Sixth District Addresses Lay Testimony Rule for Noise & Traffic Impacts & Requires an EIR for a Wedding Venue Project

Keep Our Mountains Quiet v. Co. of Santa Clara

(236 Cal.App.4th 714)

In Keep Our Mountains Quiet v. Co. of Santa Clara, the Sixth District Court of Appeal held that compliance with a noise ordinance does not necessarily bar a “fair argument” of significant noise impacts under CEQA where there is a disagreement between experts and factual testimony from adjacent property owners documenting noise impacts by past events at the Project site.

The project at issue is a use permit issued by the County of Santa Clara (the “County”) that allowed a limited number of weddings and other events to be held at a privately owned 14.46 acre vineyard property in the Santa Cruz mountains (the “Project”). The Project site is located adjacent to the Bear Creek Redwoods Open Space Preserve and is surrounded by single-family residences on heavily wooded lots over two acres in size. In 2008, following several years of neighbor complaints and County enforcement activities for unpermitted weddings and other events using amplified sound, the owner applied to the County for a use permit. The County adopted a mitigated negative declaration and approved the Project. A neighborhood association, Keep Our Mountains Quiet, challenged the County’s approval of the Project on the basis that an EIR was required because there was a “fair argument” of significant effects to noise and traffic. The trial court agreed and granted the writ of mandate requiring the preparation of an EIR to study noise and traffic impacts.

In upholding the trial court’s determination, the Court of Appeal addressed two key issues on appeal: (1) whether evidence showing a project complies with a local noise ordinance precludes a fair argument of significant noise impacts for CEQA purposes, and (2) whether non-expert factual evidence proffered by area residents adjacent to the Project site can support a fair argument that significant noise and traffic safety impacts may occur.

With respect to noise impacts, each party offered their own expert sound consultant to analyze the potential noise impacts of the Project. The Project proponent’s expert studied data collected in 2006 from prior unpermitted events and concluded those events did not exceed the County’s noise ordinance thresholds. The County’s expert, however, noted that the noise studied at those events was shielded by topographic features, and therefore did not accurately capture noise levels on adjacent properties. In response to this disagreement, the County ordered a mock event using CD music played at a level of 82 dBA, and found that the noise measured on neighboring properties did not exceed the 70 dBA noise ordinance threshold. The neighborhood association, however, challenged the County’s expert’s methodology because live bands and DJs at weddings often operate at 85-88 dBA, which was above the noise level tested by the County.

The Court acknowledged the differences between the three expert’s opinions and noted that “[i]f there is disagreement among expert opinion supported by facts …. the Lead Agency shall treat the effect as significant and shall prepare an EIR.”

The Court also reviewed evidence in the record of neighbor complaints that discussed the prior unpermitted events in which they “described hearing ‘pounding music, shouted announcements, celebratory screams, hoots, cheers, and clapping,’” stated event noise was “audible in our closed house, with the hollers of the crowd soaring above and the throbbing bass notes reaching below any noise (such as the TV) we tried to employ to cover it[,]” and stated “lower frequencies from the amplified music, public address system and crowd penetrated the walls and windows of our home with such intensity that we could feel the resulting vibrations while sitting in our family room … or lying in bed.”

The Court held that the residents’ statements constituted substantial evidence supporting a fair argument of noise impacts because such statements were limited to personal observations of nontechnical matters relating to sound (e.g., observing noise and percussion). In light of conflicting expert testimony and ample detailed statements from residents that addressed their personal observations on noise impacts, the Court held that such evidence constituted substantial evidence of a fair argument of noise impacts.

Similarly, the Court also concluded that substantial evidence in the record supported a fair argument that “the Project will — at times — double traffic volume on a narrow, windy, substandard road with a history of accidents” supported a fair argument that the Project may have significant traffic safety impacts by “substantially increas[ing] existing design feature-related hazards.” The expert’s report illustrated traffic volumes would more than double during hours when the Project’s guests would arrive and depart. Neighbor comments and the Association’s expert offered testimony that “related facts about road conditions based upon their personal knowledge.” Such evidence indicated “design-feature related hazards” that included stretches of narrow roadways, absence of centerline striping, lack of graded or paved shoulders, “and more than 30 blind curves.” The Court found that there was substantial evidence supporting a fair argument of significant traffic effects, and that an EIR was therefore required.

Although the Court held the residents’ testimony constituted substantial evidence of noise impacts, and to a lesser extent, traffic impacts, the Court limited its holding in an important aspect. “[I]n the absence of a specific factual foundation in the record, dire predictions by nonexperts regarding the consequences of a project … do not constitute substantial evidence.” The Court’s holding is consistent with other California cases that have similarly limited where lay testimony constitutes substantial evidence.

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