March 2016

Preserve Poway v. City of Poway (March 9, 2016, D066635) ___ Cal.App.4th ___.

By William W. Abbott

It is no surprise that people dislike change. California’s near constant state of evolvement is fertile ground for localized conflict between those fostering growth and those seeking to protect the status quo. While the fear or opposition to community change may well be the motivating factor in many CEQA disputes, is community change by itself an impact which must be addressed. According to Division One of the Fourth Appellate District, the answer is no.

The underlying facts are neither remarkable nor unusual. The setting is the City of Poway, known as “The City in the Country.” A property owner, Harry Rogers, had operated a horse boarding facility for twenty years, located across the street from the polo/rodeo grounds of the Poway Valley Riders Association (which did not offer horse boarding.) Seeking greener pastures, Rogers proposed to close the boarding facility and subdivide his property into equestrian residential lots. The proposed subdivision conformed to the zoning and was unanimously approved by the City Council based upon a negative declaration. Horse enthusiasts filed a CEQA challenge over the conversion of use. The CEQA challenge raised a number of issues, noteworthy among which involved the loss of the facility and its potential implications to the character of the community. Equestrian activities were well thought of and helped define the community of Poway. The trial court found that most of the issues in the CEQA writ petition had not been raised administratively and could not be pursued at trial for failure to exhaust administrative remedies. Reviewing the issue of community character, the trial court concluded that a fair argument had been made and directed that the Negative Declaration and project approval be set aside. As to the remaining issues, the trial court ruled for the City. The applicant timely appealed. The petitioners did not appeal the adverse ruling on the remaining claims.

The appellate court reversed, concluding that community character was not the type of issue that CEQA was concerned with, as the impacts of closing the facility were social in character. The residents’ concerns were expressed in terms of childhood activities, life’s lessons while learned apparently on the back of a horse, the benefits to horse owners of not having to haul their horses around, and that the community would lose its country feel. While courts have recognized land use changes may affect a community through aesthetic impacts, in this particular case the impacts were to the psyche of the residents and were not the basis for requiring an environmental impact report. From the court’s perspective, these concerns were “psychological, social, and economic—not environmental.”

The project opponents further argued that the existing rodeo/polo facility could cause impacts to the future subdivision. The appellate court rejected followed the Supreme Court’s recent decision in California Building Industry Association v. Bay Ara Air Quality Management Dist. (2015) 62 Cal.4th 369 and rejected the argument, finding that CEQA’s focus was on the impacts of the project on the environment, not the other way around. As to traffic impacts, there was no “fair argument” from the court’s perspective.

On appeal, the project opponents also argued that the trial court committed error in not requiring an EIR on other grounds. However, the opponents had failed to cross appeal these aspects of the lower court judgment, and could not now raise them in response to the appeal by the real party in interest. 

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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.


Reserve your seat for this seminar taking place on March 15, 2016

This seminar addresses wetlands and associated endangered species challenges, the latest statutory and regulatory guidance, plus valuable strategies for addressing each. Compliance guidance for wetlands programs will be provided while underscoring the issues and solutions specific to the agricultural and development community.

You will hear the latest trends, case studies and policies related to wetlands and associated ESA regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve. To view the class outline click here.


Diane G. Kindermann is a founding partner of Abbott & Kindermann, LLP a land use, environmental and real estate firm representing clients throughout California. Since 1989, she has been practicing in the areas of environmental, land use, and real estate law representing numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State Endangered Species Acts, wetlands, water rights and water quality, mineral rights, timber and forestry resources, NEPA and hazardous waste matters, including CERCLA. She provides legal guidance on permit acquisition and compliance at the regulatory agency level and litigation services at the Federal, State and local levels.

Diane S. Moore, M.S. is the Principal Biologist of Moore Biological Consultants, a biology-based firm specializing in compliance with Clean Water Act (CWA) and State and Federal Endangered Species Acts.  She has over 25 years experience in the management of biological resources including due-diligence, baseline inventory, impact assessment, permitting, and preparation of various environmental documents and has secured wetland permits and associated approvals from the U.S. Army Corps of Engineers and other agencies for a variety of public works, development, recreation, agriculture, mining, and restoration projects, primarily in the Central Valley.

(To Register Click Here)

  • Date: Tuesday, March 15, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available. (Approval pending.)