by William W. Abbott and Janell M. Bogue Lately, infill projects have become a hot-topic development strategy, especially in established neighborhoods. In Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, the developer proposed an infill project on a long, narrow strip of vacant land subject to a PUD zoning designation. The PUD called for the construction of townhouses in the project area, but the developer instead wanted to build a double row of single-family homes along a private street. Initially, the City was supportive. But even before preparation of the draft Mitigated Negative Declaration (MND), neighbors began to complain. They organized a group called “Pocket Protectors” and gathered signatures for a petition in opposition of the new project. Their complaints centered on the project’s inconsistencies with the PUD and city land use policies, which many of them had allegedly relied upon to control growth and development in the area. Pocket Protectors also complained about the aesthetic impacts of the project because it provided minimal setbacks from adjacent landowners, only planned nominal landscaping, and created a “canyon” effect due to the lining of the narrow street with closely placed homes of similar sizes. Subsequently, the Planning Commission denied approval citing many of the same complaints of the Pocket Protectors. The developer, after changes to the plan prompted by community meetings, appealed to the City Council. Two contentious meetings followed and after lengthy testimony from the developer and neighborhood residents, the City Council approved the project and the MND. The Council said that in its independent judgment that “there [was] no substantial evidence, either individually limited or cumulatively considerable, that the project will have a significant effect on the environment.” Pocket Protectors filed suit claiming that an EIR should have been completed before the Council approved the project. The Court, in reviewing the City Council’s decision to adopt the MND and approve the project, examined whether the opponents met the burden of the “fair argument” test. An EIR must be prepared when an agency finds substantial evidence supports a fair argument that the project may have a significant effect on the environment. CEQA Guidelines §15002(f)(1-2), No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75. The Court said that it did not have to rely upon the judgment of the City Council during its review and any doubts should be resolved in favor of preparing an EIR. First, the Court focused on Section IX, Appendix G of the CEQA Guidelines, which asks whether a project will have significant environmental impacts, including “conflict with any applicable land use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect.” Since the objectives of the PUD included providing adequate light and pure air and minimizing pedestrian and automobile traffic, the PUD qualified. The Court said that Pocket Protectors’ abundant testimony provided evidence of significant environmental impact “Relevant personal observations by area residents are properly considered for this purpose.” Additionally, it said that the Council’s approval of the project did not discuss any opposing evidence and instead it “merely recite[d] generally that substantial evidence of a significant effect on the environment does not exist.” The court found this unacceptable and said that “the proposed mile-long project facially conflicts with a PUD established by the City to mitigate the possible environmental effects of uncontrolled development and has the potential to cause an immediate adverse environmental impact to hundreds of nearby residents.” Second, the Court looked at Section I, Appendix G of the CEQA Guidelines, which reviews the aesthetic impacts of the proposed project on the surrounding area. It said, “As on other CEQA topics, the opinions of area residents, if based on direct observation, may be relevant as to aesthetic impact and may constitute substantial evidence in support of a fair argument; no special expertise is required on this topic.” The Pocket Protectors offered extensive testimony on the canyon effect and the insufficient landscaping of the project. Though the Court recognized that the City and the developer disagreed on these issues, it said that the disagreement was not sufficient to refute the claim of a fair argument. The lesson to take from this case is that a proposed project’s conflict with an established land use plan or PUD may give rise to a fair argument of significant environmental impact and require preparation of an EIR. Evidence can be found simply through testimony of potentially affected neighbors. Similarly, those neighbors’ aesthetic concerns can give rise to a fair argument and trigger EIR preparation. Though a recent case, Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572 seemed to hold that aesthetics alone could not prompt an EIR, the court in Pocket Protectors said that the facts were fundamentally different. In Bowman, the aesthetic concern was over a single building while here, an entire neighborhood would be affected by a large project. The fair argument standard is a low threshold. In situations like Pocket Protectors, where vocal community groups band together to oppose projects, that threshold may be easily reached and an EIR may be required. In many respects, Pocket Protectors may be the death knell to the successful defense of a negative declaration for controversial projects. It unquestionably increases the costs and risks of infill projects. For more information on Bowman, see the November 2004 Abbott & Kindermann article on the case. William W. Abbott is a partner and Janell Bogue is a law clerk with Abbott and Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.