A development project’s potential noise impacts can implicate complex and technical issues under CEQA, particularly where those impacts are asserted, in litigation by project opponents challenging a negative declaration, as the sole basis an EIR should have been required.  Such was certainly the case in Charles T. Jensen v. City of Santa Rosa (Social Advocates For Youth, Real Party in Interest) (1st Dist. 2018) ___ Cal.App.5th ___, a dense 24-page opinion filed by the Court of Appeal for the First Appellate District (Division 4) on May 1, and later ordered certified for publication on May 24, 2018.

Published cases upholding negative declarations are always noteworthy because the low threshold “fair argument” test renders such CEQA documents extremely vulnerable to litigation challenges.  In some ways, this case’s result might be viewed as a matter of “white hats” versus “black hats.”  The so-called “Dream Center” project at issue is a particularly sympathetic one.  The well-established, non-profit youth support organization Social Advocates for Youth (SAY) proposed, and the City of Santa Rosa approved conversion of the defunct Warrack Hospital (closed in 2008) into a 69-bed facility to house 63 young adults (ages 18 to 24) and provide counseling, education and job training, a health and wellness center (for ages 5 through 24), and activities for residents including a pottery making area, half-court basketball area, and resident-tended garden.  The Dream Center would provide services to physically, sexually and emotionally abused children, runaways, homeless youth, former foster youth, and homeless young adults unable to afford housing or find employment.  What’s not to like?

On the other hand, the project’s opponents (some might say “NIMBYs”) were two not-so-sympathetic residential neighbors of the former medical campus site, which is bordered on the north and east by streets separating it from neighbors, on the west by single-family condos and a convalescent hospital, and on the south by single-family homes buffered by a parking area, wooden fence and mature landscaping.  Nor was the neighbors’ challenge to the project presented in a particularly sympathetic manner.  Prior to and after SAY’s filing of the necessary CUP, rezoning and design review applications, the City reached out to them by holding two neighborhood meetings seeking public input; it thereafter circulated a draft Initial Study/Negative Declaration (identifying no significant environmental effects) for a 20-day public comment period, after which the City’s Planning Commission held a public hearing and unanimously voted to adopt the negative declaration, approve the CUP and recommend the required rezoning.  The neighbors’ administrative appeal to the City Council was heard nearly two months after its filing, but it was not until approximately four hours prior to that hearing that their attorney emailed an 11-page letter to the Council critiquing the Initial Study.  (While sometimes unavoidable due to the timing of the engagement, last minute “document dumps” are guaranteed not to endear those bringing administrative appeals to local electeds and their staff members.)

Appellants’ attorney’s letter mentioned and included a copy of another noise study performed by SAY’s acoustical engineer (Svinth) at a different Santa Rosa site for a 24-hour convenience store/gas station project (the Tower Market Study), but they failed to articulate to the City either in the letter or at the hearing the detailed calculations and arguments they would later include in their appellate briefs.  As an aside, while an agency or real party expert’s own evidence can sometimes effectively be used to undermine that expert’s conclusions or to show an overlooked impact where it clearly pertains to the project at issue, it is obviously the better course of action (assuming that time and resources permit) for negative declaration challengers to hire their own qualified expert to place a contrary, fact-based opinion in the record to support the requisite “fair argument” of potential impact.  That course was not followed by the “black hats” here, who instead pursued the much riskier tactic of relying on attorney argument to substitute for actual expert opinion evidence – a choice that ultimately proved fatal to their CEQA action.

Perhaps, unsurprisingly, the Council unanimously denied the neighbors’ administrative appeal, adopted the negative declaration (without requiring mitigation), and approved the CUP (with 26 conditions of approval (COA)) and the rezoning.  (Notably, the COAs included requirements to post a contact number for neighborhood concerns, and to hold quarterly meetings with neighborhood residents.)

The neighbors then sued under CEQA to set aside the project approvals and compel preparation of an EIR. The trial court was unpersuaded by their case, and denied their petition for writ of administrative mandate.  Undaunted, they appealed, claiming traffic noise from the Project’s south parking lot and noise from the residents’ outdoor recreation activities (i.e., pottery-making, gardening, and basketball) would be significant and required preparation of an EIR.

All of which led to the Court of Appeal affirming the judgment denying the writ in a published opinion, and “conclud[ing] there is no substantial evidence supporting a fair argument there would be a significant noise impact from those sources.”  It held “[t]he parking lot noise impacts predicted by appellants are largely hypothetical, given the City’s [CUP] parking restrictions in that lot, and [that] appellants’ [non-expert] impact calculations are based on data from a different project that cannot reasonably be applied to the Dream Center in the manner advocated by appellants.”  Further, it held appellants’ argument regarding outdoor activities noise was “also based on a flawed analysis” and that “any noise impacts identified by appellants were not significant under CEQA and did not require preparation of an EIR.”

Significant points and key takeaways from the Court of Appeal’s opinion (along with some of my own observations) include:

• When a proposed project “may have a significant effect on the environment,” the lead agency considering its approval must prepare an EIR. (Pub. Resources Code, § 21151(a).)  Where substantial evidence in the record supports a “fair argument” the project may have a significant environmental effect, an EIR is required even if other substantial evidence indicates there will not be such an effect.  (Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 151; Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316; CEQA Guidelines, § 15065.)  The lead agency may adopt a negative declaration if it determines there is no substantial evidence in the whole record before it that the project will have a significant environmental effect.  (Pub. Resources Code, § 21080(c)(1).)
• A “significant effect” under CEQA is “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project,” which include a project’s effects on “ambient noise.” (CEQA Guidelines, § 15382; Pub. Resources Code, § 21060.5, 21151(b).)
• Determining whether a project may have a significant environmental effect calls for the agency’s “careful judgment…, based to the extent possible on scientific and factual data. An ironclad definition of significant effect is not always possible because the significance of an activity may vary with the setting [, e.g., urban versus rural].”  (CEQA Guidelines, § 15064(b), (c); National Parks & Conservation Assn. v. County of Riverside (1999) 71 Cal.App.4th 1341, 1358.)
• “The lead agency has substantial discretion in determining the appropriate threshold of significance to evaluate the severity of a particular impact.” (Mission Bay Alliance v. Office of Community Investment & Infrastructure (2016) 6 Cal.App.5th 160, 192.)  CEQA’s Guidelines encourage agencies to develop benchmarks called “thresholds of significance” to assist in this evaluation, and CEQA defines a threshold as an “identifiable quantitative, qualitative, or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant … and compliance with which means the effect normally will be determined to be less than significant.”  (CEQA Guidelines, § 15064.7(a), emph. added.)  Consistent with the above-emphasized language, the agency’s obligations to use “careful judgment” and to consider effects in the context in which they occur, and the “fair argument” test, and per the Court of Appeal:  “Thresholds of significance are not used to determine automatically whether a given effect will or will not be significant.”  (Emph. added; see also Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1108-1109; CEQA Guidelines, § 15064.7(a).)
• A city’s decision to adopt a negative declaration is reviewed by a court for “prejudicial abuse of discretion,” which is established if it has not proceeded in a manner required by law or its determination is not supported by substantial evidence (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 171; Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 198), and courts employ “a hybrid, quasi-independent standard of review” in which their “function is to determine whether substantial evidence supported the agency’s conclusion as to whether the prescribed ‘fair argument’ could be made.” (Quoting Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602-1603.)
• “The petitioner bears the burden of proof to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact.” (Citing Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 899.)
• Applying the foregoing principles to the case before it, the Court of Appeal first determined as a matter of law that certain numeric “base” ambient noise levels set forth in the City’s Code for certain zoning designations and times of day, expressed in terms of Sound Level A (decibels), were not “thresholds of significance” or “maximum allowable noise levels for the times of day indicated.” Rather, they were “normally acceptable noise levels for the zones and times indicated” which were “intended to be used for comparative purposes.”  While City’s Noise Ordinance did prescribe maximum decibel (dB or dBA) levels for certain noise-generating sources, such as mechanical equipment, it did not do so for the types of noise-generating sources at issue for the Dream Center, i.e., parking lot noise and residents’ recreational activities.  As explained by SAY’s noise expert, Svinth, the project’s pottery area and basketball court were thus governed only by the General Plan’s provision for 60 dBA Ldn (average A-weighted day/night level) in residential neighborhoods, which Svinth opined also allowed a further increase of about 5 decibels from that level before a significant effect would occur.
• The Court held, de novo and as a matter of law, that City Code § 17-16.040 governed the Dream Center’s noise sources raised on appeal; that section contained a qualitative proscription of “any loud, unnecessary, or unusual noise which disturbs the peace or quiet of any neighborhood or which causes discomfort or annoyance to any reasonable person of normal sensitiveness residing in the area,” followed by a dozen “standards” to be “considered in determining . . . a violation[,]” e.g., level, intensity, nature, origin, time and duration of the noise, level and intensity of background noise, proximity to sleeping facilities, zoning nature and density, etc.
• Svinth, a member of an engineering firm specializing in acoustics, performed a Noise Study which concluded the Dream Center would cause no significant noise impacts, and that study was incorporated into the CEQA Initial Study and relied on by the City in issuing the negative declaration. Svinth’s study calculated and consistently used “day/night average noise level” (Ldn) to measure base ambient noise levels and assess project noise impacts, explaining that greater increases (up to 5 dBA Ldn) are tolerated in quieter areas like the project neighborhood, whereas in noisier areas a lesser (3 dBA Ldn) increase would trip the significance threshold.  He identified relevant project-specific “significance criteria,” including whether General Plan or Noise Ordinance Standards would be exceeded, and whether project-generated noise would increase noise levels 5 dBA Ldn or greater above existing conditions.  He concluded project activities and traffic noise would increase existing levels at the south border and southwest “tip” of the project (areas abutting sensitive residential receptors) by a maximum of 1 dBA Ldn and would thus not exceed the significance thresholds.  He limited his traffic noise analysis to surrounding streets based on the assumption, supported by a COA attached to the CUP, that the project’s parking lot abutting its southern border would only be used during regular hours and only by SAY employees.
• Appellants launched a technical argument attacking Svinth’s methodology, contending he should have used Leq calculations to make daytime, evening and nighttime noise comparisons, rather than Ldn calculations with day/night averages – an argument which appears to run afoul of the discretion an agency enjoys under CEQA to choose its own methodology for studying an impact so long as it is supported by substantial evidence. (E.g., North Coast Rivers Alliance v. Marin Municipal Water District Board of Directors (2013) 216 Cal.App.4th 614, 642 [“[I]ssue is not whether other methods might have been used, but whether the agency relied on evidence that a ‘reasonable mind might accept as sufficient to support the conclusion reached’ in the EIR.”].)  Appellants also argued a lower threshold of significance should have been employed “because the vicinity of the Dream Center was an exceptionally quiet neighborhood” – an argument which is not without some facial appeal under CEQA Guidelines § 15064(b)’s principle that “the significance of activity may vary with the setting,” but which also runs counter to an agency’s substantial discretion to develop its own thresholds of significance, even in the negative declaration context.  (CEQA Guidelines, § 15064.7; see Rominger v. County of Colusa (2014) 229 Cal.App.4th 690, 716, citing Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1068.)  Using the methodology Svinth employed in the Tower Market Study for a 24-hour convenience store/gas station project located in a different, denser part of the City, appellants also purported to have demonstrated that properly recalculated ambient noise levels would show a significant project impact.
• But none of appellants’ arguments impressed the Court of Appeal, which noted that their calculations appeared nowhere in the administrative record, and first showed up only in their superior court reply brief – which alone was reason enough to ignore them. Nonetheless, it went further to reject them on their merits, stating: “As the City rightly observes, by manipulating data and drawing conclusions from charts and numbers in the two noise studies, appellants have cast themselves in the role of noise experts.  But even if we were to accept the[ir] base level calculations at face value, . . . the remainder of appellants’ assumptions and calculations casts the sum of their work into doubt and prevents us from finding there is a fair argument that an EIR is required.”
• The Court proceeded with a detailed, technical 10-page critique of appellants’ non-expert noise analysis, explaining why their noise impact calculations did not constitute “creditable evidence” supporting a fair argument. Without going into too much detail, the Court found that appellants (1) misread the Tower Study, drawing flawed conclusions from it; (2) failed to justify their challenge to Svinth’s Ldn methodology; (3) erred in treating Svinth’s 5 dBA increase “threshold of significance” as an absolute maximum (in light of the General Plan’s allowable 60 dBA limit, and the Noise Ordinance’s actual more flexible and qualitative approach); and (4) fundamentally misplaced reliance on “calculations [that] are essentially opinions rendered by non-experts, which do not amount to substantial evidence.”  (Citing Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1417; Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 899.)
• Per the Court: “The two projects [Tower Market and Dream Center] are not similar and we do not feel confident importing data from a wholly different noise study into the Dream Center study, at least in the manner appellants ask us to use that data.”  The Court rejected appellants’ arguments about predicted noise impacts as (1) non-expert evidence, (2) speculative given project parking restrictions, (3) reliant on a reading of the Noise Ordinance inconsistent with the Court’s, and (4) premised on misreadings of the Tower Market Study, and thus not supported by substantial evidence – such as facts, fact-based expert opinion, or reasonable inferences from facts – upon which a fair argument could be based.
• In summing up the flaws that typified appellants’ “attorney-playing-expert” approach, the Court stated: “Appellants’ vague and hard-to-grasp methodology appears to require us to compare the highest possible predicted noise levels from the [project’s] outdoor activities to appellants’ own calculated maximum allowable noise levels, rather than comparing an average noise value, such as the Ldn used by Svinth, with the base levels, identified in the City Code.  [Citation]  We cannot regard this as a legitimate factual or scientific basis for finding a significant impact, and it is not supported by expert opinion.  In any case, the noise increases identified by appellants do not amount to violations of the Noise Ordinance or the General Plan under Svinth’s criterion one [or the governing City Code section’s multi-factor approach].”

While, in light of the “low threshold” and normally easily satisfied “fair argument” standard, this case might be viewed as atypical, or cynically in terms of “white hat wins, black hat loses,” such a reading would fail to do justice to the valuable legal lessons to be gleaned from it.  While lay percipient witness testimony may be sufficient to create a fair argument as to noise impacts in that presumably rare case where the proposed project’s noise impacts have already occurred and have been experienced by neighboring sensitive receptors (see, e.g., Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, my post on which can be found here), in the more common scenario where noise impacts must be predicted from technical or scientific information, data and analysis,  special expertise will generally be required to provide an opinion that constitutes the requisite substantial evidence.  (See, e.g., Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 690-691, my post on which can be found here.)  In other words, lawyers shouldn’t try to be noise or acoustics experts, and their arguments should not be expected to adequately substitute for expert opinion on technical issues in CEQA cases.  If you are challenging a negative declaration and trying to establish a fair argument based on predicted impacts implicating scientific or technical data and analyses, you should hire a qualified expert with relevant expertise to provide the significant impact opinion evidence, and make sure to place that expert’s favorable opinion into the record of proceedings before the lead agency closes its public hearing on the project.