Opinion
A152134
05-30-2018
PEPPER LANE NEIGHBORS FOR ENVIRONMENTAL PROTECTION, Plaintiff and Appellant, v. COUNTY OF SONOMA, Defendant and Respondent; GTE MOBILENET OF CALIFORNIA LP, Real Party in Interest and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV-259297)
The County of Sonoma (County) issued a land use permit to real party in interest GTE Mobilenet of California LP (doing business as Verizon Wireless; hereafter Verizon) for an "Intermediate Freestanding Telecommunications Facility" in the form of a 65-foot faux pine tree and related ground-mounted equipment located at 421 Pepper Lane in Petaluma (the Project). Appellant Pepper Lane Neighbors for Environmental Protection (Pepper Lane) filed a petition for writ of mandate alleging, inter alia, violations of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), local ordinances, and due process, as well as inconsistency with the "Petaluma Dairy Belt Area Plan." The trial court granted a motion to dismiss the CEQA and Petaluma Dairy Belt Area Plan claims and, after hearing, denied the remaining claims. Pepper Lane appeals, focusing on the visual and aesthetic impacts of the Project. We affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
In August 2015, Verizon applied for a County use permit to commence work on the Project with an original design height of 70 feet for the faux pine tree. The Project site is located on a 5.77-acre parcel zoned "Diverse Agriculture" and "Valley Oak Habitat," developed with a residence, barns, corrals, and other agricultural structures. The surrounding parcels are also zoned for agriculture. The Project is designed to address a significant gap in local cellular service coverage (an area of about 15 square miles with a population of 3,500). In the aesthetic impacts section of its "Project Support Statement," Verizon contended "[the] new facility . . . will result in minimal visual impact to [County] residents . . . . The facility will be concealed beneath arboreal camouflage designed to match the surrounding forest growth. Verizon will install needles socks on all proposed panel antennas and RRH units. All antennas and pole mounted equipment will be painted flat green, while the monopole itself will be painted flat brown, and all paint will be non-reflective. The facility has been designed to minimize visibility from public view and to blend into the surrounding vegetation."
After initial review, County planning staff issued a notice of public hearing waiver for the use permit, reflecting a determination that the Project was categorically exempt from CEQA as small structure construction, constituted a minor land use alteration under applicable zoning ordinances, and would not be detrimental to health, safety or welfare of adjacent land uses or properties. The notice stated the Project met all requirements for administrative approval and a public hearing waiver pursuant to Sonoma County Municipal Code section 26-92-040, subdivision (d), and provided that the use permit would be issued without public hearing absent written objection.
All undesignated section references are to the Sonoma County Municipal Code.
After receiving objections from a neighboring property owner, John Henning, the County noticed a public hearing before its board of zoning adjustments (BZA) to review the application. Henning's residence was located downhill and south of the Project. Henning complained the 70-foot tall faux pine tree would adversely affect views and suggested a reduced height of 35 feet.
A March 2016 staff report concluded the Project was consistent with the County's general plan and existing zoning and setback requirements. The report found the Project would not be detrimental to the health, safety, or welfare of people living or working in the area, and it would be compatible with the area as currently developed. Addressing Henning's aesthetic objections, the report noted the Project was not within a "Scenic Resources" area and would not have a substantial adverse effect on a scenic vista or damage scenic resources. The report also noted the County's applicable ordinance "does not provide protection of private views and does not provide guidance for assessing those impacts." Staff opined that the Project was "well screened, . . . appropriately set back, and . . . properly conditioned to prevent possible untoward impacts on surrounding properties." The report recommended Project approval.
A hearing was originally set for March 17, 2016, but was continued to April 7 at the request of counsel for other neighbors opposed to the Project, Asil and Claudia Gokcebay. The Gokcebays' property and residence was adjacent to the Project site. Prior to the hearing, the Golcebays submitted written comments, arguing the Project violated the County's aesthetic standards and setback requirements. At the hearing, Claudia Gokcebay, her attorney (Stephen Schmid), and one other neighbor objected to the Project, focusing on tower height and visual impact.
An alternative design utilizing a 59-foot faux water tower was offered by Verizon. The BZA continued the matter to allow staff to prepare a revised resolution and conditions of approval. On April 21, 2016, the BZA received further staff recommendations and Verizon presented additional information regarding the design modification. No additional public comment was offered. The BZA unanimously approved the Project with the modified water tower design, finding that the Project was consistent with the County's general plan and met all code requirements.
The Gokcebays appealed the approval to the Sonoma County Board of Supervisors (Board), alleging, inter alia, that the Project was not aesthetically appropriate and "not in compliance with the law." The Board heard the appeal on August 2, 2016. Planning staff recommended denial of the appeal. The Board took testimony from planning staff, Verizon representatives, and members of the public. Verizon provided a detailed visual assessment with photo simulations of the Project from various public viewpoints. The Board voted unanimously to deny the appeal with modification of the Project approval to utilize a reduced height 65-foot faux pine tree, which the Gokcebays advised the Board was their preferred alternative.
The Board found the modified Project to be consistent with the general plan designation of the Project site as Diverse Agriculture and a permitted "other use[] consistent with the Agricultural Resources Element as provided in the Zoning Code." The Board also found the Project was categorically exempt from CEQA. Addressing visual impacts, the Board found the Project to be consistent with the County's general plan and zoning code, determining that "the faux pine tree tower design will help to screen the antennas . . . , and reflects other evergreen trees on the site and in the County." (Finding 3.1(d).) The Board also determined the faux pine tree tower design was "[c]onsistent with . . . section 26-88-130(a)(3)(ii), to help minimize visual impacts to the extent feasible, the height of the faux pine tower has been reduced to 65 feet, the lowest height that meets [Verizon's] technical and operational requirements. The faux pine tree tower design, partially screened by existing trees, will best achieve compatibility with the character of the community and neighborhood and further minimize visual impacts." (Finding 3.1(g).) The Board concluded, "[Verizon's] visual analysis . . . demonstrates that visual impacts are less than significant."
Pepper Lane filed a petition for writ of mandate in the superior court seeking to set aside and void the Project approval. The petition alleged the Project failed to comply with requirements of CEQA, the Petaluma Dairy Belt Area Plan, and County ordinances. On January 23, 2017, the court granted a motion by the County and Verizon to dismiss the causes of action alleging violations of CEQA and the Petaluma Dairy Belt Area Plan for failure to exhaust administrative remedies.
Exhaustion of administrative remedies is " 'a jurisdictional prerequisite to resort to the courts.' " (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 441.)
The parties submitted briefing on the merits, dealing only with the aesthetic claims based on alleged violations of County ordinances. A hearing was held on April 21, 2017, with the court orally finding in favor of the County and Verizon. A written order denying the petition was entered on May 16, and judgment was entered accordingly on June 26. Pepper Lane filed a timely notice of appeal. Pepper Lane asserts that the County erred in approving the Project by allowing unmitigated significant visual impacts.
II. DISCUSSION
A. Standard of Review
The grant or denial of a conditional use permit is a quasi-judicial administrative action that the trial court reviews pursuant to administrative mandamus procedures of Code of Civil Procedure section 1094.5. (Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1005.) "Except in a limited class of cases involving fundamental vested rights [citation], the trial court reviews the whole administrative record to determine whether the agency's findings are supported by substantial evidence and whether the agency committed any errors of law." (Ibid.) That is, before upholding a use permit decision, the reviewing court "must scrutinize the record and determine whether substantial evidence supports the administrative agency's findings and whether these findings support the agency's decision." (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514; Bixby v. Pierno (1971) 4 Cal.3d 130, 143, 149 [substantial evidence test requires review of entire record].)
On appeal from a denial of a petition for writ of administrative mandamus, " 'if the superior court properly applied substantial evidence review because no fundamental vested right was involved, then the appellate court's function is identical to that of the trial court. It reviews the administrative record to determine whether the agency's findings were supported by substantial evidence, resolving all conflicts in the evidence and drawing all inferences in support of them.' " (Tennison v. California Victim Comp. & Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1181.)
"In determining whether the findings are supported, '[w]e may not isolate only the evidence which supports the administrative finding and disregard other relevant evidence in the record. [Citations.] On the other hand, neither we nor the trial court may disregard or overturn the . . . finding " 'for the reason that it is considered that a contrary finding would have been equally or more reasonable.' " [Citations.]' [Citation.] [¶] . . . 'Thus, where reference to the administrative record informs the parties and reviewing courts of the theory upon which an agency has arrived at its ultimate finding and decision it has long been recognized that the decision should be upheld if the agency "in truth found those facts which as a matter of law are essential to sustain its . . . [decision]." [Citations.]' [Citation.] [¶] 'In making these determinations, the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision.' " (Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 884-885.) We presume the Board's action is supported by substantial evidence, and Pepper Lane has the burden to demonstrate otherwise. (McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912, 921-922; Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1212 [plaintiff's burden to show no substantial evidence whatsoever supports the findings].) "Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency's findings are not supported by substantial evidence." (Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1490; Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1338-1339.) As to pure questions of law, we exercise our independent judgment. (Wollmer, at p. 1339.) B. Forfeiture
County and Verizon contend Pepper Lane has either misrepresented or ignored evidence supporting the County's findings and has thereby forfeited claims that the findings are unsupported by substantial evidence. "As with all substantial evidence challenges, an appellant . . . must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant's failure to carry his burden." (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266 [challenge to environmental impact report for insufficient evidence].) An appellant's failure to set forth in its brief all material evidence, and not merely its own evidence, is deemed a concession that the evidence supports the findings. (Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 112-113.)
Pepper Lane's response is to essentially dismiss or deny the existence of any substantial evidence in support of the findings. This cavalier approach does nothing to carry its burden, and serves only to bring its own credibility into question. Pepper Lane admits it failed to cite to evidence regarding mitigation measures incorporated in the Project, but excuses that failure by asserting "they are irrelevant and ineffective . . . , i.e., they are not material."
County and Verizon also direct our attention to at least two misstatements by Pepper Lane in its opening brief: assertions that the Project would have a six-inch setback from the boundary property line and a similar cell tower application was denied due to height and visual impact. Pepper Lane acknowledges the setback misstatement but argues it is irrelevant because, "whether six inches or six or 10 feet from the property line, the cell tower would be in full view of the neighbor's residence." Pepper Lane maintains all other "factual statements challenged by Respondents are supported by the administrative record," but ignores the March 2016 staff report which verified that the similar cell tower application had been granted without a height reduction—a fact also pointed out specifically in County's and Verizon's trial court briefing.
It is Pepper Lane's view of materiality that is immaterial. A party challenging the sufficiency of evidence in the administrative record is required to discuss evidence on both sides, rather than making a one-sided presentation in support of only its position. Instead, Pepper Lane largely relies on a "rehash of arguments about the strength of the evidence, which is not open on appeal." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102.) These omissions are by themselves sufficient to defeat the appeal. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) Nevertheless, we elect to address the merits of Pepper Lane's claims because the evidence, including graphic site visualizations presented to the Board by both Verizon and Pepper Lane, provides a largely undisputed factual record. C. County Zoning Regulations
Pepper Lane's claims are premised on purported violation of two sections of the County's zoning regulations. Section 26-88-130, subdivision (a)(3)(ii), applies specifically to telecommunication facilities and provides in pertinent part: "Facility towers, antennas and other structures and equipment shall be located, designed, and screened to blend with the existing natural or built surroundings so as to minimize visual impacts and to achieve compatibility with neighboring residences and the character of the community to the extent feasible considering the technological requirements of the proposed telecommunication service." Section 26-92-080, subdivision (a), requires the County, for use permit approval, to find "the establishment, maintenance or operation of the use or building applied for will not under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort or general welfare of persons residing or working in the neighborhood or to the general welfare of the area." Pepper Lane argues these provisions protect their private views. The County maintains the ordinances "[do] not provide for the protection of private views and [do] not provide guidance for assessing those impacts."
"We exercise independent judgment on legal issues, including the interpretation of municipal ordinances. [Citation.] 'Courts interpret municipal ordinances in the same manner and pursuant to the same rules applicable to the interpretation of statutes.' [Citation.] That said, a city's interpretation of its own ordinance is ' "entitled to deference" in our independent review of the meaning or application of the law.' " (Harrington v. City of Davis, supra, 16 Cal.App.5th at p. 434; Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1193 [" 'an agency's view of the meaning and scope of its own . . . ordinance is entitled to great weight unless it is clearly erroneous or unauthorized' "].) D. Section 26-92-080
We first address the general public welfare requirement of section 26-92-080 that a permitted use not be "detrimental to the health, safety, peace, comfort or general welfare of persons residing or working in the neighborhood or to the general welfare of the area." Planning staff found the Project to "be compatible with the area because it is located on a parcel that is already developed with a residence and outbuildings. The tower will be designed to look like a pine tree and there are rows of trees on the north and west boundaries of the property. The trees on the northerly property line are pines while the trees along the west property line are a very dense row of eucalyptus. The faux tree pole is intended to blend in with or be obscured by these trees from viewpoints from [adjacent roadways]." Pepper Lane dismisses the findings with only perfunctory argument and a summary conclusion that "[t]he context is a 65-foot high fake pine tree on a barren surrounding 1andscape less than 300 feet from the front door of the nearest residence and within clear and unobstructed view of other nearby neighbors" and "[t]hus, the required findings cannot be made." " ' "When an appellant [asserts a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived [or forfeited]." ' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
Although not expressly articulated, the essence of Pepper Lane's argument appears to be that any use which any neighbor finds aesthetically objectionable necessarily renders that use detrimental to the "general welfare" of all persons actually or potentially affected. Not surprisingly, Pepper Lane cites no authority for such a proposition, and we are unwilling to adopt an interpretation of the ordinances which would incorporate individual veto power over projects providing a public benefit. The ordinance protects the general welfare, not the parochial interest of an individual. Nothing in the express language of the ordinance supports Pepper Lane's proposed interpretation, no legislative history has been provided to indicate otherwise, and nothing in the record before us suggests that the County would have contemplated or intended such an absurd result. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 122-123 [plain language controls when reasonably free from ambiguity and uncertainty; if necessary, legislative history is used and, if meaning remains unresolved, reviewing courts "apply reason, practicality, and common sense to the language . . . to make [it] workable and reasonable, . . . and to avoid an absurd result"].) E. Section 26-88-130, subdivision (a)(3)(ii)
Pepper Lane does not challenge the finding that the Project would "provid[e] general welfare to the neighborhood by providing improved [cell] phone service including during times of power outages."
Pepper Lane's primary focus is on the provision of section 26-88-130, subdivision (a)(3)(ii), requiring wireless facilities to be "located, designed, and screened to blend with the existing natural or built surroundings so as to minimize visual impacts and to achieve compatibility with neighboring residences and the character of the community . . . ." We also focus our attention on this section since it is well settled that " '[a] specific provision relating to a particular subject will govern in respect to that subject, as against a general provision.' " (San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577.) Pepper Lane finds in this language a mandate for protection of private and individual scenic views. We do not.
The planning staff report asserted the ordinance "does not provide for the protection of private views and does not provide guidance for assessing those impacts." As the agency responsible for administering and enforcing the regulatory scheme, the County's interpretation is entitled to significant deference unless " 'clearly erroneous or unauthorized.' " (Harrington v. City of Davis, supra, 16 Cal.App.5th at p. 438.)
As the planning staff report noted, the County's zoning regulations explicitly provide for consideration of private views when placed in certain zoning designations such as residential areas. Section 26-88-130, subdivision (b)(1), requires a visual analysis for installations in locations such as this (Diverse Agriculture), but does not mention private views. Moreover, the County's zoning regulations require towers, antennas and other structures and equipment to be "located, designed, and screened to blend with the existing natural or built surroundings so as to minimize visual impacts and to achieve compatibility with neighboring residences and the character of the community to the extent feasible considering the technological requirements of the proposed telecommunication service." (§ 26-88-130, subd. (a)(3)(ii), italics added.) The evidence before the Board was that the reduced 65-foot height of the tower was the minimum necessary to meet Verizon's technical requirements. Testimony was presented by Verizon representatives that relocation to other portions of the Project site was not feasible due to terrain limitations, conflicts with existing structures, and signal obstructions.
"Intermediate and major freestanding commercial facilities are not allowed in [such] districts unless the applicant demonstrates . . . there is no technically feasible site or method of providing the needed service." (§ 26-88-130, subd. (b)(2)(iii).) An applicant is required to provide a "visual analysis . . . which identifies the potential visual impacts, at design capacity, of the proposed facility. Consideration shall be given to views from public areas as well as from private residences. The analysis shall assess the cumulative impacts of the proposed facility and other existing and foreseeable telecommunication facilities in the area, and shall identify and include all feasible mitigation measures consistent with the technological requirements of the proposed telecommunication service." (§ 26-88-130, subd. (b)(2)(iii)(B), italics added.)
Pepper Lane renews its claim here, without citation to the record, that the Project lies within "full view" of "scenic corridors in the vicinity." As previously noted, planning staff reports confirmed the Project is not in or near any area with a Scenic Resource designation (§ 26-64-005 et seq.), which includes scenic corridors (§ 26-64-030).
The question then is whether the Board could properly find, on the record before it, that the Project design minimized visual impacts to the extent feasible. As the trial court observed, cellular communications towers "are artificial elements in the environment wherever they are placed" and the location and design would not render it "invisible."
Planning staff described the Project setting as "well off of Pepper Road, and Bodega Highway and will be partially visible from certain points on Pepper Road as a larger tree among a group of trees when looking from the north to the south. The trees on-site are a row of large eucalyptus along the western boundary of [the Project site] which is also slightly downhill from the site. Another row of conifers along the northern parcel boundary is closer to the proposed cell tower site but they are young trees and have not reached their full height yet. The applicant has provided photo simulations . . . showing what the faux tree pole will look like from various points along Pepper Road. It would not be visible from Bodega Highway due to a ridge between the site and Bodega Highway. [The Project site] is not in an area with a Scenic Resources designation and therefore the [Project] does not have a substantial adverse effect on a scenic vista or damage scenic resources." The staff report found the Project to be "compatible with the area because it is located on a parcel that is already developed with a residence and outbuildings. The tower will be designed to look like a pine tree and there are rows of trees on the north and west boundaries of the property. The trees on the northerly property line are pines while the trees along the west property line are a very dense row of eucalyptus. The faux tree pole is intended to blend in with or be obscured by these trees from viewpoints from Pepper Road and Pepper Lane." The Board also had before it site maps and photographs depicting existing conditions on the Project site and surrounding parcels, and photo simulations provided by Verizon and County planning staff depicting inclusion of the faux pine tree, as viewed from a variety of locations and perspectives. The Gokcebays submitted their own photo simulations depicting the faux pine tree as it would be viewed from their driveway and parking area.
Staff noted that the faux pine tree design would "help it blend in with the trees on the site so that even in those instances where it is visible it does not stand out since it will just look like a bigger tree among smaller ones."
The County considered the staff reports, visual simulations, and public hearing testimony, and concluded the Project: (1) was sited to "be partially screened by existing trees to better blend into the surrounding landscape"; (2) had a "faux pine tree tower design . . . compatible with existing on-site development and the vicinity"; (3) "would not significantly change the character, appearance, or operation of the primary use" of the property on which it was located; and (4) had "visual impacts [that] are less than significant." Conditions of approval included a requirement that Verizon provide samples of the "tree" materials for the faux pine tree tower, including "leaf," "bark," and "branch" samples, for planning staff approval prior to issuance of building permits. We reiterate that the agency's findings are presumed correct. (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584.) Pepper Lane fails to carry its burden to show otherwise.
An agency may rely upon staff opinion in reaching decisions, and staff opinions may constitute substantial evidence. (Harrington v. City of Davis, supra, 16 Cal.App.5th at p. 440.)
Pepper Lane does little more than renew its trial court arguments about the strength of the evidence, and ask us to reach different conclusions from that evidence. It continues to insist that the "context" of the Project is "a 65-foot high fake pine tree on a barren surrounding landscape less than 300 feet from the front door of the nearest residence and within clear and unobstructed view of other nearby neighbors" and that any contrary findings are "patently false." We have considered, with all other evidence in the record, the Gokcebays' visual simulations, on which they appear to principally rely. While Verizon and the County disputed the accuracy and scale of those simulations, we would agree with the trial court that the minimization of the visual impact is "much better from certain standpoints than from others." As the trial court noted, the tower is not "invisible." That does not mean, however, that a reasonable person would of necessity agree with Pepper Lane's debatable characterization, or that a reasonable person could not conclude as the County did, that that public visual impacts are "less than significant."
Planning staff observed that the tower shown in the photo simulations presented by the Gokcebays appeared to be about one-fourth to one-third taller than actually proposed. An offer by Verizon to prepare professional photo simulations from the Gokcebays' property was rejected.
Because we, like the trial court, uphold the Board's determination, we need not reach Verizon's argument that provisions of the federal Telecommunications Act of 1996 (47 U.S.C. § 332(c)(7)(B)(i)(II)) otherwise required approval of the Project.
III. DISPOSITION
We affirm the trial court's denial of Pepper Lane's petition for writ of mandate. County and Verizon shall recover their costs on appeal.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.