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Fourth District Upholds Balboa Park Project Approval, Finds Substantial Evidence Supports Determinations

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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.

Court Upholds the City of Newport Beach’s EIR and Concludes that the City’s Actions Complied with Its General Plan, Distinguishing and Disagreeing with California Native Plant Society v. City of Rancho Cordova

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In Banning Ranch Conservancy v. City of Newport Beach, the Court of Appeal upheld the city’s EIR for the Newport Banning Ranch Project and held that the city complied with its own general plan. In reaching the latter conclusion, the Fourth Appellate District both distinguished and disagreed with the Third Appellate District’s holding in California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603.

In 2012, the City of Newport Beach approved the Newport Banning Ranch Project. The project is located on 400 acres of coastal property in Orange County. The project site is home to both oil wells and endangered species. Because the property is in the city’s sphere of influence, the city was asked to approve the project. The city studied the environmental impacts of the project in a 9,000 page EIR before conditionally approving the project. The approvals recognized that the project could not go forward without a number of subsequent actions by other agencies. For the purposes of the litigation, the most important approvals would come from the California Coastal Commission.

The litigation focused on two issues related to the Commission and the Coastal Act. The petitioner argued that the city violated CEQA when it did not identify “environmentally sensitive habitat area” or ESHA in the EIR. The city, for its part, pointed out that EIR evaluated the biological impacts in detail, identifying potential impacts to species and habitat, and adopting mitigation for those impacts. The city insisted, however, that the designation of ESHA was not a biological determination to be made in the EIR, but rather was a legal and policy determination that would ultimately be made by the Commission under the Coastal Act. The city argued that by providing all of the data and scientific analysis that the Commission would need to make such a conclusion, it satisfied CEQA; it argued that the EIR did not speculate as to the Commission’s ultimate conclusions citing Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209. The court agreed. It held that the city did not have to “prognosticate as to the likelihood of ESHA determinations” in the EIR.

The more significant issue tackled by the court was a claim under the Planning and Zoning Law. The city has a policy in its general plan which requires it to “work with” various resource agencies to identify wetlands and other habitat to be preserved, restored, and developed on the Banning Ranch property. The city did reach some consensus with some agencies on these points, but did not reach an amical point with the Coastal Commission. Indeed, the city consulted and met in person with the commission on a couple of occasions, but a meeting of the minds appeared remote at the time of project approval.

The petitioner cited to the Third District Court of Appeal’s opinion California Native Plant Society v. City of Rancho Cordova, arguing that the City of Newport Beach had to do more to try to reach agreement with the Coastal Commission before approving the project. California Native Plant Society v. City of Rancho Cordova involved a similar policy in Rancho Cordova’s general plan. Rancho Cordova’s policy required the city to “coordinate” with resources agencies to develop mitigation prior to project approval. The Third District in that case held that this policy required something more than merely consulting with the agency, soliciting comments, and responding to them. The court held that “coordination” meant something more than consultation, although whatever that “something more” was it did not have to amount to “abdication.”

The Fourth District considered whether the City of Newport Beach’s policy was similar to Rancho Cordova’s. The court concluded that it was not altogether similar, but it was similar enough that the two could not be readily distinguished. The court nevertheless upheld the City of Newport Beach’s actions. In doing so, the Fourth District rejected the reasoning of the Third District in California Native Plant Society. It held that the Third District’s holding was “incompatible with our deferential review of the City’s legislative acts.” While requiring agencies to work together to reach a consensus “might be good or bad ideas,” the obligations were not set out in either general plan. Without some standard by which to guide the city’s behavior, the court could not readily enforce the obligation to “coordinate with” but not necessarily “capitulate to” the will of another agency, without treading on the legislative authority of the city. The court held that such an obligation should not be invented out of thin air, and in any event was unworkable.

RMM attorneys Whit Manley and Jennifer Holman represented the City of Newport Beach.

Court of Appeal Upholds the City of Newport Beach’s EIR and Concludes that the City’s Actions Complied with Its General Plan

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In Banning Ranch Conservancy v. City of Newport Beach, petitioner challenged the decision by the City of Newport Beach in approving a residential and mixed use development on the Banning Ranch property. The Fourth District Court of Appeal reversed the trial court, and upheld the City’s approvals on all points. RMM attorneys Whit Manley and Jennifer Holman represented Respondent, City of Newport Beach, in this case.

In 2012, the City of Newport Beach approved the Newport Banning Ranch Project on 400 acres of coastal property in Orange County.  Petitioner Banning Ranch Conservancy sued the city, challenging this action under both CEQA and the Planning and Zoning Law.  The trial court and the appellate court both rejected the CEQA claims.  The trial court, however, found that the City violated the Planning and Zoning Law under the authority of California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603.

Third District Court of Appeal in California Native Plant Society held that a general plan policy that required the city to “coordinate” with a resources agency mandated that the city do more than merely “consult” under CEQA.  In other words, it could not just send the EIR to the agency, consider comments, and respond to comments.  It had to work with the agency to try to reach accord, although ultimately the city did not have to “capitulate” to the agency. Because the City of Newport Beach’s general plan contained a similar policy, the trial court in Orange County considered itself bound to follow California Native Plant Society.  It held that the city had to try to reach accord with the California Coastal Commission on certain issues before approving the project.

The Fourth District in Banning Ranch Conservancy v. City of Newport Beach said that the Third District’s holding in California Native Plant Society v. City of Rancho Cordova went too far and was not sufficiently deferential to the legislative functions of the city. The Fourth District thus reversed the trial court on the Planning and Zoning Law issue and upheld the city’s actions.

Sixth District Court of Appeal Affirms County Violated CEQA in Adopting Mitigated Negative Declaration

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On May 7, 2015, the Sixth District Court of Appeal affirmed the lower court’s holding that the County of Santa Clara violated CEQA in adopting a mitigated negative declaration, instead of requiring an environmental impact report, for a use permit authorizing wedding events on vineyard property in the Santa Cruz Mountains. (Keep Our Mountains Quiet v. County of Santa Clara (May 7, 2015) Case No. H039707.)

Beginning in 2006, Candice Wozniak hosted a number of weddings and other events on the property without obtaining the necessary use permit from the county. She stated that approximately 100 people typically attended the events. Noise complaints from neighbors, however, indicated the events potentially hosted upwards of 200 attendees. The county eventually issued a use permit authorizing 28 special events per year for 100 guests, to be held between 2pm and 10pm on Saturdays and Sundays in the spring and summer. Three years later, in 2011, the county adopted a revised mitigated negative declaration (MND) for the project.

The MND set forth three conditions of project approval: orienting speakers away from neighboring residences; posting a noise complaint phone number; and conducting an annual report assessing compliance with the conditions in the first year. Only one live outdoor band event was permitted in the first year of operation.

The county’s sound consultant found that, though the county’s noise standards were not exceeded during a sample weekend, the consultant was unable to conclude that the events unequivocally did not generate significant noise impacts. A mock event was held at the property to assess noise levels. Neighbors acknowledged not hearing the event, but stated it was not representative of actual events held on the property.

Keep Our Mountains Quiet (the “Association”) filed a petition seeking to require the county to prepare an EIR. The trial court held in favor of the Association, and real party in interest—the Wozniak Trust—appealed. The appellate court laid out the rule that an EIR is required whenever substantial evidence in the record supports a fair argument that significant impacts may occur. An MND may be prepared where the initial study identified potential significant effects on the environment but revisions to the project plans would avoid or mitigate those effects to a level of insignificance. The court noted that relevant personal observations of area residents on nontechnical subjects may qualify as substantial evidence.

In reviewing the project’s noise impacts, the court stated that a project’s effects can be significant even if they are not greater than those deemed acceptable in a general plan. The court agreed with the Association that the lead agency should consider both the increase in noise level and the absolute noise level associated with a project. The court found the neighbors’ comments about the discrepancy in noise levels between the mock event and actual events constituted substantial evidence supporting a fair argument that the project may have unmitigated noise impacts. Relatedly, the court found that substantial evidence supported a fair argument that project-related crowd noise may have significant noise impacts on the surrounding residents.

The court also found evidence supported a reasonable inference that the project may have significant impacts on biological resources, but no substantial evidence supported the argument that the project might have significant noise impacts on visitors in the nearby Open Space Preserve, which was open to the public by permit only. The court stated it “need not consider the impacts on hypothetical users of nonexistent trails.”

The court also found substantial evidence that the project may have significant traffic impacts. The testimony the court cited related facts about road conditions based upon personal knowledge. The court found increased traffic from the project would substantially increase existing design feature-related hazards.

Regarding attorney’s fees, the court was not persuaded by the Trust’s contention that the litigation had not conferred a significant benefit because the trial court did not require the County to perform additional studies for the EIR or impose new mitigation measures. The significant benefit justifying an award of fees, the court noted, is the proper assessment of the environmental impacts associated with the project. Though the number of nearby residents was small, the preservation of biological resources and the safety of public roadways were of interest to the public, and thus the trial court had reasonably concluded that the suit conferred a significant benefit on the general public. The court further found that the Association’s members did not enjoy a direct pecuniary benefit from the litigation; the amount of any monetary advantage in avoiding reduced property values was speculative. The trial court’s denial of a multiplier for Association’s counsel was upheld, as it was not a clear abuse of the trial judge’s discretion.

State Water Board Votes to Adopt its Emergency Regulations

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On April 1, 2015, Governor Brown issued an executive order directing the State Water Resources Control Board to impose restrictions on water suppliers with the ultimate goal of achieving a statewide 25 percent reduction in potable urban water usage by February 2016. The order also requires certain water users to implement water efficiency measures and prohibits the use of potable water for some types of irrigation.

In response to this order, the Board released draft emergency drought regulations on April 18, subsequently amended on April 28. The regulations, designed to prevent the waste and unreasonable use of water and to promote water conservation, prohibit certain actions such as watering landscapes in a way that creates runoff, watering driveways and sidewalks, and serving water in restaurants except upon request. The regulations aim to conserve 1.3 million acre-feet of water over the next nine months. On May 5th, the Board voted to adopt the regulations.

The draft regulations reflect the input of more than 250 water agencies. Governor Brown has stated he will propose additional legislation to allow local agencies to enforce these regulations through methods such as the imposition of hefty fines for failure to comply with the restrictions.

The conservation savings standards for urban water suppliers will take effect June 1st. Prohibitions applying to all Californians will take effect immediately upon approval of the regulation by the Office of Administrative Law. More information can be found on the Board’s website.

California Supreme Court Schedules Oral Argument in City of San Diego v. Board of Trustees of the California State University

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On May 6, 2015, the Supreme Court scheduled oral argument to be heard at on Tuesday, May 26, 2015 for City of San Diego v. Board of Trustees of California State University, Case No. S199557. The case presents the following issue:

Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under CEQA by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?

The City of San Diego case followed the Supreme Court decision in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, where the Supreme Court held that while the Trustees had an obligation to request appropriation from the Legislature for voluntary mitigation payments, the power to mitigate the “project’s effects through voluntary payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” In a later case, the First District Court of Appeal declined to extend City of Marina to require that the Trustees fund increased fire department services necessitated by campus expansion because in that case, the impact was determined to be less than significant. (City of Hayward v. Board of Trustees of California State University (2012) 207 Cal.App.4th 446, which we wrote about in an earlier post.) Review was granted for City of Hayward, but further action has been deferred pending disposition the issue in City of San Diego.

Governor Brown Orders Aggressive New Target for Greenhouse Gas Emissions

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On April 29, 2015, Governor Brown issued Executive Order B-30-15 setting an interim target to cut California’s greenhouse gas emissions to 40 percent below 1990 levels by 2030. According to the Governor’s announcement, California is on track to meet or exceed its current target of reducing GHG emissions to 1990 levels by 2020, as required by the California Global Warming Solutions Act of 2006 (AB 32). The new goal of reducing emissions to 40 percent below 1990 levels by 2030 is intended to help the state achieve its ultimate goal of reducing emissions 90 percent under 1990 levels by 2050, a target established by Governor Schwarzenegger’s Executive Order S-3-05. The new interim target is consistent with the recommendation of the California Air Resources Board, in its First Update to the Climate Change Scoping Plan (May 2014).

The new executive order requires the Air Resources Board to update the Climate Change Scoping Plan to express the 2030 target in terms of million metric tons of carbon dioxide equivalent. All state agencies with jurisdiction over GHG emission sources must implement measures to achieve the 2030 and 2050 targets.

In addition, the Natural Resources Agency is to update the state’s climate adaptation strategy, Safeguarding California,  every three years and ensure that its provisions are fully implemented. The Safeguarding California plan will help California adapt to climate change by identifying vulnerabilities by sector (e.g., vulnerabilities to the water supply, the energy grid, the transportation network, etc.); outlining primary risks of these vulnerabilities to people, property, and natural resources; specifying priority actions needed to reduce the risks; and identifying lead agencies to spearhead the adaption efforts for each sector. Each sector will then be responsible to prepare an implementation plan by September of this year outlining adaptation actions and report back to the Natural Resources Agency by June 2016 on the actions taken.

Brown’s executive order also requires state agencies to take climate change into account of their planning and investment decisions, and employ full life-cycle cost accounting to evaluate investments and alternatives. The order establishes principles that state agencies must use in making planning and investing decisions. These principles include: prioritizing actions that both help the state prepare for climate change and reduce GHG emissions; implementing flexible and adaptive approaches, where possible, to prepare for uncertain climate change impacts; protecting the state’s most vulnerable populations; and prioritizing natural infrastructure solutions.

Executive Order B-30-15 follows relatively swiftly on the heels of Executive Order B-29-15, issued earlier this month, which imposes a 25-percent mandatory water reduction in 2015 over 2013 usage for urban areas, commercial, industrial, and institutional properties, along with other restrictions.

In a Mercifully Brief Opinion, Court Holds that the Regional Water Quality Control Board May Establish Pollution Limits for Water as well as Sediment in Water Bodies in California

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The Second District Court of Appeal in Conway v. State Water Resources Control Board rejected claims that the Regional Water Quality Control Board improperly established “total maximum daily loads” or TMDLs. The court also rejected challenges to the Board’s compliance with CEQA in establishing TMDLs.

The Clean Water Act requires all states to identify polluted water bodies within their jurisdictions. For all such water bodies the state must set TMDLs, which is the maximum amount of pollutants (or load) that a water body can receive from point and nonpoint sources. The Regional Water Quality Control Board has established the TMDLs for pollutants in McGrath Lake. McGrath Lake is surrounded primarily by agricultural fields, as well as petroleum facilities, public roads, and a former landfill. The lake including its lake bed sediment is polluted with pesticides and polychlorinated byphenyls (PCBs).

Owners of private property on the lake will likely be held responsible for remediation of the pollution. They challenged the TMDL established for the lake, arguing that it may only be stated in terms of pollutants in the water. They contend the TMDL is impermissibly stated in terms of concentration of pollutants in lake bed sediment. On this basis, the petitioners argued that the TMDLs violate the Clean Water Act and the state Water Code. They also argued that the TMDL was adopted in violation of the CEQA. The trial court denied their petition for a writ of mandate. The Court of Appeal Sixth Appellate District affirmed, holding that for the purposes of establishing TMDL the lake is both its water and its sediment.

Petitioners’ unsuccessful theory was that  TMDL can only regulate the movement of pollutants into the water column, pointing out that the Code of Federal Regulations definition of a “Load” as the “amount of matter [contaminants] introduced into a receiving water.”

The court was not convinced. The court noted that in this case the sediment is wet, it is intermixed with the lake waters, and thus it is part of the lake. The Regional Board could reasonably determine that the lake bed sediment is not a distinct physical environment. Instead, the lake waters and the lake bed sediment form a single physical environment. Notably, pollutants in the sediment leach into the water. The court also noted that the federal regulations give the Board expansive authority for defining how TMDLs are measured, as appropriate to the circumstances: “TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure.”

Petitioners further argued that “other appropriate measure” for measuring TMDL could not include measurement by concentration in the sediment. Petitioners argued that this would present a “slippery slope” towards expansive regulation of activities on land, such as regulation of pesticide use on agricultural land.

The court seemed unwilling to follow petitioners down this rabbithole, reasoning: “But slipping down the slope stops where application of a law or regulation becomes unreasonable.”  If it would be unreasonable or absurd to interpret the Clean Water Act and its implementing regulations as applying to land miles from the lake, the law and regulations will not be so interpreted, it held. But this case was not concerned with land miles from the lake, but with the lake bed itself.

The court also rejected, in fairly summary terms, Petitioners’ CEQA challenge. Essentially, Petitioners argued that the Board, which complies with CEQA through a certified regulatory program, had to consider the impacts of whatever remediation activities would be needed to reach the established TMDLs. Petitioners further argued that “dredging” was the only feasible remediation technique, and so the Board had to evaluate the impacts of dredging. The court disagreed. It noted that the adoption of TMDLs was only the first step in the process. The environmental review for that was appropriately tiered, according to the court. The Board had neither planned nor proposed to adopt any particular method for cleanup at this time. Without discussing whether cleanup ought to be at least disclosed as a reasonably future phase of the Project, the court summarily dismissed the CEQA claims. It held cleanup was a decision for the future, and would be subject to further environmental review in the future.

 

Fourth District Holds Storm Drainage Repair and Subsequent Revegetation Project Properly Exempted from CEQA

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The City of San Diego appealed a judgment granting CREED-21’s petition for injunctive and other relief for CEQA violations relating to emergency storm drainage repair and revegetation projects in La Jolla. The court held in favor of the City, finding it had used the correct baseline and had properly issued an exemption for the revegetation project. Furthermore, CREED had not been denied its due process right to a fair hearing. The court affirmed the judgment below to the extent it declared the City’s appeal fee assessment invalid and set it aside. The opinion, filed January 29, was certified for publication on February 18. CREED-21 v. City of San Diego (Feb. 18, 2015) ___ Cal.App.4th ___, Case No. D064186.

In 2010, the City issued an emergency permit for storm drainage repair work, and a notice of exemption from CEQA for the work. The emergency permit was conditioned on seeking a permanent permit and implementing a revegetation plan. The City found the revegetation plan to be exempt from CEQA relying on the “common sense” exemption and two categorical exemptions. CREED filed a lawsuit challenging the revegetation plan, and the work performed under the emergency permit. CREED argued that in reviewing the revegetation plan, the City was required to consider the physical setting of the area prior to the emergency storm drainage work, rather than after when the revegetation work commenced. The court refused to set the baseline earlier. The court similarly held that CREED did not have standing to challenge the 2010 emergency exemption, as it had missed the statute of limitations to challenge that project.

CREED argued that the 2010 emergency exemption was merely for temporary work, and that CEQA required the City to conduct at least a preliminary review, if not an initial study and EIR, to determine whether the already completed repair work might have a significant effect on the environment. The court disagreed, noting that any argument about the temporary status of the emergency work performed by the City in 2010 was based solely on the San Diego Municipal Code and not on CEQA or the Guidelines.

The court found that the City properly relied on the common sense exemption to find the revegetation project exempt from CEQA under Guidelines section 15061, subdivision (b)(3). That exemption applies where there is no possibility that the activity in question may have a significant effect on the environment. Because the revegetation plan would indisputably improve the site’s physical conditions—consisting primarily of bare dirt—the plan would not cause an adverse change so as to constitute a significant effect on the environment. The court added that the revegetation plan would also be exempt under the Class 1 exemption for existing facilities, which encompasses repair to existing topographical features. CREED failed to satisfy its burden of showing that the unusual circumstances exception applied to override the exemption.

The court also found CREED was not denied due process of law when the City did not timely disclose a document requested under the California Public Records Act. The City Council heard and denied CREED’s appeal of the City’s exemption determination, but did not provide CREED with a copy of the initial study until after that hearing. This omission did not deny CREED its right to due process and a fair hearing. CREED had received reasonable notice of the hearing and a reasonable opportunity to be heard.

Finally, the Fourth District held that the trial court had not abused its discretion by denying the City’s request for judicial notice of an ordinance and by finding that an appeal fee was unauthorized. There was no evidence in the record authorizing the $100 appeal fee. CREED alleged there was also no provision in the Municipal Code authorizing the City to charge a fee for an administrative appeal. The City argued there was an ordinance authorizing such fees, and requested the court take judicial notice of the ordinance. The court found the City had not given CREED sufficient notice of its request for judicial notice to allow for preparation of an opposition, and the request’s lack of an attachment listing specific fees rendered the document insufficient for the court to take notice.

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