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Filed 12/11/20 Citizens for Smart Development etc. v. County of Amador CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Amador)

----

CITIZENS FOR SMART DEVELOPMENT IN 

AMADOR COUNTY,

Plaintiff and Appellant,

v.

COUNTY OF AMADOR,

Defendant and Respondent.

C082915

(Super. Ct. No. 15CVC0374)

To address jail overcrowding, the County of Amador (the County) proposes to 

expand its existing jail to add 40 additional inmate beds, space for inmate education, and 

other supportive facilities. As part of the planning process for this project, the County 

completed an initial study to determine the project’s potential environmental impacts, as 

is required under the California Environmental Quality Act (CEQA; Pub. Resources
2

Code, § 21000 et seq.).

1

 Following the study, and after hearing public comments, the 

County found the proposed expansion would have no significant impacts if certain 

mitigation measures were implemented. It thus prepared a mitigated negative declaration 

for the project. 

Citizens for Smart Development in Amador County (Citizens) brought this action 

in response. In their view, the County failed to sufficiently evaluate the project’s 

aesthetic and hydrology impacts, wrongly deferred the specifics of certain mitigation 

measures, wrongly found the project’s mitigation measures would adequately reduce 

project impacts, and failed to certify that the mitigated negative declaration reflected the 

County’s independent judgment. The trial court disagreed with each of their claims, and 

we do too. We thus affirm.

BACKGROUND

The County’s current jail was constructed in 1984 and has beds for 76 inmates. 

But in recent years, it has housed far more than these beds can sleep. In 2014, for 

example, the jail housed an average of over 91 inmates.

To address overcrowding, in 2008, the County applied for and obtained a 

conditional grant from the state to finance a new jail that could house a larger inmate 

population. But the County ultimately was unable to move forward with the planned new 

facility, in part because of difficulties in deciding where to site the jail and in part 

because of funding issues. After these plans fell through, the County considered in 2014 

a cheaper alternative to a new facility: An expansion of its existing jail facility. That is 

the project before us.

The County’s proposed jail expansion involves the construction of an 8,000 to 

10,000 square foot space adjacent to the existing jail that would include, among other 

1 Further undesignated statutory references are to the Public Resources Code.
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things, 40 new inmate beds and space for exercise, educational programs, and segregating 

inmates. It would also include new walkways and a new parking lot with about 20 

spaces.

In late 2014, the County initiated CEQA review for the project. To that end, the 

County completed a ground penetrating radar survey, a biological resources assessment, 

and a geotechnical investigation for the proposed project. In part based on these studies, 

the County found that “although the proposed project could have a significant effect on 

the environment, there will not be a significant effect in this case because revisions in the 

project have been made by or agreed to by the project proponent.” It afterward sought 

comments from the public about the project.

In response to the proposed expansion, several residents living near the jail 

expressed concerns about the project’s potential environmental impacts. In particular, as 

relevant here, these residents contended the project would infringe on one resident’s 

privacy, shade another’s property, potentially have bothersome lighting, and lead to 

increased stormwater runoff. 

But in the end, the County continued to find the jail expansion would “not have a 

significant adverse effect on the environment due to mitigation measures incorporated 

into and required of the project.” It thus adopted a mitigated negative declaration (MND) 

for the project on July 20, 2015, and issued a notice of determination about its findings 

that same day.

Citizens afterward filed a petition for writ of mandate challenging the County’s 

approval of the project, raising, in the trial court’s view, four issues: “(1) the MND is 

inadequate in impacts analyses regarding aesthetics; (2) the MND is inadequate in 

impacts analyses regarding hydrological impacts; (3) the Project will create a mandatory 

finding of significance; and (4) the County failed to make a required CEQA finding.” 

But the trial court found none of Citizens’s claims warranted granting their petition. It 

thus denied their petition. Citizens timely appealed. 
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DISCUSSION

I

CEQA Background

We start with a little background on the purpose and structure of CEQA. CEQA 

serves “to ensure that public agencies will consider the environmental consequences of 

discretionary projects they propose to carry out or approve.” (Stockton Citizens for 

Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 488.) To that end, an 

agency proposing to carry out or approve a project generally must conduct an initial study 

to determine “if the project may have a significant effect on the environment.” (Cal. 

Code. Regs., tit. 14, § 15063, subd. (a).) 

Depending on the initial study’s findings, the agency must then prepare either an 

environmental impact report (EIR) or a negative declaration. If “there is no substantial 

evidence that the project or any of its aspects may cause a significant effect on the 

environment,” the agency need only prepare a negative declaration that “briefly 

describ[es] the reasons that a proposed project . . . will not have a significant effect on the 

environment.” (Cal. Code. Regs., tit. 14, §§ 15063, subd. (b)(2), 15371.) But if 

substantial evidence shows the project may in fact have a significant environmental 

effect, then the agency generally must prepare an EIR providing detailed information 

about the project’s potential environmental impacts. (§§ 21100 [state agency 

requirements], 21151 [local agency requirements], 21061 [defining an EIR].) But not 

always. Rather than prepare an EIR under these circumstances, “[t]he public agency may 

instead prepare a mitigated negative declaration (MND) if ‘(1) revisions in the project 

plans . . . before the proposed negative declaration and initial study are released for public 

review would avoid the effects or mitigate the effects to a point where clearly no 

significant effect on the environment would occur, and (2) there is no substantial 

evidence in light of the whole record before the public agency that the project, as revised, 

may have a significant effect on the environment.’ (Pub. Resources Code, § 21064.5.)” 
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(Friends of College of San Mateo Gardens v. San Mateo County Community College 

Dist. (2016) 1 Cal.5th 937, 945.)

In reviewing an agency’s compliance with CEQA, courts review for abuse of 

discretion. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 

1112.) Courts will find an agency abused its discretion if it either failed to proceed in a 

manner required by law or reached a decision not supported by substantial evidence. (Id.

at p. 1110.) Although the “substantial evidence” standard is often viewed as a highly 

deferential one, it is less so in cases involving challenges to an agency’s decision to 

prepare a negative declaration rather than an EIR. In those types of cases, like ours, 

courts apply what is known as the “fair argument” test. Under that test, courts will find 

an agency’s decision is not supported by substantial evidence if a challenging party has 

raised a “fair argument,” based on substantial evidence in the record, that a proposed 

project may have a significant environmental effect. (See Friends of College of San 

Mateo Gardens v. San Mateo County Community College Dist., supra, 1 Cal.5th at p. 

957.) With that background, we turn to Citizens’s arguments.

II

The County’s Review of the Project’s Potential Environmental Impacts

A. Aesthetic Impacts

Citizens first take issue with the County’s review of aesthetic impacts. First, they 

assert that the project will have significant unmitigated impacts concerning “privacy and 

sunlight blockage.” In our view, however, they never raise a “fair argument” that these 

alleged impacts could be significant. In terms of privacy, Citizens note that one resident 

alleged that certain parts of the project would look down onto his property. That same 

resident then later asserted the project would shade another landowner’s property during 

the winter. But this limited evidence about the potential impacts to two properties is not 

substantial evidence raising a fair argument that the project may have a significant impact 

on the environment. (See Parker Shattuck Neighbors v. Berkeley City Council (2013) 
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222 Cal.App.4th 768, 782 (Parker Shattuck Neighbors) [“In general, CEQA does not 

regulate environmental changes that do not affect the public at large.”]; Clover Valley 

Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 243 [“ ‘ “Under CEQA, the 

question is whether a project will affect the environment of persons in general, not 

whether a project will affect particular persons.” ’ ”]; Bowman v. City of Berkeley (2004) 

122 Cal.App.4th 572, 586 (Bowman) [“obstruction of a few private views in a project’s 

immediate vicinity is not generally regarded as a significant environmental impact”].)2 

Citizens next allege the project will have significant lighting impacts. They note 

that one resident testified that new “ ‘lighting might . . . produce glare’ ” for some 

properties, and another similarly testified that new lighting “ ‘might glare in through the 

windows’ ” of some neighboring properties. But these speculative comments standing 

alone fall well short of showing the project’s lighting impacts could be significant. (See 

§ 21080, subd. (e)(2) [“[s]ubstantial evidence is not . . . speculation”].) These comments 

also appear to ignore the County’s mitigation measure to address lighting impacts. In the 

MND, the County found impacts caused by exterior security lighting for the project 

would be reduced to less than significant by using lighting “of a type and style (shielded 

and downward directed) so as to minimize light bleed and glare onto adjacent properties.” 

Although Citizens express concerns about potential glare, they never explain in their 

opening brief why this mitigation measure would fail to address their concerns. We thus 

have no reason to find the County’s mitigation measure inadequate.3

2 The County contends we should also reject Citizens’s privacy claim for another 

reason: An impact to an individual’s privacy is not an aesthetic impact. But because we 

reject Citizens’s argument for another reason, we need not consider this alternative 

argument. 

3

In their reply brief, Citizens briefly explain why they believe this mitigation 

measure is inadequate. But because they raise this argument for the first time in their 
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Finally, Citizens contend one of the County’s mitigation measures wrongly defers 

the specifics of mitigation. In the MND, the County found impacts to “the existing visual 

character or quality of the site and its surroundings” would be reduced to less than 

significant by submitting project plans “to the City of Jackson for design review and 

comment.” According to Citizens, this “design review after the fact (after project 

approval by the County) does not count as CEQA compliance prior to project approval, 

as is required.” We reject the claim. 

To begin, courts have rejected similar arguments concerning the use of design 

review. Take Bowman, supra, 122 Cal.App.4th 572. The lead agency there found a 

housing complex, with retail on the ground floor, “would not ‘[s]ubstantially degrade the 

existing visual character or quality of the site and its surroundings’ . . . in part because 

‘[c]onstruction of this project is subject to design review and approval prior to issuance of 

building permits.’ ” (Id. at p. 593.) Several individuals and an association later 

challenged this conclusion, contending, among other things, that the project would be 

“out of character with its surroundings” and thus cause significant aesthetic impacts. (Id.

at p. 587.) But the court rejected the challenge based on two principal considerations. 

First, the court found it significant that the project would be located in an area that was 

already highly developed. Quoting the regulations implementing CEQA, the court 

explained that “ ‘the significance of an activity may vary with the setting. For example, 

an activity which may not be significant in an urban area may be significant in a rural 

area.’ [Citations.]” (Id. at p. 589.) The court then concluded that it “d[id] not believe 

that our Legislature in enacting CEQA . . . intended to require an EIR where the sole 

environmental impact is the aesthetic merit of a building in a highly developed area.” 

(Id. at p. 592.) Second, the court found it significant that the project was subject to 

reply brief, without good cause, we will not consider it. (See Neighbours v. Buzz Oates 

Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
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design review before the issuance of building permits. According to the court, “[w]here a 

project must undergo design review under local law, that process itself can be found to 

mitigate purely aesthetic impacts to insignificance, even if some people are dissatisfied 

with the outcome.” (Id. at p. 594.) “A contrary holding that mandated redundant 

analysis,” the court added, “would only produce needless delay and expense.” (Ibid.)

Bowman’s reasoning, if applied here, would appear to weigh heavily in the 

County’s favor. But even if we found Bowman distinguishable, as Citizens maintain, we 

would still reject their argument. Although Citizens contend the County’s design-review 

measure is flawed, they never raise a fair argument that the project could have 

unmitigated significant impacts as a result. They maintain, as discussed, that the project 

could have significant aesthetic impacts based on lighting, privacy, and sunlight issues; 

but again, we find none of these contentions persuasive. And so, even assuming the 

design-review measure would do nothing, Citizens still would have failed to raise a fair 

argument that the project’s aesthetic impacts could be significant. We thus reject their 

contention that the challenged measure may insufficiently mitigate the project’s potential 

aesthetic impacts. (See Parker Shattuck Neighbors, supra, 222 Cal.App.4th at p. 778 [a 

court “need not consider” a party’s challenge to a negative declaration’s mitigation 

measures unless that party first identifies substantial evidence supporting a fair argument 

that the project could have a significant impact]; 1 Kostka & Zischke, Practice Under the 

Cal. Environmental Quality Act (Cont.Ed.Bar 2019) § 6.78C [“A reviewing court need 

not consider whether mitigation measures in a negative declaration are adequate if the 

petitioner fails to identify substantial evidence supporting a fair argument that the 

project’s impacts would be significant in the absence of mitigation.”].)

B. Hydrological Impacts

Citizens next challenge the County’s analysis of hydrological impacts. First, 

expressing concern that the project will increase runoff to neighboring properties, 

Citizens fault the County for not studying the project’s potential impacts from increased 
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runoff “with expert analysis in the form of a hydrology study.” But the County did 

obtain an expert report, albeit a very brief one, from an engineering firm, which discussed 

runoff and other project issues. That report, for example, acknowledged potential runoff 

issues and recommended that “[s]pecial care . . . be taken to ensure adequate drainage is 

provided throughout the life of the structure.” The County, in light of this report and 

other considerations, agreed “to ensure that all runoff from the project site will not 

exceed the pre-project flow rates.” It also agreed to design the project “consistent with 

local requirements,” which impose similar limitations on runoff. Under Jackson City 

Municipal Code, for example, “[t]he net rate release of runoff from a site onto adjoining 

parcels and rights-of-way after construction shall not be greater than pre-construction 

levels of the runoff release from the site based on a 20-year, one-hour storm event.” 

(Jackson Mun. Code, § 17.30.050(D).) 

Citizens might have preferred a more in-depth study about runoff, and, in some 

circumstances, we might have agreed that a more detailed study would have been better. 

But here, given the County’s commitment to ensure the project did not increase runoff 

rates, we are not persuaded that the County needed to undertake a more detailed study 

about the potential impacts from increased runoff rates. In any event, even if a more indepth study would have been helpful, a lack of study “ ‘on a particular issue does not 

automatically invalidate a negative declaration.’ ” (Gentry v. City of Murrieta (1995) 36 

Cal.App.4th 1359, 1379.) Although it may “ ‘enlarge the scope’ of the fair argument 

which may be made ‘based on the limited facts in the record,’ ” a “lack of study, standing 

alone, does not give rise to a fair argument that [a] [p]roject will in fact have significant

. . . effects. [Citation.]” (Id. at p. 1382; see also Parker Shattuck Neighbors, supra, 222 

Cal.App.4th at p. 786 [“a suggestion to investigate further is not evidence, much less 

substantial evidence, of an adverse impact”].)

Citizens next contend the County’s mitigation measures to address runoff impacts 

wrongly defer the specifics of mitigation. To address runoff related issues, the County, 
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among other things, agreed to develop drainage plans “to assess drainage patterns,

potential erosion and downstream flooding impacts” before final project design. The 

County further agreed that “[t]he final project design will be consistent with local 

requirements and include design features to ensure that all runoff from the project site 

will not exceed the pre-project flow rates.” According to Citizens, these measures “are 

vague, unenforceable, improperly defer to future mitigation, and are otherwise 

inadequate.” We disagree.

Citizens’s objection is similar to one our court rejected in Friends of Oroville v. 

City of Oroville (2013) 219 Cal.App.4th 832 (Friends of Oroville). The lead agency 

there, for one of its mitigation measures, required the project applicant to “submit for the 

[lead agency’s] approval a drainage plan ‘that will ensure that runoff from the [P]roject 

site is released at a rate no greater than that of the pre-development condition.’ ” (Id. at 

p. 838.) Several plaintiffs later challenged the mitigation measure, alleging it 

“improperly defer[red] formulation of specific mitigation strategies until after the 

Project’s approval.” (Ibid.) But we rejected the challenge. We noted that “[d]eferral of 

mitigation specifics is permissible where the relevant agency commits itself to mitigation 

and articulates specific performance criteria or standards that must be met for the project 

to proceed.” (Ibid.) We then found the agency’s measure “compl[ied] with this 

principle,” reasoning that it articulated a specific performance standard—namely, no 

increase in the rate of runoff—to mitigate potential drainage impacts. (Ibid.) 

We find likewise here. As in Friends of Oroville, the County identified a potential 

problem (a potential increase in runoff) and committed to a specific performance standard 

to address that problem (no increase in the rate of runoff). Although the County has yet 

to identify the particular means to achieve that objective, other than that it will involve 

the use of underground cisterns, the County’s mitigation measure is not unlawful for that 

reason. (See Friends of Oroville, supra, 219 Cal.App.4th at p. 838; Laurel Heights 

Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 418 [lead 
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agency satisfied CEQA when it committed to limit noise from a project’s ventilation fans 

to a certain level, even though the fans had yet to be selected and specific noise control 

treatments had yet to be evaluated]; Defend the Bay v. City of Irvine (2004) 119 

Cal.App.4th 1261, 1274-1276 [lead agency satisfied CEQA when it “committed to 

mitigation, and . . . specified the criteria to be met,” even though the details of mitigation 

would depend on future study].)

C. Hazardous Emissions or Materials

Citizens also challenge the County’s mitigation measures concerning potential 

impacts from hazardous emissions and materials. In their view, the County wrongly 

defers the specifics of mitigation related to these impacts.

But Citizens never acknowledge that the trial court found this claim “waived 

and/or barred.” The trial court evaluated only those claims “raised in the Petition and 

substantively briefed by [Citizens] in [their] opening brief,” finding all other arguments—

including Citizens’s argument here—“waived and/or barred.” Because Citizens declined 

to challenge this aspect of the court’s decision, we have no reason to find it flawed. (See 

Center for Biological Diversity v. California Department of Conservation (2019) 36 

Cal.App.5th 210, 226 [“ ‘ “ ‘[i]ssues not raised in an appellant’s brief are deemed waived 

or abandoned’ ” ’ ”].) We thus will not disturb the court’s unchallenged finding that 

Citizens’s claim here was “waived and/or barred.”

D. Mandatory Findings of Significance

Lastly, in terms of the County’s evaluation of project impacts, Citizens take issue 

with the County’s consideration of certain “mandatory findings of significance.” 

The whole of Citizens’s argument consists of a single paragraph: “[T]he 

Mitigated Negative Declaration itself concluded that the project would create a 

Mandatory Finding of Significance but provides no explanation nor mitigation measure. 

[Citation.] The problem is that the box stating the impact would be reduced to

significance with mitigation measure is checked [citation], but no mitigation measures 
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were identified. There is substantial evidence in the record that the project will cause 

substantial adverse effects on human beings, either directly or indirectly. That evidence 

is set forth above in section IV.B.1.a. [Citation.] Thus, the impact remains significant 

and unmitigated so a Negative declaration is not substantiated.” 

Citizens’s argument suffers from several significant flaws. To start, their 

argument is premised in part on a cross-referenced section, section IV.B.1.a., that does 

not exist. But even more problematic, no part of Citizens’s argument was presented at 

the administrative level. Parties challenging an agency’s negative declaration or EIR 

under CEQA must show “the alleged grounds for noncompliance . . . were presented to 

the public agency orally or in writing . . . .” (§ 21177, subd. (a).) But Citizens never 

made that showing here. For that reason, the County asserted that Citizens’s claims 

relating to “Mandatory Findings of Significance . . . [are] barred and may not be 

litigated.” We agree. (California Native Plant Society v. City of Rancho Cordova (2009) 

172 Cal.App.4th 603, 615 [“ ‘ “Exhaustion of administrative remedies is a jurisdictional 

prerequisite to maintenance of a CEQA action.” ’ ”].) 

III

The County’s Independent Judgment and Analysis

Finally, we consider Citizens’s contention that the County failed to “make a 

finding that the mitigated negative declaration reflects the agency’s independent 

judgment and analysis.” (See § 21082.1, subd. (c)(3) [a lead agency must, “[a]s part of 

the adoption of a negative declaration or a mitigated negative declaration, or certification 

of an environmental impact report, find that the report or declaration reflects the 

independent judgment of the lead agency”].)

The trial court rejected this argument on the ground that Citizens “failed to 

administratively exhaust this issue.” The court reasoned that Citizens never commented 

about this shortcoming during the administrative proceedings, even though they had 

ample opportunity to do so. (See § 21177, subd. (a) [a party challenging an agency’s 
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MND under CEQA must show “the alleged grounds for noncompliance . . . were 

presented to the public agency orally or in writing . . . .”].)

In their opening brief on appeal, however, Citizens never allege the trial court 

erred in this regard. We thus have no reason to depart from the trial court’s finding that 

Citizens forfeited their claim here by “fail[ing] to administratively exhaust this issue.” 

(See Center for Biological Diversity v. California Department of Conservation, supra, 36 

Cal.App.5th at p. 226 [“ ‘ “ ‘[i]ssues not raised in an appellant’s brief are deemed waived 

or abandoned’ ” ’ ”].)4 

DISPOSITION

The judgment is affirmed. The County is entitled to recover its costs on appeal. 

(Cal. Rules of Court, rule 8.278(a).)

 /s/

BLEASE, Acting P. J.

We concur:

 /s/

HULL, J.

 /s/

MURRAY, J.

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In their reply brief, Citizens argue for the first time that the trial court wrongly 

found they failed to exhaust their administrative remedies. But because they raise this 

argument for the first time in their reply brief, without good cause, we will not consider 

it. (See Neighbours v. Buzz Oates Enterprises, supra, 217 Cal.App.3d at p. 335, fn. 8.)