Direction from the county came after members of the Saratoga Trail Enthusiasts questioned the date by which the winery had to comply with conditions as set forth in its use permit.

The winery was first granted a use permit and architectural and site approval in March 2000 and was instructed by the county to meet all requested conditions within two years. This essentially gave the winery until Aug. 15, 2002, to prove their compliance.

The permit set forth conditions for expanding the winery's seating capacity by 750 seats in the amphitheater and allowed the winery staff two years to upgrade its septic system. However, in the event of a septic failure prior to the two years, the winery had to seek immediate repairs and upgrades.

Following the issuance of the permit, the city of Saratoga and Saratoga Trail Enthusiasts appealed that decision because they were dissatisfied with the environmental impact report and wanted a trail established at the winery. While most of the requests were met eventually, Trail Enthusiasts were upset that their demand for a trail lining the front property at 14831 Pierce Road went unrecognized, and so they filed a lawsuit against the county and winery.

The ensuing litigation continued until the state superior court ruled in favor of the county and winery and, on Feb. 26 of this year, the county's board of supervisors reaffirmed the winery's use permit. At that point, the county's planning staff informed the winery that its compliance date had been reset to Feb. 26, 2004.

Trail Enthusiasts questioned the legality of such a move. In the board of supervisors' resolution after the court ruling, the board made modifications only to the parking conditions and stated that "all other aspects of the use permit are hereby reaffirmed as approved by the board of supervisors on Aug. 15, 2000, and set forth in the original resolution," including the original compliance date for August 2002.

The county's planning staff, however, was under the impression until recently that board members had reset the date when they reaffirmed the permit, said county planner Zachary Goldberg, who now concedes that the staff erred. According to Michael Lopez, secretary to the planning commission, a provision in the Subdivision Map Act allows the jurisdiction to grant additional time for a permit in instances where the permittee has been involved in a lawsuit.

Nevertheless, James Baron, whose wife formed the Trail Enthusiasts group, alleges Goldberg was aware all along that the date had not been reset. In documents that Baron presented to the commissioners, he referred to a memorandum Goldberg had prepared for the planning commission dated Jan. 31, 2002, in which Goldberg indicated his knowledge that the septic system upgrade had to be completed by Aug. 15 of this year. Also, Goldberg acknowledges having received an email from the County of Santa Clara Department of Environmental Health (DEH) on Feb. 5 confirming the August date.

But both documents were written prior to the board of supervisors' resolution on Feb. 26. It was only after this resolution passed that the planning staff thought the compliance date had been reset, Goldberg said.

The matter was cleared up Dec. 5, when the planning commission upheld the Aug. 15 compliance date and told the winery an inspector from the health department has to evaluate its septic system by the end of February. If at that time the system is found to be inadequate to support the large capacity of concert goers, immediate upgrades must take place.

Confusion over the compliance date notwithstanding, the winery still should have upgraded its septic system by now, maintain the members of the Trail Enthusiasts.

One incident of sewage overflow took place at a winery concert on June 15, 2002. This incident indicates a septic system failure, Trail Enthusiasts say, adding that as the conditional permit requires an immediate upgrade should this occur, the winery staff did not follow instructions.

Following the June 15 overflow, a specialist inspected the septic system and found no evidence of repeated overflows. In a Nov. 26 memorandum, Gwen Sax of the DEH, reviewed the inspection notes and concluded that "DEH would not consider this breakdown in equipment a failure of the septic system, as no evidence of failure has been noted."

Councilwoman Ann Waltonsmith questions why, if the system were in adequate working order, the winery would pump out its tanks more frequently than is common practice and bring in trailers with additional urinals before major concerts.

"Their actions are also saying that their septic system is not up to the task," she said.

Bringing in additional urinals does not reflect an inadequate system, said William Hirschman, one of the owners of the winery. Since the urinals are connected to the winery's septic system, all sewage flow ends up in the same tank eventually, he said, so additional urinals are only meant to provide more restrooms to help mitigate long lines during intermissions at large events.

As for calling on plumbers regularly, Hirschman said that each time work is done on the system, the septic tanks must be pumped.

As the winery has been involved in maintenance work, the staff has called plumbers out regularly, he explained. Furthermore, cleaning the tanks regularly is an added preventative measure, he said.

"The same people who are asking us to be proactive are criticizing us for being proactive," he said.

The winery staff has plans to bring in an expert within the next few weeks to evaluate the septic system.