Reprinted with the permission of LexisNexis.
116 Cal. App. 4th 396; 10 Cal. Rptr. 3d 451; 2004 Cal. App. LEXIS 247; 2004 Cal. Daily Op. Service 1842;
2004 Daily Journal DAR 2738
OCEAN VIEW ESTATES HOMEOWNERS
ASSOCIATION, INC., Plaintiff and Appellant,
MONTECITO WATER DISTRICT, Defendant
APPEAL OF CALIFORNIA,
SECOND DISTRICT, DIVISION SIX
March 2, 2004,
Herb Fox for Plaintiff and
Price, Postel & Parma and David K.
Hughes for Defendant and Respondent.
GILBERT, P. J.--A water district wishes to cover a reservoir. It issues a mitigated
negative declaration (MND). The MND fails to identify and discuss
significant environmental impacts. A homeowners association brings a writ of
mandate to compel the water district to prepare an environmental impact report
(EIR) for its project. The trial court denies the petition.
Here we hold, among other things,
mitigation measures taken after a MND is issued do not satisfy the
California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21000 et seq.)
requirements. We reverse.
The Ortega Reservoir is located in the Santa Barbara County community of Summerland. It provides potable water for, among other
entities, the Montecito Water District (District). The District is responsible
for maintaining the reservoir's water quality. The Department of Health
Services has encouraged the District to cover the reservoir to prevent water
quality problems. In 1998, the District decided to cover the four-acre reservoir
with an aluminum roof.
The District, as the lead agency for the
purposes of environmental review, ordered an initial study of the project's
environmental impacts. The study found flooding to be of potential significance
because the project would increase the impervious surface area and thus
increase runoff. The study found no significant aesthetic impact.
After a public review period and a hearing,
the District decided the project does not require an EIR. Instead, the District issued a MND. To mitigate the potential for
flooding, the MND stated: "The Ortega Reservoir Upgrade Project shall incorporate
design measures to detain excess runoff from the increase of impervious
surface at the site and shall meter releases so that no modification to the
downstream 100-year flood plain will result."
Ocean View Estates Homeowners Association
(Ocean View) filed a petition for writ of mandate to direct the District to
vacate its approval of the project. Ocean View is a 70-acre common interest
development consisting of 11 homes near the reservoir. Several of the homes are
located in the hills above the reservoir, the rest are located below the
An EIR provides detailed information about
the likely effect a proposed project may have on the environment, lists ways in
which significant effects might be minimized and indicates alternatives to the
project. (Pub. Resources Code, § 21061.) An EIR is required whenever there is a
" 'fair argument' " that significant impacts may occur. ( Quail
Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29
Cal.App.4th 1597, 1602 [35 Cal. Rptr. 2d 470].)
When there is no substantial evidence
before the lead agency that the project may have a significant effect on the
environment, a negative declaration instead of an EIR, is appropriate. (Pub. Resources
Code, § 21080, subd. (c)(1).) When the initial study identifies potentially
significant effects on the environment, but revisions in the project plans
would avoid or mitigate the effects to insignificance, a MND is appropriate. (Pub. Resources
Code, § 21064.5.)
Because a negative declaration ends
environmental review, the fair argument test provides a low threshold for
requiring an EIR. ( Citizen Action To Serve All Students v. Thornley (1990) 222
Cal. App. 3d 748, 754 [272 Cal. Rptr. 83].) The standard on appeal is whether
substantial evidence in the record supports a fair argument that the project
may have a significant environmental impact. (Ibid.) If so, an EIR is required; if not, a negative
declaration will suffice. (Ibid.)
Ocean View contends there is substantial
evidence to support a fair argument that the mitigation measures employed to
prevent downstream flooding may themselves have a significant environmental
Ocean View does not contest that the
mitigation measures designed to prevent downstream flooding are adequate. Those
measures involve retaining excess runoff produced by the project at the
reservoir site. Ocean View believes, however, there is a fair argument that the
plan to retain runoff at the site may itself have a significant environmental
impact. The excess runoff may flow into the reservoir causing contamination of
the drinking water, or if the excess is prevented from flowing into the
reservoir, dam failure may result.
To support its argument, Ocean View points
to memoranda from the District's engineering consultants. One engineering
consultant warned that should the 24-inch outflow pipe become blocked, water
could backflow into the reservoir. This could cause contamination of the
drinking water. Another engineering consultant discussed a proposal to use flap
gates to prevent backflow into the reservoir. He recommended against the use of
flap gates because they might cause dam failure. He stated, "The consequences
of dam failure (loss of life) would appear to outweigh consequences of storm
water contamination." Instead of flap gates, the engineer recommended a
high water alarm system.
The documents were in existence prior to
the District's decision to issue the MND. They provide substantial evidence
to support a fair argument that significant impacts of contamination or dam
failure may occur. But the MND does not discuss or even identify
The District argues that changes in the
project design have mitigated to insignificance the potential for contamination
and dam failure. That may be true, but the argument misses the point of
environmental review. Environmental review derives its vitality from public
participation. That is what is missing here. The public was never informed of
the significant impacts discussed by the District's consultants. Those impacts
were omitted entirely from the review process.
The District argues that design changes
should not require environmental review. That argument also misses the point.
Mitigation measures stated in a MND need not specify precise details of
design. Having recognized a significant environmental impact and having
determined that mitigation measures may reduce the impact to insignificance,
the MND may leave the details to engineers. In such a context, the design may
change many times without requiring further environmental review. Here,
however, the MND fails even to recognize the problem. Nothing in the MND requires any measures to mitigate
contamination or dam failure.
Ocean View contends substantial evidence supports a fair argument that the
project may have a significant negative aesthetic impact.
Any substantial negative effect of a
project on view and other features of beauty could constitute a significant
environmental impact under CEQA. ( Quail Botanical Gardens Foundation, Inc.
v. City of Encinitas, supra, 29 Cal.App.4th at p. 1604.) Appendix G
to the CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.) n1
recommends that the lead agency consider the following questions:
"... Would the project:
"a) Have a substantial adverse effect
on a scenic vista?
"b) Substantially damage scenic
resources, including, but not limited to, trees, rock outcroppings, and
historic buildings within a state scenic highway?
"c) Substantially degrade the existing
visual character or quality of the site and its surroundings?
"d) Create a new source of substantial
light or glare which would adversely affect day or nighttime views in the
area?" (Id. at § 15387.)
Presently, the reservoir looks like
a very large swimming pool trying to pass as a lake. An EIR prepared by the City of Santa
Barbara for a similar reservoir stated in part: "[T]he sight of clear blue
water in a densely vegetated area with diverse topographic relief and an
overall green framework from landscaping, provides a striking and unique visual
feature, albeit ... artificial." The proposed pitched aluminum cover would
extend over four acres and be 15 feet tall at its highest point. The cover would
have a semi-reflective mill finish, which over time would oxidize to a dull
gray. Landscaping plans will shield adjacent homes from a view of the reservoir
and cover. The District concedes, however, that the reservoir and cover will be
visible from two homes that are at higher elevations.
The president of Ocean View and neighboring
property owners have expressed concerns to the District about the aesthetic
impacts of the project. The Santa Barbara County Planning and Development
Department commenting on a draft of the initial study stated in part: "If
the proposed roof structure can be seen from public or private view areas,
particularly from any of the surrounding recreational trails, then appropriate
mitigation should be developed (appropriate landscape screening, painting the
roof to better blend in with the surrounding terrain if feasible)."
The District argues that private views are
not environmentally significant under CEQA. The District cites Noronha v.
Stewart (1988) 199 Cal. App. 3d 485, 492
[245 Cal. Rptr. 94], for the proposition that there is no common law right to an
unobstructed view. But Noronha is not a CEQA case. The District cites
nothing in CEQA that relieves it from considering the impact of the project on
private views. To say there is no common law right to a private view, is not to
say that the District is relieved from considering the impact of its project on
That a project affects only a few private
views may be a factor in determining whether the impact is significant. But
here there is more involved than private views. Although the surface of the
reservoir cannot be seen from the public trails, the record contains
photographic evidence from which a fair argument can be made that the cover
will be visible from public trails. Because the pitched cover at its highest
point will be 15 feet from the surface, it appears that at least a side view of
the cover will be visible above the dam face. As we view the District's
proposed landscaping plans, there will be no landscaping on the dam face to
screen the side view of the cover.
The District argues that expressions of
concern, questions or objections do not constitute substantial evidence of an
adverse environmental impact. (Citing CEQA Guidelines, § 15384, subd. (a).) The
District points out that in Quail Botanical Gardens Foundation, Inc. v. City
of Encinitas, supra, 29 Cal.App.4th at page 1605, substantial
evidence of view obstruction was based on photographs with story poles and the
testimony of an expert surveyor.
It is true there is no such evidence here.
But we are not considering a matter as objective as whether the project will
obstruct views. Here we are concerned with the overall aesthetic impact of an
aluminum cover. Consideration of the overall aesthetic impact of the cover by
its very nature is subjective. Opinions that the cover will not be
aesthetically pleasing is not the special purview of experts. Personal
observations on these nontechnical issues can constitute substantial evidence.
(See Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.
App. 3d 872, 882 [274 Cal. Rptr. 720] [residents' complaints about noise can
constitute substantial evidence].)
If it were merely the matter of expressions
of concern by one or two people, we might agree that there is no substantial
evidence of a negative impact. But here the county urged the District to adopt
mitigation measures if the cover can be seen from public or private view areas.
The District did adopt landscape screening, but there is substantial evidence
that the cover will be visible from some private and public view areas, despite
the screening. The evidence here goes beyond a few people expressing concern
about the aesthetics of the project. There is substantial evidence to support a
fair argument that the project may have a significant adverse aesthetic impact.
The judgment is reversed with directions to
the trial court to issue a writ of mandate ordering the District to vacate its
decision certifying the MND. Costs are awarded to appellant.
Coffee, J., and Perren, J., concurred.
n1 All further reference to CEQA Guidelines
are to this code and title.