In Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App.5th 358, the Third District Court of Appeal held that the lay opinions of local community members created a fair argument of potentially significant aesthetic impacts of a proposed retail store.
The project at issue was a proposed Dollar General store in a designated rural commercial zone in downtown Georgetown, an unincorporated community in El Dorado County. Although the community is not a designated historic resource, it has a historical design overlay zone, and new construction is required to “generally conform” to the county’s Historic Design Guidelines. The county prepared a mitigated negative declaration. The county also determined, through an extensive design review process in which the proposed design was extensively revised to more fully express the desired “Gold Rush Era” aesthetic, that the project was consistent with the County’s design guidelines, relying in part on peer review by experts in historic architecture. Over the course of the design and environmental review processes, local residents expressed their opinions that the project was visually incompatible with the existing aesthetic character of the community. Nonetheless, the county adopted the MND, and the Georgetown Preservation Society sued. The Society prevailed in the trial court, asserting that local residents’ lay opinions on the compatibility of the proposed store design with the existing aesthetic character of the town provided substantial evidence in support of a fair argument and that an EIR was required. The applicant and the county appealed.
First, the court held that the county’s determinations that the project complied with applicable planning and zoning rules via the historic design review process were not entitled to deference in the context of the county’s compliance with CEQA, and the fair argument standard still applies. Although an agency’s planning and design review forms part of the entire body of evidence to consider when determining whether the fair argument standard has been met, application of such design guidelines does not insulate the project from CEQA review at the initial study phase under the fair argument standard.
Second, the court stated that lay testimony can establish a fair argument that the project may cause substantial environmental impacts. The court rejected the appellants’ arguments that here, the county’s design review criteria recommending specific architectural styles and features constituted a technical subject. Therefore the court held that lay commentary on nontechnical matters is admissible and probative. Here, the court cited the large number of local residents who submitted comments on this issue, including some claiming backgrounds in design and planning.
Relatedly, the court held that the county’s position in litigation that cited evidence from lay persons was not credible, the county’s decision-makers were first obligated to state, in the record and with particularity, which evidence lacked credibility and why. The appellants asserted that much of the cited testimony lacked basis in facts, but the court held that the county could not discount such evidence in litigation after failing to do so in the administrative record. The court further stated that even if the county had made such determinations here, doing so would have been an abuse of discretion because the court found the testimony constituted substantial evidence supporting a fair argument.
The court noted that it was not offering an opinion as to whether the project would have a substantial impact on aesthetics, but only that an EIR was required in order to fully examine the issue.
RMM Partner Sabrina V. Teller represented the real party in interest/applicant.