Opinion
NOT TO BE PUBLISHED
Monterey County Super.Ct.No. M75319
Duffy, J.
In this case involving a CEQA challenge and other claims arising from the Monterey County Code, plaintiffs Momi and Gaynor Chinn appeal the trial court’s denial of their petition in mandate under Code of Civil Procedure section 1094.5. The Chinns’ petition sought to vacate Monterey County’s (the County) adoption of a Negative Declaration (ND) and issuance of a conditional use permit to Douglas and Elaine Catey for the removal of 26 coast live oak trees from their property and the adjacent Pebble Beach Company right of way as well as design approval for the construction of the Cateys’ residence (the project). The Cateys’ property is the only undeveloped parcel in the otherwise fully developed neighborhood in Pebble Beach and it is located next to the Chinns’ residence.
This acronym refers to the California Environmental Quality Act, codified at Public Resources Code sections 21000 to 21177. Further unspecified statutory references are to this code.
This is generally how the proposed ND described the project. Although in the absence of unusual circumstances, projects relating to the construction of a single family residence in a residential zone are categorically exempt from CEQA, the Monterey County Code (further referred to as “MCC”) provides that the removal of more than three protected trees, which include oak trees exceeding six inches in diameter at two feet above ground, requires the issuance of a tree removal permit and further provides that such tree removal requests “shall be subject to the requirements of [CEQA].” (MCC, §§ 21.64.260.C.4 & D.3d; 21084; State CEQA Guidelines, California Code of Regulations, title 14, Chapter 3, §§ 15300, 15300.2, subd. (c), 15303, subd. (a).) As noted, the State CEQA Guidelines are located at title 14, chapter 3 of the California Code of Regulations, starting at section 15000. Further unspecified Guidelines references are to these regulations.
On appeal, the Chinns reprise many of their arguments made below, principally contending that the administrative record contains substantial evidence of a fair argument that the project and construction of the residence may have significant environmental impact and that the preparation of an environmental impact report (EIR) is consequently mandated under CEQA. They also contend that the County violated its own Municipal Code provisions concerning tree removal and preservation of neighborhood character in approving the project. We reject the Chinns’ arguments and affirm the judgment.
STATEMENT OF THE CASE
I. The Catey Property and the Project
The Catey lot, located at 1127 Pelican Road, Pebble Beach, is a sort of triangular shaped, though four sided, wooded parcel, consisting of approximately 10,812 square feet—roughly a quarter of an acre. Except for one side, it is bordered by Pelican Road, which wraps around three sides of the lot. The Chinns’ lot borders the remaining side. The Catey parcel, which is densely forested, is described as the last remaining undeveloped lot in the area known as the Monterey Peninsula Country Club subdivision. The established neighborhood, set amidst a golf course, consists of other single family residences and country club facilities. Since the 1920’s when the area was first subdivided, a total of 1,442 single family residences have been constructed in the subdivision. Many homes in the neighborhood are generally of similar size and floor area ratio (square footage of house in relation to lot area) as the house the Cateys propose to build. Many of the developed lots in the subdivision, including the Chinns,’ have less tree coverage than the Catey lot, and trees were removed for construction of the homes.
As best we can tell from the record, around the northwest, triangular rim of the parcel and extending just beyond its border, is what is sometimes referred to in the record as a right of way or road easement parcel in favor of the Pebble Beach Company. This area is just next to the paved portion of Pelican Road as it wraps around the Catey lot. Pelican Road is described as a 40-foot wide private street, maintained by the Pebble Beach Company. But on maps in the record, its paved area appears to be less than 40 feet wide as it wraps around the Catey lot, resulting in an undeveloped strip of land that borders the triangular sides of the lot. At the northwest tip of the lot and in the right of way is a “catch basin” that served as drainage prior to drainage improvements in the area by the Pebble Beach Company, which though made after the trial court’s decision in this case, were slated to occur as referenced in the administrative record. The record is less than clear about the actual ownership of the property comprising the right of way but it is clear that construction of the Catey driveway involves activity in some parts of this area, which is outside the true borders of their own property.
See Addenda A and B for general maps showing the location of the lot in the neighborhood.
The Catey lot is zoned medium density residential. It is relatively level, with a slight slope to the northwest of approximately two percent. Apparently due to its triangular shape and placement relative to the street, the lot has 20-foot setback requirements on the three sides which border Pelican Road (and the Pebble Beach Company right of way). This naturally restricts the placement of any house footprint on the lot. The footprint of the house and garage proposed by the Cateys comprises less than 3,000 square feet, which, according to County planning staff, is under the maximum 3,780 square feet allowed by applicable local regulations, and does not require a variance. The total area of the proposed two-story house and attached garage, according to the Cateys and the County, is 3,738 square feet. The County contends the residence as designed and conditioned comports with all local requirements as to size, height, and lot coverage. Although the Chinns dispute this, both the Cateys and the County calculate the floor area ratio at 34.6 percent, which is just under the 35 percent allowed.
Construction of the Catey residence as proposed requires removal of 26 coastal live oak trees of between six and thirteen inches in diameter. Four of these trees are located within the Pebble Beach right of way, in the proposed location of the Cateys’ driveway. In conjunction with their development application, the Cateys submitted a Forest Management Plan (FMP) prepared by Glenn C. Flamik, a forester with Forest City Consulting. According to Flamik, the type of forest on the Catey property “is Monterey pine over story and coast live oak understory.” Flamik also noted in the FMP that the “[t]ree cover is primarily coast live oak (Quercus agrifolia) and Monterey pine (Pinus radiata).” In Flamik’s opinion, oak trees comprise more than 10 percent of the project area’s total canopy, and this would remain so even after removal of the 26 trees, a fact that is undisputed in the record.
The FMP describes Flamik as a “tree expert with two degrees in Forestry from institutions accredited by the Society of American Foresters, [who] has a basic knowledge and understanding of each of the [listed] factors for consideration as each relates to forest resources, and [who] is qualified to give his opinion on [these] issues.”
According to the FMP, 70 coast live oak trees would remain on the project site, which includes the Catey property and the right of way that borders it. The FMP concludes that the proposed tree removal is the “minimum required under the proposed building design” and it suggests protective measures to be undertaken during construction for the remaining trees. It also finds that the tree removal would not “involve a risk of adverse environmental impacts” in the areas of soil erosion, water quality, ecological impacts, noise pollution, air movement, and wildlife habitat. The FMP recommends against pro rata tree replacement on the project site since this “is not feasible on the small, densely forested lot.”
There are many other references in the record to the effect that 77 oak trees would remain on the project site.
The Chinns repeatedly refer in their briefs to the fact that some of the trees that are represented by the Cateys and the County as remaining on the project site are located within the Pebble Beach Company right of way. This affects how the Chinns calculate the percentage of trees removed versus those remaining strictly on the Catey lot. But since the scope of the project and construction of the residence, from the beginning, encompassed activity within the right of way, including building a portion of the Catey driveway and tree removal to accommodate that, we think it is appropriate to refer to the project site as including the right of way even though that area is not actually owned by the Cateys. Indeed, under CEQA and as applicable here, the definition of a “project” is any activity involving the issuance of a lease, permit, license, certificate or other entitlement for use by a public agency. (§ 21065.) The use permit for tree removal in this case accordingly encompassed those trees targeted by the Cateys for removal but located in the right of way. The administrative record in this case makes clear just what trees were located where within the project site, defined to include the Catey lot and the right of way, and there has been no effort by the Cateys or the County to mislead on this point.
II. The Chinn Property
The Chinns purchased their property, which is next to the Catey lot, in 1990 and subsequently remodeled it. In doing so, they removed trees and extended their house or patio to within 10 feet of the line separating the properties. They also constructed an 8-foot high solid wall along the line. They plan to replace the removed trees on their lot at some unspecified point in the future.
III. Project and Design Approval
A. The Planning Commission
By early September 2004, the Cateys had requested a planning application and the County Planning and Building Inspection Department had assigned a planner, Elizabeth Gonzales, and a planning file number. On September 19, 2004, the Chinns wrote to Gonzales. They requested to be informed of any activities concerning the Catey project and residence and expressed that “[t]he proposed 2-story structure will severely affect our privacy, along with that of our other neighbors. It is our hope that the many mature oak and pine trees affected by this project will be minimized [sic].”
On September 30, 2004, the Cateys submitted their Development Project Application to the County. As noted, the Application included the FMP, along with building plans and other required technical reports relating to the project and construction of the residence.
Shortly after submission of the Application to the County, the Catey project was approved by two other bodies to which it is apparently subject. Both bodies, the Del Monte Forest Architectural Review Board and the Del Monte Forest Land Use Advisory Committee, gave their unanimous approval. With respect to consideration by the Land Use Advisory Committee, the Chinns voiced their objection to the project and submitted alternate house plans or sketches, which they had had prepared by their architect, Bill Mefford. Goals which the Chinns sought to achieve by the alternate plans were to “reduce bulk, eliminate potential privacy problems[, and] save trees.” Other neighbors also voiced their objection to the Committee based on expressed concerns about “loss of trees and impact of [the] house due to [the] configuration on the lot,” “[the] impact of the second story and height above surrounding homes,” and “run off.” Over these objections, the Committee approved the project and design, noting that “[t]he lot in this application is a triangle, well treed [sic] [lot] which has never been built on. It is the only vacant lot in the area and it became noticeable that the neighborhood members did not want to [lose] this vacant area.”
On November 1, 2004, Gonzales informed the Cateys that planning staff’s review of their “Use Permit and Design Approval” was complete and that the application would be scheduled for the next available Planning Commission meeting with a recommendation that it be approved.
Within days, the Chinns wrote to Gonzales to “express [their] concerns over this proposed project.” Specifically, they said, “The proposed 3,800+ sq. ft. 2-story structure is too large for the lot it sits on . . . the lot is a mere .26 of an acre. It looms over 9 homes. The structure competes with rather than [complements] what currently exists. It represents a dramatic departure from the quiet, hidden character of our neighborhood. It needs to be downsized. [¶] Additionally, the structure should be centered on the lot. Currently, the proposed design does not look balanced—it doesn’t fit the space. The proposed structure looks like it is sitting right on top of us. The reasons for this are the lot’s unique size and shape, and the 20 foot setbacks on 3 sides of the property. Centering the project would serve several purposes: 1) it would lessen the ‘towering effect’ it has on the neighborhood since it would sit lower on the lot, 2) 9 mature coastal oaks could be saved with the current design, or more, if redesigned and downsized; and 3) this ‘relocation’ would allow for a buffer zone of existing and replacement trees between the Catey[s’] house and our home. [¶] We are also requesting that the [Cateys] reposition the windows that look onto our patio from the second floor. We just completed a renovation for the major purpose of securing ‘privacy’ from our neighbors. The entire focus of our home is toward our back patio; the little privacy we created for ourselves will be destroyed by this 2-story maxed-out box.”
Gonzales also received letters from other neighbors, George and Martha Rothrock. George Rothrock complained about the size of the Catey house, its compatibility with the neighborhood, and the “removal of so many live oaks.” He stated his understanding that “[e]very square foot of the legally buildable lot is utilized leaving very little room for trees” and that the Cateys “do not intend to move into the house permanently and are building the house ‘on spec’ . . . . Thus it is certainly not their dream house of a lifetime and its design has been maximized primarily for its resale value.” Martha Rothrock likewise objected to the size of the house and suggested lowering the roof line, “cut[ting] some corners on the square footage,” and repositioning “the house to save some of the trees.”
The Cateys deny that the residence is a “spec house” and dispute that their intention is to sell it rather than making it their home.
Other neighbors, the Van Roekels, also wrote to express their concern that “half of the trees on this lot are to be sacrificed for Mr. Catey to build his spec house.” Still other neighbors, Jeffrey and Eva Meckler and Donald Downs, echoed these sentiments in their own letters, emphasizing the location, size, and shape of the lot and in the case of Donald Downs, requesting a “downsizing and relocation of the building.” Yet another neighbor, Prescott Kendall, complained that the Catey project would only “lower property values and destroy the aesthetics of the neighborhood” and suggested that a variance be granted to reposition the house on the lot thereby “reduc[ing] the number of trees destroyed.”
Another Pelican Road neighbor, Robert Adler, submitted a letter which discussed drainage problems with respect to a second property he owns nearby. He suggested that the same problems would arise as a result of construction of the Catey residence, in part due to the “Pebble Beach Company policy [of] neglecting improvement of Pelican Road” and he opined that “the impact from the loss of trees will cause more drainage over the hump in the middle of the road . . . damaging the roadbed as well as flooding properties surrounding it. [¶] . . . [¶] . . . While drainage is only preventative, flooding will have a direct effect on the home values and will cause additional issues like insurability and public safety to arise. [¶] . . . As a practical reality, as each tree is taken, the environmental and monetary liability from the diminished watershed rises for each of the homeowners on Pelican Road.” Adler did not identify himself as having any particular qualifications or expertise for his technical opinions on the flooding or drainage threat of the Catey project.
The Pebble Beach Company responded in writing to Gonzales regarding Adler’s letter concerning drainage. Its response noted that repaving of Pelican Road and upgrades to the drainage system, including the catch basin at the tip of the Catey lot, were planned for 2005 and that drainage problems associated with Adler’s second residence in a different location had to do with “underlying impervious granite rock” in that location, which was unrelated to any issues in connection with the Catey lot or project.
The Chinns also submitted to planning staff their alternate “sketches” of the Catey residence as prepared by their architect Bill Mefford. Among other things, these plans moved the placement of the house on the lot to the west—away from the Chinns’ residence—and lowered the height of the roof line, removed and replaced windows that overlooked the Chinn property, and curved the driveway and altered setbacks to “minimize the removal of protected oaks and to address the neighborhood character concerns.” At least one of the design alternatives required the issuance of a variance because the placement of the house on the lot under that design would encroach into the setback areas.
The Chinns argue that not all of their alternative designs would require that the Cateys obtain a variance. But this is not demonstrated by citation to fact in the administrative record, even by the documents to which the Chinns refer in support of this assertion. And the County’s position throughout is contrary, from which we conclude that the County determined the Chinns’ representations in this regard to be factually erroneous.
The Chinns further submitted to planning staff letters from two real estate agents, one of whom opined that the proposed Catey “ ‘spec home’ ” would negatively affect the Chinns’ privacy and the value of their property. The other offered that the Catey house was “ill conceived in its design and could ultimately have a negative affect [sic] on both properties as it will diminish the privacy of both . . . .”
The Chinns also submitted a November 5, 2004 letter to their lawyer from Rob Cain, a “Consulting Arborist.” The letter purported to be a “review of the proposed tree removal for the” Catey project as requested by the Chinns. Cain stated that he had reviewed the Flamik FMP and had conducted a site visit. He observed, “The proposed house as designed and situated on the lot now does not keep the protected tree removal to a minimum. If the house is moved from five to ten feet to the west the number of protected Oak trees that could be retained would be increased from 5 to 9 trees. Retention of these trees would reduce the number of protected trees removed from this lot by 20-33 [percent]. Also, by having the driveway entrance on the west side of the garage and not the south 1-2 more protected Oak trees could be retained on the lot with careful placement of the driveway. [¶] Because of the very limited amount of room for replacement trees, moving the house to the west would allow for an area to plant some mitigation trees for the proposed removals. By gaining this planting room the replacement trees could also create a more buffer[ed] zone between the proposed project and the Chinn property thus reducing the impacts the project would have on the Chinn property. [¶] In an area of the Del Monte Forest that is slowly converting to Oak forest and losing the mature Monterey pine cover, the retention of protected trees is important to any proposed project. With a few minor design changes or the westerly movement of the house [away from the Chinns’ property], the potential significant impacts of the project could be reduced to less than significant. The impacts include loss of protected trees within the area and also the visual impact of the project to the Chinn property could be reduced by allowing for buffer trees to be planted and grown up between the two properties.” The letter does not state the factual premise that it appears to assume—that the proposed tree removal may have a significant effect on the environment. Nor does it offer specific factual support from which this conclusion may reasonably be drawn.
In early February 2005, planning staff conducted one of several site visits. After on-site consideration of the Chinns’ proposed designs and alternate placement of the house footprint further west on the lot as they suggested, Gonzales concluded that “tree removal was not going to be substantially minimized [by those designs] and in fact, removal of larger Coast[al] Live Oaks [was] in jeopardy.”
Just after the early February 2005 site visit, the County issued its Initial Study (IS) and its Notice of Intent to Adopt a Negative Declaration. The IS concluded that while the proposed project could potentially affect aesthetics, biological resources, utilities and/or service systems, cultural resources, noise, geology and/or soils, and land use and/or planning, it nevertheless could not “have a significant effect on the environment.” To the extent these specific areas could potentially be affected, the IS concluded that any impact would at most be “less than significant.”
With respect to aesthetics and the question whether the project would “[s]ubstantially degrade the existing visual character or quality of the site and its surroundings,” the IS cited the FMP and stated that the “[p]roject planner conducted two site visits . . . and determined that there would be no adverse visual impact resulting from tree removal when viewed from a common public viewing area. This project will retain approximately 77 trees.” With respect to biological resources and the question whether the project would “[c]onflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance,” the IS said that “[b]ased on Planning Department resources maps and the [FMP], the removal of trees will not have a substantial adverse impact upon existing biological and ecological systems, [or] climatic conditions which affect these systems, or will not significantly reduce available habitat for wildlife existence and reproduction. Seventy-seven trees will be retained on the property and the adjacent property belonging to Pebble Beach Company. Retained trees are to be protected from construction[-]related impacts as recommended in the [FMP].” With respect to geology and soils, the IS stated that “[t]he parcel is relatively level, with the slightest slope down to the Northwest of approximately 2 [percent]. The [FMP] submitted with the application states the chance of soil erosion is very low. Tree removal will only be in the footprint of the residence and the driveway and as such will not be in areas subject to erosion.”
The IS finally made mandatory findings of significance, which included that the “removal of twenty-six trees will not degrade the quality of the environment or have cumulative environmental adverse [effect] on human beings.”
The Monterey County Water Resources Agency conditioned its approval of the project on the submission by the Cateys of a “drainage plan prepared by a registered civil engineer or architect addressing on-site and off-site impacts. Drainage improvements shall be constructed in accordance with plans approved by the Water Resources Agency.” In response to this condition, in February 2005, the Cateys submitted a preliminary drainage plan prepared by Douglas Catey, who is a licensed civil engineer with degrees in civil engineering and self-described expertise in water resources and water quality. The Pebble Beach Company approved of the drainage plan, as did the County Water Resources Agency, subject to the provision of further details “to clear the condition” of approval.
On the subject of drainage, the Chinns submitted a letter from John M. Van Zander of Bestor Engineering, Inc., dated February 15, 2005. Van Zander, a civil engineer, stated in the letter that he had reviewed the Catey building plans, had conducted a site visit, and had read the letter from the Cateys’ neighbor, Robert Adler, suggesting that the project would lead to drainage problems. Van Zander expressed his opinion that “the project will add considerably to existing drainage deficiencies in the area and therefore will have a potentially significant adverse environmental impact. Mitigation of this impact will, at a minimum, require a comprehensive drainage study and the design and installation of engineered facilities. . . . A failure of the existing drainage facility [the catch basin in the right of way] could cause stormwater runoff to cross the existing road and drainage downstream of the property.”
This date precedes the date that the initial Catey drainage plan was received by the Monterey County Building and Planning Department, from which we deduce that Van Zander did not review the drainage plan before writing his letter. In any event, the letter does not state that its author reviewed the drainage plan.
The Catey project was noticed for hearing to take place before the Monterey County Planning Commission on March 9, 2005. On March 2, 2005, the Chinns, through their counsel, wrote to Gonzales to express their view that for myriad reasons, the IS was “inadequate under CEQA.” These reasons included that the project description was “incomplete, confusing, inconsistent and inadequate.” The Chinns urged that the IS needed to be “redone and recirculated.” The next day, the Chinns’ counsel again wrote a letter to Gonzales, copied to members of the Planning Commission, complaining that the staff report for the hearing, which recommended adoption of the ND and approval of the project subject to proposed conditions, was written before the close of the comment period and did not take into account his March 2, 2005 letter, which, he asserted, had attached “three expert opinions [on the issues of tree removal/forest impacts, drainage impacts, and aesthetic/neighborhood character impacts,] each concluding that the project, as proposed, has significant environmental impacts which require further environmental review.” The three “opinions” being referred to were those of Cain and Van Zander, as expressed in their letters discussed above, and the Chinns’ architect, Bill Mefford.
Mefford’s letter, dated March 2, 2005, said that he was familiar with the area and its design standards and that he had been asked by the Chinns to provide his opinion about “the impact [that] the proposed Catey house . . . would have on the local neighborhood.” The letter further stated that Mefford was very familiar with the Catey plans and he expressed his belief that “numerous development alternatives exist that would substantially reduce the impacts of the project in terms of both the tree loss and aesthetic impacts on this uniquely sensitive lot. . . . Specifically, it is my opinion that the proposed Catey house design is in conflict with the special character of this neighborhood and if built as and where proposed would substantially degrade the visual character and quality of the site and the area. It would also create a new source of substantial light that would significantly impact the views and tranquility of the neighborhood. In addition, the dramatic and unnecessary reduction in forest vegetation and trees on the property (unnecessary because many trees could be saved through alternative design/location of the structure) will seriously alter the visual integrity of this unique neighborhood which is obviously designed and centered around this focal natural open space environment. This is particularly true because of the unusual circumstances of the Catey property being the ‘center piece’ of this neighborhood and being so heavily forested. Therefore, it is my professional opinion that the project would result in significant adverse environmental impacts unless it is substantially redesigned and/or relocated to be more consistent with the character of the neighborhood.”
No other comments were received prior to the March 9, 2005 public hearing. Gonzales received a letter from the State Clearinghouse stating that the proposed ND had been submitted to selected state agencies, that no comments had been received, and that the County had complied with “State Clearinghouse review requirements for draft environmental documents” under CEQA.
At the hearing, Gonzales confirmed that the square footage of the Catey residence was 3,738, that four of the oak trees proposed to be removed were in the Pebble Beach right of way, and that the project conformed to all applicable zoning regulations and design guidelines. Gonzales displayed photographs or slides of some other two-story homes in the area to illustrate that the Catey residence would “blend right into the character of the neighborhood.” She further confirmed that relocating the house on the lot as suggested by the Chinns would not only require a variance but also “would only save about two or three trees and would actually cause the removal of larger oak trees than [those] being saved. Therefore, Staff could not support a variance.” She confirmed that 52 trees would remain on the Catey lot plus 25 in the right of way, for a total of 77 on the project site, more than “many of the surrounding properties.”
Gonzales further acknowledged submission of the Catey drainage plan, noting that it had been approved by the Pebble Beach Company and the County Water Resources Agency. She further emphasized that the Pebble Beach Company would be repaving the road the following year, which included planned improvements to “surface drainage and upgrades to the drainage system.”
Finally, Gonzales mentioned that staff had only recently been apprised of the passage of Senate Bill 1334 (enacted as § 21083.4) concerning oak woodland conservation. She recommended that issues raised by this new statute vis-à-vis Catey project be “opened to the public” and that “appropriate mitigations” be considered for incorporation into the IS, which could be recirculated and the matter continued for further hearing before the Planning Commission. The County expressed its desire to study the issue and evaluate whether the project would constitute a conversion of oak woodland such that it would require mitigation measures under the new statute.
This statute was enacted in 2004. (Stats. 2004, ch. 732, § 1.) It generally provides that a county determining whether an EIR is required shall determine whether a project “may result in a conversion of oak woodlands that will have a significant effect on the environment. If a county determines that there may be a significant effect to oak woodlands, the county shall require” one or more specified mitigation alternatives “to mitigate the significant effect of the conversion of oak woodlands.” (§ 21083.4, subd. (b).) One of the specified mitigation alternatives is “[o]ther mitigation measures developed by the county.” (Id., subd. (b)(4).) In its adopted version, although the statute defines the term “oak,” it does not define the term “woodlands,” rendering it ambiguous and difficult to interpret or apply. (Id., subd. (a).)
Both the Cateys spoke in support of the project and the design of the house. And Glenn Flamik confirmed that 77 oak trees would be retained on the project site. He further gave his opinion that the site would be classified in terms of forest type, consistently with the FMP, as “Monterey pine overstory and coast live oak understory.” But he also said that in the event the project was considered to be a conversion of oak woodland under section 21083.4, the removed trees could be donated or offered to the Pebble Beach Company for transplanting to another location, if possible, as a mitigation measure. Gonzales voiced her support for this proposed measure.
Both the Chinns and their counsel spoke in opposition to the project and the house design, counsel asserting that “the CEQA workup” on the project had been inadequate and that an EIR in lieu of an ND was required. He specifically contended that the project would impact neighborhood character and that issues remained for study concerning “tree removal, location on the site and drainage.” The Chinns voiced their opposition to the style and size of the house and the tree removal. Other neighbors also spoke in opposition to tree removal.
Finally, Al Mulholland from the County Water Resources Agency offered that the Agency had approved the initial Catey drainage plan and that, as was standard procedure, a final plan would still be required with all details provided before issuance of a building or grading permit for the project. The revised plan would be required to substantially conform to the preliminary drainage plan with additional construction details included.
Ultimately, the Planning Commission followed staff’s recommendation to further evaluate whether the project constituted conversion of oak woodland as covered by section 21083.4. But the Commission also passed a resolution of intent to approve the project and adopt the ND, subject to stated conditions, pending the determination of applicability and further staff recommendations regarding section 21083.4. The hearing was continued to March 30, 2004, to resolve these pending issues.
Between March 9 and 30, 2004, planning staff studied the question of the applicability of section 21083.4 to the project, ultimately concluding that the property was not an “oak woodland” or a “conversion” and recommending approval of the project and adoption of the ND. Staff nevertheless also recommended that the suggested mitigation measure of donation of the removed trees to the Pebble Beach Company for possible transplantation be included as a condition of project approval.
In between the two meetings, another neighbor, Attilio Sciambi, submitted a letter, accompanied by drawings and calculations, which questioned the Cateys’ and the County’s representation of the square footage and floor area ratio of the Catey residence. The letter gave no information about Sciambi’s qualifications for his technical calculations.
The Chinns’ counsel also wrote to the Planning Commission. His letter contended that the project site was an “oak woodland under [section 21083.4] and pertinent regulatory definitions and as such statutorily required mitigations must be imposed in order for the project to comply with CEQA.” The letter further noted that “whatever drainage plan is required must be submitted and reviewed under CEQA for secondary impacts before the project can be approved.” The letter also attached another letter from the Chinns’ architect, Bill Mefford, disputing the Cateys’ square footage and floor area ratio calculations.
Before the March 30th hearing before the Planning Commission, Douglas Catey submitted his revised drainage plan to the Water Resources Agency.
At the hearing, Gonzales presented staff’s evaluation and recommendations to the Planning Commission. These included that the project was not subject to section 21083.4 because it did not involve conversion of an oak woodland. Staff nevertheless recommended that the donation of removed trees as a mitigation measure be included as a condition of project approval.
Again, Douglas Catey spoke in support of the project and the Chinns spoke against it. Momi Chinn noted that “what this whole matter is about is this huge house that’s being built, extremely close to ours, . . . it has to do with preserving habitat . . . and the County Planners have failed . . . to look at alternatives. You know, looking at a variance, what would that do? If you move the project . . . 20 or 30 feet [to the] west, you save 25, 28 trees from what we see from the plans.” In response, Douglas Catey pointed out that planning staff had explored placement alternatives by taking “a cutout of the house” and moving it around the lot “to see if there were substantial improvements that could be made” through redesign and that none could be identified.
At the close of public comment, the Commission asked for further information from planning staff on the issue of the correct square footage and floor area ratio of the Catey house. Gonzales stated that she had found the floor area ratio and lot coverage to be consistent with regulations and that differing calculations submitted by those in opposition to the project were “in fact incorrect.” One of the Commissioners also noted that these figures are checked again before the issuance of a building permit and that one would not be issued if the house were out of compliance.
On the question of the application of section 21083.4, the Commission agreed with staff’s analysis and recommendation that it did not apply but that the donation of removed trees would be made a condition of project approval. The Commission unanimously voted to approve the project and to adopt the ND, as revised. Its written findings and decision included that subject to conditions of design approval, the project was “consistent with applicable plans, policies, requirements, and standards of the Monterey County General Plan, the Greater Monterey Peninsula Area Plan, and the Monterey County Zoning Ordinance” and that “[t]he site is physically suitable for the use proposed.” This finding was supported by cited evidence that (1) planning staff had reviewed the project for consistency with the Monterey County General Plan and other local zoning requirements contained within the MCC, including section 21.64.260 concerning removal of protected oak trees; (2) on-site inspections had verified that the project conformed to the submitted plans; the project had been reviewed for suitability by various County agencies, including “Planning and Building Inspection, Public Works Department, Water Resources Agency, Environmental Health Division, Parks Department and Pebble Beach Community Services District” and that “[c]onditions recommended [by these agencies] have been incorporated;” (3) the project had been recommended for approval by the Del Monte Forest Land Use Advisory Commission; (4) the FMP submitted by the Cateys, the objectives of which were to “minimize erosion, prevent soil loss, preserve natural habitat (including native forest under story and wildlife habitat), prevent forest fires, preserve scenic forest canopy, and preserve landmark trees” had concluded that the tree removal was the “minimum required under the proposed building design;” and (5) that the project “will retain more trees than many of the surrounding properties.”
In support of its adoption of the ND under CEQA, the Commission found that “[o]n the basis of the whole record . . . there is no substantial evidence that the proposed project as designed and conditioned will have a significant effect on the environment.” In support of this finding the Commission cited as evidence the technical reports, including the FMP, submitted by the Cateys. The evidence cited also included the erroneously stated fact that no public comments had been received during the public review period preceding the Commission’s March 9th hearing even though the Chinns and other neighbors had submitted their written comments as described above.
With respect to tree removal, the Commission found that it was “the minimum required under the circumstances of the case; and the removal will not involve a risk of adverse environmental impacts such as: soil erosion; water quality; ecological impacts; noise pollution; air movement; and wildlife habitat.” The evidence in support of this finding included the conclusions of the FMP and its recommended tree protection measures during construction, which were adopted as conditions of approval; the further condition requiring the donation of all trees that could be transplanted; and the County’s analysis and conclusion (number 8) that section 21083.4 did not apply. This conclusion was also separately found and supported by the same evidence in addition to the fact that “[m]ore than ten percent of the oak canopy will be on the site after the removal of the twenty-six trees.”
On the subject of drainage, the Commission found that the preliminary Catey drainage plan had been approved by the Water Resources Agency and that drainage improvements shall be in accordance with the those plans. On this topic, approval was also expressly conditioned on the Water Resources Agency’s approval of the revised drainage plan showing construction details.
B. The Board of Supervisors
The Chinns appealed the approval of the project and the adoption of the ND to the Monterey County Board of Supervisors. The stated grounds for appeal included the “lack of a fair or impartial hearing,” the “findings, decision, and conditions are not supported by the evidence,” and “the decision was contrary to law.” (Initial capitalization omitted.) In support of these last two grounds, the Chinns asserted that: (1) the project was not consistent with applicable zoning requirements in that the site was not physically suitable for the proposed use, relocating the house on the lot would save 13 trees, and the tree removal was not the minimum required under the circumstances of the case; (2) there was substantial evidence that the project may have a significant effect on the environment; (3) the property is an oak woodland subject to section 21083.4 and the condition requiring the donation of trees for transplanting was “unenforceable” and “not feasible;” and (4) the preliminary approval of the drainage plan does not dispense with the need for environmental review. The Chinns acknowledged in their transmittal letter of their appeal to the Board that their proposed relocation of the house on the lot would require a variance and they pointed out that they had offered to pay for the “$4,600 variance application fee (in lieu of having to pay this appeal fee).”
Before the public hearing before the Board of Supervisors, the County revised and recirculated the IS, which was updated with respect to hydrology and water quality to reflect that there may be a less than significant impact (instead of no impact) regarding alteration of the existing drainage pattern of the site or area and the creation of additional runoff water. The discussion of this topic was also amended to include that the County Water Resources Agency had “determined that the drainage plan is sufficient, on-site retention goes above and beyond requirements for compliance and off-site drainage will not have a significant impact on the surrounding neighborhood.”
The County also noticed its intent, through the Board of Supervisors, to adopt the ND. Again, no comment by state agencies was received in response to the notice or the revised IS. The matter was noticed for public hearing to take place on June 21, 2005, before the Board of Supervisors.
Before the hearing, the Chinns submitted their written objections to the revised IS, which in essence reiterated the same grounds asserted in the appeal from the approval of the project by the Planning Commission, and again asserted that preparation of an EIR was required under CEQA.
We do not refer to the revised IS as a mitigated negative declaration because its evolution technically distinguishes it from that term as defined at section 21064.5
Planning staff prepared written responses to the grounds stated in the Chinns’ appeal before the hearing. With respect to relocating the house on the Catey lot, staff pointed out that the Chinns had not taken into account “tree removal for the driveway [or] the trees that are close to the house foundation. Staff has made every effort to explore alternative locations to reduce the amount of tree removal. The parcel is heavily forested and any structure placed on this site would require around the same number of trees to be remov[ed]. The project is consistent with 21.64.260 of Title 21 [of the MCC] on the basis of the aforementioned facts.” Staff further noted that the residence “has a relatively small footprint that is sited within the only area available within the setbacks (structure bound on all three sides by Pebble Beach right of way). . . . [U]nder the circumstances of the case, the tree removal is the minimum required.”
On the subject of design, staff again observed that the project was consistent with all applicable zoning requirements, that site review had confirmed that the proposed structure was consistent with other homes in the area, and that the proposed design had passed muster under local design review processes. Staff further confirmed that the floor area ratio of the project was 34.6 percent, which was less than the 35 percent allowed.
Regarding drainage, staff noted that County Water Resources Agency had made an on-site visit in May 2005 leading to the revised conclusions about drainage in the IS and that the Pebble Beach Company had confirmed that there were no flooding issues in the area, that no such issues were expected to arise as a result of the project, and that surface drainage improvements were slated for later that year.
The staff report to the Board recommended that it reject the Chinns’ appeal, adopt the ND, and approve the project.
At the hearing before the Board of Supervisors, the planning director, Jeff Main, observed, “Staff has tried to address the issues between [the Cateys] and the neighbors with a significant amount of time being spent over the last nine months on this project. We have addressed . . . all the technical concerns . . . resulting [from] the kind of a classic case . . . of a neighborhood [versus] applicant dispute over a new house. So any further redesign of the project . . . is going to take a lot of additional time and cost the applicant additional money for a variance.”
Gonzales offered that although the Chinns had claimed that 13 trees could be saved if the house were relocated on the lot, they “did not take into account trees that are too close to the structure and trees that would have to be removed for the driveway. The Staff reviewed [the Chinns’] site plan and found an additional 11 trees that would need to be removed. Staff has made every effort to explore alternative locations to try and save additional trees without encroaching into the front setbacks. This is a heavily forested lot and is [constrained] by its size and shape.” Gonzales went on to demonstrate to the Board with a color-coded plan of the Chinns’ house relocation that their design would require more tree removal than the Chinns had calculated and would require the issuance of a variance.
The Chinns and their counsel addressed the Board, asserting all of their objections and requesting that approval of the project be denied or that if it were to be approved, that it be subject to the house being moved 20 feet to the west. Two other neighbors also spoke in support of the Chinns regarding the tree removal issue, including Attilio Sciambi. He identified himself as an engineer and, consistently with his previous letter to the same effect, questioned the square footage and floor area ratio of the Catey house. At the same time, Sciambi acknowledged that he did not have a basis for calculating all the numbers—“there’s no way to look, so I don’t know if they’re good or they’re not good.” Sciambi urged that the Chinns’ appeal should be “upheld because . . . all the numbers are in question, including the lot size.”
The Cateys again spoke in support of the project. Douglas Catey pointed out that if the Chinns’ position regarding the language of MCC section 21.64.260 concerning tree removal that addresses the “minimum required under the circumstances of the case” were correct and taken to its logical conclusion, no house would ever be built since that saves the most trees of all. He offered that “a more reasonable reading of that phrase is to take a look at the lot, the setbacks, the number of trees on the lot, the number that are being saved, and [ask] has a reasonable job been done saving as many trees as possible. And not just every possible tree doing whatever it takes to do that.”
Douglas Catey also said that Bill Mefford had erroneously counted the square footage of the stairway between the first and second floors of the house twice “and that’s where he comes up with the additional, I think it’s 50 square feet, or something like that. And, we determined with the County very early in this process, before the plans were ever drawn, that staircases count once.”
In closing comments from planning staff, Jeff Main responded to the Chinns’ proposal to move the house on the lot. He said, “this issue of moving the house back and forth, . . . the crux of Staff’s argument has been that no matter how you move this particular size house around on this lot, you’re going to be removing a lot of trees. Yes, you might save one or two here, but there is an argument regarding not one or two’s health in comparison to the other[s]. [Sic.] So on balance, we felt that this size of a house, footprint of a house on this lot in the location that’s proposed is the minimum amount [of trees] that could be removed. The screening of the structures, again moving it in any position within the lot around outside the setbacks that are required is going to have an impact on screening. So it was Staff’s determination that the house located where it was provided the most screening throughout, for all of the views of the home.”
After some discussion among the Board members about the acrimony that had developed in this “neighborhood feud,” the Board continued the matter to July 12, 2005, and passed a resolution of intent to approve staff’s recommendation regarding the project, subject to some revisions suggested by the events of the hearing.
These included making changes to correctly state that the Chinns’ written comments in opposition to the project had been received during public comment periods and had been addressed by the County.
Before the continued hearing, the Chinns submitted another letter dated July 11, 2005, from Rob Cain, their arborist. The letter said that the “shift of the house to the west [as proposed by the Chinns] could have the potential to save an additional 9 Coast live oak trees on the Pelican property and the 4 Coast live oaks located on the Pebble Beach Company easement to the south of the property. I estimate that 21 trees would have to be removed regardless of the two designs as most would fall within both building design footprints. [Twenty-three] trees would be saved with the house being shifted to the west . . . . [Fourteen] additional trees would have to be removed in shifting the house to the west, thus having a net gain of 9 trees being saved. Most of the additional removals are trees that are smaller in diameter than those that would be saved and some are as small as two inches in diameter. . . . The proposed shifting of the house and consequent saving of 9 trees would reduce the current significant unmitigated impacts of the project.” Once again, the letter does not state or support the conclusion it assumes—that the removal of 26 oak trees on the project site may have a significant environmental impact.
At the continued hearing, Douglas Catey discussed how moving the house as proposed by the Chinns would result in far less screening of the structure from the street and the other neighbors’ homes. The Chinns’ attorney reiterated the view of Rob Cain that moving the house 20 feet to the west would save nine oak trees, not the 13 he had originally thought.
After discussion by the Board, it voted three to two to approve the project and to adopt the ND, subject to additional conditions and language added to the resolution, and to reject the Chinns’ appeal. The written resolution included the following 10 findings, each of which cited specific evidence: (1) “The Use Permit and Design Approval . . . as conditioned are consistent with applicable plans, policies, requirements, and standards of the Monterey County General Plan, the Greater Monterey Peninsula Area Plan, and the Monterey County Zoning ordinance (Title 21).” (2) “On the basis of the whole record before the Board of Supervisors there is no substantial evidence to support a fair argument that the proposed project as designed and conditioned may have a significant effect on the environment. The negative declaration reflects the independent judgment and analysis of the County.” (3) “The subject property is in compliance with all rules and regulations pertaining to zoning uses, subdivision and any other applicable provisions of the County’s zoning ordinance. No violations exist on the property.” (4) “The tree removal is the minimum required under the facts and circumstances of this case; and the removal will not involve a risk of adverse environmental impacts such as: soil erosion; water quality; ecological impacts; noise pollution; air movement; and wildlife habitat.” (5) “The Board of Supervisors finds that the proposed project is not considered Oak Woodland as described in Senate Bill 1334, Section 21083.4 of the Public Resources Code.” (6) “The Board of Supervisors finds that the preliminary drainage plan prepared by a registered civil engineer or architect addressing on[-]site and off[-]site impacts has been approved by [the] Water Resources Agency and will not have the potential to cause a significant environmental impact. Drainage improvements shall be constructed in accordance with the plans approved by the Water Resources Agency.” (7) “The establishment, maintenance or operation of the project applied for will not under the circumstances of this particular case, be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use, or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the County.” (8) “The County has conducted a fair and impartial public hearing on the application and related approvals.” (9) “An appeal of the March 30, 2005 action of the Planning Commission requesting the denial of a Use permit for Douglas and Elayne Catey . . . to allow for the removal of 26 protected Coast Live Oak trees . . . and a Design Approval to allow for the construction of a new 3,738 square foot two story single family dwelling with an attached garage was filed by [the Chinns]. The appeal was timely filed on April 27, 2005.” (10) “In view of the findings and evidence [cited therein], the evidence and testimony presented at the hearing, and the contents of the record as a whole, the Board finds that [the Chinns] have failed to sustain their burden on appeal. The emotional undertones of the dispute diminish the credibility of [the Chinns’] witnesses’ testimony.”
Condition number 9 of the ND stated that the “smaller Coast Live Oaks . . . that can be transplanted, as determined by [the Cateys’] forester, shall be donated to the Pebble Beach Company or other organization that uses them in the same general area to retain the same genetic species.” Condition number 12 provided that “[t]he [Cateys] shall provide the Water Resources Agency [with] a revised drainage plan prepared by a registered civil engineer or architect addressing on-site and off-site impacts. The plan shall be in substantial conformance with the preliminary drainage plan dated 02/11/2005; however, additional construction details must be included. Drainage improvements shall be constructed in accordance with plans approved by the Water Resources Agency.”
The Pebble Beach Company later rejected the trees for transplant for the stated reason that their “size and condition” precluded transplantation. Forester Glenn Flamik concurred that none of the trees was “worthy of transplanting.”
III. Trial Court Proceedings
The Chinns challenged the Board of Supervisor’s decision by petition for administrative writ of mandamus and complaint for injunctive relief filed in the trial court on the same day the Board of Supervisors approved the project. The petition claimed, among other things, that the two letters from Rob Cain regarding tree removal, the letter from Jack Van Zander regarding drainage, and the letter from Bill Mefford regarding “tree removal, neighborhood character, and visual resources” required the preparation of an EIR because these “opinions” constituted substantial evidence of a fair argument that the project may have a significant effect on the environment. The petition included a cause of action against the County alleging that it violated CEQA in its approval of the project and adoption of the ND and a cause of action for injunctive relief against the Cateys, as real parties in interest, seeking to preclude them from starting any development or taking any action in furtherance of the project, including the removal of trees.
Initially, only Momi Chinn petitioned the court for relief. The petition was later amended to name Gaynor Chinn as a plaintiff/petitioner.
The Chinns sought the issuance of a temporary restraining order and a stay of the County’s decision approving the project. After issuing an order to show cause re preliminary injunction and setting a hearing, the court denied relief, determining that the Chinns had not met their “burden of proof to support the issuance of a preliminary injunction or order for stay.”
The trial court later heard and denied the Chinns’ petition for writ by written order. Judgment was later entered against the Chinns. This appeal followed.
As noted, the Chinns application for a preliminary injunction in the trial court to prevent the removal of the protected trees was denied. And upon denial of their petition for writ of mandate in the trial court, they did not seek a stay. Therefore, the Cateys sought and obtained a building permit for construction of their residence and proceeded, as they were legally entitled to do, to remove the 26 trees in accordance with the use permit granted by the County. As of May 2007, when we received supplemental briefing, the targeted trees had been removed and construction of the exterior of the residence was nearly complete, with protective measures in place for the remaining trees as required by the FMP and conditions for project and design approval. One additional tree had also been removed on the basis that it was either dead or diseased, an action for which the Cateys later applied and retroactively received a permit.
DISCUSSION
I. Contentions on Appeal
The Chinns raise numerous contentions on appeal. They have also briefed the case as if an appellate court considers the trial court’s decision under these circumstances instead of the lead agency’s action, which is what is at issue on judicial mandamus review of an agency’s decision to adopt a negative declaration instead of preparing an EIR. But the law is that an appellate court’s task in this circumstance is the same as that of the trial court—“ ‘to review the agency’s actions to determine whether [it] complied with the procedures required by law.’ . . . [T]he trial court’s conclusions are not binding on [the appellate court]. [Citations.]” Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1183; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427; Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 571 [appellate court conducts its review independently of the trial court’s findings].)
As best we can discern, the Chinns claim first that the administrative record contains substantial evidence of a fair argument that the project may have a significant effect on the environment in three general areas, which they identify as (1) tree removal; (2) drainage and hydrology; and (3) aesthetics, visual resources, and neighborhood character. As such, the Chinns claim, preparation of an EIR instead of adoption of an ND was required under CEQA.
Likewise framed under CEQA is the Chinns’ contention that approval of the project as designed and conditioned violated recently enacted section 21083.4 concerning conversion of oak woodlands. Further under CEQA, the Chinns claim that the IS, both as initially issued and as revised, was “legally deficient.”
Finally, the Chinns contend that in issuing the use permit to the Cateys, the County misapplied MCC section 21.64.260 concerning removal of coast live oak trees because the permitted tree removal was not, they claim, the “minimum required under the circumstances of the case.” (MCC, § 21.64.260.) They also claim that the County violated its zoning policies by approving the Catey house design.
II. The Scope and Standard of Review
This appeal is from the denial of a petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5. Under this section, an agency’s action is reviewed for abuse of discretion based on an examination of the whole administrative record before it. An abuse of discretion is found if “the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).) This standard of judicial review applies to challenges under CEQA. (§§ 21168, 21168.5.) And as discussed in more detail below, unique to the question whether a lead agency should have prepared an EIR in lieu of adopting an ND, we apply the “fair argument” test. This test involves reviewing the whole of the administrative record to ascertain if there is substantial evidence of a fair argument that the project may have a significant effect on the environment. (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1135-1136; Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1110 (Architectural Heritage); § 21151; Guidelines, § 15064, subd. (f)(1).)
The Chinns attempt to invoke the fair argument standard with respect to nearly every issue they raise. We do not agree that all of their challenges to project approval must be analyzed under this standard or even under CEQA. It is true however that even though construction of a single family dwelling ordinarily enjoys a categorical exemption from CEQA review (§ 21084; Guidelines, § 15303, subd. (a)), CEQA is triggered here under MCC section 21.64.260. This section provides that “requests” to remove more than three “protected” trees “shall be subject to the requirements of” CEQA. The section does not subject the entire project to CEQA review. And there is no other legal basis for doing so. We accordingly confine our judicial review of the question whether the record contains substantial evidence of a fair argument that the project may have a significant effect on the environment to the issue of tree loss and the potentially related impacts of tree removal on drainage and aesthetics as suggested by the record. We also analyze under CEQA the Chinns’ claims that the IS was inadequate and that the County violated section 21083.4, which is a part of CEQA. These issues concern the interpretation or application of CEQA and as such are matters of law. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 118 [reviewing court must ensure compliance with statutory procedures and mandates of CEQA].)
The Chinns argued below that CEQA review was triggered not only by reason of the MCC but also because there was a reasonable possibility that the project would have a significant effect on the environment due to “unusual circumstances,” thus invoking the “significant effect” exception to application of categorically exempt status of the project under CEQA. (Guidelines, § 15300.2, subd. (c).) Although they also raised this contention at oral argument, they did not seriously assert it in briefing on appeal and we accordingly consider them to have abandoned it.
But we will review the Chinns’ other challenges to the County’s approval of the project, which amount to claimed violations of the Monterey County Code, under ordinary principles of appellate review of administrative mandamus proceedings under Code of Civil Procedure section 1094.5—determining whether substantial evidence supported the County’s findings and whether those findings supported its decision. In determining whether substantial evidence supports the County’s decision, which is entitled to a presumption of correctness, “ ‘we look to the “whole” administrative record and consider all relevant evidence, including that evidence which detracts from the decision. Although this task involves some weighing to fairly estimate the worth of the evidence, that limited weighing does not constitute independent review where the court substitutes its own findings and inferences for that of the [County]. Rather, it is for the [County] to weigh the preponderance of conflicting evidence, as we may reverse its decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it. [Citations.]’ [Citation.]” (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1288-1289; Architectural Heritage, supra, 122 Cal.App.4th at p. 1110.)
III. Legal Framework of CEQA
As previously observed by many courts, when the Legislature enacted CEQA, it “sought to protect the environment by the establishment of administrative procedures drafted to ‘Ensure that the long-term protection of the environment shall be the guiding criterion in public decisions.’ ” (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74 (No Oil), quoting § 21001, subd. (d).) “ ‘[T]he overriding purpose of CEQA is to ensure that agencies regulating activities that may affect the quality of the environment give primary consideration to preventing environmental damage. [Citation.]’ [Citation]” (Architectural Heritage, supra, 122 Cal.App.4th at p. 1100.) In conjunction with the effective implementation of CEQA and as an aid to carrying out the statutory scheme, the State Resources Agency has issued the State CEQA Guidelines. (Guidelines, §§ 15000, 15001.) CEQA and the Guidelines together promote the State policy of protecting a variety of environmental values. (Architectural Heritage, supra, at p. 1100.)
Consistently with this policy, CEQA and the Guidelines “ ‘have established a three-tiered process to ensure that public agencies inform their decisions with environmental considerations.’ [Citations.]” (Architectural Heritage, supra, 122 Cal.App.4th at p. 1100.) “ ‘The first tier is jurisdictional, requiring that an agency conduct a preliminary review in order to determine whether CEQA applies to a proposed activity. (Guidelines, §§ 15060, 15061.)’ [Citations.] ‘If the agency finds the project is exempt from CEQA under any of the stated exemptions, no further environmental review is necessary.’ [Citation.] ‘If, however, the project does not fall within any exemption, the agency must proceed with the second tier and conduct an initial study. (Guidelines, § 15063.)’ [Citation.]” (Architectural Heritage, supra, at pp. 1100-1101.)
The initial study “serves several purposes. (Guidelines, § 15063, subd. (c).) One purpose is to inform the choice between a negative declaration and an [EIR]. (Id., subd. (c)(1); Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1337, 1346 [(Leonoff)].) Another of the initial study’s purposes is to eliminate unnecessary environmental impact reports. (Guidelines, § 15063, subd. (c)(7).) [¶] ‘CEQA excuses the preparation of an EIR and allows the use of a negative declaration when an initial study shows that there is no substantial evidence that the project may have a significant effect on the environment.’ [Citations.] [¶] In certain situations where a straightforward negative declaration is not appropriate, the agency may permit use of a mitigated negative declaration (MND). ‘If the initial study identifies potentially significant effects on the environment but revisions in the project plans “would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur” and there is no substantial evidence that the project as revised may have a significant effect on the environment, a mitigated negative declaration may be used.’ [Citations.]” (Architectural Heritage, supra, 122 Cal.App.4th at p. 1101.) Indeed, CEQA requires the use of a negative declaration rather than an EIR when it is determined that there is no substantial evidence that a project may have significant environmental effect. (§ 21080, subd. (c); Guidelines, §§ 15063, subd. (b)(2), 15064, subd. (f)(3), 15070, 15002, subd. (f)(2).)
“If the project does not qualify for a negative declaration of either type, ‘the third step in the process is to prepare a full environmental impact report . . . .’ [Citations] [¶] The California Supreme Court has ‘repeatedly recognized that the EIR is the “heart of CEQA.” [Citations.]’ [Citation.] As the court observed some three decades ago, ‘since the preparation of an EIR is the key to environmental protection under CEQA, accomplishment of the high objectives of that act requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.’ [Citation.] The court stressed ‘the importance of preparing an EIR in cases … in which the determination of a project’s environmental effect turns upon the resolution of controverted issues of fact and forms the subject of intense public concern.’ [Citation.] Other cases have since confirmed the statutory preference for resolving doubts in favor of an EIR. [Citations.]” (Architectural Heritage, supra, 122 Cal.App.4th at pp. 1101-1102; Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 332; see also Guidelines, § 15003, subd. (a).)
That said, CEQA includes express legislative intent that the courts shall not interpret its provisions or the Guidelines “in a manner which imposes procedural or substantive requirements beyond those explicitly stated” therein. (§ 21083.1.) And the Guidelines also make clear that it is CEQA policy that decisions be “informed and balanced. [CEQA] must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development or advancement.” (Guidelines, § 15003, subd. (j); Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 576.)
In assessing whether substantial evidence in the record supports a fair argument that a project may—meaning a reasonable possibility (No Oil, supra, 13 Cal.3d at p. 83, fn. 16)—have a significant effect on the environment thus mandating the preparation of an EIR, CEQA provides that a “significant effect on the environment” means a “substantial, or potentially substantial, adverse change in the environment.” (§ 21068.) The Guidelines further define this term as “ a substantial adverse change in the physical conditions which exist in the area affected by the proposed project.” (Guidelines, § 15002, subd. (g).) A lead agency must find that a project may have a significant effect on the environment if it “has the potential to degrade [its] quality . . . .” (§ 21083, subd. (b)(1).)
“Substantial evidence” in this context is also defined by statute. It includes “fact, a reasonable assumption predicated upon fact, and expert opinion supported by fact.” (§ 21080, subd. (e)(1); 21082.2, subd. (c); see also Guidelines, § 15384, subd. (b).) The Guidelines further explain that substantial evidence includes “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. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency.” (Guidelines, §§ 15384, subd. (a), 15064, subd. (a)(1); see also § 21082.2, subd. (a).) This means the lead agency does not look at isolated bits of evidence but instead to the whole record before it in determining whether substantial evidence of a fair argument exists to compel the preparation of an EIR. (Leonoff, supra, 222 Cal.App.3d at p. 1348.)
Statutory authority and the Guidelines also make clear that substantial evidence under CEQA does not include “[a]rgument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment.” (Guidelines, § 15384, subd. (a); see also §§ 21080, subd. (e)(2), 21082.2, subd. (c); Pala Band of Mission Indians v. County of San Diego, supra, 68 Cal.App.4th at pp. 578-580 [generalized complaints, speculation, and unsupported conclusions do not constitute substantial evidence]; Leonoff, supra, 222 Cal.App.3d at p. 1352.) Nor are unsubstantiated fears, suspicions, or dire predictions substantial evidence, even though sincere and deeply felt. (Ibid.) And the “existence of public controversy over the environmental effects of a project shall not require preparation of an [EIR] if there is no substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment.” (§ 21082.2, subd. (b).)
As further provided by the Guidelines, the “determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data. An iron[-]clad definition of significant effect is not always possible because the significance of an activity may vary with the setting. For example, an activity which may not be significant in an urban area may be significant in a rural area.” (Guidelines, § 15064, subd. (b); Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 589 (Bowman).)
Although the fair argument standard creates a low threshold for requiring the preparation of an EIR, the standard is not so low as to be nonexistent. (Apartment Assn. of Greater Los Angeles v. City of Los Angeles (2001) 90 Cal.App.4th 1162, 1173-1176.) But “[i]f a lead agency is presented with a fair argument that a project may have a significant effect on the environment, [it] shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have significant effect.” (Guidelines, § 15064, subd. (f)(1); No Oil, supra, 13 Cal.3d at p. 75.) In the event of a factual dispute, the lead agency has discretion to determine whether the information has adequate foundation, involves an issue within the expertise of the witness, or entails speculation. (§ 21080, subd. (e); Citizens Com. to Save Our Village v. City of Claremont (1995) 37 Cal.App.4th 1157, 1170-1171; Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 498-499, fn. 2.) A true credibility problem must be fact-based and must have been specifically addressed by the lead agency during the administrative process. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 935 (Pocket Protectors.)
And although the agency’s function is not to weigh conflicting evidence (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1400 (Gentry)), some weighing is inherently involved in its determination of the substantiality of evidence. (Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 151; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 617; Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 142; Citizens’ Com. to Save Our Village v. City of Claremont, supra, 37 Cal.App.4th at p. 1168 [the determination of whether or not evidence is substantial is in itself a weighing process]; Pocket Protectors, supra, 124 Cal.App.4th at pp. 928, 935 [lead agency has discretion to determine whether evidence offered by citizens claiming a fair argument exists meets CEQA’s definition of substantial evidence].) To the extent the agency has made a credibility determination, its determination is entitled to judicial deference even though in general, the question whether the administrative record contains substantial evidence of a fair argument that the project may have significant environmental effect is one of law as to which courts exercise independent judgment. (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1317-1318.) If a reviewing court’s answer to this question is yes but the lead agency has nevertheless determined to proceed with project approval without preparing an EIR, the agency has not proceeded in a manner required by law and its decision cannot be upheld. (Ibid.) In other words, judicial review of an agency’s decision as to whether a fair argument has been made involves analysis of the sufficiency of the evidence to support a fair argument—a legal question. (Ibid.)
In applying this standard of review, courts must “review the [administrative] record and determine whether there is substantial evidence in support of a fair argument the [project] may have a significant environmental impact, while giving the [lead agency] the benefit of the doubt on any legitimate, disputed issues of credibility.” (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1603.) Although the fair argument standard is a low threshold, it remains the project objector’s burden to show, by citation to the record, the existence of substantial evidence to support a fair argument. (Leonoff, supra, 222 Cal.App.3d at p. 1348-1349.) And in reviewing the record, a court is not free to substitute its own credibility determinations for those of the lead agency. (Gentry, supra, 36 Cal.App.4th at p. 1400.)
IV. The Administrative Record Contains No Substantial Evidence That the Tree Removal May Have a Significant Effect on the Environment
A. Loss of Coast Live Oak Trees
The primary contention of the Chinns’ appeal concerns their challenge to the County’s issuance of the use permit to allow the Cateys to remove the 26 protected coast live oak trees in order to construct their residence. The Chinns specifically contend, in conclusory fashion, that the removal of these trees from the project site will have “not just a potentially significant impact on the environment, but an actual” one. They urge that since MCC section 21.64.260, the County’s tree protection ordinance, triggers CEQA review for the removal of more than three coast live oaks, requires a permit for the removal of coast live oaks that exceed six inches in diameter, and further requires that removal of such trees be limited to the “minimum required under the circumstances of the case,” “[l]ogic dictates” that the removal of the 26 trees here “must be deemed a potentially significant environmental impact.” (MCC, § 21.64.260.D.5.a.) They further assume that significant environmental impact may be caused by the removal because alternatives to the design and location of the Cateys’ house, as proposed by the Chinns, were said to reduce the number of trees required to be removed, although at last count by potentially only five to nine trees and only with a variance.
At oral argument, the Chinns for the first time articulated the contention that the local ordinance establishes a threshold of significance, presumably under Guidelines section 15064.7, subdivision (a). Since they did not brief this point, we consider it to have been waived. Moreover, there is no indication in the record that MCC section 21.64.260 was adopted through a public review process, a circumstance that is required in order to establish a threshold of significance under Guidelines section 15064.7, subdivision (b).
These contentions boil down to the factually unsupported conclusion that any tree removal, by the fact itself, may result in adverse environmental impact. But the existence of a county tree protection ordinance or alternatives more favorable to the Chinns that might require some lesser number of trees to be removed do not furnish the factual premise of the Chinns’ claim, in the form of substantial evidence, that the removal as proposed, in and of itself, may have a significant effect on the environment. These matters are simply not facts, reasonable assumptions predicated on facts, or expert opinion supported by fact constituting substantial evidence of a fair argument that the tree removal in this case may have a significant effect on the environment. (§ 21080, subd. (e)(1).) What is instead asserted here amounts to no more than a speculative conclusion lacking in factual premises.
We acknowledge that while “inconsistency between a project and other land use controls does not in itself mandate a finding of significance,” this is a factor “to be considered in determining whether a particular project may cause a significant environmental effect.” (Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, 131 Cal.App.4th at p. 1207; Guidelines, § 15063, subd. (d)(5) [initial study must contain brief examination of project’s consistency with “zoning, plans, and other applicable land use controls”].) But here, as discussed below, substantial evidence supports a determination of consistency between the project and local land use controls.
A review of the two letters from the Chinns’ forester, Rob Cain, shows that they too are bereft of a factual basis to support the conclusion that the proposed removal of the 26 trees may have a significant effect on the environment. These letters, characterized by the Chinns as “expert opinion,” thus did not constitute substantial evidence of a fair argument in support of this conclusion and the County was not compelled to prepare an EIR instead of adopting an ND because of them.
As noted, Cain’s November 5, 2004 letter does not state that the removal of the 26 oak trees may have a significant effect on the environment. And it does not contain facts from which this assumption can reasonably be made. The letter does assert that the “proposed house as designed and situated on the lot . . . does not keep the protected tree removal to a minimum” and it suggests that moving the house to the west on the lot, away from the Chinn residence, would reduce the number of trees required to be removed by five to nine trees. It then concludes that relocating the house so as to create a “buffer zone” between the Catey and Chinn houses where replacement trees could be planted would “reduc[e] the impacts the project would have on the Chinn property” and would reduce the “potential significant impacts of the project . . . to less than significant.” (Italics added.) The only such “impacts” identified are “loss of protected trees within the area [i.e., the fact itself] and also the visual impact of the project [on] the Chinn property.” Thus, the letter is devoid of an actual opinion based on fact that the removal of the 26 trees may have a significant effect on the environment. And it provides no reason why this would be so. Further, it offers no factual basis for the conclusion that removing from five to nine less trees would reduce the asserted adverse impact of the removal to something less than significant.
Cain’s July 11, 2005 “expert opinion” letter suffers from the same infirmities. It reasserts that moving the house to the west on the lot would have “the potential” to save nine trees, which “would reduce the current significant unmitigated impacts of the project.” These “unmitigated impacts” are not even identified let alone supported by fact.
Bill Mefford’s March 2, 2005 letter likewise states that one of the impacts of the project that could be mitigated through alternative design and location of the Catey house is “tree loss,” again the fact itself, which he further describes as the “dramatic unnecessary reduction in forest vegetation and trees on the property (unnecessary because many trees could be saved through alternative design/location of the structure).” But Mefford is not a forester and there was no showing that he had the expertise to comment on “tree loss” as a potential environmental impact other than from the architectural or design perspective. And Mefford was specifically asked by the Chinns to opine on “the impact [that] the proposed Catey house . . . would have on the local neighborhood”—not on the impact of “tree loss.” Mefford’s opinion regarding “tree loss” thus not only lacks a foundation in that he expresses no qualifications to render an opinion beyond the areas of architecture and design but it too merely assumes “tree loss” as an adverse environmental impact without offering any factual basis for this conclusion. As such, the letter contains no factual basis or premise for the conclusion that the loss of trees, in and of itself, may be a significant effect on the environment such that an EIR was compelled here.
The County ultimately found that on the basis of the whole record before the Board of Supervisors, “there is no substantial evidence to support a fair argument that the proposed project as designed and conditioned may have a significant effect on the environment.” It further found that the tree removal “will not involve a risk of adverse environmental impacts such as: soil erosion; water quality; ecological impacts; noise pollution; air movement; and wildlife habitat.” Among the evidence cited for these findings was the FMP, the objective of which was to “minimize erosion, prevent soil loss, preserve natural habitat (including native forest under story and wildlife habitat), prevent forest fires, preserve scenic forest canopy, and preserve landmark trees. The FMP report states that the number of tree[s to be removed] is the minimum required under the proposed building design. This residence has a very small footprint that is sited within the only area available within the setbacks. This project will retain more trees than many of the surrounding properties. The FMP does not recommend tree replacement as it would be detrimental to the long-term health and maintenance of the remaining habitat, but it does encourage native regeneration.”
In order to grant a permit under MCC section 21.64.260.D.5.b for the removal of more than three protected trees, the appropriate authority must find that the tree removal will not involve a risk of adverse environmental impacts in these specific areas, in addition to finding that the tree removal is “the minimum required under the circumstances of the case.” (MCC, § 21.64.260.D.5.a.)
In addition to the FMP, the record also includes forester Glenn Flamik’s informal comments to the Planning Commission that the density of trees remaining on the quarter-acre sized lot after removal of the 26 oak trees is “huge” and leaves “plenty of trees out there.” And it includes comments from planning staff, who, based on their own site visits, concluded that moving the house 20 feet to the west as suggested by the Chinns and their experts would not save a substantial number of trees, would require a variance because of the setbacks required on the Catey lot, and would reduce the visual screening effect of the remaining trees on most views of the house. This evidence does not reflect a factual dispute with the content of the Chinns’ experts’ letters. Rather, it illustrates the County’s determination that the information upon which their experts’ views were based was factually erroneous, a conclusion which warrants our deference, especially in light of the County’s express finding that “[t]he emotional undertones of the dispute diminish the credibility of [the Chinns’] witnesses’ testimony.”
The Chinns fail to persuasively explain why this finding by the County would not be applicable to expert and lay comments or opinions alike. The experts the Chinns rely on were after all retained by them. And the County, without impugning the experts’ integrity, was entitled to conclude in this case that their credibility was just as “diminished” as that of lay witnesses as they were perceived to be advocating for the Chinns’ stated position and not neutrally or objectively positioned vis a vis approval of the project. Moreover, if opinions lack factual support or foundation, as we conclude here, they also lack credibility.
A lead agency evaluating whether to adopt an ND or to proceed with an EIR is entitled to “disbelieve even the uncontradicted testimony of a witness or witnesses if it is inherently improbable” or to reject such testimony “if it is unsupported by the facts from which it is derived.” (Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504; see also Apartment Assn. of Greater Los Angeles v. City of Los Angeles, supra, 90 Cal.App.4th at pp. 1173-1176 [pure speculation with no evidentiary support cannot trigger environmental review requirements]; Gentry v. City of Murrieta, supra, 36 Cal.App.4th at pp. 1400, 1417-1423 [lead agency has some discretion to determine whether evidence is substantial]; Leonoff, supra, 222 Cal.App.3d at pp. 1349, 1352 [agency is entitled to believe or disbelieve even uncontradicted testimony by a biased or otherwise incredible witness]; Citizens’ Com. to Save Our Village v. City of Claremont, supra, 37 Cal.App.4th at p. 1170 [speculation and conjecture regarding potential impacts do not amount to substantial evidence, even when offered by an expert, whose opinions rise only to the level of reliability and credibility as the evidence constituting the foundation for those opinions]; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas, supra, 29 Cal.App.4th at p. 1603; Pocket Protectors, supra, 124 Cal.App.4th at pp. 928-929 [mere argument, speculation, and unsubstantiated opinion, even expert opinion, is not substantial evidence of a fair argument].)
In addition to their contention that the record contains substantial evidence of a fair argument that the project may have adverse environmental consequences purely because of the loss of trees, the Chinns rely on Guidelines section 15064, subdivision (g), to assert that an EIR was compelled here by virtue of a disagreement among experts on this point. This section concerns the determination of the significance of the environmental effects caused by a project and provides principles and standards to inform that determination. At subdivision (f), the Guidelines establish what does and does not constitute substantial evidence. At subdivision (g), the Guidelines provides that “[a]fter 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 a 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.”
Thus, under the Guidelines, before this rule is even operative to compel preparation of an EIR, either the principles of section 15064, subdivision (f), must be exhausted or the case must be “marginal,” neither of which circumstance is present here. First, section 15064, subdivision (f)(3), provides that if the lead agency determines that there is no substantial evidence that the project may have a significant effect on the environment, which appropriately happened here, the lead agency shall prepare a negative declaration. Second, subdivision (f)(5), provides that “[a]rgument, speculation, unsubstantiated opinion or narrative, or evidence that is clearly inaccurate or erroneous, or evidence that is not credible, shall not constitute substantial evidence. Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” Here, the County properly reached the conclusions that in spite of the Chinns’ experts’ letters, there was no substantial evidence of a fair argument that the tree loss was per se a significant environmental impact, or that such asserted impact could be reduced to less than significant by the suggested relocation of the Catey house on the lot. And this is not a marginal case where it is unclear if substantial evidence of a fair argument exists. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 500 [CEQA is clear that a disagreement among experts does not constitute substantial evidence of a significant effect on the environment unless a case is marginal]; Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 755.) Thus, the content of the Cain and Mefford letters—lacking as they were in factual support of tree loss as a per se adverse environmental impact—did not invoke Guidelines section 15064, subdivision (g), which applies in any event only when there is a disagreement among expert opinions supported by facts.
Based on the substantial evidence in the whole record that the proposed tree loss at this project site would not constitute a significant environmental impact, and the absence of substantial evidence to support a fair argument to the contrary, the County did not abuse its discretion by adopting the ND instead of proceeding to the next tier of environmental review by preparation of an EIR.
The Chinns’ drainage challenge extends to impacts claimed to result from the entire project and not just that which may be potentially caused by tree removal alone—the only basis for CEQA review here. But we review the entirety of their drainage claims in the context of CEQA anyway since they contend, at least in part, that the project’s significant environmental impact on drainage is related to tree removal or that this activity will materially contribute to that impact. And unlike the issue of visual impacts or aesthetics, the Chinns’ claims with respect to drainage are not easily severable in terms of those related to tree removal versus those claimed to potentially result from the entire project or design aspects of it.
The Chinns argue similarly that there is substantial evidence in the record of a fair argument that the project may have a significant environmental effect on drainage and hydrology based on the letter from John Van Zander of Bestor Engineering, Inc. and that this letter evidenced a conflict between expert opinions compelling preparation of an EIR. This argument fails for much the same reason as the prior one with respect to tree loss.
As noted, Van Zander’s February 15, 2005 letter indicates that he reviewed the “plans submitted for the Catey project . . . and visited the site.” He also said that he reviewed the January 24, 2005 letter from the Cateys’ neighbor, Robert Adler. That letter, without offering any expertise or qualifications for its opinions and ignoring planned improvements in the area to surface drainage by the Pebble Beach Company, threatens dire consequences of the Catey project on neighborhood drainage, which he asserts is already deficient. Adler’s letter also references drainage problems at another location without offering any factual basis to connect these problems to the project site. And it contains speculation and conjecture about the manner in which the project would materialize and thus potentially result in environmental impact.
What Van Zander’s letter does not say is that he reviewed the Cateys’ initial drainage plan, which was prepared by Douglas Catey—an engineer—and submitted to the County only after the date of Van Zander’s letter. Nor does Van Zander’s letter take into account that planned improvements to surface drainage might address unidentified “existing drainage deficiencies,” assuming as it mistakenly does that the Catey project would be constructed in the absence of such improvements, thereby somehow “add[ing] considerably” to those existing but unidentified deficiencies and thus having “a potentially significant adverse environmental impact.”
Van Zander’s conclusion of the project’s potentially adverse environmental impact on drainage is thus lacking in foundational factual support and is factually undermined on the basis of the whole record, which shows that: (1) the Pebble Beach Company had indeed planned improvements to the area’s drainage system, which included improvements to the “catch basin” at the tip of the Catey lot and had concluded that “[t]here have been no issues with flooding or fault lines in the area, and no such issues are expected to arise as a result of the Catey[s’] planned use of the lot”; (2) the Catey drainage plan was engineered and designed to connect to the improved drainage system; (3) the County Water Resources Agency had approved the initial Catey drainage plan and had required further details to be submitted in conformity with the approved plan; and (4) the Water Resources Agency had conducted a site visit and had determined that proposed on-site water retention “goes above and beyond requirements for compliance and off-site drainage will not have a significant impact on the surrounding neighborhood.”
Based on these facts appearing in the whole record, which constitute substantial evidence, the County was entitled to find as it did that the project would not result in significant environmental impact with respect to drainage. And since Van Zander’s opinion was only as good as the foundation offered to support it, which foundation was mistaken, incomplete, or lacking in factual basis, the County did not abuse its discretion in failing to consider his opinion as substantial evidence of a fair argument that the project may have significant environmental impact with respect to drainage. (Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles, supra, 134 Cal.App.3d at p. 504; Apartment Assn. of Greater Los Angeles v. City of Los Angeles, supra, 90 Cal.App.4th at pp. 1173-1176; Gentry v. City of Murrieta, supra, 36 Cal.App.4th at pp. 1400, 1417-1423; Leonoff, supra, 222 Cal.App.3d at pp. 1349, 1352; Citizens’ Com. to Save Our Village v. City of Claremont, supra, 37 Cal.App.4th 1157, 1170; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas, supra, 29 Cal.App.4th at p. 1603.) Moreover, this is not a marginal case in which Van Zander’s opinion, if supported by fact, would present a difference of expert opinion, thereby mandating preparation of an EIR under Guidelines section 15064, subdivision (g).
The Chinns further challenge the County’s finding with respect to drainage and its adoption of the ND, as conditioned, based on the contention that the requirement for submission of a revised drainage plan (condition number 12) that was not itself part of the environmental review process impermissibly defers mitigation under Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 306-307 (Sundstrom) and Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872, 884 (Oro Fino). The basis of this contention is that the condition allows the drainage plan to be later revised to incorporate not yet formulated mitigation measures that escape the public review process contemplated by CEQA. (Guidelines, § 15070, subd. (b)(1) [measures that are proposed to mitigate environmental effects must be included in plans before the proposed ND is released for public review].)
But here, unlike Sundstrom or Oro Fino, the condition at issue did not contemplate further study concerning mitigation or revisions in the plan to incorporate needed or not yet formulated mitigation measures. It instead called for the flushing out of “additional construction details” with respect to “on-site and off-site impacts.” And the revised plan was required to be in substantial conformity with the already approved preliminary drainage plan, which had been deemed by that approval to generally contain any needed mitigation. Thus, by the specified and limited scope of the required revisions to the preliminary drainage plan, which only called for additional construction details, there was no deferral of environmental review of uncertain mitigation measures. (Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 400-401 [mitigation measures in a mitigated negative declaration need not specify precise design details and may leave those details to engineers].)
The Chinns rely on Leonoff in support of their claim that condition number 12 calling for a revised drainage plan is impermissible. In that case, we concluded that the condition of approval at issue did not violate CEQA because “the planning commission was already in possession of a drainage report and the plan before it imposed the mitigating condition.” (Leonoff, supra, 222 Cal.App.3d at p. 1355.) But Leonoff does not aid the Chinns because the situation here is not substantially different. The County had already approved the Cateys’ preliminary drainage plan at the time condition number 12 was imposed and by that time, the Cateys had in fact already submitted their revised plan. And like in Leonoff, there was “no evidence [that] this [revised] plan was considered inadequate.” (Ibid.)
We accordingly reject the Chinns’ claim that condition number 12 concerning submission of a revised drainage plan impermissibly deferred mitigation under CEQA.
C. Aesthetics and Visual Resources
The Chinns contend that the record contains substantial evidence of a fair argument that the project may have significant impacts on “aesthetics, visual resources, and neighborhood character.” (Initial capitalization omitted.) The cited evidence includes the opinions of Rob Cain and Bill Mefford, the two realtors who offered their opinions that the project would affect the Chinns’ privacy and devalue their residence, and the letters and comments from neighbors opposed to the project. The Chinns’ contention in this regard primarily rests on the premise that CEQA extends to the protection of private views and does not just consider impacts on the “public viewshed.”
In this they assume that the entire project, including pure design issues in connection with the Cateys’ house, was subject to CEQA review instead of just the tree removal request. We agree that to the extent the proposed tree removal might have a significant environmental effect on aesthetics or visual resources, it is subject to CEQA by reason of MCC section 21.64.260. But that does not mean that all issues in connection with project design are. We accordingly limit our CEQA review of this issue to claimed aesthetic or visual impacts related to tree removal, excluding impacts purely related to design, which we review below in connection with our analysis of claimed violations of the MCC. Again, we acknowledge that in general, inconsistency between a project and other land use controls is a factor “to be considered in determining whether a project may cause a significant environmental effect.” (Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, 131 Cal.App.4th at p. 1207; Guidelines, § 15063, subd. (d)(5).) But in view of our conclusion below that there is substantial evidence to support the County’s determination that the project complied with all local land use controls, this is not a factor that favors the Chinns here.
But even though environmental aesthetics are protected under CEQA, “[t]he issue is not whether [the project] will adversely affect particular persons but whether [it] will adversely affect the environment of persons in general.” (Topanga Beach Renters Assn. v. Department of General Services (1976) 58 Cal.App.3d 188, 195; Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492-493.) CEQA differentiates between adverse impacts upon particular persons and adverse impacts upon the environment of persons in general. (Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 734, 724-725 (Ukiah) [“project” was the last house to be developed in a residential neighborhood and any impact could affect only a few immediately adjacent residents].) While a project that interferes with scenic views has an adverse aesthetic impact on the environment, “obstruction of a few private views in a project’s immediate vicinity is not generally regarded as a significant environmental impact.” (Bowman v. City of Berkeley, supra, 122 Cal.App.4th at p. 586; Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist., supra, 116 Cal.App.4th at p. 402 [that a project affects “only a few private views” suggests that its impact is insignificant]; compare Quail Botanical Gardens Foundation, Inc. v. City of Encinitas, supra, 29 Cal.App.4th at pp. 1603-1604 [blocking of view from public park] and Pocket Protectors, supra, 124 Cal.App.4th at pp. 936-940 [mile-long project of over a hundred homes with minimal setbacks had potential to cause adverse environmental impact to hundreds of nearby residents].) Moreover, “ ‘[t]hat some, or perhaps all, environmental impacts have an esthetic facet, does not mean that all adverse esthetic impacts affect environment.’ ” (Bowman, supra, 122 Cal.App.4th at p. 591.)
The revised IS here reflected that with respect to aesthetics, the project would have no impact on a scenic vista or scenic resources. Nor was it determined to have an impact in the creation of a new source of light or glare that would adversely affect day or nighttime views of the area. The revised IS also determined that there would be a less than significant impact in terms of substantial degradation of the existing visual character or quality of the site and its surroundings. The discussion of these conclusions stated that the project planner had conducted two site visits and had determined that there would be no adverse visual impact resulting from tree removal when the site was viewed from “a common public viewing area.” In its mandatory findings of significance, the revised IS determined that the “removal of twenty-six trees will not degrade the quality of the environment or have cumulative environmental adverse [effect] on human beings.” And planning staff emphasized in comments to the Board that the proposed tree removal best screened views of the house from surrounding common viewing areas, a point made in the Board’s ultimate findings.
Against this substantial evidence in the record that the tree removal would not have a significant effect on aesthetics or visual resources, the Chinns first offer the view of Rob Cain, who said in his November 5, 2004 letter that the “visual impact of the project to the Chinn property could be reduced” by moving the house to the west, away from their property. (Italics added.) The impact being posited thus expressly affects only the Chinns. And again, Cain does not explain just how the Chinn lot will suffer particular adverse visual affects by the tree loss, nor does he explain just how those impacts would be reduced to less than significant by relocation of the Catey house as suggested. What’s more, Cain ignores that reducing the visual impact to the Chinns’ house as he proposes would decrease the visual screening of the Catey house from surrounding vantage points, thereby increasing any visual impact from common points of view not limited to just the Chinns.
Next, the Chinns offer the March 2, 2005 letter from Bill Mefford, who states that there would be adverse “aesthetic impacts on this uniquely sensitive lot” as a result of the project. He further states that the Catey house design, if built as and where proposed, “would substantially degrade the visual character and quality of the site and the area. It would also create a new source of substantial light that would significantly impact the views and tranquility of the neighborhood. In addition, the dramatic and unnecessary reduction in forest vegetation and trees on the property . . . will seriously alter the visual integrity of this unique neighborhood which is obviously designed and centered around this focal natural open space environment. This is particularly true because of the unusual circumstances of the Catey property being the ‘center piece’ of this neighborhood and being so heavily forested.” (Italics added.)
What is apparent from Mefford’s statements is that the adverse visual or aesthetic impacts being referenced are limited in effect to those neighbors in the immediate vicinity of the Catey lot, i.e, a few private views. The impacts identified thus may affect only particular persons, not “the environment of persons in general.” (Topanga Beach Renters Assn. v. Department of General Services, supra, 58 Cal.App.3d at p. 195; Mira Mar Mobile Community v. City of Oceanside, supra, 119 Cal.App.4th at pp. 492-493; Ukiah, supra, 2 Cal.App.4th at pp. 734, 724-725; Bowman v. City of Berkeley, supra, 122 Cal.App.4th at p. 586; Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist., supra, 116 Cal.App.4th at p. 402.) Thus, even if Mefford’s letter were supported by an adequate factual foundation, it still suggests an insignificant environmental effect because the visual impacts identified do not extend to the environment of persons in general.
The Chinns next point to the two letters to the Chinns from the realtors as substantial evidence of adverse environmental effect regarding aesthetics. The first of these states its author’s “professional opinion that the proposed [Catey] residence . . . will affect your privacy and affect the value of [your] residence. . . . The planned house will take away the privacy of your home that now exists. [¶] Although the (neighboring owners have the right to develop their parcel, it would seem appropriate that they re-site their residence as to be sensitive to your privacy.” (Italics added.) The second letter says more of the same in that in the author’s “opinion, the neighboring project is ill conceived in its design and could ultimately have a negative [effect] on both properties as it will diminish the privacy of both properties. [¶] The new home’s design will impinge on your privacy mostly by exposing its most intimate rooms to your back patio.” (Italics added.)
There are several problems with the assertion that these two letters are substantial evidence of a fair argument that the tree removal may have significant adverse aesthetic or visual effect on the environment. First, the letters are not specific as to tree removal and are more generally directed at the design of the Catey house—an issue not within the scope of our CEQA review. And even under CEQA, “[t]he significance of an environmental impact is in any event measured in light of the context where it occurs.” (Bowman, supra, 122 Cal.App.4th at p. 589.) Here, the surrounding neighborhood is fully developed in similar manner as the proposed Catey residence, precluding any inconsistency with its environmental context. Second, like the letters of Cain and Mefford, the impacts identified in the letters—negative effect on personal privacy and property values—are specific to only the Chinns, who are particular persons in the immediate vicinity of the Catey project. These impacts are not stated to potentially affect the environment of persons in general. Third, the identified impacts are in essence economic effects on a few persons, “which are not cognizable harms under CEQA.” (Pocket Protectors, supra, 124 Cal.App.4th at pp. 936-937; Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, 131 Cal.App.4th at p. 1206 [social or economic change in itself is not a significant effect on the environment]; Guidelines, § 15064, subd. (e).) Fourth, the generalized opinions of predicted decline in property values is speculative, imprecise, and lacks supporting, verifiable data such as comparables and, thus, they are not substantial evidence of a fair argument. (Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 156-157.) For all these reasons, these two letters are not substantial evidence of a fair argument that the tree removal may have a significant effect on the environment.
And because none of these expert opinions qualifies as such and this is not a marginal case, none of them mandates the preparation of an EIR due to the existence of a disagreement among expert opinion supported by fact under Guidelines section 15064, subdivision (g). Finally, the County expressly found the credibility of the Chinns’ witnesses’ testimony diminished as a result of the “emotional undertones” of the dispute.
This very last point is equally pertinent, if not more so since the Chinns concede it applies to lay opinion, to the negative comments of neighbors in the immediate vicinity who expressed opposition to the project. Even though lay opinion if based on direct observation may constitute substantial evidence of a fair argument under CEQA on matters such as aesthetics (Pocket Protectors, supra, 124 Cal.App.4th at p. 937), the County was entitled to and did find these negative neighborhood comments to suffer from diminished credibility, a finding to which we defer. (Id. at p. 934 [lead agency’s weighing of legitimate credibility questions is entitled to deference even under fair argument test].) And, like the expert letters on the subject of aesthetics or visual resources, the visual impacts addressed by the neighbors were those that would only affect particular persons in the immediate vicinity of the project and not the environment of persons in general. (Id. at p. 929 [mere possibility of adverse impact on a few people as opposed to the environment in general is not substantial evidence of a fair argument under CEQA]; Bowman, supra, 122 Cal.App.4th at pp. 586-589.) And many of the comments were either directed specifically to design aspects of the project, which are not subject to CEQA review here, or were specifically directed to a predicted decline in neighboring property values—an economic impact not cognizable under CEQA. (Guidelines, § 15384, subd. (a).) Finally, the project had been subject to significant local design review, the proper province for the predominant aesthetic issues raised here. (Bowman, supra, 122 Cal.App.4th at pp. 593-594.)
For all these reasons, the Chinns have failed to identify substantial evidence in the record of a fair argument that the tree removal may have a significant environmental effect on aesthetics or visual resources, thus compelling the preparation of an EIR.
V. The County Did Not Violate Section 21083.4
The Chinns claim that the County violated section 21083.4 of CEQA because the project effected a conversion of oak woodlands and the County approved it without requiring mitigation measures as provided by this section. While the County primarily found, among other things, that the statute—lacking in a definition of “woodlands”—did not apply to projects involving less than an acre of land, we find the statute either inapplicable for other reasons relied on by the County or satisfied because of conditions of approval imposed by the County requiring mitigation measures.
In the first category just mentioned, we conclude that the project would not result in a “conversion” as that term is plainly understood even if the site were oak woodlands because the only substantial evidence in the record showed that oak trees comprised only the understory of this Monterey pine forest and that the oak foliage or canopy within that understory would still exceed 10 percent even after removal of the trees. Moreover, the County determined based on the whole record before it that the project, even if it did effect a “conversion of oak woodlands” would not have a significant effect on the environment. And, finally, the County conditioned its approval in any event on mitigations that included protective measures for the remaining trees during construction, encouragement of native regeneration of oak trees, and donation of removed trees where possible for transplantation (conditions 6, 8-10)—measures that section 21083.4 permits the County to adopt to satisfy the statute assuming it is even applicable.
As noted, section 21083.4 requires a county, as part of its determination whether an EIR, an ND, or mitigated ND shall be required for any project subject to CEQA, to determine “whether a project . . . may result in a conversion of oak woodlands that will have a significant effect on the environment. If a county determines that there may be a significant effect to oak woodlands, the county shall require one or more of the following oak woodlands mitigation alternatives to mitigate the significant effect of the conversion of oak woodlands: [¶] . . . [¶] (4) Other mitigation measures developed by the county.” (§ 21083.4, subd. (b).) The statute provides a technical definition for the term “oak” but neglects to define any of its other terms. (§ 21083.4, subd. (a).)
In reviewing the legislative history of section 21083.4, of which we take judicial notice on our own motion, we observe that as introduced, Senate Bill 1334 included a definition of “conversion,” as applied to oak woodlands. This word was defined in this context to mean “cutting or removing 30 percent or more of the canopy from an oak woodland and changing the land use so that the converted acreage will not sustain oak species functioning as a biological unit in the future, or undertaking an activity within the dripline of an oak tree in order to convert the land into another use.” (Sen. Bill. No. 1334, Introduced by Senator Kuehl, February 18, 2004, at p. 99, § 2(b)(1.) “Oak woodlands” was defined when the bill was introduced to mean “a tree habitat with five or more oak trees per acre, except for valley oaks (Quercus lobata) that include one or more trees per acre.” (Id. at § 2(b)(3).)
In construing the term “oak woodlands,” we observe that the statute, in an unrelated provision, refers to the Oak Woodlands Conservation Act, Fish and Game Code section 1360, et seq. (§ 21083, subd. (c).) Part of this Act, section 1361, subdivision (h), of the Fish and Game Code, provides the only statutory definition of “oak woodlands.” It defines that term to mean “an oak stand with a greater than 10 percent canopy cover or that may have historically supported greater than 10 percent canopy cover.” This section does not define “stand” but the dictionary definition of this word in this context is “a group of plants growing in a continuous area.” (Merriam Webster’s Coll. Dict. (10th ed. 2001) p. 1142.) If applied to the oak understory here, this statutory definition from the Fish and Game Code means that the project site would qualify as oak woodlands. But in order for section 21083.4 to apply, a county must determine that the project “may result in a conversion of oak woodlands that will have a significant effect on the environment.” (§ 21083.4, subd. (b).)
Though not included in the legislation as ultimately enacted, earlier versions of Senate Bill 1334 also added a new section 1373 to this Act, which concerned the subject of counties developing voluntary oak conservation mitigation alternatives for oak woodlands proposed to be converted to other agricultural uses. (Sen. Bill No. 1334, Introduced by Senator Kuehl, as amended in Assembly June 7, 2004, p. 95.) This fact also reflects that the Oak Woodlands Conservation Act is related in subject matter to the goals and policies sought to be achieved by the Legislature’s ultimate enactment of section 21083.4.
The noun “conversion,” according to its dictionary definition, means “the act of converting: the process of being converted” or “something converted from one use to another.” (Merriam Websters, supra, at p. 253.) The verb “to convert” likewise means “to change from one form or function to another” (Ibid.) Thus, to convert oak woodlands is to transform it from woodlands to something else. If “oak woodlands” means an oak stand of greater than 10 percent canopy cover, then this project, the site of which is located in a residential neighborhood already zoned as such, does not result in a “conversion” of oak woodlands because more than 10 percent oak canopy cover in the understory will remain after its construction.
Even if the project may result in the conversion of oak woodlands, the County determined that it would not have a significant effect on the environment, which would include oak woodlands. The Chinns have not pointed to what amounts to substantial evidence on the basis of the whole record of a fair argument that the project will (not “may” here) result in such effect. (§ 21083.4, subd. (b).) Therefore, this determination by the County was appropriate and it prevents the further application of section 21083.4 requiring one or more specified mitigation measures. (Ibid.) And even if the project may result in a conversion of oak woodlands that will have a significant effect on the environment, the County in any event imposed mitigation measures that it developed as conditions of approval, satisfying the statutory mitigation requirements. While the Chinns challenge as ineffective, unenforceable, and improper the single condition requiring transplantation of removed trees, if possible, as determined by the Cateys’ forester (condition 9), they do not challenge the other applicable mitigation conditions, which separately render the approval of the project compliant with section 21083.4, if it applies at all.
Accordingly, we reject the Chinns’ claim that the County violated section 21083.4 in approving the Catey project.
VI. The IS Was Adequate Under CEQA
The Chinns assert that the IS and the revised IS were inadequate in numerous respects. In essence, their claims disregard the principle that an initial study need not amount to a “full-blown EIR based on expert studies of all potential environmental impacts.” (Leonoff, supra, 222 Cal.App.3d at p. 1347; Guidelines, § 15063, subd. (a)(3).) They also overlook the rule that where the lead agency’s decision is “based on more information than the initial study, the additional information may cure any defects in the initial study. [Citation.] . . . It is not the case . . . that a negative declaration is necessarily invalid if based on a defective initial study.” (Leonoff, supra, at p. 1348.) Moreover, “the ultimate issue is not the validity of the initial study, but rather the validity of the lead agency’s adoption of a negative declaration. Even if the initial study fails to cite evidentiary support for its findings, ‘it remains the appellant’s burden to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact.’ [Citation.]” (Gentry v. City of Murrieta, supra, 36 Cal.App.4th at p. 1379.) The Chinns have failed in this essential regard.
We focus on their claims relative to the revised IS since that superseded the prior document.
The Chinns begin their litany of alleged deficiencies with the contention that the project description was defective in “failing to adequately describe the location of the proposed house in the context of the neighborhood” and that it “omitted any description of the size, configuration, massing, floor area, height, and proposed drainage improvements relative to the unique nature of the Project Site.” Based on our review of the revised IS, and referenced documents that were available with it, these contentions are without merit. They further claim that the revised IS “failed to include adequate environmental information or undertake an adequate analysis of the impacts of tree removal” and “failed to adequately address relative tree loss in relationship to the total number [of] trees on the property.” These claims too are without merit and we give them short shrift, especially in view of the principles and legal authorities cited above, coupled with the content of the administrative record here, including the comprehensive FMP, which makes clear that the trees to be removed and those that will remain are located both on the Catey property and in the adjacent Pebble Beach right of way.
The Chinns go on to complain that the revised IS did not “provide any information or analyses with respect to whether the amount of tree removal satisfied the requirements of MCC section 21.64.260.D[], i.e., whether the proposed tree removal was ‘the minimum required under the circumstances of the case.’ ” Contrary to this contention, the revised IS states that the project conforms to the policies and regulations of the zoning ordinance, of which this specific section is a part. The IS was not required to quote particular language from the ordinance itself and the balance of the administrative record amply fills in any gaps that the Chinns claim exist.
The Chinns next contend that the revised IS failed to adequately address the project’s compliance with local land use regulations. But, as we have said, the document indicated that the project conformed to “the policies and regulations of the Greater Monterey Peninsula Area Plan and Title 21 Zoning Ordinance.” And documents accompanying the revised IS, as well as the balance of the administrative record before the Board of Supervisors, sufficiently address this topic and overcome any deficiencies to which the Chinns refer in amplifying this claim.
Finally, the Chinns complain that the revised IS failed to address “cumulative impacts associated with the loss of trees,” of which they identify none. The revised IS did address cumulative impacts in its mandatory findings of significance, concluding that there would be none. Even if there is a lack of study of cumulative impacts demonstrated in the record, that “ ‘ “is hardly evidence that there will be a significant impact.” ’ ” (Gentry v. City of Murrieta, supra, 36 Cal.App.4th at p. 1379; Leonoff, supra, 222 Cal.App.4th at p. 1354; see also Silveira v. Las Gallinas Valley Sanitary Dist. (1997) 54 Cal.App.4th 980, 992.) Since the Chinns point to no specific cumulative impacts that were incorrectly or insufficiently addressed, and there is no substantial evidence in the administrative record of a fair argument that any cumulative impacts may have a significant effect on the environment, we conclude that their claim in this regard fails to show that the ND should be invalidated or that an EIR must be prepared.
In sum, the Chinns have failed to show that the revised IS was inadequate. A general level of brevity in the IS is acceptable under CEQA and is all that is called for by applicable Guidelines. (Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, 131 Cal.App.4th at pp. 1191-1192; Guidelines, § 15063, subd. (d), App. G.) Any alleged deficiencies to which they point were remedied throughout the course of the administrative process, which is illustrated in the record by the considerable amount of evidence before the Board of Supervisors when it approved the project. (Leonoff, supra, 222 Cal.App.4th at p. 1348.)
VII. There Was No Violation of the Monterey County Code
A. MCC Section 21.64.260
As noted, MCC section 21.64.260 concerns preservation of oak and other protected trees. For the removal of more than three protected trees, the section requires, among other things, the submission of a forest management plan and approval of a use permit by the Planning Commission. (MCC, § 21.64.260.D.3a.) The section further provides that all such tree removal requests “shall be subject to the requirements of” CEQA. (MCC, § 21.64.260.D.3d.) It also requires relocation or replacement of each removed tree unless “such replacement would be detrimental to the long-term health and maintenance of the remaining habitat.” (MCC, § 21.64.260.D.4.) And in order to grant the use permit, the appropriate authority shall find on the basis of substantial evidence that “[t]he tree removal is the minimum required under the circumstances of the case” and, as applicable here, the tree removal will not involve a risk of adverse environmental impacts such as soil erosion, water quality, ecological impacts, noise pollution, air movement, and wildlife habitat. (MCC, § 21.64.260.D.5(a).) The section further provides that reasonable conditions of approval may be attached to any permit “to mitigate environmental impacts and ensure compliance with” this section. (MCC, § 21.64.260.D.6.)
In issuing the use permit to the Cateys, the Board of Supervisors here made the required findings that “tree removal is the minimum required under the facts and circumstances of this case; and the removal will not involve a risk of adverse environmental impacts such as: soil erosion; water quality; ecological impacts; noise pollution; air movement; and wildlife habitat.”
In support of these findings, the Board cited, among other things, that the FMP determined that the number of trees to be removed “is the minimum required under the proposed building design.” It also cited staff’s concurrence with this determination after site visits and evidence in the record, given that (1) the Catey house “has a relatively small footprint that is sited within the only area available within the zoning setbacks”; (2) the project will retain more trees than contained on most of the surrounding properties; (3) the project only contains a 2,836 square foot building footprint compared to the 3,780 square feet allowed; (4) the size of the house is comparable to other homes in the area; (5) tree replacement is not recommended on this small, densely forested lot but the forester does recommend the maintenance of existing seedlings to promote native regeneration and tree protection measures have been incorporated as conditions of approval; and (6) a condition has been added that all trees that can be donated off-site be donated for use in the same general area to retain the same genetic species.
Thus, although the FMP determined that the tree removal was the minimum required under the proposed building design, the Board concluded, consistently with MCC section 21.64.260, that the removal was the minimum required under “the facts and circumstances of this case.” Among the evidence in the record on this point was staff’s review of alternate placements of the house on the lot as suggested by the Chinns and their experts, and staff’s conclusions that the alternate placements advocated would require the removal of “around the same number of trees,” would require a variance, and would negatively affect the “screening” of the house by the remaining trees from the perspective of common or public viewing areas around the site. Staff also concluded that the Chinns and their experts had not taken into account “tree removal for the driveway” or “trees that are close to the house foundation.” And the tree removal and project approval was conditioned on mitigation measures with respect to tree protection as recommended by forester Glenn Flamik.
Despite the Board’s findings, the Chinns contend that the County applied the wrong standard, approving the tree removal only because it was the minimum required under the proposed building design rather than under the circumstances of the case. But a review of the record demonstrates that this is not so. And the Chinns’ interpretation of what it means to conclude that the tree removal is the “minimum required under the circumstances of the case” ignores those very circumstances, which the appropriate authority must naturally balance in the determination whether to grant a use permit. We agree with Douglas Catey’s comments to the Board that this interpretation would mean not building a house at all on this lot because that would reduce the number of trees to be removed to zero. Moreover, “[u]nder well-established law, an agency’s view of the meaning and scope of its own ordinance is entitled to great weight unless it is clearly erroneous or unauthorized. [Citations.]” (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1015.)
Whether we review the Chinns’ claim that the County violated MCC section 21.64.260 under the CEQA fair argument standard or under the more deferential review of the County’s action under Code of Civil Procedure section 1094.5, we come to the same conclusion—the Chinns have not demonstrated that the County abused its discretion. We have already concluded under a CEQA analysis that the record does not contain substantial evidence of a fair argument that the tree removal may have a significant effect on the environment. We now add to that our conclusion that based on the whole record, substantial evidence, notably that specifically cited by the County, supports its findings with respect to compliance with MCC section 21.64.260 and these findings support its determination that the proposed tree removal was the minimum required under the circumstances of the case. Contrary to the Chinns’ contentions, it is irrelevant that evidence, however insubstantial, appears in the record to the effect that other alternatives, however infeasible, would have reduced, however minimally, the number of trees to be removed. The bottom line is that we cannot conclude that based on the evidence before the County, a reasonable person could not have reached the same determination and the Chinns have not demonstrated that no substantial evidence supports the Board’s conclusion. Therefore, we reject their contention that the County violated MCC section 21.64.260.
B. MCC Section 21.44.060
As part of their argument that the record contains substantial evidence of a fair argument that the project, as opposed to just the tree removal request, may have a significant effect on the environment, the Chinns assert that the house “size and location does not protect the neighborhood character and therefore violates the provisions of Chapter 21.44 of the County Code.” In support of this argument, the Chinns cite to “both expert opinions and abundant testimony and correspondence from multiple neighbors opposing the [p]roject.” We review the Chinns’ challenge to project approval under local regulations governing design control not under CEQA but by applying the deferential standard of review governing mandamus proceedings under Code of Civil Procedure section 1094.5.
MCC section 21.44.010, which is a part of the County’s Zoning Ordinance, provides that the “purpose of this Chapter [concerning regulations for design control zoning districts] is to provide a district for the regulation of the location, size, configuration, materials, and colors of the structures and fences … in those areas of the County of Monterey where the design review of structures is appropriate to assure protection of the public viewshed, neighborhood character, and to assure the visual integrity of certain developments without imposing undue restrictions on private property.” Section 21.44.060 provides that the appropriate authority “shall consider the size, configuration, materials and colors of the proposed structures to assure that they will comply with the provisions of Section 21.44.010.”
In approving the project, the County found that the use permit and design approval “as conditioned are consistent with applicable plans, policies, requirements, and standards of the Monterey County General Plan, the Greater Monterey Peninsula Area Plan, and the Monterey County Zoning Ordinance (Title 21).” In support of this finding, the County cited that staff had reviewed the project for consistency with local regulations and had conducted site inspections and that the Del Monte Forest Land Use Advisory Commission had voted unanimously to approve it. Staff also concurred with that approval because the building plans and staff’s site visits “demonstrate that colors and materials are subordinate to and blend into the character of the neighborhood, and the proposed location best screens the structure from public view.” Individual members of the Board of Supervisors also visited the site and concluded that the Catey residence was aesthetically consistent with the neighborhood.
The County also found that the “subject property is in compliance with all rules and regulations pertaining to zoning uses, subdivision and any other applicable provisions of the County’s zoning ordinance. No violations exist on the property.” In support of this finding, the County cited the MCC and the fact that staff had reviewed the project for compliance.
The County also responded to the Chinns’ contention that the project violated the zoning ordinance by noting the design control zoning provisions cited above and stating that “[a] design approval application was submitted to the Planning and Building Inspection Department with site plans and elevation. This application was referred to the Del Monte Forest Advisory Committee for a recommendation to the Planning Commission, as required in Chapter 21.44 of Title 21. The Advisory committee recommended approval of the project by a vote of 4-0. The project site is not located in the public viewshed based on Monterey County Planning and Building Inspection resource maps and staff site review found the proposed structure consistent with other homes in the area. Therefore this project is consistent with Chapter 21.44 of Title 21 of the Zoning Ordinance. [¶] The proposal is consistent with the Floor Area Ratio standards. The Floor Area Ratio allowed in the Medium Density Residential zoning district is 35 percent. The Floor Area Ratio for this project is 34.6 percent.”
And in response to the Chinns’ claim that the project will be “detrimental and injurious to property and improvements in the neighborhood,” the County reiterated that “[a]ll Monterey County Departments, the Public Works Department, Water Resources Agency, Environmental Health Department, Parks Department, Pebble Beach Community Services District, and Planning and Building Inspection Department have reviewed the proposal and found it in compliance with all regulations and requirements of County Code.”
In addition to these findings, supporting evidence, and responses, the administrative record contains substantial evidence in the form of staff comments and photo demonstrations as well as comments from interested parties that the Catey house blended in with the neighborhood character and did not exceed nearby homes in terms of size or floor area ratio.
Against this substantial evidence, the Chinns cite the opinion of Bill Mefford that the house did not fit into the character of the neighborhood, the opinions of the two realtors that the house would threaten the Chinns’ privacy and therefore lower their property’s value, and the comments of neighbors who opposed the project. As to this evidence, the County found that the “emotional undertones of the dispute [diminish] the credibility of the [Chinns’] witnesses’ testimony.” This undertone had also been observed by the Del Monte Forest Land Use Advisory Committee, which had noted from neighbors’ comments that it “became noticeable that the neighborhood members did not want to [lose] this vacant area.”
Based on the applicable standard of review, the issue here is not whether there is substantial evidence, however credible, in the record which goes against the County’s decision to find the project compliant with the applicable zoning ordinance and therefore approve it. It is instead whether the County’s findings are supported by substantial evidence and whether the findings support its decision. Based on our review of the record, including the evidence cited above in support of the County’s decision, the answer to this inquiry is yes. Based thereon, the County did not abuse its discretion in finding as it did that the project satisfied all aspects of the County’s zoning ordinance, including MCC section 21.44.060.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.
ADDENDUM A
Image Omitted
ADDENDUM B
Image Omitted
This raises the specter of the mootness of this appeal, an issue we asked the parties to address by supplemental briefing. Because the trees have already been lawfully removed and this is not a phased project, which together threaten the effectiveness of any appellate relief this court might afford, we view this to be a close question in this particular case under Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, 378. We further view this case as factually distinguishable from Arviv Enterprises, Inc. v. South Valley Area Planning Commission (2002) 101 Cal.App.4th 1333, 1346-1347, Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 889, and Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 641, upon which the Chinns rely. We nevertheless proceed to the merits in light of section 21167.3, subdivision (b), which provides that an applicant shall proceed with the project under these circumstances at his or her own risk pending final determination of this proceeding. We further do so in acknowledgment of the views of those courts which have previously rejected claims of mootness in matters involving the principles and interpretation of CEQA on the premise that these matters address issues that are of public importance and that are likely to recur in the future. (See, e.g., Friends of Cuyamaca Valley v. Lake Cuyamaca Recreation & Park Dist. (1994) 28 Cal.App.4th 419, 424-425; Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892, 900, fn. 3.)