Wednesday, June 10, 2015

Good Call on CEQA in Noise case

This is a good case for protectors of neighborhoods' peace and quiet. Although the authoes suggest it might have been wrongly decided (They don't support strong CEQA protections it seems), we thik this is a good call. Upholds the recognition that neighbors' testimony is relevant. States that even allowed decibel levels may be too much.

 Reprinted from

Fourth District Court of Appeal Rejects Use of Mitigated Negative Declaration

June 10, 2015
On May 7, 2015, California’s Fourth District Court of Appeals published an opinion rejecting the use of a Mitigated Negative Declaration (MND) for a special events permit on the basis of contrary noise and traffic impact testimony from neighbors.
The decision, Keep Our Mountains Quiet v. County of Santa Clara, construes the “fair argument” standard favorably with regard to lay testimony and underscores the risks inherent in pursuing an MND in contentious circumstances.

Lay (and Other) Testimony Under the “Fair Argument” Standard

Much of the Keep Our Mountains Quiet decision concerned the question of whether resident testimony regarding the potential noise and traffic effects of a permit for a previously unauthorized special events use (e.g., weddings) constituted substantial evidence supporting a fair argument that the project would result in significant impacts, thereby requiring an Environmental Impact Report (EIR) instead of an MND.

The court first held that a project’s noise effects can be significant even if they do not exceed local noise standards. The court also read the CEQA Guidelines Appendix G significance thresholds to conclude that a lead agency should consider the increase in ambient noise levels caused by a project as well as the absolute noise levels it generates.

Thus, even if the county could show the special events in question would comply with local, absolute noise standards after mitigation, an EIR could still be required if noise testimony from neighboring residents constituted substantial evidence in support of a fair argument that a significant increase in ambient noise levels may occur.

In this particular instance, the court deemed the noise testimony of a neighboring couple to be substantial evidence in support of a fair argument because they could hear “pounding music” from a wedding held before the permit was issued. The court drew a similar conclusion regarding crowd noise claims. A study indicating noise may have negative effects on wild animals in an adjacent open space preserve also constituted substantial evidence that the project might have a significant impact on biological resources when considered in conjunction with observed noise levels at the property line.

The court held that the record contained substantial evidence in support of a fair argument that the project would result in significant traffic impacts, as well. Neighbors and a hired expert observed that a road providing access to the property was in some places much narrower than normally required, lacked improved shoulders and contained more than 30 blind curves. While the road was well below capacity, the project would more than double traffic during operations. Finally, while Caltrans ultimately concluded the project would not pose a significant traffic or road safety impact, its own safety review revealed an accident history twice that of the statewide average.

Attorney Fees

The last section of the Court of Appeal’s opinion addressed the trial court’s disposition of the petitioner’s attorney fee claim. Consistent with the recent decision in SOURCE v. County of San Bernardino, the opinion further reinforces the principle that the assessment of fees by a lower court will not be overturned in the absence of a clear abuse of discretion. (For a more detailed discussion of the SOURCE decision, see our April 17, 2015 CEQA Update).


Keep Our Mountains Quiet is generous in its interpretation of the “fair argument” standard, so much so that it raises the question of whether it would require an EIR of any construction project in the vicinity of a quiet neighborhood, regardless of whether such noise levels were allowed under local regulations.

A solution may lie in an area where the opinion is weakest, specifically, in its failure to consider what exactly may constitute a “substantial” (and therefore significant) increase in ambient noise or traffic hazards, a determination which CEQA leaves to the lead agency’s discretion when defining thresholds of significance. The opinion does not consider whether hearing “pounding music” exceeded the threshold of significance applied by the county; nor, with regard to potential noise impacts on wild animals, does it observe that the Appendix G thresholds concern special status species only, at the species level. By using their discretion to clearly define significance thresholds (rather than just relying on Appendix G), lead agencies could make it easier for the courts (and all others involved) to see whether an MND is appropriate.

That said, to the extent lead agencies do rely directly on the thresholds suggested in Appendix G of the CEQA guidelines, Keep Our Mountains Quiet correctly distinguishes between increases in ambient noise levels and compliance with local noise standards, which Appendix G calls out separately.

But perhaps all of this might have been avoided. The facts of the case raise the question of whether the court or any of the parties considered the environmental baseline, which must include unauthorized as well as authorized activities. Here, the baseline appears to have included the same unauthorized activities that the permit triggering CEQA review sought to regulate. This suggests little, if any change to the existing physical environment may have been in play, which in turn suggests an MND may not have been inappropriate after all.

Friday, May 29, 2015

Developers Strike Again - Destroy Historic Oaks

This in the L.A. Times. So far, the trees have lost, once again. Neighbors rise up and take action:

Sullivan Canyon neighbors sue over hillside homes

Sullivan Canyon homeowners are suing to prevent construction of two hillside homes on a 12-acre property.
Residents of bucolic Sullivan Canyon in Brentwood have filed a suit against the city of Los Angeles, contending that officials violated state and local laws in approving plans to remove dozens of protected live oak and sycamore trees and build two 15,000- square-foot houses on a 12-acre hillside property at the end of Old Ranch Road.
Sullivan Canyon has been nominated for the California Register of Historical Resources. Old Ranch Road, which winds through the canyon, is a rare equestrian pocket of Los Angeles, where corrals line the tree-shaded street and rustic wooden signs warn of "Horses & Children at Play." The area boasts several midcentury ranch homes designed by noted architect Cliff May.
Residents were unaware of the construction plans, the lawsuit alleges, until late September, when bulldozers began knocking down old oak and sycamore trees. The suit's backers — including Barbara Williams, the wife of political activist Tom Hayden, and the Sullivan Canyon Property Owners Assn. — say that the city failed to follow rules limiting hillside building, examine potentially harmful environmental effects under California law and notify neighbors about the project and its scope.
Among agencies named were the Department of City Planning, the Department of Building and Safety and the Board of Public Works, which approved the tree removal. The Los Angeles city attorney's office said it had not yet seen the complaint, which was filed Wednesday in Los Angeles County Superior Court.

The lawsuit alleges that the project has already damaged Sullivan Canyon Creek and will require the grading and filling of 166,000 cubic yards of dirt on the surrounding hillsides — enough "to bury a football field 33 feet deep, including the end zones."

The suit asks the court to withdraw the tree removal and building permits and to require the developers to prepare an environmental impact report and comply with the city's latest rules for hillside building.

"The lawsuit is about constitutional due process rights for the community," said Sara Nichols, a plaintiff who lives on Old Ranch Road.

Fred Gaines, an attorney who represents the real estate partnerships that own the site, said he had not yet seen the lawsuit, but added: "We're confident that the permits will be upheld.... These are some of Los Angeles' wealthiest residents trying to stop someone from having a house right next door to theirs." He said he did not know who would live in the houses.

Councilman Mike Bonin said the tree removal "demonstrated a lot of holes in the city's process." He has introduced a motion to tighten rules about public notice in cases in which old-growth trees in sensitive habitat areas are at stake. "This is a significant project that has caused serious environmental impacts," he told building and safety commissioners at a recent meeting. If the project is allowed to continue, he said, it "threatens to cause additional damage to this hillside neighborhood and its residents."

Tuesday, May 05, 2015

Look Down before Chopping Down a Tree!

Here is an important, and in this case, costly, rule about trees in California. If the tree has any portion of the trunk on your neighbor's property, you may not remove it or damage it without permission. It is a jointly owned and you can be out a bundle for not looking DOWN as well as up to see where the trunk comes out of the ground.
Reprinted from a legal website in Los Angeles, 2012.

In a most interesting case published by the California Court of Appeal on August 29, 2012, the Court determined that a neighbor who cut down a single 70 foot tall Aleppo Pine tree straddling the boundary line between two properties was liable to the adjacent owner for $107,256.00!
The facts of the Kallis vs. Sones decision are straightforward.  Kallis bought his Los Angeles property in 1955.  His next door neighbor, Sones, purchased his lot in 1977.

The Pine tree likely started growing on one side of the line or the other, the expert witnesses believed.  Over the years, however, as the tree grew and the trunk widened, the tree’s trunk came to straddle the line.  Nothing unusual there.

What made the tree abnormal is that a few feet up from its base, the trunk split into two separate, but still large trunks.  One of those trunks grew over the Kallis property and the other grew over the Sones property.   Each trunk supported a fully developed system of branches and limbs above it.
The secondary trunks were distinct and far enough apart even at their bases to allow room for a metal property line fence to run up and through the crotch of the tree.

In 2008, Sones, who became concerned that the tree could topple and cause damage, hired a worker to cut it down.  However, instead of just severing the portion of the tree on the Sones side of the property line, the laborer sawed off both of the secondary trunks, leaving just a large stump in the ground.  From that remaining stump, one could clearly see where each secondary trunk originated and how large it was at the base.  In fact, both secondary trunks measured about 23 inches in diameter.

Also, about 59% of the trunk was on the Sones’ side, whereas 41% was of the trunk was on the Kallis side.

In 2009, Kallis sued Sones for wrongful cutting and removal of the timber.

At trial, Sones admitted to cutting the tree, but argued that he should only be responsible for 41% of the total value of the tree since Sones owned the other 59%.  Perhaps that made sense, but it did not persuade the judge.

At trial, the Court found that the cost to replace the tree was $53,628.  It then doubled the amount (as allowed pursuant to California Civil Code §3346), and entered judgment against Sones for a whopping $107,256!

Sones appealed, but the Court of Appeal affirmed the Court’s ruling.  The appellate court determined that there were two alternate measures of damage that the trial court could have assessed:

•    The cost to replace the tree; and
•    The reduction in the market value of Kallis’ property after the tree was cut as compared with the value of the property before it was cut.

Because the trial judge had found that Kallis was likely to replant a tree similar in kind to the one Sones destroyed, the appellate Justices upheld the “cost of replacement” measure of damages as the proper approach.  (The diminution of the value of the real property probably would have been less than the replacement cost of the tree.  Had the property been on the market for sale, it is likely that Kallis would have only received damages equal to the reduction in the value of his property.)

What you can learn from the Kallis vs. Sones case is that before you chop down a tree (or hire someone to do it for you), be certain that it is entirely on your own property.  In that regard, it would be wise to obtain a survey plotting the location of the tree if you have any doubt as to which side of the property line the trunk is located.

Wednesday, February 25, 2015

Sometimes a Tree is Just a Tree

You all know the old adage, "sometimes a cigar is just a cigar," not a you know, another thing.

Well, the same can be true with trees. Yes, often what is going on when neighbors get into bitter battles over trees and views, or trees dropping leaves and sticks in their pool, or trees casting shadows, or just being a pain in the tuchas, they really have an ax to grind over something more than that. The neighbor's kid beat out their kid for a slot on the soccer team; their house is bigger, more expensive, better situated, or their big car sticks into the neighbor's parking space.

Sometimes, they just don't like them, period, no reason. Too loud, too fat, too untidy, etc.

Trees are substantial. Trees you can sue over. And so people often do.

But sometimes a tree is just a tree and when two neighbors get into it over the trees, they are really fighting over trees. And views. a lot of times it's the view, the one the tree is blocking. The one you used to have, or are pretty sure you used to have of the Bay, the hills, the river. But now there is nothing to see but that big ugly tree.
But stop and think. Talk to the neighbor. Go to mediation. Try to reach a compromise before a dispute over a tree turns into a whole other kind of cigar.