| In recent years, the courts have supported the use of mitigated Negative Declarations where the lead agency has been careful neither to ignore substantial evidence of one or more significant effects, nor attempted to defer mitigation. Following are very brief summaries of additional cases involving mitigated Negative Declarations. Refer to the cases themselves for more specific information. |
Mitigated Negative Declaration Upheld |
San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608 Here the court upheld a mitigated Negative Declaration for a surface mining operation where there was no substantial evidence to support a fair argument of significant effect. The plaintiff's claim that the project would result in cumulative effects on birds, including the Swainson's Hawk, was vague and unsubstantiated by facts or expert opinion. The County, on the other hand, had three biologists confirm that the project would have no impact on endangered species. Further, the court affirmed, based on the Leonoff decision, that absent substantial evidence that the project would have a considerable incremental effect, and in the presence of expert testimony that it would not, an in-depth study of potential cumulative impacts was not a prerequisite to preparing a mitigated Negative Declaration. Citizens for Responsible Development in West Hollywood v. City of West Hollywood (1995) 39 Cal.App.4th 925 The court affirmed the city's mitigated Negative Declaration for a 40-unit low-income housing project which would rehabilitate and restore two craftsman-style homes on the front of the property and demolish another four buildings in the rear. West Hollywood had established a "Craftsman District" which encompassed the front buildings for purposes of historic preservation and established a Cultural Heritage Advisory Board (CHAB) to evaluate proposed activities within the district. The housing project was reviewed and approved by the CHAB as being benign relative to the architectural features and historic value of the front buildings and in conformance with the Secretary of Interior's rehabilitation standards. The court found that there was no substantial evidence to support Citizen's claim that a historical resource was being adversely affected. Those structures deemed to be of historical importance were being rehabilitated and restored in accordance with adopted city, state, and federal regulations. The structures proposed for demolition were neither on a historic register nor eligible for listing in the California Register, and their potential historical significance had been duly investigated by the city during creation of the Craftsman District and dismissed. Citizens' Committee to Save Our Village v. City of Claremont (1995) 37 CalApp.4th 1157 The city did not abuse its discretion by rejecting as irrelevant and untimely "new evidence" submitted by project opponents regarding a mitigated Negative Declaration for a new, two-story college building. In prior litigation on the project, the trial court had ordered the city to make findings to support the mitigated Negative Declaration. The project's opponents attempted to introduce new evidence at the hearing that the project would adversely affect a historically significant landscape garden. The court concluded that the material presented at the hearing was not new and that no substantial evidence existed that a landscape garden planned for the project site in 1905 had ever been installed or maintained. Without evidence of an impact, no EIR was required. |
Mitigated Negative Declaration Overturned |
League for Protection of Oakland's Architectural and Historic Resources v. City of Oakland, Feb. 10, 1997, 52 Cal.App.4th 896 The city approved a shopping center which proposed to demolish the old Montgomery Ward store. The city had adopted a mitigated Neg. Dec for the project, requiring that the store be documented before demolition, that the new center utilize design elements from the store, that a qualified archaeologist oversee the demolition, and other measures as mitigation for the impact on historical resources. Section 21084.1 provides that "[a] project that may cause a substantial adverse change in the significance of an historical resource is a project that may have a significant effect on the environment." The court held that because the Ward building is eligible for historic status and is described as historic in the city's general plan, Section 21084.1 requires the city to consider this action a significant effect requiring preparation of an EIR. Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144 The court concluded that a country club and golf course proposed on agricultural land required preparation of an EIR. The court found that during the process of considering the project the county had been presented with an abundant amount of substantial evidence, including testimony from its own planning staff in the initial study, to support a fair argument that the project would have a significant growth-inducing effect on the surrounding agricultural area. Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359 The court set aside and ordered the city to reconsider the mitigated Negative Declaration for a proposed 500-lot subdivision. Substantial evidence existed that the project would adversely impact the endangered Stephens kangaroo rat. In addition, Murrieta attempted to defer mitigation of this impact pending further study, as held improper in Sundstrom v. County of Mendocino. The city had also made a variety of procedural errors in circulating the Negative Declaration for review. Quail Botanical Gardens Foundation v. City of Encinitas (1994) 29 Cal.App.4th 1597 The court overturned a mitigated Negative Declaration for a 40-lot subdivision adjacent to the botanical garden on "fair argument" grounds. Expert testimony presented during the city's consideration of the subdivision indicated that the project would obscure views of the ocean from the Gardens, resulting in a significant aesthetic impact that could not be completely mitigated. Since the impact could not be mitigated completely, a Negative Declaration could not be used. |
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