesses along with the subject matter of testimony and time estimates in advance of the hearing. The Chair informed the Appellant and the Applicant that each side is allotted a maximum of 20 minutes for their presentation, allocated at their discretion. The witness information that was provided by Appellant and the Applicant is provided in Attachment 7.
Additionally, following the pre-hearing conference, the parties submitted requests to augment the record. The Applicant requested the addition of the revised proposal and accompanying documents, and the Appellant requested the inclusion of a substantive response to the revised proposal. (Attachments 8 and 9, respectively.)
The Chair determined that good cause exists for the inclusion of this additional evidence in the record on appeal. (Attachment 10.) The parties did not request reconsideration of the Chair’s decision before the whole Board.
Appeal Hearing Public Comments:
Public notice of this appeal hearing was mailed and provided to all parties who received notice of the Director’s decision on April 1, 2022. The notice ran in the Napa Valley Register on Friday April 1, 2022.
GROUNDS OF APPEAL
On March 8, 2022, the Applicant submitted a revised proposal, which responds to concerns raised in the appeal by returning to, and substantiating, the original content of Mitigation Measure 6-1. This proposal was further revised in a letter on March 29, 2022. These letters are contained in Attachments 2 and 3.
On March 29, 2022, the Appellant submitted a substantive response to the revised proposal setting forth arguments against the approval of the revised proposal, which Staff considers new ground of appeal. This response is included as Attachment 4.
For convenience, the specific grounds of appeal and Staff’s response to these grounds are set forth in Attachment 1.
BOARD CONSIDERATIONS AND STAFF RECOMMENDATION
The following options are provided for the Board’s consideration regarding possible action on the appeal:
• Deny the appeal in its entirety and approve the revised Mitigation Measure 6-1, as contained in Attachment 5.
• Uphold one or more grounds of the appeal, reverse the Director’s decision, and reject the revised proposal, describing the basis for such denial.
• Remand the matter to the Director with direction for further consideration.
In Staff’s opinion, the revised proposal to substantiate the mitigation set forth in the certified EIR, including the detailed mapping described in the staff report and responses, is supported by substantial evidence and, notwithstanding the arguments in the appeal, is sufficient to reduce the greenhouse gas emissions from the Walt Ranch project to a less-than-significant level. Therefore, Staff recommends that the Board deny the appeal and approve the revised Mitigation Measure 6-1, as reflected in Attachment 5.