Lay Opinion Provided in Response to MND Cannot Be Categorically Disregarded

On December 17, 2018, the Third District Court of Appeal (“Court”) in Georgetown Preservation Society v. County of El Dorado upheld a petition for writ of mandate compelling the County of El Dorado (“County”) to prepare an Environmental Impact Report (“EIR”) to determine whether a Dollar General discount store (“Project”) would have a significant effect on the environment.

Background and Procedural History

El Dorado County prepared an initial study to analyze the environmental impacts of a proposed Dollar General discount store and found no basis for preparing an EIR. The County ultimately adopted a Mitigated Negative Declaration (“MND”).

Several members of the public objected to the Project, citing its impacts on the aesthetic character of the area. The Project was slightly modified and the County found the Project was consistent with the applicable zoning ordinances, that its design substantially conformed with the El Dorado County Historic Design Guide (“HDG”), and that it “would not substantially detract from Georgetown’s historic commercial district.”

For those reasons, the County found there to be no aesthetic impacts and adopted the MND. The Georgetown Preservation Society (“Society”) filed suit, claiming the County failed to adequately consider traffic impacts and aesthetic impacts of the Project, and that the Project violated applicable local planning and zoning laws. The trial court found in favor of the Society and issued a writ ordering the preparation of an EIR for the Project.

Most claims were abandoned and only the issue of aesthetic impacts was raised before the Court of Appeal. On this issue, the Court held that (1) consistency with local design guidelines does not obviate the need for CEQA review, (2) lay opinions can provide substantial evidence to support a fair argument that a project may have a significant aesthetic impact on the environment, triggering the need to prepare an EIR, and (3) the lay opinions presented to the County could not be categorically disregarded because the County made no determinations regarding their credibility.

Important Considerations for Lead Agencies when Preparing CEQA Documents

1. Consistency with Design Standards Do Not Always Mitigate Aesthetic Impacts

In analyzing the aesthetic impacts of the Project, the County in its initial study found that “with review for consistency with the general plan and the HDG, [aesthetic] impacts would be less than significant.” On appeal, the County argued that lay opinions conflicting with a local agency’s design review findings cannot satisfy CEQA’s fair argument standard. The Court of Appeal disagreed with the County’s argument and stating “A public agency’s own design review is not a substitute for CEQA review.”

The County relied on Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 593-594 where the Court of Appeal found that “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.” But the Court of Appeal clarified Bowman to simply stand for the proposition that local design review may mitigate aesthetic impacts, not it “necessarily or always adequately addresses aesthetic impacts.”

To further support this distinction, the Court of Appeal looked to several of its earlier decisions. In Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 933-934, it rejected the application of the substantial evidence standard to zoning findings where zoning rules had been partially designed to provide environmental mitigation. And in Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 342, the court found while looking at an agency’s threshold of significance may be useful, it does “not relieve a public agency of the duty to consider the evidence under the fair argument standard.”

2. Lay Opinions Can Provide Substantial Evidence to Support a Fair Argument that a Project May Have a Significant Aesthetic Impact on the Environment

The Court cited a host of earlier decisions holding that lay commentary on nontechnical matters is admissible and probative of CEQA’s low threshold needed to trigger an EIR. Commentary regarding aesthetics is considered to be non-technical. The court distinguished this from its decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677 where it found lay opinion testimony regarding urban decay to not constitute substantial evidence because urban decay is a technical matter necessitating expert testimony.

Here, a landscape architect/restoration ecologist, a registered professional engineer, and a city planner were among “a large number of interested people [who] believe this project would have a significant and negative effect on aesthetics” and who provided comment letters to the County evidencing that belief. The Court had “little difficulty finding the fair argument standard was met in this case” because this lay opinion testimony regarding how the Project is “too big and too boxy or monolithic” constituted sufficient evidence to show “this project in this location might significantly impair the central district’s unique and treasured Gold Rush character.”

3. Lay Opinions Regarding Non-Technical Subjects May Not Be Categorically Disregarded Without Findings Regarding Their Credibility

The Court further found that the County failed to make any explicit evidentiary findings questioning the credibility of the lay opinions regarding the Project’s aesthetic impacts, and therefore could not simply ignore those comments. If a lead agency believes testimony is incredible, it must first identify the specific evidence it finds incredible, then adopt findings that explain why the agency finds the evidence to be insubstantial. Absent this information, a court may well not give deference to the lead agency.


If you have any questions regarding this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Mona G. Ebrahimi | 916.321.4597

Andreas Booher | 916.321.4372