Thomas Law Blog

CEQA Updates

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

Posts Tagged ‘fair argument’


Third District Echoes Pocket Protectors, Holds “Large Number” of Public Comments on Nontechnical Aesthetic Impacts Support Fair Argument

Tuesday, December 18th, 2018

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 courtdid 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.

Key Point:

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.

General Plan Update Size Limit Not Likely to Cause Urban Decay, Local Commercial Real Estate Agent Letter “Speculative,” Not Substantial Evidence of a Fair Argument

Thursday, January 4th, 2018

In Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, the Fifth District Court of Appeal affirmed a trial court judgment maintaining a general plan amendment and accompanying EIR limiting commercial tenants to 40,000 square feet of space. A letter from a local commercial real estate agent predicting that the size cap would cause grocers to refuse to locate in the neighborhood commercial centers leading to a “downward spiral of physical deterioration” was insufficient to support a fair argument of an environmental impact.

On October 14, 2014, Visalia City Council approved a final EIR for the City’s general plan update establishing a 40,000 square foot cap on tenants in neighborhood commercial zones. Visalia Retail, LP brought suit claiming that the potential for urban decay was not adequately addressed in the EIR. The trial court denied the petition. Visalia Retail timely appealed.

Appellant claimed that the EIR was insufficient for failing to consider the potential for urban decay as large stores would be discouraged from establishing themselves in the neighborhood under the new restriction on square footage. The Court, unconvinced, found that CEQA is focused on significant environmental effects, not purely economic impacts. Relying on Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, the Court found CEQA environmental review of potential for urban decay is only appropriate where there is a potential for physical deterioration. Absent such a showing, CEQA is satisfied.

The primary evidence of urban decay submitted by Appellant was a letter prepared by a local commercial real estate agent who claimed the 40,000 square foot cap would discourage grocers from locating in neighborhood commercial centers, “which will cause vacancies, which in turn will result in urban decay.” The real estate agency offered the following support for these claims: (1) the real estate agent was personally unaware of any grocers willing to build new stores under 40,000 square feet; (2) a “typical” large grocer requires at least 50,000 square feet to profit at any one site; (3) a recent line of 10,000 – 20,000 square foot stores was unsuccessful; and (4) three Visalia stores under 40,000 square feet went out of business.

The Court found the letter to be speculative and not rising to the level of substantial evidence on which a fair argument of urban decay could be predicated. First, the limit of the real estate agent’s personal knowledge did not preclude the existence of stores that may be willing to come into the area or have an atypical store size. Further, the fact that other stores were unsuccessful, some a quarter the size of the cap, was not evidence that stores will fail in the City in the future, especially absent discussion or explanation of why they failed. The letter demonstrated speculative causation and failed to show that urban decay would likely result from the cap.

Appellants also claimed the cap made the City’s general plan internally inconsistent by discouraging development in neighborhood commercial sites where the general plan encourages such infill. The Court, presuming the general plan amendment was correct under established precedent, clarified that “just because the general plan prioritizes infill development, avoiding urban sprawl, does not mean all of its policies must encourage all types of infill development. General plans must balance various interests and the fact that one stated goal must yield to another does not mean the general plan is fatally inconsistent.” Essentially, the general plan may give preference to infill that has a 40,000 square foot cap and still be internally consistent.

The Court affirmed the trial court judgement.

Key Point:

Evidence of economic impacts alone is insufficient to support a claim that a project will result in urban decay; urban decay need only be addressed by an EIR where there is potential for physical deterioration.

A single comment letter, unsupported by facts, explanation, or critical analysis, does not raise to the level of “substantial evidence of a fair argument” required by CEQA.