Issue
In Bowman v. City of Berkeley, (4 Daily Journal D.A.R. 11,751, Cal.App. 1 Dist., Sept. 20, 2004), the California Court of Appeal addressed the issue of whether a city erred in failing to prepare an environmental impact report (EIR) addressing the adverse aesthetic effect of a proposed senior housing project.
Facts
Affordable Housing Associates planned to build a four-story, low-income, senior housing project on the corner of one of Berkeley’s most heavily traveled thoroughfares. Neighbors for Sensible Development (Neighbors) opposed the plan, mainly due to the height of the proposed building. Developer revised the plans and stepped the project down to two stories on the side of the building bordering a residence, but kept the height at four stories along the street. The City of Berkeley issued a proposed mitigated negative declaration for the project which listed measures to mitigate potentially significant impacts on noise, air quality and soils during construction, and traffic once the project is completed. The initial environmental study found that the project would have no impacts in the areas of aesthetics or hazardous materials. Neighbors argued that an EIR was required because the project would have potentially significant impacts in several areas, including aesthetics.
The Zoning Administration Board approved a use permit, required because zoning limitations allowed only a maximum height of three stories, and adopted the mitigated negative declaration. Marie Bowman, on behalf of herself and Neighbors, appealed the Board’s decision to the City Council. The City Council voted to adopt the Board’s decisions to issue the use permit and adopt the mitigated negative declaration. The City Council concluded that no EIR was required because none of the comments in the public review period had raised any environmental impacts that were not identified and reduced to insignificance in the mitigated negative declaration.
Appellate Court Decision
Neighbors asserted on appeal that an EIR should have been prepared because the project may have significant environmental effects in the areas of hazardous materials and aesthetics. The Court of Appeal concluded that there was substantial evidence that the project will have no significant effect in the area of hazardous materials.
As for aesthetics, the Court noted that the California Environmental Quality Act provides that aesthetic issues are among the issues that are “properly studied in an EIR.” The factors to examine in determining such an environmental impact are 1) whether a project would have a substantial adverse effect on a scenic vista, and 2) whether the project would substantially degrade the existing visual character or quality of the proposed site and its surroundings. The Court concluded that, although some residents in the neighborhood would have diminished views of the Berkeley hills, the scope of the impact is limited and cannot be considered environmentally significant.
The Court noted that Neighbors’ main contention is that an EIR is required because the building is one story too tall. The Court noted that the area of the proposed project is already highly developed. It concluded that the Legislature did not intend “to require an EIR where the sole environmental impact is the aesthetic merit of a building in a highly developed area.” The Court concluded that the aesthetic difference between a four-story and three-story building on a commercial lot located in a developed area on a major thoroughfare is not a significant environmental impact. Therefore, the Court found that City did not err in adopting a mitigated negative declaration for the housing project instead of preparing an EIR.
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