SodaCanyonRoad | BOS Mountain Peak remand hearing May 18, 2021

BOS Mountain Peak remand hearing May 18, 2021
Bill Hocker | Jul 10, 2021 on: Mountain Peak Winery

Update 7/13/21
The Board of Supervisors finalized their approval of the project on a 3-1 vote with the addition of Sup. Wageknecht's Red Flag Day prohibition to the Conditions of Approval.
7/13/21 BOS video
Agenda and documents
The redlined COA's

The Supervisors again approved a project in the face of years of community opposition and of the proven danger in locating tourist attractions in remote, fire-prone rural areas of the county, a danger to visitors and employees themselves and increased evacuation danger for residents.

It was a disappointment that Sup. Ramos was not there to cast the "no" vote that she had previewed to dramatic effect in the previous BOS hearing on the project. A 3-2 loss would have been more heartening than a 3-1 loss. Again kudos to Sup. Dillon for remaining true to the belief throughout that this project is not appropriate for this remote location, now with the evidence of the fire to back up that belief. And also for not buckling under the pressure to approve projects just so the county will not face additional lawsuits from disgruntled applicants.

Update 5/26/21
Mufson Letter to BOS: Redarding Mountain Peak Development
Akersloot LTE 5/28/21: Appalling lack of concern for environment and safety
NV 2050 5/25/21: Mountain Peak: Location, Location, Location
Wilson LTE 5/22/21: Napa supervisors failed to hear warnings of risky winery project
Caloyannidis LTE 5/23/21: The Napa County supervisors’ disconnect

NVR 2/26/21: Denied property insurance, Napa Valley wineries 'extremely vulnerable' this fire season
Insurance companies do not seem to be as sanguine about the fire dangers facing wineries as most of the Supervisors are.

Update 5/18/21 Remand Hearing Postmortem
NVR 5/19/21: Napa County affirms its 2017 Mountain Peak winery decision by 3-2 vote
5/18/21 BOS Video (Remand hearing begins at 3:24:30 on the video)
Agenda and docs for 5/18/21 BOS meeting

It had always seemed inevitable that the project would be reapproved by the BOS on remand. At best we might have the support of two supervisors: Sup. Dillon, who was away for the 4-0 approval in 2017 had expressed concern in retrospect that the visitation was out of line for a winery removed from the valley floor; and Sup. Wagenknech, who a couple of times in county meetings wondered why we needed all these wineries in the watersheds..

Sup. Wagenknecht led the Supe's discussion by immediately proposing the developer's mitigation of rescheduling red flag day visitation, an easy concession now used to bat down fire concerns (and a mitigation that will be on all hillside projects going forward). It seemed an unusually decisive move for a supervisor often circuitous in voicing his opinions and proposals.

Sup. Gregory, noting that the issue of homes as well as wineries in remote areas needed to be considered, advanced the don't-make-policy-with-a-single-project argument, simultaneously supporting an unwise development while suggesting he wants to do something to limit it down the road. Down the road may be coming soon, he noted, with the board scheduled to discuss the development impacts of the State's new Fire Safe Regulations on June 8th. (It is a bit of humorous irony that Sup. Gregeoy's campaign posters featured homes on hilltops.)

Sup. Dillon, with a history of concern over the appropriateness of the project, noted that residents had said in planning commission and appeal hearings what they thought will happen in a fire, and their predictions proved true. She declared her intent to deny and made a motion to that effect.

Next a bit of a shock, at least to opponents of the project: Sup. Ramos simply declared that she had a change of view, particularly after the devastating fire, and would now reverse her original vote and deny. An muted gasp from many and a cheer from one member of the audience.

Sup. Pedroza then soothingly voiced concern for the harrowing residents' fire stories, but, citing Sup Gregory's homes-and-wineries dodge, and Sup. Wagenknecht's red flag mitigation, declared that, logicallly, he would still need to approve the project. The logic of approving a fire-risk project now that might not be allowed in the future, beyond just as a favor to the developer, escaped me. The vote was taken, 3-2 to uphold approval.

Obviously Sup. Ramos was the heroine of the day, and such a contrite, public switch to the preservationist side may do much to soften her pro-development image. Her decision could have just been related to the compelling specifics of this project or to other personal experiences, but I'm sure that many rural residents are hopeful to have a more sympathetic ear in the future.

And, obviously, Sup. Wagenknecht was the HUGE disappointment of the day. In 2017 he stated "I'm very concerned with wineries that are going out in the middle of nowhere. And I'm not seeing a huge reason for them. " In denying the Hard Six Cellars appeal last year he said, "I don’t know if in my conscience, I am willing to approve this application knowing that people could lose their lives". The right moment had suddenly arrived to do something about a winery in the middle of nowhere and the threat to lives in his approval -- and he gave it a pass.

Anthony Arger's presentation of our case was nothing short of stunning, given covid protocols, the amount of material to be covered and the punitively short period of 20 minutes to present it, under the hostile gavel of Chair Pedroza. The remand was the result of two reviews in Superior court and three reviews in Appellate Court, dozens of hours of petition and testamony, all of which backed the significance of returning the project ot the Board. In setting such a short time limit for the presentation of evidence, the Board seemed to be contemptuous of the Court's decision and vindictive toward the residents

23 speakers contributed public comments, all but 1 urging denial. The residents who lived through the fire read their declarations as redacted by the court. Diane Shepp gave a very emotional recount of their harrowing experience that had not been part of the court documents. All of the commenters spoke to a range of issues about fire danger in remote areas, causing frequent interruption by county council with officious reminders to the Board that this hearing was about presenting very specific passages of witness testimony for their consideration.

Some comments stuck with me: Mike Hackett who called out, in normal blunt terms, the "new kids" that have created the "pro-development" board and a staff now "trained" to favor developers over citizens; Harris Nussbaum, who, despite extremely frail health and 3 years away from the chamber, wanted to tell the Board in person that they had a moral responsibility to the health and safety of people using the road; and James Hinton, whose rants at almost every public hearing make one cringe, but here gave a sedate and careful plea to reconsider the wisdom of having "sales floors" in remote areas of the county.

The fact that approval has now gone from 4-0 in 2017 to 3-2 in 2021 is a small but significant step in recognizing the innappropriateness of this project in this location. We now move on to the CEQA litigation against the County for it's abuse of discretion in approving such an environmentally problematic project in 2017.

The final text of the Board's decision will be certifiied on July 11, 2021.

Mountain Peak site after the fire
NVR 5/14/21: Napa County to further review Mountain Peak, Staglin winery cases
NV2050 5/25/21: Mountain Peak Winery Remand Hearing, May 18, 2021

The Mountain Peak Winery approval has been remanded by the Napa County Superior Court back to the Board of Supervisors to re-evaluate their approval of the remote winery project in light of the evidence of the 2017 Atlas fire. The fire closed access in and out of Soda Canyon Road and required residents in the area surrounding the proposed winery site to be evacuated by helicopter. The BOS approval of the project was contingent on the appeal finding that "In the event of a fire that results in mass evacuations from this area, the road has sufficient capacity and roadway width to accommodate all outgoing traffic while allowing incoming fire response units." (see "Tenth Ground of Appeal...Findings and Decision" on pg. 15 here.) The fire proved them mistaken in this finding.

In justifying the need for the remand, the Court concluded "- the catastrophic nature of the Atlas Fire, and in particulr the mass evacuations, many by helicopter, that resulted from the fire constitute truly new evidence of emergent facts that were not presented to the Board."

The hearing will take place Tuesday, May 18, 2021 at 2:00 pm in the BOS Chamber, 1195 3rd St, Napa. The number of seats in the board room will be somewhat limited, but there will be an "overflow" room as well.

The agenda and documents are here (page 19) [oddly no announcement or link for this BOS meeting has been published by the county]
Virtual attendance guidelines are here.
Mike Hackett email reminder (with a good summary of the issues)

The proceedure for the hearing:
  1. Board disclosures and staff presentation re 2017 Atlas Fire.
  2. Soda Canyon Group presentation (Supervisor Pedroza has limited us to 20 minutes; I will plan to handle the presentation, which will include a PowerPoint).
  3. Public Comment: This is the time when any members of the public, including declarants, can be heard. Time limited to 3 minutes. Again, we strongly encourage everyone to attend and speak in-person, as it is simply more powerful to be able to look your Supervisors in the eye and share your experience from the 2017 Atlas Fire.
  4. MPV presentation (also limited to 20 minutes).
  5. Soda Canyon Group rebuttal (time permitting).
  6. Chair closes public hearing, board deliberations.


Hearing Statements:

The county and the developer appealed the Superior Court's remand three times in Apellate Court and lost each time, underscoring the importance and credibility of the new evidence Forced to do so, it appears that they are hoping to ignore the intent of the remand, go through a show of due diligence and be done with it.

The Notice already proposes a preemptive finding of sorts: "The Board adopted a Negative Declaration for this Project, which has been certified. The Court’s Order remanding the matter to the Board has no effect on the previous environmental analysis. Therefore, no further environmental review is necessary." The environmental review done by the County was obviously deficient when it came to potential evacuation danger. One wonders what was the point of the Court's remand order if not to reconsider that environment analysis in light of the reality of contrary evidence. What mitigations could be made to counter the increased danger of adding 150 people needing to be protected or evacuated if the road is blocked. None are being proposed. The suggestion in the Staff report that those people might shelter in the project cave or vinyards completely ignores the very real dangers of those solutions or of the chaotic situation that actually happened as people followed their immediate instinct, just as guests and employees at the project would, to drive down the road.

More complete comments on the Remand are here

This hearing comes at the same time that the State Board of Forestry is revising their Fire Safe Regulations for Very High Fire Hazard Severity Zones like upper Soda Canyon Road. The intention of the change in the State's regulations is to slow the expansion of development -- for example, a project that brings 60 visitors and 19 employees each day -- into high fire hazard areas. More information on the Board of Forestry regulation update process is here. A hearing on the draft of new regulations will take place on June 22, 2021. The county wishes it could ignore that process as well. The County's response letter is here.