Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. CIV-MSN07-1359
SIMONS, J.
Plaintiff/appellant Citizens for Civic Accountability, an unincorporated nonprofit association (Citizens), appeals a judgment on its petition for writ of mandate in favor of defendant/respondent Town of Danville (Town) and real party in interest/respondent property owner Davidon Homes (Davidon) regarding a proposed residential development project (Project). Citizens contends the court erred in failing to require Town to prepare an environmental impact report (EIR) pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). We agree and modify the judgment to require Town to prepare an EIR pursuant to CEQA relating to the possible impacts of the Project on wetlands, riparian habitat, aesthetics, and possible cumulative riparian impacts.
Town and Davidon are collectively referred to as “respondents.”
On January 16, 2009, respondents requested that we take judicial notice, pursuant to Evidence Code section 452, subdivision (c) (official acts of the executive department of the United States), of the March 1, 2007 United States Army Corps of Engineers (Corps) “Decision Document Nationwide Permit 29.” We decline the request since this document was not included in the administrative record and is irrelevant. (See Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1112 [refused as improper request to take judicial notice of extra-administrative record evidence] (Architectural Heritage).)
BACKGROUND
Davidon, owner of the subject property, seeks to build 22 single family homes and a new roadway (Weber Lane) connecting Matadera Way with Blemer Road in Danville. Davidon also seeks to rezone the property from an R-20 “Single Family Residential District” to a P-1 “Planned Unit Development District,” subdivide the site into 22 single family lots with one remainder “3.7 +/- acre” life estate parcel, and remove numerous trees.
The property, a “15 +/- acre” site in Danville known as the “Weber property,” was originally owned by the “Weber Estate,” which donated it to the Salvation Army. The Salvation Army sold the property to Davidon, reserving a 3.7 +/- acre life estate for Lucille Weber, who resides there. The property contains a single residence, several outbuildings, and a horse pasture. The property is surrounded by a senior-adult apartment complex, a community park (Oak Hill Park), and low density residential development. Green Valley Creek marks the southern boundary of the Project area. Elementary, middle, and high schools are in close proximity to the Project site. An approved, but undeveloped eight-lot subdivision is located adjacent to and to the east of the Project site.
Citizens is an unincorporated nonprofit association formed to ensure proper environmental planning in Town. It was formed prior to Town’s challenged approvals in this matter, and its members consist of Town citizens and residents.
Between October 2004 and January 2006, respondents had technical reports prepared regarding the Project’s effects on existing biological resources, trees, storm water control, and traffic. In January 2006, Town published an “Initial Study” and a proposed “Mitigated Negative Declaration” (MND). The proposed MND concluded that although the Project could potentially have a significant effect on biological resources and noise, there would be no significant effect because revisions to the Project had been made and an MND would be prepared.
In February 2006, after reviewing the proposed MND for the Project, the California Department of Fish and Game (DFG) informed Town that the Project might impact Green Valley Creek and the California red-legged frogs and western pond turtles found there. DFG also noted that the Project site has at least one special status plant species, which may be endangered, threatened or rare under California or federal criteria. DFG stated that without adequate information it could not agree that there are no significant impacts on biological resources due to the project.
In February 2007, Town published a revised Initial Study, which again found that although the Project could potentially have a significant impact on biological resources and noise, mitigation measures would be taken to reduce the impacts to less than a significant effect. That month, the Town Planning Commission held a public hearing on the Project and unanimously approved a recommendation that the Town Council adopt the proposed MND and approve the preliminary development plan and various requests by Davidon. Members of the public, including Citizens, objected to the adequacy of the Initial Study and the proposed MND and urged Town to prepare an EIR.
The revised Initial Study is the operative initial study for purposes of this appeal and will hereafter be referred to as the “Initial Study.”
On April 17, 2007, the Town Council unanimously approved the proposed MND and adopted the preliminary development plan and Davidon’s requests for tree removal and rezoning.
Petition for Writ of Mandate
On May 18, 2007, Citizens filed a verified petition for writ of mandate and complaint for injunctive relief. (Pub. Resources Code, § 21168; Code Civ. Proc., § 1094.5.) The first cause of action alleged that in light of the substantial evidence of potentially significant and cumulative adverse impacts on sensitive species, jurisdictional wetlands, water quality, a seasonal stream, oak woodlands, hydrology, aesthetics, flooding, and traffic, which would not be reduced by proposed mitigations, Town erroneously failed to prepare an EIR. The second cause of action alleged Town failed to prepare an adequate Initial Study and MND. The third cause of action alleged Town failed to make adequate findings as to significant environmental impacts. The petition sought to direct Town to set aside and vacate all approvals for the Project and to prepare an EIR. It also sought to enjoin Town from implementing the Project pending full compliance with CEQA.
Motions for Judgment
Thereafter, both Davidon and Citizens filed motions for judgment pursuant to Code of Civil Procedure section 1094. On March 5, 2008, the trial court issued its statement of decision granting Citizen’s motion for judgment, in part, and granting Davidon’s motion for judgment, in part. The court found that by omitting a discussion of the substantial tree removal from its Project description, the Initial Study failed to adequately describe the Project. The statement of decision also noted that the court made no finding that an EIR was required or that any particular aspect of the subject property required further mitigation other than that provided in the MND. It stated, “the [c]ourt has found the [MND] to be otherwise properly issued. The [c]ourt finds an absence of ‘fair argument’ as to unmitigated environmental impacts as to riparian habitat, wetlands, any seasonal stream, special species, aesthetic impacts, traffic, or the cumulative effective of any or all of them.” The court ordered that a writ of mandate issue directing Town to set aside its certification of the Initial Study and the MND and directing it to properly prepare a new initial study addressing the topic of tree removal and any cumulative factors that arise when that matter is combined with other potentially adverse aspects. It found the Initial Study valid in all other respects. Judgment in conformity with the statement of decision was entered on April 1, 2008.
The Initial Study referred to the removal of 26 trees instead of the 126 trees that a tree report stated were to be removed as part of the Project.
Citizens filed a timely notice of appeal.
DISCUSSION
I. CEQA
“CEQA is a comprehensive [statutory] scheme designed to provide long-term protection to the environment.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112.) Its purpose is to ensure that public agencies regulating activities that may affect the environment give primary consideration to preventing environmental damage. (Architectural Heritage, supra, 122 Cal.App.4th at p. 1100.) Pursuant to Public Resources Code section 21083, regulatory guidelines regarding the application of CEQA have been promulgated in California Code of Regulations, title 14, section 15000 et seq. (hereafter Guidelines). (Architectural Heritage, at p. 1100 & fn. 2.)
All further undesignated section references are to the Public Resources Code.
Courts should give great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2.)
CEQA and the Guidelines have established a three-step process to carry out the Legislature’s intent. (Architectural Heritage, supra, 122 Cal.App.4th at p. 1100.) The first step requires the administrative agency to conduct a preliminary review to determine whether CEQA applies to the proposed activity. If no exemptions to CEQA apply to the proposed activity, the agency must proceed to the second step, preparation of an initial study. (Guidelines, §§ 15060, 15061; Architectural Heritage, at pp. 1100-1101.)
The second step, the initial study, serves several purposes, one of which is to inform the choice between an EIR and a negative declaration. (Guidelines, § 15063, subd. (c); Architectural Heritage, supra, 122 Cal.App.4th at p. 1101.) “CEQA provides that generally the governmental agency must prepare an EIR on any project that may have a significant impact on the environment. (§§ 21080, subd. (d), 21100, subd. (a), 21151, subd. (a); [citations].) Whenever there is substantial evidence supporting a fair argument that a proposed project may have a significant effect on the environment, an EIR normally is required. (§ 21080, subd. (c)(1); Guidelines, § 15070, subd. (a); [citations].)” (Citizens for Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1331 (Grand Terrace).) A significant impact is a substantial, or potentially substantial, adverse physical change in the environment. (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 945.) The agency’s decision not to require an EIR may be upheld “only when there is not credible evidence to the contrary.” (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1318.)
Guidelines section 15358 states: “ ‘Effects’ and ‘impacts’ as used in these guidelines are synonymous. [¶] (a) Effects include: [¶] (1) Direct or primary effects which are caused by the project and occur at the same time and place. [¶] (2) Indirect or secondary effects which are caused by the project and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect or secondary effects may include growth-inducing effects and other effects related to induced changes in the pattern of land use, population density, or growth rate, and related effects on air and water and other natural systems, including ecosystems. [¶] (b) Effects analyzed under CEQA must be related to a physical change.” (See Grand Terrace, supra, 160 Cal.App.4th at p. 1333.)
If the initial study reveals no substantial evidence that the project may have a significant environmental effect, the agency may adopt a negative declaration. (§ 21080, subd. (c)(2); Guidelines, § 15070, subd. (b); Grand Terrace, supra, 160 Cal.App.4th at p. 1331.) “Alternatively, if there is no substantial evidence of any net significant environmental effect in light of revisions in the project that would mitigate any potentially significant effects, the agency may adopt [an MND]. [Citation.] [An MND] is one in which ‘(1) the proposed conditions “avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.” (§ 21064.5....)’ [Citations.]” (Grand Terrace, supra, at pp. 1331-1332.) The MND allows the project to go forward subject to the mitigating measures. (§§ 21064.5, 21080, subd. (c); see Grand Terrace, at p. 1331.)
If the project does not qualify for either a negative declaration or an MND, the third step in the process is to prepare a full EIR on the proposed project. (Guidelines, §§ 15063, subd. (b)(1), 15080; Pub. Resources Code, §§ 21100, 21151; Architectural Heritage, supra, 122 Cal.App.4th at p. 1101.)
II. Standard of Review
Judicial review (at the trial or appellate court) of an agency’s decision to adopt an MND, applies the “fair argument” test to determine whether the party challenging the MND has met its burden of demonstrating that substantial evidence in the administrative record supports a fair argument that the proposed mitigation measures are inadequate and that the project as revised and/or mitigated may have a significant adverse effect on the environment. (Architectural Heritage, supra, 122 Cal.App.4th at p. 1112.) The fair argument standard is a “ ‘low threshold’ ” test for requiring the preparation of an EIR, and reflects a legislative preference for resolving doubts in favor of environmental review. (Grand Terrace, supra, 160 Cal.App.4th at p. 1331.)
“ ‘ “In the CEQA context, substantial evidence is ‘enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.’ ” ’ [Citation.]” (Architectural Heritage, supra, 122 Cal.App.4th at pp. 1109-1110.) To support a fair argument, “substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact,” but is not “argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by physical impacts on the environment.” (§ 21080, subd. (e)(1) & (2).)
A reviewing court must defer to the agency’s credibility determinations involving disputed factual questions going to credibility. (Grand Terrace, supra, 160 Cal.App.4th at p. 1340.) In the event of such a factual dispute, the lead agency has discretion to determine whether the information has adequate foundation, involves an issue within the witness’s expertise or entails speculation. (§ 21080, subd. (e); Citizens’ Com. to Save Our Village v. City of Claremont (1995) 37 Cal.App.4th 1157, 1170-1171.) “Thus, for example, if an expert purporting to hold a Ph.D. testifies as to the environmental effect of a project, a lead agency or a court may properly consider and ‘weigh’ evidence in the record showing the expert never attended college and his Ph.D. is phony.” (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 935 (Pocket Protectors).) But a true credibility problem must be fact-based and must have been specifically addressed by the lead agency during the administrative process. (Id. at pp. 934-935.)
No deference is required when weighing some substantial evidence against other substantial evidence. In such circumstances, “ ‘neither the lead agency nor a court may “weigh” conflicting substantial evidence to determine whether an EIR must be prepared in the first instance....’ ” (Grand Terrace, supra, 160 Cal.App.4th at p. 1340, quoting Pocket Protectors, supra, 124 Cal.App.4th at p. 935.) “[I]f a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect. [Citation.]” (Guidelines, § 15064, subd. (f)(1); accord, Grand Terrace, at p. 1340.)
Our review of the trial court’s judgment on the petition for writ of mandate is de novo, “ ‘with a preference for resolving doubts in favor of environmental review.’ ” (Grand Terrace, supra, 160 Cal.App.4th at p. 1331, quoting Pocket Protectors, supra, 124 Cal.App.4th at p. 928.) We independently review the administrative record to determine whether the agency prejudicially abused its discretion in failing to proceed in a manner required by law, or if its decision is not supported by substantial evidence. (Grand Terrace, at p. 1331.) We review the agency’s actions, not the trial court’s decision. (California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 185.)
Pursuant to this standard of review, we determine whether Citizens has carried its burden of showing substantial evidence supports a fair argument that the Project will result in significant adverse environmental impacts and that the proposed mitigation measures are inadequate in that they fail to reduce the environmental detriment “ ‘to a point where clearly no significant effect’ will result.” (Architectural Heritage, supra, 122 Cal.App.4th at p. 1120, quoting § 21064.5; accord, Grand Terrace, supra, 160 Cal.App.4th at p. 1333.)
III. Analysis
A. Wetlands
Does the project “[h]ave a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act... through direct removal, filling, hydrological interruption, or other means?” (Guidelines, Appen. G, item IV., c. [environmental checklist form].)
United States Code section 1344.
The Guidelines address impacts on wetlands, special status species, riparian habitat and fish or wildlife under the heading of “Biological Resources.” (Guidelines, Appen. G, item IV.)
The Initial Study stated, “[t]here is a small seasonable wet area in the northwest portion of the property that receives surface run-off from Oak Hill Park to the north.... During the winter, some surface ponding.... However, only.02 acres would be impacted by the construction of one of the lots. It is the opinion of Zander Associates that, considering there is no hydrological connection to waters of the United States, the [Corps] would not assert jurisdiction over this area and fill authorization under § 404 of the Clean Water Act would not be required.”
Zander Associates (Zander) is Davidon’s environmental consultant. Zander prepared a biological resources assessment for Davidon and undertook additional studies to address DFG concerns.
Citizens argues that the opinions of the California Regional Water Quality Control Board (Water Board) and Citizens’s expert, restoration ecologist John Cain, constitute substantial evidence supporting a fair argument that the Project may have a significant adverse impact on wetlands. Citizens cites City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229 (City of Carmel) for the proposition that an unresolved factual dispute as to the nature, and therefore existence, of a wetlands should be resolved by preparation of an EIR.
In City of Carmel there was a substantial conflict between the experts as to the size of the wetlands based on differing definitions of “wetlands.” (City of Carmel, supra, 183 Cal.App.3d at pp. 247-249.) In this case, the disputed issue was the impact of filling the wetland area on the property, not the definition of “wetlands.”
In February 2006, Cain rendered his opinion regarding the Project’s CEQA compliance after visiting the property more than a dozen times during different seasons and reviewing the proposed MND. Cain stated, based on his personal observation, that the presence of standing and flowing water on the property establishes that wetlands exist on the property. Cain opined that the Project would fill jurisdictional wetlands, necessitating a permit under section 404 of the Clean Water Act (Act) and certification by the Water Board. Cain stated that the proposed MND is based on the inaccurate finding by Zander that no wetlands exist on the Project site. Cain determined that the Project would significantly adversely impact jurisdictional wetlands, and the proposed mitigations do not alter that determination. Cain based his opinion regarding hydrologic and wetland impacts on more than 20 years of educational and professional experience in wetlands, stream, and riverine ecology and restoration. He has extensive experience in wetland restoration and is considered an expert in that area, having developed and managed the largest wetland restoration project in Contra Costa County.
In April 2007, after reviewing the notice of intent to draft an MND and visiting the property, the Water Board concluded there are wetlands on the Project site; these wetlands would likely be considered jurisdictional by the Corps, requiring a permit under the Act; and the Project “may have impacts to waters of the State that have not yet been adequately characterized or acknowledged and addressed in the MND.” The Water Board recommended that all wetlands on the site be formally evaluated so that the Project’s impacts can be appropriately assessed. The Water Board stated that, contrary to Zander’s opinion of no hydrological connection to United States waters, “there is a clear indication by surface topography” that the seasonally ponded water in the Project area flows to a concrete lined “v-ditch” bordering the property which conveys water from the open space area and intermittent stream within Oak Hill Park to a storm drain that releases water into Green Valley Creek. The Water Board concluded that in order to determine whether there are significant impacts on wetlands the following measures are necessary: (1) a formal delineation of the seasonal wetlands on the Project site; (2) consultation with the Corps as to its jurisdiction over any wetlands on the Project site; (3) receipt of more detailed information on the Project plans for the area where water drains into the v-ditch in order to clearly define proposed impacts; and (4) inclusion of mitigation for impacts to wetlands in environmental documents.
In an attempt to minimize the significance of the Water Board’s letter, respondents cite administrative hearing testimony by the Town City Attorney, Robert Ewing, that after receiving the Water Board’s April 2007 letter, he spoke to two people at the Water Board and explained “how our process works,” including the negative declaration, after which the two persons said, “unequivocally,” they had no further concerns. Ewing noted these two Water Board personnel did not want to put their comments in writing. We refuse to consider this testimony because it is hearsay and lacking in foundation.
Respondents appear to concede that the Project will fill a “.02-acre” seasonal wetland area. However, they argue that the fill area is “miniscule, and therefore Town properly exercised its discretion to determine that the fill of the wetland area is an impact “ ‘less than significant.’ ” They characterize Cain’s opinion as setting forth a per se rule that any fill of a wetland of any size is a significant environmental impact and argue that no law supports such a per se rule.
Respondents also argue the “environmental insignificance” of filling a.02-acre wetland is demonstrated by the Corps “Nationwide Permit 29,” which respondents assert applies to fills of small residential projects. The argument fails because it is based on evidence not included in the administrative record, and respondents present no evidence that the issue was raised at any time prior to Town’s approval of the Project.
Both the Cain and Water Board reports opined that the wetland area on the Project site is hydrologically connected to United States waters. Based on his more than 20 years of educational and professional experience in wetlands, stream and riverine ecology and restoration, Cain opined that the Project would significantly adversely impact jurisdictional wetlands, and that the proposed mitigations do not alter that determination. Cain’s testimony alone provides substantial evidence supporting a fair argument that the Project may have a significant impact on wetlands existing on the Project site. Contrary to respondents’ assertion, Cain’s opinion does not state a per se rule and is not based on the size of the wetland area on the Project site. The Water Board’s opinion supports the Cain opinion in that it notes that, despite the presence of wetlands on the Project site, the MND provides no mitigations for the impact of the Project’s fill on those wetlands. Citizens has met its burden of establishing a fair argument that the Project may have a significant adverse impact on wetlands, requiring preparation of an EIR.
B. Riparian Habitat
Does the project “[h]ave a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the [DFG] or U.S. Fish and Wildlife Service?” (Guidelines, Appen. G, item IV., b.) The Initial Study used the same findings and analysis noted above to support its determination that there would be no significant adverse effect on any riparian habitat.
Citizens argues that the opinions of Cain, Water Board and DFG provide substantial evidence supporting a fair argument that the Project may have a significant adverse impact on riparian habitat.
Cain’s February 2006 letter states, “the [P]roject will require a streambed alteration agreement under section 1600 of the California Fish and Game [C]ode. The [P]roject would fill and reroute an ephemeral stream that flows from Oak Hill [P]ark onto the Weber property and will very likely involve alterations to the bank or bed of Green Valley Creek associated with storm water discharge into that creek”; and, the Project’s “proposed grading plan will interrupt the stream course that flows from Oak Hill [P]ark onto the Weber parcel and eventually into Green Valley Creek, but the [MND] declares that there will be ‘no impact’ on the existing drainage pattern.” Cain’s April 2007 letter opines the Project “would significantly adversely impact... a seasonal stream,” and “[t]he proposed mitigations do not change” that opinion. Cain’s April 2007 letter stated that his professional opinion on the biological impacts of the Project is based on his more than 20 years of education and experience in management and restoration of aquatic ecosystems and their watersheds. His hydrologic and wetland impacts opinion was based on his extensive education and experience in wetlands, stream and riverine ecology and restoration.
Respondents argue that Cain’s letters do not set forth a factual basis for his conclusions that the seasonal runoff from Oak Hill Park constitutes a “stream,” or that the Project would likely involve alterations to the bed or bank of Green Valley Creek. With no citation of authority, they assert that because Cain’s opinions are “not founded on facts,” they constitute neither evidence nor substantial evidence of a fair argument that the Project would cause significant impacts on riparian habitats. Neither the CEQA statutes nor the Guidelines define “fact.” Therefore, we apply the nontechnical dictionary definition which defines a “fact” in relevant part as, “[s]omething that has really occurred or is actually the case; something certainly known to be of this character; hence, a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or fiction; a datum of experience, as distinguished from the conclusions that may be based upon it.” (5 Oxford English Dict. (2d ed. 1989) p. 651, col. 2.) Pursuant to this definition, Cain’s letters are replete with facts. Moreover, respondents’ argument fails to acknowledge that Cain’s expert opinion as to the existence of a stream is based on his observations of the Project site on numerous occasions, review of the Initial Study and proposed MND, and extensive professional education and experience. Contrary to respondents’ argument, Cain’s opinion constitutes relevant evidence. Moreover, his opinion that the Project’s filling and rerouting of the stream would significantly adversely impact the stream despite the proposed mitigations constitutes substantial evidence supporting a fair argument that the Project may have a significant adverse impact to riparian habitat.
DFG’s February 2006 letter stated that, although no parcel map had been provided with the proposed MND, “it appears Green Valley Creek is on the southern border of the property and may be impacted by the [P]roject.” It also states, “[f]or any activity that will divert or obstruct the natural flow, or change the bed, channel or bank (which may include associated riparian resources) of a river or stream, or use material from a streambed, DFG may require a Streambed Alteration Agreement (SAA), pursuant to Section 1600 et seq. of the Fish and Game Code, with the applicant. Issuance of SAAs is subject to CEQA. DFG, as a responsible agency under CEQA, will consider the local jurisdiction’s (lead agency) Negative Declaration or [EIR] for the project. The CEQA document should fully identify the potential impacts to the stream or riparian resources and provide adequate avoidance, mitigation, monitoring and reporting commitments for completion of the agreement.” The DFG letter concluded, “DFG cannot concur that the potential impacts of this [P]roject have been adequately addressed. At this time we cannot agree with the conclusion that the MND presents substantial evidence that there are ‘no significant impacts on biological resources.’ That determination can only be made after adequate information has been provided to us for review.” After receiving the operative Initial Study, draft MND and supplemental biological assessments, DFG did not request a streambed alteration agreement or make any comments regarding any potential environmental impacts from the Project. Thus, respondents could properly determine that DFG accepted the mitigations proposed in the MND.
The Water Board’s April 2007 letter concluded the issue of the impacts to seasonal streams was not adequately addressed in the MND, and recommended that more detailed information was required “on the [P]roject plans for the western boundary where water drains from the Oak Hill Park area through the concrete v-ditch” in order to “clearly define proposed impacts.” It also stated that “any impacts to these waters must be evaluated and permitted by the Water Board.” The record contains no evidence that the Water Board ever changed its opinion that more information was required to evaluate the impacts to seasonal streams. However, the Water Board’s letter can only be interpreted as stating a need for more information; it reached no opinion on the issue of riparian impacts.
We conclude that Cain’s opinions that the Project’s filling and rerouting of the stream on the property would significantly adversely impact the stream despite the proposed mitigations and very likely alter the bank or bed of Green Valley Creek constitute substantial evidence supporting a fair argument that the Project may have a significant adverse impact to a riparian habitat.
C. Sensitive Species
Does the project “[h]ave a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the [DFG] or U.S. Fish and Wildlife Service?” (Guidelines, Appen. G, item IV., a.) The Initial Study concluded that the Project would have no impact on any sensitive or special status species.
Zander’s October 2004 original biological resources assessment report noted that Zander found no special status plant or animal species on the Project site. However, Zander later discovered that, in July 2004, four California red-legged frog larvae had been observed approximately one-half mile upstream from the Project site. In early February 2006, DFG notified Town that Green Valley Creek is known to support California red-legged frogs and may be a habitat for western pond turtles. DFG also noted that California red-legged frogs move over one and one-half miles during dispersal. DFG requested further investigation before DFG could agree that the Project has no significant impacts on biological resources. Consequently, in March, April and July of 2006, herpetologist and fisheries biologist Mark Jennings of Rana Resources (Rana) conducted surveys for the California red-legged frog in the east branch of Green Valley Creek adjacent to the Project site. Jennings observed no California red-legged frogs and opined that they are not present in the east branch of Green Valley Creek. Jennings expressly stated his surveys did not miss any potential egg masses, small larvae, or juvenile or adult California red-legged frogs. He also opined that although the frogs were probably historically present there, they had been replaced by bullfrogs.
A September 2006 letter from Zander to DFG summarized Jennings’s negative findings regarding the California red-legged frog and also noted that Jennings had not observed any western pond turtles in Green Valley Creek. The Zander letter stated that “although the habitat appears suitable” for the turtles, the accessibility of the creek to predators such as raccoons, reduces the potential for the turtles to survive. Zander concluded that western pond turtles “are not using upland habitat on the Weber property because they are not present in the adjacent creek.”
In late February 2007, the United States Fish and Wildlife Service informed Town that in light of the 2006 negative results for California red-legged frogs on the property; the quantity of existing development and disturbance in the surrounding areas; and the minimization measures to help protect Green Valley Creek, including construction of bioswales and biocells and a 30- to 100-foot buffer between the creek channel and development activities during the construction and implementation of the Project, the Project is not likely to affect listed species in the area.
In support of their assertion that substantial evidence supports a fair argument that the Project may have significant impact on sensitive species such as the California red-legged frog and western pond turtle, Citizens relies on the DFG’s February 2006 letter recommending further investigation regarding the Project’s impact on biological resources. It also relies on Cain’s February 2006 letter which stated, “I have personally observed jurisdictional wetlands on the Weber property as well as obligate wetland species,” and which referenced DFG’s 2006 letter and criticized Zander’s 2004 biological assessment report as inadequate. Finally, Citizens relies on the following statement contained in a 2002 San Francisco Estuary survey protocol for the California red-legged frog conducted by Rana: “Any documented reports of California red-legged frogs occurring on a site within the past 5 years establish the species as present with no further survey work needed—provided no significant habitat alterations have occurred; or if field surveys conducted following this protocol have not found any frogs during the past [three] years, and those three years contained at least one year of ‘better-than-average rainfall.”
Citizens argues the fact that California red-legged frog larvae were observed within one-half mile of the Project site, and such frogs move over one and one-half miles during dispersal, is evidence of “the likelihood of red-legged frogs within dispersal range of the [Project] site.” Citizens also argues, “it is reasonable to infer that the grading of over 10 acres of land within the red-legged frog’s dispersal range may significantly impact the species.” We disagree and conclude that Citizens failed to provide substantial evidence supporting a fair argument that the Project may have significant impact on sensitive species such as the California red-legged frog and western pond turtle. First, DFG’s February 2006 letter merely requested further investigation as to whether the Project had no significant impacts on biological resources; it made no such finding. Second, Cain’s February 2006 letter contains no evidence of any personal observation by him of the California red-legged frog or western pond turtle on the property. Instead, without further explanation, it states only that Cain had personally observed “obligate wetland species” on the property. Third, the statement contained in Rana’s 2002 San Francisco Estuary survey protocol for the California red-legged frog lacks sufficient foundation linking its findings to the Project site and therefore fails to establish the inferences Citizens would like us to draw regarding the presence of the California red-legged frog on the property.
For the first time in its reply brief Citizens refers to DFG’s discussion of the Congdon tarplant in support of Citizens’s sensitive species argument. Because this issue was not raised in Citizens’s opening brief, and is raised for the first time in its reply brief without a showing of good cause, we do not consider it. (See Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 548.)
D. Oak Woodlands
Citizens contends there is substantial evidence that the Project’s removal of 81 to 126 oak trees may result in significant adverse environmental impacts to oak woodlands.
For the first time on appeal, Citizens contends the Project violates section 21083.4 (oak woodlands mitigation) because it effects a conversion of oak woodlands. Because this issue is raised for the first time on appeal it is waived. (See A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1801, fn. 9.)
In April 2006, the California Oak Foundation (COF) advised Town that removing 126 of 146 oak trees on a 15-acre site is a significant oak woodlands habitat impact that is not reduced by the proposed mitigation measures. COF opined that the Project warranted an EIR to analyze oak habitat impacts and the development of adequate oak woodlands mitigation. The proposed MND stated that a tree removal permit would be required in order to remove the 26 Town-protected trees on the Project site and other mitigation measures would be taken including: replacing the removed trees with a number and size of valley and coast oak trees equal in diameter to the removed trees; incorporating tree preservation guidelines and a supplemental tree survey report into the Project’s final design and construction; posting a security deposit in the amount of the assessed value of the Town-protected trees based on an arborist’s appraisal; obtaining a focused tree preconstruction survey for raptor nests if tree removal is proposed during raptor nesting season; and replacing a specified 50 inch valley oak tree with a 60 inch box size valley oak tree.
A March 2007 letter from the COF stated that the proposed MND mitigation measures did not reduce the impact of removing 81 of 126 oak trees to a less than significant level, and the COF again opined that significant oak habitat impacts would result from the Project.
In granting in part Citizens’s motion for judgment, the trial court determined that the Initial Study’s description and analysis of tree removal was legally inadequate. The court’s statement of decision stated that Town’s evaluation of tree removal focused on the removal of “Town-protected trees” or “Town-identified heritage trees” and failed to seriously consider the removal of other categories of trees. As a result, the court concluded it could not determine whether there was full public disclosure regarding tree removal and proper review of any environmental impact resulting from tree removal. The peremptory writ directed Town to prepare an initial study to specifically address the issue of tree removal and any cumulative impacts relating to removal of trees.
No appeal has been taken from that portion of the court’s judgment.
Citizens does not explain how the issue of “tree removal” addressed in the court’s judgment differs from the issue of conversion of oak woodlands, since it appears that the trees to be removed are oak trees. Since the new initial study addressing the issue of tree removal may conclude that the proposed removal significantly impacts oak trees, we conclude that, at this juncture, Citizens’s claim regarding the impact of tree removal is premature.
E. Aesthetics
Pursuant to CEQA, one of the state’s environmental policies is to “ ‘[t]ake all action necessary to provide the people of this state with... enjoyment of aesthetic, natural, scenic, and historical environmental qualities.’ ” (Pocket Protectors, supra, 124 Cal.App.4th at pp. 936-937, quoting § 21001, subd. (b).) The Guidelines environmental checklist form asks if the project would “[s]ubstantially degrade the existing visual character or quality of the site and its surroundings?” (Guidelines, Appen. G, item I., c.)
Concluding that the Project’s impact on aesthetics was less than significant, the Initial Study stated, “[t]he [P]roject will result in the development of 22 new homes on a 15 +/- acre parcel which has historically been used as a horse pasture. While the development will displace the more aesthetically pleasing open field, the development is an infill project which has contained a General Plan and Zoning designation allowing for single family development consistent with the proposed density, and has been long anticipated. Therefore, no further analysis is required.”
Town’s April 2007 Administrative Staff Report (staff report) regarding the Project noted that property owners abutting the west side of the Project site along San Gregorio Court had expressed concerns including “the perceived loss of privacy and views [and] the loss of what has been undeveloped land for many years....” In response the staff report stated that the Town’s General Plan had long designated the site for single family development, and “[t]he fact that the property has remained undeveloped for so long, has simply been the choice of the property owner.” The staff report also noted that to minimize the impact of the Project on the four existing homes adjacent to the Project site on San Gregorio Court, the pads for the new homes would be located three to five feet lower than the pads of the adjacent San Gregorio Court residences, the new homes would be single story residences with a maximum height between approximately 18 to 22.5 feet, and separation between new and existing homes would range from approximately 66 to 130 feet.
Citizens argues that Cain’s expert opinion together with the opinions of area residents constitute substantial evidence of a fair argument that the Project may have a significant impact on aesthetics. We agree.
“As on other CEQA topics, the opinions of area residents, if based on direct observation, may be relevant as to aesthetic impact and may constitute substantial evidence in support of a fair argument; no special expertise is required on this topic.” (Pocket Protectors, supra, 124 Cal.App.4th at p. 937.)
In February 2006, Cain opined that “the massive grading operation required by the project would substantially alter aesthetic and scenic qualities of the neighborhood.” In April 2007, Cain again concluded that “[t]he proposed project would pose potentially significant impacts for aesthetic[s],” and “[t]he proposed mitigations [did] not change [his] determination that the... impact[] will be potentially significant and adverse.” Cain stated he reached this opinion based on his educational and professional experience, reviewing the Initial Study and proposed MND and viewing the property on numerous occasions. He noted that his masters degree in environmental planning included substantial course work in the visual arts and aesthetic resource analysis, and his professional work has involved evaluating how changes to landscape would affect its visual character.
A December 2006 letter from Danville residents James and Deborah Simpson states that the Project would impact aesthetics because its rezoning plan to change the property from R-20 to P-1 zoning is not consistent with surrounding neighborhoods. The letter noted that San Gregorio Court (on which the Simpsons reside) and Elizabeth Lane, which are immediately adjacent to the property, are more severely impacted than the homes on other nearby streets.
A February 2007 letter from Danville residents Paul and Bonnie DeChant states that their backyard borders the property and the Project will include a home constructed 50 feet from their bedroom, creating a significant risk that they will lose their views. The DeChants’ letter also states that removing the hill with the protected oak tree will have a significant negative aesthetic impact since their “valued view” will be lost. The letter also states that aesthetics will be negatively impacted by the Project’s requested zoning change, which will result in larger houses being built on significantly smaller lots relative to the rest of the area. An April 2007 letter from Alamo resident Jane VanderWerf, whose neighborhood is close to the Weber property, argued that the property is “one of the few remaining green places in our community that doesn’t require a significant hike to get to,” and once developed it will be “unavailable to the public for its simple, quiet beauty.” An April 2007 letter from Citizens member Kristen Trisko, whose property abuts the Project site, states that her view of the knoll with its 29-inch oak tree will be substantially adversely impacted by the Project.
At the administrative hearing, one resident argued that the Project would negatively impact “the last vestige of... open space” and view of “golden grass.” Another, who requested preparation of an EIR, said that because the property was connected to Oak Hill Park, loss of open space due to the Project would diminish his view of animals such as foxes and his view of open space which “creates our quality of life here in the tri-valley.” Another resident said he originally moved to Danville because he likes driving around and looking at trees and open space, and the Project would replace the trees and open space with houses.
In considering aesthetic impacts of a project, the relevant question is whether the project may have a significant impact on aesthetic considerations generally, not whether the project will affect particular persons. (Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 279; Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 586 (Bowman).) While a project that interferes with scenic views has an adverse aesthetic effect on the environment, the obstruction of a few private views within the immediate vicinity of the project is not generally regarded as a significant environmental impact. (Bowman, at p. 586.) Moreover, “ ‘California landowners do not have a right of access to air, light and view over adjoining property. [Citation.]’ ” (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 902, quoting Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492 (Mira Mar).) However, “[a]esthetic issues, such as public views, ‘are properly studied in an EIR to assess the impacts of a project.’ ” (Grand Terrace, supra, 160 Cal.App.4th at pp. 1337-1338, quoting Mira Mar, at p. 492, citing § 21100, subd. (b).)
In resolving this issue we are mindful that “ ‘[t]he fair argument standard is a “low threshold” test for requiring the preparation of an EIR,’ ” and reflects a legislative preference for “ ‘resolving doubts in favor of environmental review.’ ” (Grand Terrace, supra, 160 Cal.App.4th at p. 1331, quoting Pocket Protectors, supra, 124 Cal.App.4th at p. 928.) Cain’s opinion that “the massive grading operation required by the project would substantially alter aesthetic and scenic qualities of the neighborhood,” is significant. Contrary to respondents’ assertion that Cain’s opinion lacks foundation and is unsubstantiated, it is an expert opinion based on facts and is substantiated by his numerous visits to the property, review of the relevant environmental documents, and professional and educational experience. Its reference to the “scenic qualities of the neighborhood” may reasonably be construed to reflect an opinion regarding the aesthetic impact on public views rather on the views of a few private citizens within the immediate vicinity of the Project. In addition, the comment from the Danville resident stating he likes driving around and looking at trees and open space, and the Project would replace the trees and open space with houses, suggests that a public view would be impaired by the Project.
Moreover, the Initial Study acknowledges that “the development will displace the more aesthetically pleasing open field.” However, rather than proposing a mitigation for such aesthetic “displacement,” the Initial Study instead appears to justify the Project’s aesthetic impact by stating that development of the property was contemplated by Town’s General Plan and zoning designation allowing for single family development. Its conclusion that “no further analysis is required” is misplaced. That the General Plan designated the property for single family residential development does not in itself negate the evidence presented that the Project may have significant aesthetic impacts. Moreover, the General Plan refers to designation of the property for “Single Family Residential-Low Density uses,” but the Project seeks to rezone the property from an R-20 Single Family Residential District to a P-1 Planned Unit Development District. And, although the General Plan states “[d]evelopment on the site should also be compatible with the adjacent single family neighborhoods,” several residents argued that the requested zoning change will result in larger houses being built on significantly smaller lots relative to the rest of the area and is not consistent with surrounding neighborhoods.
We reject respondents’ argument that Town’s judgment that the Project’s aesthetic impacts are not significant was confirmed by Town’s design review process. The record before us establishes that the Town Design Review Board (DRB) reviewed the Project’s architecture and recommended it for approval, and also approved “[o]ne additional unit type.” However, there is no evidence before us that the DRB ever considered the issue of impacts to “existing visual character or quality of the site and its surroundings.” (Guidelines, Appen. G, item I., c.)
Finally, we note that the existence of opposing views by Town on the issue of aesthetics does not reduce the substantiality of the opinions by Cain and by certain residents that the Project will have significant aesthetic impacts. “At most, the opposing views are substantial evidence going the other way, which is insufficient to refute the claim of a fair argument. (Guidelines, § 15064, subd. (f).)” (Pocket Protectors, supra, 124 Cal.App.4th at p. 937.)
We conclude Citizens has carried its burden of showing substantial evidence supports a fair argument that the Project may result in significant adverse aesthetic impacts, thus requiring preparation of an EIR.
F. Potentially Significant Adverse Cumulative Environmental Impacts
Finally, Citizens contends there is substantial evidence supporting a fair argument that the Project may result in potentially significant adverse cumulative riparian, visual, and traffic impacts. The Initial Study’s sole reference to cumulative impacts was its conclusion, “[t]he [P]roject will not result in impacts that are individually limited but cumulatively considerable.”
“In addition to evaluating a project’s direct and indirect environmental effects, a lead agency must also assess whether a cumulative effect requires an EIR.” (Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 114, citing § 21083.) “ ‘[A] cumulative impact of a project is an impact to which that project contributes and to which other projects contribute as well. [¶] The project must make some contribution to the impact; otherwise, it cannot be characterized as a cumulative impact of that project. [Citation.]” (Sierra Club v. West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 700; see 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2009) § 13.38, p. 647.)
Guidelines section 15064, subdivision (h)(1), provides: “When assessing whether a cumulative effect requires an EIR, the lead agency shall consider whether the cumulative impact is significant and whether the effects of the project are cumulatively considerable. An EIR must be prepared if the cumulative impact may be significant and the project’s incremental effect, though individually limited, is cumulatively considerable. ‘Cumulatively considerable’ means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” Subdivision (h)(4) of Guidelines section 15064 provides, “The mere existence of significant cumulative impacts caused by other projects alone shall not constitute substantial evidence that the proposed project’s incremental effects are cumulatively considerable.”
A lead agency must find that a project may have a significant environmental effect and therefore require an EIR where there is substantial evidence that “[t]he project has possible environmental effects that are individually limited but cumulatively considerable.” (Guidelines, § 15065, subd. (a)(3).)
“Proper cumulative impact analysis is vital ‘because the full environmental impact of a proposed project cannot be gauged in a vacuum. One of the most important environmental lessons that has been learned is that environmental damage often occurs incrementally from a variety of small sources. These sources appear insignificant when considered individually, but assume threatening dimensions when considered collectively with other sources with which they interact.’ [Citations.] ‘[C]onsideration of the effects of a project or projects as if no others existed would encourage the piecemeal approval of several projects that, taken together, could overwhelm the natural environment and disastrously overburden the man-made infrastructure and vital community services. This would effectively defeat CEQA’s mandate to review the actual effect of the projects upon the environment.’ [Citation.]” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1214-1215.)
1. Cumulative Riparian Impacts
Citizens argues the record provides substantial evidence supporting a fair argument regarding cumulative riparian impacts to Green Valley Creek from the Project combined with the adjacent “O’Brien project.” The O’Brien project involves the rezoning and subdivision of a “4.61 +/- acre parcel” into eight single-family residential parcels, resulting in seven new lots. The O’Brien project is bordered on the north and west by the Weber property. Grading on the O’Brien project commenced in April 2007.
Citizens relies on four documents in support of its cumulative riparian impacts claim. It notes the Water Board’s April 2007 letter which stated, “It does not appear that cumulative impacts of this [P]roject in conjunction with potential planned development in the Oak Hill Park watershed area have been considered in the MND. [T]he Water Board staff is unable to determine how the seasonally ponded area and drainage along the western boundary will be impacted by the development. If the wetlands area and downstream drainage, including the concrete v-ditch are to be modified as part of the [P]roject, and if in fact there are potential plans to modify land use in Oak Hill Park that could have impacts to water quality and beneficial uses of the wetlands and streams in the watershed, then it would be prudent to consider such impacts collectively in one document.” However, the Water Board’s letter does not establish any cumulative impact by the O’Brien development in conjunction with the Project because the Water Board’s letter does not refer to the O’Brien project or property. Similarly, Cain’s February 2006 opinion, which concludes that the MND does not address cumulative impacts associated with Town’s plans to access or develop Oak Hill Park from the Weber property, does not refer to the O’Brien project or property.
Although Citizens appears to argue that “potential planned development in the Oak Hill Park watershed area” refers to the O’Brien project, that is not obvious from the record before us.
Citizens notes that the DFG’s February 2006 letter regarding the Project states, “it appears that Green Valley Creek is on the southern border of the [Weber] property and may be impacted by the [P]roject.” It also notes Town’s 2003 Planning Commission staff report regarding the O’Brien project stated, “to address the impact of potential erosion issues along Green Valley Creek due to grading..., the applicant should be required to provide an appropriate geotechnical analysis,” which “shall identify any critical areas within this section of the creek that are subject to bank failures, and make recommendations regarding preventative, bank-stabilizing measures. The pedestrian bridge shall be designed not to cause erosion both during and after construction with minimal disturbance to the creek and creek bank.”
Respondents appear to argue that the mitigations regarding the O’Brien project contained within Town’s resolution approving that project eliminate any possible cumulative impact. The argument fails. As mitigated, the O’Brien project may not have a significant individual adverse impact on Green Valley Creek. But the evidence presented by Citizens originating in the February 2006 DFG letter and the January 2003 O’Brien project Planning Commission Staff Report regarding the Project’s potential riparian impacts constitutes substantial evidence of a fair argument that the O’Brien project and the Project together may result in a potentially significant adverse cumulative riparian impact, triggering the requirement of an EIR. By failing to conduct any cumulative impacts analysis, Town failed to proceed in a manner required under CEQA and abused its discretion. (See Joy Road Area Forest & Watershed Assn. v. California Dept. of Forestry Fire & Protection (2006) 142 Cal.App.4th 656, 676.)
The resolution regarding the O’Brien project set out the language contained in the O’Brien project staff report regarding potential erosion issues along Green Valley Creek and stated that an appropriate geotechnical analysis would be prepared to identify the above-mentioned issues.
This evidence is discussed in part III.B. above.
2. Cumulative Traffic Impacts
Citizens argues that the record provides substantial evidence supporting a fair argument regarding cumulative traffic impacts resulting from the Project. The Guidelines environmental checklist form asks if the project would “[e]xceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways?” (Guidelines, Appen. G, item XV., b.)
A level of service (LOS) “analysis is a standardized method of rating the operating characteristics of an intersection. An LOS is a qualitative description of an intersection’s quality of operation based upon delay and maneuverability. An LOS can range from A, representing free flow conditions, to F, representing jammed conditions.” (Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 623.) Town’s 2010 General Plan requires that LOS traffic impacts be “no worse than mid-range ‘D.’ ”
In January 2006, Town’s transportation consultants, Fehr & Peers, prepared a “Weber Property Traffic Impact Study” regarding the Project. The traffic study focused on “existing conditions,” reflecting 2004 traffic volumes; “existing plus Project conditions,” reflecting existing volumes plus estimated [P]roject volumes; and “cumulative plus Project conditions,” reflecting 2010 volumes that take into consideration background growth and Project-generated traffic. It found that the new Weber Lane roadway connection between Blemer Road and Matadera Way “will not only serve the trips generated by the new residential development, but will also provide an alternative route for existing trips from the surrounding neighborhoods.” The study found “[c]ompared to existing plus project conditions, two intersections[, Green Valley/Diablo and Green Valley/Blemer,] are anticipated to experience degradation to LOS E or F.” However, the traffic study concluded, “[t]he addition of 22 single-family lots will not result in adverse LOS impacts at any study intersections.” It also concluded that the construction of Weber Lane through the property, consistent with Town’s General Plan, will provide access to new residential development and the nearby middle school. It also concluded that construction of Weber Lane will divert a proportion of existing neighborhood and middle school trips which would lessen delays along Green Valley Road without adversely impacting the performance of the traffic signal at Diablo/Matadera Way.
At the public hearing on the Project, the Fehr & Peers traffic consultant, Ellen Polling, stated, “with cumulative traffic growth, things will gradually get worse again. But just the effect of the [P]roject itself is actually slightly beneficial to Green Valley and Diablo.” Polling also stated that the cumulative growth was estimated at 1 percent per year, which she stated “was actually kind of conservative given what we know might come out to the east, which is not much.”
Citizens asserts that the evidence of LOS degradation below an LOS of C is, itself, substantial evidence requiring preparation of an EIR. Citizens also relies on the following public comments regarding cumulative transportation impacts: Danville resident Barney Rubin stated that the traffic study did not address the cumulative impact from the adjacent O’Brien property development and from the future improvements of Oak Hill Park. Rubin concluded that preparation of an EIR was required “because significant environmental impacts will in fact result from its implementation.” Citizens’s Trisko asserted that numerous “current and potential future projects” will have an impact on traffic, and listed the specific developments which she opined would create such cumulative impacts. Finally, Citizens points to a 2005 letter from Town’s principal planner, David Compton, stating that the Weber life estate parcel may provide possible future access to Oak Hill Park, which “could generate significant traffic.” This statement is speculative and therefore not substantial evidence.
Only one of the developments, “the closure of Hill [Road] and diversion of traffic to Weber Way” arguably involved the Project. However, Trisko’s reference to traffic impacts was unsubstantiated and conclusory and therefore is not substantial evidence.
The short answer to Citizens’s cumulative traffic impact claim is no evidence was provided that the Project itself will make any contribution to the cumulative traffic impact. The traffic study found that while several intersections would suffer a degradation in LOS by 2010, “[t]he addition of 22 single-family lots will not result in adverse LOS impacts at any study intersections.” In fact, the study found that the Project would have a slightly beneficial effect on traffic impacts. Because no evidence was presented of the Project’s contribution to adverse traffic impacts, no substantial evidence was presented establishing a fair argument regarding any cumulative traffic impacts resulting from the Project. (See 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, § 13.38, p. 647.)
3. Cumulative Visual Impacts
Citizens provides evidence establishing that grading has commenced on the O’Brien project and removal of a minimum of nine oak trees was proposed for that project, and there is substantial evidence of a fair argument that cumulative visual impacts exist due to grading and tree removal from the Project and the O’Brien project. With no citation to the record, Citizens argues that “[t]he massive Weber project grading and tree removal combined with the directly adjacent O’Brien project grading and tree removal will forever alter the visual quality of the neighborhood.” As we noted above, Cain opined that “the massive grading operation required by the project would substantially alter aesthetic and scenic qualities of the neighborhood.” While this evidence may be seen as a visual impact, no similar evidence was provided regarding the O’Brien project.
The parties fail to address the trial court’s writ of mandate which directed Town to properly prepare a new initial study addressing “the topic of tree removal and any cumulative impacts relating to removal of trees, as set forth” in its decision upon the motions for judgment. The court’s decision directed Town to “prepare and bring on for hearing a new [i]nitial [s]tudy addressing the topic of tree removal and any cumulative factors that arise when that matter is combined with other potentially adverse aspects.” Given that the issue of tree removal and cumulative impacts involving tree removal regarding the Project will be revisited in the forthcoming new initial study, a determination at this juncture of cumulative visual impacts regarding tree removal would be premature. We conclude Citizens failed to establish substantial evidence of a fair argument regarding cumulative visual impacts.
CONCLUSION
Based upon our independent review of the entire administrative record, we conclude that Citizens has carried its burden of establishing that substantial evidence supports a fair argument that the Project may have a significant adverse effect on wetlands, riparian habitat, and aesthetics. We also conclude that Citizens has carried its burden of establishing that substantial evidence supports a fair argument that the Project may result in a potentially significant adverse cumulative riparian impact. Based on these conclusions, the case must be remanded for preparation of an EIR.
DISPOSITION
The judgment is reversed and remanded with directions to the trial court to: (1) enter a judgment granting the writ of mandate petition, and (2) issue a peremptory writ of mandate directing Town to (a) set aside its certification of the MND for the Project and (b) to prepare an EIR in compliance with CEQA in accordance with the views expressed herein.
Citizens is entitled to costs on appeal.
We concur. JONES, P.J., NEEDHAM, J.
Guidelines section 15064, subdivision (d), states: “In evaluating the significance of the environmental effect of a project, the lead agency shall consider direct physical changes in the environment which may be caused by the project and reasonably foreseeable indirect physical changes in the environment which may be caused by the project.” (See Grand Terrace, supra, 160 Cal.App.4th at p. 1333.)
“Section 21068 defines a ‘ “[s]ignificant effect on the environment” ’ as ‘a substantial, or potentially substantial, adverse change in the environment.’ Guidelines section 15382 further defines a ‘significant effect’ as ‘a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic and aesthetic significance.’ ” (Grand Terrace, supra, 160 Cal.App.4th at p. 1333.)