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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Aesthetics


CEQA states California’s policy to take all action necessary to provide people with enjoyment of the state’s many aesthetic, natural, scenic, and historicenvironmental qualities. (Pub. Resources Code, § 21001, subd. (b).) Aesthetic impacts occur when a project has the potential to substantially degrade the existing visual character or quality of a site, its surroundings, or scenic views. (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 363, 374–375; Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 936-937 (Pocket Protectors).)

Aesthetic impacts are unique among CEQA impacts in that they are inherently subjective. I like Monet, you like Mapplethorpe. Ultimately, no statewide definition exists of what is or is not aesthetically acceptable. Rather, aesthetic determinations are informed by local ordinances, zoning codes, the project’s setting, public comment, and the discretion of local decisionmakers.

The significance of an aesthetics impact is measured in light of the context where it occurs. (See Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 589-593 (Bowman).) Aesthetic analyses consider whether a project is in an urban or undeveloped rural area, or if a project impacts a public view, park, trail, or historical resource. (See San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1026; Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 903 (Porterville Citizens); Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402.) An aesthetic impact will only be considered significant if it affects the environment of persons in general—impacts to particular persons do not suffice. (Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1041-1042; Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492-494.)

Expert opinion is generally needed to provide substantial evidence of a significant environmental impact under CEQA, but an aesthetics challenge may be supported by lay opinion. (See, e.g., Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App.5th 358, 363 (Georgetown); Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129; Bowman, supra, 122 Cal.App.4th at pp. 587-588.) Therefore, lead agencies should avoid dismissing public comments on aesthetics impacts—particularly where relying on negative declarations—because a court may find reasoned public opinion amounts to substantial evidence of a fair argument of a significant impact. (See Pocket Protectors, supra,124 Cal. App. 4th at p. 939.) Nonetheless, public concern or complaints about the aesthetic impacts of a project do not automatically satisfy the low threshold of the fair argument standard. Aesthetic claims raised under the guise of preserving “community character” or “subjective psychological feelings or social impacts” are insufficient. (Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560; City of Pasadena v. State of California (1993) 14 Cal.App.4th 810-829.) Aesthetics challenges premised on economic concerns similarly do not suffice. (E.g., Porterville Citizens, supra,157 Cal.App.4th at pp. 903-904; Guidelines, § 15131, subd. (a).) And, as mentioned, context counts. The Legislature did not intend to require an EIR where the sole environmental impact is the aesthetic merit of a building in a highly developed area, for example. (Bowman, supra, 122 Cal.App.4th at p. 592.) Otherwise, an EIR would be required for every urban building project unexempt from CEQA “if enough people could be marshaled to complain about how it will look.” (Ibid.)   In conjunction with the statewide push to close the housing needs gap, the Legislature specified that aesthetic impacts need not be analyzed when a lead agency considers a housing project involving the refurbishing, converting, repurposing, or replacing an existing, dilapidated or vacant building, unless that housing project impacts the aesthetics of a state scenic highway or cultural resource. (Pub. Resources Code, § 21081.3(a).) Additionally, Senate Bill 743 bars project opponents from bringing aesthetics challenges under CEQA to residential, mixed-use residential, or employment center infill projects in a transit priority area. (Pub. Resources Code, § 21099, subd. (d).)



dateApril 22nd, 2020byby


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