In a published opinion filed December 17, 2018, the Third District Court of Appeal affirmed a judgment granting a writ setting aside El Dorado County’s approval of, and related Mitigated Negative Declaration (MND) for, construction of a Dollar General Store in the “quaint” downtown area of unincorporated Georgetown, a Gold Rush-era “hamlet” designated as a State Historical Landmark. Georgetown Preservation Society v. County of El Dorado (Simoncre Abbie, LLC, Real Party in Interest) (2018) _____ Cal.App.5th _____. The Court held lay public commentary on nontechnical issues concerning the project’s size and general appearance constituted substantial evidence supporting a fair argument that the project may have significant aesthetic impacts, and thus required an EIR, notwithstanding County’s findings that the project complied with its Historic Design Guide. The Court also held County’s failure to make explicit findings in the record on alleged credibility and foundation issues precluded its “manufacturing after-the-fact findings” to justify its dismissal of the public comments on the ground that they did not constitute “substantial evidence.”
While acknowledging that “[a]esthetics are subjective,” the Court rejected County’s attempts to take refuge in the presumably more objective principles of its Historic Design Guide, holding that its “planning and zoning” determination that the project adhered to those aesthetic and architectural standards did not constitute, nor substitute for, a CEQA determination under the fair argument standard.
Similar to another recent appellate decision holding an EIR was required to analyze a project’s aesthetic impacts on an officially designated historical district (see Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, my August 20, 2018 post on which can be found here), context was obviously important in this case. Dollar General proposed a 9,100 square foot chain discount store, and 12,400 square foot parking lot, to be constructed on a 1.2-acre site (consisting of three merged lots) on Georgetown’s Main Street, amidst surrounding structures and areas that included a museum, a historic stamp mill, a park, a post office, a local library, a bed and breakfast inn, and a historic residence. Public criticisms decried the proposed store as a “monstrosity,” a “corporate structure” that would be a “blight on the heart of this town,” and a “giant blemish on the face of historic Main Street” due to its size and “monolithic” appearance, which would not conform to other downtown buildings in the historic gold rush community. The County, however, found the project and its design substantially conformed to County’s Historic Design Guide and “would not substantially detract from Georgetown’s historic commercial district,” while tiering its CEQA review and MND off its 2004 General Plan EIR’s “visual character” analysis of that plan’s effects.
The trial court saw things differently, and entered judgment in favor of plaintiff and respondent Georgetown Preservation Society on its CEQA claim; it ruled that the public comments provided substantial evidence supporting a fair argument of significant aesthetic impact requiring an EIR, and that since County made no credibility determinations it could not categorically disregard those comments. It found plaintiff’s evidence of pedestrian safety and traffic impacts insufficient to support a fair argument, and did not reach its general plan inconsistency claim.
Key points and takeaways from the Third District’s published opinion affirming the judgment include:
The lack of definitive, objective and “bright line” standards of significance for evaluating a project’s alleged aesthetic impacts has long been an area of frustration for CEQA practitioners and project proponents – particularly because the finding of just a single potentially significant impact, even as to aesthetics, triggers preparation of a full blown EIR. As this case and the similar recent opinion in Protect Niles illustrate, context is key, and this concern is heightened and magnified for projects proposed in the setting of a designated historic area.