The purely aesthetic impacts of a housing project in an urban area are not enough to require preparation of an environmental impact report, the First District Court of Appeal has ruled.
In a lengthy opinion, the court appeared to conclude that where aesthetics are the lone issue, a local government's design review process could substitute for environmental review.
“Where a project must undergo design review under local law, that process itself can be found to mitigate purely aesthetic impacts to insignificance, even if some people are dissatisfied with the outcome,” Presiding Justice Laurence Kay wrote for the court.
Attorney Susan Brandt-Hawley, who represented neighbors opposed to a proposed 40-unit apartment building, called the decision an aberration that could “set the law back 30 years.” She said the court failed to apply the “fair argument” standard, which requires preparation of an EIR if the record contains substantial evidence to support a fair argument that a project could adversely impact the environment. Brandt-Hawley has requested a rehearing and depublication of the decision.
The developer's attorney did not return CP&DR calls. But in an analysis that favors the decision, attorneys at Morrison & Foerster said the ruling offers “important guidance for evaluating how the California Environmental Quality Act applies to infill and affordable housing projects.” Neighbors often fight infill projects based on aesthetic impacts, but “the court explained that the significance of an environmental impact must be measured in light of the context where it occurs, and the urban infill project at issue would not result in aesthetic impacts similar to those caused by projects located in environmentally sensitive areas or implicating historical or scenic resources.”
Although the case featured the common scene of Berkeley residents fighting housing construction, the case was uncommon in other respects, suggesting the tricky nature of infill development. For one thing, the Sierra Club sided with the developer, calling the project “smart growth.” For another, the lead litigant was Marie Bowman, an affordable housing advocate. She was represented at the appellate level by Brandt-Hawley, who frequently does work for the Sierra Club. Representing the developer was Shute, Mihaly & Weinberger, a San Francisco firm best known for its environmental protection work.
The proposed project is a four-story, 40-unit apartment building for low-income seniors, with 3,000 square feet of retail space on the ground floor. The site is a 0.41-acre parcel at Sacramento and Blake streets, where a vacant store now stands. Because the proposal's height, parking spaces, lot coverage and setbacks conflict with the zoning ordinance, the project needs a use permit.
Throughout the city's review process, neighbors complained that the proposed apartment building was too large for a neighborhood composed mostly of single-story houses built during the 1920s. The neighbors argued that the city should prepare an EIR because of numerous potential impacts. Nevertheless, the Berkeley Zoning Administration Board (ZAB) in February 2002 adopted a mitigated negative declaration and approved a use permit. Opponents appealed, but three months later the City Council upheld the ZAB decision on the condition that the developer provide two to five additional parking spaces. However, opponents complained that they did not receive notice of the City Council meeting, so they sued. When the court determined that opponents did not receive a fair hearing, the City Council set a new hearing for March 2003. Again, the council approved the mitigated negative declaration and a use permit.
Opponents returned to court, arguing that a mitigated negative declaration was inadequate because of potential impacts regarding aesthetics and hazardous materials. Opponents also argued that the city had miscalculated a density bonus and did not require the amount of parking mandated by city ordinance. Alameda County Superior Court Judge Bonnie Sabraw ruled for the city. The neighbors appealed, but a unanimous three-judge panel of the First District, Division Four, upheld the lower court.
The appellate court first dealt with the issue of hazardous materials. A neighboring property had been the site of a gasoline station from 1949 to 1993. The site had undergone testing and cleanup, and the city in 1997 concluded that impacts to soil and groundwater were well-defined and limited. The project developer, Affordable Housing Associates, prepared a phase 1 environmental site assessment, which relied on earlier monitoring. The mitigated negative declaration found that the project would have no impact regarding hazardous materials.
The consultant for the mitigated negative declaration, however, read the earlier monitoring reports differently than the neighbors did. They noted that an earlier consultant had recommended placing an additional monitoring well on the site of the proposed housing project, but the property owner at the time refused to provide access. They also argued the contamination was unlikely to recognize property lines. But that was not enough for the court.
“Statements of area residents who are not environmental experts may qualify as substantial evidence if they are based on relevant personal observations or involve 'nontechnical' issues,” Justice Kay wrote. “However, a complex scientific issue such as the migration of chemicals through land calls for expert evaluation, and the neighbors do not profess any expertise that would qualify them to opine on that subject.”
The court then turned to aesthetics. Neighbors contended that the building would be incompatible with the neighborhood, cast shadows on nearby homes and block views. However, the court concluded there was not substantial evidence that shading would be an impact, and, anyway, only a few people would be affected.
The court said the issue boiled down to one story of the proposed building, because neighbors said during a mediation process that they would accept a three-story building. The First District said no case law directly addressed a similar situation, so the court used a 31-year-old National Environmental Policy Act (NEPA) case, Maryland-National Cap. Pk. & Pl. Com'n. v. U.S. Postal Serv., 487 F2d 1029, for guidance. In that case, the U.S. Court of Appeals for the District of Columbia Circuit concluded that NEPA did not require an environmental impact statement to address the visual impacts of a proposed mail processing facility.
Citing that case, Kay wrote, “[W]e do not believe that our Legislature in enacting CEQA, any more than Congress in enacting NEPA, intended to require an EIR where the sole environmental impact is the aesthetic merit of a building in a highly developed area. To rule otherwise would mean that an EIR would be required for every urban building project that is not exempt under CEQA if enough people could be marshaled to complain about how it will look. … The aesthetic difference between a four-story and a three-story building on a commercial lot on a major thoroughfare in a developed urban area is not a significant environmental impact, even under the fair argument standard.”
Brandt-Hawley, however, said that the NEPA case was inapplicable because NEPA standards for an EIS are different than CEQA standards for an EIR. Additionally, she said, the court wrongly made a three-story building the baseline for analysis. Neighbors should not be penalized for discussing a three-story building during never-completed mediation, she contended.
“The baseline is the current situation, not what the neighbors purportedly offered in a settlement discussion,” Brandt-Hawley said. The court “is not measuring against the actual situation.”
The court did not publish the portion of its opinion upholding the city's handling of the density bonus and reduced parking requirement.
The Case:
Bowman v. City of Berkeley, No. A103980, 04 C.D.O.S. 8632, 2004 DJDAR 11751. Filed September 20, 2004.
The Lawyers:
For Bowman: Susan Brandt-Hawley, (707) 938-3908.
For the city: Zachary Cowan, city attorney's office, (510) 981-6950.
For Affordable Housing Associates: Ellen Garber, Shute, Mihaly & Weinberger, (415) 552-7272.
