By Janell M. Bogue

In the case of Citizens for Responsible and Open Government v. City of Grand Terrace (February 21, 2008) 2008 Cal.App.Lexis 359 the California Court of Appeal, Fourth Appellate District held that a mitigated negative declaration (“MND”) approved for a senior residential project was inadequate under CEQA. In doing so, the court discussed density calculations and the weighing of evidence under the fair argument test.


The City of Grand Terrace (“City”), located in Southern California near San Bernardino, purchased six acres in an area mostly populated by single family residences. Four acres of the land was previously approved as a public park. The City negotiated with the Corporation for Better Housing (“BH”), a nonprofit, to develop the site and the resulting project (called the Blue Mountain Senior Villas) consisted of 120 senior housing units, a four acre park, and an expansion to a pre-existing senior center. The City certified an MND and a local citizens group appealed.

Standard of Review

When reviewing a local agency’s adoption of a negative declaration, the court applies the “fair argument” test, as explained in Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885. In Porterville, the court explained that the fair argument test is a low threshold and “reflects a preference for resolving doubts in favor of environmental review when the question is whether any such review is warranted.” (Citing Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144.) Substantial evidence is defined at Public Resources Code section 21080(e)(1) as including “…fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.” It does not include “argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.” (Pub. Resources Code, § 21080(e)(2).) 

Density – What is the Denominator?

The plaintiffs first contended that the project’s density would have a significant effect on the environment. The City’s general plan specified that the density limit was 12 units per acre. The general plan amendment approved as part of the project increased the density to 20 units per acre. BH calculated that this was the density of the project, as it divided 120 residential units by the six acres of property (the two acres of residential land plus the four acre park). The court, however, said that this method of calculating density was “disingenuous…particularly when the 4-acre public park was already approved as a public park…” The court held that the density was actually 60 units per acre, which was far above the amount allowed under the general plan amendment. The court held that because of this, there was substantial evidence of a fair argument that the high density development would result in a substantial change to the environment.

Building Height

The plaintiffs also claimed that the three-story height of the proposed residential buildings would create a significant environmental impact due to the aesthetic impact. Neighbors claimed that the high density building was uncharacteristic of the surrounding land uses. BH said that it modified the project after public complaints and that the modified buildings would be a combination of two and three stories in height. However, the court said that there was substantial evidence of a fair argument that the tall buildings, which would be located in the middle of a single-family residential area, would have a significant impact. BH cited Bowman v. City of Berkeley (2004) 122 Cal.App.4th 472 and claimed that the “obstruction of a few private views in a project’s immediate vicinity is not generally regarded as a significant environmental impact.” However, the court held that there was evidence showing that the impact would be to more than just a few people. The court referred to Bowman and said:

The impact creates a change in the aesthetic environment and interferes with scenic views of the public in general by introducing into the primarily single-family, residential neighborhood a large, high-density, residential building, which includes mixed two-story and three-story structures.

The court also cited Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477 and said, “Aesthetic issues, such as public views, are properly studied in an EIR to assess the impacts of a project.” 


Finally, the plaintiff group alleged that the project would create significant noise impacts due to the air conditioners for the residential buildings. The initial study concluded that the air conditioners would cause noise impacts, but mitigation measures such as shielding would bring the noise down to the City’s general plan standards. At the public hearing for the project, there were numerous complaints about the potential noise from both city council members and the community. After the City Council continued the hearing, BH stated at the location and number of air conditioners had been modified. However, the representative from BH did not know the noise level of the modified air conditioners and there was public testimony that the type of air conditioner had not actually been changed. The project architect stated that the air conditioners selected by BH were noisier than indoor units but were also less expensive. 

At the appellate court, BH asserted that the court could not weigh the evidence, as that was properly a job for the local agency. The appellate court said:

While this court must defer to the lead agency’s weighing of credibility questions involving disputed factual questions going to credibility, where there is no opposing evidence, there is no credibility determination requiring deference. [emphasis in original]

The court held that BH showed no evidence that the noise levels would be reduced and there was “a sufficient basis for concluding that, even with the mitigation measures in place, there was enough evidence to support a fair argument that the Project’s noise from 20 or more noisy air conditioners would have a significant environmental impact.” Further, the court held that there was no evidence to show that the noise standards of the general plan would even be monitored or enforced.

Because the plaintiff group presented substantial evidence of a fair argument that the project would have a significant effect on the environment, the City must prepare an EIR for the project. 

Janell Bogue is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP 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.