Recent Court Decision Toughens the Requirement of Expert Testimony on Technical CEQA Topics and Limits the General Rule Allowing Lay Public Opinion on Aesthetic Effects Under CEQA
Environmental/Land Use Alert (November 1, 2019)Wine afficionados everywhere are celebrating a victory for a winery project in Sonoma County, California, after the California Court of Appeal, First District, Division Four rejected the opponents’ challenge to the project’s mitigated negative declaration in September 2019.
In Maacama Watershed Alliance v. County of Sonoma, Knights Bridge Vineyards LLC sought to build a two-story winery with a wine cave and additional facilities on an 86-acre rural site. The county concluded that, with the recommended mitigation incorporated, the project would not have a significant effect on the environment. As such, the county adopted a mitigated negative declaration (MND) and approved the winery project. A lawsuit ensued.
Among the opponents’ challenges to the winery project were impacts on geology and erosion, groundwater supply, visual resources and fire hazards, all proper subjects of CEQA review.
In rejecting opponents’ attack on the MND’s analysis of geology, erosion and groundwater supply impacts, the court found that hiring a dueling expert does not immediately constitute substantial evidence for a fair argument of a significant effect on the environment. As the Maacama decision proves, the opponents’ expert criticism of the MND’s technical analysis, alone, is insufficient to support a fair argument of a significant effect. Opponents must provide expert opinion that the project is reasonably likely to cause a significant effect on the environment.
To analyze aesthetic impacts, an agency considers whether a project would substantially degrade the existing visual character or quality of the site and its surroundings. In Maacama, the county concluded the winery would not be visible from public roads. The opponents disputed the conclusion with lay opinion evidence that an existing residence on the property was visible from a nearby highway. While the topic of aesthetic impacts is one of the few CEQA topics where members of the public with no special expertise may provide opinion evidence that is treated as substantial evidence, the Maacama court carved out a limitation to that general rule – opinions of local residents on the visual impacts of a different structure, not part of the project, do not constitute substantial evidence that the project itself will have a significant aesthetic impact on the environment.
The Maacama court also rejected the opponents’ argument that an EIR was required to examine the project’s impacts to fire hazards, including wildfires, finding “no indication that the activities at the winery will cause an elevated risk of fire.” The court emphasized that the project would be required to comply with various fire-related regulatory standards and that the need for additional fire protection services is not an environmental impact under CEQA.
In rendering its decision, the court explained that a “persistent explanation for this outcome [i.e., affirmance of the MND] is the success [opponents] already achieved in getting modifications to the project and the analysis of its environmental effects.” (Italics added.) The court favorably noted that the county and applicant “made important concessions” in response to concerns raised by opponents during the administrative process, implying that the CEQA process worked and should not be undone.
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