Boutique winery ordinance rescinded due to lawsuit threat

The County of San Diego’s boutique winery ordinance was rescinded May 14 by an emergency ordinance approved by the San Diego County Board of Supervisors.

The ordinance which had been approved April 23 would have taken effect May 23 and would have allowed tasting rooms and on-premise wine sales by right for boutique wineries on agriculturally-zoned land accessed by public roads and with conditions for such wineries accessed by private roads.

On the afternoon of May 8 the county received a notice of an intent to sue for California Environmental Quality Act (CEQA) violations from environmentalist attorney Marco Gonzalez on behalf of San Diego Citizenry Group.

Gonzalez indicated that he would file a lawsuit during the week of May 12 unless the county vacated its April 23 approval.

The urgency ordinance to rescind the boutique winery ordinance was added to the May 14 agenda as an off-docket item, and the supervisors approved the rescission by a 5-0 vote.

“We really had no choice,” said Supervisor Dianne Jacob.

“The small wineries took a big step back today,” said Carolyn Harris, the secretary and general counsel of the Ramona Valley Winery Association. “I’m afraid this is going to continue to happen to us over and over again.”

On March 7 the county’s Planning Commission heard the proposed boutique winery ordinance and recommended passage of a compromise proposal while also voting to approve an environmental Mitigated Negative Declaration for the ordinance, meaning that with mitigation measures included in the conditions no significant environmental effects will result.

The ordinance was slated to go to the Board of Supervisors on March 26, and the March 21 Planning Commission hearing initially was to have discussed minor revisions.

As Department of Planning and Land Use (DPLU) staff was preparing the board letter for docketing at the Board of Supervisors meeting, DPLU felt that additional changes were warranted.

DPLU also determined that insufficient notice of the March 21 hearing was provided, so the Planning Commission voted unanimously to continue the hearing to April 4.

After evaluating all of the information received and conferring with County Counsel, DPLU also determined that an Environmental Impact Report (EIR) would be needed to address potential noise, traffic, and groundwater impacts from by-right on-premise sales and tasting rooms at boutique wineries.

The Planning Commission voted 4-3 April 4 not to recommend an EIR for the proposed boutique winery ordinance.

The decision whether to require an EIR or to accept a Negative Declaration or Mitigated Negative Declaration is a discretionary matter, although a defect in the Negative Declaration, for example omission of an archeological site, would require an EIR.

The supervisors’ April 23 vote also approved the Mitigated Negative Declaration.

In their request to adopt the urgency repeal, DPLU staff stated that potentially significant environmental impacts were identified which could threaten the public health and safety and which required additional CEQA review.

“I was dismayed to see the DPLU claim health and safety risk,” Harris said. “They’re piling on here.”

During the April 23 hearing County Counsel indicated that liability was not an issue addressed by CEQA.

CEQA review would also address only the on-site sales and tasting and not the wineries which are already allowed by right on agriculturally-zoned areas.

Although the supervisors rejected the recommendation of county staff for an EIR for boutique wineries to operate by right on public roads, the supervisors’ April 23 vote also directed county staff to develop ordinance language for larger wineries and to prepare the necessary environmental documentation for the tiered approach.

An EIR for the four-tiered system will include an impact report for the boutique wineries, so the environmental studies for the ability of the boutique wineries to open tasting rooms and have on-site sales have already begun.

“That’s already in progress,” Jacob said.

The ordinance adopted April 23 allowed boutique wineries on agriculturally-zoned land to have by-right Internet, phone, and mail sales. The rescission of the ordinance also removes that allowance.

“All the baby was thrown out with the bathwater,” Harris said.

Harris believes that a modification to allow for such by-right off-premise retail sales will be approved at one of the June meetings of the Board of Supervisors. “I’m confident that they’ll get that back in next month,” she said.

Jacob expects that a June meeting will also allow for passage of the alternative proposed by DPLU and County Counsel and rejected by the Planning Commission and the supervisors.

That alternative would require an Administrative Use Permit for boutique wineries on both public and private roads while the EIR is in progress.

The next land use meeting of the Board of Supervisors is scheduled for June 18.

“I’m confident of their continued support,” Harris said of the Board of Supervisors. “We can get through this.”