Grading Permit Ruled a Ministerial Act Beyond CEQA Although Limited Exercise of Discretion

Sierra Club v. County of Sonoma (2017) Cal. App. LEXIS 375

In Sierra Club v. County of Sonoma, a California court declined consider the issuance of a grading permit to be an act subject to CEQA, despite that the ordinance gave County officials a degree of discretion in determining whether or not to grant the permit.

Under the county’s grading ordinance, persons were required to secure an “erosion control” permit before planting a vineyard.  The permit process required applicants to submit grading and drainage plans, biology reports, and other information as needed, as well as to submit to a site inspection by county staff guided by a lengthy checklist.  After complying with this process, the applicant was granted a permit to install vineyards on 108 acres of rangeland.  The County decided the permit was exempt from CEQA as a ministerial act. 

The Sierra Club challenged the permit, arguing that the grading ordinance as a whole conferred a degree of discretion to grant or deny the permit that warranted CEQA review.  The Sierra Club also stated that specific determinations made by county staff under the ordinance (as to: wetland setbacks, location of storm water discharges, use of natural drainages) afforded staff the ability to mitigate the activity in ways that were non-discretionary and could be meaningfully reviewed.

The court rejected the challenge.  The discretion applied by county staff to the permit was, according to the court, too narrow and technical to trigger CEQA. The court explained that “consideration of the [application] was confined by a series of finely detailed and very specific regulations.” Distances to setbacks, for example, did not involve the type of “meaningful discretion” that characterized discretionary action subject to CEQA. 

The decision confirms that local approvals do not cross the line from ministerial to discretionary merely because they require the exercise of some discretion by agency staff.  Where discretion is confined to technical issues arising under prescriptive ordinances, these actions continue to be beyond CEQA’s reach.

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Sean Hungerford’s practice includes the regulatory and environmental aspects of natural resources law, with an emphasis on resources development, water quality issues, and development rights. His practice extends to all aspects of land developm… Read More

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