In Georgetown Preservation Society v. County of El Dorado (2018) 2018 Cal.App.LEXIS 1167, the Third District Court of Appeal held that conformity with the general plan does not insulate a project from CEQA review. Where a“large number” of public comments objected to the project for “nontechnical” aesthetic issues, there was a fair argument that the project could have a significant effect on the environment and the County improperly relied on a mitigated negative declaration (MND).
The project plans proposed to build a chain discount store in the historically registered Gold Rush-era town of Georgetown in El Dorado County (County) described by the court as a “quaint. . . hamlet.” The project consisted of a 9,100 square-foot Dollar General store and 12,400 square foot parking lot across three parcels on the unincorporated town’s main street (Project).
Comments from various community members, including a licensed architect, a city planner, a registered architect, and a landscape architect and restoration ecologist objected to the Project’s lack of conformity with the town’s aesthetic. Nonetheless, the County found that the Project would not impact the surrounding aesthetics “in ways not anticipated for lands designated by the General Plan” and was “substantially”consistent with the Historic Design Guide. The County further found that “[a]s designed and conditioned, project impacts would be less than significant” and approved the Project based on an MND. The Georgetown Preservation Society (Society) filed suit challenging this action.
The Society alleged that the County’s reliance on a MND was improper where public comments in the record supported a fair argument that the Project may have a significant aesthetic effect on the environment. The trial court, relying on Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903(Pocket Protectors), found that the Society’s evidence supported this claim but rejected the Society’s claims about traffic impacts, pedestrian safety, and “planning and zoning norms.”Accordingly, the trial court issued a writ of mandate compelling the County to require an EIR be prepared for the Project. The County timely appealed the decision.
Specifically, the County alleged that (1) the County’s finding that the Project complied with the planning and zoning rules via historic design review is entitled to deference and should be reviewed under a substantial evidence standard; (2) layperson public commentary does not establish a fair argument that the Project may cause substantial environmental impacts; and (3) the County’s failure to explicitly find the public comments unreliable should not preclude challenging the comments.
The Appellate Court first addressed the effect of historic design review and held that a planning or zoning finding conducted outside the requirements of CEQA does not provide a substitute for CEQA review. Instead, “the two different kinds of findings—a negative declaration under CEQA [and] a zoning or planning finding—answer[ed]different questions.” Following the rationale in Pocket Protectors, the Court held that design review does not always mitigate aesthetics, but instead is an independent decision that may aid the CEQA determination or “be entitled to greater deference…, but such [a] determination is no more than it purports to be and is not a CEQA determination.” Thus, “design review does not supplant or supersede CEQA.”
The Court dismissed the County’s argument analogizing this case to Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572. Opponents of the Bowman project, a four-story, low-income housing project with retail on the ground floor and located on a busy street, requested that the project be reduced to three stories to better match the surrounding building heights. The court held that, because the construction of the project was subject to design review and approval prior to the issuance of building permits, the project would not result in aesthetic impacts.
Here, the Court dismissed the County’s claim that Bowman supported their position. Instead, the Court clarified, echoing Pocket Protectors, that the Bowman court “did not hold a zoning determination about aesthetics obviates CEQA review nor that design review necessarily or always adequately addresses aesthetic impacts . . . it depends on the facts.” Further contrary to the County’s position, the facts of Bowman–changing a four-story building to three-stories in a busy area –were not analogous to the case here –placing a large chain store in a small, historic,and unincorporated town with a distinct character.
The Court then addressed the public comments submitted in opposition to the Project. While layperson comments lacking factual foundation or corroboration are generally dismissed,here the Court differentiated the facts from other cases. First, the evidence was not “a few stray comments” but “a large number of negative opinions”therefore “undermine[d] the argument that only a few individualized complainants [were]
trying to thwart the [P]roject for personal reasons.” Specifically, the comments were from “interested people” and consistently said that the Project is “too big,” “too boxy,” or “monolithic” to blend in and its presence will damage the look and feel of the historic center.
Next, the objections to the Project’s aesthetic impacts concerned “nontechnical issues that [did] not require special expertise.” The Court reasoned that a “rational layperson familiar with the area could conclude a 9,100 square foot chain store spanning three lots may negatively impact the central district’s aesthetics” and it would be an “unduly narrow prism” if only comments that incorporated specific design standards into their text were considered. Thus, there was “sufficient evidence adduced to show this project in this location might significantly impair the central district’s unique and treasured Gold Rush character.”
Indeed, even where expert opinion is presented to the contrary of the lay person opinions, “public comments contradicted by undisputed experts does not eliminate the need for an EIR.”“Whether it likely will or will not have such an impact is a question that an EIR is designed to answer.” Thus, as was the case in Pocket Protectors, the Court’s consideration of layperson opinions only pertains to the question of if the“low-threshold fair argument test” is met.
The Court then turned to the County’s contention that it implicitly rejected the commenters’ credibility therefore the comments should be removed from the Court’s consideration. Again relying on Pocket Protectors and echoing the trial court, the Court held that public comments may not be categorically disregarded where the County made no determination as to their credibility. The Court held that “if there were grounds for rejecting commenter’s credibility,the County should have made explicit findings thereon.”
Notably, in a footnote the Court distinguished as inapplicable the recent holding of Jensenv. City of Santa Rosa (2018) 23 Cal.App.5th 877 for being factually distinguishable. That case involved non-expert opinion on technical noise studies. See our blog post on the holding here.
The Court affirmed the trial court’s holding.
Layperson comments on an aesthetic impact may support a fair argument where the impact involves nontechnical issues.
Conformity with the general plan and application of design guidelines does not insulate a project from CEQA review.
Layperson comments on a nontechnical impact may not be categorically disregarded without a specific finding as to their credibility.