A California state appeals panel has ruled Mendocino County wrongly let a gun club in Ukiah move forward with a project to build a new gun range without environmental review under a state environmental quality law, so a nearby historic hot springs resort can continue to sue to use that law to force the club to make potentially costly changes in the name of reducing contamination from "increased bullets."
On March 29, a three justice panel of the California First District Court of Appeals in San Francisco ruled a judge in Mendocino County Superior Court wrongly entered judgment in favor of the city of Ukiah and Mendocino County in the lawsuit brought by the owners of the Vichy Springs Resort.
The resort had filed suit against the city and county in 2018.
The lawsuit centered on the Ukiah Rifle and Pistol Club's project to demolish its then-existing shooting range and develop a new larger one, still on the land in unincorporated Mendocino County, but owned by the city.
According to court documents, Vichy Resort contended it feared the expanded shooting range would have negative impacts on the surrounding region and on the environment, from both increased traffic and alleged increased contamination of soil and water in nearby streams from lead and other sources as a result of more shooting sport activities at the gun range.
Specifically, Vichy contended the city had wrongly approved the project, while the county had wrongly asserted it had no regulatory power over the project. Vichy also argued the project should have come under more stringent regulatory scrutiny under the California Environmental Quality Act (CEQA.)
However, while the case was pending, Vichy never sought an injunction to stop the project, and the Ukiah gun club completed the project under an agreement with the city and county.
In response to the lawsuit and Vichy Resort's appeal, the gun club, the city and county all contended the completion of the project without interruption from the courts should essentially negate the demand for further environmental review under CEQA.
While a Mendocino County Superior Court judge backed the gun club and the local government defendants, the appeals court said the lawsuit was wrongly stopped.
The appellate justices said the county was wrong to determine it had no power to review the and regulate the project, just because the project was being developed on land owned by the city of Ukiah. The county contended the city's property is exempt from its building regulations and review powers.
And the appeals court said the lower court was wrong to declare the CEQA law either never applied to the project, or can't apply to the project now that it is completed.
The county declared it had no authority to review the project under CEQA because it did not issue a permit for the project on city-owned land. But the appellate justices said that is not what CEQA requires.
Any building project can be subject to review under CEQA, so long as it is a project for which a building permit may ordinarily be required, regardless of a local government's decision to force the property owner or developer to pull a permit or not.
Further, the appellate justices noted the gun club chose to move forward with the demolition and reconstruction project, despite the county's decision to request an advisory opinion from the California Attorney General's office concerning its responsibilities and powers related to review of the gun club's development project.
According to court documents, the county acknowledged the gun club's "bold choice" to proceed, rather than await further instructions and guidance from the state and county, could expose the gun club to further enforcement actions under CEQA and local regulations.
"The project at issue here, however, is not the County's inaction," the justices wrote. "It is the Club's demolition and construction of the main range."
The justices agreed that the club's decision to complete the range without CEQA review could now expose them to a host of regulatory demands.
"According to the petition, the County could require the Club to alleviate environmental impacts by engaging in a proactive lead removal program, implementing a pollution prevention plan, using lead-free ammunition at the main range until the Club demonstrates that it is no longer contributing lead to Sulfur Creek and the Russian River, and limiting hours of use and allowed uses at the main range," the justices wrote. "Thus, while the Project may be complete, mitigation measures could still be imposed to reduce or avoid the significant environmental impacts alleged in the Petition."
The justices said further the court could revoke the club's certificate of occupancy granted by the city of Ukiah, meaning the club could not use the facility until the county's CEQA review is completed and the county determines the facility is in compliance with the state law.
The Ukiah Club argued such orders would amount to an improper CEQA review of its entire property, not just its new gun ranges.
But the justices said that is not enough to stop the legal challenge at this point, because those contentions ignore the assertions within the Vichy Resort's petition that the project will "result in increased bullets" from increased use of the facility overall.
The justices, however, said they would not block the club from raising those arguments in later proceedings.
The decision was authored by First District Appellate Justice Jeremy M. Goldman. Justice Tracie L. Brown and Alameda County Superior Court Judge Charles Smiley concurred with the decision. Judge Smiley had been assigned to sit pro tempore on the First District court until March 31.
Vichy Resort has been represented by attorneys Jennifer T. Buckman and Kristin B. Peer, of the firm of Bartkiewicz Kronick & Shanahan, of Sacramento.
Mendocino County has been represented by County Counsel Christian M. Curtis and Deputy County Counsel Brina M. Blanton.
The Ukiah Rifle & Pistol Club has been represented by attorneys Therese Y. Cannata, Michael Ching and Vincent Lee, of the firm of Cannata O'Toole & Olson, of San Francisco; and attorney David M. Kindopp, of Ukiah.