Planning Commission Appeal Letters

Attachment to Appeal

Concerned Citizens of Coons Flat/Jerusalem Grade

The present appeal is based upon the public comment of concerned

residents including but not limited to:

Karl Giovacchini

Jeffrey Palmer

Jackson Morgan

Greg Giusti

Robert Logan

Thomas O’neill

Bruce Anderson

Glori Anderson

Linda Drew

Melinda Jordan

Bill Jordan

Fabrice Collin

Gary Hern

Irene Jordan

Gene Tardiff

Patti Tardiff

Kimberly Burr

Specifically, the appeal is based upon Lake County’s (County) failure to recognize that the substance of the public comments constitute substantial evidence supporting a fair argument that the County's approval of the vineyard development may have a significant impact on the environment, thereby triggering under CEQA an obligation on the part of the County to prepare an environmental impact report (EIR). In addition, the County failed to properly notify the residents of the application, initial study, and proposed negative declaration.

During the review of this project and the proposed mitigated negative declaration, concerned members of the public raised a fair argument that the project would significantly impact water resources, habitat, native oak woodlands, public health, property values of long-time residents, the natural beauty and quiet in the path of this large scale development. The County, however failed to properly consider and evaluate these issues as required. The County approved the project without requiring the most fundamental information from the project proponent with respect to the concerns identified, without requiring adequate mitigations to address the concerns identified, and without ordering the preparation of an EIR. The lead "agency has responsibility for creating an adequate record and any deficiencies due to the public agency's lack of investigation " may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences'." The Court’s have been clear, and the County may not have known this, the threshold set by the fair argument test is a low one.

Quality and Quantity of Ground Water and Surface Water

Many residents and concerned citizens urged the County to require a study of the hydrology of the area prior to approving this large-scale vineyard project, new wells, increased pumping, and a reservoir of unknown size and location. Comments of Fabrice Collin, Jeffrey Palmer, Jackson Morgan, Karl Giovacchini and others constitute substantial evidence supporting a fair argument that the County's approval of the vineyard development may have a significant impact on water resources, thereby triggering under CEQA an obligation on the part of the County to prepare an EIR.

The County is itself aware of the need to carefully manage groundwater supplies. Since the 1960’s, aquifer recharge has been an issue in Lake County. The County’s own documents state that "[s]ome communities in California have developed groundwater management plans only after overdraft or contamination have depleted their local supplies. Lake County should establish local management programs before problems occur (emphasis added). It is inconceivable that the County proceeded to approve this phase of the project without understanding its impacts to water resources.

The review of this project has failed to abide by the policies, goals,and requirements of the County. In addition, other vineyard development projects, as the public has dutifully reminded the County, have had disastrous effects on groundwater supplies. Water scarcity has been raised as a fact in the area of this vineyard and areas in close proximity to the proposed project. The mitigations proposed in this case do not address the additional draw down of the water. The public has made a fair argument supported by substantial evidence that potentially significant impacts to ground water impacts may occur.

Impacts to Biological Resources

The public, during the public comment period, also marshaled substantial evidence to support a fair argument that the vineyard development may have a significant impact on the flora and fauna of the region. Letters from biologist Greg Giusti, Karl Giovacchini, and others pointed out numerous times that the oak woodlands that will be sacrificed for the grapes are of significance to the County. Without more specificity in the project proponent’s application, it must be assumed that a significant impact will occur. It is not proper for the County to base its decision to approve a mitigated negative declaration that poses potentially significant impacts on a County resource without understanding those impacts and sharing that information with the concerned public.

In this case, the County relied upon the privately conceived and crafted

conservation easement on the property as a means to protect the County resources. Even when it was brought to the County’s attention that the conservation easement was not designed to protect the oaks but to permit oak destruction, the County failed to recommend or to require any other mitigations that would protect the rare oak woodlands. In addition, the biological surveys were not designed to properly locate and identify sensitive or listed species of plants. Evidence of this inadequacy was brought to the attention of the County in comment letters, specifically in Karl Giovacchini’s comments who has a degree in biology. Precipitation records were provided to the County that constitute substantial evidence, a low threshold, that results of the plant surveys were not meaningful due to the failure to conduct such surveys at the appropriate times.

Piecemealing of a Larger Project

As the project name so clearly indicates, this project is to be completed in phases. It is well settled that a lead agency must consider the whole of a project and its potential cumulative impacts and may not allow projects to be segmented in order to evade the proper role of the EIR. It is well within the County’s powers to require that the project be considered in whole part including any reasonably foreseeable impacts or developments.

The application indicates that 45 percent of the property will be developed. It is reasonably foreseeable, therefore to conclude that the area will be subjected to many more impacts. It was and is incumbent upon the County to evaluate these impacts as one large project. Health Impacts to Residents Adjacent to, Down Stream, and Down Wind of project The effects of pesticides, herbicides, fertilizers, dust, smoke, and hazardous substances were not properly considered nor adequately mitigated. Residents with chemical sensitivity, vulnerable populations of children, organic farmers trying to make a living, and ill persons raised the issue of uncontrolled drift. They explained to the County the prevailing winds and drainage patterns. The County has heretofore ignored the pleas from long-time residents that will be subjected to these effects, for additional and adequate mitigations.

Project Description

The public brought to the County’s attention the absence of known watercourses in project proponent’s application. The County ignored this information and warning and proceeded to consider the project as written. In addition, on page 13 of the Biological Assessment by Kjeldsen, there is mention of a reservoir to be constructed that is no where else neither mentioned nor its impacts evaluated. The public request information with respect to this element, as should have the County. Instead, the County ignored information, provided by the project proponent itself, and proceeded to consider the impacts of the project based on incomplete information as to the size, location, purpose, and cumulative impacts of the reservoir. The project does not accurately describe the community, number of residences potentially affected, number of oak trees to be destroyed,number of those that are mature oaks trees, biological diversity, or hydrological conditions. On the contrary, the public provided information and evidence that the application was inaccurate. The project proponent’s description of the number of oaks to be destroyed was worse than vague; it was misleading. The number of affected residents and the size of the community was likewise misrepresented.

The County should have reeled at this inaccurate portrayal especially when it was brought to their attention and it should have created doubt as to the accuracy of the rest of the application. Instead, the County ignored the comments of concerned citizens, did not check the facts or evidence, and proceeded to approve this phase of the project. Agency Mitigations Not Fulfilled by Project Proponent The North Coast Water Quality Control Board explained to the County that it expected to see documentation in the application indicating whether the applicant must obtain certification from their office. No such documentation was provided yet the County approved the project without it.

With respect to a hydrologic study, the County backed down from its request when the project proponent complained that it would be too expensive. Of course, the County has not only a duty to protect the public interest but also to base its decision to approve a big project which poses potentially significant threats to the ground water supplies of local residents, upon substantial evidence in the record. In this case, there is an incredible dirth of information on this most relevant and serious issue. The County has shirked its responsibility and squandered its authority to request information in what was designed as an information gathering process.

Conclusion

In 1999, the County required the preparation of an EIR for a vineyard project approximately half the size of Diamond Mine Vineyard Phase 2. The County’s failure to properly review the potential individual and cumulative impacts associated with Phase 2 of the Diamond Mine Vineyard development, not to mention Phase 1 and the phases reasonably anticipated to follow appears to be arbitrary and capricious and an abuse the discretion with which it has been entrusted.

The review and approval of this project is fatally flawed. Each deficiency outlined above are individually constitutes a prejudicial abuse of discretion. Together, they certainly constitute a prejudicial abuse of discretion. Concerned Citizens of Coons Flat/Jerusalem Grade urge the County to reconsider the approval of this project at this time and its current form. Following an EIR process is reasonable and prudent in this particular case.