By Keith Turner and Justin Escano

Another possible weapon for arsenal for view rights claims is the California Environmental Quality Act (CEQA).  In a nutshell,  the CEQA law provides that if a public and private development project may create a significant environmental impact, then an Environmental Impact Report (EIR) must be prepared, analyzing the potential impacts and possible mitigation alternatives.

The CEQA definition of “environment” is very broad, and includes “the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance.”   Various California court decisions have considered whether both public and private view rights should be addressed  by EIRs for various type of projects.

For instance, in Ocean View Estates Homeowners Association, Inc. v. Montecito Water District (2004) 116 Cal.App.4th 396, plaintiff-homeowners used CEQA to object to a Water District’s plan to build a four-acre aluminum cover for a Reservoir on the grounds that the change of view would be a significant negative aesthetic impact.   The Plaintiffs’ view of the reservoir would change from looking “like a very large swimming pool trying to pass as a lake” (“’the sight of clear blue water in a densely vegetated area with diverse topographic relief and an overall green framework from landscaping, provides a striking and unique visual feature, albeit … artificial’”) to a pitched aluminum cover, which over time would oxidize to a dull gray, extended over four acres, 15 feet tall.

The court rejected the water district “common law right to a private view” argument, starting the under CEQA the District is not “relieved from considering the impact of its project on such views.”  The court also rejected the argument that the mere fact that the project only affected a few private views did not mean as a matter of law that the project impact was not significant.

However, the court did accept plaintiffs’ argument that the aluminum cover could cause a significant negative aesthetic impact on both public and private views. In support of that argument, plaintiffs showed that neighboring property owners, members of plaintiff homeowner’s association, and even the county planning and development department expressed concerns about the aesthetic impact of the project. Moreover, plaintiffs presented photographic evidence that the proposed aluminum cover would be visible from public hiking trails and surrounding private properties.

In the end, the court held that plaintiffs had provided substantial evidence to support the argument that the project may have a significant negative aesthetic impact. Thus, defendant was forced to prepare a full EIR analyzing the potential impacts.

The court reached a similar conclusion in Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597. Here, plaintiffs challenged a proposed subdivision project on the grounds that it would obstruct ocean views from a neighboring public park. Plaintiffs presented photographs from different vantage points within the park, many showing the location story poles placed on the proposed project and the potential impact on ocean views. Both plaintiffs and defendants used expert testimony regarding the view impacts. Defendants argued that any aesthetic impacts had already been mitigated by changes to the construction plans, and therefore were not significant impacts.

Again, the court ruled that a potential significant impact existed, partly because of the extent of the debate between the parties. “[I]n the course of the extensive lay and expert testimony and other evidence on the view issue during the hearings, the City effectively acknowledged the impact of the subdivision on the Gardens’ views  could be a potential significant environmental impact.” Id. at 1604. Like Ocean View Estates, defendants here were forced to prepare a full EIR.

In both of the above cases, EIRs were required when a potential significant aesthetic impact was shown by substantial evidence. However, once an EIR is ordered, the agency preparing the EIR has greater discretion in determining what is “significant.”

In Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, residents of a mobile home community tried to use CEQA to object to a 96-unit condominium development, which when viewed from the grade of the plaintiffs’ property, would be equivalent to a two-to three-story building and block their view

The City of Oceanside had already prepared an EIR that analyzed the project’s impact on the surrounding community, including the impact on ocean views. In the EIR, the City concluded that the project was designed and modified to protect views from public vantage points. The protection of these public views was in line with City’s local coastal program to maintain existing view corridors through public rights-of-way and protect public enjoyment of the area’s scenic resources. However, as to private views, the City determined that any impact on private views was not significant, so long as public views were protected.

On review, the Court of Appeal held that the EIR’s analysis and conclusions regarding the project’s impact on surrounding private views was proper. Under CEQA guidelines, an EIR must identify “significant environmental effects” of a proposed project. “Environment” means physical conditions existing within the area which will be affected by a proposed project, including land, air, water, and “objects of aesthetic significance.” Thus, impact on views can create aesthetic issues which an EIR must address.

However, the lead agency preparing the EIR has discretion as to what qualifies as a “significant” impact, based on the nature of the affected area. “In exercising its discretion, a lead agency must necessarily make a policy decision in distinguishing between substantial and insubstantial adverse environmental impacts based, in part, on the setting.” Id. at 493. If the agency determines that a project’s impact is insignificant, the EIR need only contain a brief statement addressing the reasoning behind that conclusion.

Here, the City of Oceanside determined that any impact on private views was not a “significant” environmental effect that required analysis in the EIR. The EIR concluded that the policy standards of the City’s general plan, redevelopment plan, local coastal program, and zoning ordinances protected public views, but not private views. The court agreed, and held that the City’s decision not to protect private views was not an abuse of discretion that warranted reversal of the certification of the EIR.

Under CEQA and Mira Mar Mobile, a reviewing agency has broad discretion in certifying EIRs, and a court will only overrule where there is an abuse of discretion. This means that the EIR does not have to require the best, or even a more reasonable, course of action. “[The Court’s] role is to determine whether the challenged EIR is sufficient as an information document, not whether its ultimate conclusions are correct…. ‘We may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable.’” Mira Mar Mobile, supra, 119 Cal.App.4th 477, at 486 [Internal citations omitted].  “As long as the EIR makes a complete and good faith effort at full disclosure, and its conclusions are supported by substantial evidence, its conclusions will not be overturned by a court”. County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 954.

Thus, in Mira Mar Mobile, the EIR concluded that protection of private views was not envisioned by any of the City’s policies; therefore, impact on private views was not a significant environmental impact that required changes to the project.

The bottom line is that CEQA can be a good weapon, but like all weapons, the attorney using needs to be trained and know what he is doing.

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