Reprinted with the permission of LexisNexis.
122 Cal. App.
4th 572; 18 Cal. Rptr. 3d 814; 2004 Cal. App.
LEXIS 1572; 2004 Cal. Daily Op. Service 8632; 2004 Daily Journal DAR 11751; 34 ELR
MARIE BOWMAN et al.,
Plaintiffs and Appellants,
CITY OF BERKELEY, Defendant and Respondent; AFFORDABLE HOUSING ASSOCIATES,
Real Party in Interest.
COURT OF APPEAL OF CALIFORNIA, FIRST DISTRICT, DIVISION FOUR
September 20, 2004, Filed
NOTICE: CERTIFIED FOR PARTIAL PUBLICATION *
*Pursuant to California Rules of Court,
rules 976(b) and 976.1, this opinion is certified for publication with the
exception of part II.B.
Brandt-Hawley Law Group, Susan Brandt-Hawley and Paige J. Swartley for Plaintiffs and Appellants.
Richard Pettler for Berkeley Architectural Heritage Association as
Amicus Curiae on behalf of Plaintiffs and Appellants.
Manuela Albuquerque, City Attorney, and
Zach Cowan, Deputy City Attorney, for Defendant and Respondent.
& Weinberger, Ellen J. Garber, Marc B. Mihaly and
Jenny K. Harbine for Real Party in Interest.
Goldfarb & Lipman,
Richard A. Judd and Rafael Mandelman for Sierra Club
as Amicus Curiae on behalf of Defendant and Respondent and Real Party in
Bowman et al., as individuals and on behalf of Neighbors for Sensible
Development for 2517 Sacramento Street (collectively the Neighbors), appeal
from the judgment denying their petition for writ of mandate to overturn the
resolution of the City of Berkeley (the City) authorizing Affordable Housing
Associates (the Developer) to construct a housing complex for senior citizens
(the Project). The Neighbors contend that the City erred under the California
Environmental Quality Act (CEQA; Pub. Resources Code, § 21000
et seq.) n1 in adopting a mitigated negative declaration for the Project
rather than preparing an environmental impact report (EIR), because there is substantial
evidence that the Project may have significant environmental effects in the
areas of aesthetics and hazardous materials. The Neighbors argue further that
the City improperly calculated the density bonus to which the Project is
entitled under Government Code section 65915, and that the City's zoning
ordinance prohibits the number of parking spaces approved for the Project.
The principal issue is whether opinions
that the building is too large to be aesthetically compatible with its
surroundings constitute substantial evidence supporting a fair argument that
the Project will have a significant effect on the environment. Based primarily
on the Project's environmental context, and the fact that the Project has
undergone an extensive design review process to mitigate its visual impact, we
hold that there is no environmentally significant aesthetic effect that
requires an EIR in this instance. The Neighbors'
other objections to the Project's approval also lack merit. Accordingly, we
affirm the judgment denying their petition.
The Project, known as "Outback Senior
Homes," is to be built on the northeast corner of Sacramento and Blake
Streets in Berkeley, currently occupied by a vacant one-story building that had
been a clothing store. Sacramento Street is a divided four-lane road and
"one of Berkeley's most heavily used
thoroughfares." A two-story apartment building stands to the north along Sacramento Street, and there are single-family homes
to the east along Blake Street and to the west across Sacramento. The property is a
. 41-acre lot at the Sacramento-Blake corner, with a
strip along the eastern edge extending out to Dwight Way on the north,
behind the adjacent apartment building. The lot is zoned South Area
Commercial (C-SA), a designation that allows for a mixed-use, residential and
The Project involves demolition of the
existing building and construction of a mixed-use facility with retail space,
40 dwelling units--39 for low-income seniors and one for a building
manager--and 18 parking spaces. The building will be four stories tall along Sacramento, with retail space on the first
floor, and three stories tall along Blake, with common areas on the first
floor. The residential units are on the upper floors, and include five units on
the fourth story along Sacramento. The Project has undergone numerous
design changes since it was originally proposed.
The Developer's application to the City for
the Project permit was completed in November 2001. The application envisioned a
three-story building with 38 units of affordable senior housing, commercial
space on the first floor, and 13 parking spaces. The Developer indicated that
it had approached people in the neighborhood in 1999 with a proposal for a
four-story mixed-use building with housing for mixed-income families, but they
had expressed serious concerns with the size of the Project and did not support
a four-story building. In response to those concerns, the Developer decided
after purchasing the Project site in 2000 to lower the structure to three
stories, and to develop the property for low-income seniors. The Developer
submitted that the Project would improve the lot's appearance, replacing gated
parking lots and a graffiti scarred building of
"no apparent architectural value" with a structure "designed to
reflect both the commercial streetscape on Sacramento and the residential environment on Blake Street."
Members of the public and the City's Design
Review Committee (DRC) expressed their views on the
design of the Project at a preliminary DRC hearing on November 15, 2001. The Developer submitted revised drawings on December 7, 2001, showing alternative elevations along Sacramento Street. When the Project was previewed to
the City's Zoning Administration Board (ZAB) on December 13, 2001, the Developer indicated that it had changed the
Project's design to address the DRC's comments. Under the revised plans,
the building was stepped down to two stories near appellant Helene Hunter's
residence on Blake, causing a loss of several units; additional units were
added in a fourth story along Sacramento Street, for a net gain of three units. The
Developer advised that the extra units were required to cover additional
construction costs entailed by the new design. The Developer asked for
"clear direction" from the ZAB on the new design and received
positive responses from board members. Drawings for the new design were
submitted on January 11, 2002.
24, 2002, the City issued a proposed mitigated negative declaration for the
Project, with measures listed to mitigate potentially significant impacts in
the areas of noise, air quality, and geology/soils during construction, and in
traffic into and out of the property. The attached environmental initial study
concluded that the Project would have no impacts in the areas of aesthetics or
The Project was briefly previewed for a
second time to the ZAB on January 24, 2002. The Project architect went over
the new design, which included a "hipped" rather than flat roof to
reduce the building's perceived height. The architect noted that the building was now terraced down to two stories next to Hunter's home,
and that the terracing increased the construction costs. The Project came
before the DRC again on February 7, 2002. Members of the public again appeared and offered their
comments. A majority of the DRC approved of the elevation and step
down along Blake Street to the east, but did not support a
fourth story along the full length of Sacramento.
The Project came before the ZAB for
approval on February 14, 2002. The City staff reported that a use
permit was required to enable the Project's dimensions to exceed limitations in
the zoning ordinance, including: height (four stories and an average height of
47.5 feet along Sacramento Street, where a maximum of three stories and an
average height of 36 feet were allowed); parking (12 spaces where 13 were
required); lot coverage (64 percent where 45 percent was allowed); and setbacks
(less than the required minimums for front, side and rear yards). Staff
recommended that the ZAB approve the permit and adopt a mitigated negative declaration
under CEQA, with a finding that there was no substantial evidence that the
Project, as mitigated, would have a significant effect on the environment.
The ZAB received numerous objections to the
Project, including a 20-page single- spaced "Citizens' Report" from
the "Neighbors for Sensible Development." This memorandum argued that
an EIR was required because the Project
would have potentially significant impacts in the areas of aesthetics,
hazardous materials, hydrology and water quality, land use and planning, noise,
population and housing, public services, and transportation and traffic. The
memorandum also asserted among other things that the Project violated various
provisions of the Berkeley Municipal Code (hereafter Ordinance), and that the City
was incorrectly calculating the state density bonus for the Project. Petitions
were lodged stating among other things: that there was no urgent need for
affordable senior housing in Berkeley; that the Project site would be better
used as a commercial facility; that the Project would have insufficient
parking; that the Project would block sunlight to adjacent properties; that the
Project would be out of scale with surrounding buildings; and that the Project
would "open the door" to "even larger [developments] because of
At the February 14, 2002, ZAB meeting, the Developer's architect reported
that the Project could be redesigned to include an
additional parking space, and to eliminate two units on the fourth floor, a
two-bedroom unit could be split into two studio units, and the total number of
residential units would be decreased from 41 to 40. After hearing speakers for
and against the Project, and requiring additional design modifications, the ZAB
voted unanimously to approve the use permit and adopt the mitigated negative
declaration. The modifications, as described in City staff memoranda,
"created a larger set-back on the north side, to avoid shadowing the
courtyard at the disabled housing project next door," "shifted
certain units away from the Sacramento Street and north property lines, reduced
the floor area at the fourth floor," and set the "building height at
three stories on the east side, next to single-family homes."
Bowman appealed the ZAB's
decision to the city council, repeating most of the allegations in the
"Citizens' Report" to the ZAB. The appeal indicated among other
things that neighboring residents and businesses "would support a 3-story
mixed-use building on ... Sacramento with 2 stories on Blake," but
that there was "overwhelming opposition to the 4-story high density
project proposed." On March 19, 2002, the city council voted to consider
the appeal at a special meeting on May 7, 2002. At the May 7 meeting, after
hearing extensive public comments on the Project, the city council referred the
appeal to mediation and continued the hearing to May 21. On May 21, the
Developer and Bowman requested that the mediation be
continued for another week, and the hearing on the appeal was continued
to May 28.
On May 28, staff reported to the city
council that three potential alternatives had emerged during the mediation, all
of which included reconfiguration of the parking to add additional spaces. The
first alternative, A-1, was simply the Project as then proposed but with the additional
parking. The second alternative, A-2, eliminated two units to reduce shading of
adjacent parcels; loss of the units would require an additional $ 100,000
subsidy from the City. The third alternative, B, eliminated four units and the
fourth story, and would cost the City $ 300,000. All of the alternatives were
acceptable to the Developer, but alternative B, the three-story option, was the
"only one that the neighborhood could find acceptable as the basis for
At its May 28, 2002, meeting, the city
council voted to uphold the ZAB decision approving the permit and adopting the
mitigated negative declaration for the Project, with the condition (alternative
A-1) that parking be redesigned to add two to five spaces. Revised drawings submitted
in June 2002 increased the parking spaces for the Project to 18. To gain the
additional parking spaces, vehicles would enter and exit on Sacramento street, rather than exiting on Dwight Way as previously planned, and the area
out to Dwight behind the adjacent apartment building was designated for
landscaping, rather than as a driveway, on the final plans.
The Neighbors filed their petition for writ
of mandate herein in July 2002, alleging among other things that they did not
attend the May 28 city council meeting because they thought they were involved
in ongoing mediation. In February 2003, the court granted the petition in part,
finding that the Neighbors did not receive a fair hearing when the city council
approved the Project at the May 28 meeting, and ordered that the approvals be
The matter was set for a new hearing before
the city council on March 11, 2003. Further voluminous submissions were lodged against the Project. The environmental initial
study was updated to reflect the design changes to the
Project, but continued to conclude that the Project as mitigated would have no
significant effect on the environment. After hearing from 38 speakers at
the March 11, 2003 meeting, the city council voted 7-2
to approve the use permit and adopt the mitigated negative declaration for the
Project. The city council resolution found with respect to CEQA that none of
the comments in the public review period had raised any environmental impacts
that were not already identified and analyzed in the initial
study, and reduced to insignificance in the mitigated negative declaration;
thus, no EIR was required.
The City's return reporting the Project's reapproval was filed in the trial
court on March 19, 2003. The petition for writ of mandate
to vacate the City's decision was denied by order
filed June 26, 2003, and the Neighbors have appealed
from the ensuing judgment against them.
A. Environmental Issues
(1) CEQA Standards
The Neighbors contend that an EIR must be prepared because the
Project may have significant environmental effects in the areas of hazardous
materials and aesthetics. "If there is substantial evidence, in light of
the whole record before the lead agency, that the project may have a
significant effect on the environment, an environmental impact report shall be
prepared." (§ 21080, subd.
(d); see also § 21151, subd. (a).)
Section 21060.5 defines "environment" as "the physical
conditions which exist within the area which will be affected by a proposed
project, including land, air, water, minerals, flora, fauna, noise, objects of
historic or aesthetic significance." (§ 21060.5.)
A "significant effect" is a "substantial, or potentially
substantial, adverse change in physical conditions
which exist within the area as defined in Section 21060.5." (§ 21151, subd. (b).)
There is "a low threshold requirement
for preparation of an EIR" (No Oil, Inc. v. City of
Los Angeles (1974) 13 Cal.3d 68, 84 [118 Cal. Rptr.
34, 529 P.2d 66]), and a "preference for resolving doubts in favor of
environmental review" (Sierra Club v. County of Sonoma (1992) 6
Cal.App.4th 1307, 1316-1317 [8 Cal. Rptr. 2d 473]).
An EIR must be prepared "whenever it can be fairly argued on
the basis of substantial evidence that the project may have significant
environmental impact" (No Oil, Inc., supra, at p. 75), even if
there is substantial evidence to the contrary (Arviv
Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th
1333, 1346 [125 Cal. Rptr. 2d
140]; Friends of "B" Street v. City of Hayward (1980) 106 Cal. App. 3d 988, 1002 [165 Cal. Rptr.
Application of the "fair
argument" test is a question of law for our independent review. (San
Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42
Cal.App.4th 608, 617 [49 Cal. Rptr. 2d 494]; Quail
Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29
Cal.App.4th 1597, 1602 [35 Cal. Rptr. 2d 470] .) We review the trial court's findings and conclusions de
novo (Arviv Enterprises, Inc. v. South
Valley Area Planning Com., supra, 101 Cal.App.4th at p. 1346), and do not
defer to the agency's determination (Sierra Club v. County of Sonoma, supra,
6 Cal.App.4th at p. 1318), except on "legitimate, disputed issues of
credibility" (Quail Botanical Gardens Foundation, Inc. v. City of
Encinitas, supra, at p. 1603; Leonoff
v. Monterey County Bd. of Supervisors (1990) 222 Cal. App. 3d 1337, 1349
[272 Cal. Rptr. 372]).
(2) Hazardous Materials
The Developer submitted a November 2000 "phase I
environmental site assessment" by ACC Environmental Consultants (ACC) that
considered "the presence or likely presence of any hazardous substances or
petroleum products" on the premises. The assessment reads in pertinent
part: "According to records on file at the City of Berkeley Toxics Management
Division, [the property on the Project's north border] was occupied
by a gasoline service station from 1949 to 1993. Soil samples collected during
tank removal revealed the presence of hydrocarbon-impacted soil. Extensive
over-excavation was performed at this site. Two
exploratory borings and ten groundwater-monitoring wells were
installed at this site. Quarterly groundwater monitoring was performed at this site from 1990 until 1997. Analysis of
samples collected from down and cross gradient wells indicates no significant
offsite migration of constituents. Based on the analytical results of the
quarterly monitoring, Kaprealian Engineering [KEI] determined that the
hydrocarbon-impacted soil and groundwater is well defined and limited in both
degree and extent. This site was granted case closure
by the City of Berkeley Toxics Management Division in April 1997. Based on this
information, the potential to impact the subject property is considered to be
The environmental initial study attached to
the original January 2002 mitigated negative declaration found that the Project
would have no impact in the area of hazardous materials. The initial study
asked whether the project would "create a significant hazard to the public
or the environment through reasonably foreseeable upset and accident conditions
involving the release of hazardous materials into the environment," and
answered " No. There are no hazardous materials
associated with this project. The buildings on the property have
been used as a grocery store, a greenhouse, office space, and retail
space (Outback Clothing Store) for a number of years. There is no evidence of
any hazardous material contamination on the site from any of these uses. In
addition, there is no evidence of underground storage tanks or other possible
sources of contamination on the project site."
In a submission for the February 14, 2002,
ZAB meeting, the Neighbors asserted that the former gas station "was known
to have leaking gas tanks which drained into the soil for 20+ years," and
argued that soils should be tested for contamination. These points were repeated in Bowman's appeal of the ZAB decision to the
city council. City staff responded in a memorandum for the March 19, 2002, city council meeting that the gas station property had been remediated, and that the
ACC assessment had determined that there were no hazardous materials on the
When the matter was
returned to the city council in 2003 for reapproval
of the Project, appellant Robert Baum submitted copies of 1995 and 1997 reports
by KEI to Unocal Corporation on soil
testing and remediation at the gas station property, and 1993 violation notices
from the City to Unocal involving soil aeration at that property. Baum's
analysis of the KEI reports disputed ACC's conclusion
that the Project site was unlikely to be contaminated
with hazardous materials from the gas station property. Bowman submitted an
e-mail from Rash B. Gosh, Ph.D., a Berkeley resident then out of the country,
who stated that he had worked for the California Environmental Protection
Agency and had been in charge of toxic waste sites. Gosh said he had reviewed
the KEI reports, found them incomplete, and thought that the
Project site should be tested for hydrocarbon
contaminants and the chemical MBTE before it was approved for residential use.
The City staff response repeated the points
in its March 2002 memorandum, and the initial study's treatment of hazardous
materials was not changed when the study was updated
to reflect the Project's amended design. At the 2003 city council meeting,
staff opined that Gosh was not credible given misrepresentations he had made in
proceedings for "nuisance abatement" of his property and his
violations of the City zoning ordinance.
On appeal, the Neighbors read the KEI reports differently than ACC. ACC
concluded from the reports that there was a "low" potential for
contamination of the Project's parcel with hazardous materials from the gas
station property. The Neighbors note that KEI's 1995 report found contamination in
two monitoring wells on the gas station property, "MW4" and
"MW6," that were near the north and northeastern boundaries of the
Project site. KEI wanted to install a monitoring
well, MW11, on the Project site near MW6, but the former owner evidently would
not provide access: MW11 is labeled
"proposed-access denied" on the map of the wells in the 1995 report. KEI's 1997 report indicated that
hydrocarbon-impacted soil remained in the vicinity of
MW6, and that "the proximity of MW6 to the eastern property line makes
excavation in this area unfeasible. ... [P] ... [P]
The extent of hydrocarbon-impacted ground water appears to be well defined and
predominantly limited to the vicinity of MW4." The Neighbors submit that
the contamination found near the border of the Project site was "unlikely
to magically stop at the property line," and they think it reasonable to
assume, based on the KEI reports, that the contamination may
have spread to the Project site.
The Developer counters with statements in the
1997 report: that "predominantly or completely non-detectable [sic]
concentrations of TPH as gasoline and BTEX" had been found in "[d]owngradient monitoring wells" off the gas station
property; that concentrations of dissolved hydrocarbons were expected to
continue to decrease "due to natural attenuation (dispersion, absorption,
biodegradation, and volatilization)"; and that the "plume"
appeared to be very limited and stable, and did not appear to be migrating. The
Developer notes also that the area of the Project next to MW6, which appears to
be the Neighbors' principal concern, is an area set aside by the Project for
landscaping rather than construction.
ACC's reading of the KEI reports provides substantial
evidence that the Project will have no significant environmental effect
involving hazardous materials. (National Parks & Conservation Assn. v.
County of Riverside (1999) 71 Cal.App.4th 1341, 1362 [84 Cal. Rptr. 2d 563] ["an expert can make a judgment on
existing evidence, without further study, that a particular condition will have
no significant impact"].) The Neighbors lay reading of these reports does
not constitute substantial evidence supporting a fair argument for a contrary
conclusion. (§ 21080, subd.
(e)(2) ["argument, speculation, unsubstantiated
opinion or narrative" are not substantial evidence].)
Statements of area residents who are not
environmental experts may qualify as substantial evidence if they are based on relevant personal observations or involve
"nontechnical" issues. (Ocean View
Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116
Cal.App.4th 396, 402 [10 Cal. Rptr. 3d 451]
[aesthetics]; Oro Fino
Gold Mining Corp. v. County of El Dorado (1990) 225 Cal. App. 3d 872, 882
[274 Cal. Rptr. 720] [noise]; Citizens Assn. for
Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal. App.
3d 151, 172 [217 Cal. Rptr. 893] [traffic].) However,
a complex scientific issue such as the migration of chemicals through land
calls for expert evaluation, and the Neighbors do not profess any expertise
that would qualify them to opine on that subject. (See Cathay
Mortuary, Inc. v. San Francisco Planning Com. (1989) 207 Cal. App. 3d 275,
281 [254 Cal. Rptr. 778] [opinions outside area of
expertise do not constitute substantial evidence].) The only expert
opinion that might have substantiated the Neighbors' concerns was offered by
Dr. Gosh, but the City had discretion to discount his credibility (Quail
Botanical Gardens Foundation, Inc. v. City of Encinitas, supra, 29
Cal.App.4th at p. 1602; Leonoff v. Monterey
County Bd. of Supervisors, supra, 222 Cal. App. 3d at p. 1349) and the
Neighbors do not rely on his opinion on appeal. Accordingly, ACC's conclusion
that there was a "low" potential for contamination from hazardous
materials from the adjacent property stands unrefuted,
and an EIR is not required to address the
subject. (Cal. Code Regs., tit. 14, § 15000 et seq.,
hereafter Guidelines; compare Guidelines, § 15064, subd.
(g) [conflicting expert opinions on the significance
of an environmental effect ordinarily mandate preparation of an EIR].)
The Neighbors argue that the Project will have a
significant adverse aesthetic effect on the environment. One of CEQA's stated purposes is "to provide the people of
this state with ... enjoyment of aesthetic, natural, scenic, and historic
environmental qualities" (§ 21001, subd. (b)),
and aesthetic issues are among those that are "properly studied in an EIR" (Mira Mar Mobile Community
v. City of Oceanside (2004) 119 Cal.App.4th 477, 492 [14 Cal. Rptr. 3d 308]; National Parks & Conservation Assn.
v. County of Riverside, supra, 71 Cal.App.4th at p. 1360). As relevant
here, the Guidelines give content to the concept of aesthetics by including the
following questions in the checklist of a project's potential environmental
effects: "Would the project have a substantial adverse effect on a scenic
vista?" and "Would the project substantially degrade the existing
visual character or quality of the site and its surroundings?" (Guidelines,
Appendix G, questions I(a) and I(c).)
The City's environmental study for the
Project found "no impact" in either of these areas. The environmental
study answered the question about scenic vistas: "No. The site and
surrounding areas is [sic] generally flat, and
therefore the project will not have an adverse impact on scenic
vistas--specifically the Berkeley Hills or the San Francisco Bay." In response to the argument
in Bowman's appeal to the city council that the Project would interfere with
views of the Berkeley hills to the east of the Project, the City staff opined
that there would be a "negligible" effect on such views "[g]iven the width of Sacramento Street and the fact that the
closest residential properties are to the east of the site."
As for visual degradation, the City study
stated: "The site is currently a vacant building on a lot. This building
is currently underutilized and in need of significant rehabilitation, including
a new roof. The proposed project consists of a new building that would include
ground floor shops and [three] floors of residential units. This new building
will enhance this area by adding activity to the area and 'eyes on the street.'
Given the poor quality of the existing site, the proposed building could not
degrade the existing visual character. Construction of this project is subject
to design review and approval prior to issuance of building permits."
The city council resolution approving the
Project added detailed findings under the City Ordinance on the merits of the
Project's design. The resolution found that the Project would not be
"detrimental or injurious to property and improvements of the adjacent
properties, the surrounding area or neighborhood or to the general welfare of
the City" because, among other things:
"A. The demolition would remove a
vacant commercial building that has become an attractive nuisance, serves no
purpose, generates no tax revenue beyond property taxes, and has a blighting
effect on surrounding residential and commercial properties.
"B. The design of the new project, as
modified by the [ZAB], ensures adequate provision of sun, light and air to
adjacent residential properties to the east and reduces shadowing to the
courtyard of the multi-family structure to the north because the tallest
(four-story) portion of the building is located on the southwestern side of the
property, more than 50 feet from the eastern property line. On balance, any
detriment resulting from the shadowing that will be created by the project is
outweighed by the benefit of providing 40 additional dwelling units including
39 reserved for low and very-low income senior households."
The city council found the Project to be
"compatible in design and character" with the C-SA zoning district
and adjacent residential neighborhoods for a number of reasons:
"1. The project has been designed to
shift the bulk of the development to the west and toward Sacramento Street
commercial frontage and more than 50 feet away from the lower density
residential area to the east.
"2. The additional height on the Sacramento Street frontage is appropriate given the
110-foot right-of-way. The design of the Sacramento facade, including the orientation
of the commercial entrance, will provide visual interest and a focal point for
this part of the district. With the addition of new street trees, the project
will significantly improve the appearance of the area, enhancing the quality of
the environment for surrounding residents.
"3. The hipped-roof design of the
building reflects the architecture of many of the Craftsman and California bungalows in the immediate area.
Moreover, the varying roof shapes and heights help to reduce the apparent bulk
and create an appearance that fits into an area with residential buildings of
different heights and varying roof styles.
"4. The reduced setback along Sacramento Street permits consistency with the
building setback existing on the adjacent lot to the north and encourages
pedestrian activity in an area that the General Plan classifies as neighborhood
commercial where a residential building setback would not be appropriate or
serve a useful purpose.
"5. The residential portion of the
building facing Blake Street ... is set back 20 feet to conform
with the lower density residential properties to the east, and is enhanced by a
front porch and landscaping that will minimize the structure's bulk. With an
average height of 35.5 feet, 20-foot setback, and 10-foot east-side setback,
this three-story part of the building is compatible with the type of
development permitted in the abutting R-2 District, where a three-story 35-foot
high structure with front and side setbacks of 20 and 6 feet, respectively,
would be allowed subject to the approval of a Use Permit.
"6. By shifting the higher portions of
the building to the southwest and away from the multi-family building to the
north as well as the single-family residential structures to the east, the
design minimizes shadowing impacts on adjacent residential properties."
The Neighbors' aesthetic objections are focused on the scale of the Project. The Neighbors
contend that, by virtue of its size, the building will shade adjacent
properties, will interfere with scenic views, and will be visually incompatible
with its surroundings.
The Neighbors' briefs do not discuss any
cases involving shadow impacts. We presume that many if not most urban
developments will have some shading effects on nearby properties, and that
those effects, if sufficiently substantial, could represent a significant
environmental impact. (Cf. A Local & Regional Monitor v. City of Los
Angeles (1993) 16 Cal.App.4th 630, 642, fn. 8 [20 Cal. Rptr.
2d 228] [EIR for 40-story office building that
was first phase of larger development allegedly failed to properly evaluate
shadows from the six "skyscrapers" planned]; A Local &
Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1786
[16 Cal. Rptr. 2d 358] [shadow impact of three office
towers, a 600-room hotel, and a mid-rise building was fully mitigated].) Here,
architect Catherine Roha prepared shadow studies
showing that the Project would cast some shade on appellant Hunter's house and
yard to the east, and on the courtyard of the apartment building to the north.
As has been noted, the tallest parts of the Project were
moved away from these properties to minimize shadow impacts. The
Developer submitted shadow studies showing that Hunter's house would be shaded
only in the late afternoon, primarily on its garage door, and that shadows from
the Project over the courtyard of the apartment building would merely overlap
and not darken those created by the apartment building itself. Roha's analysis did not refute these specific conclusions,
and given the limited scope of the shadows involved, we find no substantial
evidence to support a fair argument that the Project as mitigated will have any
significant shading effect.
A project that interferes with scenic views
has an adverse aesthetic effect on the environment. (See, e.g., Ocean View
Estates Homeowners Assn., Inc. v. Montecito Water Dist., supra, 116
Cal.App.4th at p. 401.) However, obstruction of a few private views in a
project's immediate vicinity is not generally regarded
as a significant environmental impact. (See id. at p. 402 [that a
project affects "only a few private views" suggests that its impact
is insignificant]; Mira Mar Mobile Community v. City of Oceanside, supra,
119 Cal.App.4th at pp. 492-493 [distinguishing public and private views;
"[u]nder CEQA, the question is whether a project
will affect the environment of persons in general, not whether a project will
affect particular persons"]; Association for Protection etc. Values v.
City of Ukiah (1991) 2 Cal.App.4th 720, 734 [3 Cal. Rptr.
2d 488] [views of "only a few of the neighbors," not "persons
generally," were affected]; compare Quail Botanical Gardens Foundation,
Inc. v. City of Encinitas, supra, 29 Cal.App.4th at pp. 1603-1604 [blocking
of view from public park].) The only view at stake in this flat urban
neighborhood is that of the Berkeley hills to the east of the Project. It
appears that some nearby residents may have that view diminished by the
Project, but as the City pointed out, the neighbors to the east will be
unaffected, and relatively few to the west will be affected because of the
width of Sacramento Street. Given the limited scope of the impact, the
Project's effect on scenic views cannot be considered
The Neighbors' chief objection to the scale
of the Project is the purely aesthetic one that it is out of character with its
surroundings. Petitions were submitted arguing that
the Project would "spoil the attractive visual character of our low-rise
neighborhood." One area resident called the building "a Costco-sized
box on a Monterey Market-sized plot," and others complained: that there was
"nothing ... this massive for as far as you can see in any
direction"; that the building would be "completely out of scale with
the surrounding one- and two-story homes and businesses"; and that the
building would be "a monstrosity, not fitting into the fabric of the
neighborhood." A city council member observed that all of the surrounding
buildings were "much, much smaller," and another called the Project
"plain too big." Some DRC members thought that the Project
would be "out of scale" and "too massive," and some local
architects shared that opinion. One architect called the Project "grossly
over-scaled for the neighborhood"; another thought that the building would
"stand out like a sore thumb for 100 years"; another was "just
speechless" at "the size of this thing," and found it " mind-boggling" that the City would "even
Similar views were expounded at length by
architect Richard King in a March 2003 letter to the city council: "The
project site is located in a mostly 1 story, 1920's craftsman and McGregor
style neighborhood that is defined by small homes, tightly arranged with low
roof lines, yet wonderfully articulated and varied through projecting porches,
recessed entries, wood fences, watertables near
ground level, and setbacks providing landscaping variations and opportunities
that define, knit together and set up the urban rhythm of this neighborhood.
... [P] ... [T]his project is so out of scale and
aesthetically so out of character for this neighborhood that the effects
resonate well beyond just the adjacent properties. ... [P]
... When people move through our neighborhood, views of the sky, the
trees, the houses, the bay, and the hills appear and reappear through the
rhythm of a 25 or 30 foot wide 1-story house, followed by a 10-15 foot
landscaped area or open driveway and so on and so on with the canopy of trees
soaring well above the height of any of the homes or businesses. The Outback
project will create a wall that will reflect and reverberate
noise and significantly divide the neighborhood in half. ... [P] ... [P] This project needs to be
drastically reduced in scale to conform to the existing condition. ...
The building needs to be reduced in height a minimum of 1 story on both Sacramento and Blake Street ... ."
In a report to the DRC for the November 2001 meeting, City
staff opined that "[i]n general, the height of
adjacent buildings especially historic structures should be respected in the
design of new buildings," but that "abrupt changes in height may be
appropriate, even desirable, in certain situations, such as the need for focal
points, landmarks, and the closure of long views." An architect who spoke
in favor of the Project at the March 2003 city council meeting thought that a
large building was needed on the Project site. She
thought that the building would "look really beautiful and is going to
really mark this area and provide a real focal point for the
neighborhood," and she could not understand why people thought the Project
was not to scale given the width of the Sacramento Street transit corridor. In
response to King's March 2003 letter, City staff argued that " [g]iven the project's location on Sacramento Street--one of
Berkeley's most heavily used thoroughfares--one-half block from the
intersection of a collector street that is also designated as a Secondary
Transit Route, the building's size and height are appropriate."
The Neighbors submit that the objections of
architect King and others to the building's size are substantial evidence that
the Project may have a significant aesthetic effect on the environment. In the
appeal to the city council and in the mediation the Council ordered, the
Neighbors endorsed a building that would be three stories along Sacramento
rather than four, and two stories along Blake rather than three. Thus, despite
the tone of some of the rhetoric on the Project's scale, the Neighbors'
position boils down to the claim that an EIR is required because the building is
one story too tall.
In support of that contention, the
Neighbors offer string cites to nine cases that have required EIR's for "modestly-sized housing
projects" or have "considered and respected project aesthetics."
The Neighbors also rely on the recent decision in Ocean View Estates
Homeowners Assn., Inc. v. Montecito Water Dist., supra, 116 Cal.App.4th 396
. Some of the Neighbors' cases did not involve aesthetic impacts and require no
discussion. (Neighbors of Cavitt Ranch v. County
of Placer (2003) 106 Cal.App.4th 1092 [131 Cal. Rptr.
2d 379] ; Save Our Peninsula Committee v. Monterey
County Bd. of Supervisors (2001) 87 Cal.App.4th 99 [104 Cal. Rptr. 2d 326]; Greenebaum
v. City of Los Angeles (1984) 153 Cal. App. 3d 391 [200 Cal. Rptr. 237].) Other cases involved aesthetic impacts that
are readily distinguishable from the one alleged here, such as scenic views (Ocean
View Estates Homeowners Assn., Inc. v. Montecito Water Dist., supra, at p.
402 [view of reservoir from public hiking trails], and Quail Botanical
Gardens Foundation, Inc. v. City of Encinitas, supra, 29 Cal.App.4th at pp.
1603-1604 [view of ocean from public park]), and 300-foot high "cut and
fill slopes" from a rock quarry (Riverwatch
v. County of San Diego (1999) 76 Cal.App.4th 1428 [91 Cal. Rptr. 2d 322]). The remaining cases also offer little, if
any, support for the Neighbors' theory.
In Sequoyah Hills Homeowners Assn. v.
City of Oakland (1993) 23 Cal.App.4th 704, 712, 714 , an EIR for construction of 46 homes on 10
acres of undeveloped land in the Oakland hills found that the only significant
environmental effect of the project would be its " impact on visual
resources." The EIR defined " 'visual resources
and visual quality' " as " 'human perceptions of combining form,
bulk, scale, texture, color, and viewing range of a site, relative to the
context of its locale' " (id. at p. 712),
and acknowledged that any major development of the parcel would alter "
'the existing open space visual character of the site vicinity' " (id.
at p. 714).
Because an EIR was prepared in Sequoyah Hills,
the court was not called upon to decide when an
aesthetic impact qualifies as a significant environmental effect and the
decision is essentially irrelevant for our purposes. The significance of an
environmental impact is in any event measured in light
of the context where it occurs. The Guidelines confirm that "the
significance of an activity may vary with the setting. For example, an activity
which may not be significant in an urban area may be significant in a rural
area." (Guidelines, § 15064, subd.
(b); see also, e.g., Protect the Historic Amador Waterways v. Amador Water
Agency (2004) 116 Cal.App.4th 1099, 1107 [11 Cal. Rptr.
3d 104] ["[t]here is no ' gold standard' for determining whether a given
impact may be significant"]; Mira Mar Mobile Community v. City of
Oceanside, supra, 119 Cal.App.4th at p. 493; Guidelines, § 15300.2 ["a
project that is ordinarily insignificant in its impact on the environment may
in a particularly sensitive environment be significant"].) To conclude
that replacement of a virgin hillside with a housing project constitutes a
significant visual impact says little about the environmental significance of
the appearance of a building in an area that is already highly developed.
Context also distinguishes the aesthetic
impacts discussed in Eller Media Co. v. Community Redevelopment Agency
(2003) 108 Cal.App.4th 25 [133 Cal. Rptr. 2d 324] and
Arviv Enterprises, Inc. v. South Valley
Area Planning Com., supra, 101 Cal.App.4th 1333. Eller Media
involved erection of billboards next to historic structures along a street that
had been designated by the municipality as a " 'Major Scenic Highway.' " (Eller
Media Co. v. Community Redevelopment Agency, supra, at pp. 35, 41, 44, fn.
7.) Arviv Enterprises involved
construction of 21 homes in an environmentally "sensitive hillside
area" in a "Scenic Parkway" district. (Arviv Enterprises, Inc. v. South Valley Area
Planning Com., supra, at pp. 1336, 1347.) In contrast, the
Project here is not located in an environmentally sensitive area, and it does
not implicate any historical n2 or scenic resources.
In Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 882 [92 Cal. Rptr. 2d 268], an EIR was required in order to address
"the architectural and aesthetic impacts" of a carwash in a shopping
center. While this conclusion could potentially have helped the Neighbors'
case, the court did not publish the portion of the opinion that explained why
the impact in question was environmentally significant. Consequently, the Woodward Park case does not stand as a precedent
for the result the Neighbors advocate.
We have fared no better than the Neighbors
in finding any California case on point. In Native
Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 896
[19 Cal. Rptr. 2d 344], an EIR for a 102-unit residential
development on unimproved property found that the project would have
significant environmental impacts in the areas of aesthetics, traffic, and
solid waste, among others. The EIR found that the project would have a
significant visual impact because the " 'building
materials and layout [were] inconsistent with the existing rural residential
neighborhood to the north ... .' " (Id. at
p. 907.) The EIR for an apartment building in City
of Walnut Creek v. County of Contra Costa (1980) 101 Cal. App. 3d 1012,
1017-1018 [162 Cal. Rptr. 224], discussed aesthetic,
traffic and density impacts, and found that the project as originally proposed
would have had an adverse aesthetic effect because it appeared to be "
'too regimented, dense and "boxy." ' "
(Id. at p. 1017.) Although these cases suggest that a building's
appearance and compatibility with neighboring structures could qualify as
environmental impacts, the courts were not required to determine when such
impacts would be sufficiently significant to mandate an EIR, much less whether an EIR could be required solely because of
such impacts. Similarly, while the EIR for an urban building in Foundation
for San Francisco's Architectural Heritage v. City and County of San Francisco
(1980) 106 Cal. App. 3d 893, 902, fn. 4 [165 Cal. Rptr.
401], apparently analyzed the aesthetic merits of the building's design, that
discussion may have involved local law issues rather than impacts considered
environmentally significant. (See generally Guidelines, §
15125, subd. (d) [EIR must discuss inconsistency with
general plan]; Kostka & Zischke,
Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2003) (hereafter Kostka)
§ 12.32, p. 494 [EIR may discuss zoning issues].)
The only case we have found that has squarely
addressed an issue like the one before us is Maryland-National Cap. Pk. & Pl. Com'n. v. U.S. Postal Serv. (D.C. Cir. 1973) 159 U.S. App. D.C. 158 [487 F.2d 1029] (Maryland-National).
The Maryland-National decision construed the National Environmental Policy
Act (NEPA; 42 U.S.C. § 4321 et seq.), which, like CEQA, includes an aesthetic
component (42 U.S.C. § 4331(b)(2) [federal policy of
assuring that all Americans enjoy "esthetically ... pleasing
surroundings"]). CEQA was patterned on NEPA (Friends of Mammoth v.
Board of Supervisors (1972) 8 Cal.3d 247, 260 [104 Cal. Rptr.
761, 502 P.2d 1049]), and NEPA cases can be persuasive authority for
interpreting CEQA (Wildlife Alive v. Chickering
(1976) 18 Cal.3d 190, 201 [132 Cal. Rptr. 377, 553
P.2d 537]; Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10
Cal.App.4th 712, 732 [12 Cal. Rptr. 2d 785],
disapproved on another point in Western States Petroleum Assn. v. Superior
Court (1995) 9 Cal.4th 559, 576, fn. 6 [38 Cal. Rptr.
2d 139, 888 P.2d 1268] ).
In Maryland-National, an injunction
was sought against construction of a mail processing facility on the ground
that an environmental impact statement (EIS), the NEPA equivalent of an EIR (Remy et al. ,
Guide to the Cal. Environmental Quality Act (10th ed. 1999) p. 34), was
necessary to assess the project's visual impact on motorists on an adjacent
freeway. The court concluded that an EIS for that purpose was not required. The
court distinguished situations involving "use of recreation areas"
and "interference with an unencumbered view of an attractive scenic
expanse" (Maryland-National, supra, 487 F.2d at p. 1038, fn.
5), and reasoned in relevant part:
"That some, or perhaps all,
environmental impacts have an esthetic facet, does not mean that all adverse esthetic
impacts affect environment. That is neither good logic nor good law. Some
questions of esthetics do not seem to lend themselves to the detailed analysis
required under NEPA for a § 102(C) impact statement. Like psychological factors
they 'are not readily translatable into concrete measuring rods.' [Citation.] The difficulty in precisely defining what is
beautiful cannot stand in the way of expressions of community choice through
zoning regulation. [Citation.] But the difficulties
have a bearing on the intention of Congress, and whether it contemplated, for
example, a requirement of a detailed 'environmental impact statement,' and
concomitant investigation, because of the possibility that each new Federal
construction would be ugly to some, or even most, beholders, on such issues as:
Is this proposed building beautiful? Or, what is the esthetic effect of placing
the 'controversial' Picasso statute in front of the Civic Center building in Chicago? These types of problems lead us to
conclude that a 'substantial inquiry' or 'hard look' was not contemplated, as a
matter of reasonable construction of NEPA, where the claim of NEPA application
is focused on alleged esthetic impact and the matters at hand pertain
essentially to issues of individual and potentially diverse tastes." (Maryland-National,
supra, 487 F.2d at pp. 1038-1039, fn. omitted; accord, River Rd. Alli. v. Corps. of Eng. of U.S. Army (7th Cir. 1985)
764 F.2d 445, 451 ["[a]esthetic objections alone will rarely compel the
preparation of an [EIS]" ].)
Where scenic views or environmentally
sensitive areas are concerned, aesthetic considerations are
not discounted as environmental impacts merely because they involve
subjective judgments. (Maryland-National, supra, 487 F.2d at p.
1038, fn. 5 , distinguishing Goose Hollow Foothills League v. Romney (D.Ore. 1971) 334 F. Supp. 877 [scenic view]; Ocean View
Estates Homeowners Assn., Inc. v. Montecito Water Dist., supra, 116
Cal.App.4th at p. 402 [scenic view]; Olmsted Citizens for a Better Community
v. U.S. (8th Cir. 1986) 793 F.2d 201, 206 [distinguishing aesthetic impacts
in "a pristine wilderness area" from those in "an urban city
block"]; see generally Sequoyah Hills Homeowners Assn. v. City of
Oakland, supra, 23 Cal.App.4th at pp. 712-713 [EIR stating that visual quality is
" 'essentially subjective' "]; Karp, The Evolving Meaning of
Aesthetics in Land-Use Regulation (1990) 15 Colum.
J. Envtl. L. 307 [concept of aesthetics "is
perhaps more amenable to poetic contemplation than to legal analysis"];
but see Note, Beyond the Eye of the Beholder: Aesthetics and
Objectivity (1973) 71 Mich. L. Rev. 1438, 1442-1447 [arguing that aesthetic
evaluations can be justified objectively, e.g., by the consensus reflected in a
study showing "very strong agreement on the aesthetic superiority of
natural over urban settings" ].) But we do not
believe that our Legislature in enacting CEQA, any more than Congress in
enacting NEPA, intended to require an EIR where the sole environmental impact
is the aesthetic merit of a building in a highly developed area. (Maryland-National,
supra, at pp. 1038-1039; Wildlife Alive v. Chickering,
supra, 18 Cal.3d at p. 201; Del Mar Terrace Conservancy, Inc. v. City
Council, supra, 10 Cal.App.4th at p. 732.) To rule otherwise would mean
that an EIR would be required for every urban
building project that is not exempt under CEQA if enough people could be marshaled to complain about how it will look. While
there may be situations where it is unclear whether an aesthetic impact like
the one alleged here arises in a "particularly sensitive" context
(Guidelines, § 15300.2) where it could be considered environmentally
significant, this case does not test that boundary. The aesthetic difference
between a four story and a three story building on a commercial lot on a major
thoroughfare in a developed urban area is not a significant environmental
impact, even under the fair argument standard.
In reaching this conclusion, we are
cognizant of the rule that CEQA is to be liberally construed
for the protection of the environment. (Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d
376, 390 [253 Cal. Rptr. 426, 764 P.2d 278].)
Like all laws, however, CEQA should be given a reasonable and practical
construction (see Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744
[110 Cal. Rptr. 2d 828, 28 P.3d 876]), and we discern
no practical benefit to be derived from further review, under the guise of
environmental law, of the Project's aesthetic merits.
The record establishes that the Project has
already been subject to thorough design review. "Virtually every city in
this state has enacted zoning ordinances for the purpose of improving the
appearance of the urban environment" (Metromedia,
Inc. v. City of San Diego (1980) 26 Cal.3d 848, 862 [164 Cal. Rptr. 510, 610 P.2d 407] , rev'd.
in Metromedia, Inc. v. City of San Diego
(1981) 453 U.S. 490 [69 L. Ed. 2d 800, 101 S. Ct. 2882]), and architectural or
design review ordinances, adopted "solely to protect aesthetics, "
are increasingly common (Manaster, et al., Cal.
Environmental Law and Land Use Practice (2004) § 60.11, p. 60-17). While
those local laws obviously do not preempt CEQA, we agree with the Developer and
the amicus curiae brief of the Sierra Club in support of the Project that
aesthetic issues like the one raised here are ordinarily the province of local
design review, not CEQA. That the cases addressing such issues have arisen
under local ordinances rather than CEQA is supportive of that view. (Breneric Associates v. City of Del Mar (1998)
69 Cal.App.4th 166, 172-173 [81 Cal. Rptr. 2d 324]
[permit to build addition to residence denied under ordinance requiring that
the design be " 'harmonious with ... the surrounding neighborhood'
"]; Dore v. County of Ventura
(1994) 23 Cal.App.4th 320, 324 [28 Cal. Rptr. 2d 299]
[permit to build commercial building denied under local ordinance requiring
the character of surrounding development"]; Desmond v. County of Contra
Costa (1993) 21 Cal.App.4th 330, 336 [25 Cal. Rptr.
2d 842] [permit to build residential second unit denied under ordinance
requiring that unit be " 'architecturally compatible with overall
neighborhood character and the primary residence in terms of scale' "]; Guinnane v. San Francisco City Planning Com.
(1989) 209 Cal. App. 3d 732, 735, fn. 2, 742-743 [257 Cal. Rptr.
742] [proposed residence was " 'not in character' " with surrounding
development because it was " 'significantly more massive and of a larger
scale than adjoining dwellings' "; city "went beyond environmental
concerns and focused instead on the suitability of the project within the
affected neighborhood" when it denied the permit notwithstanding prior
approval of a negative declaration].)
Here, the City found that the Project would
not "[s]ubstantially degrade the existing visual
character or quality of the site and its surroundings" within the meaning
of Appendix G of the Guidelines in part because "[c]onstruction
of this project is subject to design review and approval prior to issuance of
building permits. " This finding was supported by the record of extensive design review in
this case, was sufficient to address the Guideline criterion, and was
consistent with a reasonable and practical reading of CEQA. Where a project
must undergo design review under local law, that
process itself can be found to mitigate purely aesthetic impacts to
insignificance, even if some people are dissatisfied with the outcome. A
contrary holding that mandated redundant analysis would only produce needless
delay and expense.
B. Other Issues*[NOT CERTIFIED FOR
The judgment is affirmed.
Reardon, J., and Rivera, J., concurred.
n1 Unless otherwise indicated, all further statutory
references are to the Public Resources Code.
n2 We decline to consider facts outside the
administrative record cited in the amicus curiae brief of the Berkeley
Architectural Heritage Association in opposition to the Project. (See Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 118 [99 Cal. Rptr. 2d
*See footnote, ante, page 572.