An environmental impact report is necessary for a 120-unit senior housing facility in the City of Grand Terrace, the Fourth District Court of Appeal has ruled. The unanimous three-judge appellate panel upheld a trial court judge's ruling that a mitigated negative declaration for the project was inadequate.
The court found that housing density, building height and noise were all potential impacts that needed additional study.
The site in question is six acres in Grand Terrace, which is located between Riverside and San Bernardino. In 2004, the city purchased the undeveloped land with the intent of developing senior housing, as the city's senior center is next door. The property was zoned for single-family residential development of up to five units per acre, although a 2003 park master plan contemplated using the property for a park.
The city signed an agreement with Corporation for Better Housing to develop the site. In September 2005, the city approved a specific plan for the site. The specific plan included a general plan amendment, a rezoning to medium-high density residential allowing up 20 units per acre, approval of 120 units in a mixed two- and three-story building on a 2-acre portion of the site, and a 4-acre park. The city also certified a mitigated negative declaration that said all environmental impacts could be reduced to insignificant levels with project mitigations.
The project had been unpopular with residents of the single-family neighborhood bordering the site, so not surprisingly they organized as Citizens for Responsible and Open Government and sued. In mid-2006, San Bernardino County Superior Court Judge John Wade ruled that Citizens had made a fair argument that increased population density, neighborhood incompatibility and noise were potential environmental effects, and he ordered preparation of an EIR.
On appeal, Better Housing argued Citizens had not met the fair argument standard, which is a relatively low bar for plaintiffs to cross. Regarding population density, Better Housing contended the average density was 20 units per acre — not 60 — because the entire 6-acre site needed to be considered. Plus, Better Housing argued the opponents had not identified significant impacts that would not be mitigated by approved measures such as screening and setbacks, minimizing outside lighting glare, the provision of transit, and compliance with the city's noise ordinance.
Citizens argued that 60 units an acre was the proper characterization because development would occur on only 2 acres. Plus, the opponents pointed out, the general plan limits density to 12 units per acre.
The Fourth District said Better Housing presented "a disingenuous method of evaluating the project density." The court noted the specific plan itself refers to "120 senior-oriented villas and related parking area on 2.05 acres." And even at 20 units an acre, the court ruled, the project conflicts with the general plan's limitation of 12 units per acre. An EIR is necessary to evaluate "changes to the physical and aesthetic conditions and character of the surrounding low-density, single-family residential community," Justice Barton Gaut wrote for the court.
On building height, Better Housing pointed out that it eliminated a third story on one wing closest to houses and that the third story elsewhere was only 6 to 8 feet higher than an adjacent elementary school. Still, the court found the project "uncharacteristic of the surrounding neighborhood."
"The impact creates a change in the aesthetic environment and interferes with scenic views of the public in general by introducing into the primarily single-family residential neighborhood a large, high-density residential building, which includes mixed two-story and three-story structures," Gaut wrote.
"Aesthetic issues, such as public views, ‘are properly studied in an EIR to assess the impacts of a project,'" Gaut continued, citing Mira Mar Mobile Community v. City of Oceanside, (2004) 119 Cal.App.4th 477, 492 (see CP&DR Legal Digest, July 2004).
Regarding noise, opponents argued that the project's individual wall-mounted air conditioning units would impact the quiet neighborhood. Better Homes pointed to mitigations, such limiting air conditioners near neighboring residences to 20 and complying with the noise ordinance. But the court said the evidence supported opponents' contention and concluded, "There is no evidence of any measures to be taken that would insure that the noise standards would be effectively monitored and enforced."
In an unpublished portion of the opinion, the Fourth District upheld the trial court's award of $30,000 in attorney's fees to Citizens.
The Case: Citizens for Responsible and Open Government v. City of Grand Terrace, No. E041493, 08 C.D.O.S. 2960, 2008 DJDAR 3615. Filed February 21, 2008. Certified for partial publication March 13, 2008. The Lawyers: For Citizens: Raymond W. Johnson, Johnson & Sedlack, (951) 506-9925. For Corporation for Better Housing: John C. Nolan, Gresham, Savage, Nolan & Tilden, (951) 684-2171.
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