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Homeowners to Protect Education/Environment v. Montebello Unified School District

Court of Appeals of California, Second Appellate District, Division Two.
Nov 25, 2003
No. B159992 (Cal. Ct. App. Nov. 25, 2003)

Opinion

B159992.

11-25-2003

HOMEOWNERS TO PROTECT EDUCATION/ENVIRONMENT et al., Plaintiffs and Appellants, v. MONTEBELLO UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

Lawrence Teeter for Plaintiffs and Appellants. Karns & Karabian and Jeff A. Harrison for Defendants and Respondents.


Following preparation of an initial study (IS) pursuant to the California Environmental Quality Act (Pub. Resources Code, §§ 21000-21178.1) (CEQA), Montebello Unified School District adopted a mitigated negative declaration (MND) with respect to a project calling for installation of new bleachers, four elevated lights at the corners of the field, restroom facilities, and concession stands at Schurr High School athletic field (the Project). Homeowners to Protect Education/Environment, Rodney A. Luck, and Henry T. Corrales (collectively Homeowners) filed a petition for writ of mandamus in the trial court against the Montebello Unified School District and its Board of Education (collectively the District). The Homeowners appeal from the denial of the petition.

The Homeowners contend: "I. A low threshold governs determinations of whether an EIR [environmental impact report] is required, and the applicable standard can be satisfied by deficiencies characterizing respondents studies and/or by conflicts between the opinions of experts concerning the significance of a projects impacts. II. The record contains substantial evidence that the project may have significant traffic and parking impacts on the neighborhood surrounding the project location. III. Respondents have prejudicially abused their discretion by failing to properly analyze additional noise impacts of the project. IV. Respondents failed to properly assess the projects aesthetic impacts. V. Respondents analysis of air quality impacts is deficient."

PROCEDURAL AND FACTUAL BACKGROUND

The IS was prepared in January 2001. Based upon its findings and conclusions, the District filed a notice of intent to adopt the MND in February 2001. Comments and objections to the Project were made in writing, as well as verbally at a public hearing held in March 2001. In April 2001, responses to the comments were prepared and disseminated. Later that month, the District adopted the MND.

The Homeowners filed a petition for writ of mandamus challenging adoption of the MND in the trial court. The trial court denied the petition, issuing a 15-page statement of decision. The Homeowners filed the present appeal. They subsequently filed a petition for writ of supersedeas in this court, which we summarily denied in August 2002.

According to the IS, Schurr High Schools enrollment for 1999-2000 was 2,991 students with 155 teachers and support staff. The Project consists of the installation of pre-fabricated galvanized steel bleachers seating 2,500, the installation of a set of field lights at each of the four corners of the existing athletic field, and the addition of modular restrooms and concession stands at the Project. The Project would permit home football games to be played at Schurr High School. The school plays on average five home football games annually. Those games had in the past been played at Montebello High School, which is located approximately one mile away. Attendance at the games against Schurr High Schools two traditional rivals averages 1,500 spectators and approximately 200 additional support personnel, boosters, and band members. Each of the remaining three games draws about 750 spectators.

The IS states that Montebello High School is approximately one mile from Schurr High School. The response to comments states that the athletic field at Montebello High School is located approximately 2.85 miles from Schurr High School by road.

The new bleachers would also be used for other events throughout the school year, including graduation and band practices and competitions. Schurr High School conducts nighttime events at the existing on-site facility and did not anticipate scheduling either additional major daytime events or other additional nighttime events as a result of the Project.

The IS checklist indicates that there would be no impact on "land use and development," "population and housing," "biological resources," "mineral resources and energy," "risk of upset and human health," "public service," or "cultural resources." It finds no impact or less than significant impact in the areas of "hydrology and water," "air quality," "utilities," "aesthetics," and "transportation and traffic." The checklist finds only two items to fall within the category of potentially significant impact unless mitigated: "strong seismic ground shaking" and "noise impacts" due to excessive ground-borne and ambient sound levels during construction. The IS states that potential seismic shaking will be migrated by compliance with building and construction standards for the area; potential noise impacts will be mitigated by compliance with the City of Montebellos noise control ordinance. No significant adverse impacts were identified.

As a result of the findings in the IS, the District determined that the Project would lead to no unmitigated significant adverse impacts. The IS was circulated and made available for comment to members of the public. The District received 13 written comments. It also held a public hearing at which 14 members of the public spoke. Among the issues raised in comments were impacts on traffic and parking, noise, aesthetics, and air quality.

The District prepared and released a report responding to the written and oral comments. The District noted, among other points, the following. Traffic at major intersections and freeway interchanges in the area would not register a noticeable change in operating levels during morning and evening peak hours as a result of the Project. There is sufficient on-site parking to accommodate projected demand for most events. Events to be moved to Schurr High School from Montebello High School would not increase traffic, noise, or air pollution from a regional standpoint because the schools are very close geographically. Because Schurr High School has greater parking capacity than Montebello High School, the move should in fact result in a decrease in street parking and traffic region-wide. Graduation ceremonies already occur at Schurr High School, with folding chairs set up on the field. The addition of bleachers would not affect attendance at the ceremonies.

With regard to aesthetics, the new field lights used for athletic events during the evening hours were not expected to create any light trespass or spillover due to the installation of shields on the lights to direct the light onto the field. Noise impacts were not considered to be significant for a number of additional reasons, including the following. The surrounding neighborhood is subject to relatively high ambient noise levels due to its urban setting; the activities associated with high school football games are short term and infrequent; and the ambient noise levels generated by such activities as football games and band practice are not considered to represent a health risk as defined by either the federal or state government.

DISCUSSION

I. Standard of review

"The basic purposes of CEQA are (1) to inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities, (2) to identify ways that environmental damage can be avoided or significantly reduced, (3) to prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible, and (4) to disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental impacts are involved. [Citations.]" (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 614, fn. omitted.) If a preliminary review raises the possibility that a project may have a significant effect on the environment, then an initial study is conducted to determine if the project may have such an effect. (Ibid.)

The IS determines whether there is substantial evidence that any aspect of the project may cause a significant effect on the environment. (Cal. Code Regs., tit. 14, § 15063, subd. (a).) "[I]f there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment," then the agency prepares a negative declaration rather than an EIR. (Cal. Code Regs., tit. 14, § 15063, subd. (b)(2).) A negative declaration adopted after a project has been revised to avoid or mitigate environmental impacts, is an MND. (Cal. Code Regs., tit. 14, § 15369.5.) It is to be adopted where the potentially significant effects of the project will be avoided or reduced to insignificance. (Ibid.)

Upon judicial review of a negative declaration of environmental impact, both the trial and appellate courts review the record to determine whether there is substantial evidence in light of the whole record supporting a fair argument of significant environmental impact. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 42 Cal.App.4th at p. 617; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1603.) The person challenging the adoption of a negative declaration has the burden of proving by citation to the record that there is substantial evidence supporting a fair argument of significant environmental effects. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 498-499; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1379 (Gentry).)

II. Traffic and parking

The IS states that the proposed bleachers will seat 2,500 and that 565 parking spaces will be available on campus: 400 parking spaces currently exist and 165 additional spaces are available on the outdoor basketball courts according to the school data. The Homeowners contend that the opinion letter by their expert, Michael J. Wagner, constitutes substantial evidence supporting a fair argument that the Project may cause a significant environmental impact. Mr. Wagners letter criticizes the IS for failing to provide a striping plan for the additional 165 parking spaces to be made available on outdoor basketball courts and also opines that the project will cause a significant impact to the surrounding residents from inadequate parking and congestion. It points out that even assuming 565 parking spaces and that three fans will arrive in each vehicle, if the maximum seating capacity of the new bleachers is realized, approximately 268 automobiles will park on the streets surrounding the school.

The letter states in relevant part: "The proposed project on Page 2-3 indicates that there will be a total seating capacity of 2,500. At 3 persons per vehicle the required parking will be 833 spaces. It is inappropriate to calculate the number of users based on available parking. The traffic analysis indicates that 400 spaces are currently striped. The analysis, without any evidence, (`based on data provided by the school, Page 4, Traffic Study Appendix), concluded that 165 additional spaces would be available on the basketball courts. The Initial Study should show the striping plan for the basketball courts. Even if 565 spaces are available the `Proposed Project with 2,500 seats is short 268 parking spaces. This will result in a significant impact to the surrounding residents and an Environmental Impact Report is required to be prepared whenever a fair argument can be made that the significant impacts may occur. The impact from inadequate parking will be born by the surrounding residents. This will bring additional congestion to local streets, limitations on access to residents, littering and excessive noise."

The IS acknowledges that if the bleachers capacity is reached, people would resort to parking on the surrounding streets. It notes, however, that based upon current attendance standards, the peak attendance would occur at most twice yearly, when Schurr High School plays its two football rivals. Because of Schurr High Schools proximity to Montebello High School, moving the events would not cause a significant adverse effect on traffic and parking in the region. In addition, fewer cars would be without on-site parking if the games were held at Schurr High School because it has more parking spaces available. Schurr High School, moreover, currently conducts daytime and nighttime events at the school, including graduation ceremonies, band competitions, and other athletic events. The planned construction is not anticipated to change the operation or attendance patterns at those events.

Attendance at games played against Schurr High Schools traditional rivals at the Montebello High School athletic field is on average 1,700, which is less than the new Schurr High School bleachers capacity.

The Homeowners provide no evidence to refute the Districts position. The IS states that "based on data provided by the school, the basketball courts can provide parking for an additional 165 vehicles . . . ." This statement is sufficient to support the Districts position regarding the availability of additional parking. (See Gentry, supra, 36 Cal.App.4th at p. 1378 ["There is `no authority . . . that an initial study is inadequate unless it amounts to a full-blown EIR based on expert studies of all potential environmental impacts. If this were true, the Legislature would not have provided in CEQA for negative declarations"].) The Districts conclusion that, even in the event of full bleacher capacity, there would be no significant adverse impact on the environment because of the infrequency and lack of severity of the traffic and parking problems, is supported by substantial evidence in the record.

Friends of "B" Street v. City of Hayward (1980) 106 Cal.App.3d 988, relied upon by the Homeowners, is distinguishable. There, the court found that substantial evidence in the record supported the position that the project might have a significant environmental impact. In Friends of "B" Street v. City of Hayward, supra, there was evidence that the project would result in increased traffic, noise, and paving; the removal of landscaping, shrubs, hedgerows, 153 mature trees; and the elimination of on-street parking, two neighborhood stores, and residential structures housing 12 families. (106 Cal.App.3d at p. 1003.) It is only in marginal cases, where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment and where the opposing expert opinions are supported by fact, that a disagreement among expert opinion over the significance of an effect on the environment is to be treated as significant. (Cal. Code of Regs., tit. 14, § 15064, subd. (g).) Mr. Wagners opinion that the Project will cause a substantial impact on surrounding residents, by contrast, amounts to argument not supported by the facts shown.

Section 15064, subdivision (g) provides: "After application of the principles set forth above in Section 15064(f), and in marginal cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment, the lead agency shall be guided by the following principle: If there is disagreement among expert opinion supported by facts over the significance of an effect on the environment, the Lead Agency shall treat the effect as significant and shall prepare an EIR."

Nor is the Homeowners position that reference to regional traffic patterns is improper convincing. The District properly considered the larger traffic picture. The two schools are very close to each other, and moving the events to the Schurr High School campus would arguably decrease the total amount of both traffic and street parking. (See Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1353 ["`"Significant effect on the environment" means a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project . . . . [Citations.] In our view, it is consistent with CEQAs concern about significant environmental effects for County to have considered a bigger picture of traffic"].) The Homeowners failed to show that the Project would cause a significant adverse environmental impact.

III. Noise

The Homeowners challenge the Districts treatment of potential noise impact from the Project, urging that the District failed to consider the "megaphone" effect of the areas topography, conduct an appropriate off-site noise study, and consider the extent of traffic noise.

Mr. Wagners comment letter states that "the contours of the topography in the surrounding area create a megaphone effect that further increases the significance of the impact to the surrounding residential uses." In comments on the IS, the Homeowners also assert that there is a megaphone effect created by the contours of the topography surrounding Schurr High School. Two individuals comment that the neighborhood amplifies noise, and that they can clearly hear the night games played at Montebello High School. The Homeowners, however, provide no other data to substantiate the existence of a megaphone effect.

The IS indicates that band practices, band competitions, football practices and other activities are already occurring on the Project. The additional events, primarily home football games, involve on average only five annual regularly scheduled home games. Nothing in the record indicates that the acknowledged increase in noise levels during those few hours would have a significant effect on the environment.

The District took into consideration existing and future traffic noise patterns. The IS reports that the cumulative traffic generated by the Project on a daily basis would not be great enough to result in a measurable or perceptible increase in traffic noise. We note that the record indicates that approximately 3,000 students, teachers, and staff arrive and leave the school daily. The Homeowners have not shown that the arrival of fewer persons for athletic or other events during non-rush hour evening periods would have a greater noise impact.

The Homeowners also assert that an off-site noise study prepared by the District was not prepared in time to be made available for comment by the public and that the study itself is incomprehensible. The report was referenced by the District to support its position in response to public comments concerning the IS. The study was apparently not included in the IS.

The response states: "The topography of the area varies, with increased elevations towards the east. The noise survey included in the Initial Study did not involve any off-site noise measurements. However, following the public hearing, noise measurements were taken on a weekday afternoon at Schurr High School and at three locations within the residential neighborhood located to the east. The analysis, which is summarized in Appendix C, indicated that the differences in the noise levels were less than 0.5 dBA among the sites evaluated, which is considered to be insignificant."

The absence of the study does not by itself show that the adoption of the MND was improper. "[T]he ultimate issue is not the validity of the initial study, but rather the validity of the lead agencys adoption of a negative declaration. Even if the initial study fails to cite evidentiary support for its findings, `it remains the appellants burden to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact. [Citation.]" (Gentry, supra, 36 Cal.App.4th at p. 1379.) The Homeowners have failed to demonstrate a significant environmental impact from project-generated noise.

Gentry, supra, 36 Cal.App.4th 1359 and Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296 (Sundstrom), cited by the Homeowners, are not to the contrary. Gentry states that lack of study enlarges the scope of the fair argument which may be made based on the limited facts in the record. (Gentry , at p. 1382.) It also held, however, that the initial study considered in Gentry was not defective merely because it failed to disclose evidence to support two findings, because the agency could reasonably find, based on its experience and review of the project, that the project would not impact scenic or historic resources. (Id. at p. 1380.) Sundstrom states: "If the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record. Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences." (Sundstrom, at p. 311.) There, however, the record disclosed facts that in the absence of further information permitted a reasonable inference of material environmental impact. (Ibid.) The Homeowners have failed to identify facts in the present record that would permit such an inference.

The Homeowners position that reference to a post-hearing sound study requires remand and recirculation of the MND also lacks merit. Recirculation is not required where "[n]ew information is added to the negative declaration which merely clarifies, amplifies, or makes insignificant modifications to the negative declaration." (Cal. Regs. tit. 14, § 15073.5, subd. (c)(4).) The study does not support a fair argument of potentially significant sound impacts flowing from the Project. Even assuming, as the Homeowners assert, that the sound study is unintelligible, it does not provide evidentiary support for the position that there will be a significant environmental impact due to increased noise levels.

IV. Aesthetics

The Homeowners contend that there will be seepage of light from the athletic field either from the four new lamps or from reflection glare. The IS considers light seepage, and notes that the lights will have shields on them which will direct the light onto the field. The Homeowners point to no evidence in the record that indicates that the shields would not minimize the problem. Moreover, the lighting is expected to be used on a limited basis. The Homeowners have failed to show substantial evidence challenging the Districts determination concerning light seepage.

V. Air quality

The Homeowners assert that the District failed to quantify the Projects potential adverse impact on air quality at the Schurr High School site. The response to comments explains that air quality data was taken from the two nearest governmental monitoring stations to characterize the air pollution levels within the surrounding area. The IS recognizes that the Project could indirectly cause increased traffic near Schurr High School because home football games would be relocated to that campus. However, this was seen as potentially reducing the regional levels of auto emissions since attendees are presumably persons associated with Schurr High School who would not have to drive the further distance to Montebello High School for home games. Schurr High School, in addition, has more on-site parking, reducing the travel distance for most participants. In any event, the increase in traffic was found not to be regionally significant according to definitions provided by the South Coast Air Quality Management District. The Homeowners offer no substantial evidence to rebut those determinations.

DISPOSITION

The judgment appealed from is affirmed. Respondents shall recover their costs of suit from appellants.

We concur, BOREN, P.J., ASHMANN-GERST, J.


Summaries of

Homeowners to Protect Education/Environment v. Montebello Unified School District

Court of Appeals of California, Second Appellate District, Division Two.
Nov 25, 2003
No. B159992 (Cal. Ct. App. Nov. 25, 2003)
Case details for

Homeowners to Protect Education/Environment v. Montebello Unified School District

Case Details

Full title:HOMEOWNERS TO PROTECT EDUCATION/ENVIRONMENT et al., Plaintiffs and…

Court:Court of Appeals of California, Second Appellate District, Division Two.

Date published: Nov 25, 2003

Citations

No. B159992 (Cal. Ct. App. Nov. 25, 2003)