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Posts Tagged ‘negative declaration’


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.

First Appellate District Denies Initial Study Noise Level Challenge to Transitional Housing Project Based on Non-Expert Analysis

Tuesday, May 1st, 2018

In Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, the First Appellate District held that noise impacts from a proposed youth center and transitional housing project were properly analyzed and approved with a negative declaration (ND) where the City of Santa Rosa’s (City) acoustic expert found no noise impacts above the baseline would occur as a result of the project. Appellant’s non-expert claims to the contrary did not rise to the level of substantial evidence supporting a fair argument that there would be a significant noise impact meriting preparation of an EIR.

The Dream Center Project (Project) proposed to redevelop a vacant hospital into a youth center and transitional housing for 18 to 24-year-old homeless youth and former foster care youth including youth who have been abused, are unable to afford housing, or are unable to find employment.

Project applicant filed an application for a CUP, rezoning, and design review to implement the Project plans. The City prepared a draft Initial Study/Negative Declaration. In doing so, the City contracted with a professional noise consultant to conduct a noise analysis of the site. The study concluded that the Project would not constitute a significant noise impact. The City reviewed the application and noise study and found that the Project would have no significant effect on the environment. The City approved the Project and, thereafter, Project site neighbors (Petitioners) filed suit.

Petitioners alleged that the noise impacts from recreational activities (e.g. gardening, pottery throwing) and parking lot traffic at the southern end of the Project site were significant and required preparation of an EIR. Petitioners supported these claims with reference to another noise study conducted at a neighboring convenience store whose methodology, if applied to the Project site, would demonstrate noise impacts sufficient to merit preparation of an EIR. The trial court found the claims speculative and denied the petition. Petitioners timely appealed.

The Appellate Court affirmed and refused to consider the alternative noise study proposed and interpreted by Petitioners. Petitioners’ non-expert qualitative analysis of the convenience store noise study and its methodology were not an acceptable means of analyzing noise impacts. Petitioner’s calculations were essentially opinions rendered by non-experts that rested on supposition and hypothesis, rather than fact, expert opinion, or reasonable inference. As such, Petitioners failed to present substantial evidence supporting a fair argument.

Further, the Court held, Petitioners concerns about noise from parking traffic and recreational activities were unfounded as the Project plans and conditions for approval specifically mitigated noise impacts. Noise from parking in the south lot was mitigated as only staff were allowed to park there; residents and deliveries were prohibited from using anything but the northern parking lot. Petitioners’ claims that recreation activity noise would rise to a level of significance were also meritless as activities on the half basketball court, community garden, and pottery throwing space were explicitly limited to daytime hours.

The Court affirmed the trial court’s holding.

Key Point:

When attempting to rebut the validity of an independent noise analysis for a project’s Initial Study, is it imperative to use expert analysis. Additionally, comparison of two unrelated Initial Study results (even if the sites are nearby) will likely fall short of Court-accepted scientific evidence.

Substantial Evidence Test Applies to Subsequent Environmental Review After a Negative Declaration Has Been Adopted for a Project

Tuesday, May 22nd, 2012

In Abatti v. Imperial Irrigation District (2012) 2012 Cal.App. LEXIS 496, the court considered whether the substantial evidence, rather than the “fair argument,” test applies to determine whether further environmental review is warranted for a subsequent approval where the agency has initially adopted a negative declaration for the project.

In 2006, the irrigation district adopted an “Equitable Distribution Plan” to address the allocation of water in times of shortage, and concurrently approved a negative declaration, which concluded that the plan would not have a significant effect on the environment. The irrigation district then adopted implementing regulations in 2007, and adopted additional regulations in 2008, along with an environmental compliance report, which relied on CEQA Guidelines section 15162 to find that the 2006 negative declaration adequately addressed impacts, and no further CEQA review was required. A group of property owners challenged the 2008 regulations, arguing that an EIR should have been prepared because the regulations substantially changed the way water would be allocated. They asserted that the regulations specifically gave higher priority to geothermal users as opposed to agricultural users.

The court first considered whether it had jurisdiction in light of the fact that appellants had dismissed several non-CEQA claims without prejudice prior to the trial court’s decision on the CEQA claim. The court concluded in the affirmative, finding that a party may appeal from a judgment rendered on a particular claim on a case, regardless of whether certain other claims have been dismissed without prejudice, provided no claims remain pending between the parties.

On the merits, the court first rejected the petitioners’ argument that CEQA Guidelines section 15162 was an invalid regulation. Section 15162 provides that, after an agency has certified an EIR or negative declaration, no subsequent EIR is required unless certain circumstances occur. This section of the Guidelines implements Public Resources Code section 21166, which refers to EIRs, but not negative declarations. The appellate court rejected the petitioners’ challenge, relying on Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, which upheld application of the standards for determining when a subsequent EIR is required for a project that has previously been reviewed when the original CEQA document was a negative declaration.

The appellate court proceeded to apply the substantial evidence test to assess the irrigation district’s determination that the 2008 regulations did not represent a substantial change in the project requiring additional CEQA review. The court found that substantial evidence supported the irrigation district’s determination. A comparison of the 2008 regulations with the pre-existing regulations showed that they were substantially similar and would not, in fact, change the priority preferences in case of water shortage, as petitioners had claimed.

Key Point:

This case affirms an agency’s ability to rely on a negative declaration for subsequent actions related to the project where substantial evidence supports the agency determination that the subsequent action has no new environmental impacts. Of particular note, the court rejected the petitioners’ attempt to characterize Benton as an “outlier” case. Instead the court upheld Benton, noting that numerous courts have agreed with that court’s conclusion that Guidelines section 15162 applies in determining whether further environmental review is warranted where the agency has initially adopted a negative declaration.

Written By: Tina Thomas and Amy Higuera
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Rejects Use of an MND for a Residential Development Relying on Groundwater Holding that Existing Groundwater Overdraft Establishes the Project will Potentially Result in a Cumulatively Considerable Groundwater Impact

Tuesday, February 21st, 2012

In an unpublished decision, the Consolidated Irrigation District filed a petition for writ of mandate challenging the City of Selma’s use of a mitigated negative declaration in approving a 160-unit, 44-acre residential development (Consolidated Irrig. Dist. v. City of Selma, Fifth Appellate District Case No. F061103 (Feb. 8, 2012 – unpublished)).  The trial court granted the writ.  On appeal, the City argued that (1) the irrigation district lacked standing to bring the CEQA challenge, (2) the trial court relied on documents that were not before the City Council when it approved the project to rule against the City, and (3) substantial evidence did not support a fair argument that the proposed development might have a significant effect on the environment.  The Court upheld the trial court on all three accounts.  First, the Court held the irrigation district has standing to sue pursuant to Water Code section 22650 because it has beneficial interests that might be affected by the project.  Second, the Court held substantial evidence supports the trial court’s determination that the documents the trial court ordered to be included in the record were submitted to the City prior to the City Council approving the project.  Third, the irrigation district presented substantial evidence of a fair argument that the project would result in at least two potentially significant impacts.  Specifically, the Court held the project will contribute to this cumulative impact on groundwater due to that fact that the project requires 80.65 acre-feet of groundwater per year in a groundwater basin currently impacted by existing overdraft, and the project may have a cumulative impact on agricultural land because the MND entirely failed to analyze this issue.  The Court declined to address any other impact arguments advanced by the irrigation district because the City was required to produce an EIR.  Therefore, the Court concluded it would serve no purpose for it to address every claimed flaw in the MND.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Mitigation Fee Programs Must Be Analyzed In An EIR Prior to Adoption

Tuesday, January 24th, 2012

Center for Sierra Nevada Conservation et al. v. County of El Dorado (January 20, 2012) 202 Cal. App.4th 1156 (Superior Court Case No. PC20080336)

El Dorado County adopted an oak woodland management plan (Management Plan) and mitigation fee program (Fee Program) without first certifying an EIR.  Instead, the County issued a negative declaration that allegedly tiered from the County’s previously approved General Plan and Program EIR.  The General Plan and Program EIR allowed developers of more than 10 acres to conserve oak woodlands on site at a 1:1 ratio as a mitigation “Option A” and also considered mitigation under an “Option B”, which would allow developers to pay a mitigation fee under a yet-to-be-adopted oak woodland management plan instead of providing on-site mitigation.  Importantly, however, neither the General Plan nor the Program EIR specified the fee rate for Option B, or provided how the collected fees would actually be used to mitigate the impact to oak woodlands.

Petitioners challenged the County’s adoption of the Management Plan and Fee Program and related negative declaration.  The County argued that the Management Plan and Fee Program were within the scope of the General Pan and the impacts were adequately addressed in the General Plan Program EIR.  While the trial court agreed with the County, the Third District Court of Appeal did not.  Siding with petitioners, the court held that the County was required to prepare a tiered EIR before its adoption of the Management Plan and implementation of the Fee Program.  The court acknowledged that the Program EIR anticipated development of a Management Plan and Fee Program, however the prior EIR did not provide adequate environmental analysis to conclude the Management Plan and Fee Program would have no greater adverse environmental effects than analyzed and anticipated in the Program EIR.  Specifically, the Program EIR did not set the fee rate, define how the acreage subject to the fee should be measured (e.g., measuring tree canopy by tree canopy cover or by total area including the space between canopies), or explain how the off-site oak woodland losses would be mitigated by the fees.  Each of these factors is critical in determining whether the Management Plan and Fee Program provide effective litigation.

The County also argued that any EIR analysis for the Management Plan could be postponed until formulation of the Plan had been completed.  The court disagreed, noting that “approval” of a project under CEQA occurs when a public agency’s decision commits it to a definite course of action.  Here, the County’s approval of the Management Plan had the effect of allowing developers to pay a fee under the Option B Fee Program instead of preserving a substantial number of trees on-site under Option A.  Thus, consistent with longstanding case law, the County was required to conduct an EIR review before approving the Management Plan and Fee Program.

Lastly, the court agreed with Petitioners’ argument that the County violated CEQA by issuing a negative declaration because the administrative record supported a “fair argument” that the Management plan and Fee Program would have a potentially significant effect on the environment and thus an EIR was required to consider the effects on the environment.   While the County did not assert that the Management Plan and Fee Program would have no environmental impacts, as discussed above it argued that the Program EIR already took any significant adverse effects into account.  This argument was undermined by the project’s Initial Study and other evidence in the record acknowledging potentially significant effects on the environment.  The fact that the Program EIR contemplated adverse impacts from development under the General Plan does not remove the need for a tiered EIR for the Management Plan and Fee Program.  Indeed, the court noted that a Program EIR is distinct from a Project EIR which is prepared for a specific project and provides site-specific analysis.  In this case, the court held that the Management Plan and Fee Program constituted the specific project at issue and required a tiered EIR to examine its potential environmental impacts.

The court’s holding in this case is consistent with California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, which held that an EIR was required to properly review a fee program.

Key Points:

An EIR must inform the formulation and approval of a mitigation fee program.  To avoid the need for a project level EIR for a mitigation fee program, a public agency proposing to adopt a land use plan could develop within that plan the specific terms of any contemplated fee programs and analyze potential environmental impacts of those fee programs.  This approach would allow the public agency to analyze the fee program within the EIR for the plan and avoid future environmental review.

This decision also adds to recent case law addressing the fair argument standard.  In light of recent decisions, we note that it is becoming nearly impossible for a negative declaration to withstand challenge if any evidence is produced regarding the potential for environmental impacts.

Written By: Tina Thomas and Ashle Crocker

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.