APPELLATE COURT FURTHER BURIES THE USE OF MITIGATED NEGATIVE DECLARATIONS, RELIES ON “EXPERT” WHO NEVER VISITED THE SITE, AND FORGETS THAT PETITIONERS CAN’T SUE IF THEY DON’T GIVE NOTICE.
On February 24, 2020, the California Court of Appeal for the Second District (“Court”) upheld a lower court’s finding that the City of Agoura Hills (the “City”) violated CEQA and the City’s Oak Tree Ordinance when the City issued approved a mixed-use development. Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) – Cal.Rptr.3d —, 2020 WL 1270355, involved an action challenging the City of Agoura Hill’s (the “City”) approval of a mixed-use commercial and residential development proposed by the appellants. The project proposed the development of 35 residential apartment units plus retail, restaurant, and office space on an 8.2-acre site. The project site was an undeveloped hillside that is mostly covered with grasses and scattered oak trees. A portion of the site was located in a so-called Significant Ecological Area. The City issued a final Initial Study-Mitigated Negative Declaration (“MND”) for the project in November 2016.
Save the Agoura Cornell Knoll (“Petitioners”) filed a writ petition challenging the City’s approval of the project. The lower court granted the writ petition as to the causes of action for violation of CEQA and violation of the City’s Oak Tree Ordinance, and denied the writ petition as to the cause of action for violation of planning and zoning law. The lower court directed the City to set aside the MND it had adopted for the project and to prepare an EIR. The project developers appealed.
The Court affirmed the lower court’s decision. Notably, the Court applied the “fair argument” standard and found a number of inadequacies with the MND. Namely, the MND improperly deferred mitigation of a project’s impacts on cultural resources, and was inadequate to mitigate potentially significant impacts to several plant species and oak trees. The Court placed great weight on the public testimony of an expert witness who found archeological site would be destroyed despite the fact that the expert had never physically inspected the project site; rather, he based his opinion on the a 2011 study of the site, a 2014 peer review, and the MND.
The Court also found that the MND ran afoul of the City’s Oak Tree Ordinance, which precluded oak tree applicants from removing 10 percent of the total estimated tree canopy of all trees on the subject property. The Petitioners argued that the oak tree permit issued by the City violated the Oak Tree Ordinance because it permitted the applicant to remove more than 10 percent of the estimated tree canopy. The project proponent’s chief argument was that the Petitioners were precluded from challenging the Oak Tree Ordinance because they failed present this challenge to the City during the administrative proceedings. However, the Court found that the City was apprised of the issue. Accordingly, the Court found that the City’s approval of the project did violate the City’s Oak Tree Ordinance.