Tag: Due Process

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.

CEQA
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.

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

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.

City Council Member’s Appeal of Planning Commission Decision Violated Principles of Fairness and the Newport Beach Municipal Code

In Woody’s Group, Inc. v. City of Newport Beach, the Fourth District Court of Appeal, Division 3, reversed the trial court’s decision denying a writ of administrative mandamus and held that the City Council of Newport Beach violated principles of fairness in overturning a permit application approved by the city’s planning commission.

Woody’s Warf (“Woody’s”) is a long-established restaurant overlooking the harbor in Newport Beach. In 2013, the Newport Beach Planning Commission voted to approve a conditional use permit to allow Woody’s to have a patio cover, remain open until 2 a.m. on weekends, and allow dancing in the restaurant. Four days after the planning commission’s decision, a member of the Newport Beach City Council filed an appeal of the planning commission’s decision because the council member “strongly believe[d]” the conditional use permit was inconsistent with the city’s general plan. Following a “lively” public meeting, in which the council member who filed the appeal presented a lengthy presentation on why the planning commission’s decision should be overturned, the city council voted to reverse the planning commission’s decision.

Woody’s thereafter filed with the Orange County Superior Court a petition for a writ of administrative mandate with the superior court, seeking to set aside the city council’s decision. The trial court denied the writ. The Court of Appeal reversed.

The Court of Appeal first held that Woody’s had established an “‘unacceptable probability of actual bias”’ on the part of the council member that filed the appeal. According to the court, the council member’s notice of appeal “showed he was strongly opposed to the planning commission’s decision on Woody’s application” – that is, he took a position against the project. Furthermore, the court explained, the council member’s speech to the council had been written out beforehand, “wholly belying his own self-serving comment at the hearing that “‘I have no bias in this situation.’” Therefore, the court held, the council member should not have been part of the body hearing the appeal.

Second, the court held that the appeal did not meet the procedural requirements of the city’s municipal code, and therefore should not have been brought. The city argued that the city had a “policy and practice” of allowing council members to appeal the planning commission’s decision. This argument was not well taken by the court. As the court explained: “The City violated the rules laid down in the city’s own municipal code, then purported to exempt itself from that code by invoking some previously undocumented custom of ignoring those rules when it comes to council members themselves. Needless to say, changing the rules in the middle of the game does not accord with fundamentally fair process.”

 

First District Upholds Approval of Parkmerced Redevelopment Project in San Francisco

In a partially published opinion, the court upheld San Francisco’s approval of the Parkmerced project, concluding that the San Francisco General Plan contains adequate standards for population density and building intensity, the city did not violate due process rights in approving a development agreement for the project, and the administrative record properly included certain hearing transcripts. The court affirmed the judgment below. San Francisco Tomorrow v. City and County of San Francisco, Case No. A137753.

Parkmerced is an existing 3,221-unit residential complex on 152 acres in southwest San Francisco. The housing is currently divided between 13-story towers and 2-story townhouses. The proposed project is a comprehensive mixed-use redevelopment plan that proposes, over the course of 20 to 30 years, to demolish all the townhouse units, build an equal number of replacement units, and add 5,679 units. The project also envisions providing new commercial and retail services, transit facilities, parks, and open-space amenities, and improving existing utilities and stormwater management systems. The project would also include office space, a new school, daycare facilities, and a fitness center. The Planning Commission certified the final EIR for the project, after which the Board of Supervisors approved the project. San Francisco Tomorrow and Parkmerced Action Coalition filed a petition for writ of mandate. The trial court denied the petition on all counts. Petitioners argued that the San Francisco General Plan’s Urban Design Element is inadequate for failing to include standards for population density and building intensity as required by Government Code section 65302. “Population density,” the court noted, refers to the number of people in a given area rather than the concentration of dwelling units. The court emphasized that the actual layout of a general plan is for the most part within the local agency’s discretion. Here, the section of the Housing Element describing existing housing stock contained a table and map that together provided an adequate description of the population densities for the Parkmerced area. The table and map also projected the likely future densities throughout the city. The court found this adequate. The Urban Design Element was adequate in establishing maximum dimensions of buildings only above specified heights, as this type of standard was contemplated by case law and the general plan. The court afforded the city broad discretion as to the degree that the circulation element correlated with the changes in population density and building intensity.

Petitioners also contended the trial court erred in dismissing Parkmerced Action Coalition’s due process claim. Petitioners argued that as tenants of Parkmerced, members of the coalition held property rights associated with their rent-controlled units, and those rights had been violated by the failure to provide proper notice. The court found no error. The court noted that the only governmental decisions subject to procedural due process principles are decisions that are adjudicative in nature. Legislative action is generally not governed by procedural due process requirements. To conform to this rule, appellants posited that a development agreement is an entitlement, rather than a law of general applicability. While a few cases support the expansion of due process protection where a legislative act exceptionally affects a small number of people, under state law the approval of a development agreement is a legislative act. The court was unwilling to subject the approval to due process requirements simply because it affected property rights in some manner.

Finally, the court held that the trial court had not erred in including in the administrative record transcripts of a set of hearings before a board committee. Though the audio recordings and their transcriptions constituted “other written materials relevant to the agency’s decision on the merits of the project,” no cases held that such documents must be identified in the motion affirming certification of the EIR in order to be “before the decisionmaker.” Furthermore, the hearings occurred before the board’s decision, and thus the recordings and transcripts were properly part of the administrative record. Even if the transcripts were not part of the administrative record, the court held that petitioner had failed to meet their burden of showing such error was prejudicial.