By William W. Abbott

Jensen v. City of Santa Rosa (May 1, 2018, A144782) ___ Cal.App.5th ___.

Negative declarations are notoriously at risk as a result of the fair argument standard of review. As the recent decision in Jensen v. City of Santa Rosa (May 1, 2018, A144782) ___ Cal.App.5th ___, illustrates, the successful defense of a challenge will likely require a critical examination of the opposition evidence.

The facts in Jensen involved the approval of a rezoning, conditional use permit and design review for a young adult center which included housing, counseling, education and job training. Neighbors challenged the city’s reliance upon a negative declaration which included a noise study prepared by the applicant’s acoustic engineer. The trial court denied relief, and the neighbors appealed, focusing on potential noise impacts. The appellate court affirmed the decision of the trial court. The appellate court’s first task was to interpret the city’s noise ordinance. The court found that while the ordinance included stated noise levels in residential and non-residential districts, the noise levels were not maximum noise exposure levels; rather, the court found the ordinance reflected “standard or normally acceptable noise levels for the zones and times indicated.” These levels were not adopted as thresholds of significance. The noise ordinance also included specific limits for commercial and industrial activities. However, these levels did not apply to land uses such as the young adult center which was only subject to the ordinance’s generalized nuisance type language.

The applicant’s noise study considered the noise ordinance and included sound measurements and discussed noise impacts in terms of day/night differences and the normally acceptable tolerances. The consultant concluded, based on CEQA Guidelines Appendix G, that the noise impacts would not be significant. The appellants’ first criticism was that the noise study should have employed L_eq calculations rather than L_dn, pointing to another study performed by the same consultant for a commercial project elsewhere in the same city which used L_eq. The opponents went on to create calculations of maximum exposures, however, the appellate court ultimately concluded that the calculations and conclusions were “opinions by non-experts”, and did not rise to the level of substantial evidence.

Appellants also argued noise impacts associated with the Project’s parking lot. While the appellate court’s analysis reads as intuitive and not necessarily based upon the administrative record, the court ultimately concluded that there were too many differences between the 24/7 commercial use and that of the young adult center to permit reliance upon noise impact analysis generated for the commercial project. That, coupled with appellants’ speculation and conflicting interpretation of the municipal code, led the appellate court to conclude that the substantial evidence in support of the appellant’s argument was lacking.

Appellants’ final argument concerned noise from exterior activities including basketball, pottery making and gardening, all of which were evaluated in the noise study. From the appellate court’s perspective, appellant’s noise level analysis lacked credibility and was unsupported by expert opinion. Once again, substantial evidence was lacking.

One last thought – While lay members of the community are capable of providing substantial evidence on a number of matters, it is reassuring to see the courts apply a critical eye to evidence which crosses over into scientific matters.

William W. Abbott is a shareholder at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.