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Jun 19, 2015
Update 1/7/19Planning Dir. Morrison indicated at the Feb. 6, 2019 Planning Commission meeting that review of winery application marketing plans and facilities will be much more closely scrutinized in future to insure compliance with conservation regulations and the 2010 WDO limitations. This follows three high profile code compliance busts: The Prisoner Winery for selling chachka, B Cellars for operating as a restaurant, and, hard to ignore, the Del Dottos for covering Yountmill Road in a foot of mud.
These are un-subtle reminders that the deadline for wineries to submit applications to rectify their use permits with non-compliant conditions of their operations is March 29, 2019.
Update 11/9/18Following the tumult of the Watershed Initiative, Measure C, which narrowly lost but showed that a substantial portion of the electorate still concerned about development issues in the county, the Supervisors have again taken up issues still unresolved from the 2015 APAC hearings. The need for a winery compliance program was one of the few APAC recommendations the Supes agreed to take on and after some initial discussion 3 years ago, have now asked the Planning Department to draft a specific resolution which would lead to an enforcement process if approved.
Initial post 6/19/15The transition in the wine industry from the individual vintners that built Napa's reputation beginning in the 60's, to the corporations and vanity vintners now, whose interests are to cash in on or bask in that reputation, has begun to diminish the respect and support that residents have traditionally had for the industry. New wineries proposed solely for brand exploitation through tourism, now beginning to crop up in everyone's backyard, are encouraging a much more hostile look at the use-permit compliance of existing wineries and the variances and exceptions awarded to new winery projects. Though unrelated, they have both become enforcement touchstones for those that feel the wine industry, no longer concerned about the agrarian ideals upon which the industry was founded and that residents have long voted to support, has operated with impunity for too long.
In the last few months several projects have come up before the planning commission that have brought enforcement issues to the fore. I confess that I have been reluctant to see this as a major part of the policy issues that need to be changed in the County. My reasoning was that even if projects were to abide by every use permit condition and remain beyond the setbacks they are still a part of the urbanizing trend that is the real problem. Being more rigorous in enforcement in dealing with a few cases might sap the energy needed to change the ordinances being enforced.
But it is probably not just a few cases. There have been 2 winery audits of use-permit compliance in recent years, in 2012, and in 2013 (item 10B). The 2012 audit found 7 of 20 out of compliance. The 3013 audit found 8 of 20 wineries going beyond the limits of their use-permits. If one extrapolates the 35-40% number over the entire 450 some wineries in the county it is not an insignificant issue. While the issue of compliance often revolves around visitation issues, it has also raised the issues of grape sourcing and of un-permitted additions. Three projects bought the issues to the fore: The proposed Girard winery raised the issue of the same owner's Clos Pegas open advertising and promotion of un-permitted weddings there. The Caves of Soda Canyon request to "recognize and allow" an un-permitted cave portal ( crucial perhaps to their business model), and the Reverie Winery which, in addition to recognizing and allowing un-permitted construction and substantial visitation, raises the issue of permit modifications done solely to benefit a sale price.
Until recently, concern about winery compliance has been played down by the planning department as being difficult and costly to enforce with its enforcement efforts stretched just to cover non-winery health and safety violations. But the concern from citizens has been unrelenting and now the Napa County Grand Jury has weighed in on the side of more enforcement. Also, Beckstoffer Vineyards has joined the chorus with an April 2015 legal brief on the subject of compliance sent to he Board of Supervisors (triggered no doubt over his backyard brawl with mega-scofflaw and good-life entertainer Jean-Claude Boiset of Raymond Vineyards) followed by this legal brief in Dec 2015.
The application for new use permits is also bringing variances to the fore. These variances are principally granted to allow encroachment into mandated setbacks from roads. The 1990 WDO establish winery setbacks from roads in an effort to maintain the visual character of the landscape as agricultural - a winery set in a landscape rather than a winery blocking the view of the landscape. The setbacks were substantial: 600' for the main arteries of the valley floor and 300' from any other road or private drive in the county. This concern has played out in the the case of the individual winery applications and more generally in the debate over the 10 acre minimum parcel size taking place at the APAC meetings. A 600' setback on a 10 acre parcel can have unintended impacts in building placement. Strict adherence to setbacks may mean a winery can't be built on a 10 acre parcel. Some might see that as a good reason not to allow construction. Others might see it as a "taking", denying potential profitability of the land, just as the Ag Preserve and other county zoning ordinances do.
The gigantic Yountville Hill project, while principally about visitation, viewshed and traffic, raised the issue of setback encroachment. But it was the tiny Melka Winery project that became the poster child for the variance issue. In perhaps the only true victory in our efforts to date, the Krupp Bros. Winery proposal to move their as yet unbuilt winery well into the setback was shelved.
Compliance Issues have become an important part of the APAC meetings happening in the summer of 2015 and I have included links to the two meetings that concern compliance below.
Update 3/17/20The 3/17/20 BOS Appeal hearing for the Bremer WInery took place with 2 supervisors videoconferencing and dificulties in the tansmission. No appellants were able to make it into the hearing. The appellant William McKinnon of the Calif Water Audit did manage to make the somewhat garbled Zoom connection and made a somewhat circuitous and philosophical presentation about the County's handling of the Bremer bootlegs through speed-cop analogy.
He said that he has already submitted the case to the courts on the basis of the existing record and that undefinedundefinedhe feels that the hearing conditions are untenable and that the Board's decision today is, in any case, superfluous.
Chair Dillon is struggling to keep the hearing going when, in fact the hearing should probably be continued. Applicant lawyer Kathy Felch says she is having trouble on Zoom. The Board's lawyer is making a case that the board is taking significant steps to meet all legal requirements no doubt in preparation for future lawsuits. The Board is making an extrordinary effort to proceed with the hearing despite no appellants, bad zoom connection and a process that is wildly irregular. It is impossible to believe that any hearing decisions will not be legally challenged just on the chaotic nature of its process.
David Galbreth, Bremer's lawyer, presented the appeal as just a punitive attempt to make a poster-child case for watershed con reg strengthing. Fish and wildlife has signed off on creek modifications. Phil Blake of RSA testifies that the creek does not violate any wildlife and fish regulations or the intent and spirit of the conservation regulations in protecting the water flowing through the creek. Other consultants said the same.
Supervisor discussion revolved around the 6 constructed items identified on the staff map of the disputed additions within the creek setbacks. On items E and F, the rock walls retaining the creek and two bridges over the creek they decided to approve (ie deny the appeal on those two issues). On items A, B, C and D, a newly built barn, a patio, an addition to the house and free standing bathrooms, the decision was to was to remand those issues back to the planning commission for review. The vote was 5-0 to remand A thru D and deny appeal on E and F. Sup Dillon in the end did manage to provide an orderly process despite the extreme technical difficulties.
It seems like a punt on the part of the Supes. It is difficult to see how the planning commisssion will be any better judges of the appropriate course of action than the Supes who seemed to show a lack of courage foisting the decision back on the the PC. If the PC does change its mind and recomment tearing down the buildings the Supes will again have to hear an appeal this time from the Bremers side and be confronted with the same decisions they have punted on today. In any case it apears that the project is already headed to the next phase in the courts regardless of the County's decision. Mr. McKinnon has proven himself a very tenatious litigator.
2/2/20The Bremer Winery has become the poster child of good-life developer hubris and county impotence in dealing with it. The feeling that it is better to ask forgiveness than permission is evident in all of the efforts the Bremers have taken to develop their wine county ambitions. They developed their vineyard beyond their permit, were called out by both the county and regional regulators and were required to restore their alterations to waterways. At the same time they asked the county to legitimize additions to their winery and to increases in wine production and tourism on the basis of unstated limits on their use permit as well as allow illegal encroachments into stream setbacks. The county denied the increases and exceptions and then sued the Bremers for violation of the county's ordinances. The Bremers technically lost the suit, and in a settlement agreement, paid off the county $271,000 and reduced visitation and production with the agreement that the county would reconsider their legalize their illegal conditions after a year. The Bremers then sued their layers for losing the suit! After several months they reapplied for legalization of their encroachments to the Planning Commission, which the county then approved in accord with the conditions of their legal agreement!
It is now up to residents impacted by the Bremers' arrogant flouting of the county decisions and actions to litigate (with time and money) the county's convoluted sanctioning of that illegal activity.
The appeal of the Planning Commission's approval of Bremers' illegal upgrades is now scheduled to be heard at the 3/17/20 Board of Supervisors meeting.
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.
11/15/17For 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.
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.
The way the County defines winery compliance is far from what the common man understands under this label. When wineries exceed wine production, visitations and numbers of events above their use permit levels, this is when they are out of compliance. One would expect that when the County proposes to bringing them into compliance, it would compel them to operate under their use permits for at least some substantial period of time. That would not only be respect for the law, restore unfair competition towards law abiding wineries and rectify their escape from environmental review thus adding to our traffic without mitigations.
Regretfully, the way the County proposes to treat "compliance" is to legalize violations with revised use permits, in essence adjusting the law to fit the crime; even better, it brings the County rather the wineries into compliance.
"Words matter" as president to be Barak Obama once said in 2007. Words can inspire and can fool the public.
And since I am quoting presidents, most peoples' moral sense was offended when President Trump decided against placing sanctions on Saudi Arabia for the horrific dismembering of Jamal Khashoggi by risking a $100 barrel of oil. "This is not who we are" reverberated throughout the country. But here we are in Napa County.
Without claiming a moral equivalency to a horrific crime or national interests, if there is any doubt how corrosive this loose play with our collective moral values is even beginning at the local level, one can look back to the Summer of 2015 when I unsuccessfully appealed the County's decision to forgive numerous egregious violations at the Reverie winery with a new use permit by bringing it into "compliance" (it sold a few weeks later with several millions of ill gotten gains added to its value). At the time we asked Mr. Rothman, teacher at Angwin Elementary School to pose the following question to his 7th and 8th graders: "If I passed around a cookie jar and asked each of you to take no more than three cookies but some of you took six, should they be allowed to keep them?". We can still celebrate; not one single child said they should.
At least in 2015 these children understood morality, but if we continue down this path from a small county to the entire nation where money trumps it, we will end up in the kind of society which we will have deserved.
On December 4, the small children at Angwin Elementary will be looking down at the Supervisors' desk.
Mr. Caloyannidis has sent along these more specific comments:
Below I distill the main issues with the proposed Winery Compliance Resolution.
1) It increases the discretionary power of the PBES Director (Morrison) to determine which of the violating wineries' applications require a public hearing and which do not. If he decides they do not, he grants new use permits. This limits public comment at the Planning Commission level.
2) It gives a penalty pass towards new winery use permits which recognize their violations if they submit a "substantially conforming" application by March 29, 2019. But the deadline can be extended for "extenuating circumstances" for up to 120 days but that can again be extended for extenuating circumstances, both at the "Director's sole discretion".
3) It also grants these violators the right to apply for additional increases in use permits over and above the violation ones.
4) Such ministerial approvals will be almost impossible to appeal to the BoS because the public will have to rely on the County website postings in order to submit a comment in order to acquire legal standing for an appeal.
5) The only penalty wineries which miss that (flexible) deadline will be to undergo CEQA under the original use permit baseline (which they need to consent to) and be required to operate for one year under their original use permit.
6) There are no provisions of how repeat offenders will be handled.
7) No provisions on how wineries who do not apply at all will be handled.
8) No provisions for a County auditing program so as to prevent violators in the future.
9) While these wineries will be required to submit annual reports on production, they are not required to do so for their marketing activities.
The more general concerns at issue here are:
1) According to the last winery audit in 2013, 40% of all audited wineries were out of compliance. We have about 500 wineries now.
2) The proliferation of use permit violators on traffic, visitations, events, production has had profound impacts throughout the valley in terms of advancing these increases without mitigations by escaping CEQA review. As per recent court rulings, the CEQA baseline on applications must recognize existing conditions even if they have been caused by unpermitted operations.
3) These illegal increases in winery marketing and production have had deleterious effects on the commercial activities in the cities. The unmitigated increases on traffic have also had an equally negative effect on accessibility and the commercial activities in the cities from American Canyon to Calistoga resulting in store and restaurants closures as they complete in a short labor market and food service.
Two players were missing in the Register's Editorial Board discussion regarding the County's system of granting permits and addressing violations in wineries (and other buildings).
While the interests of business and politics were included, missing were those of the environment and the residents' quality of life. The issue of violators cannot be addressed without its effect on them.
To begin with, bunching building violations and winery violations under the same ordinance would be a serious mistake. An unpermitted room addition is a matter of Building and Safety while unpermitted wine production and visitor numbers impact everyone's quality of life and the environment unless mitigated according to the safeguards mandated by the State (CEQA). Herein lies the broader context within which the issue must be addressed by the County if it is to be effective.
I have written extensively that the way government treats law violators involves inventory keeping and ethical issues of fairness and trust in government. While effectively deterrent punishment is essential, it is secondary in the big scheme of things. Primary is the preservation of the valley's environment and its quality of life. This is where our Supervisors' policies which for decades were solely focused on accommodating business have failed us over the past few decades. One only need look at traffic.
How did traffic congestion get out of hand in such a short period of time? According to the 2014 Fehr & Peers traffic behavior study, only 9% of all Napa traffic is through-traffic. This means that 91% of it is directly controlled by government policies. Without a comprehensive blueprint on growth there can be no criteria by which a permit may be granted to a new winery or for an increase in production or visitations to an existing one whether legal or illegal.
It is time for a fundamental shift in the Supervisors' focus.
We, the residents of Napa valley do not owe any investor in a new winery financial success. Neither do we owe higher profits to investors who in full knowledge of the parameters of their use permits seek to increase them. We do not bail out condo developers from a bad investments but we bend over backwards for winery owners. Why? They tell us that agriculture is the traditional backbone of our economy. Fair enough! But crowded tasting rooms are not agriculture.
Here are the consequences: New wineries and increased visitations at existing ones attract more visitors to the valley because their supply is endless; one need only look at the most popular places in the world - and we are one of them - to be convinced. More visitors to wineries mean more tourists, more hotel rooms, more low paid commuters, more traffic, higher use, demand and deterioration of the infrastructure, more government staff, higher pesticide and pollution levels and the denuding of our forests for more vineyards.
At the heart of the problem is that under the direction of our Supervisors, staff has consistently failed to properly analyze the impacts of new wineries or the increased production and visitations at existing ones. CEQA was mandated by the State to prevent us from reaching the traffic levels we have. Piece by piece the politicians have been assuring us that impacts have been mitigated to "less than significant" and here we are. We are here because the CEQA law has been consistently abused.
While this has escaped the unsuspecting general public, it has not escaped the investor sharks. With the Supervisors' tourist based transformation of our economy, they have descended on our valley utilizing every inch of its resources. The problem is that it is us who bare their costs; short term as they now impact our quality of life and staggeringly fiscal ones some twenty years down the line to be paid by us one Measure after another. Listening to the hundreds who have attended the Napa Vision 2050 forums, the economy model is out of balance. It is irresponsible policy to approve one more visitor to a winery legitimate or not, without analyzing that impact on the residents from American Canyon to Calistoga. If not as mandated by CEQA, out of pure respect for them.
In good faith we approved Measure-T. Its funds as one Supervisor told a small neighborhood gathering, will also be available for "projects". What kind of projects? "Widening roads or installing relief lanes". To understand what this means, one should revisit the Circulation Element of the 2007 County's own Draft EIR: It states that if current growth rates continue, it will require six lanes from American Canyon to Yountville and four lanes at most sections all the way to Calistoga.
Yes, we will see "our dollars at work" and drive easier - only for one to two years as U.C. Davis studies have shown and then get worse than before. Until one day we will wake up wondering where we are.
Without a grip on growth as the overriding criterion, any attempt to address use permit violators will give the false feeling we are solving a problem while the overriding one will be getting worse right under our feet. We may or may not be serving justice, but we will be miserably failing at planning. Until such time as we have it, "uncertainty" may be serving us well.
For almost three years, Napa Vision 2050 has been advocating respect for Napa County’s semi-rural and agricultural heritage, adding the contemporary voice of neighborhood groups to the preservationist guidelines Napans established decades ago.
The guidelines have since been observed---and also ignored. The county has been lax in monitoring guideline compliance. Moreover, with violations discovered, it’s condoned them. For example, with breathtaking permissiveness the Board of Supervisors forgave Calistoga’s Reverie Winery for carelessly ignoring its visitation and production permits.
And last month the Board blessed the road-building plans of Raymond Vineyards to prefer, ironically, hospitality events to vineyards. For its ag-to-tourist project, Raymond had applied to the county out of respect for its permit process. The Board seemed untroubled that in Raymond’s previous respect for county guidelines it forgot its legal limit of 26 employees (they have 90).
By the Board’s disregard for its own land-use principles, we are losing Napa’s semi-rural, small-town identity as an agricultural valley. Where there were just a few score wineries two decades ago, now there are over 500. Where a limited number of visitors sampled wine at tasting rooms for free, now tourists number over 3 million every year. Where residents and visitors enjoyed a tranquil, unhurried drive to and from the Valley, traffic congestion now plagues the highways. Where the county’s commitment to agriculture was to the “highest and best use” of the land, it’s goal now appears to be bringing money into the Valley via tourism.
But there’s a glimmer of hope. The degradation of that highest-and-best-use ideal is so obvious that the chorus of concern is growing beyond the strained voices of environmentalists to include growers and viticulturalists. For example, in Carneros David Graves of Saintsbury Winery wisely wondered, “How do we safeguard a place without loving it to death?”
Vintner Michael Honig expressed shock about Bremer Winery’s “disregard for the rules” in Angwin.
Grape grower Andy Beckstoffer, referring to Raymond Vineyards’ road project in St. Helena, commented to the supervisors, “they want to take land out of ag solely for the purpose of hospitality. . We ask you to reject this application and support an agricultural economy.” He added in a Napa Valley Register letter “Napa County has two choices. One is to have an agricultural economy supported by tourism and the other is to have a tourism economy supported by agriculture.” Raymond, he reminded the supervisors pointedly, has “no sworn commitment to protect the agricultural land and rural character of our county. But you do.”
Yet another vintner, Robert Trinchero, noted Napa’s popularity and called the problem “encroachment”: “Our customers come from all over . . . That is going to kill the goose that laid the golden egg. You can’t move all these people here. We need vineyards.” He acknowledged the growing sense that “enough is enough. There are too many wineries.” Furthermore “some wineries build their wineries and vineyards irrespective of the feelings of their neighbors. This causes a lot of problems, so we have to change that.”
Trinchero also remarked that “the mentality of some winemakers is that they would rather apologize . . . that they didn’t know they can’t have tourism tasting. We have to draw the line somewhere. The line should be the law. It should be reasonable, in that no neighbors are complaining.”
The good news continues. The Planning Commission just rejected the Palmaz proposal for helicopter use in Napa. That decision is stunning because this county has heretofore been so agreeable to applications for projects no matter how inappropriate or how inconsiderate of neighbors.
Clearly, the momentum in Napa County is shifting. Napa Vision 2050’s two recent town halls featured robust attendance and frustrated citizens eager to arrest the degradation of the county.
It’s increasingly apparent that not only we residents, but also the responsible wine industry, now recognize how destructive indulgence toward tourism (more visitors, more traffic) has been to the county’s heritage. It’s time to make changes.
At the Mar 15th, 2017 use permit hearing for the Raymond Winery, in her dissenting opinion to the 3-2 approval of the project, Commissioner Anne Cottrell made a statement that should be considered as a "standard condition of approval" for any winery asking for forgiveness for use permit non-compliance. After citing several objections to the application, she said:
"My biggest issue of concern about this project is the issue of non-compliance... We have several violations that have occurred over quite some length of time. I think about other projects that this commission has seen. Two that jump to mind are the Caves at Soda Canyon and Summers Winery, both of which had fewer violations than we have at present. In both those situations the Planning Commission said to the applicant you need to live within the terms of your use permit before we will grant an expansion of entitlements. We've also heard from the community the importance of this body being consistant in applying the rules and regulations. I feel that if we have asked other violators to live within the terms of the use permit, we need to ask that of Raymond as well. It's worth noting that problems with non-compliance are not just about checking boxes to say we're following the rules. It goes beyond that. It's not only an unfair business advantage to other wineries who are following the rules, but it's also straying from the General Plan's goal to protect the Ag Preserve. The General Plan and the county codes flow from the concept of ag protection, and the violation of those codes undermines the ag preserve."
This is very tough because obviously Frog’s Leap does many good things with organic farming, dry farming, charitable events. It’s the kind of winery that is a true part of the community, It’s a winery that I can say I would be proud of being part of Napa Valley.
But we haven’t really addressed the impacts on rural areas of someone doing all these types of events. The problem is cumulative impacts: not that one winery is pushing more visitation and events, but that hundreds are, with more continued approvals and proposals in the works. You know, we have two two-lane roads that feed the up valley. At what point do tourism impacts fatally disrupt our ag preserve and the quality of life of the residents who really are the true treasure of the Napa Valley - because the residents keep the ag preserve in place. So I think we have to make sure that the people that live here are happy with the balance.
My concerns are that we need to have an established compliance program in place before we continue approving any new projects or modifications. If, instead of a true compliance program, we continue after-the-fact approvals, we bypass addressing the impacts of the overages, and I’m talking about many, many wineries. And we bypass the CEQA mitigations of the original approvals, creating cumulative impacts that lose any true baseline for where we are. And much of this has to do with visitation. The rules are in place not to be a hinderence to someone’s sucess but, rather, as protection for the more vulnerable within our environment and community. The reason we want to follow the rules is not because of some abstraction or disconnected reason, but because by staying within them we stay in balance with our community and environment.
So the idea of a proper enforcement/compliance program is not about punishment. It’s about balance. If we don’t stay in balance our little boat will tip over. And it is a little boat here.
I believe such a compliance/enforcement mechanism must include production and visitation levels on projects such as this, including water use and adherence to WDO food and hospitality stipulations.
I believe it also must address and include transportion issues, such as bicycle use, tourbus use and levels of alcohol consumption for people leaving a property. The entire system must be included if we are to understand the impacts. Until such a compliance/enforcement program is in place, I urge the planning commission not to approve any new projects or modifications because it’s a question of how we balance the whole system.
Once again we have an example of the damage done to the public by the County's lack of timely enforcement and its acrobatics in trying to rectify its bad practices.
In the Reverie case, the public interest was compromised when the environmental damage from multiple violations and illegal slope grading close to a stream was sanctioned by you moving the CEQA baseline forward.
You justified your acrobatics at the time by invoking a "forgiveness policy", one which as it turned out had been revoked a decade earlier.
Now we have a case where the County knew about a zoning violation and failed to act for over 50 years, once again depriving the public of the protections of the CEQA process by moving its baseline forward as the 2014 court decision enabled it to do.
I am not here today to speak on whether a County sponsored initiative has legal standing or not. My interest is once again how irresponsible and damaging your lack of enforcement is. Napa County continues to be the forgiver, the rewarder, the enabler.
This time the acrobatics you consider involve amnesty to all the violators you failed to control prior to 1969 in order to protect one you happen to favor. To make matters worse, you don't even know who other violators are or what they do. If you knew of them, you should have cited them and if you don't know them, they would be taking a huge risk by coming forward. So, you will never know.
As in the Reverie case, It doesn't matter if the Blakeleys and Kikens of the world are nice people or how many supporters they have because any new zoning or use will run with the land.
When you rewarded Mr. Kiken with millions of additional violation value, he turned around and immediately sold his property to an anonymous corporation. A County sponsored initiative will also reward the Blakeleys with the additional violation value of a rare commercial property in the AG zone. When at one point Mr. Blakeley sells his added value property, we will be back here debating commercial Use Permit applications again and again.
And there is this additional consideration: A County sponsored initiative will place the taxpayer on the hook for the costs of a sweetheart deal. That cost will turn out to be prohibitive because it is certain that in the face of the prior Superior Court settlement, the initiative will be contested. It is not that Mr. Blakely has no alternatives. The system affords Mr. Blakely and his supporters ample opportunity to place the initiative on the ballot and see it through himself.
But to be clear, no matter what the outcome, it will never absolve you from the responsibility of having violated the intent of CEQA and the unmitigated damage to the environment Blakeley's actions have caused.
During the Reverie process, I had contacted the Attorney General's office to make them aware of the County's systemic CEQA process violations. They agreed but invoked lack of resources to pursue it. They advised me to file a lawsuit naming the County as defendant or co-defendant when the opportunity arises.
You may be providing this opportunity today.
Caymus has proposed a perhaps trend-setting approach to the relationship between wineries and their regulators. PBES wants direction. The board wants public comment. It is possibly a new way to deal with the uncertainties for both vintner and the community of the current piecemeal use-permit modification system. Or not. The elements of development agreement will be shaped over the next few months at the planning commission and the BOS.
A few years ago, we noticed a slight sagging on a roof portion of a house we own. We engaged a carpenter to expose the structure below so that we could determine the extent of the underlying damage and obtain the appropriate permits. While this work was going on, a county building inspector happened to pass by. Contending that a re-roofing permit was required, he red-tagged the job and sent the carpenter home.
Such stories are common in this county where regular homeowners are red-tagged for failure to obtain building permits for minor projects, even when parking an R.V. on a prohibited portion of their property. As petty as such conduct may seem, modern societies can only function when all citizens obey their laws.
And most of them do; unless that is, they belong to the Napa Valley’s privileged cast the Supervisors have created: That of violating winery owners. For them, justice is allowed to peek under her blindfold.
Only a few weeks ago, the supervisors gave their blessings to a winery of which much has been written about by legalizing its violations involving converting buildings to other uses, spreading cave tailings on hillsides without grading and erosion control plans and building on stream setbacks, for which ordinary citizens would face fines if not criminal charges.
If this were not enough, this winery had also doubled its production and increased its visitations many times over for many years without permits. During the entire hearings, the winery’s ready buyer was allowed to remain anonymous. Shockingly and as morally offensive as this may be, the county bade the violator farewell by adding millions to his sale.
With such an egregious case receiving the blessing of our supervisors, the floodgates are wide open. So as not to miss the opportunity, another winery north of Calistoga has illegally converted a 2,350-square-foot home into a tasting room and another, south of St. Helena has done so with over 10,000 square feet of structures approved for other uses. No red tags there!
Dozens more are in the pipeline of absolution. The culture of rampant winery lawlessness and unfair competition is thriving in the fertile ground the Supervisors have nurtured.
The county calls this process: “bringing wineries into compliance,” which any normal person in good faith believes to mean: “Compel wineries to adhere to their use permits.”
But to the county in a twisted way, it means: “adjust use permits to fit the violations.” To justify this practice, the Supervisors publicly state that their hands are tied based on the “existing policy of forgiveness” embodied in its March 10, 1998 adopted Manual of Policies and Procedures. The problem is that bowing to public pressure, this policy no longer exists. It was rescinded by them on Dec. 13, 2005 as resolution No. 05-229 but only in name, because they continue to hide behind it and disingenuously justify the approval of violations claiming that this policy of forgiveness is still in force. Two of the sitting supervisors are ones who had signed that rescission.
The suggested violation remedies from the Agricultural Protection Advisory Committee, currently under review by the county, are mere window-dressing designed to silence the outrage because, as incredible as this sounds, some supervisors have publicly stated that compelling wineries to adhere to their existing use permits is: “Out of the question”! What kind of government is one that states that obeying its own laws is out of the question?
Here is a tip: Join the scofflaw cast and invest in “winery violation bonds.” They are the most lucrative risk-free investment, backed by the fully guaranteed of Napa County. Unfortunately, law-abiding citizens need not apply.
More troubling is a conversation gaining traction at private gatherings and dinner tables of ordinary residents. When supervisors accommodate an ethically outrageous culture, offensive to every law-abiding citizen, when the identities of principals are allowed to remain secret, at least to the public, making the vetting of potential improper political contributions impossible, citizens have legitimate reasons to question whether corruption has crept into our political process.
The supervisors must show that they can regain the moral authority to govern and restore faith in a fair and moral political process. The cast system of scofflaws they have created that elevates them to preferential treatment status has place in other societies, not ones we wish to emulate. The supervisors’ seemingly legal acrobatics to justify some of their policies are being exposed. Let the public judge them for what they are.
From: George Caloyannidis
Sent: Thursday, December 17, 2015 12:00 PM
To: Tran, Minh
RE: REVERIE UP 13-00027MOD
Dear Mr. Tran:
Some disturbing procedural facts have surfaced regarding the very foundation on which both the Planning Commission and the Board of Supervisors based their approval.
If you check the record, Commissioners Phillips and Scott stated with no dissenting comments that the application was being considered as a new application without taking into account past use permit violations "as a matter of established policy". The same argument was made by all the Supervisors with the exception of Supervisor Caldwell who stated that he found the policy "disturbing" but "since the policy is what it is, we have to abide by it until we have a different one". Again all Supervisors affirmed that they were bound by "established policy". I may point out that both the applicant's attorneys invoked the same "established policy" at their Planning Commission and BoS hearings and argued that such "policy" was the basis their client had relied on in incurring substantial expenses.
Not one person from Staff to Planning Commission to the BoS questioned the existence of such official "policy".
Shortly before the final BoS hearing on December 8, 2015, I inquired with Mr. Morrison about evidence of such official policy. Following several exchanges trying to unearth a "Zucker Report" adopted by the BoS but not in its complete form anywhere to be found in the County's data base which seems to have been the basis of a policy, Mr. Morrison forwarded to me what he presented as existing policy in the form of a Compliance Policy and Procedures Manual dated 3/10/1998 (attached). Such Manual allowed the continued operation of a winery out of compliance under certain conditions which apparently the Reverie winery met.
What Mr. Morrison failed to inform me about was the fact that this policy was rescinded in its entirety by the BoS on 8/23/2005 (attached) which: "Effectively eliminated the outdated concept of a 'grace' period for code violators". Resolution No. 05-229 states that certain provisions contained in the 1998 Manual: "Are in fact a hindrance and obstacle to effective code compliance efforts, and may not further the objectives of taking appropriate actions on a case by case basis".
Two issues are of substantive importance here:
1) Both the Commission and the BoS presented their decision to the public as one in which they were bound by "existing policy" thereby having limited discretion. The fact is that this was patently false as they themselves had rescinded such a policy thereby assuming full discretion in granting after-the-fact violation permits. I may point out that Resolution No. 05-229 was signed by both chair Dillon and Supervisor Wagenknecht, and yet, both continued to argue that they were bound by a (non-existing) policy. Neither did Staff disclose to the public that such "policy" did not in fact exist. Whether the public was misled for political reasons or by mere ignorance, I refrain to speculate but the fact remains that the public was misled.
2) During the BoS hearing of December 8, 2015, I based my comment on the 1998 Manual forwarded to me by Mr. Morrison and its binding existence invoked by the Commission and the BoS. In my testimony (attached), I argued that the BoS decision was inconsistent with sections of the language in said Manual. Neither Staff not the BoS, while they had ample opportunity once again failed to point out to the public that such manual had been rescinded.
I would most appreciate your response. In the very least I expect that neither the Commission nor the BoS will at any time in the future invoke - in fact hide behind - a phantom "established policy or procedure" in legalizing use permit violations and allow continued operations by such violators. If they chose to do so, it must be made clear to the public that they accept full responsibility.
Finally, I once again want to stress the fact that no matter what the basis of legalizing use permit violations is, it is a practice which patently violates CEQA state law. In fact it is a practice which itself requires CEQA review because it encourages the systemic culture of use permit violations.
The Summers Estate Winery came up before the Planning Commission seeking a "recognize, allow and increase" use-permit modification.
Much of the discussion revolved around the compliance issue of allowing and recognizing past illegal uses. But, as with Reverie and other projects there was outrage that not only was illegal construction being given amnesty, but increases in visitation and capacity over the existing use permit were to be granted as well. Added was outrage over new construction being requested in the 600' setback, a hot-button issue in several past projects.
Chair Phillips cautioned the room full of residents concerned about the continuous stream of "recognize and allow" permits coming up before the commission that this would be common for the next year as wineries seek to clean up their acts in light of the new normal enforcement policies of the county. She didn't want to see the same complaints coming up at each hearing.
The county could, of course dampen the complaints a bit by stating that compliance issues where possible must be cleaned up for at least a year before any new requests for increases in visitation or capacity can be made. In the Summers case it would mean recognizing and allowing the tasting room (assuming it's not over 40% of the operation), and curbing their visitation or making less wine in the next year to comply with the existing permit. And then asking for increases next year.
In his presentation, Jim Summers made the case, which one commissioner described as refreshing, that this was a brand whose reputation and success was earned the old fashioned way - salesmanship on the road and distribution through 3-tier marketing: 80% wholesale, 20% DTC. To be sure the amount of visitation increase requested was modest by the current standards; 20 visitors/day 7500 visitors/year, at least half that for other similar sized wineries. But if Mr. Summers has been successful as a wholesale marketer of wine then why even consider an increase in tourist slots in this hostile climate. This is an opportunity to make the statement that great wines don't need tourists, just as Screaming Eagle, Dominus, Harlan and others have made.
The project was continued until Jan 20th while the staff tries to determine whether Tubbs lane really requires a 600' setback and to see if there are alternative expansions that won't trigger the setback ordinance.
[Email to John McDowell, County Asst. Planning Director]
There has been much discussion involving the nature of winery audits and the information we have received seems to be conflicting. In the interest of avoiding arguments or recommendations based on inaccurate information and since from what we understand, it is the Planning Department which conducts winery audits rather than the Auditor Controller, I would appreciate if you could help set the record straight on the issues below:
1) Is there a department head who leads the audit section? Who is in charge of it within the Planning Department?
2) Audits are performed on a "voluntary basis". What does this actually mean?
3) Audits consist of requesting questioners filed by wineries. Is this correct?
4) If this is correct (the equivalent of a tax return), how are winery statements compared against actual conditions so as to assure their accuracy (which is what the public understands under the word "audit")?
According to the May 12, 2015 Grand Jury Report Lines 247-250, auditors: "Review tours and tasting log books and marketing events...determine how the information was recorded and whether they were in compliance with the use permit conditions regarding visitations". Lacking more specific methodology information, the word "how" does not give us enough assurance that the audit result reflects reality.
5) How is "recorded information" compared against reality, which is what auditing for compliance commonly implies?
The Grand Jury Report Lines 267, 270-271 state that "audits review the following activities":
"Are the number of tours and tasting events within permit requirements?" and
"Are the number of marketing events within permit limits?"
While Line 250 states that the audits include compliance to "visitations", lines 270 and 271 include only tasting events and marketing events compliance but no visitations as a whole.
6) By what method are all visitations being accounted for by an audit?
I would appreciate your enlightenment or your directing me to the appropriate person within the County so that the issue is hopefully settled.
I have read with interest the Planning Commission’s action on the Reverie Winery use permit breaches (Napa Valley Register Saturday June 19, 2015), and I must say, that this is a poster child of what is wrong with the permissive nature of the “build it and seek forgiveness” attitude which has for too long been the policy of this county. I see very little distinction between what has occurred at Reverie relative to a number of breaches of county ordinances/codes and violations of use permit conditions, and the recently disposed, although in an anodyne fashion, the Caves Project. Recall that in the latter matter, the Planning Commission decided to forego the requirement that the property be restored to a condition consistent with the use permit granted the Caves. Specifically, the Planning Commission did not require the removal of the offending tasting pavilion nor the sealing of the cave portal that accessed the tasting pavilion. I think that was the wrong decision but the citizens lost that vote 4 to 1.
Regarding the Reverie Project, I am disappointed to see the Planning Commission’s approval of historical breaches of use permit conditions applicable to this property. How can this decision be justified in light of the Caves decision which was handed down by this very commission only a scant six or so weeks ago. Does this not smack of selective enforcement and does it not open the county to costly legal action by the Caves proprietor whose case was decided completely the other way? Does this not smack of arbitrary and capricious action on the part of county officials? And what of the credibility of this action? How can a citizen plan his or her business decisions when the rules of engagement are so arbitrary and without rational basis? Does this not smack of unfairness?
Leaving such points aside, I want to urge the Planning Commission to reconsider its promiscuous granting of ex post facto approvals of use permit violations. This illustrates my point that the “after the fact” county approval of illegal structures or impermissible activities, is a bankrupt and horrid public policy. Instead of encouraging compliance ab initio, it fosters the view that “I will build beyond my use permit, and if caught (low percentage generally) I will merely seek retroactive approval.” We saw that mind set play out in the Caves hearing. One can only speculate as to how many other scofflaws are out there doing the Caves/Reverie mea culpa shuffle with a wink, a smile and a bag full of money earned through conditional use permit violations. Let’s stop this unlawful activity by not falling prey to the “It’s easier to ask for forgiveness than permission” business model that may be prevalent in the Valley. And let’s not cobble public policy from arbitrary and irrational Planning Commission approvals and disapprovals of similarly situated applicants. This is a poor foundation for effective public policy when it comes to enforcement of use permit conditions that are enacted for the public health and welfare of all the citizens of the county.
The County has to tack a consistent course in similarly situated breaches. I see very little difference between what occurred in the Caves and the breaches that the Planning Commission retroactively laundered in Reverie. It makes no sense and it is bad public policy. The citizens of this county must know the rules of the game and draw comfort from the fact that such rules will be enforced firmly and appropriately against all who violate them without selectively putting the county’s heavy thumb on the scale of justice.
I am certain that the pending sale of this property to the far east investors which own the adjacent property is conditioned on whitewashing all the use permit violations that exist on this property. I am equally certain that the price has been enhanced with an “as built” compliant property than without. The value of the Reverie Property through the retroactive approval of these violations will undoubtedly be enhanced. Should not the citizens of this county be able to capture some of this “newly created value” as a stiff monetary sanction which can then be directed to enhanced county code enforcement? And shouldn’t the citizens of this county, in the public interest, be compensated for the long term breaches of the use permit conditions? After all how else will you get the scofflaws of this county, of which I am certain there are many, to comply with their conditional use permits? Enhanced enforcement and taking the profit incentive out of this lawless behavior will go a long way to returning to conditional use permit compliance and level the playing field for CEQA review and other regulatory oversight.
Allow me to make a modest proposal which I heard recently reverberating around the county halls. Why not simply require all persons found to have violated their conditional use permits in a material way, to revert the property, where practicable, to a state which would comply with the historically approved conditional use permit. Such in terrorem ordinance or sanction would certainly focus the citizens’ attention to their contractual obligations under their use permits. Such proposal provides clarity, is swift in its application, and encourages compliance, unless, of course, the Board of Supervisors, in its infinite wisdom, botches it by its other promiscuities in granting variance permits. On that, more later.
This addiction to retroactive cleansing of substantial use permit violations has to stop. If the county does not do it, perhaps the courts in protracted and costly litigation will. Or perhaps the citizens will take the matter into their own hands and stop at the ballot box this culture of blatant abuse of power.
Please read the Editor's Note at the end of Christine's letter whereby the County in its official response says: "The current owners are following the established legal process for requesting significant changes to their use permit and the county has no basis to preemptively reject such a request without a fair hearing". How outrageous!
So, the established legal process for violating the law (not alleged violation in this case) is not to impose any penalties or sanctions but to consider legalizing the violations. One can guess what the outcome will be.
Is this the role of a government we elected to create and uphold the law?
On Mar 3rd, Director Morrison made a report to the BOS on county efforts to enforce provisions of the WDO. The agenda letter is here
It was pointed out that winery related complaints were a very minor part of the complaints received by the department. He significantly said that he didn't feel that enforcement efforts pay for themselves, that the fines are never enough (even given the $1 mil fine payed by Caymus for its egregious overproduction) to cover the administrative costs of an enforcement program. Supervisor Luce, perhaps in jest, suggested instead a "wall of shame" that scofflaws would be publicized on - perhaps on the new County website. Our David Hallett rose to second Supervisor Luce's motion. We'll see.
I have sent the following note to Supervisor Pedroza. He responded that he’d call the president of Luna and discuss this with staff. "The issue of compliance/enforcement has my attention as well. I will follow-up with the who, what, & how we plan to address it.”
I just took this picture. You know things are out of control when car sales have moved from Soscol to a winery (Luna) on Silverado Trail (@ Hardman). Why would anyone think it was acceptable to do so? My guess is that they know that there will not be any consequences from the county. Over the past few months we have heard members of the farm community tell you that there needs to be more effort at compliance/enforcement of permit restrictions.
The fact that the county sends out a questionnaire (it’s not a real audit) and then gets responses that show 40% are out of compliance ought to lead to some action. But, we haven’t seen it yet. The county has an obligation to enforce compliance to permitted conditions. I hope that you will let me know how many such compliance officers the county has and how many will be budgeted for in the next budget.
There will be those who will challenge any attempts we make to rain in growth by declaring, as Dillon and others have, that the economic well-being of the county depends upon the wineries/AG. I think it is important that we dig into the numbers.
When I look at the county’s budget I see 25% comes from property,sales and other tax. I guess that the tourists bring in $$ via the TOT which I suppose is “other.” 25% comes from intergovernmental revenue [state funds?]?
So, prior to the loosening of the WDO how much tax revenue came from winery sales? how much now comes from DTC? how much comes if someone in another state orders on line from a mega corp such as Constellation who is headquartered in NY? And most important, what would happen if we never approved another winery?
How does employment at the wineries affect the county budget? Most get paid minimum wages and live elsewhere.
So from a cold numbers perspective, how does the county benefit from the wineries? What if the wineries made shoes would the $$ change? If the land were sold for housing wouldn’t the county “make more” in property taxes? I think we need to be clear on the financial arguments.