Napa County Appoints Agricultural Protection Advisory Committee

Last week, the Napa County Board of Supervisors appointed members to the recently-formed Agricultural Protection Advisory Committee (“APAC”). APAC is an advisory body of the Napa County Planning Commission, and it was formed in order to evaluate and make policy recommendations on Napa County’s Winery Definition Ordinance and other regulations governing winery development within Napa County. DP&F is pleased to have Jeff Dodd, a land use and water law attorney at the firm, sit on the committee as an alternate member.

APAC will meet semi-monthly beginning on April 13 and is scheduled to deliver its policy recommendations to the Napa County Planning Commission on September 2. These policy recommendations will involve the following topics:

  • Minimum parcel size for new wineries
  • Minimum percentage of grapes used in the winery to be grown on-site (i.e. an estate grape requirement)
  • Requirement that new or expanded wineries result in no net loss of vineyards
  • Requirement that a majority of winery employees be directly engaged in vineyard or production operations
  • Permissibility of variances for road and stream setbacks for new wineries
  • Requirement that wineries include the number of temporary events in their use permit approval as part of its marketing plan
  • Development standards for wineries located in the Agricultural Preserve and Agricultural Watershed zoning districts

APAC meetings are open to the public and provide for public comment on matters before the Committee. To stay up-to-date on APAC’s schedule, activities, and agenda items, click here.

Napa Lot Line Adjustments and Involuntary Mergers

By Tom Adams and Mark Phillips

The Napa County Public Works Department is in the process of preparing amendments to the Subdivision and Zoning Ordinance as it relates to lot line adjustments and certificates of compliance. The changes originally proposed by staff were minor and did not warrant comments. However, during the “stakeholder” review of the changes, the Napa County Farm Bureau suggested that Napa County take this opportunity to amend the merger ordinance to implement the Napa County specific enabling legislation in the Subdivision Map Act (“Map Act”) the state approved in 1997 in recognition of Napa’s extraordinary agricultural land value.

Under the Map Act, Napa County can adopt an ordinance that would authorize the County to require the “merger” of an undeveloped “substandard parcel” as a condition for issuance of a permit or development approval for a contiguous parcel located in the agricultural zoning district and held in common ownership on or after January 1, 1998   A “substandard parcel” is one  that does not meet the current minimum parcel size; generally 40 acres on the valley floor and 160 acres everywhere else.  There are certain exemptions under the Map Act for:

  • Parcels that were created before 1/1/1997 that have been recognized by a certificate of compliance or conditional certificate of compliance.
  • Parcels created by a recorded subdivision or parcel map on or after 12/29/1955.
  • Parcels lawfully created by Record of Survey prior to 2/27/1969.
  • Parcels that have had a consolidated legal description that includes the merger of any underlying parcels that may exist.

(See Government Code Section 66451.22)

County staff is recommending that the Napa County Board of Supervisors refer this request to its legislative subcommittee for consideration. Given the impact that this could have on property values if the County decides to adopt these provisions, property owners should be advised to contact legal counsel to take the necessary steps to confirm that they either meet the exceptions or take other actions necessary to prevent or decrease the likelihood of being subjected to involuntary merger in the future.

Napa County Winery Audits: What are the odds?

Each year Napa County sends out notices to 20 wineries that they have been selected to be subject to the annual winery audit for compliance with their individual use permits.  The County sent out its most recent notice on January 17, 2014 asking for information about annual production, visitation and custom crush activities.  The letter requests that the information be submitted within 20 days of receipt of the letter, so most of the wineries will have already responded by now.  Planning staff will compile the information and present it to the Planning Commission this summer.
After the Commission considers and discusses this year’s audit they will select a new list of 20 wineries for next year’s audit.  The names of the audited wineries are kept confidential.
Some winery owners may wonder what the chances are they will be picked for an upcoming audit.  With over 430 permitted wineries and only 20 selected to be analyzed, some owners may be comfortable that the chances are fairly slim.  Actually, they should not get too comfortable, because once selected for an audit, a winery is exempt from future audits for the next 7 years.  That means that 140 wineries are ineligible for being audited in any given year, which increases the chance of the remaining wineries to be chosen.  On average, about one out of every 14 wineries will be chosen to be audited in any given year.

St. Helena City Council Rescinds Amendments to Small Winery Ordinance

St. Helena’s City Council unanimously voted to approve an emergency ordinance repealing recently passed amendments to the Small Winery Ordinance. We wrote about this matter earlier in the week. Tuesday’s vote prevents the amendments from being put on the November ballot as a referendum item, and effectively reopens debate regarding the proposed amendments.


A video of Tuesday’s meeting is available on the City Council website.


St. Helena City Council Will Consider Rescinding Amendments to Small Winery Ordinance

St. Helena’s City Council will hold a hearing on Tuesday, February 11 to consider repealing amendments to the Small Winery Ordinance approved just a few weeks ago after a months-long process.
From May – August 2013, the St. Helena Planning Commission held four hearings to consider amending provisions of the St. Helena Municipal Code that govern small wineries, and ultimately recommended that the City Council adopt an ordinance to amend the Municipal Code.  The City Council also held a number of hearings starting in September 2013 to consider amendments to the Municipal Code.  On December 10, 2013, the Council introduced the proposed amendments, and on January 14, 2014, the Council approved them by a 4-1 vote.  The amendments (contained in Ordinance Nos. 2014-1 and 2014-2) were to go into effect 30 days thereafter. 
During the Council’s January 28, 2014 meeting, opponents of the Ordinance urged the Council to rescind the Ordinance and stated that they were circulating a referendum petition to place the Ordinance on the November ballot as a referendum item.   If the petitioners gathered the required number of signatures, the Ordinance will be suspended pending the outcome of the November vote.
Last week, St. Helena’s interim planning director submitted a staff report recommending that the Council repeal the Ordinance and “reopen the review process to encourage an even broader community involvement and attempt to find new alternatives addressing most if not all concerns of the public.”  The Staff Report as well as the amendments approved on January 14, 2014 can be found here:
The City Council meeting is open to the public, and will commence at 6pm at Vintage Hall on the campus of St Helena High School, 465 Main Street.  The agenda for the meeting can be found here:

Aggressive State Stream Diversion Enforcement Comes to Napa River Watershed

A number of property owners in Napa County, including wineries, recently have received a form letter from the State Water Resources Control Board entitled, “NOTICE OF POTENTIAL UNAUTHORIZED DIVERSION AND USE OF WATER, AND FAILURE TO FILE A STATEMENT OF WATER DIVERSION AND USE FOR DIVERSION OF WATER IN NAPA COUNTY.”
The letter states that the Board has identified a reservoir on the subject property that appears to be on a “class I, class II, or class III stream,” but has determined that there is no record of a permit authorizing diversions from the stream into the reservoir.  (A class I stream is a stream where fish are always or seasonally present, a class II stream is a stream where fish are not present but certain aquatic species exist (frogs, salamanders, benthic insects), a class III stream does not support aquatic life.)  The notice spells out the various civil fines for unauthorized stream diversions ($1,000 for failure to file a statement of diversion, plus $500 per day the violation continues if a statement is not filed within 30 days of Board notice), and gives the property owner three options:
1.         Prove that you no longer own the property, or that there is in fact no reservoir on the property;
2.         Prove that you indeed do have the appropriate permit or water right authorizing the diversion, or that you have been filling the reservoir with purchased water, groundwater, or other water not subject to the Board’s jurisdiction; or
3.         Take corrective action within 60 days.
What is “corrective action?”  The Board states that, “[n]ormally, an unauthorized diversion can be stopped, removed, rendered incapable of storing water, or legalized through the appropriative water right permit process.”   Unfortunately, if a property owner wishes to apply for a permit to legalize an existing unauthorized diversion, the Board’s “Policy for Maintaining Instream Flows” (see here: states that after May 5, 2011, it will no longer approve water rights applications for reservoirs built with an onstream dam on streams designated as a class I or class II stream (see definitions above).
There is also the question of whether the Board is even correct in assuming that the subject reservoirs are the result of stream diversion.
The Board’s website may be found here:
For more information or further assistance on land use or water law matters contact Dickenson, Peatman & Fogarty at [email protected]
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California ABC Announces On-Sale Liquor Licenses for Napa County

The California Department of Alcoholic Beverage Control (ABC) announced authorization for the issuance of five (5) original on-sale general liquor licenses for bona fide public eating places in Napa County, as authorized in Section 23826.10 of the Business & Professions Code. These licenses are to be issued only to premises having a seating capacity for 50 or more diners. The fee for a new on-sale general license is $13,800

The filing period for the licenses available is from September 12, 2011 through September 23, 2011.  If ABC receives more applications than there are licenses available, a public drawing will be held. To participate in such a drawing, an applicant must have been a resident of California for at least 90 days.
For more information or assistance on applying for such license contact Dickenson, Peatman & Fogarty at [email protected].
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Fight Continues Over Lot-Line Adjustments in Napa County

The Sierra Club and a Napa resident have filed separate appeals of two Napa County Superior Court rulings that upheld Napa County’s policy on allowing “successive” lot-line adjustments involving four or fewer parcels.
The County’s policy on lot-line adjustments first came under assault in connection with long-time grape grower and vintner, Will Nord, whose company, Calness Vintners, represented by Dickenson, Peatman & Fogarty, applied to reconfigure six existing legal parcels in the unincorporated area of Napa County on the eastern boundary of the Town of Yountville.  Residents of an adjacent residential subdivision, led by Carol Vendrillo, appealed the County’s ministerial approval of the second of two lot-line adjustments, claiming that State law required approval of a discretionary subdivision map.  The Napa County Board of Supervisors unanimously rejected the appeal, and Vendrillo sued.
Following Vendrillo’s lawsuit, the Board passed an Ordinance clarifying the County’s longstanding policy of allowing approval of lot-line adjustments to occur in succession as long as the prior lot-line adjustment had been recorded.  The Board’s rationale was that the State Subdivision Map Act is silent on the issue, leaving local governments free to decide whether to allow successive four-parcel lot-line adjustments or whether to “aggregate” the parcels previously involved in a lot-line adjustment with the parcels currently proposed for adjustment and require a subdivision map.  (A subdivision map is required where five or more parcels are being reconfigured and is a discretionary approval requiring CEQA review.)  The Sierra Club filed suit against the County over the Ordinance.
The November court rulings on both challenges firmly sided with the County.  According to the Court, “[I]f the legislature had intended to bring all sequential lot line adjustments within the purview of the Map Act, it easily could have used alternative language to make that intention clear.”  The ruling in the Sierra Club case also called out plaintiff’s counsel’s inability “to answer whether the court should also interpret into the statute a time limitation as to when the previous adjustment might have occurred.”  In other words, opposing counsel did not answer the question of whether lot-line adjustments occurring 5, 10 or 100 years apart should be considered “successive?”
For more information or assistance with land use matters in Napa County contact Dickenson, Peatman & Fogarty at [email protected].
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