Just adjacent to the Calistoga Hills Resort, on Diamond Mountain Road, is the Reverie Winery, now at the epicenter of the "enforcement" debate in the valley by asking the county to "recognize and allow" its unpermitted construction and visitation. The county did so, and, in fact, the Planning Commission actually increased the allowed visitation numbers from those that the planning department determined were the current being hosted. This property is in the process of being bought by the Calistoga Hills developer, making the "allowance" of its illegality a necessity.
This was a modest victory for Mr. Caloyannidis and for us all. Visitation was reduced, after some horse trading by the Supervisors, from 10,200 down to 5640 visitors per year, or from 3900 down to 2200 cars passing through American Canyon and St. Helena each year. Of course 2200 is still 1800 more cars than their original use permit allowed.
The issue of cars versus other forms of transport came up. Supervisor Luce started pushing an idea that was first heard during the discussion on the CEQA small winery definition at APAC and the planning commission. The definition doesn't specify any numbers for visitation but establishes a 40 vehicle trips/dayr limit for all vehicles entering the winery, visitors, employees, deliveries, etc. The commissioners passed the small winery definition on to the Supervisors with the proviso that it also include a 15 visitor/day limitation on visitation. Under the county formula 15 visitors would represent about 6 cars, or 12 vehicle trips out of the 40. Without the visitor limit, those same 6 vehicles could be 50-passenger buses, representing 300 visitors/day.
It was in this context that Sup. Luce's comments at the hearing struck me as a little ominous. Supervisor Luce was the lone wolf on the Board this time. The other supervisors favored Option 2 from the Jun 3rd agenda letter: keep the illegal improvements in place but deny visitor entry to the caves and deny any increase in the visitation from the legal use permit maximums of 20 vis/day and (oddly) 20 vis/wk. (Sup. Dillon wanted even stronger sanctions.) Sup. Luce felt that the original decision of the Planning Commission should stand.
But he also brought up the issue of a different metric for winery visitation that might be used going forward: vehicles rather tourists. He made it clear in his "dissent" that he felt increased visitation was a sign of economic health and should be encouraged, but that it was traffic that needed to be mitigated. He implied that encouraging buses rather cars would allow equal visitation with less traffic. It would, of course, also allow increased visitation with the same traffic.
And as Mr. Caloyannidis pointed out later, such a solution at Reverie would actually increase traffic in the valley because all the cars would still come, perhaps as far as the Calistoga Hills resort, and then another fleet of limos or buses would be required to move them around. The only realistic approach would be to corral the visitor cars (and employee cars) at the entrance to the valley and have shuttle bus or light rail transport from there. The approach of limiting cars in favor of limo transport to the wineries would, of course be a huge boone to the limo companies, a business already beginning to control access to the hundreds of small wineries around the county.
In March, Sup. Luce dismissed traffic as a good problem representing a robust economy, so it seems here that he is seeking a solution to that good problem that doesn't inhibit its cause. I am still trying to square, however, this enthusiastic support of tourism with his previous call to eliminate future wineries in the AP zone. I'm not sure I can.
On last thing. Ginna Beharry made a final statement on behalf of the public speakers that should be repeated in essence at the end of every public comment period of every project going forward. She said:
I just wanted to briefly point out, if you listen to the comments that have been made up to this point, most if not all of the comments in support of Reverie have been made by people who have a financial interest. And that will be also true of the attorneys who speak to you shortly. They are drivers who bring people to the winery, they are people who worked at the winery, they are fellow vintners who have financial interests in seeing their business succeed. While on the other hand those that are speaking in support of the appeal have spent their own time without compensation and have actually spent a lot of their own money to ask you to do the right thing. We have to understand what our biases are here and I think if you look at the people who are supporting the appeal it's a much more difficult and much less self-interested thing to be doing. It's not fun, it's not cheap. but we're still here.
The Reverie Winery appeal is coming up before the Board of Supervisors on Oct 13th. It has become a cause célèbre in the community pushback against wineries expanding illegally and then asking the county to "recognize and allow" their illegal activity (in this case in order to be able to sell the property. Also in this case the illegal visitation was not only allowed but was increased several fold!) You are encouraged to attend. More on the Reverie Winery is here.
[email sent to John McDowell, with copies the Heather Phillips and Anne Cottrell]
I have read with interest the Reverie staff report, 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 PC decided to forego the requirement that the property be restored to a condition consistent with the use permit granted the Caves. Specifically, the PC 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 staff report recommending the conditional approval of historical breaches of use permit conditions
applicable to this property. I shall refrain from engaging in ad hominem arguments to burnish my points here but I suppose the blithe disregard of those conditions by the operator certainly opens a window into the moral fiber of an operator of a business enterprise that would engage in so many sustained and long standing violations for which he now seeks "papal absolution". Certainly it was not by accident that a second story was added to the property and certainly it was not by chance or careless error that the visitations and events were exceeded from the numbers approved in the use permit. And of course, one cannot ignore the malfunctioning septic system that has been in use for years. This was volitional action that the county must neither countenance nor approve.
Leaving such points aside, I want to urge the PC to reconsider its promiscuous granting of ex post facto approvals of use permit violations. Reading between the lines here, I think this winery probably got caught up in an enforcement action or audit proceeding and thus had to "fess up" and seek retroactive approval of its illegal activities. I point this out to illustrate my point that the "after the fact" county approval of structures or impermissible activities, is a bankrupt and horrid 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 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 anecdotal testimonials from neighbors about what a "great person and neighbor" the violator is. This is 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.
Unlike the Caves matter where the staff provided the PC a palette of choices from which to craft a cogent and enforceable decision, here I find it extraordinary that you are recommending the very thing that was decided opposite in the Caves. Does not this smack of selective enforcement? Would not the County be found vulnerable to an attack about selective enforcement? How can the Caves be required to stop its operations for a year, and yet in Reverie you are recommending retroactive approval (or as you euphemistically call it "recognition") of activities that, but for the sharp eyed audit of this entity, would have gone unnoticed. 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 your report seeks to retroactively launder 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.
Please reconsider your recommendations and enforce the use permit conditions aggressively and effectively. Doing otherwise would cause the citizens of this county to lose (if not already lost) faith in its policy making processes and those who govern them. And when that faith is lost it is hard to rebuild and recapture.
In sum, I want to remind you of a few equitable principles in the California Civil Code. They go something like "No one can profit from his own wrong" and "Those who seek equity must come to [the county] with clean hands" Civil Code Section 3517 and Kendall-Jackson Winery Ltd. V. Superior Court (1999) 76 Cal.App. 4th, 970, 978. 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 property through the proffered 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 sanction to be directed to enhanced 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 permit? Enhanced enforcement and taking the profit incentive out of the violative 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. The letter from the Law Firm of Abbott & Kindermann, LLP dated April 29, 2015 and addressed to the Board of Supervisors and the Planning Commission, succinctly stated the confounding problem of retroactive whitewashing of use permit violations: "In short, the County's failure to enforce its code, allowing ongoing violations and issuing after-the fact [sic] permits, encourages more violations. …[T]his process is having the practical effect of allowing these winery owners/operators to skirt CEQA compliance. They do so by claiming that a new and elevated 'baseline'-created by the code violations that have been allowed to continue for years at a time-must be considered for purposes of the CEQA analysis of the after-the-fact permit."
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 historically approved conditional use permit. Such in terrorum 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 BoS, in its infinite wisdom botches it by its other promiscuities in granting variance permits. On that, more later.
Finally, I have read with great interest the learned and substantive letter addressed to you by Mr. George Caloyannidis dated May 18, 2015, the contents of which I adopt herein as though fully set forth in this email to you. In addition, I would like to have the above referenced and previously submitted Abbott & Kindermann, LLP letter dated April 29, 2015 and part of the Caves administrative record noticed by the PC under Evidence Code Section 452 et seq. as though fully set forth in this hearing.
Another winery operating beyond the boundaries of their use-permit wants both recognition of illegal improvements and setback encroachments as well as increases in allowable capacity (80%) and visitation (900%). The project is near Calistoga, just behind the Calistoga Hills resort. It will come up before the planning commission on June 3rd.