Supervisors approve EIR for winery ordinance, Phone, mail, Internet sales permitted by right

Although the County of San Diego ordinance allowing some boutique wineries to have tasting rooms and on-premise wine sales by right was repealed, a replacement ordinance returns the provision allowing boutique wineries on agriculturally-zoned land to have by-right Internet, phone, and mail sales.

The replacement ordinance approved June 18 by the San Diego County Board of Supervisors allows boutique wineries on agriculturally-zoned land to have tasting rooms and on-premise sales with an Administrative Use Permit. The AUP requires a process not involved in by-right activity but is considered to be less extensive than the Major Use Permit currently required. The new ordinance is scheduled to take effect July 18.

The supervisors’ 4-0 vote June 18, with Supervisor Ron Roberts absent, also restored the previous directive to county staff to develop ordinance language for a tiered set of regulations also covering larger wineries and to prepare the necessary environmental documentation for the tiered approach.

“This action today will move us forward. It is a big step,” said Supervisor Dianne Jacob.

In February 2007 the Board of Supervisors directed county staff to return to the supervisors with an ordinance which would exempt wineries producing no more than 12,000 gallons per year and on agriculturally-zoned land from discretionary permits. The supervisors’ February 2007 action also created four new types of wineries based on production volume. Because no winery in unincorporated San Diego County currently produces more than 12,000 gallons annually, county staff worked on the boutique winery ordinance first.

Public hearings revealed concerns from private road residents that all owners of a private road may be liable if an accident occurs and that trips to wineries may create a disproportional burden on private roads for which all owners share maintenance cost responsibility. Eventual language in the boutique winery ordinance 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.

The ordinance was approved April 23 by the Board of Supervisors along with an environmental Mitigated Negative Declaration, meaning that with mitigation measures included in the conditions no significant environmental effects would result. The ordinance was scheduled to take effect May 23, but on 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.

An 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.

The rescission also eliminated the phone, mail, and Internet sales which were authorized by right, and the motion approved April 23 also included the direction to county staff to proceed with the tiered ordinance structure and the associated environmental documentation.

“I think all of us up here are frustrated also, but I think it’s important to get it done right,” Jacob said. “We will have a defensible document.”

The ordinance adopted June 18 is considered an interim ordinance until completion of the Environmental Impact Report allows for by-right sales for boutique wineries on agriculturally-zoned land. The Environmental Impact Report is expected to take between 18 and 24 months. “We’ll find every way that we can to reduce that schedule and still result in a legally defensible environmental document,” said county Department of Planning and Land Use interim deputy director Jeff Murphy.

The administrative costs for an Administrative Use Permit total approximately $5,000 while the administrative costs for a Major Use Permit equate to approximately $15,000. The costs do not include those for any environmental studies required. An Administrative Use Permit decision is made by the Department of Planning and Land Use director without a public hearing, although it can be appealed to the county’s Planning Commission and a public hearing would be involved. A Major Use Permit decision is made by the Planning Commission with a public hearing and can be appealed to the Board of Supervisors. The Administrative Use Permit process takes 45 days to six months if no Environmental Impact Report is required, while a Major Use Permit is estimated to take six to twelve months if a Negative Declaration can be accepted.

Because the cost of the permits increases the investment payback period, the interim ordinance also reduces the percentage of grapes which must be grown within San Diego County. The new ordinance maintains the requirement that at least 25 percent of grapes be grown on the premises, but the requirement that 75 percent of the fruit be grown in San Diego County was reduced to a 50 percent threshold for the interim ordinance.

“Seventy-five percent is pretty high for the amount of cost an AUP is going to need,” said Bill Schweitzer, the president of the Ramona Valley Vineyard Association (which includes growers who do not produce their own wine). “In the interim, yes, you need a little bit more relief.”

Ramona resident Don Kovacic recommended not to issue any Administrative Use Permits until the Environmental Impact Report is completed, noting that the EIR results may prevent boutique wineries from operating.

Ramona resident Carol Angus requested that the Environmental Impact Report include the wineries’ impact on the Multiple Species Conservation Program. Angus also noted that the current Administrative Use Permit procedure only requires the notification of 20 property owners. “That is totally inadequate for this kind of impact,” she said.

Angus believes that all parcels on a private road should be noticed. “Staff has no idea which areas are gated communities,” she said.

Angus noted that the supervisors’ December 5 action included direction to county staff to review the liability issue. “We still don’t have an answer,” she said. “Putting the public on private easements is an issue.”

Carolyn Harris, the secretary and general counsel of the Ramona Valley Winery Association, appreciated the direction to proceed with the EIR for the full-tiered system. “That is the way to accomplish what we’d like to do,” she said.

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. Harris took exception to the claim of public health and safety threats. “We feel it is totally not true,” she said. “There’s been no evidence at all.”

The declaration of a public health or safety threat was necessary to approve an urgency ordinance.

“Just purely the threat of a lawsuit can devastate people’s dreams,” said Ramona Chamber of Commerce vice-president Ralph Mittman. “They just have to threaten it, and they can stop people from doing it.”

Mittman questioned whether opponents would be satisfied after an Environmental Impact Report was certified. He also noted that both the Major Use Permit and the Administrative Use Permit were discretionary processes. “It’s like getting sent to the electric chair and getting a choice between AC or DC,” he said.

Mittman was in support of the interim ordinance allowing for boutique winery on-premise activities. “This makes total sense for an agricultural area,” he said.

Beth Edwards of Edwards Cellars grows petit sirah and cabernet on three acres in Ramona. “I really hope that you push for a fast and speedy EIR,” she said. “I’d like to sell my 60 cases of wine sometime before they’ve aged way beyond their time.”

Edwards noted that the Administrative Use Permit costs are most onerous for the wineries with the smallest production. “It doesn’t make a good business plan,” she said.

“This Administrative Use Permit is pretty tough on the smallest of wineries,” said Richard McClellan, whose three-acre Ramona vineyard grows eight varietals but does not operate a winery. “If you’ve got $2 million to burn and a decade to wait, you are welcome in San Diego County.”

San Diego County Farm Bureau executive director Eric Larson noted that promotion of local wineries also encourages low-water grape crops. “We need to find crops that will survive here on lower amounts of water,” he said. “We certainly have to support those crops which have less demand on water.”

Larson noted that despite opposition to farm operations in San Diego County, farmers have maintained their land in agriculture. “The farmers are still here,” he said. “They do want to establish these farms and be successful.”

Supervisor Pam Slater-Price noted that local agriculture provides benefits in addition to the economic crop yield and the local supply of food. “It permits us to keep some of these beautiful open vistas that everybody loves,” she said.

Slater-Price warned opponents not to make farming economically infeasible. “All the land that’s fallowed will then become available for sale for development,” she said.

“If you want to find a good crop to plant I suggest maybe cell towers or houses,” said Supervisor Bill Horn, who has been a professional citrus and avocado grower since 1970.

Horn wanted assurance that the $5,000 Administrative Use Permit cost estimate wouldn’t be exceeded. “I want that to be the finish,” he said.

“I want to make sure we examine these fees,” Horn said. “I just don’t like to see us, the county, be the onerous part of the process.”

Jacob noted that the Administrative Use Permit was the best available alternative. “The only other option is the Major Use Permit,” she said.

“We’ll try it. We’ll be watching very carefully those who go through the process,” Jacob said of the Administrative Use Permit.

“Anything we can do to preserve ag in San Diego County, the Board of Supervisors needs to do,” said Board of Supervisors chair Greg Cox.

“In the end I feel confident the County of San Diego can reach the long-awaited goal,” Jacob said.