Ocean View Estates Homeowners Association, Inc. v. Montecito Water District (2004) 116 Cal.App.4th 396.
Failure to adequately address potential impacts of mitigation measures invalidates mitigated negative declaration.
Failure to address impacts on private and public views of four-acre, 15-foot tall reservoir cover invalidates mitigated negative declaration.
by Joel Ellinwood, AICP
It took only two swings for the Montecito Water District to strike out in its attempt to go to bat* for its adoption of a mitigated negative declaration (MND) as CEQA compliance for its plan to build a four-acre aluminum cover for the Ortega Reservoir in Summerland, Santa Barbara County. Perhaps it is understandable that one of the CEQA curve balls that flummoxed the District in a community that is locally known for its unofficial clothing-optional beach was failure to adequately address visual impacts. One might expect that concern over visual pollution and blocking of scenic vistas would be particularly acute there.
The District’s first strike came on a change-up. The initial study recognized that creation of such a large impervious surface could result in downstream flooding. In mitigation, the District proposed retaining excess runoff on site and metering releases downstream through an outflow pipe. The expert reports for this mitigation warned that potential hazards of storm water contamination of the reservoir or catastrophic dam failure could result if the outflow pipe became blocked. These potential impacts of the run-off mitigation system were not identified or discussed in the MND. The District argued that systems to address these issues merely called for design changes in the project after the issuance of the MND that, once made, the potential for contamination or dam failure would be mitigated to a less than significant level.
The appellate court pointed out that design changes escape additional CEQA review only if they address mitigation measures for impacts that are recognized and determined to be mitigated to a less than significant level in the MND. In this case the mitigation was for potential impacts of a mitigation measure that was not revealed in the public review process. Only after potentially significant impacts are disclosed and mitigation measures for those impacts are adopted can design details of the mitigation measure be left to the engineers.
Strike Two – “I never saw it coming.”
Although the Court somewhat dismissively stated, “presently, the reservoir looks like a very large swimming pool tying to pass as a lake,” it compared it to a similar facility in the City of Santa Barbara as providing, “‘a striking and unique visual feature, albeit . . . artificial.'” The proposed cover that would extend over four acres would be fifteen feet tall at its highest point and be constructed of material with a semi-reflective mill, that finish would over time would oxidize to a dull gray. It appeared from photographic evidence in the record that a side view of the cover above the dam face might be visible to the public from trails which would not be screened by landscaping, as well as from two private homes at higher elevations on the hill above the reservoir.
The District attempted to use ambiguity in the arguments based on the photographic evidence, as not including expert testimony of a surveyor or the use of story poles or other visual impact assessment techniques, as constituting mere expressions of concern, questions or objections, to argue that there was not substantial evidence of adverse environmental impacts, citing CEQA Guidelines section 15385(a). The court rejected this claim because the overall aesthetic impact of the cover was by its very nature subjective and not within the special purview of experts.
The District also argued that because there is no common law right to unobstructed views (citing Noronha v. Stewart (1988) 199 Cal.App.3d 485) that the impacts on the private views of the uphill homeowners are not environmentally significant under CEQA. The Court held private rights are distinguishable from public impacts which must still be evaluated under CEQA.
The only limiting factor on consideration for CEQA purposes of expressions of opinion on visual aesthetic impacts or of impacts on private views suggested by the Court was the sheer number. The Court opined that if “only a few private views” were impacted or that if there were only “one or two people” expressing concerns about the visual aesthetic impacts, an agency may determine the impacts are not significant. Since in this case the County Planning Department comments on the initial study suggested appropriate landscape screening and painting the roof to better blend in with the surrounding terrain, if feasible, the Court held that substantial evidence to support a fair argument of significant adverse aesthetic impact existed, and directed that the MND be vacated. From a practical perspective, once an independent agency made comments regarding visual aesthetics, private citizen views became largely academic.
1) Make sure mitigation measures themselves don’t have impacts that require mitigation. If they do, include their impacts and mitigation plans in the initial study and MND.
2) Whenever potential visual aesthetic impacts are involved, document the record with appropriate photo-simulations, story poles, viewshed studies, balloon flights, sight line analyses, etc. to document the extent that the project will actually be visible and from where. If the project is visible, the fewer people that object, the less likely a Court will find that there is substantial evidence of significant impact, based on subjective expressions of concern or aesthetic opinions alone. Ironically, the effect of providing detailed documentation could result in expanding public comment, thereby generating a legal foundation for an EIR.
*The reader’s indulgence is requested for the author’s enthusiasm, as the 2004 baseball season begins while this article is being written and he just wrote a check for tickets for the Giants 2004 season. His view will be from Section 324 of SBC Park.
Joel Ellinwood, AICP is a senior associate with Abbott & Kindermann, LLP in Sacramento. 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.