Preserve Poway v. City of Poway

• Decision Date: 09 March 2016
• Docket Number: D066635
• Citation: 199 Cal.Rptr.3d 600,245 Cal.App.4th 560
• Court: California Court of Appeals Court of Appeals
• Parties: PRESERVE POWAY, Plaintiff and Respondent, v. CITY OF POWAY, Defendant and Appellant; Harry A. Rogers et al., Real Parties in Interest and Appellants.

245 Cal.App.4th 560

199 Cal.Rptr.3d 600

PRESERVE POWAY, Plaintiff and Respondent,

v. CITY OF POWAY, Defendant and Appellant;Harry A. Rogers et al., Real Parties in Interest and Appellants.

D066635

Court of Appeal, Fourth District, Division 1, California.

Filed March 9, 2016

McDougal, Love, Eckis, Boehmer & Foley, Morgan L. Foley, La Mesa, and Casey C. Shaw, Temecula, for Defendant and Appellant City of Poway.

Byron & Edwards, Michael M. Edwards and Robert Scott Norman for Real Parties in Interest and Appellants Harry Rogers, John F. Trochta, Shirley R. Trochta, and John Fitch and Associates.

The Law Office of Julie M. Hamilton, Julie M. Hamilton and Leslie Gaunt for Plaintiff and Respondent.

NARES, Acting P.J.

The City of Poway (Poway) calls itself the "City in the Country." For 20 years, Harry Rogers has been operating a horse boarding facility called the Stock Farm in Poway. Rogers now wants to close down the Stock Farm and build 12 homes in its place (the Project). Most of the homes will be on one-acre lots, with enough room for horses, a legally permissible use under existing zoning. Of course, people who currently board horses at the Stock Farm will have to find someplace else. Having the Stock Farm close down particularly concerns members of the Poway Valley Riders Association (PVRA), whose 12–acre rodeo, polo, and other grounds are across the street from the Stock Farm.

Over the objections of the PVRA and others, Poway's city council voted unanimously to approve the Project under a mitigated negative declaration (MND). Subsequently, project opponents formed Preserve Poway (Preserve) and instituted this litigation, asserting the California Environmental Quality Act (CEQA) required an environmental impact report (EIR) to be prepared instead of an MND.

The superior court ruled an EIR was necessary because there was substantial evidence that the Project's elimination of the Stock Farm may have a significant impact on Poway's horse-friendly "community character" as the "City in the Country."

Unlike some CEQA cases, there is no evidence the Project violates zoning or any other land use regulations. There is also no evidence the Project will have any adverse impact on traffic, noise, or air pollution. No one contends the Project is an eyesore. The homes have not even been designed yet. There is no substantial evidence the Project, as mitigated, will cause erosion or drainage problems. There is no substantial evidence of any adverse unmitigated ecological effect. In fact, even if the Stock Farm closes and the homes are built, there will not be any reduction in Poway's horse population. The Stock Farm stables about 100 horses now. If the Project is built, about 90 horses could be kept on the privately owned lots.

The real issue in this case is not what is proposed to be going in (homes with private horse boarding), but what is coming out (the Stock Farm, public horse boarding). Project opponents essentially contend that because Rogers, a private property owner, obtained a conditional use permit to operate horse stables they have enjoyed using for 20 years, the public has a right under CEQA to prevent Rogers from making some other lawful use of his land.

As we explain, there is substantial evidence the loss of the Stock Farm's public horse boarding facilities may impact Poway residents. As one Project opponent explained, "We need to keep the stables ... to enable any young people to continue to be able to ride. It gives them something wholesome and positive to do, instead of sitting in front of a computer or video game, or getting into trouble." Another resident explained that boarding his horse at the Stock Farm taught his daughter "valuable life lessons, kept her out of trouble, allowed her to excel in school and life, [and] brought our family closer together." Several residents voiced concerns that closing the Stock Farm would damage Poway's identity as the "City in the Country."

As these quotations demonstrate, the impacts of closing the Stock Farm and building homes in its place are psychological and social—not environmental. CEQA does not apply to such impacts. "Economic or social effects of a project shall not be treated as significant effects on the environment." (Cal. Code Regs., tit. 14, § 15131, subd. (a).) "CEQA addresses physical changes in the environment, and under CEQA ‘economic and social changes resulting from a project shall not be treated as significant effects on the environment.’ " (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1019, 100 Cal.Rptr.2d 413 (Friends of Davis ).)

Whether the Project should be approved is a political and policy decision entrusted to Poway's elected officials. It is not an environmental issue for courts under CEQA. Therefore, we reverse the portions of the judgment regarding community character.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Project Site

The Project consists of 11.6 acres on the east side of Tierra Bonita Road, approximately 400 feet south of Twin Peaks Road in Poway. The site is owned by Rogers and John and Shirley Trochta (collectively, Rogers), who were represented in the permitting process by John Fitch and Associates.

Currently, the site consists of four lots with two single-family homes and the Stock Farm. The Stock Farm is an equestrian boarding and training facility that Poway's city council approved in 1996 under a conditional use permit.

The Stock Farm has not always enjoyed the level of community support it has received in these proceedings. Over the years, neighbors complained about the Stock Farm's dust, stench from manure piles, stagnant water, unpermitted construction, and drainage problems.

Nearly all of the site is located within either the floodway or the flood plain of Rattlesnake Creek, which traverses the northerly portion of the site in an east/west direction. There is significant residential development north of the Project site. To the south is a cemetery and rural land.¹

Located across the street and west of the Stock Farm are the PVRA grounds, an equestrian facility featuring events such as rodeos, horse shows, jousting and polo competitions. Many PVRA members board their horses at the Stock Farm. In the past, PVRA has considered applying for a conditional use permit to board horses on the PVRA grounds, but has declined to do so because the Stock Farm was readily available and the PVRA did not "want to deal with the liability and the work that's involved in ... boarding horses."²

The Project will subdivide the property into 12 lots. Rattlesnake Creek will be channeled for flood control. No homes would be built in the floodplain or floodway.

Eight of the proposed lots are zoned rural residential, with minimum lot sizes of one acre. Four of the northern proposed lots are smaller, zoned residential single family with minimum lot sizes of 10,000 square feet. In addition to subdividing the property, the project includes grading, extending an existing sewer line, new curb and gutters, undergrounding existing utilities, new fire hydrants, a public trail, and flood channel improvements.

No new home construction is proposed at this time and any such new construction will be subject to additional reviews and city approval. The development will be called "Poway Equestrian Estates," and owners will be allowed to board a maximum of nine horses per lot. At a public hearing, Rogers explained the Project will result in no net loss of horses in the area:

"It'd be the only equestrian facility development built, that I'm aware of, in the city of Poway.... [¶] Under the current code in Poway, there will be a hundred horses allotted ... to be in people's backyards on these properties.... [¶] ... So, the same amount of horses will be allowed to be there under our development as is what's boarded in my facility right now."

B. Neighborhood Meeting

In April 2013 Poway conducted a neighborhood meeting about the Project. Several attendees expressed concern about closing the Stock Farm. "Those attendees indicated the reason they moved to, and live in Poway, is because of the equestrian lifestyle and that the closing of ... [the Stock Farm] would harm community character." In response, city staff "indicated that continued operation of the facility ... is a private property owner decision" and "the project is in compliance with all [c]ity standards and ... no zone change is needed for the project."

A few days after the meeting, a resident sent the city an e-mail describing the impact of closing the Stock Farm on Poway's community character as the "City in the Country":

"Like many Poway children, my daughter learned to ride horses at The Stock Farm and later boarded her horses there which enabled her to participate in many of the activities at the neighboring PVRA.... Her involvement in these activities taught her valuable life lessons, kept her out of trouble, allowed her to excel in school and life, [and] brought our family closer together.... Without The Stock Farm, none of this would have been possible. It worries me that future children and families won't have the same opportunity as ours did to participate in these wonderful activities. Poway is losing its ‘City in the Country’ feel and I believe that allowing this development would further contribute to that loss."³

C. MND

After completing an initial study, in August 2013 Poway prepared an MND for the Project. In the MND, Poway found the project would create significant environmental impacts on hydrology/water quality, biological resources, utilities and service systems, and cultural resources. However, Project revisions had been made or agreed to by the project proponents, and with such mitigation, Poway concluded there is no substantial evidence that the Project will have a significant effect on the environment. The initial study and MND found the Project would have no impact on aesthetics.

Copies of the MND and the initial study were sent to the State Clearinghouse (Clearinghouse), the division of the...