Tag: MND

First District Finds a “Fair Argument” in Comments that a Project’s Height and Density Were Incompatible with a Historic Overlay District and that Traffic Safety and Congestion Issues Could Be Worsened

In Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, the First District Court of Appeal held that the record contained a “fair argument” that a mixed-use project in an historic district might have significant aesthetic impacts on the historic character of the community due to the project’s size and scale. The court also cited residents’ concerns regarding traffic hazards and congestion, and concluded that the city was required to prepare an EIR.

The City of Fremont adopted a zoning overlay district to protect the historic character of the community of Niles, a small commercial strip dating to the 19th century. A developer proposed a mixed-use project with 98 residential units on a vacant six-acre property at the gateway to this district. Neighbors complained that the buildings were too tall, and the project was too dense, so that it was incompatible with the area and would increase traffic congestion. The city’s architectural review board recommended denying the project. The planning commission recommended approval, and the city council adopted a mitigated negative declaration and approved the project. Neighbors sued. The trial court found that the record contained a “fair argument” of potentially significant impacts relating to aesthetics and traffic, and granted the writ. The developer appealed.

In May 2018, the city published a draft EIR for the project. The neighbors moved to dismiss the appeal as moot because the city had decided to comply with the trial court’s writ. The appellate court declined to dismiss the appeal. The city was not a party to the appeal. The developer’s submittal of a revised application did not mean the original project was abandoned. Moreover, the appeal was not moot because, were the developer to prevail, the city’s original approvals would be reinstated regardless of the new application.

Turning to the merits, the court concluded that the project’s visual impact on its setting – in this case, an historic commercial “main street” recognized as sensitive by the city – was a proper subject of review, over and above the analysis of the project’s impact on historic resources. According to the court, the record “clearly” contained a fair argument that the project would have a significant aesthetic impact on the historic district. The city’s initial study found that the project was aesthetically compatible with the district because it reflected the architectural style of the industrial buildings that previously occupied the site, and the city’s design guidelines recognized that architecture within the district was varied. Members of the architecture review board and of the public, however, stated that the project was too tall and dense, and inconsistent with Niles’ village-like character. These complaints continued even after the developer modified the project. The court recognized the “inherently subjective” nature of aesthetic judgments, but found that the comments “were not solely based on vague notions of beauty or personal preference, but were grounded in inconsistencies with the prevailing building heights and architectural styles of the Niles [district] neighborhood and commercial core.” Commenters included members of the city’s historic architectural review board, who recommended denial.

The court rejected the developer’s various arguments that the project’s aesthetic impact was not significant. First, although the site was largely vacant and unkempt, that did not automatically mean that development of the site would be an upgrade. Second, the site, though on the edge of the historic district, was nevertheless located at a recognized gateway to Niles, and was within the district’s boundaries. Third, the architectural review board’s recommendation to deny the project was not a bare conclusion, but was supported by record evidence of the board members’ (whom the court presumed to have historic aesthetic expertise) underlying aesthetic judgments about the effect of the project. Thus, the board’s “collective opinions” on project compatibility with the historic overlay district were substantial evidence supporting a fair argument that the project may have significant aesthetic impacts. Though the court noted that, were the city to prepare an EIR, the city could conclude that the project would not have a significant impact on aesthetics “because aesthetics is an inherently subjective assessment.”

The court also found that the record contained a fair argument concerning traffic safety. The project’s traffic study concluded a left-turn pocket lane was warranted at the project entrance. Staff did not recommend the pocket, however, because left-turn pocket lanes generally were not located elsewhere along the street, and because omitting a pocket would make vehicles slow down. Testimony from residents, however, stated that drivers did not adhere to the posted speed limit, and sight lines might not be adequate if multiple drivers queued up to turn left into the project site. These “fact-based comments” were substantial evidence supporting a fair argument that a new intersection at the project entrance could have significant traffic impacts.

The record also contained a fair argument that the project could contribute to existing traffic congestion. Residents testified that traffic at a nearby intersection was already terrible, and that during the morning commute traffic already backed up from this intersection to the project site. The city’s own traffic study found that traffic at this intersection was Level of Service (“LOS”) E – an unacceptable level of congestion under the city’s standards – and that project-related traffic would cause congestion there to worsen to LOS F. The developer argued that, under the city’s thresholds of significance, a shift from LOS E to LOS F was not a significant impact. The court held, however, that the city’s significance threshold could not be applied to foreclose consideration of substantial evidence that the impact might be significant. The court again found that the “fact-based comments of residents and city staff and officials supported a fair argument that unusual circumstances in Niles might render the thresholds inadequate to capture the impacts of congestion on Niles Boulevard.”

Fourth District Court of Appeal Upholds Reliance on Mitigated Negative Declaration and Approval of Construction of School

The Fourth District Court of Appeal upheld the trial court’s decision denying a challenge to the City of San Diego’s approval of construction of a secondary school and associated adoption of a mitigated negative declaration. (Clews Land and Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161.)

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

Exhaustion of Administrative Remedies

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

Adoption of the MND

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

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

Recirculation of MND

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

Historical Resource Regulations

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

Consistency with Neighborhood Plan

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

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

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

Elizabeth Pollock