Date: October 26, 2025
To: Chair and Members of the Lake County Board of Supervisors
From: Thomas Lajcik
Subject: Public Comment in support of Appeal PL 25-22: Lack of Legal Authority to Approve or Continue Permit for Biochar Facility at 755 East State Highway 20 (APN 004-010-040); CEQA and Contractual Non-Compliance with State Grant Agreement No. 4600003318
Dear Board of Supervisors,
This letter is submitted in support of Appeal PL25-22 regarding the proposed Biochar Facility at 755 East State Highway 20, Upper Lake, California.
I. INTRODUCTION
The parcel was purchased by the Lake County Watershed Protection District in 2015 using State bond funds administered by the California Department of Water Resources (“DWR”) under Flood Corridor Program Grant Agreement No. 4600003318.
The County’s continued processing of a discretionary use permit for a private industrial facility on this parcel is unlawful under both the terms of the State funding agreement and the California Environmental Quality Act (“CEQA,” Pub. Res. Code § 21000 et seq.). The County failed to provide substantial evidence demonstrating it possesses legal authority to authorize any development inconsistent with the conservation easement and open-space restrictions required by the DWR grant.
Accordingly, the permit cannot lawfully be approved, and further continuance of this item is procedurally improper absent evidence establishing compliance with State law.
II. LEGAL BACKGROUND AND COUNTY NON-COMPLIANCE
1. State-Imposed Conditions on the Property
The parcel was acquired using DWR Flood Corridor Program funds to “protect or enhance flood protection corridors while preserving or enhancing wildlife values.” (Grant Agreement No. 4600003318; see Exh. A, § 3.B.)
The Agreement expressly requires:
• Immediate recordation of a conservation easement on each property purchased (§ 3.M);
• Rezoning to “Open Space” consistent with the program’s conservation purpose (Scope of Work); and
• A prohibition that the County “shall not sell, abandon, lease, transfer, exchange, mortgage, hypothecate, or encumber in any manner whatsoever, all or any portion of the subject properties without prior permission from the State.” (§ 3.K.)
Responses to the Public Records Act requests submitted by the appellant confirm that no such permission was obtained, no conservation easement was recorded, and the property was leased to a private party for $100 per year for 15 years—a use wholly incompatible with the grant’s open-space mandate.
These omissions constitute a direct breach of the Grant Agreement and extinguish the County’s discretion to repurpose the parcel for industrial use.
2. Loss of Local Discretionary Authority
Under California law, a local agency may not authorize a land use in violation of deed restrictions, easements, or State-imposed funding conditions. (See Gov. Code § 65860; Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 505 – zoning or permit approvals cannot override recorded or mandatory restrictions.)
Until the County demonstrates written State consent and compliance with all recorded restrictions, it lacks legal authority to approve or even continue consideration of a private development permit on this property.
III. CEQA REQUIREMENTS FOR SUBSTANTIAL EVIDENCE OF AUTHORITY
1. Agency Must Establish Legal Authority Before Approval
CEQA Guidelines § 15004(a) prohibits an agency from granting approval “unless it has legal authority to do so.”
Section 15064(f)(5) further provides that “if a lead agency is uncertain whether it has the authority to approve a project, that uncertainty itself constitutes substantial evidence of a potentially significant effect,” triggering an Environmental Impact Report (“EIR”).
Here, the County’s own record combined the pending review by DWR and the State Controller’s Office regarding whether the lease is compatible with the bond-funded restrictions create unresolved questions and uncertainty that eliminate any basis for adopting a Mitigated Negative Declaration.
2. Absence of Substantial Evidence
Under CEQA Guidelines § 15384(a)–(b), substantial evidence must consist of “enough relevant information and reasonable inferences” supported by factual documentation—not speculation, assumption, or absence of records.
The County has produced no evidence of State authorization, conservation easement recordation, open-space rezoning, or compliance with the mandatory maintenance trust account.
Without such evidence, the County’s findings of land-use consistency and environmental insignificance are legally unsupported. (See County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193 – project description must disclose legal and physical environmental conditions.)
IV. CEQA CONSEQUENCES
Because the County cannot demonstrate compliance with the Grant Agreement:
• The project description and baseline are inaccurate (Guidelines § 15125);
• The County lacks substantial evidence of authority (Guidelines § 15064(f)(5)); and
• A full Environmental Impact Report is required before any further action.
Continuing the hearing to await State clarification would not cure these defects. The County must deny the permit.
V. REQUESTED ACTION AND CONCLUSION
Because the County has failed to produce substantial evidence or any written consent from the State of California establishing its authority to lease or permit this State-funded property, the Board of Supervisors has no lawful discretion to continue or approve this matter.
A continuance cannot cure the absence of jurisdictional authority or the County’s failure to comply with binding State grant restrictions. Under CEQA Guidelines §§ 15004(a) and 15064(f)(5), a lead agency must establish legal authority before approving or proceeding with a project. The County has not done so.
Moreover, the parcel was required under the DWR Grant Agreement to be promptly rezoned to “Open Space.” If that rezoning had been properly completed, the proposed industrial use would be prohibited under County zoning regulations. Therefore, no feasible remedy exists that would allow this permit to proceed lawfully.
For these reasons, the Board must deny both any continuance and the project permit. Proceeding further would constitute an abuse of discretion under Public Resources Code § 21168.5 and a violation of CEQA’s requirement that all approvals be supported by substantial evidence of legal authority.
Accordingly, I respectfully urge the Board of Supervisors to grant the appeal, deny the Biochar Facility permit and reject any continuance of this matter.
Respectfully submitted,

Thomas Lajcik