In Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista, (2018) 29 Cal.App.5th 424, the Sixth District Court of Appeal held that the “substance and effect” of a decision labeled by the trial court as a preemptory writ of mandate nonetheless constituted a final judgment.
The City of San Juan Bautista (City) approved a gas station, convenience store, and fast food restaurant (Project) and related permits with a mitigated negative declaration (MND). Alliance of Concerned Citizens Organized for Responsible Development (ACCORD) filed suit.
ACCORD alleged that the City violated CEQA by not preparing an EIR for the Project. ACCORD also alleged that the Project conflicted with the City’s General Plan and that, in approving the Project, the City violated state planning and zoning laws, its own zoning code, and its municipal code.
In March 2016, the trial court issued a “Preemptory Writ of Mandate of Interlocutory Remand for Reconsideration of Potential Noise Impacts,” which directed the City to take specific action and then file a return to the preemptory writ no later than October 10, 2016. ACCORD did not appeal that decision. The City filed a return to the writ within the timeframe provided, and then a supplemental return advising the Court of the City’s compliance with the Writ. In December 2016, the trial court issued a subsequent decision finding that the City had complied with the terms of the preemptory writ. ACCORD timely appealed this decision alleging that the City was required to prepare an EIR because there was substantial evidence of a fair argument that the Project would have noise and traffic impacts and the Project violated the City’s municipal code governing formula retail businesses.
In determining whether the issues raised on appeal were cognizable, the Appellate Court first considered whether the March 2016 decision was a final judgment, notwithstanding its title labeling it as an “Interlocutory Remand.” The Court reasoned it “is not the form of the decree but the substance and effect of the adjudication which is determinative” of whether it is a final judgment. “[W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final.” Because “[t]he March 2016 decision disposed of all CEQA and non-CEQA issues raised by the petition and conclude[d] that respondents had not complied with CEQA with respect to the potential noise impacts of the project . . . [t]he decision was not tentative or partial.”
The Court found that the March 2016 decree described specific instructions for the City to follow and the means for the City to comply with the Writ. It was inconsequential that additional proceedings were required as “a trial court has continuing jurisdiction to ensure compliance with a preemptory writ of mandate” and the scope of these proceedings was limited to whether the City complied with the decree. The trial court’s subjective intent was also inconsequential to the effect of the Court’s decision. It did not matter that the trial court titled the March 2016 decree an interlocutory remand and declared “nothing herein shall be construed as a final judgment,” the effect of the decree disposed of all issues raised by the petition thus, it was a final judgment.
The final judgment rule provides that an appeal may only be taken from the final judgment in an entire action; piecemeal disposition and multiple appeals in a single action are oppressive and costly. Here, the Court established that, in finding a final judgment, a court does not focus on the decision title or intent of the deciding court in issuing the decision but the “substance and effect” of the decision. Where the decision concludes matters between the parties, it is a final judgment for the purposes of an appeal.
ACCORD alleged that the March 2016 decision was an interlocutory remand and therefore unappealable, as discussed in Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499. In Voices, the California Supreme Court held that Code of Civil Procedure section 1094.5 does not impose an absolute bar on interlocutory remands in administrative mandamus actions. In a concurring opinion, Justice Werdegar, joined by Chief Justice Cantil-Sakauye, recognized the limited scope of the court’s decision and indicated that an interlocutory remand is not proper in a CEQA action. The California Supreme Court has not since decided the propriety of an interlocutory remand in a CEQA action. Here, the Court did not answer whether the Voices holding applied to CEQA actions pursuant to Public Resources Code section 21168.9 as “in substance and effect the March 2016 decision was a final judgment.” As such, the December 2016 decision was a post-judgment order.
ACCORD could not challenge the adequacy of the EIR as the group failed to timely appeal the March 2016 decision within the 60-day statutory deadline. ACCORD alleged that principles of fairness and due process support the grant of an extension. The Court held that it is immaterial that the trial court mislabeled the March 2016 decision and possibly mislead the parties, the Court is without statutory authorization to extend the time for appeal “even to relieve against mistake, inadvertence, accident, or misfortune.” Further, the timeline may not be extended by stipulation by the parties, estoppel, or waiver. Indeed, where no objection is made, a court “must dismiss the appeal of its own motion.”
Considering the above, the Court found the scope of its review limited to the December 2016 post-judgment order. The City’s response to the preemptory writ was adequate where it satisfied the conditions of the preemptory writ and timely filed a return on the preemptory writ.
The Court affirmed the trial court’s December 2016 holding.
Key Point:
Where a court’s decision disposes all issues raised by the petition, it is a final judgment from which an appeal must be filed within 60 days.
An appeal from a post-judgment decision limits the appellate court’s scope of review to only those issues addressed in the post-judgment decision, not the original judgment.
Third District Echoes Pocket Protectors, Holds “Large Number” of Public Comments on Nontechnical Aesthetic Impacts Support Fair Argument
Tuesday, December 18th, 2018In 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.
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.
Tags: Aesthetic impacts, expert, fair argument, historic sites, mitigated negative declaration, negative declaration, public comment
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