Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PT 05-54
NICHOLSON, J.
A group of neighbors challenged approval by the City of Davis (the City) of a 38-bed residential community for college students to be located on “fraternity row,” a four-lane thoroughfare that borders a university. The group claimed the City violated the California Environmental Quality Act by reviewing the project by means of a mitigated negative declaration instead of an environmental impact report. We conclude there was no substantial evidence on which a fair argument could be made showing this infill project would create significant adverse impacts to the physical environment. We affirm the trial court’s denial of the group’s petition for writ of mandate.
FACTS
Real party in interest Cal Aggie Christian Association (Association) is a nonprofit organization providing ecumenical ministry services to the students, faculty, and staff of the University of California, Davis. Since 1953, its offices have been located on two adjacent parcels at 433 and 435 Russell Boulevard, across the street from campus, in a 3,300 square foot house built in the 1930’s. The building is referred to as CA House.
The two parcels comprise approximately 0.8 acres. CA House sits on the southern parcel facing Russell Boulevard. The stately older homes along Russell Boulevard have been referred to as “fraternity row.” CA House’s western and eastern neighbors along Russell Boulevard consist of group residential and institutional uses affiliated with the campus, including at least 10 fraternities and sororities.
The northern, landlocked parcel is vacant. It abuts on the rear property lines of three single-family homes located on Elmwood Drive. A residence on Elm Lane borders the vacant parcel’s west boundary. A map of the immediate area is attached as an appendix.
The City’s general plan designates both parcels as residential low density. The southern parcel is zoned residential restricted, which allows university living groups as a conditional use. The northern parcel is zoned planned development 13-80 for single-family residential use. Residential restricted is the predominant zoning district along this area of Russell Boulevard. Its purpose is to “stabilize and protect the residential character of the district, to promote university oriented uses and to insure that new uses harmonize with the existing development in terms of architectural design and landscape plan.”
Since 2001, five people have lived at CA House in rooms located on the second floor. The ground floor is used as meeting space for community groups, living space for the residents, and office and meeting space for the CA House staff and executive director.
In March 2004, the Association applied for land use permits to expand CA House. It desired to create what it terms an “intentional community,” where college students of different faiths would live together in a cooperative environment. Residents would commit to weekly community meals, quarterly meetings with spiritual leaders of their choice, and community service. The Association also sought to use the expansion as an additional source of revenue.
Originally, plans called for merging the two parcels and constructing behind the existing house six two-story houses of approximately 1,800 square feet each, a total of 11,162 square feet. The buildings would provide housing for 44 students. Some of the beds would be available for low and very low income students. The buildings would face an inner courtyard, a feature designed to minimize noise and activity on the perimeter of the property. 25 parking spaces would be provided on site, with most of those existing between the new houses and the north property line adjoining the Elmwood Drive residences. Six spaces would be reserved for staff, and 19 would be available for residents.
The existing CA House would be remodeled to provide offices for staff, meeting rooms and dining facilities. Four of the bedrooms would be eliminated as part of the interior renovation.
The project required numerous approvals from the City, including a lot line merger, an amendment to the City’s general plan changing the site’s land use designation from residential low density to residential medium density, an amendment to the site’s zoning changing the south parcel’s residential restricted designation and the north parcel’s single-family residential designation to a new planned development district, a conditional use permit, and a final planned development to establish final zoning standards for the project.
In meetings with the Association, residents of Elmwood Drive opposed the project, claiming the project’s proposed density was incompatible with their single-family neighborhood. In response, the Association in May 2004 revised its plans. It reduced the size of the six houses to approximately 1,600 square feet each for a total construction of approximately 10,000 square feet, and it designed them to be attached in two groups of three houses each. It also reduced the number of beds from 44 to 38 in 34 bedrooms. All five bedrooms in the existing CA House would be eliminated and those residents would be moved into the new houses. The project would result in a net addition of 33 people residing on the site.
26 parking spaces would be provided on-site, an addition of one space from the original plans. Six spaces would be for use by staff and an additional space would be reserved for parking an electric vehicle available for use by residents. The remaining 19 spaces would be available for residents. An additional 19 spaces would be available to residents off-site at a nearby church except on Sundays. The Association also hoped to be able to utilize free parking on Sundays at a nearby garage on the UC campus.
Reviewing the project pursuant to the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA), city staff conducted studies on the project’s potential impacts on plant and animal life on the site, and on the noise and traffic impacts the project might create. Those studies concluded the project would not create significant impacts in those subject areas. Analysis by staff in its initial study also determined the project would not create significant impacts involving aesthetics, agriculture, air resources, mineral resources, water resources, geology and soils, cultural and historic resources, population and housing, public services, and public utilities and facilities. Any potential impacts in those areas would be addressed by standard conditions of approval.
All further undesignated section references are to the Public Resources Code.
Regarding density, the initial study asked whether the project would conflict with any applicable land use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental impact. Staff noted the project would require amendments to the general plan to allow for the increased density but the basic land use remained residential. Based on this fact, staff concluded the project did not conflict with any general plan policy or zoning ordinance adopted for the purpose of avoiding or mitigating an environmental effect.
This question is derived from appendix G of the CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), which provides a form for agencies to use when conducting their initial environmental review of a project. Projects with potential impacts matching the appendix G list are generally presumed to have potentially significant effects. (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1604 (Quail).)
Staff was concerned, however, about the amount of on-site parking the project would provide. 26 spaces for residents did not satisfy the zoning requirement of 33 spaces for 38 beds in a group living arrangement combined with an office. Staff also believed CA House’s proposal to utilize parking at a nearby church and the university, while legitimate, had many limitations. To remedy parking deficiencies as well as density issues, staff proposed reconfiguring the project’s design by limiting the number of beds to 30, moving the structures next to the north property line, and relocating the parking in the area between CA House and the new structures. Staff believed this would reduce environmental impacts to a level of insignificance. We will discuss staff’s proposal in greater detail below.
Based on its initial study, staff determined the project, as staff proposed it to be mitigated, would not create a significant impact on the environment. Staff prepared a negative declaration to that effect.
On October 20, 2004, the City’s planning commission rejected staff’s proposed reconfiguration of the project. It recommended approving the project as proposed by the Association by a vote of five-to-one.
In November 2004, city staff prepared and recirculated a revised initial study and mitigated negative declaration. This negative declaration recommended new mitigation measures which staff believed would reduce any environmental impacts caused by the Association’s project design to a level of insignificance. These measures included providing two additional on-site parking spaces and a second electric vehicle for residents to use.
The revised initial study stated the 38-bed project designed by the Association would not conflict with any applicable land use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect. It explained: “The proposed project requires a land use change relative to density. However, the basic land use remains residential in nature. The adjacent uses are predominantly residential. There is neighborhood opposition to the proposed density. However, staff has not identified any significant impacts on land use and planning that have not been addressed through mitigation measures and conditions of approval on the entitlement applications. The subject project has been considered in the context of various General Plan policies that both encourage infill development and consideration of neighborhood character in terms of scale, density, etc. The subject site is a transition area between higher intensity University uses to the south and lower intensity residential uses to the north, northwest and northeast. In order for the requested entitlements to be approved, it will have to be determined that the project is appropriate in such a location. The project has been designed to facilitate such a determination.”
On December 7 and 14, 2004, the city council held two public hearings to consider the project. In between the hearings, the Association met with Elmwood Drive residents to try to resolve some of their concerns. The Association agreed to revise the building design to provide additional privacy to the western neighbor who resided on Elm Lane, but this did not satisfy all of the residents’ concerns.
Following the close of the second hearing, the council adopted the revised mitigated negative declaration and approved all of the necessary land use approvals for the project by a vote of four-to-one. The council determined the project was consistent with general plan policies calling for sensitive infill housing development, architectural “fit” with the scale and use of surrounding structures, uses that serve the public need and convenience, and respect for existing uses and privacy of adjacent parcels.
As a condition of approval, the council limited occupancy of the new houses to 34 residents, and it authorized the existing structure upon remodeling to include space for four additional residents. Ten beds in the project were to be reserved for low and very low income students.
The city council also required the project to provide 33 on-site parking spaces, the minimum number required by the City’s parking ordinance. Eight were for office use, two were for the electric vehicles, and the remaining 23 were for residents. The Association agreed it would restrict vehicle ownership to only 23 of its residents through their lease agreements. The off-site parking plan for using the UC and church lots was approved as part of the project’s parking standards, but the Association was required to revise the plan given a likelihood UC would not allow use of its lot.
The Association and the City also agreed the Association would construct a seven-foot masonry wall along the northern, eastern and western property lines.
Plaintiff Elmwood Neighborhood Association (ENA) is an unincorporated association of people who reside on Elmwood Drive and Elm Lane. On January 14, 2005, ENA filed a petition for writ of mandate challenging the City’s approval of the project. ENA alleged the City violated CEQA by not preparing an environmental impact report (EIR) and by approving the project based on the mitigated negative declaration.
The trial court determined the City did not violate CEQA. It concluded there was no substantial evidence to support a fair argument the project would cause any significant environmental impacts, an EIR was not required, and the City did not violate CEQA by adopting the mitigated negative declaration.
ENA appeals from the trial court’s decision, claiming it presented substantial evidence on which a fair argument could be based showing the project may have a significant effect on the environment, and thus an EIR was required. ENA specifically targets the project’s (1) density and related impacts on existing land uses; (2) its potential effects on transportation and parking; and (3) its compliance with interim infill guidelines adopted by the City.
DISCUSSION
I
Standard of Review
We review the record de novo to determine whether the City prejudicially abused its discretion when it determined not to prepare an EIR and to approve the project based on the mitigated negative declaration. Under CEQA, an abuse of discretion occurs if the City did not proceed in the manner required by law, its decision was not adequately supported by findings, or its findings were not supported by substantial evidence in light of the whole record. (§§ 21168, 21168.5.)
We recently addressed this issue in Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 (Pocket Protectors), and quote its discussion of the appropriate standard of review at length: “‘With certain limited exceptions, a public agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project “may have a significant effect on the environment.” (§§ 21100, 21151, 21080, 21082.2 [fair argument standard]; [CEQA] Guidelines, §§ 15002, subd. (f)(1), (2), 15063; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75 [fair argument standard of review] [(No Oil)].) “‘Significant effect on the environment’ means a substantial, or potentially substantial, adverse change in the environment.” (§ 21068; see also Guidelines, § 15382.)’ (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123, fn. omitted.)
All references to the Guidelines, CEQA’s implementing regulations, are to title 14 of the California Code of Regulations.
“If there is substantial evidence in the whole record supporting a fair argument that a project may have a significant nonmitigable effect on the environment, the lead agency shall prepare an EIR, even though it may also be presented with other substantial evidence that the project will not have a significant effect. (§ 21151, subd. (a); [Guidelines] § 15064, subd. (f)(1), (2); No Oil, supra, 13 Cal.3d 68, 75; Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1109 (Architectural Heritage Assn.); Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 111-112.) ‘May’ means a reasonable possibility. (§§ 21082.2, subd. (a), 21100, 21151, subd. (a); League for Protection of Oakland's etc. Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 904-905 (League for Protection).)
“‘Substantial evidence’ means ‘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.’ (Guidelines, § 15384, subd. (a).) Substantial evidence ‘shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.’ (Guidelines, § 15384, subd. (b).) ‘Argument, 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 does not constitute substantial evidence.’ (Guidelines, § 15384, subd. (a).)
“The fair argument standard is a ‘low threshold’ test for requiring the preparation of an EIR. (No Oil, supra, 13 Cal.3d 68, 84; League for Protection, supra, 12 Cal.App.4th 896, 905; Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316-1317; Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872, 881 [].) It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency’s determination. Review is de novo, with a preference for resolving doubts in favor of environmental review. (Architectural Heritage Assn., supra, 122 Cal.App.4th at p. 1110; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 617-618 (San Joaquin Raptor); Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 151 []; Quail[, supra,]29 Cal.App.4th [at pp.] 1602-1603 [].)
“Although our review is de novo and nondeferential, however, we must ‘“giv[e] [the lead agency] the benefit of [the] doubt on any legitimate, disputed issues of credibility.”’ (San Joaquin Raptor, supra, 42 Cal.App.4th 608, 617, quoting Quail, supra, 29 Cal.App.4th 1597, 1603, first and third brackets added.) The lead agency has discretion to determine whether evidence offered by the citizens claiming a fair argument exists meets CEQA’s definition of ‘substantial evidence.’ (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 499, fn. 2; Citizens’ Com. to Save Our Village v. City of Claremont (1995) 37 Cal.App.4th 1157, 1170-1171 [].)
“Relevant personal observations of area residents on nontechnical subjects may qualify as substantial evidence for a fair argument. (Ocean View Estates Homeowner’s Assn, Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402 []; Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th 1333, 1347 [].) So may expert opinion if supported by facts, even if not based on specific observations as to the site under review. (Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1398-1399 & fn. 10 [] [expert testimony for fair argument purposes need not meet standard required of such testimony at trial].) Where such expert opinions clash, an EIR should be done. (Guidelines, § 15064, subd. (g).)
“On the other hand, mere argument, speculation, and unsubstantiated opinion, even expert opinion, is not substantial evidence for a fair argument. (§ 21082.2, subd. (c); Guidelines, § 15384, subd. (a); Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 Cal.App.4th 786, 798 []; Apartment Assn. of Greater Los Angeles v. City of Los Angeles (2001) 90 Cal.App.4th 1162, 1176 []; Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 580 [].) ‘The existence of public controversy over the environmental effects of a project shall not require preparation of an environmental impact report 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); see San Joaquin Raptor, supra, 42 Cal.App.4th 608, 622.) Neither is the mere possibility of adverse impact on a few people, as opposed to the environment in general. (Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 734 (Ukiah).)” (Pocket Protectors, supra, 124 Cal.App.4th at pp. 927-929, fns. omitted, italics in original.)
II
Density
ENA argues an EIR was required because there was substantial evidence to support a fair argument the project’s density was incompatible with the surrounding neighborhood. It claims the incompatibility is shown by: (1) the project’s inconsistency with preexisting land use and zoning regulations and the necessity to amend them to allow the project to proceed; (2) the density of surrounding group living uses, which, allegedly, is significantly less than the proposed project’s density; and (3) statements in a city staff report that reducing the number of beds in the project from 38 to 30 would reduce the impact to a less than significant level. We disagree with ENA, and conclude there was no substantial evidence on which a fair argument could be based to trigger preparation of an EIR.
A. Additional background information
The existing general plan land use designation for the site, residential low density, allowed a maximum density of 17.26 beds, which number includes a density bonus due to the provision of affordable housing. The requested general plan designation, residential medium density, allows for a maximum of 40.3 beds if affordable housing is provided.
The single-family zoning on the back parcel, planned development #13-80 (single-family), allowed one one-story residence and 2 parking spaces if the structure was used for residential purposes. A “presumed intent” of the single-family zoning was to provide a buffer between the living group on the south parcel and the single-family homes on Elmwood Drive to the north.
Staff stated the project would not be possible under conventional zoning. The new proposed zoning, planned development, allows for more flexibility. “It allows diversification in the relationship of various buildings, structures and open spaces in order to be relieved from the rigid standards of conventional zoning.”
In an October 15, 2004, staff report prepared for the planning commission, staff acknowledged the project’s density was the biggest concern raised by neighbors and project opponents. To address the neighbors’ concern, staff’s concern about parking, and, in its opinion, to meet the purpose of the original single-family zoning on the northern parcel, staff proposed a major revision to the project. As already mentioned, it proposed limiting the number of residents in the project to 30, moving the structures to the rear of the site, and changing the parking from the rear to the middle of the site, between the existing house and the new houses. This created a larger landscaped area adjacent to the rear property line in keeping with the rear yard setback requirement of the existing single-family zoning.
Staff compared the project’s density with neighboring group living arrangements. This project would have more beds than any of the other group homes. However, staff noted some of the neighboring uses had a greater number of beds relative to size than the 30 beds staff proposed for this project or the 38 proposed by the Association. Staff did not actually calculate the number of beds per acre at each site, but it provided a table showing the number of beds per group home and the size of each parcel. In its opening brief here, the City and the Association used the raw data in that table to calculate the number of beds per acre for each listed group home. We have done the same for the proposed project. The results show one group home has more beds per acre than the proposed project, and three have more beds per acre than staff’s proposed downsizing of the project. The remaining homes have fewer beds per acre. The results are as follows:
Address
Beds
Lot size (acres)
Beds/acre
101 Russell (fraternity)
20
0.533
37.5
217 Russell (fraternity)
26
0.405
64.2
225 Russell (sorority)
10
0.405
24.7
235 Russell (sorority)
6
0.404
14.9
311 Russell (sorority)
10
0.397
25.2
319 Russell (townhouses)
15
0.396
37.9
327 Russell (sorority)
10
0.388
25.8
433-435 Russell (existing CA House)
5
0.8
6.25
(staff’s 30-bed project)
30
0.8
37.5
(proposed 38-bed project)
38
0.8
47.5
445 Russell (sorority)
13
0.451
28.8
501 Russell (fraternity)
24
0.574
41.8
513 Russell (sorority)
8
0.224
35.7
521 Russell (fraternity)
18
1.129
15.9
539 Russell (Islamic Center)
2
0.284
7.0
The staff report continued: “The number of potential residents for the proposed project that staff considers reasonable is 30 . . . . Given the existing 3,300 square feet building is currently allowed up to 9 residents, and five residents occupy it in addition to the office use, staff believes that permitting a maximum of 30 beds/bedrooms is appropriate. Should there become a need to reduce the amount of space devoted to the office use and a portion of the building is reverted to residential, it would be consistent with the Residential Medium Density designation. Considering the existing 3,300 square feet building that could be used for residential to accommodate up to 9 residents, it is reasonable to permit additional 30 beds, which brings the total beds count to 39. This number is consistent with the maximum density allowable on the site [under the requested new general plan designation].” (Italics added.)
Staff continued on to discuss the issue of density: “The key issue for most neighbors is that the proposed density does not reflect existing densities within the area. Staff concurs with that 38 residents plus the office use on 0.8 acre site is significant. As a result, staff recommends that the maximum allowable number of beds be at 30 instead of 38 currently proposed by the applicant. . . . The staff proposal is based on judgment and the General Plan Residential Medium Density land use category base density.”
Staff was also concerned with the amount of parking the project would provide. Staff applied the parking standards for offices, fraternities and sororities to the project, and determined the project would have to provide a total of 33 parking spaces on-site; 25 for residents and eight for the office. The Association was proposing 28 spaces. Staff’s proposal to limit the number of residents to 30 would result in the zoning requiring 28 on-site spaces; 20 for residents and eight for the office.
Staff relied upon its proposed revision of the project and reduction of the total beds to 30, plus the project’s compliance with other general plan polices, to recommend the planning commission approve the project and its related land use approvals: “[T]he proposed project will add to the broad range of housing types, configurations and densities in the area and the city. The project focuses growth inward. It redevelops an underutilized site. The project design provides for energy conserving features, such as the shared electric vehicle concept. The location of the site promotes the use of alternative transportation relative to the intended end users, students. The proposed project is a short walking distance away from the UC Davis campus.” Staff believed that along with standard conditions of approval, “the reduction of the number of beds/bedrooms and the revised site plan suggested by staff would help reduce adverse neighborhood impacts to a less than significant level.”
The planning commission, however, rejected staff’s recommendations to reduce the number of beds to 30 and move the parking lot between the existing house and the new structures. It recommended 38 beds using the Association’s site plan. It also recommended construction of a seven-foot masonry sound wall on the rear property line to mitigate impacts to the residential neighbors, an additional electric vehicle for use by the residents, and prohibiting the existing building from being used for residential purposes.
When the project went before the city council in December 2004, staff included its October 15 staff report in its packet of information to the council members. It also included the revised initial study, the revised mitigated negative declaration, and a new staff report.
The new staff report explained the “focus of staff’s analysis and input received during neighborhood outreach was whether the density proposed by the applicant is compatible with the other residential uses in the area. One perspective is that proposed density is in conformity with the intent of General Plan policies dealing with infill intensification and densification. Another is that the density proposed may not be compatible because of the relationship of the portions of the lot where intensity of use could affect a nearby residential neighborhood and the potential lack of adequate off-street parking spaces. . . . Staff’s original recommendation was to reduce the number of beds from 38 to 30 in order to address parking issues and neighborhood concerns about the intensity of the proposed use. In considering the deliberations of the Planning Commission and in particular the discussion on parking management, controlling how many tenants that have cars through lease restrictions and shared electric vehicles, staff is comfortable endorsing the Planning Commission’s recommendation, although staff’s original recommendation is still a viable option if the Council is not fully comfortable with the parking program and potential impacts [on] adjoining residential neighbors.”
The new staff report and the revised initial study explained that in addition to the new conditions of approval recommended by the planning commission, staff was also proposing two additional parking spaces and limiting vehicle ownership to 21 residents. Staff concluded these “added conditions of approval and mitigation measures will reduce any impacts associated with the project, its intensity and inadequate parking to less than significant levels.”
B. Analysis
Only projects that may cause a “significant effect on the environment” require an EIR. (§§ 21100, 21151.) “‘Environment’” means the “physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, and objects of historic or aesthetic significance.” (§ 21060.5; Guidelines, § 15360.) A “‘significant effect on the environment’” means “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project . . . . An economic or social change by itself shall not be considered a significant effect on the environment.” (Guidelines, § 15382, italics added.) Even though density was ENA’s “biggest concern” and “key issue,” that fact alone did not convert density into an impact to the physical environment.
Indeed, a change in density, by itself, is not necessarily an adverse impact to the physical environment, particularly when it concerns an urban infill project such as this. The reported CEQA cases discussing density required an EIR not just because of the change in density, but because the evidence indicated the increased density would create substantial physical environmental impacts. For example, in City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, a county’s amendments to its general plan freed the county from complying with and imposing a city’s more restrictive density restrictions in areas within the city’s sphere of influence. As a result, development in the area would not have to comply with the city’s growth control limits. It would have to provide only three acres of park for every 1,000 residents, as compared with the city’s requirement of five acres for every 1,000 residents. Density would be calculated using a less restrictive formula. (Id. at p. 413.) The Court of Appeal determined the county’s amendments required review in an EIR, as the evidence showed development under the county’s general plan would reduce the amount of open space and adversely impact traffic and air quality. (Id. at p. 414.)
In City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, a local agency formation commission amended its guidelines to allow urban development to occur outside of cities and to be subject to the county’s general plan instead of a city’s more restrictive general plan. The Court of Appeal required the commission to review its action in an EIR. The new guidelines could result in, among other things, loss of open space and agricultural lands, greater consumption of land to accommodate the same level of population and economic activity, and increased energy consumption and pollution due to increased traveling. (Id. at pp. 541-543.)
In City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, a county rezoned 20 acres of land being used as a small resort. The new ordinance delineated six acres as wetlands to be protected from development, and it designated the remaining 14 acres for development of up to 65 residential units, an increase in the existing density. (Id. at pp. 232-235.) The Court of Appeal ruled the rezoning required an EIR because there was evidence the higher density would increase noise and pollution, and contribute heavy traffic onto poorly designed streets. (Id. at pp. 241, 246.)
In Pistoresi v. City of Madera (1982) 138 Cal.App.3d 284, a city annexed an undeveloped 32-acre parcel of prime agricultural land. Although the land had previously been zoned by the county to allow development of 32 homes, the city’s prezoning would allow approximately 310 homes. (Id. at pp. 285-286, 287.) The Court of Appeal ruled the annexation required an EIR. There was substantial evidence the annexation would accelerate conversion of the property from agriculture into residential uses and induce substantial population growth. (Id. at pp. 288-289.)
In each of these cases, the courts required an EIR because the potential change in density could have significantly and adversely impacted the physical environment. Here, there is no evidence the project may create significant adverse impacts to the physical environment. A traffic study determined the project would increase daily traffic volume on Russell Boulevard by a mere one-half of one percent. A noise study found all potential increases in ambient noise would be within accepted city standards. Supervisory staff will be on the premises at all times to anticipate and prevent unruly behavior by the student residents. A biological resources study determined there was no special-status plant or animal life on the site. In short, because of the project’s location within a highly urbanized area that is mostly improved with structures and infrastructure, city staff eventually and unambiguously determined the project would not create any significant adverse impacts to the physical environment. ENA has presented no substantial evidence to cast any doubt upon this conclusion.
Besides failing to show the project will substantially impact the physical environment, ENA also fails to demonstrate how the project’s purported adverse impacts will affect more than just the few residents whose properties adjoin to the rear of the CA House parcels. In order to trigger the requirement to prepare an EIR, the impact on the environment must adversely affect the environment of people in general, not the environment of particular people. (Cf. Pocket Protectors, supra, 124 Cal.App.4th at p. 936 [impacts affected “hundreds of nearby residents”]; Ukiah, supra, 2 Cal.App.4th at p. 734 [height, view and privacy objections raised by a few neighbors to construction of a single-family house did not trigger CEQA].) At worst, this project affects what the residents of four or five homes might see when they look out their rear windows and above the seven-foot masonry wall that will be constructed. This is not the type of environmental impact an EIR is required to address.
ENA argues the necessity to amend the general plan and zoning for the site is substantial evidence of a fair argument of environmental impact. ENA incorrectly claims our decision in Pocket Protectors so held. A project’s noncompliance with existing general plan and zoning land use designations is not, by itself, evidence of a fair argument that the project may have a significant effect on the environment. (Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1206-1207; see Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 577-578 [upheld city’s use of negative declaration to review proposed housing complex for senior citizens that did not conform to zoning rules on height, parking, lot coverage, and setbacks]; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 618-619, 622-623, 625-626 [upheld city’s use of negative declaration to review proposed amendment to general plan changing site’s designation from industrial to retail where evidence showed no significant, immitigable impact on traffic].)
In Pocket Protectors, we determined an EIR was required because the amendments to land use regulations required by that project could create significant impacts to the physical environment. The facts of that case are unique. The City of Sacramento approved a development project on 20.6 acres by means of a mitigated negative declaration. The project site consisted of separate narrow parcels running about one mile along Pocket Road and separated from the street by forty-foot-wide landscaped parkways. The developer proposed building 143 single-family homes on two rows of wide but shallow lots, bisected by a private street 25 feet wide. Unlike the homes already existing in the area, the new homes would have no setback from the front property line, and the houses in the rear rows would have as little as five feet separating them from the fence lines of existing homes. (Pocket Protectors, supra, 124 Cal.App.4th at pp. 908-910.)
City staff and the city council determined the project did not conflict with existing zoning and land use policies adopted to avoid or mitigate environmental effects when in fact it did. In an adopted planned unit development resolution for a 373-acre planned development, of which the 20-acre site was part, the 20-acre site had been designated for attached “townhouses and similar development,” not single-family detached houses. The policies also required the development to preserve greenery and open space by means of generous landscaping and setback requirements. The proposed project did not satisfy those requirements, either. The project would create a “canyon” effect by placing so many homes of similar scale so close together and with no front setback along the length of the site. The design left no room on the lots for large shade trees to be planted. Sidewalks would encroach upon the parkway. (Pocket Protectors, supra, 124 Cal.App.4th at pp. 930-931.)
We determined the city had adopted the planned unit development policies on the 20-acre site for purposes of avoiding or mitigating environmental effects within the 373-acre planned unit development. As a result, “if substantial evidence supports a fair argument that the proposed project conflicts with the polices of the [planned unit development], this constitutes grounds for requiring an EIR.” (Pocket Protectors, supra, 124 Cal.App.4th at p. 930.)
We concluded the proposed project’s inconsistency with the existing development policies created specifically with this project in mind, particularly the requirement for townhouses and the setback and landscaping requirements, constituted substantial evidence of a fair argument the project would create significant environmental effects. (Pocket Protectors, supra, 124 Cal.App.4th at pp. 931-933.) We voided the City’s approval of the mitigated negative declaration and directed the City to prepare an EIR. (Id. at pp. 936, 940.)
In contrast to Pocket Protectors, here, as already explained, there is no substantial evidence suggesting that amending the City’s general plan and zoning to allow the project will adversely impact the physical environment. ENA argues the existing zoning was to provide a buffer between the group homes along Russell Boulevard and the Elmwood neighborhood. That buffer, however, only benefited a few residences in the neighborhood. Unlike in Pocket Protectors, we cannot say the existing zoning was designed to prevent or mitigate environmental harm to the Elmwood community in general.
ENA asserts the proposed project’s density is incompatible with the surrounding neighborhood. The project would be incompatible with the Elmwood Drive neighborhood, but that is not the neighborhood in which the project is located. CA House is on Russell Boulevard -- fraternity row. The site can be accessed only from Russell Boulevard. A seven-foot masonry sound wall will separate the site from the few residential neighbors who border the property on the rear. The evidence contained in the staff report shows the proposed project is not incompatible with the density of other uses on Russell Boulevard.
ENA agues the October 15 staff report, and particularly its claim that 38 beds was significant but 30 was not, constitutes substantial evidence of a fair argument the project will create significant environmental impacts. Deeper review of the staff report reveals staff’s statement was unsupported opinion, not substantial evidence. First, staff considered 30 beds to be reasonable in part because reducing the beds to 30 resulted in the number of parking spaces originally proposed to satisfy the parking ordinance. Now that parking has been increased to facilitate 38 beds, this argument is without merit.
Second, staff stated 30 was reasonable because after the new general plan designation was adopted, CA House could expand to 39 beds if it became necessary without creating any impact. We question why, if staff believes 39 beds are reasonable in the future, 38 beds are not reasonable now. Staff’s opinion is conflicting and unsupportable, as all of the evidence in the record demonstrates 38 beds will not have a significant effect on the environment. Conclusions of local agencies and their staff that are not based on evidence or factual information do not constitute substantial evidence. (City of Livermore v. Local Agency Formation Com., supra, 184 Cal.App.3d at p. 542.)
Third, staff revised its opinion upon reviewing the 38-bed project with additional mitigation measures. Whatever impact staff might have believed previously existed was obviated by redesigning the project to protect neighbors’ privacy, restricting the number of residents who can own vehicles, and constructing the masonry sound wall along the property line. As so mitigated, the project created no significant environmental impacts. The revised staff report superseded the original report.
Finally, staff’s language is ambiguous. The report states 38 residents “is significant,” but that language does not state housing 38 residents on this site will create a significant impact on the physical environment. In short, ENA has failed to direct us to substantial evidence on which a fair argument could be made that the project creates adverse environmental impacts regarding density.
III
Parking
Despite the project evolving to provide the 33 parking spaces required by city ordinance, ENA claims it presented substantial evidence of a fair argument the project will still adversely affect parking. It alleges the City failed to require adequate parking for CA House residents, office workers, and visitors. We disagree.
In addition to requiring 33 parking spaces, two shared electric vehicles, restricting car ownership to 21 residents, and approving the use of 19 off-site parking spaces during week days at a nearby church, the City required the Association to include conditions in residents’ leases that all residents with cars would display a sticker identifying them as a resident of CA House and that no resident would park in the Elmwood neighborhood. CA House would provide neighbors with a telephone number and e-mail address so they could report unauthorized parking in the neighborhood. CA House would also inform all visitors that no on-site parking was available for them and that parking was not allowed on adjacent residential streets.
As evidence of parking impacts, ENA submitted a letter by two residents who live on Miller Drive, some blocks east of CA House, and four houses up from Russell Boulevard. These residents stated they were “profoundly aware of overnight parking problems generated by existing multiple dwellings on Russell Boulevard.” This letter does not demonstrate the CA House project as mitigated will likely create the same impact in the Elmwood neighborhood.
ENA argues the existing classes and group meetings held at CA House create parking problems, and nothing stops CA House from expanding those offerings. CA House currently runs a class for 20 students, a Bible study class that has an average of five to nine and sometimes 12 or more participants, and community meals that include up to 19 non-residents. However, the record shows these existing classes have not caused any parking problems, and CA House has no plans to increase its current programs for non-residents. ENA’s speculation is not substantial evidence.
More significantly, ENA cannot establish that lack of parking per se is an adverse environmental impact. “[T]here is no statutory or case authority requiring an EIR to identify specific measures to provide additional parking spaces in order to meet an anticipated shortfall in parking availability. The social inconvenience of having to hunt for scarce parking spaces is not an environmental impact; the secondary effect of scarce parking on traffic and air quality is. Under CEQA, a project’s social impacts need not be treated as significant impacts on the environment. An EIR need only address the secondary physical impacts that could be triggered by a social impact. (Guidelines, § 15131, subd. (a).)” (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 697, italics in original [EIR correctly concluded parking deficits are not a physical impact on the environment].)
The City has already determined the project will not create significant impacts on traffic and air quality. ENA has introduced no evidence to dispute the City’s conclusion. Thus, there is no evidence on which a fair argument can be made that the project will impact parking.
IV
Infill Guidelines
ENA asserts the project is inconsistent with one of the City’s infill guidelines, and that this inconsistency is substantial evidence of a fair argument the project will create significant environmental impacts. We disagree.
The City’s general plan required the City to develop and implement guidelines for infill development. Staff applied the guidelines when it reviewed the project for the planning commission, and it determined the project complied with them.
ENA claims the project fails to comply with the intent of guideline No. 9. The guideline reads in full: “The project design enhances and does not erode the existing neighborhood character. The scale of new structures on all sides is compatible with the scale and mass of existing adjacent structures. For this guideline, ‘compatible’ does not necessarily mean the same size but does mean that appropriate scale transitions are part of the project design. These might include a stepped setback of upper stories or a breaking up large box like forms into smaller masses. Note: The intent of this guideline is to allow for intensification where encouraged and allowed under zoning while also considering the existing neighborhoods. This guideline is usually more relevant in existing residential areas and less relevant in commercial or industrial areas not adjacent to residences.” (Italics in original.)
ENA argues because the zoning had to be amended, staff could not conclude the intensification was allowed under the zoning, and this point serves as substantial evidence of a fair argument of environmental impacts. Again, mere inconsistency with a general plan or zoning ordinance is not substantial evidence of a significant environmental impact unless there is evidence the project will impact the physical environment. There is no evidence of such an impact here.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to the City and the Association. (Cal. Rules of Court, rule 8.276(a).)
We concur: DAVIS, Acting P.J., ROBIE, J.