Author Archives: Christina Berglund

Claims Raised by Environmental Groups Barred by Res Judicata, Fourth District Rules

In Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, the Fourth District upheld a lower court’s ruling sustaining the city’s demurrer without leave to amend, finding that the petitioners’ claims under CEQA and the Water Code were barred by the doctrine of res judicata.

This action relates to a proposed development pending in various permutations for decades in the Highland Hills area of San Bernardino. In 1982, the city approved a specific plan and EIR for the project. The EIR was promptly challenged by a homeowners association, one of the same petitioners in this case. The parties resolved the suit through a settlement agreement. A later addendum to the agreement stipulated that if future project modifications met specified criteria (i.e., did not increase the level of development or result in greater impacts), then those changes would be considered “minor modifications.” Minor modifications would not be subject to additional CEQA review.  The project was not built at that time.

In 2014, the original developers’ successors in interest wanted to proceed with the project. The city approved the project, agreeing that proposed modifications were minor, and did not require further environmental review. The HOA sued (the related action). Respondents requested and received a court order confirming that the modifications complied with the terms of the settlement agreement, were minor in nature, and that no further CEQA review was required.

This suit was then brought by the original petitioner, the HOA, and joined by two environmental groups (CREED-21 and Inland Oversight Committee). Petitioners asserted that the project as modified violated CEQA and the Water Code.  Respondents successfully moved for a demurrer without leave to amend. This appeal followed.

The court ruled that the petitioners’ claims were barred by res judicata, because the issue of whether further environmental review was required was resolved in the related action. Under the doctrine of res judicata, a valid, final judgment on the merits is a bar to subsequent action by parties or their privies in the same cause of action. In California, whether causes of action in two suits are the same for the purpose of res judicata depends on whether they involve the same primary right. In the CEQA context, the same primary right is at issue if the actions involve the same general subject matter, provided that they are not distinct episodes of noncompliance.

The allegations of noncompliance with the settlement agreement were the same in both this suit and the prior related matter. In both, the petitioners contended that the city violated CEQA by not conducting further environmental review. As the court held in the related matter, the updated proposal is a minor modification, and no further environmental review is required. That decision was final.

The court rejected the contention by the environmental group petitioners that they were not in privity with the HOA. Privity is found if the party’s interests are so similar that the party in the prior action was the current party’s virtual representative. The court found that standard applied here, because the environmental groups and the HOA both opposed the project and sought to invalidate its approvals. Even accepting the contention that the environmental groups were acting in public interest, and that the HOA acted in its own private interest, the petitioners failed to articulate how those interests were not aligned. The HOA did not, for example, assert any particular private harm that was not shared with the public at large. This holding is consistent with other persuasive authority finding privity between individuals asserting private interests and nonprofit organizations asserting public interests, both on similar grounds.

The court also found that the petitioners’ Water Code claims (alleging that a water supply analysis was required) were similarly barred by res judicata. As with the CEQA claims, the Water Code allegations rested on the petitioners’ key assertion—that the project was not a minor modification of the original project, and that further environmental review was required. That claim was litigated and decided; as such, a water supply analysis could not be required.

The court further briefly noted that petitioner’s claims would also be barred under the doctrine of collateral estoppel.

(Sara F. Dudley)

Fourth District Court of Appeal Holds City’s Use of Historical Baseline Legally Erroneous

In Bottini v. City of San Diego (2018) 27 Cal.App.5th 281* the Fourth District Court of Appeal upheld the trial court’s ruling ordering the City of San Diego to set aside its determination that the construction of a single-family home required full environmental review.
In February 2011, the Bottini family purchased Windemere Cottage (“Windemere”). At that time, Windemere’s designation as a historical resource was pending before the city’s historical resources board. Shortly thereafter, the board declined to grant historical status to Windemere. In November 2011, the city’s neighborhood code compliance division determined that Windemere constituted a public nuisance and ordered the Bottinis to demolish the structure. They complied. Then in August 2012, the Bottinis applied for a coastal development permit for the construction of a single-family home on the vacant lot. City staff determined that the project was categorically exempt from CEQA, but on an appeal of the determination, the city council ordered a fuller evaluation of the project using a January 2010 baseline, concluding that the demolition of Windemere was part of the project. The council further concluded that the project was not exempt because the unusual circumstances and historic resources exceptions to the exemption applied. In response to the city council’s decision, the Bottinis filed a petition for writ of administrative mandamus seeking to compel the city council to set aside its decision, as well as a complaint alleging constitutional causes of action. The trial court granted the CEQA petition finding that the demolition of Windemere was not a component of the project and therefore the city’s determination that the project is not categorically exempt lacked substantial evidentiary support. It granted summary judgment in favor of the city as to the constitutional claims. The Bottinis and the city cross-appealed.

The court of appeal held that an environmental baseline that presumed the existence of the Windemere cottage, which in reality no longer existed at the time the project was proposed, did not accurately reflect the environmental conditions that would be affected by the project. The court dismissed the city’s allegations that the Bottinis “strong-armed” the city into making a public nuisance determination because there was no evidence to support such an allegation. Moreover, the court found that the public nuisance determination confirmed that the demolition permit served a purpose distinct from and not part of the single-family home under review. Thus, the court concluded that the demolition of the cottage could not properly be considered part of the project.

Using the appropriate baseline, the court held that city erred in concluding that the Class 3 exemption did not apply to the project. The construction of a single-family home on a vacant lot is typically categorically exempt. The court further determined that no exceptions to the exemption applied.

Constitutional Violations
The Bottinis alleged three causes of action for violation of the California Constitution’s takings, equal protection, and due process clauses. Regarding the takings claim, the court applied the test set forth in Penn Central Transportation Co. v. New York City (1978) 438 U.S. 104, 124, concluding that the Bottinis did not have a “reasonable investment-backed expectation” because there was no evidence they intended to demolish the cottage when they purchased the property. Even if they had articulated a distinct expectation to do so, there was no basis to conclude that they had a reasonable expectation that they could demolish the cottage to construct a new residence without undertaking any form of environmental review. The court further found that the Bottinis could not sustain a claim for due process because they did not identify any property interest or statutorily conferred benefit of which the city had deprived them. Finally, with respect to equal protection, the court held that the Bottinis did not meet their burden to show that the city’s decision was not rationally related to a legitimate government interest.

  • Review granted, December 19, 2018.

Sixth District Upholds Categorical Exemption Determination for Microcell Transmitter Project

In Aptos Residents Association v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, the Sixth Appellate District upheld a county’s determination that the installation of microcell transmitters on existing utility poles for the purpose of providing wireless coverage was exempt from CEQA review.

The county zoning administrator considered 11 applications for the installation of 13 microcell transmitters in the Day Valley area of Aptos, finding that the project fell within the Class 3 categorical exemption that applies to small structures and that no exceptions to the exemption applied. The petitioner association appealed to the county planning commission, which denied the appeal—and the board of supervisors declined to take jurisdiction over the appeal. The petition for writ of mandate alleged that the county had improperly segmented the project and that several potential exceptions applied to the project, thereby defeating the county’s use of the Class 3 categorical exemption. The petitioner also alleged that the board had abused its discretion in declining to take jurisdiction of the administrative appeal.

With respect to “piecemealing,” the court held that the county had not improperly segmented the project. The applicant’s filing of separate permit applications and the county’s issuance of a separate permit and exemption for each project were not evidence of piecemealing. The court found that throughout the administrative proceedings, the county had considered the entire group of microcell units to be one project. It stated that “[t]he nature of the paperwork required for approval of the project is immaterial.”

Next, the court held that the board had not abused its discretion in finding that new evidence submitted by petitioner about a possible future AT&T project was not significant new evidence relevant to its decision. The petitioner had submitted a declaration from its attorney stating that county staff had been contacted by AT&T about a cell transmitter project in the same area. The court found that the evidence was too vague to support a finding that a possible AT&T project would be of “the same type in the same place.”

The court also held that the location exception to the exemption in CEQA Guidelines section 15300.2, subdivision (a) did not apply. The court rejected the argument that the neighborhood’s residential-agricultural zoning classification designated the area “an environmental resource of hazardous or critical concern,” because nothing in the statement of the purpose for that zoning district indicated as much.

Finally, the court found that the unusual circumstances exception also did not apply because petitioner produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area or in an area zoned residential-agricultural.

Fourth District Upholds City’s Reliance on Class 3 Categorical Exemption for Wireless Telecommunications Project in Dedicated Park

In Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338, the Court of Appeal held that the approval of a wireless telecommunications facility (WCF) on the edge of a dedicated park did not violate the San Diego City Charter. The court also held that the city’s determination that the project qualified for the Class 3 categorical exemption was supported by substantial evidence, and the project challengers failed to meet their burden of showing that any of the potential exceptions to the use of categorical exemptions precluded the city’s reliance on the exemption here.

In 2014, Verizon Wireless filed an application with the city to build the WCF on the outskirts of Ridgewood Neighborhood Park in San Diego. The project consisted of a 35-foot-tall faux eucalyptus tree and a 220-square-foot equipment enclosure with a trellis roof and a chain link lid.

The city approved the project in 2015 after finding that it was consistent with the city’s charter and was exempt from CEQA under the Class 3 categorical exemption. A local group dubbed Don’t Cell Our Parks (DCOP) filed a lawsuit challenging the city’s decision. The trial court ruled in favor of the city and DCOP appealed.

The court first rejected DCOP’s argument that the project violated the city’s charter. Pursuant to section 55 of the charter, any changed use of a dedicated park must be approved or ratified by the voters. The court concluded this provision did not apply because there was ample evidence to support the conclusion that the project would not change the park’s use or purpose. Nor would the project would disrupt or interfere with park or recreation uses.

DCOP next argued that the project did not qualify for a Class 3 exemption because it was a new stand-alone utility that was not an intended type of urban infill development encompassed by the Class 3 exemption. The court disagreed.

Applying the plain language of CEQA Guidelines section 15303, the court held that the project consisted of the construction and location of a new small facility or structure, within the meaning of the Class 3 exemption. The project was a new small facility totaling 534 square feet, including the above-ground branch diameter of the faux tree. The court noted that while none of the project examples listed in the exemption were exactly like the proposed project, the facility was much smaller than the listed examples of a single-family residence, store, motel, office or restaurant.

DCOP argued that even if the project qualified for the Class 3 exemption, the “unusual circumstances” exception precluded the city’s reliance on the exemption. Under that exception, an agency cannot rely on a categorical exemption if there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. In order to prove the exception, project opponents generally must prove (1) that there are unusual circumstances that distinguish the project from other projects in the exempt class and (2) that there is a reasonable possibility of environmental impacts due to those unusual circumstances. DCOP could not satisfy either part of that test.

For the first part, DCOP argued that the project’s location within a dedicated park was an unusual circumstance in and of itself. The court disagreed, noting that there was substantial evidence in the record that at least at least 37 similar facilities already existed in dedicated parks elsewhere in the city. Therefore the city’s determination that the project did not present or arise under unusual circumstances was upheld by the court.

Even assuming, for argument’s sake, that the project was unusual, the court found that DCOP failed to show a reasonable possibility that the unusual circumstances (i.e., the project’s location in the park) would cause any significant environmental impacts. DCOP claimed that the project would have an adverse environmental impact on aesthetics and the park and recreational uses, but the court found that the evidence relied on by DCOP was insufficient even under the “fair argument” standard.

Finally, DCOP argued that the placement of the project in a sensitive and protected resource area— a dedicated park—precluded the use of a categorical exemption under subdivision (a) of Guidelines section 15300.2. The “location exception” is restricted to projects that “may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” According to the court, DCOP presented no evidence that the park was a location “designated” as an “environmental resource of hazardous or critical concern” by any federal, state or local agency. The court explained that the lack of such a formal designation defeated the application of the exception.

Fifth District Finds Report Prepared by Real Estate Broker Was Not Substantial Evidence of Urban Decay

In Visalia Retail, LP v. City of Visalia (2018) ­­20 Cal.App.5th­­ 1, the Fifth District upheld the City of Visalia’s certification of an Environmental Impact Report (EIR) for its general plan update. Though the EIR did not analyze the potential for urban decay, the court found that the record contained no substantial evidence that a land use policy restricting the size of commercial tenants in a neighborhood commercial area would result in urban decay. The court also found that the city’s general plan was not internally inconsistent and that the city had not violated relevant Planning and Zoning Law notice provisions.

The city prepared an EIR for an update to its general plan, which included updating the land use policy at issue. Under that policy, commercial tenants in neighborhood commercial areas may not be larger than 40,000 square feet. The petitioner argued that the size restriction would cause significant physical impacts in the form of urban decay, and therefore the EIR was inadequate for failing to address those impacts. In support of this argument, the petitioner submitted a report prepared by a real estate broker, who opined that the 40,000-square-foot cap would cause grocers to refuse to locate in the neighborhood commercial centers, which would cause vacancies and would then, in turn, result in urban decay.

The court rejected this argument finding that the report did not provide the requisite basis for the petitioner’s challenge because its analysis of causation was speculative and the potential economic consequences does not mean that urban decay would result. The court distinguished Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, where it had held that the EIR in that case was fatally defective for failing to analyze the individual and cumulative potential to indirectly cause urban decay resulting from the development of two shopping centers. But there, the court emphasized, the analysis of urban decay is required when there is evidence suggesting that the economic and social effects caused by development could result in urban decay. Here, the court found no such evidence in the record.

The court also found that the size restriction was not inconsistent with the general plan’s stated goal of encouraging infill development. Finally, the court held that the city did not violate the 10-day notice requirement set forth in the Planning and Zoning Law by failing to re-notice additional meetings on the general plan amendment.