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Posts Tagged ‘mootness’


Fact-Based Residents’ Comments Substantial Evidence Meriting CEQA Review, Special Commission’s Findings Substantial Evidence Meriting CEQA Review

Monday, July 16th, 2018

The Niles Historic District’s distinctive style is clear on the building facades of the District’s downtown area. (Craig Miyamoto)

In Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, the First District Court of Appeal held that the Niles Historical Architectural Review Board’s (HARB) factual findings and members’ collective opinions about the compatibility of a project with the Niles Historic Overlay District rose to the level of substantial evidence. Further, fact-based comments in the record by residents, city officials and staff, and professional consultants, notwithstanding a traffic impact study to the contrary, amounted to substantial evidence supporting a fair argument of a significant traffic impact.

Niles Historic Overlay District (HOD) is an officially-designated historic district within the City of Fremont (City) subject to guidelines and regulations to maintain the distinctive look and character of the area. Projects in the HOD area are initially proposed to HARB for review in light of HOD guidelines. HARB then recommends approval or denial of the project to the City Council.

In 2014, Real Parties in Interest Doug Rich and Valley Oak Partners (Valley Oak) submitted an application to build 80-90 residential townhouses on a vacant six-acre lot (Project). HARB recommended that the Project be denied because it “would be incompatible in terms of siting, massing, materials, textures, and colors with existing development in the Niles [HOD].” Amidst critical comments, the City approved the Project with a mitigated negative declaration (MND). Protect Niles, a community action group, filed suit alleging the City improperly relied on the MND.

The trial court found substantial evidence in the record supported a fair argument of significant impacts on community aesthetics and traffic and set aside the Project approval until an EIR was completed. Valley Oak timely appealed.

The Appellate Court first established that, despite Protect Niles’ claims to the contrary, the appeal was not moot. Valley Oak had already submitted a revised Project application and the City had published a draft EIR therefore “voluntarily complied” with CEQA. However, this was not tantamount to Valley Oak withdrawing the original Project or abandoning its claims.

The Court reiterated extensive precedent that CEQA must be interpreted to afford the fullest possible protection to the environment. Further, the Court held that an EIR is required where there is substantial evidence in the record, contradicted or not, supporting a fair argument that a project may have a significant effect.

There were numerous comments within the record that the Project did not fit the aesthetic of the neighborhood. Per the CEQA Guidelines, an aesthetic impact exists where a project has the potential to substantially degrade the existing visual character or quality of the site and its surroundings. Aesthetic impacts are context-specific. Here the record contained opinions of the HARB commissioners and Niles residents that the Project’s height, density, and architectural style were inconsistent with the Niles HOD. These comments “differed sharply as to the Project’s aesthetic compatibility with the historic district.” The comments were not conjecture or speculative but grounded in observations of inconsistencies with the prevailing building heights and architectural styles of the HOD. Thus, the Court found there was substantial evidence of a potential adverse aesthetic impact on the Niles HOD. The City’s reliance on a MND was improper.

The Court also criticized the traffic impact analysis and determined that substantial evidence of a fair argument required preparation of an EIR. The City had conducted a professional traffic study concluding the impacts would fall below the City’s threshold of significance. Despite this, the Court found the study was shortsighted for presuming that drivers follow the speed limit and criticized the City for failing to implement the study’s mitigation measure recommending a left-turn pocket lane. The record contained critical comments by residents, City officials and staff, and professional consultants based on their personal experiences driving in the area. The Court found, notwithstanding the traffic study, these fact-based comments constituted substantial evidence supporting a fair argument that the Project will have significant adverse traffic impacts.

The Court affirmed, directing the City to prepare an EIR if it were to go through with the original Project design.

Key Point:

Personal observations on nontechnical issues can constitute substantial evidence of a fair argument of a significant environmental impact. Specifically, residents’ observations of environmental conditions where they live and commute may constitute substantial evidence even if they contradict the conclusions of a professional study.

City Appeal of Trial Court Order Found Moot where City had Complied with the Order

Wednesday, March 7th, 2012

In Building a Better Redondo v. City of Redondo Beach (February 22, 2012) __ Cal.App.4th __ (Case No. 124769), a group of slow-growth advocates brought a petition for writ of mandate and declaratory relief against the City of Redondo Beach, seeking an order compelling the city to submit a local coastal program amendment to public vote in compliance with a charter amendment the city had recently enacted, which required any “major change in allowable land use” to be approved by city voters. The city argued that the local coastal program amendment predated the charter amendment and thus was not governed by the charter amendment. The trial court found the local coastal program amendment constituted a major change in allowable land use and ordered the city to place the amendment before the voters. Although the city appealed the judgment, it also voluntarily complied with the court’s order and the voters approved the amendment. The city’s final certification of the local coastal program followed. Subsequently, the trial court awarded petitioners $313,000 in attorney fees.

The appellate court dismissed the city’s appeal from the judgment as moot and affirmed the award of attorney fees. The court held that the results of the election approving the amendment were indisputably in effect for all purposes and would remain so regardless of the outcome of the appeal. Therefore, granting relief from the judgment would have no practical effect and the city conceded as much. No exception to the mootness doctrine applied. The case did not involve a matter of continuing public interest since it involved fact-specific issues that were unlikely to recur. The city claimed its appeal was not moot because the award of attorney fees was dependent upon the propriety of the trial court’s ruling on the merits of the action. According to the city, a reversal of the trial court ruling on the merits necessarily would require a reversal of any award of attorney fees since petitioner would no longer qualify as a prevailing or successful party for purposes of the attorney fee claim. The court disagreed with the contention that the appeal of the award of attorney fees prevented it from finding the appeal on the merits moot in this case, distinguishing the cases upon which the city relied.

The court also upheld the trial court award of attorney fees. The trial court did not abuse its discretion when it found that the claimed hourly fees, although substantial, were not unreasonably high in view of the quality of the work and counsel’s special expertise. The court found that the award was properly based on the reasonable market value of the services, even though the petitioners had been charged a reduced fee.

Key Point:

In finding that the appeal of the attorney fee claim did not revive the appeal on the merits, the court distinguished CEQA cases where the appeal involved the rights of third parties who exercised their own, separate right of appeal from judgments finding an EIR inadequate. In these CEQA cases cited by the city, the lead agency’s decision to comply with the writ and perform further environmental review did not render appeal of the judgment moot. The court in this case indicated that the dispositive fact saving the appeal from dismissal for mootness was not that the appeal involved an attorney fee award (despite language in at least one CEQA case finding an appeal on the merits was not moot because the award of attorney fees depended on the correctness of the ruling on the merits), but that the appeal was brought by the real party in interest who is aggrieved and has standing to appeal regardless of the agency’s decision to comply with the order.

Written By: Tina Thomas and Amy Higuera

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