In Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, certified for partial publication, the Fourth District Court of Appeal upheld a mitigated negative declaration providing insight on the subjects of urban decay and general plan consistency.
San Bernardino County adopted a mitigated negative declaration approving a 9,100 square foot general retail store. The intended occupant was Dollar General. The Joshua Tree Downtown Business Alliance, a group of local business owners, challenged the project on several grounds: (1) failure to adequately consider the project’s potential to cause urban decay; (2) failure to complete an EIR based on substantial evidence supporting a fair argument that the project would cause urban decay; (3) inconsistency with various economic goals and policies incorporated in the general plan; and (4) failure to disclose the intended occupant’s identity.
The Fourth District agreed with the lower court’s ruling that the county had considered urban decay but had simply concluded that because there was no evidence of a negative economic impact—there was likewise no evidence of urban decay. The court stated that economic impacts, alone, are not enough to require an EIR. By adopting a mitigated negative declaration, the county expressly found that there were no significant impacts through which economic impacts and urban decay could ultimately be traced.
The court further held that lay opinion regarding economic impacts did not qualify as substantial evidence. A business owner and former attorney with the Oregon Department of Justice provided extensive comments on the project’s potential to cause urban decay. The court stated that she was not an expert and was therefore not qualified to opine on whether the project would cause urban decay. Moreover, she had not provided any factual basis for her assertions. The county exercised appropriate discretion in deeming her testimony not substantial evidence.
The Fourth District also rejected petitioner’s claims that the project was inconsistent with the economic goals and policies in the general plan. Applying the abuse of discretion standard—rather than the fair argument standard as argued by petitioners—the court found that the county could reasonably conclude that the project was consistent with the general plan. The court stated that words in the policies such as “encourage” and “support” were “amorphous policy terms” that give the local agency some discretion.
Finally, in the unpublished portion of the opinion, the court rejected petitioner’s claim that the county had improperly withheld the identity of Dollar General as the intended occupant. CEQA did not require the county, in this instance, to identify the end user. In dicta, however, the court left open the possibility that disclosure of the end user may be required where it is “environmentally relevant.”
Written by Christina Berglund