Mitigation measures taken after the issuance of a mitigated negative declaration do not satisfy the California Environmental Quality Act, the Second District Court of Appeal has ruled.

In a case involving a water district’s proposal to cover a small reservoir in the unincorporated Santa Barbara County community of Summerland, the court also ruled that the district should have considered the project’s potentially substantial impact to aesthetics.

At the behest of the state Department of Health Services, the Montecito Water District in 1998 decided to cover the 4-acre Ortega Reservoir with an aluminum roof to preserve water quality. The district conducted an initial study, which identified flooding as a potentially significant impact because of runoff from the impervious roof. Rather than prepare an environmental impact report, the district adopted a mitigated negative declaration (MND) that said the project "shall incorporate design measures" to detain runoff and meter its release "so that no modification to the downstream 100-year floodplain will result."

The 11-home Ocean View Estates Homeowners Association was not satisfied and filed a CEQA suit against the district. Santa Barbara County Superior Court Judge James Brown ruled for the district. The association appealed, and a unanimous three-judge panel of the Second District, Division Six, reversed the lower court.

The association argued that the mitigation measures themselves may have significant impacts, including contaminating drinking water and even causing the dam to fail. Ocean View pointed to reports by two engineering consultants to the district that raised the possibility of drinking water contamination and dam failure, and that recommended design changes which the district apparently accepted. But the mitigated negative declaration did not mention either potential impact.

In a very straightforward opinion, Presiding Justice Arthur Gilbert said that the water district erred.

"The district argues that changes in the project design have mitigated to insignificance the potential for contamination and dam failure. That may be true, but the argument misses the point of environmental review," Gilbert wrote. "Environmental review derives its vitality from public participation. That is what is missing here. The public was never informed of the significant impacts discussed by the district’s consultants. Those impacts were omitted entirely from the review process.

"The district argues that design changes should not require environmental review. That argument also misses the point," Gilbert continued. "Mitigation measures stated in a MND need not specify precise details of design. Having recognized a significant environmental impact and having determined that mitigation measures may reduce the impact to insignificance, the MND may leave the details to engineers. In such a context, the design may change many times without requiring further environmental review. Here, however, the MND fails even to recognize the problem. Nothing in the MND requires any measures to mitigate contamination or dam failure."

The court then turned to the issue of aesthetic impacts and what constitutes substantial evidence of an aesthetic impact. The court described the reservoir as a "very large swimming pool trying to pass as a lake" and as a striking visual feature. The view of the lake from private property would be lost, but, because of additional landscaping, the roof would be obscured from all homes except two. People on public trails would also be able to see the roof.

Ocean View property owners expressed concern about the aesthetics, and Santa Barbara County requested "appropriate mitigation measures" if the roof could be seen from surrounding homes or recreational trails.

The district argued that the loss of private views is not significant under CEQA — an argument the court flatly rejected. The number of private views affected might figure into significance of the impact, according to the court, but in this case the view from public trails also is impacted.

The district then argued that homeowners’ and the county’s "expressions of concern, questions and objections" do not constitute substantial evidence for CEQA purposes. But the court said those were enough.

"Consideration of the overall aesthetic impact of the cover by its very nature is subjective," Gilbert wrote. "Opinions that the cover will not be aesthetically pleasing is not the special purview of experts. Personal observations on these nontechnical issues can constitute substantial evidence. … If it were merely the matter of expressions of concern by one or two people, we might agree that there is no substantial evidence of a negative impact. But here the county urged the district to adopt mitigation measures if the cover can be seen from public or private view areas."

Thus, the court concluded, there was substantial evidence to support a fair argument that the project could have a negative aesthetic impact, and the mitigated negative declaration was not adequate.

The Case:
Ocean View Estates Homeowners Association, Inc. v. Montecito Water District, No. B162920, 04 C.D.O.S. 1842, 2004 DJDAR 2738. Filed March 2, 2004.
The Lawyers:
For the association: Herb Fox, (805) 899-4777.
For the district: David K. Hughes, Price, Postel & Parma, (805) 962-0011.