Mountainlands Conservancy, LLC v. Cal. Coastal Com. ( 2020 )

Filed 4/1/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MOUNTAINLANDS B287079
CONSERVANCY, LLC, et al.,
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BS149063)
v.
CALIFORNIA COASTAL
COMMISSION,
Defendant and Respondent;
______________________________
COUNTY OF LOS ANGELES,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
Bradley & Gmelich, Barry A. Bradley, Lena J. Marderosian,
and Dawn Cushman for Plaintiffs and Appellants.
Damien M. Schiff for Pacific Legal Foundation as Amicus
Curiae on behalf of Plaintiffs and Appellants.
Xavier Becerra, Attorney General, Daniel A. Olivas, Senior
Assistant Attorney General, Christina Bull Arndt, Supervising
Deputy Attorney General, and David Edsall Jr., Deputy Attorney
General, for Defendant and Respondent.
No appearance for Real Party in Interest and Respondent.
____________________________________
SUMMARY
This is an appeal from a decision of the California Coastal
Commission certifying a local coastal program for the Santa
Monica Mountains that prohibits any new vineyards in the Santa
Monica Mountains coastal zone.
Three limited liability companies that own land subject to
the local coastal program sought a writ of mandate to vacate the
certification, challenging the commission’s decision on both
procedural and substantive grounds. The trial court denied the
writ petition.
We affirm the judgment.
LEGAL AND FACTUAL BACKGROUND
1. The Legal Background: General Principles
The California Coastal Act (the Coastal Act) was passed in
1976. (Pub. Resources Code, § 30000 et seq.)1 It is
“a comprehensive scheme to govern land use planning for the
entire coastal zone of California.” (Yost v. Thomas (1984) 36 Cal. 3d
561, 565 (Yost).) The Coastal Act requires “all local governments
lying in whole or in part within the coastal zone . . . to prepare and
submit to the Commission a local coastal plan.” (Yost, at p. 566,
citing § 30500, subd. (a).)
1 Unless otherwise specified, further statutory references are
to the Public Resources Code.
2
A local coastal program (or LCP) is defined as “a local
government’s (a) land use plans, (b) zoning ordinances, (c) zoning
district maps, and (d) within sensitive coastal resources areas,
other implementing actions . . . .” (§ 30108.6.) “The precise
content of each local coastal program shall be determined by the
local government . . . in full consultation with the commission and
with full public participation.” (§ 30500, subd. (c).)
The local coastal program may be submitted to the
commission all at once or in two phases. The two phases are, first,
the land use plan (or LUP), and second, the zoning ordinances,
zoning maps and any other implementing actions (§ 30511).
(The parties refer to these zoning ordinances and other
implementing actions as a “local implementation plan” or LIP.)
The commission will certify a land use plan, or any
amendments to it, if the land use plan “meets the requirements of,
and is in conformity with, the policies of Chapter 3 (commencing
with Section 30200).” (§ 30512, subd. (c); Yost, supra, 36 Cal.3d at
p. 566.) These are referred to as “chapter 3 policies.” They include
policies on land resources (§§ 30240-30244), a category that
includes environmentally sensitive habitat areas (§ 30240) and
agricultural lands. The latter policies include a section on prime
agricultural land (§ 30241) and a section on all other lands suitable
for agricultural use (§ 30242).2 Conflicts between one or more
policies of the Coastal Act are to be resolved “in a manner which on
balance is the most protective of significant coastal resources.”
(§ 30007.5.)
2 Other chapter 3 policies include policies on public access,
recreation, marine environment, development, and industrial
development. (§§ 30210-30236, 30250-30265.5.)
3
The commission’s review of a local government’s land use
plan is expressly limited to its determination that the plan “does,
or does not, conform with” the requirements of chapter 3.
(§ 30512.2, subd. (a).) As for the second-phase implementing
actions (the local implementation plan), “[t]he Commission may
only reject zoning ordinances on the grounds that they do not
conform, or are inadequate to carry out the provisions of the
certified land use plan.” (Yost, supra, 36 Cal.3d at p. 566, citing
§ 30513.)
“A certified local coastal program and all local implementing
ordinances, regulations, and other actions may be amended by a
local government, but no such amendment shall take effect until it
has been certified by the commission.” (§ 30514, subd. (a).)
2. The Factual and Procedural Background
Los Angeles County (the county) has divided its coastal zone
into three areas. One of these is the Santa Monica Mountains.
In 1986, the commission certified the land use plan portion of
a proposed local coastal program for the Santa Monica Mountains.
(This is referred to as the 1986 Malibu land use plan.) No zoning
ordinances or other implementing actions were adopted or
certified, so the county did not have a complete certified local
coastal program for the Santa Monica Mountains. (This meant
that the commission retained jurisdiction over land use in the
Santa Monica Mountains, and applicants for any development
project in that coastal zone had to obtain permits from the
commission rather than from the county.)
In 2007, the county’s regional planning commission
recommended approval of a proposed local coastal program that
included an “updated land use plan . . . to replace the Malibu LUP”
as well as a proposed local implementation plan. The Board of
4
Supervisors (the board) indicated its intent to approve the
proposed program with modifications, but the commission never
considered or certified it.
In 2012, the commission began to encourage certification of
uncertified areas and to work with local agencies to update
existing coastal plans. After negotiations between commission
staff and the county, clarifications and amendments were made to
the 2007 proposed local coastal program.
a. The county’s proposed local coastal program
On January 2, 2014, the county gave notice the board would
consider a proposed local coastal program for the Santa Monica
Mountains at a public hearing on February 11, 2014.
The county’s proposed program included a land use plan
replacing the 1986 Malibu land use plan, and an implementation
plan with amendments to the zoning code and a zone change
ordinance. The county summarized the major differences between
the 1986 Malibu land use plan and “the current amendment to the
land use plan,” and stated that “this amendment will replace the
1986 LUP in its entirety.”
Among the significant differences was that “[a]gricultural
uses are proposed for restriction in the proposed [local coastal
program].” For reasons the county enumerated, “the County has
elected to respect the vineyards and crop areas already in
existence, and to prohibit further establishment of such uses in the
future.” Another significant difference involved critical habitat; in
the 1986 plan, “there was a far smaller designation of critical
habitat than is now presented as H1.” (“H1” is the designation for
“[t]he most sensitive and geographically constrained habitats.”)
5
The board held a public hearing, and on February 18, 2014,
approved a resolution stating its intent to approve the proposed
program and submit it to the commission.
b. The commission staff’s March 27 report
On March 27, 2014, the commission staff issued a report on
the county’s proposed land use plan amendment. The staff
recommended denial as submitted, but recommended approval
subject to 60 suggested modifications. Most were clarifications and
refinements, but several modifications were suggested as
necessary to ensure the land use plan was in conformity with
chapter 3 policies.
As relevant here, in modification No. 27, the staff clarified
the provision prohibiting new crop, orchard, vineyard, and other
crop-based nonlivestock agricultural uses, adding that existing
agricultural uses “may not be expanded.” The staff also suggested
a new policy (modification No. 28) stating that “[e]xisting, legally-
established, economically-viable crop-based agricultural uses on
lands suitable for agricultural use shall not be converted to non-
agricultural use” unless certain requirements were met. (This
modification tracked a policy stated in section 30242 of the Coastal
Act, described post.) The staff also suggested (modification No. 29)
deleting a provision that limited “existing commercial or ‘hobby’
agricultural uses such as vineyards, orchards, and field or row
crops,” but again specified that existing agricultural uses may not
be expanded.
The commission staff’s report reviewed sections 30241 and
30242 of the Coastal Act (the policies on agricultural land).
Section 30241 specifies that the “maximum amount of prime
agricultural land shall be maintained in agricultural production to
assure the protection of the areas’ agricultural economy, and
6
conflicts shall be minimized between agricultural and urban land
uses” through several stated policies. Section 30242 governs other
agricultural land, and states that lands “suitable for agricultural
use shall not be converted to nonagricultural uses unless
(1) continued or renewed agricultural use is not feasible, or
(2) such conversion would preserve prime agricultural land or
concentrate development consistent with [other specified policies].”
The staff report concluded section 30241’s mandate to
maintain the maximum amount of prime agricultural land in
agricultural production did not apply. This was because the
“limited lands within the plan area that contain prime agricultural
soils are either State or Federal public parkland or are developed
with existing uses and not in agricultural production.”3
Further, “other lands in existing agricultural use and
suitable for agricultural use are very limited in area. [A] large
percentage of the plan area consist[s] of very steep slopes and poor
soils, which are unsuitable for agriculture. . . . The steep slopes,
poor soils, limited water availability, and other constraints within
the Santa Monica Mountains make . . . the cultivation of vineyards
and other crops either infeasible, or extremely difficult and costly.”
In addition, “[a]ctivities such as vineyards or other intensive crop
cultivation can have significant adverse impacts on the biological
3 The staff report explains in detail the meaning of “prime
agricultural land” under the Coastal Act. The definition (§ 30113)
includes four categories described in Government Code
section 51201, one of which is “[l]and planted with fruit- or nut-
bearing trees, vines, bushes, or crops which have a nonbearing
period of less than five years” and which will normally return “not
less than two hundred dollars ($200) per acre” on an annual basis.
(Gov. Code, § 51201, subd. (c)(4).)
7
integrity of the surrounding mountain environment and receiving
waterbodies.” The staff described a “confluence of factors—
including steep slopes, poor soils, scenic considerations, sensitive
watersheds, abundant [environmentally sensitive habitat areas],
and lot size limitations—[t]hat render the vast majority of the land
in the Santa Monica Mountains unsuitable for agricultural use.”
Consequently, “the prohibition on the conversion of lands suitable
for agricultural use to non-agricultural use” in section 30242 “does
not apply in most cases in this unique plan area.”
The report stated that the only areas in existing agricultural
production were “very limited vineyard areas, encompassing a very
small percentage of the plan area.” The “very limited areas where
agriculture is possible” were “the one or two areas that are already
in active agricultural production,” and these were to be protected
by modification No. 28. These two vineyard areas encompassed
approximately 50 acres. “Otherwise, the remaining vineyards in
the plan area are a very limited number of very small, ‘hobby’
vineyard plots (less than 2 acres) that are accessory to single-
family residences,” and “these areas are very limited and often not
commercially viable.”
The staff report also stated that the “protection and
preservation of the environmentally sensitive habitats in the Santa
Monica Mountains is the most significant issue in this LUP.” The
report described the plan’s “biological resource protection
approach” and the three categories of habitat designated in the
plan (H1, H2 and H3). “H1 and H2 habitats are collectively
described as Sensitive Environmental Resource Areas (SERA’s).”
As noted earlier, the designation “H1” is for the “most sensitive
and geographically constrained habitats.” “H2 habitat consists of
areas of high biological significance, rarity, and sensitivity that are
8
important for the ecological vitality and diversity of the Santa
Monica Mountains Mediterranean Ecosystem.” “H3 habitats are
developed or legally disturbed areas that may retain some residual
habitat values, but are not considered to be ESHA
[environmentally sensitive habitat areas].”4 More than 87 percent
of the 50,000 acres in the land use plan is designated either H1 or
H2.
c. Public comments
On April 7, 2014, plaintiffs—Mountainlands Conservancy,
LLC; Third District Parklands, LLC; and Third District
Meadowlands, LLC – submitted their comments. They contended
the proposed land use plan, even with the staff’s proposed
modifications, “raises substantial issues as to conformity with”
chapter 3 policies, in particular the “policy of preserving land in
the Coastal Zone for agriculture.” Plaintiffs asked the commission
either to decline certification or to “set an additional hearing on all
matters that raise such ‘substantial issues.’ ” (Section 30512
requires an additional hearing under specified circumstances, as
we discuss post.)
Specifically, plaintiffs first challenged the staff’s finding that
the only prime agricultural soils were located in public parkland
areas or developed with existing uses. Plaintiffs said they were
“aware of at least one property within the Coastal Zone containing
a deed restriction indicating the presence of ‘prime agricultural
4 The Coastal Act defines “ ‘[e]nvironmentally sensitive area’ ”
as “any area in which plant or animal life or their habitats are
either rare or especially valuable because of their special nature or
role in an ecosystem and which could be easily disturbed or
degraded by human activities and developments.” (§ 30107.5.)
9
land’ on that property.” (Plaintiffs did not identify or document
this property.)
Plaintiffs also challenged the staff’s conclusion that the vast
majority of land in the Santa Monica Mountains was unsuitable
for agricultural use. Plaintiffs contended these findings were
“purely speculative”; and the report contained “no information on
the amount of land . . . that is currently under cultivation,” and no
persuasive explanation of why there is no further land suitable for
agriculture.
Plaintiffs attached an expert report from Daryl Koutnik on
agricultural use opportunities in the Santa Monica Mountains.
Mr. Koutnik, who stated he was a principal in “Biological and
Environmental Compliance,” provided a list of soil types in the
Santa Monica Mountains suitable for agriculture. He concluded
the staff report’s dismissal of agricultural uses “based solely on
soils being too rocky and steeply sloping . . . does not correspond to
current successful agricultural operations in the area.” With
modern practices, various crops “may be successful on a variety of
soil types and slope steepness,” and “[f]arming and engineering
techniques are available to address water quality and erosional
concerns.” The limitation of agricultural uses to only those
designated by the Department of Conservation based on soil types
and recent or current operation “while prohibiting such use for
properties that have been historical[ly] used for such practices is a
substantial change from the current zoning designations that allow
these agricultural activities.”
Plaintiffs submitted a soil survey of the Santa Monica
Mountains National Recreation Area (as well as other soil surveys,
soil maps and related materials). The Santa Monica Mountains
survey stated that “[a]bout 3,470 acres, or less than 2 percent of
10
the survey area, would meet the requirements for prime farmland
if an adequate and dependable supply of irrigation water were
available.”
Plaintiffs also submitted an opinion from geologist Scott
Hogrefe, to refute the staff’s assertion that the Santa Monica
Mountains, because of steep topography, poor soils, limited water
availability, and constrained access, have never been an area
particular conducive for agriculture. Mr. Hogrefe, who has been a
consulting geologist on many properties in the area during the past
30 years, opined that the “vast majority of sites across the Santa
Monica Mountains do contain good to excellent soil conditions for
agricultural purposes.”
d. The commission staff’s April 9 addendum
On April 9, 2014, the commission staff issued an addendum
to its March 27 report, one day in advance of the April 10 public
hearing. Among other matters, the April 9 addendum responded
to concerns raised by the public, including by plaintiffs, about the
proposed prohibition of all new crop-based agriculture. The
addendum stated the commission staff had conferred with county
staff and agreed on some proposed changes, including its
recommendations on modifications No. 27 and 29, “to temper the
wholesale prohibition on new crop-based agriculture that appears
in the County’s original proposal.”
The trial court aptly summarized the recommended changes.
“In light of the comments received,” commission staff
recommended a modification “to allow new agricultural uses that
met the following criteria: (1) the new agricultural uses are
limited to specified areas on natural slopes of 3:1 or less steep, or
areas currently in legal agricultural use; (2) new vineyards are
prohibited; and (3) organic or biodynamic farming practices are
11
followed.” The commission staff “removed the prohibition on
expanding agricultural uses, and recommended that existing legal
agricultural uses may be expanded consistent with” the three
criteria just mentioned. The commission staff “recognized that the
continuation of agricultural uses” is encouraged under the Coastal
Act if those uses “can be accomplished consistent with other
Chapter 3 policies.”
The commission staff’s new findings “justified the allowance
for new agriculture because ‘small-scale crop-based agricultural
operations (with the exceptions of vineyards) can avoid adverse
impact to biological resources and water quality,’ if ‘organic and
biodynamic farming practices are followed.’ ” The staff “explained
that ‘organic and biodynamic farming practices are required to
prevent the use of pesticides, herbicides, and fertilizers, which can
adversely impact the biological productivity of coastal waters and
human health.’ ” New vineyards “would remain prohibited due to
a number of identified adverse impacts attributed specifically to
those operations, including increased erosion from removal of all
vegetation, use of pesticides, large amounts of water required,
their invasive nature, and their adverse impact to scenic views.”
e. Plaintiffs’ response
Plaintiffs responded to the April 9 addendum on April 10,
the date of the public hearing.
First, plaintiffs contended that allowing affected parties less
than 24 hours to respond to the proposed revisions would violate
section 30503. (Section 30503 requires the public to be provided
with “maximum opportunities to participate” during the
preparation, approval, certification, and amendment of any local
coastal program.)
12
Second, plaintiffs argued that even as revised, the proposed
land use plan “still raises substantial issues as to its compliance”
with chapter 3 policies, so that the commission “must set an
additional hearing to discuss those issues.” Plaintiffs cited
three “substantial issues.”
Plaintiffs said the revised proposal “would still exclude new
agriculture from the vast majority of land” in the Santa Monica
Mountains coastal zone. This was because new agriculture was
allowed, with two limited exceptions, “only in certain H3 habitat
areas,” and “the bulk of the area in the Coastal Zone is designated
H1 or H2.” Plaintiffs cited Dr. Hogrefe’s report that the vast
majority of land was suitable for agricultural use. Plaintiffs
asserted that “[t]o the extent that land that had potentially been
available for agricultural use would now be unavailable due to its
classification as H1 or H2 habitat, the proposed [land use plan] as
revised by the Staff’s Addendum conflicts with the policy expressed
in Section 30242 of the Coastal Act against conversion of land
suitable for agricultural use to nonagricultural land.”
Plaintiffs also challenged the staff’s justification for the
prohibition of new vineyards, contending the staff’s statements
(reproduced in the next footnote)5 were “newly presented
5 “Vineyards require the removal of all native vegetation and
the soils must be scarified which results in increased erosion and
sedimentation of streams which adversely impact riparian areas
and water quality. In addition, vineyards typically require the
application of pesticides that can also adversely impact coast
streams and riparian habitat. Furthermore, vineyards require
large amounts of water that can require agricultural wells that can
draw down ground water and adversely impact streams and seeps
and their associated habitats. Moreover, County staff asserts that
grapevines can be an invasive type of vegetation in riparian areas.
13
. . .without substantiation and without the benefit of public
comment.” (Plaintiffs similarly challenged the limitation of
additional agriculture solely to organic and biodynamic farming
methods, but they do not pursue this point on appeal.)
In addition, plaintiffs submitted two documents for the
record. The one relevant to this appeal is a June 2012 study
prepared by researchers at the UCLA Institute of the Environment
& Sustainability, entitled “Potential Extent of Vineyard
Development in the Santa Monica Mountain National Recreation
Area [SMMNRA]” (the UCLA study). The UCLA study sought to
identify “areas where vineyard development could potentially occur
given current zoning and land use regulations,” and stated that, of
the 48,394 acres in the study site, 62.5 percent had favorable
physical conditions and appropriate zoning for development. In
addition to potential vineyard development, the report identified
existing vineyards in the area (38, some with slopes greater than
33 percent). These included “large commercial vineyards, as well
as small hobby vineyards.” (We will describe the UCLA study
further in connection with our legal discussion of plaintiffs’
substantial evidence claim.)
f. The April 10 hearing and subsequent
proceedings
After presentations by county and commission staff, the
commission heard from many members of the public. Counsel for
plaintiffs argued the commission had a duty to determine whether
there were any substantial issues concerning the compliance of the
Finally, given that grapevines must be supported by trellises in a
linear, unnatural pattern, vineyards can adversely impact scenic
views.”
14
land use plan with chapter 3 policies, and that there were such
issues, “especially with compliance with section 30242.”
Counsel also expressed agreement with much of the position
presented by a representative of the California Coalition of Coastal
Farmers (Mr. Don Schmitz), who spoke at some length about prime
agricultural land in the Santa Monica Mountains and against the
restriction on vineyards. Mr. Schmitz reported that the entire
Santa Monica Mountains area had been approved by federal
authorities as a fine wine growing region (designated an AVA or
American Viticultural Area).
The commission voted unanimously to approve the land use
plan with the modifications suggested by the commission staff.
Three months later, after a staff report, objections from
plaintiffs, and a public hearing, the commission approved the
county’s proposed local implementation plan, with modifications.
On August 26, 2014, the board issued a resolution adopting the
local coastal program, consisting of the land use plan and the local
implementation plan, both as modified by the commission. Final
commission certification took place at its meeting on October 10,
2014.
g. The writ petition proceedings
In June 2014, after the commission’s approval of the land
use plan, plaintiffs filed a petition for writ of mandate. The
amended petition filed December 9, 2014, is the operative
pleading. Plaintiffs alleged the commission did not proceed in the
manner required by law, because it did not make a “substantial
issues” determination under section 30512. Even with the
modifications in the April 9 addendum, they alleged, the proposed
land use plan raised substantial issues of conformity with
sections 30241 and 30242. They claimed the plan “converted lands
15
suitable for agricultural use to non-agricultural use in violation of
Section 30242.” They asserted that all lands of greater than
3:1 slope were converted to nonagricultural use, as were “all lands
in the 87.9% of the Coastal Zone designated as H1 or H2,” with
limited exceptions. Plaintiffs alleged the commission was required
to conduct a further hearing on those issues.
Plaintiffs also alleged that, by considering the addendum
made available to the public the day before the hearing, the
commission denied them a meaningful opportunity to address the
findings that “new vineyards deserved to be separated from other
forms of agriculture for categorical prohibition.”
Plaintiffs further alleged the commission’s findings were not
supported by substantial evidence, including insufficient evidence
to justify a categorical prohibition of vineyards as opposed to other
types of agriculture.
The trial court denied plaintiffs’ petition, issuing
two comprehensive rulings.
In its first ruling, the court rejected plaintiffs’ claim that the
April 9 addendum was required to be distributed at least seven
days before the public hearing, and ruled that even if there were
such a requirement, plaintiffs could not show they were prejudiced
by the addendum’s timing. The court further concluded the
commission was not required under section 30512 to hold a
separate hearing on the matters claimed by plaintiffs to raise
“substantial issues.” The proposed land use plan was an
amendment of the 1986 Malibu plan, so that the amendment
procedure under section 30514 applied, not section 30512. In
addition, the court found the commission correctly concluded that
section 30241—requiring that the maximum amount of prime
agricultural land be maintained in production—did not apply.
16
And, the court found substantial evidence supported the
commission’s findings “that a large percentage of the plan area is
not suitable for agricultural use and not subject to section 30242’s
restriction on the conversion of lands suitable for agricultural use.”
The trial court continued the hearing and ordered further
briefing, limited to the question whether the total ban on
vineyards was supported by substantial evidence. Along with their
supplemental brief, plaintiffs filed a motion to augment the record
with documents relating to the federal designation of the Santa
Monica Mountains coastal region as an American Viticultural
Area. At the continued hearing, the court denied the motion as
unauthorized and untimely.
In its second ruling, the court described and analyzed the
evidence in great detail, concluding there was substantial evidence
that vineyards are harmful to the Santa Monica Mountains ecology
“because they require clearing and scarification, increase erosion
and sedimentation, require pesticide use, and constitute an
invasive monoculture.” Further, “[o]f these harms, many are
inherent to the nature of viticulture, and there is no evidence that
they could be mitigated.”
Judgment was entered on November 20, 2017, and this
appeal followed.
DISCUSSION
With minor variations, plaintiffs make the same claims they
made to the trial court: that section 30512 applied and mandated
a further hearing; that the commission failed to enforce the
agricultural protection policies of the Coastal Act; that the hearing
was unfair and denied due process because the April 9 addendum
was issued the day before the hearing; and that no substantial
evidence supported the decision “to isolate vineyards for
prohibition.” None of these contentions has merit.
17
1. The Standard of Review
Under Code of Civil Procedure section 1094.5, the trial court
reviews the commission’s decision to determine whether the
commission “proceeded without, or in excess of, jurisdiction;
whether there was a fair trial; and whether there was any
prejudicial abuse of discretion. Abuse of discretion is established if
the [commission] 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.” (Id., subd. (b); Ross v.
California Coastal Com. (2011) 199 Cal. App. 4th 900, 921 (Ross).)
“The [commission’s] findings and actions are presumed to be
supported by substantial evidence,” and plaintiffs have the burden
of demonstrating otherwise. (Ross, at p. 921.)
The trial court considers all relevant evidence, but does not
substitute its own findings and inferences for those of the
commission. (Ross, supra, 199 Cal.App.4th at pp. 921-922.) The
trial court may reverse the commission’s decision “ ‘only if, based
on the evidence before it, a reasonable person could not have
reached the conclusion reached by [the commission].’ ” (Id. at
p. 922.) “Our scope of review is identical to that of the trial court.
[Citations.] We, like the trial court, examine all relevant materials
in the entire administrative record to determine whether the
[commission’s] decision is supported by substantial evidence.”
(Ibid.)
When interpreting a statute, our review is de novo, but the
commission’s interpretation of its governing statutes “is entitled to
great weight.” (Ross, supra, 199 Cal.App.4th at p. 922.)
2. Section 30512 versus Section 30514
Plaintiffs contend the commission was required to proceed
under section 30512, rather than under section 30514 (governing
18
amendments). As already noted, section 30512 requires the
commission to determine, after a public hearing, whether the land
use plan of a proposed local coastal program “raises no substantial
issue as to conformity with” chapter 3 policies. If the plan does
raise a substantial issue, the commission must identify the issues
and hold at least one public hearing on the matters identified.6
The commission, on the other hand, says that it properly
proceeded under section 30514, which has no such requirement.
Under section 30514, “[a]ny proposed amendments to a certified
local coastal program” must be submitted and processed under
sections 30512 and 30513,7 “except that the commission shall make
no determination as to whether a proposed amendment raises a
6 Specifically, section 30512 requires the commission, after
submission of the land use plan and after public hearing, to “either
certify or refuse certification, in whole or in part,” under specified
procedures. (Id., subd. (a).) The commission must determine, after
the public hearing, “whether the land use plan, or a portion thereof
applicable to an identifiable geographic area, raises no substantial
issue as to conformity with the policies of Chapter 3.” (Id.,
subd. (a)(1).) If the commission determines no substantial issue is
raised, the land use plan “shall be deemed certified as submitted.”
(Ibid.) If the commission determines that one or more portions of a
land use plan raise no substantial issue, the remainder of the land
use plan “shall be deemed to raise one or more substantial issues,”
and the commission must identify each substantial issue for each
geographic area. (§ 30512, subd. (a)(2).) The commission must
hold at least one public hearing “on the matter or matters that
have been identified as substantial issues.” (Id., subd. (a)(3).)
7 Section 30513 describes the procedures that govern
submission and approval of zoning ordinances and other
implementing actions (the local implementation plan).
19
substantial issue as to conformity” with chapter 3 policies “as
would otherwise be required by Section 30512.” (§ 30514,
subd. (b), italics added.) There is no limitation on the number of
amendments included in a submittal. (Ibid.) And the scope of
section 30514 is broad: “A certified local coastal program and all
local implementing ordinances, regulations, and other actions may
be amended . . . .” (§ 30514, subd. (a).)
The record shows the county identified its February 14, 2014
submission to the commission with a caption that begins with the
words, “formal submittal of amendment to the 1986 land use plan.”
The submission included a “summary of the major differences
between 1986 Malibu LCP, LUP and the current submittal.”
Similarly, the commission staff’s March 27 report describing the
county’s proposed local coastal program stated that, “[f]or the Land
Use Plan portion, the County is requesting an amendment to its
existing certified Land Use Plan, consisting of a comprehensive
update to replace the existing Land Use Plan with a new proposed
Land Use Plan.”
In the trial court, plaintiffs argued that section 30514
applies only when the local government is seeking “a minor change
to its already-certified LCP.” They relied on subdivision (e) of
section 30514, which states that “ ‘amendment of a certified local
coastal program’ includes, but is not limited to, any action . . . that
authorizes the use of a parcel of land other than a use that is
designated in the certified local coastal program as a permitted use
of the parcel.” The trial court disagreed, pointing out that
plaintiffs’ argument was inconsistent with the plain language of
section 30514, which specifies that an amendment “is not limited
to” parcel use changes. (§ 30514, subd. (e).)
20
On appeal, plaintiffs take a different tack, telling us that
section 30514 only applies to amendment of “[a] certified local
coastal program” (§ 30514, subd. (a)), and in this case there was no
certified local coastal program (only the 1986 certified land use
plan).8 We are not persuaded. A local coastal program does
consist, as plaintiff observes, of both a land use plan and an
implementation plan. But the only basis for rejection of an
implementation plan is that it does not conform to or is inadequate
to carry out a certified land use plan. (§ 30513, subd. (b).) The
substance and prerequisite of a local coastal program is the
certified land use plan; there cannot be any implementation plan
without the land use plan. Plaintiffs’ limited view of the scope of
section 30514 as permitting amendment of a local coastal program
but not a land use plan is not supported by a sensible construction
of its words nor by any legal authority. To the extent legal
authority exists, it is to the contrary. (Cf. Yost, supra, 36 Cal.3d at
p. 573, fn. 9 [“A local government can amend a certified LCP [local
coastal program] or LUP [land use plan] (§ 30514).”].)
Plaintiffs insist that when a land use plan entirely replaces
an existing land use plan, it is not an amendment. The cases
plaintiffs cite do not support that proposition. For example,
plaintiffs tell us that the repeal and replacement of a statute
“supersedes all prior statutes,” rendering them “annulled, repealed
8 The trial court observed that plaintiffs “do not argue that
section 30514(b) applies only to amendments to a certified LCP,
and the County only had a certified LUP at the time of the
April 10, 2014 Commission hearing. In any event, the
Commission’s interpretation of section 30514(b)’s procedure as
applying to an amendment to a certified LUP is entitled to
deference.”
21
and void.” For this rule, plaintiffs cite Wood v. Roach (1932)
125 Cal. App. 631, 638. The aptness of plaintiffs’ analogy is
questionable, but in any event Wood v. Roach repeatedly refers to
the enactments at issue, which established “a new and complete
scheme,” as the “amendments.” (Id. at pp. 636-638.)
In short, we see no basis in legal authority or sound
reasoning for concluding that an amendment to a land use plan
must do something less extensive than to replace the plan entirely.
This is a circumstance where it is entirely appropriate to defer to
the commission’s interpretation of its own procedures. (See Hines
v. California Coastal Com. (2010) 186 Cal. App. 4th 830, 849 [“ ‘it is
well established that great weight must be given to the
administrative construction of those charged with the enforcement
and interpretation of a statute. [Citations.] We will not depart
from the Commission’s interpretation unless it is clearly
erroneous’ ”].) We note as well that the commission has used the
amendment process in analogous circumstances in the past.
(Cf. Headlands Reserve, LLC v. Center for Natural Lands
Management (C.D.Cal. 2007) 523 F. Supp. 2d 1113, 1120-1121
[referring to the commission’s certification of an amendment to a
local coastal program where “[t]he new amendment replaced the
pre-existing 1986 [local coastal program] and covered [a]
previously uncertified . . . area”].)
In sum, the commission proceeded properly under
section 30514, and therefore was not required to make the
“substantial issue” determination otherwise required by
section 30512. (§ 30514, subd. (b).)
22
3. The “Blanket Determination” Issue: Agricultural
Policies in Sections 30241 and 30242
Plaintiffs next argue the commission failed to proceed in the
manner required by law because “it made a blanket determination
that the Santa Monica Mountains are not suitable for agriculture.”
Plaintiffs say that sections 30241 and 30242 of the Coastal Act
contemplate a determination of the feasibility of agriculture “in
relation to a specific parcel of property,” on “a case-by-case basis.”
We disagree. Plaintiffs misconstrue sections 30241 and 30242,
mischaracterize what the commission did, and apparently
misunderstand the point of a land use plan.
First, plaintiffs cite no authority for their “case-by-case
basis” claim. As the commission points out, the whole point of a
local coastal program is to allow local governments to do area-wide
planning in conformity with the policies of the Coastal Act.
Second, sections 30241 and 30242 do not “contemplate” a
case-by-case or parcel-by-parcel determination of the feasibility of
agriculture. The commission properly considered these provisions,
finding section 30241 does not apply, and appropriately protecting
other lands suitable for agriculture as required by section 30242,
as we now explain.
a. Section 30241
As we have said, section 30241 specifies that the “maximum
amount of prime agricultural land shall be maintained in
agricultural production.”9 The commission found this provision did
not apply, because prime agricultural lands in the plan area were
either public parkland, or were developed with existing uses and
9 Section 30241 also specifies six ways in which conflicts
between agricultural and urban land uses must be minimized.
(§ 30241, subds. (a)-(f).) Such conflicts are not at issue here.
23
not in agricultural production. (The areas containing prime soils
“represent less than 2 percent of the entire plan area,” and the
only areas in agricultural production “are very limited vineyard
areas.”) Plaintiffs have identified no basis for disagreement with
the commission’s conclusion (and completely misstate the basis for
finding section 30241 inapplicable). As the trial court pointed out,
the commission’s finding that section 30241 did not apply was
“supported by all the evidence in the record, not just substantial
evidence.”
b. Section 30242
As we also said earlier, section 30242 states that “[a]ll other
lands suitable for agricultural use shall not be converted to
nonagricultural uses” unless “continued or renewed agricultural
use is not feasible.” (§ 30242.)
Plaintiffs contend it was “arbitrary and capricious” to find,
as stated in the staff report, that a “confluence of factors—
including steep slopes, poor soils, scenic considerations, sensitive
watersheds, abundant [environmentally sensitive habitat areas],
and lot size limitations—render the vast majority of the land in the
Santa Monica Mountains unsuitable for agricultural use.”
Plaintiffs point to Mr. Hogrefe’s testimony that the “vast majority
of sites” contain good to excellent soil conditions for agricultural
purposes, and that topographic conditions allow sustainable
agricultural uses.
We see nothing arbitrary or capricious about the
commission’s conclusion.
First, there was ample evidence in the staff report that the
plan area is generally unsuitable for agriculture. In addition to
steep slopes and poor soils, water availability is limited, and the
area contains significant biological and scenic resources.
24
“Activities such as vineyards or other intensive crop cultivation
can have significant adverse impacts on the biological integrity of
the surrounding mountain environment and receiving
waterbodies.”
Second, as the trial court pointed out, “[t]he mere possibility
of successful agricultural use,” as presented in the comments of
plaintiffs’ experts, is not sufficient. Plaintiffs did not show that
land in the plan area is actually suitable or feasible for
agricultural uses. The Coastal Act defines “feasible” as “capable of
being accomplished in a successful manner within a reasonable
period of time, taking into account economic, environmental, social,
and technological factors.” (§ 30108, italics added.)
The staff report found that, in combination with the
relatively steep topography, “vegetation removal, increased soil
exposure, and chemical/fertilizer and irrigation requirements from
crop-based agriculture can result in significant impacts to
biological resources and water quality from increased erosion,
sedimentation of streams, pollution, slope instability, and loss of
habitat.” And plaintiffs completely ignore the requirement for
protection of environmentally sensitive habitat areas. (Recall that
more than 87 percent of the 50,000 acres in the land use plan is
designated either H1 or H2 (sensitive environmental resource
areas), making those areas unsuitable for agriculture.) An
assessment of “feasibility” requires consideration of these factors.
Further, the Legislature recognized there would be conflicts
between the policies of the Coastal Act, and declared that “such
conflicts be resolved in a manner which on balance is the most
protective of significant coastal resources.” (§ 30007.5.)
Third, section 30242 protects against the conversion of lands
to nonagricultural uses. This necessarily means, as the words of
25
the statute demonstrate, that the lands being protected either are
now in agricultural use, or have been in agricultural use in the
past. The prohibition on conversion to nonagricultural uses does
not apply where “continued or renewed agricultural use is not
feasible.” (§ 30242, italics added.) As the trial court put it, “[t]his
plain language means that suitable lands that are feasible for
‘continued or renewed agricultural use’ cannot be used for another
purpose. It does not mean that all land suitable for agriculture
must be used for agriculture.”
Thus the trial court correctly gave no credence to testimony
that the Santa Monica Mountains area has been zoned for
agriculture “[f]or nearly 100 years.” The pertinent point was that
“[t]here simply is no evidence that the [local coastal program]
converts to a non-agricultural use any land that actually has been
used for agricultur[e] anytime within the past 100 years.” The
local coastal program approved by the commission fully protects
areas currently in agricultural production, as dictated by section
30242.
There is no doubt that the preservation of agricultural land
uses is an important public policy in California. (§§ 10201,
subd. (c), 31050, 31051.) But so is the preservation of coastal
resources, including environmentally sensitive habitat areas.
(§ 30240, subd. (a) [“Environmentally sensitive habitat areas shall
be protected against any significant disruption of habitat values,
and only uses dependent on those resources shall be allowed
within those areas.”].) We find no error in the commission’s
construction and application of the agricultural protections
embodied in sections 30241 and 30242.
26
4. The Fair Trial Issue
Our inquiry extends to “whether there was a fair trial.”
(Code Civ. Proc., § 1094.5, subd. (b).) “[T]he ‘fair trial’ requirement
is equivalent to a prescription that there be a fair administrative
hearing.” (Pomona College v. Superior Court (1996)
45 Cal. App. 4th 1716, 1730.)
Plaintiffs contend the April 10 hearing was unfair and
denied them due process because the commission “gave less than
24-hours’ notice of a new [land use plan] that would completely
ban vineyards.” Plaintiffs are referring to the staff’s April 9
addendum, which responded to the public comments on the staff’s
March 27 report. The staff responded by proposing modifications
to the land use plan that would allow new agriculture (but not
vineyards), subject to slope and “organic or biodynamic farming”
requirements.
To be clear, the April 9 addendum was not a “new” land use
plan, nor did it propose a new treatment of vineyards. The
addendum was issued in response to public comments, including
those of plaintiffs, and it addressed their arguments opposing the
agriculture ban by allowing some new agriculture, subject to
significant restrictions. The addendum was issued the day before
the public hearing, and complied with the pertinent regulations, as
did the March 27 report. That is the way the process is supposed
to work. Specifically:
Several regulations govern commission action on land use
plans. (Cal. Code Regs., tit. 14, §§ 13530-13541.) As pertinent
here, section 13532 of the regulations governs the staff
recommendation. It requires the executive director to prepare the
recommendation, which must set forth specific findings, including
facts, legal conclusions, suggested modifications, and so on. “In
27
order to assure adequate notification,” the regulation specifies the
distribution of “the final staff recommendation” to interested
persons and organizations, “within a reasonable time but in no
event less than 7 calendar days prior to the scheduled public
hearing.” As the trial court pointed out, the March 27 report was
the “final staff recommendation” meeting the criteria in section
13532 of the regulations.
The succeeding section of the regulations (§ 13533) provides
for comments from the public and others on the staff
recommendation. (Cal. Code Regs., tit. 14, § 13533, subd. (a).)
Notably, section 13533, subdivision (b) states: “The staff shall
respond to significant environmental points raised during
evaluation of the [local coastal program]. The response may be
included within the staff report and shall be distributed to the
Commission and the person making the comment. The response
shall be available at the hearing on the [local coastal program] for
all persons in attendance.”
The April 9 addendum was the staff’s response to the
comments received concerning the agricultural ban, taking them
into account and recommending the modified policy described
above. As the trial court found, the staff response and
recommendation “met the requirements of 14 CCR section 13533,
which only requires that it be ‘available at the hearing on the [local
coastal program] for all persons in attendance.’ ”
Plaintiffs assert the commission’s compliance with the
regulations “is of no moment,” citing a case that states an affected
person “might well be able, in the circumstances of a given case,”
to demonstrate a denial of procedural due process notwithstanding
full compliance with all applicable regulations. (Laupheimer v.
State of California (1988) 200 Cal. App. 3d 440, 456, 449 [rejecting
28
claim that a statute and rules (on forest resources) as written
denied procedural due process].) Plaintiffs have made no such
demonstration, nor could they in the circumstances of this case.
(Cf. Ryan v. California Interscholastic Federation-San Diego
Section (2001) 94 Cal. App. 4th 1048, 1072 [due process “ ‘ “varies
according to specific factual contexts” ’ ”; in some cases, “ ‘ “due
process may require only that the administrative agency comply
with the statutory limitations on its authority” ’ ”].)
Instead, all plaintiffs do is insist that the April 9 addendum
“significantly altered the fundamental premise” of the land use
plan and was a “complete change in position without any advance
knowledge” that “flies in the face of due process ‘dignity’ and
fairness.” Plaintiffs’ rhetoric does not comport with the facts or the
law.
Nothing about the proposed modifications—responsive to
public comment on the plan—altered the plan’s original objective:
“Agricultural uses are proposed for restriction in the proposed
[local coastal plan].” The modification merely eased, to a very
limited extent, the categorical restriction on new agriculture.
To call this a “complete change in position” is simply wrong.
Plaintiffs repeatedly protest that they had no time to refute
the “special, distinct prohibition of all new vineyards.” But the
prohibition on new vineyards never changed, and plaintiffs present
no rational explanation of their assertion that the “complete and
singular vineyard ban” would generate a significantly different
response from the original ban on “[n]ew crop, orchard, vineyard,
and other crop-based non-livestock agricultural uses.” Moreover,
plaintiffs in fact responded to the “new” ban on vineyards in the
April 9 addendum, both in writing (by letter and with the
submission of two research reports), and at the hearing.
29
In addition, there is precedent for the issuance of a staff
addendum under similar circumstances. In Ross, the court
rejected a claim that availability of a staff report 13 days before
the hearing was unreasonable, observing it was nearly twice the
period (seven days) required by the regulations. (Ross, supra,
199 Cal.App.4th at p. 939.) As relevant here, an addendum to the
staff report was issued two days before the hearing. The court
held the addendum was “not subject to the notice requirement
under Code of Regulations, title 14, section 13532.” (Ibid.) The
court observed that, “[i]n the addendum, the commission
responded to public comments; recommended modification of the
view corridors in response to public comments; and discussed
additional biological information specific to the subject property’s
proposed subdivision.” (Ibid.) The same is true here: the staff
responded to public comments with a modification of the ban on
new agriculture.
Plaintiffs argue Ross does not apply because the addendum
in that case “made minor changes to the prior commission staff
report” (Ross, supra, 199 Cal.App.4th at p. 915), and did not
involve a proposed new local coastal plan, but rather was directed
primarily at a particular beach-front property. These are
distinctions that make no difference. Ross did not base its analysis
on a minor-versus-major basis. Nor do we consider the continued
ban on vineyards to be a major change.
Further, we note that the commission’s regulations permit a
local government to amend its land use plan “prior to the
commencement of the vote” on the plan as submitted, and the
commission then determines whether or not the amendment “is
material and includes changes that have not been the subject of
public review and comment before the Commission.” (Cal. Code
30
Regs., tit. 14, § 13536.) If the amendments are minor, or if they
are material but have been the subject of adequate public comment
at the public hearing, the commission is to consider the
amendment and act on the plan as amended rather than as
initially submitted. (Ibid.) That is analogous to the circumstances
here. Plaintiffs have not demonstrated either the materiality of
the changes made in the April 9 addendum or that they were not
the subject of adequate public comment at the hearing.
Plaintiffs’ final argument on its due process claim is that the
trial court erred in refusing to augment the record with documents
relating to the federal designation of the Santa Monica Mountains
coastal region as an American Viticultural Area. But plaintiffs did
not even seek augmentation of the record until after the
September 5, 2017 hearing on the merits of their writ petition. At
that hearing, the court resolved all other issues, and the vineyard
ban was briefed and argued. The court requested supplemental
briefing, solely on whether the ban on vineyards was supported by
substantial evidence. Plaintiffs did not request augmentation
until a month later, contemporaneously with filing their
supplemental brief.
The court denied the motion as unauthorized and untimely.
The court stated that plaintiffs “did not ask, and the court did not
authorize, a motion to augment the record,” and plaintiffs provided
“no excuse for their failure to bring this motion at the original writ
hearing.” The court further stated that the documents could have
been obtained in time for the commission hearing had plaintiffs
exercised reasonable diligence. Indeed, plaintiffs “admit that
many of the documents they seek to add to the Administrative
Record existed at the time of the Commission’s April 10, 2014
hearing.”
31
Plaintiffs do not explain why the court’s ruling was an abuse
of discretion, and of course it was not. They simply assert—
again—that they were “misled” and could have produced more
evidence to challenge the vineyard ban if more than 24 hours’
notice had been given, and thus they “were prejudiced by the
denial of due process.” As we have seen, there was no failure of
due process. There was likewise no error in the court’s denial of
plaintiffs’ motion to augment the record.
5. The Substantial Evidence Issue
Plaintiffs contend, in essence, there is no evidence vineyards
are any worse than other crops that are not subject to a total ban:
They contend “there was no substantial evidence that vineyards
were deserving of isolation or distinction as being uniquely
disruptive of watersheds, erosion, [environmentally sensitive
habitat areas], scenic views or of any other coastal resource.” Our
review of the record, like the trial court’s, leads to a contrary
conclusion.
There are, in particular, two pieces of evidence—the UCLA
study (mentioned in the fact section) and expert testimony from
Dr. Jonna Engel, the commission’s staff ecologist—that directly
support the commission’s conclusion that vineyards pose a threat
to coastal resources and therefore should be banned.10 The
evidence plaintiffs cite, on the other hand, while it supports the
suitability of lands in the Santa Monica Mountains for vineyards,
10 There was other evidence as well, including letters and
statements from various groups and public officials, that supported
the vineyard ban. The trial court found these documents were “not
particularly persuasive” because there was no discussion of the
evidence underlying their conclusions, so they were “not sufficient
on their own to constitute substantial evidence.”
32
does nothing to counter the evidence of environmental harm
caused by vineyards. As the trial court pointed out, it is feasibility,
not suitability of the land, that is critical, and feasibility as defined
in the Coastal Act requires the consideration of environmental
factors.
The UCLA study
The UCLA study sought to identify areas where vineyard
development could potentially occur, and to identify existing
vineyards in the area. Plaintiffs cited the study to the trial court
as “directly on point” and characterized it as “an unbiased report.”
They emphasized its finding that 62.5 percent of the land in the
Santa Monica Mountains is favorable for vineyard development.
Remarkably, however, plaintiffs completely ignored the
substance of the report. (They do not refer to it at all in their
appellate briefing.) The abstract of the study begins with the
observation that, despite conservation efforts, urbanization “has
already contributed to widespread disturbance throughout the
[Santa Monica Mountains National Recreation Area (SMMNRA)],
and recent trends in the development of vineyards could pose
further threats. Additional vineyard development has the
potential to severely disturb natural areas, which could result in
fragmentation and loss of native species.”
The abstract of the study summarizes: “Analysis indicated
that unprotected areas in the SMMNRA are at risk of being
disturbed by vineyard development. Of the 48,394 acres in the
study site, 62.5% had favorable physical conditions and
appropriate zoning for development. A land cover analysis
underscored the potential effects of widespread development as
74.5% of native vegetation in the study site was at risk.” (Italics
added.)
33
The report explained in its introduction that an increasing
number of private landowners were beginning to explore
opportunities for developing hobby vineyards, and “[w]e attempted
to identify potential areas for vineyard development in order to
distinguish habitats at risk of disturbance and improve land use
policy.” The report identified “vegetation types that were at high
risk of being displaced or disturbed by development.” The study
explained that “[t]he extent of maximum development and
displaced vegetation are important due to the adverse effects that
vineyard development may have on an ecosystem.” The authors
cited other studies showing that “[d]isplacement of natural
vegetation is a direct cause of habitat loss and is disruptive to
ecosystem health,” and that “[d]evelopment effects include
fragmentation and increased edge effects[,] decreases in habitat
size and complexity, changes in predominant vegetation types,
effects on local hydrology, water pollution, soil erosion, and air
pollution [citations].”
Dr. Engel’s rebuttal statement
Testimony at the April 10 hearing likewise supported the
ban on vineyards. Dr. Engel testified that vineyards present
“numerous significant adverse impacts upon the native
Mediterranean habitats” in the Santa Monica Mountains,
including habitat loss, habitat fragmentation, disruption of wildlife
corridors, and a significant reduction of biodiversity. “From
myriad species of plants and animals, to a near monoculture of
non-native species, peer reviewed research has demonstrated that
the insect community associated with vineyards tends to support
more non-native species, and that the modified insect community
spills over to the adjacent native habitats.”
34
Further, “[d]ue to the inherent biology of grapevines,
vineyards in particular introduce significant negative changes to
the soil chemistry from the perspective of Mediterranean plant
communities.” Dr. Engel also testified that, while vineyards in
general “may not require much fertilization, they typically require
pesticides and fungicides, which are introduced into the
surrounding native habitats, including the creeks and streams,
and watersheds with vineyards.” Other points in her testimony
are reproduced in the next footnote.11
Dr. Engel concluded by citing a recent paper in the
proceedings of the National Academy of Sciences, in which the
author stated: “ ‘Vineyards have long lasting effects on habitat
quality, and may significantly impact fresh water resources. In
addition to introducing sterilizing chemicals and fertilizer, which
remake the ecosystem, mature vineyards have low habitat value
11 Dr. Engel countered testimony from Mr. Schmitz of the
California Coalition of Coastal Farmers that vineyards increase
soil fertility through nitrogen fixation and mineral depositing. She
agreed, but observed “[t]his is not a positive for Santa Monica
Mountains plant communities that are adapted to porous, nutrient
poor acidic soil. More nutrient rich soils, such as those created by
vineyards, also tend to facilitate the invasion of non-native
species.” Dr. Engel also responded to Mr. Schmitz’s testimony that
wine grapes have deep roots that may serve to stabilize slopes.
“While grapevines may have deep roots, the native woodland,
coastal sage scrub and chaparral communities have plant species
that exhibit root stratification. That is plants with shallow roots,
moderately deep roots, and deep roots. This pattern of root
distribution naturally provides great soil stability. It is also
thought that this is an adaptation of these species to limited water
resources.”
35
for native species, and are visited more often by non-native
species.”
As noted above, plaintiffs do not address the evidence in the
UCLA study, and they refer to Dr. Engel’s testimony only to
challenge her statement that vineyards “typically require
pesticides and fungicides,” and to wrongly characterize her
testimony as “inherently untrustworthy.” Instead, plaintiffs
contend the evidence “that was specifically related to vineyards”
was “undisputed that vineyards were ideally suited for the Santa
Monica Mountains,” as vineyards require much less water and
thrive on steep slopes and in poor soils. That evidence misses the
point: As the trial court observed, “suitability does not make
vineyard development feasible,” because feasibility requires an
evaluation of environmental, social, and economic factors.
(§ 30108.) And there is no evidence in the record that counters the
evidence that vineyards are harmful to the ecosystem and coastal
resources in the Santa Monica Mountains.12
In short, we are in complete agreement with the trial court’s
summary of the substantial evidence in the record: “[V]ineyards
are harmful to the Santa Monica Mountains ecology because they
require clearing and scarification, increase erosion and
sedimentation, require pesticide use, and constitute an invasive
monoculture. Of these harms, many are inherent in the nature of
viticulture, and there is no evidence they could be mitigated.
12 The evidence with which plaintiffs sought to augment the
record would not help. As the trial court pointed out, the federal
“American Viticultural Area” designation “makes no findings about
the environmental harms caused by vineyards or the
appropriateness of their use,” and “does not counter [the]
Commission’s evidence that viticulture is harmful to the ecosystem
and coastal resources of the Santa Monica Mountains.”
36
Vineyards increase erosion because the hillsides are planted with
grapes where the hillsides are bare during winter months and lack
the root stratification of native vegetation. . . . They create air
pollution from dust. Grapevines are an invasive monoculture
species that impact all of the surrounding vegetation and harm
riparian habitat. . . . They create water runoff and sedimentation
of streams. The only impacts that could be mitigated [are] the use
of pesticides, which is already banned under the [local coastal
plan], and water usage. Under these circumstances, substantial
evidence supports the Commission’s decision to ban new
vineyards.”
DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
37