In an opinion published December 17, 2018, the California Third District Court of Appeal held that lay public opinion commentary regarding a Project’s design and size in a historic district rose to the level of substantial evidence supporting a “fair argument” that the Project may have significant aesthetic impacts on the environment, therefore triggering the need to prepare an environmental impact report (EIR) under the California Environmental Quality Act (CEQA). Georgetown Preservation Society v. County of El Dorado (Simon Cre Abbie, LLC, Real Party in Interest).
Georgetown is a “quaint unincorporated Gold Rush-era hamlet” in El Dorado County. The proposed Project was a discount chain store on three vacant lots on Georgetown’s Main Street adjacent to a museum, historic stamp mill, a bed and breakfast, and a historic residence. Public comments from local lay residents, a licensed architect, a city planner and a professional engineer, were submitted to the County arguing that the Project would not appropriately fit in visually or functionally and did not belong “in an historic gold rush community.” Despite the public criticism, the County proposed a mitigated negative declaration (MND) finding that the Project’s zoning, design, architectural treatments and associated improvements substantially conformed to the County’s General Plan and Historic Design Guide.
The Georgetown Preservation Society sought a writ of mandamus to invalidate the County’s adoption of the MND, claiming the County failed adequately to consider traffic impacts and aesthetic impacts of the Project, and that the Project violated local planning and zoning laws. The trial court held that the public comments submitted to the County provided substantial evidence to support a fair argument that the Project may have a significant aesthetic impact on the environment and thus required an EIR. The County timely appealed claiming that (1) the County’s finding that the Project complied with the local design review process 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 make any explicit findings to discount public commentary should not preclude challenging the comments on appeal.
The Georgetown Court reinforced Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, stating that an agency’s own design review is not a substitute for CEQA review if there is substantial evidence before the agency that the Project may have a significant effect on the environment. The Court dismissed the County’s attempt to rely on Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, in which the Second District Court of Appeal found that “where a project must undergo design review under local law, that process itself can be found to mitigate purely aesthetic impacts to insignificance.” The Court clarified that Bowman indicates that local design review may mitigate aesthetic impacts, however, it does not “necessarily or always adequately addresses aesthetic impacts.”
Further, the Court affirmed that lay public commentary on nontechnical issues can provide substantial evidence to support a fair argument that a project may have a significant aesthetic impact. The Court acknowledged that while “a few stray comments may not be enough,” the evidence here represented a “large number of interested people” who believed this Project was “too big” and “too boxy or monolithic to blend in” and thereby created a negative effect on aesthetics. The Court emphasized that the significance of an activity may vary with the setting and that the Project at issue here might fit smoothly into a different town of similar size. There was sufficient evidence to show that “this project in this location might significantly impair the central district’s unique and treasured Gold Rush character.” Moreover, the Court reasoned that opinions that the Project will not be aesthetically pleasing do not have to come from experts with certain qualifications, stating 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,” thereby requiring an EIR.
The Court also found that the County failed to make any explicit findings questioning the credibility of the public commentary and that the public comments may not be categorically disregarded.
The Georgetown case continues the trend in California finding that the deference given to planning and zoning decisions does not mean that such decisions are not in and of themselves CEQA determinations. As such, lay public commentary on aesthetic factors can provide enough fodder to require an EIR.
