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No Post-Hoc Rationalization In Playground EIR, Court Rules

The First District Court of Appeal has upheld the City of Eureka's environmental impact report for a private school playground in a residential neighborhood.

The city adopted the EIR for the playground after volunteers at Redwood Christian School had already built the facility, in violation of an existing conditional use permit (CUP) for the school. The court rejected neighbors' argument that the environmental study amounted to after-the-fact rationalization. Instead, the court found the EIR "accurately describes the project as the application to modify the existing 1980 CUP for the school. While any alleged code violations in the construction of the playground may have been relevant to the city's consideration of the variance requested, it was not a CEQA [California Environmental Quality Act] consideration."

Eureka Church of the Nazarene opened Redwood Christian School in 1980. Located in Eureka's Prairie Addition neighborhood, the school serves about 70 students in grades kindergarten through eight. The CUP approved in 1980 requires "that all school related activities be conducted within the buildings or at neighborhood playgrounds."

Apparently unaware of this restriction, volunteers in 2002 built an outdoor playground of about 2,600 square feet. It included a prefabricated play structure, surrounded by woodchips and a four-foot-high wall. Neighbors complained, and city officials in July 2003 notified the school that the playground was unauthorized. Use of the play area was suspended.

The church then applied for a use permit modification. In March 2005, the City Council certified an EIR for the project, and approved the use permit modification and a correlated zoning variance. The neighbors then sued, arguing that the environmental review was inadequate and that the project violated the city's zoning ordinances. A Superior Court judge ruled for the city, a decision upheld by a three-judge panel of the First District, Division Five.

The playground opponents made a number of CEQA claims. First, they charged that the city improperly assigned EIR preparation to the project applicant and then "rubber stamped" the document. Indeed, the church's consultant did prepare the EIR, including a noise study. But the city hired its own consultant (Environmental Science Associates, or ESA) to review the document, and the City Council made findings that the EIR represented the city's independent judgment and analysis.

"We find nothing improper in the applicant's preparation of the draft document," wrote Contra Costa Superior Court Judge Terence Bruiniers, sitting by assignment on the appellant court bench.

The court also rejected the argument that the EIR was improperly skewed to favor an "illegal" activity, concluding the issue was beyond the scope of CEQA. "Prior code or zoning violations unrelated to the current application need not be considered in evaluating a new application," Bruiniers wrote in a footnote, citing Baird v. County of Contra Costa, (1995) 32 Cal.App.4th 1464 (see CP&DR Legal Digest, March 1995).

Regarding project impacts, the playground opponents argued the EIR inadequately addressed noise, aesthetics, historic resources and safety. The opponents contended the EIR's noise analysis was "technically incompetent" and conflicted with a study the neighbors commissioned.

But the court noted that ESA's review found that the church consultant's noise study followed a standard approach and accurately characterized children at a playground. "Our duty is not to pass on the validity of the conclusions expressed in the EIR, but only on the sufficiency of the report as an informative document," the court ruled. "The relevant issue is only whether the studies are sufficiently credible to be considered as part of the total evidence that supports the findings."

Thus, the court upheld the city's conclusion, based on the church's noise study, that the playground would not have a significant impact on noise levels.

The opponents argued that the EIR failed to analyze the playground's impact on the Prairie Addition's historic character. The neighbors' own consultant had identified 53 structures in the 30-block neighborhood as historically significant.

However, the court noted that there was no evidence the project would damage or impair any of those structures, and that there was no evidence the neighborhood itself was an historic resource.

Opponents argued that the playground structure was "enormous and garish" and inappropriate for the site. But the court ruled the opinion didn't count for much.

"The possibility of significant adverse environmental impact is not raised simply because of individualized complaints regarding the aesthetic merit of a project," Bruiniers wrote. "Here, the city determined that the project's aesthetic impacts would be insignificant, and EIR contained, as required, statements addressing the reasons for that conclusion."

As to safety, the court accepted the city's argument that the safety of equipment installed on a private playground is not a CEQA issue.

In the unpublished portion of the opinion, the court ruled that project opponents offered no proof that the playground was built within the setback prescribed by the city code. And, noting that playgrounds and play fields are common on residentially zoned properties in Eureka, the court ruled the variance was not improper.

The Case:

Eureka Citizens for Responsible Government v. City of Eureka, No. A113289, 07 C.D.O.S. 1221, 2007 DJDAR 1523. Filed January 8, 2007. Certified for partial publication February 1, 2007.

The Lawyers: For Eureka Citizens: Andrea Matarazzo, Diepenbrock Harrison, (916) 492-5000.

For the city: David Tranberg, city attorney, (707) 441-4147.

For Eureka Church of the Nazarene: Richard Smith, (707) 444-9281.