CEQA Case Report: Understanding the Judicial Landscape for Development[i]
By Christopher W. Garrett, Megan K. Ampe, James A. Erselius
In a published opinion issued May 1, 2018, Jensen v. City of Santa Rosa, Case. No. SCV255347, the California Court of Appeal affirmed the trial court’s judgment upholding the City of Santa Rosa’s (City’s) negative declaration finding no significant environmental effects. In summary the court found:
- The presentation of a non-expert analysis using a vague and difficult-to-grasp methodology cannot be regarded as a legitimate factual or scientific basis and will not satisfy the requirements of substantial evidence to support a fair argument.
The petitioners, two neighbors of the proposed project (Petitioners), had filed an unsuccessful petition for writ of administrative mandate seeking to overturn City’s negative declaration and to compel City to perform an environmental impact report (EIR). Petitioners had challenged City’s decision under CEQA alleging that, among other things, noise impacts from the Project were sufficient to require the preparation of an EIR.
Background on Appeal
This case arose from City’s decision to turn a defunct hospital into a facility that would house homeless and at-risk young adults, and provide counseling, education, and job training (the Project). In addition, the Project would offer outdoor recreational activities including pottery throwing, basketball, and gardening. The Project was bordered by residential housing to the south and west. To the south, the Project site was separated from single-family homes by a parking lot, a wooden fence, and mature foliage. In 2013 the Project’s sponsors applied for a conditional use permit, rezoning, and design review. City held two public meetings to allow for public input, and then prepared a draft Initial Study / Negative Declaration finding no significant effects on the environment. After a 20-day public comment period, City prepared a revised Initial Study / Negative Declaration. In 2014, City adopted the Negative Declaration at a public hearing, and recommended implementing the necessary rezoning and other changes required to enable the Project to progress. Petitioners appealed to City Council, which unanimously denied the appeal. Petitioners then filed a petition for writ of administrative mandate, which the trial court denied and Petitioners timely appealed.
Petitioners Presented Insufficient Evidence to Support a Fair Argument
On appeal, Petitioners argued that an EIR was required because significant noise pollution would result from (i) the south parking lot and (ii) the resident’s outdoor activities. The court first noted that an EIR must be prepared if substantial evidence supports a “fair argument” that a project may entail significant environmental effects, even if there is also substantial evidence that such an effect will not occur.
During the approval process, City had commissioned a study from an acoustic expert (the Expert) to determine whether noise effects from the Project would be significant, thus requiring an EIR. The Expert determined that noise effects would be significant in three circumstances, two of which the court found relevant. Effects would be significant if either of the below applied:
- They would expose persons to or generate noise levels in excess of applicable noise standards in City’s noise ordinance
- Operation of, or traffic generated by, the Project would substantially increase noise levels
City’s noise ordinance set base ambient noise levels for residential neighborhoods at 60 decibels (dB), including the neighborhood in which the Project was situated. The Expert explained that even if noise effects did not violate the noise ordinance, significant impact could still occur if, as a result of the Project, noise levels exceeded existing levels by 5 dB or more. To determine whether the noise effects of the Project were significant, the Expert took readings at specific locations around the property, which he used to create a combined average baseline dB for both day and night. He then determined how much noise various activities at these locations would produce, and compared the two sets of numbers. The Expert concluded that neither the outdoor activities, nor the south parking lot, would cause significant noise impacts.
Petitioners argued that the Expert’s analysis of the Project should be rejected. They claimed that they could demonstrate significant impacts using a methodology the Expert employed in his analysis of a 24-hour convenience store and gas station. They alleged that City’s noise ordinance should be understood as a maximum, rather than a baseline, and that any increase was potentially significant. Then, using the existing noise levels as a baseline, Petitioners used the highest estimate for increased noise effects from the prior study and assumed that the noise levels would increase by that amount. This methodology revealed an increase of more than 5 dB, which, according to the Petitioners, proved that an EIR was required.
The court rejected this argument and found no substantial evidence supporting a fair argument that there would be a significant noise impact. As a preliminary matter, the court noted that Petitioners’ calculations had not been included in their filings in the lower court and could be rejected on that basis alone. The court was also unconvinced by Petitioners’ use of data from the prior study, and noted that it was difficult to regard Petitioner’s methodology and findings as legitimate when neither had been evaluated by an expert. The court noted that the Petitioners appeared to be using the highest possible values for potential noise generation, rather than an average — as the Expert had done in both studies. Finally, the court noted that regardless of the illegitimacy of the Petitioners methodology, the identified noise effects did not violate City’s noise ordinance.
Accordingly, the court affirmed the trial court’s judgment. The court upheld City’s decision to issue a negative declaration, allowing the Project to progress without an EIR.
- Opinion by Acting Presiding Justice Jon B. Streeter, Justice Timothy A. Reardon and Justice Ethan P. Schulman concurring.
- Trial Court: Superior Court of Sonoma County, No. SCV255347.
[i] California court decisions on California Environmental Quality Act (CEQA) related cases can impact business not only in California, but more broadly in other US jurisdictions (e.g., under the US National Environmental Policy Act (NEPA), though statutory provisions may differ). Latham’s case summary series provides a comprehensive archive of both published and unpublished cases, in order to track judicial interpretations of CEQA and new legal developments. Unpublished or “non-citable” opinions are opinions that are not certified for publication in Official Reports and generally may not be cited or relied on by other courts or parties in any filing with California courts in other court proceedings. (see California Rules of Court, rule 8.1115).
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