Opinion
B205879.
2-18-2009
PASADENA RESIDENTS FOR A HEALTHY ENVIRONMENT, Plaintiff and Appellant, v. CITY OF PASADENA, Defendant and Respondent; LA SALLE HIGH SCHOOL OF PASADENA, INC., Real Party in Interest and Respondent.
The Silverstein Law Firm, Robert P. Silverstein, J. Miguel Flores; John B. Murdock for Plaintiff and Appellant. Michele Beal Bagneris, City Attorney, Theresa E. Fuentes, Assistant City Attorney for Defendant and Respondent. Hahn & Hahn, William K. Henley, Rita M. Diaz for Real Party in Interest and Respondent.
Not to be Published in the Official Reports
Plaintiff and appellant Pasadena Residents for a Healthy Environment (the Residents) appeals a judgment denying a petition for writ of mandate and granting judgment in favor of defendant and respondent City of Pasadena (the City) and real party in interest and respondent La Salle High School of Pasadena, Inc. (the school). In the petition, the Residents sought to overturn a decision by the City approving a conditional use permit (CUP) which allowed the school to install four 80-foot tall light poles to provide nighttime illumination on the schools athletic field. The conditions of approval permit the lights to be operational after 7:30 p.m. a maximum of nine times a year, for football games that would conclude by 10:00 p.m.
The essential issue presented is whether application of the fair argument standard shows an environmental impact report (EIR) is required to analyze and mitigate significant adverse impacts of light and glare, aesthetics, noise, traffic and parking.
On the record presented, we conclude an EIR was not required. We also reject the Residents other contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1955, the City granted a CUP to the school to operate in a residential zone with specific restrictions stating that "no building or structure located closer than 100 feet to the south property line shall be more than one story or 15 feet in height above the present natural grade."
In 2006, the school filed an application for a CUP to install four 80-foot tall light poles to provide nighttime illumination on its football field.
In accordance with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), the City prepared an initial study and determined the proposed project "COULD NOT have a significant effect on the environment . . . ." A negative declaration was prepared.
All further statutory references are to the Public Resources Code, unless otherwise specified.
If an initial study demonstrates that the project will not have a significant effect on the environment, the agency makes a "negative declaration" to that effect. (§ 21080, subd. (c).) On the other hand, if the initial study determines the project may have a significant effect on the environment, an EIR is required. (§ 21151; Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 Cal.App.4th 786, 792.)
On July 19, 2006, a hearing officer approved the application with conditions to mitigate the impact of the proposed lights.
The Residents and the Lower Hastings Ranch Homeowners Association (Hastings Association) (not a party to this appeal) appealed the hearing officers decision to the Pasadena Board of Zoning Appeals (BOZA). They contended said decision was not in compliance with CEQA, the use of a negative declaration was improper and a full EIR should be prepared.
On September 14, 2006, the BOZA overruled the hearing officers decision and disapproved the CUP. The BOZA found, inter alia: the application and environmental analysis were inadequate to ensure the proposed project would not create adverse impacts of light and glare on the surrounding neighborhood or significantly impact views; and the project would create impacts of light and glare, traffic, noise and views that would adversely impact the quality of life in surrounding residential neighborhoods.
The school appealed the BOZAs decision to the city council. Prior to the hearing, the Residents and the Hasting Association requested that Councilmember Little (Little) recuse himself on the ground his children were enrolled at the school; the school was both the applicant and the appellant in the matter before the council.
At the October 16, 2006 hearing, Little declined to recuse himself. Little stated his family paid full tuition to the school, and that installation of the lights would not affect tuition one way or the other. Little further indicated he had discussed the matter with the Pasadena City Attorney and also had called the hotline for the California Fair Political Practices Commission (FPPC) and had been cleared to participate in the matter.
At the conclusion of the hearing, the Council adopted a negative declaration and approved the application with numerous conditions of approval. The approval allows a maximum of nine night football games per year, to conclude by 10:00 p.m.
In early November 2006, the school installed the four 80-foot tall stadium lights.
On November 17, 2006, the Residents filed a petition for writ of mandate, challenging the Citys approval of the CUP and negative declaration for the project. The petition alleged, inter alia, the administrative record contained substantial evidence to support a fair argument that the project may cause significant unmitigable impacts to the environment, including impacts in the areas of aesthetics, light/glare, noise, and traffic/parking, so as to require the preparation of an EIR. The petition also pled the project violated the 1955 CUP, and that Littles participation in the matter denied the Residents a fair hearing.
The City and the school each filed opposition to the Residents petition.
On October 23, 2007, the matter came on for hearing. On November 26, 2007, the trial court issued an extensive statement of decision denying the Residents petition in its entirety. The trial court found, inter alia, the Residents did not present substantial evidence to support a fair argument of potentially significant environmental impacts. The trial court also rejected the contention that Littles participation deprived the Residents of due process.
On February 14, 2008, the Residents filed a timely notice of appeal from the judgment.
CONTENTIONS
The Residents contend: the City failed to make the code-required finding that changed circumstances justify modifications of the original CUP; a fair argument was made that an EIR was required to study (1) light and glare impacts, (2) aesthetic and visual impacts, (3) noise impacts, (4) traffic impacts, and (5) parking impacts; the record contains evidence that the City and the school are piecemealing a reasonably foreseeable master plan; and overt bias by a councilmember prevented a fair hearing in violation of the Residents due process rights.
DISCUSSION
1. Because the instant CUP is a new CUP, not a modification to the 1955 CUP, the City was not required to make a finding of changed circumstances.
The Residents contend the City failed to make the finding required by Pasadena Municipal Code (PMC) section 17.64.050(A)(4) that changed circumstances justified a modification to the original 1955 CUP for the school.
To put the matter in context, we begin with the language of the ordinance:
PMC section 17.64.050, pertaining to changes to an approved project, provides in relevant part: "Development or a new land use authorized through a permit granted in compliance with this Zoning Code shall be established only as approved by the applicable review authority and subject to any conditions of approval, except where changes to the project are approved in compliance with this Section. [¶] A. Request for change. . . . [¶] B. Minor changes. The Director may approve changes to an approved site plan, architecture, or the nature or conditions of the approved use if the changes: [¶] . . . [¶] 3. Do not involve a feature of the project that was specifically addressed in, or was a basis for conditions of approval for the project, or that was a specific consideration by the applicable review authority in the approval of the permit; . . . [¶] C. Major changes. Changes to the project that do not comply with Subsection B., above, shall only be approved by the applicable review authority through a new permit application." (Italics added.)
The Residents contend the approval of the CUP was improper because the City failed to make mandatory findings that there are "changed circumstances sufficient to justify the modification of the original approval." (PMC § 17.64.050(A)(4), italics added.) The argument lacks merit. That finding was not necessary in this case because the City required a new permit application for the project.
The 1955 CUP specifically capped the height of structures at 15 feet. Because the 15-foot height restriction was "a specific consideration by the applicable review authority in the approval of the [original] permit" (PMC § 17.64.050(B)(3)), the schools application for 80-foot-tall stadium lights could not be considered a "minor change." Therefore, pursuant to PMC section 17.64.050(C), the school pursued a "major change" through a new permit application. Said application was governed by PMC section 17.40.080(D), which states: "Outdoor sports court lighting. Lighting for an outdoor sports court or field within 300 feet of a residential zoning district shall require Minor Conditional Use Permit approval."
In sum, because the school pursued a "major change" through a new permit application, as contrasted with a mere modification of the 1955 CUP, the City was not required to make a finding of changed circumstances pursuant to PMC section 17.64.050(A)(4).
2. CEQA issues.
a. Standard of review.
"An appellate courts review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial courts: The appellate court reviews the agencys action, not the trial courts decision; in that sense appellate judicial review under CEQA is de novo." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427.)
b. The fair argument standard for requiring preparation of an EIR.
The fair argument standard is derived from section 21151, which requires an EIR on any project "which may have a significant effect on the environment." (§ 21151, subd. (a).) Section 21151 mandates preparation of an EIR in the first instance whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact. (Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 102 (Alameda).) If there is substantial evidence of such an impact, then contrary evidence is not adequate to support a decision to dispense with an EIR. (Ibid.) The question addressed by section 21151 is whether any environmental review is warranted. (Alameda, supra, at p. 102.) At the initial stage of the process, section 21151 reflects a preference for resolving doubts in favor of environmental review. (Alameda, supra, at pp. 102-103.)
The Residents contend application of the fair argument standard shows an EIR is required to analyze and mitigate the projects significant adverse impacts on light and glare, aesthetic and visual impacts, noise, traffic and parking. We address the Residents concerns seriatim.
c. Residents failed to present a fair argument with respect to significant adverse impacts.
(1) Light and glare.
The CEQA Guidelines encourage agencies to adopt thresholds of significance and provide that compliance with a threshold of significance will normally lead to a determination the environmental effect is "less than significant." (Cal. Code Regs., tit. 14, § 15064.7 subd. (a).) PMC section 17.40.080, pertaining to outdoor lighting, provides in pertinent part at subdivision (A) that "[n]o lighting on private property shall produce an illumination level greater than one footcandle on any property within a residential zoning district except on the site of the light source."
The school retained Musco Lighting (Musco) to implement the lighting project. Musco is renowned for its light spillage and glare control technology. Musco prepared an illumination study measuring the impact of the lights on the schools neighbors. The study found the offsite illumination would not exceed 0.64 footcandles. Therefore, while the project would increase the amount of nighttime illumination on some of the residences bordering the schools athletic field, it would not exceed 1.0 footcandle, the standard established by the PMC.
In opposition, the Residents expert, James Benya, a lighting engineer, opined the project "may" exceed the Citys 1.0 footcandle threshold of significance. Benya stated when "corrected for values in the perpendicular plane and for initial conditions, I believe that the actual trespassing light levels may exceed 1.0 footcandle in violation of the Citys own Zoning Code Limit." (Italics added.) However, speculation or unsubstantiated opinion does not constitute substantial evidence. (§§ 21080, subd. (e)(2), 21082.2, subd. (c).)
Benya also asserted the Citys 1.0 footcandle standard is more lenient than the North American and international standards. It is true that thresholds of significance are not conclusive. (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 342.) However, Benya did not present substantial evidence that the lights would have a significant environmental impact.
Benya failed to explain how the impact of the lights can be significant in view of the fact that there will be at most nine events a year in which the lights will be operational after 7:30 p.m. In other words, between the hours of 7:30 p.m. and 10:00 p.m., the lights would be operational for a maximum of 22.5 hours a year. Moreover, only a few properties adjoining the athletic field would be impacted by the lights. (Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 734 [question under CEQA is whether project will adversely affect environment of persons in general, not whether project will adversely affect particular persons].) The City also required that the lights be tested after installation to ensure that they did not exceed the 1.0 footcandle standard established by the PMC, as to any residential property on Canfield Road. Moreover, the lights will have visors which will reduce the diffused light and help direct illumination onto the athletic field. All these factors militate against a finding of a significant lighting impact.
The Residents also contend Benya was not provided all of the data that he had requested. In this regard, the trial court noted, "While Benya states that independent analysis was `inhibited by lack of Muscos `photometries, studies and calculations for the project, he does not specify what additional facts that he could not obtain from other sources were needed. The record shows that the evidence the City relied on in reaching the conclusions in the Final [Illumination Study] was available at least as of August 2, 2006 for the BOZA hearing . . ., and even as early as July 5, 2006 . . . ."
The Residents also contend the statements of BOZA members constitute substantial evidence of a significant adverse impact from light and glare. However, the statements of BOZA members regarding the evidence presented to them do not themselves constitute substantial evidence of potential adverse impacts. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 934.)
For example, the Residents cite the statement of BOZA Chair and Planning Commissioner Guadalupe Flores "I have not see yet where — where we can have 50 foot-candles on the field and then just — as soon as we get out of the — the area of the football field — they drop to way below one foot-candle."
(2) Aesthetic and visual impacts.
The City determined there was no potential for a significant aesthetic effect. It found: "The poles would be visible in the foreground of the views from the residential developments to the north and west of the project site. However, due to their distance from the viewpoints, their narrow design, and the gray color that on the typical day will generally blend with the colors of the mountains, the impact on the views will be less than significant."
The Residents rely on Benyas opinion that the light poles would have a significant adverse aesthetic impact. However, Benya is a lighting designer and electrical engineer, not an expert on aesthetics.
The Residents also rely on testimony by area residents. The "opinions of area residents, if based on direct observation, may be relevant as to aesthetic impact and may constitute substantial evidence in support of a fair argument; no special expertise is required on this topic." (Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at p. 937.) However, "[t]he possibility of significant adverse environmental impact is not raised simply because of individualized complaints regarding the aesthetic merit of a project. [Citation.] `Under CEQA, the question is whether a project will affect the environment of persons in general, not whether a project will affect particular persons. [Citation.]" (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 376.) Here, the adverse aesthetic impact would be to six homes directly behind the athletic field.
Further, the Residents own photos showed that the four light poles would simply be an addition to an urban landscape which includes utility poles, power lines and tall trees that detract from the neighbors views. These circumstances undermine the argument the four light poles would have a significant aesthetic impact.
(3) Noise.
The noise from the use will not exceed standards established by the general plan. The attendance at soccer and track practices are estimated at under 50 and at soccer games is under 200. The events which draw the biggest crowds are football games, of which there will be either six or nine if the school makes the CIF playoffs, and will conclude by 10 p.m. Previously, these games occurred on the weekends; the installation of the lights means the noise from these events will now be generated on Friday evenings instead.
Hans Giroux, the Residents noise expert, prepared a letter for the Residents regarding the noise from the project. Giroux monitored the noise levels after a track meet from four residences adjacent to the school and noted the noise level increased by five dB as a result of the meet. However, the noise levels were between 44 dB and 50 dB, which are still within the normally acceptable ambient noise levels under the noise element of the general plan.
Giroux also relied on a noise study of a Fresno high school. There, the maximum noise level during a game where the bleachers are located 150 feet from residences (as in this case), with an attendance of one to two thousand spectators, was between 71 and 74 dB. However, even those figures are within the normally acceptable ambient noise levels under the noise element of the general plan. To reiterate, compliance with a threshold of significance means the environmental effect will normally be determined to be "less than significant." (Cal. Code Regs., tit. 14, § 15064.7 subd. (a).)
The testimony of area residents, complaining of noise generated by athletic events at the school, also does not constitute substantial evidence the project will have a significant impact on noise. Moreover, the installation of the lights would not increase the amount of noise generated by football games — it would merely shift that noise to six or nine Friday evenings during the year.
We conclude the Residents failed to present a fair argument the project will have a significant impact on noise.
(4) Parking.
The parking study prepared with respect to a previous CUP which approved the use of bleacher seats on the schools athletic field estimated that one parking space would be needed per three bleacher seats for a total of 505 spaces. The total amount of parking available on site (126 spaces) and through parking agreements with neighboring churches (625 spaces) is 751 spaces, which is more than enough even when the bleachers are filled to capacity. Further, a substantial demand for parking would occur only six or nine times per year. Also, athletic events were being played on the field even before the school sought a CUP for the installation of the lights. The project simply shifts the timing of some of those events to Friday evenings. Therefore, the Citys Department of Transportation determined that no additional parking analysis was required for this project.
Arthur Kassan, a consulting traffic engineer retained by the Residents, objected to the CUP because it did not require a study to document parking conditions. However, Kassan did not present any evidence that Friday night football games would have a greater parking impact than daytime football games during the weekend.
In this regard, one of the neighbors, Gary Green, stated that neighboring churches often have their own activities on Friday nights, reducing the off-street parking that would be available to the school. Be that as it may, churches also have activities during the weekend. The Residents failed to show the parking impact of Friday evening football games is any greater than the parking impact of weekend football games.
We conclude the Residents failed to present a fair argument the project will have a significant impact on parking.
(5) Traffic.
The Citys Department of Transportation reviewed the proposed project and determined no additional traffic analysis was required. This decision was based in part on the fact that the existing street system has sufficient capacity to serve the vehicle trips to and from the athletic field and because the majority of vehicle trips will occur during non-peak traffic times. Further, a substantial number of vehicle trips would occur only nine days annually.
Further, the installation of lighting does not increase traffic demands, which exist as part of the projects baseline. The environmental setting normally constitutes the baseline physical conditions by which a lead agency determines whether an impact is significant. (Cal. Code Regs., tit. 14, § 15125.) Prior installation of the bleachers created the existing traffic baseline. The capacity of the bleachers will not change with the installation of the lights. The lights simply allow the use of the bleachers in the evening, a use which is limited to nine football games a year.
Kassan, the Residents traffic expert, opined the project would cause significant traffic impacts, to wit: "There are potentials for significant traffic and parking impacts within the neighborhoods near the school . . . . Although those impacts may not occur during the peak commuter traffic periods on the arterial street network, they will reduce the residential environmental quality along the neighborhood streets, particularly during the evening hours after the ends of events. [¶] There is a history of the intrusion of school traffic into both of those neighborhoods during daytime and evening special events and, in some cases, as part of the normal school-day student drop-off and pick-up operations." (Italics added.)
The flaw in this analysis by Kassan is that it does not address the impact of the project against the existing traffic baseline. Given the traffic baseline and the fact the project merely shifts six or nine football games to Friday evenings, the analysis does not raise a fair argument that the project will cause a significant traffic impact.
The Residents also rely on the testimony of area residents, who opined that traffic impacts "would be exacerbated" by evening football games. However, such opinions do not raise a fair argument concerning traffic impact. Although local residents may testify to their observations regarding existing traffic conditions, "`in 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. [Citation.] `Unsubstantiated opinions, concerns, and suspicions about a project, though sincere and deeply felt, do not rise to the level of substantial evidence . . . ." (Bankers Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 274.)
In sum, we conclude the Residents failed to raise a fair argument as to light/glare, aesthetics, noise, traffic or parking. The trial court properly held the City was not required to prepare an EIR for the project.
3. No merit to contention the City and the school have piecemealed the project to circumvent CEQA.
The school is in the process of developing a twenty-year master plan consisting of five phases. The first phase consists of renovation of the track, football and soccer field; the second phase calls for a swimming pool and parking facility; the third phase would be a visual performing arts center; the fourth, a practice gymnasium; and the fifth, relocation of administrative offices. The Residents contend the instant lighting project is a segment of phase one, and that said project should not have been analyzed separately from the master plan.
CEQA prohibits "piecemeal review which results from `chopping a large project into many little one — each with a minimal potential impact on the environment — which cumulatively may have disastrous consequences. [Citations.] Thus, `reasonably anticipated future projects must be considered in an EIR and discussed in a cumulative analysis. [Citations.]" (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 370.)
In Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights), the Supreme Court set forth the following two-part test: "[A]n EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. Absent these two circumstances, the future expansion need not be considered in the EIR for the proposed project. Of course, if the future action is not considered at that time, it will have to be discussed in a subsequent EIR before the future action can be approved under CEQA." (Id. at p. 396.)
In Laurel Heights, the future expansion concerned progressive expansion into a 354,000 square foot building as the space became available. (Laurel Heights, supra, 47 Cal.3d at pp. 393, 396-397.) As noted in Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1362 (Berkeley Keep Jets), "the result in Laurel Heights . . . turned on the fact that occupying the rest of the building was linked to occupying the initial 100,000 square feet, in that the expansion would fulfill the Regents stated planning objectives." However, an EIR need not discuss "specific future action that is merely contemplated or a gleam in a planners eye." (Laurel Heights, supra, 47 Cal.3d at p. 398.)
Here, the four subsequent phases of the schools master plan are concepts or goals for the future, all of which depend on the availability of funding and on relocating the baseball field to an off-campus site. The future potential improvements, such as the addition of a parking structure and swimming, are not a "reasonably foreseeable consequence" (Laurel Heights, supra, 47 Cal.3d at p. 396) of adding night lights to the football field. The "mere fact that a lead agency acknowledges that it contemplates such a long-range goal is not, by itself, sufficient to conclude that it is a `reasonably foreseeable consequence of the initial project. [Citation.]" (Berkeley Keep Jets, supra, 91 Cal.App.4th at p. 1362.)
Further, Condition No. 17 to the CUP provides there will be no construction of new buildings or expansion of structures or facilities that would increase square footage or capacity until the applicant has submitted an application for a master plan.
For these reasons, we conclude the school and the City have not "piecemealed" the project.
4. No merit to claim that overt bias by Councilmember Little deprived the Residents of a fair hearing.
The Residents final contention is that overt bias by Councilmember Little prevented a fair hearing in violation of their right to due process. On this issue, our review is de novo because the ultimate determination of procedural fairness amounts to a question of law. (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482 (Nasha).)
The record reflects that Little had two children who attended the school and participated on sports teams, and that Little has made donations to the school. Further, Little paid the same tuition as any other parent with two children at the school. As explained below, we agree with the trial court that the Residents failed to show that Littles participation in the matter gave rise to a due process violation.
a. General principles.
The hearing before the city council was quasi-judicial in nature, rather than quasi-legislative, because the matter involved the determination and application of facts peculiar to an individual case, rather than the adoption of rules of general application on the basis of broad public policy. (Nasha, supra, 125 Cal.App.4th at p. 482.) Accordingly, procedural due process principles are applicable. (Ibid.)
Procedural due process in the administrative setting requires that the hearing be conducted before a reasonably impartial, noninvolved reviewer. (Nasha, supra, 125 Cal.App.4th at p. 483.) However, the standard of impartiality required at an administrative hearing is less exacting than that required in judicial proceedings. (Ibid.) It is recognized that "`administrative decision makers are drawn from the community at large. Especially in a small town setting they are likely to have knowledge of and contact or dealings with parties to the proceeding. Holding them to the same standard as judges, without a showing of actual bias or the probability of actual bias, may discourage persons willing to serve and may deprive the administrative process of capable decision makers." (Ibid.)
Therefore, in order to prevail on a claim of bias violating fair hearing requirements, the Residents must establish "`"an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims."" (Nasha, supra, 125 Cal.App.4th at p. 483.) A party seeking to show bias or prejudice on the part of an administrative decision maker is required to prove the same "`with concrete facts: "`[b]ias and prejudice are never implied and must be established by clear averments." [Citations.]" (Ibid.)
b. The Residents failed to establish an unacceptable probability of actual bias.
In Nasha, prior to a hearing before a local planning commission, a member of the commission authored a newsletter article that was hostile to the project under consideration. (Nasha, supra, 125 Cal.App.4th at p. 476.) This circumstance gave rise to "an unacceptable probability of actual bias . . . ." (Id. at p. 483.)
Here, the record reflects that Littles children had attended or were attending the school and participated in school sports, but not on the football team, which will be the prime beneficiary of the night lights. Little pays full tuition and there will be no increase or decrease in tuition as a consequence of the night lights. Also, Little has donated about $7,500 to the school over a five-year period, consistent with the expectations that parents donate to the school. We do not find that these circumstances give rise to an unacceptable probability of actual bias on the part of Little.
DISPOSTION
The judgment is affirmed. The Residents shall bear costs on appeal.
We concur:
CROSKEY, J.
KITCHING, J.