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Third District Awards Costs and Fees Where Partially Successful Plaintiffs Obtained Primary Litigation Objective, Justifying Entitlement to Recovery

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In 2015, Friends of Spring Street (Friends) filed a petition for writ of mandate and complaint against Nevada City challenging the city’s determination that Mollie Poe and Declan Hickey (Real Parties) had the right to reopen a bed and breakfast (B&B) in a residential area. After the court ruled against the City on one of five issues raised, this case, Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, followed.

The Original Lawsuit

In 1991 Juneus and Jan Kendall obtained a conditional use permit to operate a B&B in a residential neighborhood. Three years later, the city’s voters passed an initiative, Measure G, which repealed the zoning code provision that allowed for B&Bs in residential zones. The Kendalls continued operation of their B&B until 2002 and sold the property in 2004. From 2002 until 2013, the property was used as a private residence, but the business license was renewed and paid every year.

The Real Parties purchased the property in 2013 and in 2014 applied to resume the conditional use permit to operate the property as a B&B. The city’s planning commission denied the request, concluding that the grandfathered rights to operate a B&B terminated when the use was discontinued. Real Parties appealed to the city council, arguing for the first time that the operation of a B&B was never a nonconforming use, and therefore the conditional use permit was still valid. The city council granted the appeal and vacated the planning commission’s decision.

In granting the appeal, the city council found that Measure G was intended to limit new B&Bs in residential zones, but did not address termination of existing inns. Following the council’s decision, Friends of Spring Street filed a lawsuit challenging the city’s determination, arguing that Measure G had rendered pre-existing B&Bs in residential areas nonconforming.

Ultimately, the Court of Appeal held that the city was incorrect, and the passage of Measure G had in fact rendered the B&B nonconforming. The Real Parties, therefore, were not entitled to resume the use as a matter of right. The Court of Appeal directed the trial court to vacate its denial of the petition for writ of mandate, enter an order granting the writ mandate, and order the city to set aside its granting of the appeal of the planning commission’s denial of the Real Parties’ request (“Friends I”).

Following the decision in Friends I, Friends of Spring Street filed a memorandum of cost and a motion for attorney fees. In response, the City and Real Parties filed motions to strike and oppose the memorandum of costs and motion for attorney fees. This decision is the outcome of those requests.

Friends’ Request for Costs

Under Code of Civil Procedure section 1032, where, like here, a party recovers non-monetary relief, the trial court has the discretion to identify the “prevailing party.” The question for the court is whether the party succeeded at a practical level by realizing its litigation objectives, and whether the action yielded the primary relief sought. In this case, the trial court denied the request for costs, reasoning that: (i) there was no prevailing party, and (ii) Friends did not obtain any practical result that justified the entitlement to costs. The trial court also noted that Friends only obtained relief on one of five causes of action.

The Court of Appeal disagreed. The court noted that the failure to succeed on all but one cause of action is not sufficient reason to deny a party fees and costs. The court also explained that Friends had realized its primary litigation objective when the court ordered the city to set aside its granting of the appeal of the planning commission decision. Contrary to the city’s argument, the court said it had not decided a “jurisdictional issue,” but rather had made a substantive decision on the merits when it determined the meaning and application of Measure G. As a result of its decision, the planning commission’s denial of the Real Parties’ application to re-commence B&B operations remained intact. The court concluded that Friends, therefore, achieved the practical result sought and was thus entitled to collect costs.

Friends’ Motion for Attorney Fees

Code of Civil Procedure section 1021.5, the “private attorney general doctrine,” provides an exception to the general rule that parties in litigation pay their own attorney’s fees. Under section 1021.5, a court may award fees to a successful party where a significant benefit has been conferred on the general public, and the necessity and financial burden of private enforcement makes the award appropriate. The trial court concluded that Friends’ action did not enforce an important right and public interest.

Again, the Court of Appeal disagreed. The court pointed to La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1159-1160, noting that zoning laws are a “vital public interest” and are important to preserve the integrity of a general plan. Here, the court concluded, Friends’ action preserved the integrity of the city’s zoning regulations imposed by Measure G. And, the court noted, the public interest in this case was even greater than in La Mirada because the city’s residents voted to implement Measure G.

First District Court of Appeal Upholds EIR for Mixed-Use Development Project

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In the first published decision to apply the standard of review articulated by the Supreme Court in Sierra Club v. County of Fresno (Friant Ranch), the First District Court of Appeal affirmed the trial court’s decision upholding an EIR for a mixed-use development project in South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321.

The project at issue is a mixed-use development that covers four acres of downtown San Francisco and seeks to provide office, retail, cultural, educational, and open-space uses for the property, to support the region’s technology industry and offer spaces for coworking, media, arts, and small-scale urban manufacturing. The city certified an EIR, which described two options for the project—an “office scheme” and a “residential scheme.” The office scheme had a larger building envelope and higher density than the residential scheme but all other project components were the same and the overall square footage was substantially similar. Several community organizations raised a variety of claims challenging the environmental review. The trial court denied relief and the petitioners appealed.

Applying the three “basic principles” set forth by the Supreme Court in Friant Ranch regarding the standard of review for the adequacy of an EIR, the First District held the EIR was legally adequate.

The court rejected the petitioners’ argument that the project description was inadequate because it presented multiple possible projects. The court found that the EIR described one project—a mixed use development involving retention or demolition of existing buildings and construction of new buildings—with two options for different allocations of residential and office units. The court also rejected petitioners’ argument that the final EIR adopted a “revised” project that was a variant of another alternative identified in the draft EIR—emphasizing that the CEQA reporting process is not designed to freeze the ultimate proposal in the precise mold of the initial project, but to allow consideration of other options that may be less harmful to the environment.

Petitioners alleged that the cumulative impacts analysis was flawed because the EIR used an outdated 2012 project list, developed during the “Great Recession,” which did not reflect a more recent increase in development. The court noted the petitioners did not point to any evidence to establish that the project list was defective or misleading or that the city had ignored foreseeable projects. Accordingly, the court held that the petitioners had not met their burden of proving the EIR’s cumulative impacts analysis was not supported by substantial evidence.

With respect to traffic, the petitioners argued the EIR was inadequate because it failed to (1) include all impacted intersections, (2) consider the impact of the Safer Market Street Plan (SMSP), and (3) adequately evaluate community-proposed mitigation measures and alternatives. The court rejected each argument in turn. First, the court found that the EIR’s explanation for selecting certain intersections and excluding others and the related analysis was supported by substantial evidence. The court further held that the city did not need to include the SMSP in the EIR because it was not reasonably foreseeable when the city initiated the EIR, nor was there evidence that the SMSP would have an adverse impact on traffic and circulation related to the project. Lastly, the court deferred to the city’s selection of alternatives because the petitioners had failed to meet their burden to show the nine alternatives evaluated in the EIR were “manifestly unreasonable.” Similarly, the court found the petitioners had failed to meet their burden to demonstrate their proposed alternatives were feasible and met most of the project objectives.

In addressing wind impacts, an argument petitioners failed to exhaust, the court found such impacts were appropriately addressed in the EIR. The court reasoned an alternative configuration was not required under the city’s comfort criterion for wind speed impacts because the exceedance of the comfort criterion did not establish significant impacts for CEQA purposes.

The court also rejected an argument that the project failed to provide onsite open space because the EIR explained that the project provided more space than the city code required and the impact related to demand on existing parks and open spaces would be less than significant.

The court further upheld the EIR’s shade and shadow analysis, finding no evidence in the record to support that sunlight on a park is not a “special and rare resource” warranting “special emphasis” under CEQA Guidelines section 15125.

The court also held that the city had made a good faith effort to discuss inconsistencies with the applicable general plans, noting that CEQA does not “mandate perfection.”

Finally, the petitioners claimed that the statement of overriding considerations was invalid because the city improperly considered the benefits of the project before considering feasible mitigation measures or alternatives. The court disagreed, emphasizing that the project was modified to substantially conform to the identified environmentally superior alternative and stating that the revised project would not have been adopted if there had been no consideration of mitigation measures or alternatives.

Third District Awards Costs and Fees Where Partially Successful Plaintiffs Obtained Primary Litigation Objective, Justifying Entitlement to Recovery

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In 2015, Friends of Spring Street (Friends) filed a petition for writ of mandate and complaint against Nevada City challenging the city’s determination that Mollie Poe and Declan Hickey (Real Parties) had the right to reopen a bed and breakfast (B&B) in a residential area. After the court ruled against the City on one of five issues raised, this case, Friends of Spring Street v. Nevada City, 33 Cal.App.5th 1092, followed.

The Original Lawsuit

In 1991 Juneus and Jan Kendall obtained a conditional use permit to operate a B&B in a residential neighborhood. Three years later, the city’s voters passed an initiative, Measure G, which repealed the zoning code provision that allowed for B&Bs in residential zones. The Kendalls continued operation of their B&B until 2002 and sold the property in 2004. From 2002 until 2013, the property was used as a private residence, but the business license was renewed and paid every year.

The Real Parties purchased the property in 2013 and in 2014 applied to resume the conditional use permit to operate the property as a B&B. The city’s planning commission denied the request, concluding that the grandfathered rights to operate a B&B terminated when the use was discontinued. Real Parties appealed to the city council, arguing for the first time that the operation of a B&B was never a nonconforming use, and therefore the conditional use permit was still valid. The city council granted the appeal and vacated the planning commission’s decision.

In granting the appeal, the city council found that Measure G was intended to limit new B&Bs in residential zones, but did not address termination of existing inns. Following the council’s decision, Friends of Spring Street filed a lawsuit challenging the city’s determination, arguing that Measure G had rendered pre-existing B&Bs in residential areas nonconforming.

Ultimately, the Court of Appeal held that the city was incorrect, and the passage of Measure G had in fact rendered the B&B nonconforming. The Real Parties, therefore, were not entitled to resume the use as a matter of right. The Court of Appeal directed the trial court to vacate its denial of the petition for writ of mandate, enter an order granting the writ mandate, and order the city to set aside its granting of the appeal of the planning commission’s denial of the Real Parties’ request (“Friends I”).

Following the decision in Friends I, Friends of Spring Street filed a memorandum of cost and a motion for attorney fees. In response, the City and Real Parties filed motions to strike and oppose the memorandum of costs and motion for attorney fees. This decision is the outcome of those requests.

Friends’ Request for Costs

Under Code of Civil Procedure section 1032, where, like here, a party recovers non-monetary relief, the trial court has the discretion to identify the “prevailing party.” The question for the court is whether the party succeeded at a practical level by realizing its litigation objectives, and whether the action yielded the primary relief sought. In this case, the trial court denied the request for costs, reasoning that: (i) there was no prevailing party, and (ii) Friends did not obtain any practical result that justified the entitlement to costs. The trial court also noted that Friends only obtained relief on one of five causes of action.

The Court of Appeal disagreed. The court noted that the failure to succeed on all but one cause of action is not sufficient reason to deny a party fees and costs. The court also explained that Friends had realized its primary litigation objective when the court ordered the city to set aside its granting of the appeal of the planning commission decision. Contrary to the city’s argument, the court said it had not decided a “jurisdictional issue,” but rather had made a substantive decision on the merits when it determined the meaning and application of Measure G. As a result of its decision, the planning commission’s denial of the Real Parties’ application to re-commence B&B operations remained intact. The court concluded that Friends, therefore, achieved the practical result sought and was thus entitled to collect costs.

Friends’ Motion for Attorney Fees

Code of Civil Procedure section 1021.5, the “private attorney general doctrine,” provides an exception to the general rule that parties in litigation pay their own attorney’s fees. Under section 1021.5, a court may award fees to a successful party where a significant benefit has been conferred on the general public, and the necessity and financial burden of private enforcement makes the award appropriate. The trial court concluded that Friends’ action did not enforce an important right and public interest.

Again, the Court of Appeal disagreed. The court pointed to La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1159-1160, noting that zoning laws are a “vital public interest” and are important to preserve the integrity of a general plan. Here, the court concluded, Friends’ action preserved the integrity of the city’s zoning regulations imposed by Measure G. And, the court noted, the public interest in this case was even greater than in La Mirada because the city’s residents voted to implement Measure G.

Second District Court of Appeal Holds Brown Act’s “Committee Exception” for Public Comments Does Not Apply to Special Meetings

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In Preven v. City of Los Angeles (2019) 32 Cal.App.5th 925, the Second District Court of Appeal reversed the trial court’s determination that the “committee exception” to the public comment requirements of the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.) apply to special meetings.

Appellant addressed the city’s planning and land use committee (“PLUM Committee”), which is comprised of five members of the 15-member city council, regarding a proposed real estate development near his residence. The committee voted to recommend approval to the full city council. At a special meeting held to consider approval of the committee’s recommendation, the city council refused to allow the appellant to speak because he had already spoken on the matter.

The Second District Court of Appeal found the city’s process to be in error. Generally speaking, the Brown Act requires a legislative body to provide an opportunity for public comment before its consideration of an item. Section 54953.3, subdivision (a) of the Government Code provides for what is commonly referred to as the “committee exception” to this requirement. Under this exception, a legislative body is not required to hear public comment, if the item has already been considered by a committee where the public was afforded the opportunity for comment.

Using general rules of statutory construction, the court found that the plain language of the statute specifies that the committee exception applies only to regular meetings, not special meetings. The court also rejected the city’s interpretation that the required opportunity for public comment before a legislative body takes action at a special meeting includes comments made at a prior separate meeting. The court found that such an interpretation rendered the committee exception superfluous. Finally, the court found support for its interpretation in the legislative history of the Brown Act, which demonstrated that the Legislature had purposefully made a number of distinctions between the requirements of regular and special meetings.

The First District Court of Appeal Finds That Possible Earthquake or Landslide Zone Is Not an “Environmental Resource” Under Location Exception to Categorical Exemptions

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In Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, the First District Court of Appeal affirmed the trial court’s decision upholding the city’s determination that the construction of three new single-family homes in the Berkeley hills fell within the scope of the Class 3 categorical exemption.

The project is located in the Alquist-Priolo Earthquake Fault Zone (APEFZ). Petitioners contended that the project was subject to the location exception to the Class 3 categorical exemption. That exception provides that the exemption does not apply in instances “where a project may impact on an environmental resource of hazardous or critical concern,” which must be “designated, precisely mapped, and officially adopted pursuant to law” (CEQA Guidelines, § 15300.2, subd. (a).) Petitioners argued that the exception applied because the APEFZ is an environmental resource of hazardous concern. The First District disagreed.

The court held that the plain language in the location exception reflects concern with the effect of the project on the environment—not the impact of existing environmental conditions (seismic and landslide risks) on the project. The court found support for its interpretation in the plain meaning of the term “environmental resource,” as well as existing statutes. Citing the dictionary definition of “resource,” the court concluded that earthquakes and landslides are geologic events, not environmental resources, as contemplated by the location exception. Furthermore, while the APEFZ is “officially mapped” in accordance with the Seismic Hazards Mapping Act, that statute was enacted for the purpose of preventing economic loss and protecting health and safety, not to identify the locations of environmental resources. Similarly, as the California Supreme Court affirmed in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, CEQA is concerned with a project’s significant effects on the environment, not the significant effects of the environment on the project. Finally, the court rejected petitioners’ argument that the trial court’s interpretation of the location exception is inconsistent with Public Resources Code sections 21169.21, subdivisions (h)(4) and (5)—which set forth exceptions to a specific statutory exemption for housing projects located in seismic and landslide hazard areas—reasoning that it cannot extrapolate from that specific exception an intent to apply to a general exception like the location exception.

– Christina Berglund

The Fourth District Court of Appeal Rejects Challenges to Amended Lease Agreement for San Diego Amusement Park

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In San Diegans for Open Government v. City of San Diego (2018) 31 Cal.App.5th 349, the Fourth District Court of Appeal affirmed a judgment rejecting CEQA arguments and other challenges to an amended lease agreement between the City of San Diego and Symphony Asset Pool XVI, LLC for the historic Belmont Park amusement park.

In 1987, the City of San Diego entered into a lease and development plan to revitalize the historic amusement park in the city’s Mission Beach area. Under the agreement, Symphony’s predecessor in interest was authorized to demolish and renovate certain existing facilities, and to construct various new facilities including restaurants, shops, and other visitor-serving commercial uses. The original lease agreement was for a 50-year term, but also included a right of first refusal to enter into a new agreement on terms determined by the city.

In response to the 1987 lease, the city’s electorate passed Proposition G to restrict future commercial development in Mission Beach. Under Prop. G, future development is restricted to park and recreational uses, and the preservation of historical amusement park facilities. Prop. G also includes an exemption for projects that had obtained vested rights as of the effective date of the measure. In 1988, the city council passed an ordinance providing that the 1987 lease and development plan provided a vested right under Prop. G and the use and redevelopment of Belmont Park could continue as planned.

In 2012, Real Party in Interest Symphony took over the 1987 lease. In 2015, the city council authorized the mayor to enter into an amended and restated lease with Symphony for the use and operation of Belmont Park. The basis for the amended lease was in part to support the approximately $18 million Symphony had invested improving the property since taking over. Among other things, the lease required Symphony to pay rent for its use of the property. The lease also gave Symphony the opportunity to extend the lease beyond the original 50-year term. If Symphony completes ongoing improvements and planned improvements, makes additional capital improvements, and pays the city a lump sum payment, the amended lease may be extended up to 50 years.

At the time the amended lease was approved, the city council also adopted a resolution finding that the amended lease agreement was categorically exempt from CEQA under the existing facilities exemption in CEQA Guidelines section 15301.

Following the adoption of the amended lease, San Diegans for Open Government (SDOG) filed a lawsuit challenging the amended lease on three grounds. First, the complaint alleged that the amended lease violated Prop. G by authorizing new uses in excess of the vested rights conferred under the 1987 lease. Second, the complaint alleged that the city violated CEQA because it improperly concluded the amended lease was exempt from environmental review. Third, the complaint alleged that the approval of the amended lease violated a provision of the city charter which required certain agreements lasting more than five years to be adopted by ordinance after a public hearing.

With regard to the first claim, SDOG argued that (1) the amended lease allows new uses that were not authorized under the 1987 lease, and (2) the 1987 lease provided a vested right only for the original 50-year term. The court rejected these arguments, holding that the amended lease did not violate Prop. G., relying primarily on the language of the 1987 lease. First, the court noted that the original lease included a long list of specifically authorized uses. According to the court, all of the uses SDOG argued were not authorized were encompassed within the original permissible uses. Next, the court held that the extension did not violate Prop. G because the 1987 lease contemplated the possibility of extension, and neither Prop. G nor the city’s ordinance finding a vested right contained any time limit on the rights vested.

The second issue was whether the city violated CEQA by incorrectly determining that the amended lease was exempt from environmental review under the existing facilities exemption. CEQA Guidelines section 15301 provides an exemption from environmental review for the “operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination.” SDOG argued that the amended lease contemplates improvements including construction of a new restaurant and bar, food court venues, and a new arcade, and thus did not qualify as involving negligible or no expansion of the existing use.

The court rejected SDOG’s argument and found that the construction activities the appellants referenced, including the new restaurant, food court venues, and arcade, were all projects that had already been completed at the time the amended lease was entered and, accordingly, were existing facilities. The parties acknowledged in the lease that Symphony had already expended $18 million to improve and upgrade the property, and those improvements were listed in an exhibit to the agreement. The court added that while the amended lease did contemplate Symphony would invest an additional $5.9 million in the pool facility in the future, SDOG did not argue those activities were outside the scope of the exemption. Moreover, the court added, those activities involved only refurbishment of existing facilities and not new construction, thus, they fall squarely within the existing facilities exemption.

In addition to arguing that the amended lease did not qualify for the existing facilities exemption, SDOG argued that the unusual circumstances exception in CEQA Guidelines section 15003.2, subdivision (c) applied in this case. Under that section, “[a] categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” Furthermore, the court explained, “it is not alone enough that there is a reasonable possibility the project will have a significant environmental effect, instead . . . there must be a reasonable possibility that the activity will have a significant effect on the environment due to the unusual circumstances.” (Quoting Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1097-98.)

Here, SDOG argued that the existence of the voter-passed Proposition G constituted an unusual circumstance because the voters had used the initiative power to declare a distinct interest in minimizing the environmental impacts of development in Mission Beach. SDOG also argued that there is a fair argument the project will result in severe traffic and noise impacts. SDOG cited a statement by a Symphony representative that the project would generate an additional $100 million in revenue over the term of the lease, which SDOG argued could only occur with significantly more visitors and therefore more traffic and other resulting impacts. The court rejected SDOG arguments, finding its argument that impacts would occur to be based on speculation. Furthermore, SDOG failed to establish how the increased traffic or noise would be due to the unusual circumstances that it cited, i.e., the existence of Proposition G. In sum, the court held that the city properly determined the amended lease was exempt from CEQA review under the existing facilities exemption and that the unusual circumstance exception did not apply.

The final issue in the case was whether the approval of the amended lease violated a provision of the city charter. The provision at issue consisted of two sentences. The first sentence referred to the city incurring “indebtedness or liability.” The second sentence more broadly stated “no contract” lasting for a period of more than five years may be authorized except by ordinance after notice and a public hearing. The issue was whether the first sentence limited the second, or if the second sentence was independent. While the court found the language of the provision was ambiguous, rules of statutory interpretation provide that the city’s interpretation of its own charter is entitled to deference unless shown to be clearly erroneous. The city’s longstanding interpretation of the provision was that it applied solely to agreements requiring the city to expend funds. The court found this interpretation to be reasonable and consistent with the legislative history, and held that the city did not violate the charter by approving the amended lease by resolution.

– Collin McCarthy

The First District Court of Appeal Affirmed a Judgment Holding that CEQA Review Was Not Required for a Multifamily Residential Project Subject Only to Design Review

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In a decision published on January 10, 2019, the First District Court of Appeal affirmed a judgment denying two local groups’ petition for writ of mandate seeking to overturn the City of St. Helena’s approval of a multifamily residential project. McCorkle Eastside Neighborhood Group, et al. v. City of St. Helena, et al. (2019) 31 Cal.App.5th 80. In this case, the city’s approval authority for the project was limited to design review under the local zoning ordinance. The court held that because the city lacked any discretion to address the project’s environmental effects, the city properly determined CEQA review was not required.

Between 2015 and 2016, the City of St. Helena amended its general plan and zoning ordinance to eliminate the requirement to obtain a conditional use permit for multifamily projects in High Density Residential (HDR) districts. Since this change, multifamily residential projects are a permitted use in HDR districts and require only design review approval. Real Party in Interest Joe McGrath applied for design review approval to construct an 8-unit residential project within an HDR district. McGrath also applied for a demolition permit to demolish an existing single family home on the site.

In October 2016, the city’s planning staff prepared a report that concluded (1) the project was exempt from CEQA under the Class 32 infill exemption (CEQA Guidelines § 15332); and (2) the project met the design review criteria. At the planning commission hearing for the project, several neighbors and community members opposed the project on various environmental grounds, including that the project site is contaminated, the street has inadequate drainage, the area lacks open space, and the project would cause cumulative impacts with another proposed development. Opponents of the project also contended that the project design was inconsistent with the design of the neighboring historical homes.

During the planning commission hearing, the city attorney advised the members of the commission that, under the city’s zoning ordinance, the commission was required to approve the project if it met the city’s design review criteria. The city attorney added that while he was confident the Class 32 infill exemption applied, CEQA also did not apply because it was a non-discretionary project. The planning commission approved the project, and adopted findings that the project was exempt from CEQA and would not cause any significant environmental effects.

At the city council appeal hearing, the city attorney similarly advised the members of the council that the project was exempt from CEQA under the Class 32 infill exemption, but at any rate their review was limited to the project design. The council voted 3-2 to deny the appeal and uphold the planning commission’s approval. The council adopted a resolution containing numerous detailed findings to support the design review approval. The council also found that the Class 32 infill exemption applied, but, even if some level of CEQA review was required, the city was limited to reviewing design-related issues and not the use-related environmental impacts the project opponents had raised.

The McCorkle Eastside Neighborhood Group and St. Helena Residents for an Equitable General Plan filed a petition for writ of mandate challenging the city council’s approval as a violation of CEQA and local zoning laws. The trial court denied the petition. The groups’ appeal followed.

The primary issue on appeal was whether the city abused its discretion by approving the project without requiring an environmental impact report (EIR). The appellants argued that the Class 32 infill exemption requires the city council to determine that the project would not result in any significant environmental effects relating to traffic, noise, air quality, and water quality. According to the appellants, the city council could not properly have done so because it reviewed only the project design.

The court disagreed and held that, irrespective of the Class 32 exemption, the city council correctly determined that the scope of its discretion was limited to design review and no CEQA review was required. As the court explained, under the city’s design review ordinance, the city council could not disapprove the project for non-design related reasons. In this case, the court found that substantial evidence supported the city council’s findings that the project met the design review criteria and would not result in any design-related impacts.

With regard to the Appellants’ design-related concerns, the court rejected the notion that CEQA review was required for those concerns alone, at least for the project at issue. Quoting from the First District’s decision in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 592 (Bowman), the court stated, “[W]e do not believe that our Legislature in enacting CEQA . . . intended to require an EIR where the sole environmental impact is aesthetic merit of a building in a highly developed area.” Furthermore, the court added, “[w]hile local laws do not preempt CEQA, ‘aesthetic issues like the one raised here are ordinarily the province of local design review, not CEQA.’ ‘Where a project must undergo design review under local law, that process itself can be found to mitigate purely aesthetic impacts to insignificance . . . .’” (Quoting Bowman at p. 594.) While the court recognized that St. Helena is not as urban as Berkeley, the location of the Bowman project, it nonetheless found that “the principles of that case apply to the design review in this case, which cannot be used to impose environmental conditions.”

The court next rejected the appellants’ argument that the mere fact the city had some discretionary authority in the design review process made the project subject to CEQA. According to the court, the rule that a project will be deemed discretionary for purposes of CEQA if it requires both discretionary and ministerial approvals “applies only when the discretionary component of the project gives the agency the authority to mitigate environmental impacts.”
Finally, the court found that it was unnecessary for the city to rely on the Class 32 infill exemption because the city lacked any discretion to address the project’s non-design related environmental effects. The court also found it was unnecessary to address the appellants’ argument that the Class 32 exemption did not apply based on the “unusual circumstances” exception. According to the court, “[b]ecause CEQA was limited in scope to design review whether or not the Class 32 exemption applied, any exception to the exemption was irrelevant.”

-Collin McCarthy

The First District Court of Appeal Affirmed a Judgment Holding that CEQA Review Was Not Required for a Multifamily Residential Project Subject Only to Design Review

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In a decision published on January 10, 2019, the First District Court of Appeal affirmed a judgment denying two local groups’ petition for writ of mandate seeking to overturn the City of St. Helena’s approval of a multifamily residential project. McCorkle Eastside Neighborhood Group, et al. v. City of St. Helena, et al. (2019) 31 Cal.App.5th 80. In this case, the city’s approval authority for the project was limited to design review under the local zoning ordinance. The court held that because the city lacked any discretion to address the project’s environmental effects, the city properly determined CEQA review was not required.

Between 2015 and 2016, the City of St. Helena amended its general plan and zoning ordinance to eliminate the requirement to obtain a conditional use permit for multifamily projects in High Density Residential (HDR) districts. Since this change, multifamily residential projects are a permitted use in HDR districts and require only design review approval. Real Party in Interest Joe McGrath applied for design review approval to construct an 8-unit residential project within an HDR district. McGrath also applied for a demolition permit to demolish an existing single family home on the site.

In October 2016, the city’s planning staff prepared a report that concluded (1) the project was exempt from CEQA under the Class 32 infill exemption (CEQA Guidelines § 15332); and (2) the project met the design review criteria. At the planning commission hearing for the project, several neighbors and community members opposed the project on various environmental grounds, including that the project site is contaminated, the street has inadequate drainage, the area lacks open space, and the project would cause cumulative impacts with another proposed development. Opponents of the project also contended that the project design was inconsistent with the design of the neighboring historical homes.

During the planning commission hearing, the city attorney advised the members of the commission that, under the city’s zoning ordinance, the commission was required to approve the project if it met the city’s design review criteria. The city attorney added that while he was confident the Class 32 infill exemption applied, CEQA also did not apply because it was a non-discretionary project. The planning commission approved the project, and adopted findings that the project was exempt from CEQA and would not cause any significant environmental effects.

At the city council appeal hearing, the city attorney similarly advised the members of the council that the project was exempt from CEQA under the Class 32 infill exemption, but at any rate their review was limited to the project design. The council voted 3-2 to deny the appeal and uphold the planning commission’s approval. The council adopted a resolution containing numerous detailed findings to support the design review approval. The council also found that the Class 32 infill exemption applied, but, even if some level of CEQA review was required, the city was limited to reviewing design-related issues and not the use-related environmental impacts the project opponents had raised.

The McCorkle Eastside Neighborhood Group and St. Helena Residents for an Equitable General Plan filed a petition for writ of mandate challenging the city council’s approval as a violation of CEQA and local zoning laws. The trial court denied the petition. The groups’ appeal followed.

The primary issue on appeal was whether the city abused its discretion by approving the project without requiring an environmental impact report (EIR). The appellants argued that the Class 32 infill exemption requires the city council to determine that the project would not result in any significant environmental effects relating to traffic, noise, air quality, and water quality. According to the appellants, the city council could not properly have done so because it reviewed only the project design.

The court disagreed and held that, irrespective of the Class 32 exemption, the city council correctly determined that the scope of its discretion was limited to design review and no CEQA review was required. As the court explained, under the city’s design review ordinance, the city council could not disapprove the project for non-design related reasons. In this case, the court found that substantial evidence supported the city council’s findings that the project met the design review criteria and would not result in any design-related impacts.

With regard to the Appellants’ design-related concerns, the court rejected the notion that CEQA review was required for those concerns alone, at least for the project at issue. Quoting from the First District’s decision in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 592 (Bowman), the court stated, “[W]e do not believe that our Legislature in enacting CEQA . . . intended to require an EIR where the sole environmental impact is aesthetic merit of a building in a highly developed area.” Furthermore, the court added, “[w]hile local laws do not preempt CEQA, ‘aesthetic issues like the one raised here are ordinarily the province of local design review, not CEQA.’ ‘Where a project must undergo design review under local law, that process itself can be found to mitigate purely aesthetic impacts to insignificance . . . .’” (Quoting Bowman at p. 594.) While the court recognized that St. Helena is not as urban as Berkeley, the location of the Bowman project, it nonetheless found that “the principles of that case apply to the design review in this case, which cannot be used to impose environmental conditions.”

The court next rejected the appellants’ argument that the mere fact the city had some discretionary authority in the design review process made the project subject to CEQA. According to the court, the rule that a project will be deemed discretionary for purposes of CEQA if it requires both discretionary and ministerial approvals “applies only when the discretionary component of the project gives the agency the authority to mitigate environmental impacts.”
Finally, the court found that it was unnecessary for the city to rely on the Class 32 infill exemption because the city lacked any discretion to address the project’s non-design related environmental effects. The court also found it was unnecessary to address the appellants’ argument that the Class 32 exemption did not apply based on the “unusual circumstances” exception. According to the court, “[b]ecause CEQA was limited in scope to design review whether or not the Class 32 exemption applied, any exception to the exemption was irrelevant.”

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