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The Compliance Ladder of Travesty


George Caloyannidis | Dec 4, 2018 on: Compliance Issues


Update 12/04/18
The Resolution on Code Compliance was passed 4-0 by the BOS at their 12/4/18 meeting.

Chatten-Brown and Carstens LLP letter to the Supervisors with legal concerns about the Draft Code Complince Resolution on behalf of the Friends of the Napa County Agricultural Preserve.
Video of 12/4/18 BOS meeting
Revised Code Compliance Resolution

Update 11/20/18
NVR 11/20/18: County wants March deadline for Napa winery scofflaws

Update 11/9/18
Concerning Item 6G of the BOS consent Calendar on Nov 13, 2018 agenda:

This [Draft Code Compliance Resolution] is extremely serious. It opens the floodgates under the guise of "enforcement".

While I only address the issue of public exclusion (in the underlying objective to "streamline"), this Resolution is a complete travesty.

Over and above the issues I raise in the attachment, there is nothing to prevent a never ending string of violations "to come forward for compliance" even after this round of compliance modifications has been completed.

And to suggest that compelling a winery to operate under its original use permit for one year (any amount of time) is punishment is like allowing a thief who has been caught stealing to keep their stolen goods as long as they promise to stop stealing going forward!

Note the bullet immediately preceding my COMMENT text.

It pertains to the unfair treatment of law abiding wineries seeking use permit modifications as compared to the violating ones. The former will still be subject to Planning Commission review and public hearings while the latter will be privileged by an expedited administrative process.

Many believe that this unfairness is so obvious that it will be remedied in the future and that this underhanded process is one already premeditated in this Resolution.

Once again, I urge you not to change the existing process of Planning Commission review and public inclusion for ALL winery use permit modifications.

My current comments to the Supervisors are here
My Oct recommendations are here

11/15/17
For many years now, I have been sounding the alarm of the misguided principles the Planning Commission and the Board of Supervisors are employing in rewarding winery use permit violators. The latest example in this ongoing practice was the approval of the Reynolds family winery which was caught cheating in its 2014 audit.

On November 1st, the Planning Commission rewarded the winery with an increase in production from 20,000 gallons annually to 40,000, an increase in weekly visitors from 60 to 280 and in annual marketing events from 3 to 54.

The owner, a dentist of some assumed educational level stated that he hadn't noticed the increase in visitors. As shocking this may be, even more so are the statements of the Commissioners who appreciated the winery "owning up to the code violations", whatever owning up means.

Commissioner Basayne stated that the county wants "to work with violators who want to work with the county" another meaningless talking point. Commissioner Scott stated that the county "must support efforts of small family wineries to succeed", in effect sweeping the issue of violations under the rug.

To top it all off, staff developed a comparison chart of 14 wineries producing between 35,000 to 45,000 gallons to serve as a guide for future applications. The chart showed that comparable wineries had 6,213 visitors annually compared to 14,560 granted to Reynolds and 691 marketing visitors while Reynolds was granted 1,901!
Putting all this in perspective and leaving all the ethical and government credibility issues of rewarding violators aside, I want to concentrate on how this affects the state's California Environmental Quality Act (CEQA) intended to safeguard not the Reynolds' pocket book but our common quality of life including our resources, infrastructure and traffic congestion.

During my appeal on a similar violations reward case of the Reverie winery in 2015, I pointed out to the Supervisors the court decision of that same year in Center for Biological Diversity v. Department of Fish and Wildlife holding that "the CEQA baseline must include existing conditions, even when those conditions have never been reviewed and are unlawful". This means that the environmental conditions factored in the Reynolds CEQA analysis included the conditions of the violations, not those which would have been in place had the winery complied with its original conditions and came before the Commission seeking for an increase. In other words, the impact of the increase from 6,213 to 14,560 visitors, the increased production etc. all escaped CEQA review.

This circumvention of the CEQA law by our local government was also pointed out to our Supervisors in letters by the law firms of Abbott & Kindermann representing Beckstoffer Vineyards in April 29, 2015 and by Shute, Mihaly & Weinberger representing Alliance for Responsible Governance in August 11, 2017. Yet the Planning Commission remains undaunted to the fact that its policy of "forgive and reward" which was officially rescinded by Resolution No. 05-229 in December 13, 2005 and signed by then chair Dillon compromises - in fact encourages - the circumvention of CEQA which was designed to protect the health and welfare of communities throughout the state of California.

When the Commissioners and our Supervisors increase the use permit levels of violators such as Reverie, Summers, Reynolds and others one after the other, the comparison chart of "similar wineries" is climbing up the ladder to the benefit of the next violator, all without CEQA review. If one wonders how traffic congestion levels have increased dramatically in recent years even though each project CEQA analysis has assured the public that all impacts have been mitigated to "less than significant levels", one need only look at the ladder of forgiveness.

To be clear, rewarding such violators has nothing to do with helping small family wineries, nothing to do with people who are nice or generous to the community or even those who come forward admitting to violations without having been caught let alone those who have. Unfortunately, our government refuses to get it and many fear corruption. What is the solution?

The county has suspended its auditing program and is examining solutions. No solution will be effective unless violators are caught immediately so the CEQA baseline is not allowed to move forward unexamined. This means a step up in auditing to at least 80 wineries annually, sworn affidavits of winery CEOs that they comply with the terms of their use permits and non-complying wineries having to revert to use permit levels of operation for a minimum of three years so that CEQA conditions have time to reset.

LTE version 11/18/17: Forgiveness for winery violators: The ladder of travesty