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THE POCKET PROTECTORS, Plaintiff
and Appellant, v. COURT OF APPEAL, Filed C046247 COUNSEL Brandt-Hawley Law Group, Susan Brandt-Hawley and
Paige J. Swartley for Plaintiff and Appellant. Samuel L. Jackson and Joseph P. Cerullo for Defendants and
Respondents. Remy, Thomas, Moose and Manley, Tina
A. Thomas and Sabrina V. Teller for Real Parties in Interest and
Respondents. OPINION Plaintiff
The Pocket Protectors, an unincorporated association, appeals from the denial
of its petition for writ of mandamus under the California Environmental Quality
Act (CEQA) (Pub. Res. Code, § 21000 et seq.; undesignated section references
are to the Public Resources Code). The
Pocket Protectors seek the preparation of an Environmental Impact Report ( FACTUAL The history
of the project site The proposed project occupies 20.6
acres of undeveloped land in the Pocket area, a region of 4.5 square miles
within the City of 15-foot-wide parkway easement and a
25-foot-wide landscape easement) create greenbelts adjacent to The Pocket area was developed
residentially beginning in the 1960’s in accordance with a General Development
Plan adopted in 1965. Specific Plans and
a South Pocket Area Community Plan were adopted in 1976. In 1985, the City Council approved
the “L & P - Pacific Teichert Planned Unit Development” (LPPT PUD) to cover
373 acres within the scope of the South Pocket Area Community Plan, including
the project site. The resolution
approving the PUD, which declared itself binding on all persons intending to
develop any portion of the property, stated that all development should conform
to the attached LPPT Development Guidelines.
The LPPT PUD incorporated a variety
of housing types, including “Single Family,” zoned R-1, and “Townhouse (or
similar development),” zoned R-1A.[2] (The project site is within the R-1A-zoned
part of the PUD.) The LPPT Development
Guidelines stressed the importance of developing all the proposed housing types
as part of “an interrelated total environment” throughout the PUD. Before the current project was
proposed, the City Council had approved two unconsummated plans to develop the
site. The first, submitted in 1987,
would have constructed 155 clustered townhouse units; the second, submitted in
1994, would have constructed 167 clustered townhouse units. The record does not reveal why neither
project was built. The developer and the City executed
a Development Agreement for the original proposed project, which was extended
until By the time the current project was
proposed, the surrounding area was fully developed with housing. All the housing types called for in the PUD
and its Development Guidelines had been built, except for townhouses. The
proposed project The project proposal and the THE
PLANNING COMMISSION The original project According to Regis’s application to
the City, submitted on A Special Permit would be required
to build this type of housing within the LPPT PUD. (Regis did not request a rezoning to
R-1.) Each part of the project site (north
and south of The houses would have minimal
setbacks. In front, there would be zero
setbacks from the property line. In
back, the houses in the rear rows would be set back as little as five feet from
the fence lines of the existing homes abutting the project. Staff response City staff responded supportively to
the first version of Regis’s submittal in April 2001, but noted certain problems. In a communication to Regis, staff observed
that the project “does not fulfill the intent of the LPPT PUD Townhouse
land-use designation insofar as it does not incorporate the landscaping and
open space concepts embraced by the remainder of the LPPT PUD”; however, it was
within the allowed density, and “[t]he unusual shape of the subject site
presents a number of design challenges/opportunities which the applicant is
willing to address.” Staff also observed
that, as designed, the project proposed long expanses of similar building
massing, creating a “[c]anyon” effect which needed to be minimized with varying
heights and facades and a “thematic landscaping plan.” In keeping with this point, staff recommended
the planting of one shade tree per 30 lineal feet of street frontage. In addition, staff noted that “[t]he
necessity of shallow lots for the proposed project limits the amount of privacy
afforded adjacent property owners” and recommended configuring second-story
windows to minimize views into the rear yards of existing homes.[4] After Regis had revised its original
submittal and produced the proposal shown in its October 2001 application to
the City, staff continued to support the proposal. On The Initial Study/ The City circulated a draft Initial
Study/ The IS/ The Pocket Area Community Plan-South
Pocket Specific Plan (PACP-SPSP) sets goals, objectives, and policies for the
area within its scope. The LPPT PUD
designates the project area for “townhouses and similar development”--i.e.,
cluster and row housing. Because the
proposed project would build single-family detached housing instead, its
consistency with overall community growth goals and policies, and the goals and
policies for single-family and townhouse and related development of the
PACP-SPSP, must be assessed. The R1-A zone is a “Single-Family
Alternative Zone,” “intended to permit the establishment of single-family,
individually owned, attached or detached residences where lot sizes, height,
area and/or setback requirements vary from standard single-family. This zone is intended to accommodate
alternative single-family designs which are determined to be compatible with
standard single-family areas and which might include single-family attached or
detached units, townhouses, cluster housing, condominiums, cooperatives or
other similar projects.” PUD’s are intended to permit
flexibility in the design of integrated developments and to encourage “creative
and imaginative planning.” Special Permits shall be granted at
the discretion of the Planning Commission or City Council “upon sound
principles of land use,” provided that a Special Permit use does not cause
detriment to the public health, safety, or welfare, and that it “compl[ies]
with the objectives of the general or specific plan for the area in which it is
to be located.” The project does not conflict with
general plan designation, zoning, or PACP-SPSP land use goals and
policies. “The PUD designation allows
some flexibility in the configuration of parcels[, and t]he Planning Commission
will decide if the proposed lot configurations are acceptable.” The Planning Commission will also decide if
the proposed narrower-than-standard private road is acceptable, and the
relevant City departments will review the plans to ensure access and convenience. A project of detached single-family
homes on this site is not inconsistent with the LPPT PUD or incompatible with
neighboring homes. “The project site was
identified in the LPPT [PUD] Guidelines . . . for development of
townhouses. In July 1993, the City of AESTHETICS The project would not “[a]ffect a
scenic vista or scenic highway[],” “[h]ave a demonstrable negative aesthetic
effect[],” or “[c]reate light and glare[].”
R-1 zoning requires maximum heights
of 35 feet, maximum lot coverage of 40 percent, front yard setbacks of 25 feet,
back yard setbacks of 15 feet, interior sides setbacks of five feet, and street
side setbacks of 12.5 feet. However,
R-1A zoning “allows flexibility in setback and lot coverage requirements.” “The existing character of the site
is a seasonally disced vacant lot, bordered on one side by residential
development and by a 40-foot wide linear parkway on the other. The character of the “The LPPT PUD utilizes two tools to
minimize the extent of visual impacts:
1) The LPPT [PUD] Guidelines, and 2) The Riverlake Community Association
and Architectural Control Committee. . . . The City of “The Planning Commission has
discretion over design through the Special Permit required by development
within a PUD and the R1-A zone. Staff
evaluates design through the Special Permit process. City review of the design plans helps to
minimize negative visual impacts.” Public comment Many neighbors of the proposed
project objected to it before the IS/ By the end of the public comment
period, the protesters had organized as The Pocket Protectors. Their comments on the IS/ The project needed to be rezoned to
R-1 and to meet all R-1 standards, including 15-foot rear setbacks as specified
in the Development Agreement; it should also be required to meet the standards
of the Riverlake community, which might be even more restrictive. Two-story houses with five-foot setbacks from
existing homes would create serious problems of noise, privacy, and visual
impact. The Neighbors had bought homes or land
near the project site in reliance on the approved PUD, including its plan for
cluster homes fronting The project would have major impacts
on the preservation of open space and trees, which the The project’s appearance--“two rows
of uninterrupted houses, fronting on a highly traveled and dangerous street,
divided by a substandard width road, within arms [sic] distance of
existing homes”--was “subpar design” and “a poor attempt to fit 10 pounds of
nails into a 5-pound bag.” Contrary to the IS/ Contrary to the IS/ The Planning Commission hearing The Planning Commission held a
public hearing on the project on Tom Pace, a senior City planner,
testified that the City did not believe downzoning was required. The R-1A zone was flexible and used for all
types of small lot development, not necessarily attached housing. And when the Development Agreement stated
rezoning would be required to develop “single family residential,” this meant
only “standard single family development,” i.e., “single family homes developed
on lots with 5200 square foot [sic] which is our standard R-1
requirement.” Since the lots in this
project would be smaller, it could be built under the current zoning.[6] Pace described a number of changes
to the project and new conditions imposed by the City since Regis’s application
was originally submitted. The number of
lots had been reduced from 143 to 139.
Two-story houses abutting existing homes would be allowed only at the
ends of cul-de-sacs, partly in order to limit the number of houses with
five-foot rear setbacks adjacent to the property line; if two-story, such
houses would have no upper-story windows.
Houses built side by side would have to be of different elevations. Conditions intended to improve parking and
driveway designs had been imposed.
Contrary to the developer’s original intent, staff had insisted on a
four-foot-wide sidewalk (one foot narrower than the standard residential
sidewalk) beside the private street, which would remove half of the front yard
setback for homes facing that street. Of
the 23 trees proposed to be removed (out of 503 in the project area), only two
were protected under the City’s tree ordinance and the City Arborist had
required mitigation for their removal. Pace testified that the setback
issue was troubling, but given the project’s design the problem could not be
significantly alleviated. Regis wanted
to create a “single family detached appearance from the . . . public
street” while maintaining “something close to the approved density.” The only way to achieve this end within the
“very narrow strip” of developable land between the greenbelt and the existing
homes (only 120 feet altogether) was to group houses in two tiers with a
“common driveway” in between (much narrower than the standard 41-foot-wide city
street).[7] If the houses were built smaller to save open
space, neighbors might become concerned about the new residents’ income levels
and the project’s effect on property values.[8] Pace acknowledged the site was narrow because
the PUD had designated it for development with a single tier of townhouses or
“manor houses” (three or four attached units designed to look like one large
house). Bill Heartman, representing Regis,
testified that its design for “mini-mansions” was “more in keeping . . . with
the neighborhood” than either single-family homes on narrow lots or attached
housing, but could be executed only by double-tiering the houses. Heartman also noted that attached housing
generally has a lower market value than detached housing. Members of The Pocket Protectors and
other citizens then spoke. Allan Lind testified that, in the
group’s opinion, the project, “particularly the traffic circulation
assumptions, the allowances for parking, the building set backs [sic],
the open space provisions,” is “stunningly ill conceived.” The “bizarre mile-long alley way with homes
on either side of it” is “an assault on the neighborhood. It’s squeezing too many units into too small
. . . a space.” Even if there
were no second-story windows, there would be too many blank walls and rooftops
five feet away from neighboring homes. Alan Hockitson, who claimed
experience with CEQA going back to the 1970’s as a state employee working on
power plants and transmission lines, criticized the Christopher Caneles testified that
the project must be rezoned R-1 because it proposed single-family homes by any
definition. Roger McCardle, a licensed architect
with 25 years’ experience in planning and building designs for institutions and
in private consulting, testified that he had reviewed plans and drawings for
the project and found it deeply flawed.
City staff’s April 2001 suggestions for improving the project had not
been implemented: the developer had not
significantly reduced the number of homes, reconfigured the project into a
single row of houses on deeper lots, or integrated common open space areas into
the design. It was also questionable
whether a fire truck or moving van could get in and out of the
development. Gary Hartwick testified that the
Development Agreement for the prior (unbuilt) project noted townhouses were the
only building type called for in the PUD that had not yet been built, and the
developer’s plan to build them was consistent with the community plan and the
general plan. Although that project had
a higher density than the current project, it preserved far more open space
(35-foot rear setbacks and 30 feet between units) and did not intrude into the
rear yards of the property line, as half the units in the present project would
do. “[T]o allow development of two rows
of houses basically that looks like a monopoly board is not prudent and it’s
certainly not creative or sound land use planning.” Chris Briggs testified about the
potential problems with parking, especially with a sidewalk on the private
street. Briggs also testified that it
would be impossible to comply with the City’s condition that at least two shade
trees be planted in each front yard if there was only a four-foot setback in
front and guest parking spots in back; only ornamental trees could fit the
available space. The current proposal
crammed too many houses into too little space.
Bill McElroy, The Pocket Protectors’
chairman, testified that the project violated sound land use principles and the
City’s original vision for the development of the Pocket area. The Pocket Protectors supported the
Development Agreement for the prior unbuilt project because it fit as “the
final piece of this jigsaw puzzle.” The
current project, on the other hand, was simply a “cram as much as you can
development proposal” which had been “unworkable and flawed since it’s [sic]
inception with its disrespect for compatibility with the existing homes in our
community.” Finally, the Commissioners
commented. All but one opposed the
project. Commissioner Kennedy stated
that the proposed project was very nice in many ways, but “it doesn’t work
here”--a five-foot setback in an existing neighborhood was unacceptable. Commissioner Valencia stated that it appeared
the Development Agreement required a rezoning for the project, but staff and
counsel should have more time to assess this issue. Commissioner Jones, an engineer, stated that
after inspecting the site she was concerned about transportation problems in
relation to the private street; she was also concerned about other issues on
which an adequate paper trail under CEQA had not yet been laid and staff had
not yet provided all the documentation the Commission needed.[9] Commissioner Taylor-Carroll expressed
opposition based on “the configuration” and “the environmental aspects that
haven’t been addressed.” Commissioner
McKeany expressed opposition based on “the concerns of the community.” Finally, Commission Chairman Waste
opposed the project for several reasons:
(1) “[I]t’s a bad land use where it’s proposed. . . .
this is a project that would be phenomenal in so many places across this town
that are legitimate in-fill candidates and . . . I would welcome it in any one
of probably 35 places that I could think of around town. . . . I would not add
this location as a 36.” (2) A mitigated negative declaration was “just
not an appropriate call” due to issues concerning traffic, population, and
other environmental impacts that needed CEQA study. (3)
The project did not work as infill because it was not connected to
public transit. The Commission thereupon voted six
to one to deny the staff recommendation for approval of the project and the The
Planning Commission’s findings of fact On “The Special Permit to develop
detached single family dwellings within the LPPT PUD is denied based on the
following Findings of Fact: “1.
The project is not based upon sound principles of land use in that: “a.
the shallow depth of the existing parcels does not afford sufficient area
to develop the proposed lotting plan
with adequate setbacks from adjacent
properties; “b.
the massing of the houses creates crowded conditions along the narrow
interior private drive; “c.
adequate play yards for children have not been provided; “d.
small front yards prevent the planting of large shade trees; “e.
the ability to provide guest parking adjacent to each dwelling is
impeded by the narrow street which does not afford on-street parking and by the
shallow front setbacks, which do not allow for parking in the driveways of many
lots. “2.
The proposed use will adversely affect the general welfare of the
surrounding residential neighborhood in that the height and bulk of the
proposed dwellings are not sufficiently mitigated by the proposed five foot
rear yard setbacks, impacting negatively on the privacy of the neighboring
property owners. “3.
The design of the proposed subdivision is not consistent with the
Sacramento General Plan Update, Pocket Community Plan and LPPT [PUD] in that
the proposed single-family detached units are not consistent with the attached
townhouse-style housing previously anticipated for the site. “[] The Tentative Map subdividing
20.6 vacant acres into 139 single family lots in the R-1A PUD zone is denied
based on the following Findings of Fact: “1.
[Repeats finding 3 above.] “2.
[Repeats finding 1.a. above.] “[] The Subdivision Modification to
reduce the standard 41’ right-of-way width for a private street is denied based
on the following Findings of Fact: “1.
The modification would be detrimental to the public health, safety or
welfare or be injurious to other properties in the vicinity, in that it would
facilitate a substandard lot configuration; and “2.
Granting the modification is not in accord with the intent and the
purpose of the Subdivision regulations and is not consistent with the General
Plan and with all other applicable specific plans of the City in that: “a.
Reduced street widths previously were approved for attached housing, not
detached single family residences; and “b.
The proposed street design does not include sidewalks, requiring
walkways to be constructed in the front yard setbacks of certain lots which
reduces the useable [sic] landscaping area to a less than acceptable
width.” THE Before the first hearing on Regis’s
appeal, there were four community meetings to discuss the project further. After these, Regis requested the following
changes to its application and tentative map:
1) Increase the minimum rear
setback to 10 feet. 2) Reduce points of vehicular access to the site
(to lessen tree removal and traffic problems).
3) Provide an additional
single-story plan and eliminate the existing “quasi-two-story” plan (to lessen
adjacent neighbors’ privacy concerns).
4) Provide multiple “mini-parks”
(to increase play areas). 5) Remove the sidewalk along the private street
(to increase guest parking). The Pocket
Protectors continued to oppose the project.
The first City Council hearing On City planner Pace testified that
staff supported the Planning Commission’s position. However, staff also believed the Gregory Thatch, attorney for Regis,
opined that the project was an infill project. He also stated: “Out of all of the products that On behalf of The Pocket Protectors,
Christopher Caneles commented that his group supported
the development of this property.
However, Regis’s changes to the project had not cured its fundamental
flaws. Gary Hartwick commented that the
project would have a detrimental impact on 50 percent of the adjoining
residences, whose owners had been told an entirely different kind of
development would occur on this site. Roger McCardle commented that the
April 2001 recommendations of the City’s long-range planner to mitigate the
“tunnel or canyoning effect of wide houses on small lots” and to “break up
. . . the visual monotony” of long rows of driveways had not been
heeded. Furthermore, it would be
difficult to get adequate landscaping into the project, especially with a
sidewalk; the proposed houses had a footprint 40 percent larger than the
buildings previously planned for the site.
Half the houses in the project would open their front doors onto the
greenbelt, a publicly dedicated space on which previous plans for the site had
not encroached. As designed, the project
required concrete patios and sidewalks in that area.[12] Claudia Bonsenior commented that
under the latest proposal Regis was no longer required to plant two or more
shade trees per unit, but only to plant “trees.” If shade trees were not planted, many of the
units would get very hot. This was bad
planning in terms of energy and livability.
Alan Hockitson cited a Planning
Commissioner’s comment that “schools, public services, transportation, shade
impacts” needed to be addressed under CEQA.
Hockitson said the Cassandra Hockitson commented that
the Riverlake Community Association did not speak for the community: the board had voted to approve the project at
a meeting after almost 200 people in attendance had signaled their
opposition. Moreover, the board had
conditioned its approval on the absence of sidewalks; thus including a sidewalk
negated the board’s approval. Allan Lind stressed the importance
of sticking to the PUD plan and the housing diversity it had fostered; it
should not be abandoned just because Regis thought attached housing might be
harder to sell. Lind objected to the
“mile-long alleyway . . . with two rows of houses on it” which Regis
had proposed, and called it “a meaningless exercise” to increase the rear
setback to 10 feet. Cluster development
would preserve open space and avoid “this shoebox effect running back-and-forth
down the street,” while removing the weeds that now colonized the undeveloped
site and ensuring that it was properly cared for. City Councilmember Cohn indicated
that he saw the project as infill development of the kind the City should
encourage. Councilmember Tretheway,
though also supportive, suggested increasing the rear setbacks further and
incorporating smaller homes to open up more room for trees. Councilmember Sheedy saw the project as
infill and “a quality project [that] promotes the City’s anti-sprawl
objectives.” Councilmember Pannell
called it “a great project.”
Councilmember Jones indicated that it would be desirable to put in
sidewalks, smaller homes, and more shade trees, and to increase the
setbacks. Mayor Fargo spoke on similar
lines. None of the Councilmembers
specifically addressed CEQA or the The Council voted to continue the
matter until The second City Council hearing Before the City Council heard the
matter again, Stonehouse filed a report recommending approval of the project
and the The City Council heard the matter again
on Regis’s attorney admitted that the
Riverlake Community Association had withdrawn its support. Association board members testified that the
latest changes had reduced the private street width, front yard sizes, and
house sizes unacceptably, while still not permitting shade trees to be
planted. The community association
president commented that with the extremely narrow private street running
one-third mile, the close-together houses, and the small yards, “architectural
canyoning” had become a problem in the current design; furthermore, the reduced
house sizes created a possible architectural incompatibility with the
surrounding neighborhood. The
Pocket Protectors’ spokespersons testified, reiterating their previous
positions. Regis’s attorney, Gregory Thatch,
responded that neither the former Development Agreement, which had now expired,
nor the R-1A zoning precluded the project.
He asserted that the previous proposals had not been built because they
would not have made money, and no one could make money by building attached
housing on this site. He denied that the
project would encroach onto the greenbelt:
front porches would come up to the line, but doors would open onto the
porches, not out into the easement. Councilmember Jones asked Thatch if
Regis could build and market The Pocket Protectors’ proposal. Thatch replied that this was “an interesting
question” and he could not “say unequivocally no,” nor could he say that it
would be impossible to build or sell. It
simply was not the project Regis wanted to build. Councilmembers Cohn, Tretheway,
Pannell, and Sheedy spoke in support of the project, as did Mayor Fargo;
Councilmembers Yee and Hammond spoke against it.[14] Councilmember Yee opined that the setbacks
were still too small on all sides and that the lots were too small for the
houses proposed to be built on them; he also questioned putting in a sidewalk
only four or five feet from houses.
Councilmember Hammond felt the setbacks were insufficient in relation to
the greenbelt. Mayor Fargo asked City Attorney
Jackson whether staff agreed that no further CEQA study needed to be done. The City Council then voted The City Council’s adoption of
the project On “The City Council approves the [ “1.
The [ “2.
The proposed [ “3.
Based upon the record as a whole, including the Initial Study and the
comments received during the public review process, and in the City Council’s
exercise of its independent judgment, there is no substantial evidence, either
individually limited or cumulatively considerable, that the project will have a
significant effect on the environment. “[¶] . . . [¶] “[]
The Special Permit to develop detached single family dwellings within
the LPPT PUD is approved based on the following Findings of Fact and subject to
the Conditions of Approval: “1.
The project is based upon sound principles of land use in that the
proposed project is consistent with the General Plan, the Pocket Community
Plan, the Single Family Residential Design Principles, and the underlying
Single-family Alternative (R-1A) zoning; “2.
The proposed use will not adversely affect the public health, safety or
general welfare of the surrounding residential neighborhood in that: “a.
The project is designated for single-family alternative residential development; “b.
The project proposes to apply design compatible with the surrounding
area, will use quality construction materials, and has implemented numerous
design components consistent with the Single Family Residential Design
Principles, and; “c.
The proposed project is within the Zoning Ordinance’s requirements for
allowable setbacks within the Single-family Alternative (R-1A) zone. “3.
The proposed project is consistent with the General Plan and the Pocket
Community Plan land use designations and density requirements of Low Density
Residential (4-15 du/na) and Residential (7-15 du/na), respectively; “4.
The proposed project is within the LPPT PUD Development Guidelines maximum
density allowed for the parcels . . . , and; “5.
The project complies with the S[acramento] G[eneral] P[lan] U[pdate]
Housing Element that encourages the promotion of a variety of housing types
within neighborhoods to encourage economic diversity and housing choice
. . . . “[¶] . . . [¶]. “[] The Subdivision Modification to
reduce the standard 41’ right-of-way width for a private street is approved
based on the following Findings of Fact and subject to the Conditions of
Approval: “1.
The property to be divided is of such size or shape, or is affected by
such topographic conditions, or there are such special circumstances or
conditions affecting the property that it is impossible, impractical, or
undesirable in this particular case to conform to the strict application of
these regulations. The narrow width of
the project site requires that in order to develop the site as proposed the lot
widths be shallower than the City standard and that the roadway be a narrower
width than standard in order to provide the project’s two tiers of shallow lots
access; “2.
The cost to the subdivider, of strict or literal compliance with the
regulation, is not the sole reason for granting the modification; “3.
The modification will not be detrimental to the public health, safety or
welfare or be injurious to other properties in the vicinity in that the
Department of Public Works, Department of Utilities, and the Fire Department
reviewed the project and the private drive for safe ingress and egress,
adequate room for utility placement, and sufficient room for emergency vehicle
access. Each department has approved the
project as proposed, subject to the attached conditions; “4.
Granting the modification is in accord with the intent and the purposes
of these regulations and is consistent with the General Plan and with all other
applicable specific plans of the City.
The Single-family Alternative (R-1A) zoning is consistent with the
General Plan and Community Plan land use designations of Low Density
Residential (4-15 du/na) and Residential 7-15, respectively.” The writ
petition The Pocket Protectors filed a
petition for writ of mandamus in Sacramento County Superior Court, naming the
City and the City Council as respondents.
They asserted substantial evidence existed in the administrative record
to support a “fair argument” that an The Pocket Protectors’ briefing
cited four areas of potential significant environmental impact: (1) inconsistencies with city land use
polices and regulations, including the LPPT PUD, the Development Agreement, the
City’s development standards, and “impacts relating to land use”;
(2) aesthetic impacts; (3) traffic and parking; (4) biological impacts.[15] After oral argument, the trial court
denied the writ petition. The court
found specifically: The site had been
subjected to prior planning and zoning, which included environmental review,
and the proposed project was consistent with the intended use of the site. The aesthetic issues raised by the project
opponents did not rise to a level of substantial evidence constituting a fair
argument for an This appeal followed. |