Chinn v. Bd. of Supervisors

Filed 10/22/07 Chinn v. Bd. of Supervisors CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In this case involving a CEQA[1] challenge and other claims arising from the Monterey County Code, plaintiffs Momi and Gaynor Chinn appeal the trial courts denial of their petition in mandate under Code of Civil Procedure section 1094.5. The Chinns petition sought to vacate Monterey Countys (the County) adoption of a Negative Declaration (ND) and issuance of a conditional use permit to Douglas and Elaine Catey for the removal of 26 coast live oak trees from their property and the adjacent Pebble Beach Company right of way as well as design approval for the construction of the Cateys residence (the project).[2] The Cateys property is the only undeveloped parcel in the otherwise fully developed neighborhood in Pebble Beach and it is located next to the Chinns residence.

On appeal, the Chinns reprise many of their arguments made below, principally contending that the administrative record contains substantial evidence of a fair argument that the project and construction of the residence may have significant environmental impact and that the preparation of an environmental impact report (EIR) is consequently mandated under CEQA. They also contend that the County violated its own Municipal Code provisions concerning tree removal and preservation of neighborhood character in approving the project. We reject the Chinns arguments and affirm the judgment.

STATEMENT OF THE CASE

I. The Catey Property and the Project

The Catey lot, located at 1127 Pelican Road, Pebble Beach, is a sort of triangular shaped, though four sided, wooded parcel, consisting of approximately 10,812 square feetroughly a quarter of an acre.[3] Except for one side, it is bordered by Pelican Road, which wraps around three sides of the lot.[4] The Chinns lot borders the remaining side. The Catey parcel, which is densely forested, is described as the last remaining undeveloped lot in the area known as the Monterey Peninsula Country Club subdivision. The established neighborhood, set amidst a golf course, consists of other single family residences and country club facilities. Since the 1920s when the area was first subdivided, a total of 1,442 single family residences have been constructed in the subdivision. Many homes in the neighborhood are generally of similar size and floor area ratio (square footage of house in relation to lot area) as the house the Cateys propose to build. Many of the developed lots in the subdivision, including the Chinns, have less tree coverage than the Catey lot, and trees were removed for construction of the homes.

The Catey lot is zoned medium density residential. It is relatively level, with a slight slope to the northwest of approximately two percent. Apparently due to its triangular shape and placement relative to the street, the lot has 20-foot setback requirements on the three sides which border Pelican Road (and the Pebble Beach Company right of way). This naturally restricts the placement of any house footprint on the lot. The footprint of the house and garage proposed by the Cateys comprises less than 3,000 square feet, which, according to County planning staff, is under the maximum 3,780 square feet allowed by applicable local regulations, and does not require a variance. The total area of the proposed two-story house and attached garage, according to the Cateys and the County, is 3,738 square feet. The County contends the residence as designed and conditioned comports with all local requirements as to size, height, and lot coverage. Although the Chinns dispute this, both the Cateys and the County calculate the floor area ratio at 34.6 percent, which is just under the 35 percent allowed.

Construction of the Catey residence as proposed requires removal of 26 coastal live oak trees of between six and thirteen inches in diameter. Four of these trees are located within the Pebble Beach right of way, in the proposed location of the Cateys driveway. In conjunction with their development application, the Cateys submitted a Forest Management Plan (FMP) prepared by Glenn C. Flamik, a forester with Forest City Consulting.[5] According to Flamik, the type of forest on the Catey property is Monterey pine overstory and coast live oak understory. Flamik also noted in the FMP that the [t]ree cover is primarily coast live oak (Quercus agrifolia) and Monterey pine (Pinus radiata). In Flamiks opinion, oak trees comprise more than 10 percent of the project areas total canopy, and this would remain so even after removal of the 26 trees, a fact that is undisputed in the record.

According to the FMP, 70 coast live oak trees would remain on the project site, which includes the Catey property and the right of way that borders it.[6][7] The FMP concludes that the proposed tree removal is the minimum required under the proposed building design and it suggests protective measures to be undertaken during construction for the remaining trees. It also finds that the tree removal would not involve a risk of adverse environmental impacts in the areas of soil erosion, water quality, ecological impacts, noise pollution, air movement, and wildlife habitat. The FMP recommends against pro rata tree replacement on the project site since this is not feasible on the small, densely forested lot.

II. The Chinn Property

The Chinns purchased their property, which is next to the Catey lot, in 1990 and subsequently remodeled it. In doing so, they removed trees and extended their house or patio to within 10 feet of the line separating the properties. They also constructed an 8-foot high solid wall along the line. They plan to replace the removed trees on their lot at some unspecified point in the future.

III. Project and Design Approval

A. The Planning Commission

By early September 2004, the Cateys had requested a planning application and the County Planning and Building Inspection Department had assigned a planner, Elizabeth Gonzales, and a planning file number. On September 19, 2004, the Chinns wrote to Gonzales. They requested to be informed of any activities concerning the Catey project and residence and expressed that [t]he proposed 2-story structure will severely affect our privacy, along with that of our other neighbors. It is our hope that the many mature oak and pine trees affected by this project will be minimized [sic].

On September 30, 2004, the Cateys submitted their Development Project Application to the County. As noted, the Application included the FMP, along with building plans and other required technical reports relating to the project and construction of the residence.

Shortly after submission of the Application to the County, the Catey project was approved by two other bodies to which it is apparently subject. Both bodies, the Del Monte Forest Architectural Review Board and the Del Monte Forest Land Use Advisory Committee, gave their unanimous approval. With respect to consideration by the Land Use Advisory Committee, the Chinns voiced their objection to the project and submitted alternate house plans or sketches, which they had had prepared by their architect, Bill Mefford. Goals which the Chinns sought to achieve by the alternate plans were to reduce bulk, eliminate potential privacy problems[, and] save trees. Other neighbors also voiced their objection to the Committee based on expressed concerns about loss of trees and impact of [the] house due to [the] configuration on the lot, [the] impact of the second story and height above surrounding homes, and run off. Over these objections, the Committee approved the project and design, noting that [t]he lot in this application is a triangle, well treed [sic] [lot] which has never been built on. It is the only vacant lot in the area and it became noticeable that the neighborhood members did not want to [lose] this vacant area.

On November 1, 2004, Gonzales informed the Cateys that planning staffs review of their Use Permit and Design Approval was complete and that the application would be scheduled for the next available Planning Commission meeting with a recommendation that it be approved.

Within days, the Chinns wrote to Gonzales to express [their] concerns over this proposed project. Specifically, they said, The proposed 3,800+ sq. ft. 2-story structure is too large for the lot it sits on . . . the lot is a mere .26 of an acre. It looms over 9 homes. The structure competes with rather than [complements] what currently exists. It represents a dramatic departure from the quiet, hidden character of our neighborhood. It needs to be downsized. [] Additionally, the structure should be centered on the lot. Currently, the proposed design does not look balancedit doesnt fit the space. The proposed structure looks like it is sitting right on top of us. The reasons for this are the lots unique size and shape, and the 20 foot setbacks on 3 sides of the property. Centering the project would serve several purposes: 1) it would lessen the towering effect it has on the neighborhood since it would sit lower on the lot, 2) 9 mature coastal oaks could be saved with the current design, or more, if redesigned and downsized; and 3) this relocation would allow for a buffer zone of existing and replacement trees between the Catey[s] house and our home. [] We are also requesting that the [Cateys] reposition the windows that look onto our patio from the second floor. We just completed a renovation for the major purpose of securing privacy from our neighbors. The entire focus of our home is toward our back patio; the little privacy we created for ourselves will be destroyed by this 2-story maxed-out box.

Gonzales also received letters from other neighbors, George and Martha Rothrock. George Rothrock complained about the size of the Catey house, its compatibility with the neighborhood, and the removal of so many live oaks. He stated his understanding that [e]very square foot of the legally buildable lot is utilized leaving very little room for trees and that the Cateys do not intend to move into the house permanently and are building the house on spec . . . . Thus it is certainly not their dream house of a lifetime and its design has been maximized primarily for its resale value.[8] Martha Rothrock likewise objected to the size of the house and suggested lowering the roof line, cut[ting] some corners on the square footage, and repositioning the house to save some of the trees.

Other neighbors, the Van Roekels, also wrote to express their concern that half of the trees on this lot are to be sacrificed for Mr. Catey to build his spec house. Still other neighbors, Jeffrey and Eva Meckler and Donald Downs, echoed these sentiments in their own letters, emphasizing the location, size, and shape of the lot and in the case of Donald Downs, requesting a downsizing and relocation of the building. Yet another neighbor, Prescott Kendall, complained that the Catey project would only lower property values and destroy the aesthetics of the neighborhood and suggested that a variance be granted to reposition the house on the lot thereby reduc[ing] the number of trees destroyed.

Another Pelican Road neighbor, Robert Adler, submitted a letter which discussed drainage problems with respect to a second property he owns nearby. He suggested that the same problems would arise as a result of construction of the Catey residence, in part due to the Pebble Beach Company policy [of] neglecting improvement of Pelican Road and he opined that the impact from the loss of trees will cause more drainage over the hump in the middle of the road . . . damaging the roadbed as well as flooding properties surrounding it. [] . . . [] . . . While drainage is only preventative, flooding will have a direct effect on the home values and will cause additional issues like insurability and public safety to arise. [] . . . As a practical reality, as each tree is taken, the environmental and monetary liability from the diminished watershed rises for each of the homeowners on Pelican Road. Adler did not identify himself as having any particular qualifications or expertise for his technical opinions on the flooding or drainage threat of the Catey project.

The Pebble Beach Company responded in writing to Gonzales regarding Adlers letter concerning drainage. Its response noted that repaving of Pelican Road and upgrades to the drainage system, including the catch basin at the tip of the Catey lot, were planned for 2005 and that drainage problems associated with Adlers second residence in a different location had to do with underlying impervious granite rock in that location, which was unrelated to any issues in connection with the Catey lot or project.

The Chinns also submitted to planning staff their alternate sketches of the Catey residence as prepared by their architect Bill Mefford. Among other things, these plans moved the placement of the house on the lot to the westaway from the Chinns residenceand lowered the height of the roof line, removed and replaced windows that overlooked the Chinn property, and curved the driveway and altered setbacks to minimize the removal of protected oaks and to address the neighborhood character concerns. At least one of the design alternatives required the issuance of a variance because the placement of the house on the lot under that design would encroach into the setback areas.[9]

The Chinns further submitted to planning staff letters from two real estate agents, one of whom opined that the proposed Catey spec home would negatively affect the Chinns privacy and the value of their property. The other offered that the Catey house was ill conceived in its design and could ultimately have a negative affect [sic] on both properties as it will diminish the privacy of both . . . .

The Chinns also submitted a November 5, 2004 letter to their lawyer from Rob Cain, a Consulting Arborist. The letter purported to be a review of the proposed tree removal for the Catey project as requested by the Chinns. Cain stated that he had reviewed the Flamik FMP and had conducted a site visit. He observed, The proposed house as designed and situated on the lot now does not keep the protected tree removal to a minimum. If the house is moved from five to ten feet to the west the number of protected Oak trees that could be retained would be increased from 5 to 9 trees. Retention of these trees would reduce the number of protected trees removed from this lot by 20-33 [percent]. Also, by having the driveway entrance on the west side of the garage and not the south 1-2 more protected Oak trees could be retained on the lot with careful placement of the driveway. [] Because of the very limited amount of room for replacement trees, moving the house to the west would allow for an area to plant some mitigation trees for the proposed removals. By gaining this planting room the replacement trees could also create a more buffer[ed] zone between the proposed project and the Chinn property thus reducing the impacts the project would have on the Chinn property. [] In an area of the Del Monte Forest that is slowly converting to Oak forest and losing the mature Monterey pine cover, the retention of protected trees is important to any proposed project. With a few minor design changes or the westerly movement of the house [away from the Chinns property], the potential significant impacts of the project could be reduced to less than significant. The impacts include loss of protected trees within the area and also the visual impact of the project to the Chinn property could be reduced by allowing for buffer trees to be planted and grown up between the two properties. The letter does not state the factual premise that it appears to assumethat the proposed tree removal may have a significant effect on the environment. Nor does it offer specific factual support from which this conclusion may reasonably be drawn.

In early February 2005, planning staff conducted one of several site visits. After on-site consideration of the Chinns proposed designs and alternate placement of the house footprint further west on the lot as they suggested, Gonzales concluded that tree removal was not going to be substantially minimized [by those designs] and in fact, removal of larger Coast[al] Live Oaks [was] in jeopardy.

Just after the early February 2005 site visit, the County issued its Initial Study (IS) and its Notice of Intent to Adopt a Negative Declaration. The IS concluded that while the proposed project could potentially affect aesthetics, biological resources, utilities and/or service systems, cultural resources, noise, geology and/or soils, and land use and/or planning, it nevertheless could not have a significant effect on the environment. To the extent these specific areas could potentially be affected, the IS concluded that any impact would at most be less than significant.

With respect to aesthetics and the question whether the project would [s]ubstantially degrade the existing visual character or quality of the site and its surroundings, the IS cited the FMP and stated that the [p]roject planner conducted two site visits . . . and determined that there would be no adverse visual impact resulting from tree removal when viewed from a common public viewing area. This project will retain approximately 77 trees. With respect to biological resources and the question whether the project would [c]onflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance, the IS said that [b]ased on Planning Department resources maps and the [FMP], the removal of trees will not have a substantial adverse impact upon existing biological and ecological systems, [or] climatic conditions which affect these systems, or will not significantly reduce available habitat for wildlife existence and reproduction. Seventy-seven trees will be retained on the property and the adjacent property belonging to Pebble Beach Company. Retained trees are to be protected from construction[-]related impacts as recommended in the [FMP]. With respect to geology and soils, the IS stated that [t]he parcel is relatively level, with the slightest slope down to the Northwest of approximately 2 [percent]. The [FMP] submitted with the application states the chance of soil erosion is very low. Tree removal will only be in the footprint of the residence and the driveway and as such will not be in areas subject to erosion.

The IS finally made mandatory findings of significance, which included that the removal of twenty-six trees will not degrade the quality of the environment or have cumulative environmental adverse [effect] on human beings.

The Monterey County Water Resources Agency conditioned its approval of the project on the submission by the Cateys of a drainage plan prepared by a registered civil engineer or architect addressing on-site and off-site impacts. Drainage improvements shall be constructed in accordance with plans approved by the Water Resources Agency. In response to this condition, in February 2005, the Cateys submitted a preliminary drainage plan prepared by Douglas Catey, who is a licensed civil engineer with degrees in civil engineering and self-described expertise in water resources and water quality. The Pebble Beach Company approved of the drainage plan, as did the County Water Resources Agency, subject to the provision of further details to clear the condition of approval.

On the subject of drainage, the Chinns submitted a letter from John M. Van Zander of Bestor Engineering, Inc., dated February 15, 2005.[10] Van Zander, a civil engineer, stated in the letter that he had reviewed the Catey building plans, had conducted a site visit, and had read the letter from the Cateys neighbor, Robert Adler, suggesting that the project would lead to drainage problems. Van Zander expressed his opinion that the project will add considerably to existing drainage deficiencies in the area and therefore will have a potentially significant adverse environmental impact. Mitigation of this impact will, at a minimum, require a comprehensive drainage study and the design and installation of engineered facilities. . . . A failure of the existing drainage facility [the catch basin in the right of way] could cause stormwater runoff to cross the existing road and drainage downstream of the property.

The Catey project was noticed for hearing to take place before the Monterey County Planning Commission on March 9, 2005. On March 2, 2005, the Chinns, through their counsel, wrote to Gonzales to express their view that for myriad reasons, the IS was inadequate under CEQA. These reasons included that the project description was incomplete, confusing, inconsistent and inadequate. The Chinns urged that the IS needed to be redone and recirculated. The next day, the Chinns counsel again wrote a letter to Gonzales, copied to members of the Planning Commission, complaining that the staff report for the hearing, which recommended adoption of the ND and approval of the project subject to proposed conditions, was written before the close of the comment period and did not take into account his March 2, 2005 letter, which, he asserted, had attached three expert opinions [on the issues of tree removal/forest impacts, drainage impacts, and aesthetic/neighborhood character impacts,] each concluding that the project, as proposed, has significant environmental impacts which require further environmental review. The three opinions being referred to were those of Cain and Van Zander, as expressed in their letters discussed above, and the Chinns architect, Bill Mefford.

Meffords letter, dated March 2, 2005, said that he was familiar with the area and its design standards and that he had been asked by the Chinns to provide his opinion about the impact [that] the proposed Catey house . . . would have on the local neighborhood. The letter further stated that Mefford was very familiar with the Catey plans and he expressed his belief that numerous development alternatives exist that would substantially reduce the impacts of the project in terms of both the tree loss and aesthetic impacts on this uniquely sensitive lot. . . . Specifically, it is my opinion that the proposed Catey house design is in conflict with the special character of this neighborhood and if built as and where proposed would substantially degrade the visual character and quality of the site and the area. It would also create a new source of substantial light that would significantly impact the views and tranquility of the neighborhood. In addition, the dramatic and unnecessary reduction in forest vegetation and trees on the property (unnecessary because many trees could be saved through alternative design/location of the structure) will seriously alter the visual integrity of this unique neighborhood which is obviously designed and centered around this focal natural open space environment. This is particularly true because of the unusual circumstances of the Catey property being the center piece of this neighborhood and being so heavily forested. Therefore, it is my professional opinion that the project would result in significant adverse environmental impacts unless it is substantially redesigned and/or relocated to be more consistent with the character of the neighborhood.

No other comments were received prior to the March 9, 2005 public hearing. Gonzales received a letter from the State Clearinghouse stating that the proposed ND had been submitted to selected state agencies, that no comments had been received, and that the County had complied with State Clearinghouse review requirements for draft environmental documents under CEQA.

At the hearing, Gonzales confirmed that the square footage of the Catey residence was 3,738, that four of the oak trees proposed to be removed were in the Pebble Beach right of way, and that the project conformed to all applicable zoning regulations and design guidelines. Gonzales displayed photographs or slides of some other two-story homes in the area to illustrate that the Catey residence would blend right into the character of the neighborhood. She further confirmed that relocating the house on the lot as suggested by the Chinns would not only require a variance but also would only save about two or three trees and would actually cause the removal of larger oak trees than [those] being saved. Therefore, Staff could not support a variance. She confirmed that 52 trees would remain on the Catey lot plus 25 in the right of way, for a total of 77 on the project site, more than many of the surrounding properties.

Gonzales further acknowledged submission of the Catey drainage plan, noting that it had been approved by the Pebble Beach Company and the County Water Resources Agency. She further emphasized that the Pebble Beach Company would be repaving the road the following year, which included planned improvements to surface drainage and upgrades to the drainage system.

Finally, Gonzales mentioned that staff had only recently been apprised of the passage of Senate Bill 1334 (enacted as 21083.4) concerning oak woodland conservation.[11] She recommended that issues raised by this new statute vis--vis Catey project be opened to the public and that appropriate mitigations be considered for incorporation into the IS, which could be recirculated and the matter continued for further hearing before the Planning Commission. The County expressed its desire to study the issue and evaluate whether the project would constitute a conversion of oak woodland such that it would require mitigation measures under the new statute.

Both the Cateys spoke in support of the project and the design of the house. And Glenn Flamik confirmed that 77 oak trees would be retained on the project site. He further gave his opinion that the site would be classified in terms of forest type, consistently with the FMP, as Monterey pine overstory and coast live oak understory. But he also said that in the event the project was considered to be a conversion of oak woodland under section 21083.4, the removed trees could be donated or offered to the Pebble Beach Company for transplanting to another location, if possible, as a mitigation measure. Gonzales voiced her support for this proposed measure.

Both the Chinns and their counsel spoke in opposition to the project and the house design, counsel asserting that the CEQA workup on the project had been inadequate and that an EIR in lieu of an ND was required. He specifically contended that the project would impact neighborhood character and that issues remained for study concerning tree removal, location on the site and drainage. The Chinns voiced their opposition to the style and size of the house and the tree removal. Other neighbors also spoke in opposition to tree removal.

Finally, Al Mulholland from the County Water Resources Agency offered that the Agency had approved the initial Catey drainage plan and that, as was standard procedure, a final plan would still be required with all details provided before issuance of a building or grading permit for the project. The revised plan would be required to substantially conform to the preliminary drainage plan with additional construction details included.

Ultimately, the Planning Commission followed staffs recommendation to further evaluate whether the project constituted conversion of oak woodland as covered by section 21083.4. But the Commission also passed a resolution of intent to approve the project and adopt the ND, subject to stated conditions, pending the determination of applicability and further staff recommendations regarding section 21083.4. The hearing was continued to March 30, 2004, to resolve these pending issues.

Between March 9 and 30, 2004, planning staff studied the question of the applicability of section 21083.4 to the project, ultimately concluding that the property was not an oak woodland or a conversion and recommending approval of the project and adoption of the ND. Staff nevertheless also recommended that the suggested mitigation measure of donation of the removed trees to the Pebble Beach Company for possible transplantation be included as a condition of project approval.

In between the two meetings, another neighbor, Attilio Sciambi, submitted a letter, accompanied by drawings and calculations, which questioned the Cateys and the Countys representation of the square footage and floor area ratio of the Catey residence. The letter gave no information about Sciambis qualifications for his technical calculations.

The Chinns counsel also wrote to the Planning Commission. His letter contended that the project site was an oak woodland under [section 21083.4] and pertinent regulatory definitions and as such statutorily required mitigations must be imposed in order for the project to comply with CEQA. The letter further noted that whatever drainage plan is required must be submitted and reviewed under CEQA for secondary impacts before the project can be approved. The letter also attached another letter from the Chinns architect, Bill Mefford, disputing the Cateys square footage and floor area ratio calculations.

Before the March 30th hearing before the Planning Commission, Douglas Catey submitted his revised drainage plan to the Water Resources Agency.

At the hearing, Gonzales presented staffs evaluation and recommendations to the Planning Commission. These included that the project was not subject to section 21083.4 because it did not involve conversion of an oak woodland. Staff nevertheless recommended that the donation of removed trees as a mitigation measure be included as a condition of project approval.

Again, Douglas Catey spoke in support of the project and the Chinns spoke against it. Momi Chinn noted that what this whole matter is about is this huge house thats being built, extremely close to ours, . . . it has to do with preserving habitat . . . and the County Planners have failed . . . to look at alternatives. You know, looking at a variance, what would that do? If you move the project . . . 20 or 30 feet [to the] west, you save 25, 28 trees from what we see from the plans. In response, Douglas Catey pointed out that planning staff had explored placement alternatives by taking a cutout of the house and moving it around the lot to see if there were substantial improvements that could be made through redesign and that none could be identified.

At the close of public comment, the Commission asked for further information from planning staff on the issue of the correct square footage and floor area ratio of the Catey house. Gonzales stated that she had found the floor area ratio and lot coverage to be consistent with regulations and that differing calculations submitted by those in opposition to the project were in fact incorrect. One of the Commissioners also noted that these figures are checked again before the issuance of a building permit and that one would not be issued if the house were out of compliance.

On the question of the application of section 21083.4, the Commission agreed with staffs analysis and recommendation that it did not apply but that the donation of removed trees would be made a condition of project approval. The Commission unanimously voted to approve the project and to adopt the ND, as revised. Its written findings and decision included that subject to conditions of design approval, the project was consistent with applicable plans, policies, requirements, and standards of the Monterey County General Plan, the Greater Monterey Peninsula Area Plan, and the Monterey County Zoning Ordinance and that [t]he site is physically suitable for the use proposed. This finding was supported by cited evidence that (1) planning staff had reviewed the project for consistency with the Monterey County General Plan and other local zoning requirements contained within the MCC, including section 21.64.260 concerning removal of protected oak trees; (2) on-site inspections had verified that the project conformed to the submitted plans; the project had been reviewed for suitability by various County agencies, including Planning and Building Inspection, Public Works Department, Water Resources Agency, Environmental Health Division, Parks Department and Pebble Beach Community Services District and that [c]onditions recommended [by these agencies] have been incorporated; (3) the project had been recommended for approval by the Del Monte Forest Land Use Advisory Commission; (4) the FMP submitted by the Cateys, the objectives of which were to minimize erosion, prevent soil loss, preserve natural habitat (including native forest under story and wildlife habitat), prevent forest fires, preserve scenic forest canopy, and preserve landmark trees had concluded that the tree removal was the minimum required under the proposed building design; and (5) that the project will retain more trees than many of the surrounding properties.

In support of its adoption of the ND under CEQA, the Commission found that [o]n the basis of the whole record . . . there is no substantial evidence that the proposed project as designed and conditioned will have a significant effect on the environment. In support of this finding the Commission cited as evidence the technical reports, including the FMP, submitted by the Cateys. The evidence cited also included the erroneously stated fact that no public comments had been received during the public review period preceding the Commissions March 9th hearing even though the Chinns and other neighbors had submitted their written comments as described above.

With respect to tree removal, the Commission found that it was the minimum required under the circumstances of the case; and the removal will not involve a risk of adverse environmental impacts such as: soil erosion; water quality; ecological impacts; noise pollution; air movement; and wildlife habitat. The evidence in support of this finding included the conclusions of the FMP and its recommended tree protection measures during construction, which were adopted as conditions of approval; the further condition requiring the donation of all trees that could be transplanted; and the Countys analysis and conclusion (number 8) that section 21083.4 did not apply. This conclusion was also separately found and supported by the same evidence in addition to the fact that [m]ore than ten percent of the oak canopy will be on the site after the removal of the twenty-six trees.

On the subject of drainage, the Commission found that the preliminary Catey drainage plan had been approved by the Water Resources Agency and that drainage improvements shall be in accordance with the those plans. On this topic, approval was also expressly conditioned on the Water Resources Agencys approval of the revised drainage plan showing construction details.

B. The Board of Supervisors

The Chinns appealed the approval of the project and the adoption of the ND to the Monterey County Board of Supervisors. The stated grounds for appeal included the lack of a fair or impartial hearing, the findings, decision, and conditions are not supported by the evidence, and the decision was contrary to law. (Initial capitalization omitted.) In support of these last two grounds, the Chinns asserted that: (1) the project was not consistent with applicable zoning requirements in that the site was not physically suitable for the proposed use, relocating the house on the lot would save 13 trees, and the tree removal was not the minimum required under the circumstances of the case; (2) there was substantial evidence that the project may have a significant effect on the environment; (3) the property is an oak woodland subject to section 21083.4 and the condition requiring the donation of trees for transplanting was unenforceable and not feasible; and (4) the preliminary approval of the drainage plan does not dispense with the need for environmental review. The Chinns acknowledged in their transmittal letter of their appeal to the Board that their proposed relocation of the house on the lot would require a variance and they pointed out that they had offered to pay for the $4,600 variance application fee (in lieu of having to pay this appeal fee).

Before the public hearing before the Board of Supervisors, the County revised and recirculated the IS, which was updated with respect to hydrology and water quality to reflect that there may be a less than significant impact (instead of no impact) regarding alteration of the existing drainage pattern of the site or area and the creation of additional runoff water. The discussion of this topic was also amended to include that the County Water Resources Agency had determined that the drainage plan is sufficient, on-site retention goes above and beyond requirements for compliance and off-site drainage will not have a significant impact on the surrounding neighborhood.

The County also noticed its intent, through the Board of Supervisors, to adopt the ND. Again, no comment by state agencies was received in response to the notice or the revised IS. The matter was noticed for public hearing to take place on June 21, 2005, before the Board of Supervisors.

Before the hearing, the Chinns submitted their written objections to the revised IS,[12] which in essence reiterated the same grounds asserted in the appeal from the approval of the project by the Planning Commission, and again asserted that preparation of an EIR was required under CEQA.

Planning staff prepared written responses to the grounds stated in the Chinns appeal before the hearing. With respect to relocating the house on the Catey lot, staff pointed out that the Chinns had not taken into account tree removal for the driveway [or] the trees that are close to the house foundation. Staff has made every effort to explore alternative locations to reduce the amount of tree removal. The parcel is heavily forested and any structure placed on this site would require around the same number of trees to be remov[ed]. The project is consistent with 21.64.260 of Title 21 [of the MCC] on the basis of the aforementioned facts. Staff further noted that the residence has a relatively small footprint that is sited within the only area available within the setbacks (structure bound on all three sides by Pebble Beach right of way). . . . [U]nder the circumstances of the case, the tree removal is the minimum required.

On the subject of design, staff again observed that the project was consistent with all applicable zoning requirements, that site review had confirmed that the proposed structure was consistent with other homes in the area, and that the proposed design had passed muster under local design review processes. Staff further confirmed that the floor area ratio of the project was 34.6 percent, which was less than the 35 percent allowed.

Regarding drainage, staff noted that County Water Resources Agency had made an on-site visit in May 2005 leading to the revised conclusions about drainage in the IS and that the Pebble Beach Company had confirmed that there were no flooding issues in the area, that no such issues were expected to arise as a result of the project, and that surface drainage improvements were slated for later that year.

The staff report to the Board recommended that it reject the Chinns appeal, adopt the ND, and approve the project.

At the hearing before the Board of Supervisors, the planning director, Jeff Main, observed, Staff has tried to address the issues between [the Cateys] and the neighbors with a significant amount of time being spent over the last nine months on this project. We have addressed . . . all the technical concerns . . . resulting [from] the kind of a classic case . . . of a neighborhood [versus] applicant dispute over a new house. So any further redesign of the project . . . is going to take a lot of additional time and cost the applicant additional money for a variance.

Gonzales offered that although the Chinns had claimed that 13 trees could be saved if the house were relocated on the lot, they did not take into account trees that are too close to the structure and trees that would have to be removed for the driveway. The Staff reviewed [the Chinns] site plan and found an additional 11 trees that would need to be removed. Staff has made every effort to explore alternative locations to try and save additional trees without encroaching into the front setbacks. This is a heavily forested lot and is [constrained] by its size and shape. Gonzales went on to demonstrate to the Board with a color-coded plan of the Chinns house relocation that their design would require more tree removal than the Chinns had calculated and would require the issuance of a variance.

The Chinns and their counsel addressed the Board, asserting all of their objections and requesting that approval of the project be denied or that if it were to be approved, that it be subject to the house being moved 20 feet to the west. Two other neighbors also spoke in support of the Chinns regarding the tree removal issue, including Attilio Sciambi. He identified himself as an engineer and, consistently with his previous letter to the same effect, questioned the square footage and floor area ratio of the Catey house. At the same time, Sciambi acknowledged that he did not have a basis for calculating all the numberstheres no way to look, so I dont know if theyre good or theyre not good. Sciambi urged that the Chinns appeal should be upheld because . . . all the numbers are in question, including the lot size.

The Cateys again spoke in support of the project. Douglas Catey pointed out that if the Chinns position regarding the language of MCC section 21.64.260 concerning tree removal that addresses the minimum required under the circumstances of the case were correct and taken to its logical conclusion, no house would ever be built since that saves the most trees of all. He offered that a more reasonable reading of that phrase is to take a look at the lot, the setbacks, the number of trees on the lot, the number that are being saved, and [ask] has a reasonable job been done saving as many trees as possible. And not just every possible tree doing whatever it takes to do that.

Douglas Catey also said that Bill Mefford had erroneously counted the square footage of the stairway between the first and second floors of the house twice and thats where he comes up with the additional, I think its 50 square feet, or something like that. And, we determined with the County very early in this process, before the plans were ever drawn, that staircases count once.

In closing comments from planning staff, Jeff Main responded to the Chinns proposal to move the house on the lot. He said, this issue of moving the house back and forth, . . . the crux of Staffs argument has been that no matter how you move this particular size house around on this lot, youre going to be removing a lot of trees. Yes, you might save one or two here, but there is an argument regarding not one or twos health in comparison to the other[s]. [Sic.] So on balance, we felt that this size of a house, footprint of a house on this lot in the location thats proposed is the minimum amount [of trees] that could be removed. The screening of the structures, again moving it in any position within the lot around outside the setbacks that are required is going to have an impact on screening. So it was Staffs determination that the house located where it was provided the most screening throughout, for all of the views of the home.

After some discussion among the Board members about the acrimony that had developed in this neighborhood feud, the Board continued the matter to July 12, 2005, and passed a resolution of intent to approve staffs recommendation regarding the project, subject to some revisions suggested by the events of the hearing.[13]

Before the continued hearing, the Chinns submitted another letter dated July 11, 2005, from Rob Cain, their arborist. The letter said that the shift of the house to the west [as proposed by the Chinns] could have the potential to save an additional 9 Coast live oak trees on the Pelican property and the 4 Coast live oaks located on the Pebble Beach Company easement to the south of the property. I estimate that 21 trees would have to be removed regardless of the two designs as most would fall within both building design footprints. [Twenty-three] trees would be saved with the house being shifted to the west . . . . [Fourteen] additional trees would have to be removed in shifting the house to the west, thus having a net gain of 9 trees being saved. Most of the additional removals are trees that are smaller in diameter than those that would be saved and some are as small as two inches in diameter. . . . The proposed shifting of the house and consequent saving of 9 trees would reduce the current significant unmitigated impacts of the project. Once again, the letter does not state or support the conclusion it assumesthat the removal of 26 oak trees on the project site may have a significant environmental impact.

At the continued hearing, Douglas Catey discussed how moving the house as proposed by the Chinns would result in far less screening of the structure from the street and the other neighbors homes. The Chinns attorney reiterated the view of Rob Cain that moving the house 20 feet to the west would save nine oak trees, not the 13 he had originally thought.

After discussion by the Board, it voted three to two to approve the project and to adopt the ND, subject to additional conditions and language added to the resolution, and to reject the Chinns appeal. The written resolution included the following 10 findings, each of which cited specific evidence: (1) The Use Permit and Design Approval . . . as conditioned are consistent with applicable plans, policies, requirements, and standards of the Monterey County General Plan, the Greater Monterey Peninsula Area Plan, and the Monterey County Zoning ordinance (Title 21). (2) On the basis of the whole record before the Board of Supervisors there is no substantial evidence to support a fair argument that the proposed project as designed and conditioned may have a significant effect on the environment. The negative declaration reflects the independent judgment and analysis of the County. (3) The subject property is in compliance with all rules and regulations pertaining to zoning uses, subdivision and any other applicable provisions of the Countys zoning ordinance. No violations exist on the property. (4) The tree removal is the minimum required under the facts and circumstances of this case; and the removal will not involve a risk of adverse environmental impacts such as: soil erosion; water quality; ecological impacts; noise pollution; air movement; and wildlife habitat. (5) The Board of Supervisors finds that the proposed project is not considered Oak Woodland as described in Senate Bill 1334, Section 21083.4 of the Public Resources Code. (6) The Board of Supervisors finds that the preliminary drainage plan prepared by a registered civil engineer or architect addressing on[-]site and off[-]site impacts has been approved by [the] Water Resources Agency and will not have the potential to cause a significant environmental impact. Drainage improvements shall be constructed in accordance with the plans approved by the Water Resources Agency. (7) The establishment, maintenance or operation of the project applied for will not under the circumstances of this particular case, be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use, or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the County. (8) The County has conducted a fair and impartial public hearing on the application and related approvals. (9) An appeal of the March 30, 2005 action of the Planning Commission requesting the denial of a Use permit for Douglas and Elayne Catey . . . to allow for the removal of 26 protected Coast Live Oak trees . . . and a Design Approval to allow for the construction of a new 3,738 square foot two story single family dwelling with an attached garage was filed by [the Chinns]. The appeal was timely filed on April 27, 2005. (10) In view of the findings and evidence [cited therein], the evidence and testimony presented at the hearing, and the contents of the record as a whole, the Board finds that [the Chinns] have failed to sustain their burden on appeal. The emotional undertones of the dispute diminish the credibility of [the Chinns] witnesses testimony.

Condition number 9 of the ND stated that the smaller Coast Live Oaks . . . that can be transplanted, as determined by [the Cateys] forester, shall be donated to the Pebble Beach Company or other organization that uses them in the same general area to retain the same genetic species.[14] Condition number 12 provided that [t]he [Cateys] shall provide the Water Resources Agency [with] a revised drainage plan prepared by a registered civil engineer or architect addressing on-site and off-site impacts. The plan shall be in substantial conformance with the preliminary drainage plan dated 02/11/2005; however, additional construction details must be included. Drainage improvements shall be constructed in accordance with plans approved by the Water Resources Agency.

III. Trial Court Proceedings

The Chinns[15] challenged the Board of Supervisors decision by petition for administrative writ of mandamus and complaint for injunctive relief filed in the trial court on the same day the Board of Supervisors approved the project. The petition claimed, among other things, that the two letters from Rob Cain regarding tree removal, the letter from Jack Van Zander regarding drainage, and the letter from Bill Mefford regarding tree removal, neighborhood character, and visual resources required the preparation of an EIR because these opinions constituted substantial evidence of a fair argument that the project may have a significant effect on the environment. The petition included a cause of action against the County alleging that it violated CEQA in its approval of the project and adoption of the ND and a cause of action for injunctive relief against the Cateys, as real parties in interest, seeking to preclude them from starting any development or taking any action in furtherance of the project, including the removal of trees.

The Chinns sought the issuance of a temporary restraining order and a stay of the Countys decision approving the project. After issuing an order to show cause re preliminary injunction and setting a hearing, the court denied relief, determining that the Chinns had not met their burden of proof to support the issuance of a preliminary injunction or order for stay.

The trial court later heard and denied the Chinns petition for writ by written order. Judgment was later entered against the Chinns. This appeal followed.[16]

DISCUSSION

I.                    Contentions on Appeal

The Chinns raise numerous contentions on appeal. They have also briefed the case as if an appellate court considers the trial courts decision under these circumstances instead of the lead agencys action, which is what is at issue on judicial mandamus review of an agencys decision to adopt a negative declaration instead of preparing an EIR. But the law is that an appellate courts task in this circumstance is the same as that of the trial court to review the agencys actions to determine whether [it] complied with the procedures required by law. . . . [T]he trial courts conclusions are not binding on [the appellate court]. [Citations.] Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1183; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427; Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 571 [appellate court conducts its review independently of the trial courts findings].)

As best we can discern, the Chinns claim first that the administrative record contains substantial evidence of a fair argument that the project may have a significant effect on the environment in three general areas, which they identify as (1) tree removal; (2) drainage and hydrology; and (3) aesthetics, visual resources, and neighborhood character. As such, the Chinns claim, preparation of an EIR instead of adoption of an ND was required under CEQA.

Likewise framed under CEQA is the Chinns contention that approval of the project as designed and conditioned violated recently enacted section 21083.4 concerning conversion of oak woodlands. Further under CEQA, the Chinns claim that the IS, both as initially issued and as revised, was legally deficient.

Finally, the Chinns contend that in issuing the use permit to the Cateys, the County misapplied MCC section 21.64.260 concerning removal of coast live oak trees because the permitted tree removal was not, they claim, the minimum required under the circumstances of the case. (MCC, 21.64.260.) They also claim that the County violated its zoning policies by approving the Catey house design.

II. TheScope and Standard of Review

This appeal is from the denial of a petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5. Under this section, an agencys action is reviewed for abuse of discretion based on an examination of the whole administrative record before it. An abuse of discretion is found if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., 1094.5, subd. (b).) This standard of judicial review applies to challenges under CEQA. ( 21168, 21168.5.) And as discussed in more detail below, unique to the question whether a lead agency should have prepared an EIR in lieu of adopting an ND, we apply the fair argument test. This test involves reviewing the whole of the administrative record to ascertain if there is substantial evidence of a fair argument that the project may have a significant effect on the environment. (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1135-1136; Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1110 (Architectural Heritage); 21151; Guidelines, 15064, subd. (f)(1).)

The Chinns attempt to invoke the fair argument standard with respect to nearly every issue they raise. We do not agree that all of their challenges to project approval must be analyzed under this standard or even under CEQA. It is true however that even though construction of a single family dwelling ordinarily enjoys a categorical exemption from CEQA review ( 21084; Guidelines,  15303, subd. (a)), CEQA is triggered here under MCC section 21.64.260. This section provides that requests to remove more than three protected trees shall be subject to the requirements of CEQA.[17] The section does not subject the entire project to CEQA review. And there is no other legal basis for doing so. We accordingly confine our judicial review of the question whether the record contains substantial evidence of a fair argument that the project may have a significant effect on the environment to the issue of tree loss and the potentially related impacts of tree removal on drainage and aesthetics as suggested by the record. We also analyze under CEQA the Chinns claims that the IS was inadequate and that the County violated section 21083.4, which is a part of CEQA. These issues concern the interpretation or application of CEQA and as such are matters of law. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 118 [reviewing court must ensure compliance with statutory procedures and mandates of CEQA].)

But we will review the Chinns other challenges to the Countys approval of the project, which amount to claimed violations of the Monterey County Code, under ordinary principles of appellate review of administrative mandamus proceedings under Code of Civil Procedure section 1094.5determining whether substantial evidence supported the Countys findings and whether those findings supported its decision. In determining whether substantial evidence supports the Countys decision, which is entitled to a presumption of correctness, we look to the whole administrative record and consider all relevant evidence, including that evidence which detracts from the decision. Although this task involves some weighing to fairly estimate the worth of the evidence, that limited weighing does not constitute independent review where the court substitutes its own findings and inferences for that of the [County]. Rather, it is for the [County] to weigh the preponderance of conflicting evidence, as we may reverse its decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it. [Citations.] [Citation.] (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1288-1289; Architectural Heritage, supra, 122 Cal.App.4th at p. 1110.)

III. Legal Framework of CEQA

As previously observed by many courts, when the Legislature enacted CEQA, it sought to protect