Posts Tagged ‘Land Use Plan Consistency’

The Fourth District Court of Appeal upheld the trial court’s decision denying a challenge to the City of San Diego’s approval of construction of a secondary school and associated adoption of a mitigated negative declaration. (Clews Land and Livestock, LLC v. City of San Diego (2017) ___Cal.App.5th ___ (Case No. D071145).)

The City of San Diego adopted an MND and approved a project to build the 5,340-square-foot Cal Coast Academy, a for-profit secondary school, on property adjacent to the plaintiffs’ (Clews Land and Livestock, LLC, et al. [“CLL”]) commercial horse ranch and equestrian facility. CLL filed a petition for writ of mandate and complaint alleging the project would cause significant environmental impacts relating to fire hazards, traffic and transportation, noise, recreation, and historical resources. CLL also argued that CEQA required recirculation of the MND, that the project was inconsistent with the applicable community land use plan, and that the City did not follow historical resource provisions of the San Diego Municipal Code. The trial court determined that CLL had failed to exhaust its administrative remedies, and ruled in favor of the City on the merits. CLL appealed and the Court of Appeal upheld the trial court’s determinations.

Exhaustion of Administrative Remedies

The court first held that CLL failed to exhaust its administrative remedies. The San Diego Municipal Code appeal process provides for two separate procedures—one for appeal of a hearing officer’s decision to the Planning Commission, and one for appeal of an environmental determination to the City Council. Because CLL filed only an appeal of the hearing officer’s decision, the court determined that CLL failed to exhaust its administrative remedies with respect to adoption of the MND. CLL argued that the City’s bifurcated appeal process violated CEQA, but the court found the process was valid. CLL also argued that the City had not provided proper notice of the appeal procedures under Public Resources Code section 21177, subdivision (a), thereby excusing CLL’s failure to appeal the environmental determination. The court explained, however, that section 21177 did not apply because CLL’s failure to appeal was not a failure to raise a noncompliance issue under that section. Where, like here, a public agency has accurately provided notice of a public hearing, but it misstates the applicable procedures to appeal the decision made at that hearing, the only available remedy is to prevent the public agency from invoking an administrative exhaustion defense through equitable estoppel. CLL had pursued a claim for equitable estoppel in the trial court and was unsuccessful, and CLL did not challenge that determination with the Court of Appeal. Therefore, the court found, CLL’s failure to exhaust could not be excused on an equitable estoppel basis.

Adoption of the MND

Notwithstanding its determination that CLL failed to exhaust its administrative remedies, the court also considered the merits of CLL’s claims. The court determined that CLL did not make a showing that substantial evidence supported a fair argument that the project may have a significant effect on the environment. In making its determination, the court emphasized that the project is “relatively modest” and located on already-developed land.

CLL argued that the City was required to prepare an EIR due to potentially significant impacts on fire hazards, traffic and transportation, noise, recreation, and historical resources. The court rejected each of CLL’s arguments. In part, the court was unpersuaded by CLL’s expert’s comments because they were “general” and did not have a specific nexus with the project, they focused on the effects of the environment on the students and faculty at the school rather than on the effects of the school on the environment, and they were conclusory and speculative. In addition, quoting Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 684, the court noted that “dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence.” The court also found that a possibility that noise from the project would impact the adjacent business’s operations was insufficient to require an EIR under CEQA. The court explained that the question is not whether the project would affect particular persons, but whether the project would affect the environment in general. In addition, the court explained that the fact that a project may affect another business’s economic viability is not an effect that must be analyzed under CEQA unless the project may result in a change in the physical environment, such as by causing urban decay.

Recirculation of MND

CLL argued that by adding a shuttle bus plan and describing the school’s intent to close on red flag fire warning days after circulation of the MND, the City substantially revised the MND and was required to recirculate the draft prior to certification. The court rejected these contentions, explaining that the added plans were purely voluntary, and thus could not constitute mitigation measures. In addition, the court explained, CLL did not show that the plans were added to the project to reduce significant effects on the environment. According to the court, all revisions to the MND were clarifying and amplifying in nature and did not make substantial revisions to the project, and therefore, did not warrant recirculation.

Historical Resource Regulations

CLL argued that City did not follow its historical resource regulations and guidelines. The court explained that the City relied on an exemption contained within the regulations, but CLL did not address the substance of that exemption, nor did CLL show that the City was actually required to apply the specific procedures contained in the regulations. Instead, CLL simply critiqued the City’s reliance on the exemption as a post hoc rationalization; the court found this was not enough to meet CLL’s burden to show failure on the part of the City.

Consistency with Neighborhood Plan

CLL argued that the project conflicted with the Carmel Valley Neighborhood 8 Precise Plan because the plan designates the site as open space. CLL’s argument was two-fold. First, CLL argued the site could not be developed because of the plan’s open space designation. Second, CLL argued the plan’s designation was in conflict with the multifamily residential zoning at the project site.

With respect to the plan’s open space designation, the court held that CLL failed to meet its burden to show that the City’s consistency finding was an abuse of discretion. The court explained that the standard is whether no reasonable person could have reached the conclusion made by the City. In making its determination, the City relied on the fact that the property was already developed—the school would be sited at the location of a previously-capped swimming pool, and the project would not impact or be developed on undisturbed open space. The court found that the City’s determination was reasonable, and that CLL did not address the City’s reasoning or explain how the City abused its discretion. With respect to the site’s zoning, the court explained that consistency of the zoning ordinance with the plan was not at issue—instead, the issue was whether the project is consistent with the Precise Plan’s open space designation.

The court affirmed the judgment of the lower court and upheld the City’s determinations regarding the project and the associated MND.

Elizabeth Pollock

The court reversed the trial court’s decision in part, agreeing with the City of San Diego that substantial evidence supported the finding that denial of the project would preclude “reasonable beneficial use” of the property. The trial court, finding no such evidence, had not reached the question of whether evidence supported the finding that the project would not adversely affect the applicable land use plan. The Court of Appeal agreed with the City’s position and answered that question in the affirmative. Save Our Heritage Organisation v. City of San Diego (May 28, 2015), Case No. D063992.

The project concerned Balboa Park in San Diego, which in the past had hosted various expositions. During those events, a bridge and complex had been constructed that were later declared a national historic landmark and a national historic landmark district, respectively. The project consisted of closing certain parts of the area to vehicular traffic and restricting those spaces to pedestrian uses, and resurfacing and landscaping those areas in a style evocative of the original design. An increase in parking supply was also proposed. The EIR concluded that, though there would be some significant impacts on historical resources, the project as a whole would primarily benefit those resources, outweighing any negative impacts. Save Our Heritage Organisation (SOHO) filed suit, asserting violations of CEQA and the city’s Municipal Code, and contesting the paid parking. The court below rejected the CEQA and parking challenges, but agreed with the Municipal Code challenge.

The case presented a question of first impression: the proper interpretation of San Diego Municipal Code section 126.0504, subdivision (i)(3)’s requirement that the City only approve projects where it finds, for those projects with impacts on historical resources, that there would be no reasonable beneficial use of the property without the project. Pursuant to this ordinance, the city made several findings to satisfy the “no reasonable beneficial use” requirement, namely, that denial of the project would result in traffic congestion and conflicts between pedestrians and vehicles, and would continue to burden the users of the complex. Furthermore, project denial would prevent the city from recapturing those areas currently being claimed and used by vehicles as thoroughfares and parking lots and reclaiming those lands for parklands and pedestrian spaces.

SOHO contended that so long as it introduced evidence the property would be put to some beneficial use by the owner without the proposed project, it would succeed on the Municipal Code claim. The court disagreed. It found the word “reasonable” preceding “beneficial use” vests discretion in the decisionmaker; even if use of the property absent the project were deemed beneficial, the decisionmaker could find that it was not a reasonable use, and thus, still validly approve the project. The issue, in other words, was not whether there was evidence from which a reasonable person could have concluded that the property had some beneficial use in its unmodified condition, but rather whether substantial evidence supported the decisionmaker’s determination that the property’s use in its unmodified condition was not reasonable under all circumstances.

The court held there was substantial evidence supporting the city’s finding that, without the project, current pedestrian and vehicle conflicts, and resultant safety hazards, would continue. The fact that millions of visitors to the complex chose to visit, notwithstanding the hardships to them posed by the continued vehicular use, did not preclude the city from finding the project was appropriate, and that continued automobile use of the complex was not a reasonably beneficial use of the complex.

The court rejected SOHO’s alternative argument that there was no substantial evidence to support the additional finding ordinarily required under the municipal code when a project would make a substantial alteration of a designated historical resource: that denial of the project would make it infeasible to derive a reasonable economic return from the property. That argument was not preserved below.

SOHO also alleged there was no substantial evidence to support the city’s required findings that approval of the project would not adversely affect the city’s applicable land use plans. Essentially, SOHO asserted that, as long as a project opponent can identify a stated goal or policy within an applicable land use plan that would be adversely affected by a project, the decisionmaker is precluded from finding approval of a project would not adversely affect the applicable land use plans even if the decisionmaker found, based on substantial evidence, the proposed project would be consistent with the vast majority of the goals and policies of the applicable land use plans, as was the case here. SOHO cited no authority for that argument, and the court found none. The court noted that a project need not be in “perfect conformity” with every plan policy, but must instead harmonize with those policies on the whole. Inconsistencies will not nullify project approval so long as the project as a whole will not adversely affect the applicable land use plans.

Finally, regarding the paid parking issue, the court held that any purported limitations placed by an 1870 statute on the city’s power to manage its parklands was annulled by later legislative enactments.