In a case that the court called "unnecessarily complicated," the Fifth District Court of Appeal has ruled against residents challenging the environmental review of a 219-house subdivision in the foothills of Porterville.

The case was complicated by the housing developer's insistence that the court take into account an environmental impact report for the 1990 Porterville general plan and an urgency hillside development ordinance approved the same day as the subdivision. Both project proponents and opponents tried to use those documents to their advantage.

But the court said the only thing at issue was the adequacy of the mitigated negative declaration (MND) that the city certified for the subdivision. The mitigated negative declaration did not refer to the 1990 general plan EIR, and the city could not have considered the urgency ordinance during the environmental review process because the ordinance was not in place, the court determined. The court called these documents "extra-record evidence."

"Extra-record evidence may not be used to challenge the substantiality of the evidence supporting the city's adoption of the MND or to prove that the city failed to proceed in a manner required by law," Justice Herbert Levy wrote for the court.

Sticking to the true administrative record, the court found that project opponents had not raised issues relating to the mitigated negative declaration's adequacy during the city's administrative process, and, therefore, could not make a fair argument that the project might adversely affect the environment.

In early 2005, Contour Development proposed a 230-lot subdivision on 67 acres of dry farmland with a slope of 1% to 15% on the east side of the Tulare County city. After a hearing before the Porterville City Council, Contour redesigned the project to 219 lots, with more land dedicated to trails and a pocket park. In September 2005, the City Council adopted the mitigated negative declaration and approved the subdivision.

A group called Porterville Citizens for Responsible Hillside Development sued, arguing that the mitigated negative declaration was inadequate, that the project was inconsistent with the general plan and that the city violated the Subdivision Map Act. Tulare County Superior Court Judge Lloyd Hicks ruled the project opponents had made a fair argument that the project may have significant adverse impacts, and he ordered a new environmental study addressing "aesthetics, density and grading/drainage/erosion."

With the city staying out of the litigation, Contour appealed the decision and won a reversal from a unanimous three-judge panel of the Fifth District.

On appeal, Contour argued that the 1990 general plan EIR had to be considered because the mitigated negative declaration was tiered off that EIR. Contour advanced this argument in an attempt to get the court to use the stricter substantial evidence test, which applies to questions of whether a project falls within the scope of a previously certified EIR. Contour sought the substantial evidence test rather than the fair argument test, which is deferential to project opponents who need only provide evidence that a project may have adverse impacts.

The court rejected this legal maneuver, finding that there was no evidence the city relied on the 1990 document at all. "The environmental documentation that actually was prepared for the housing project is controlling and Contour is limited to the administrative record that actually was before the city when it approved the MND," Levy wrote.

Although Contour was apparently unsure about that administrative record, it actually worked in the developer's favor when the court found almost nothing in the record to support the opponents' contentions.

With regard to all three issues identified by the trial court — aesthetics, density and grading/drainage/erosion — the only evidence in the record was vague complaints made by residents of a neighboring subdivision during public hearings. No specifics or expert testimony were offered.

"The vague concerns about the housing project expressed by a few members of the public during two public hearings do not constitute substantial evidence supporting a fair argument, even when doubts are resolved in favor of EIR preparation," the court ruled.

The court ruled that opponents' could not pursue their argument regarding general plan inconsistency because they never presented such an argument to the city during the review process. The court further ruled that the opponents forfeited their Subdivision Map Act claim because they acquiesced to the trial court's decision, which "impliedly rejected" the claim.

The Case:
Porterville Citizens for Responsible Hillside Development v. City of Porterville, No. F051953, 07 C.D.O.S. 14050, 2007 DJDAR 18080. Filed November 9, 2007. Ordered published December 6, 2007.
The Lawyers:
For Porterville Citizens: Richard Harriman, (559) 226-1818.
For Contour Development: William Abbott, Abbott & Kindermann, (916) 456-9595.