Stahovich v. City of
Filed 12/28/12
Stahovich v. City of Anaheim CA4/3
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ARTHUR
E. STAHOVICH, as Trustee, etc.,
Plaintiff and Appellant,
v.
CITY
OF ANAHEIM et al.,
Defendants and Respondents;
MELIA
HOMES, INC., et al.,
Real Parties in Interest and
Respondents.
G046785
(Super. Ct. No. 30-2010-00431164)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Gail Andrea Andler, Judge. Motions to introduce additional
evidence. Judgment affirmed. Motions denied.
Johnson
& Sedlack, Raymond W. Johnson, Abigail A. Broedling and Kimberly A. Foy for
Plaintiff and Appellant.
Cristina
L. Talley, City Attorney, and Theodore J. Reynolds, Assistant City Attorney,
for Defendants and Respondents.
Gatzke
Dillon & Ballance, David P. Hubbard and Rachel C. Cook for Real Parties in
Interest and Respondents.
* * *
Defendants
City of Anaheim (City) and City Council for the City of Anaheim (Council;
collectively defendants) approved a residential infill project of 32 single
family homes (Project) to be developed by real parties in interest Melia Homes,
Inc. and Donovan Anaheim LLC (collectively real parties). Before approving it, defendants undertook an
initial study and, finding the Project would not result in significant
environmental effects, adopted a negative declaration. Plaintiff Arthur E. Stahovich, trustee of the
Arthur E. and Marjorie L. Stahovich Family Trust (1986) filed a petition for
writ of mandate and a complaint for declaratory relief alleging defendants
violated the California Environmental
Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.; all further
statutory references are to this code unless otherwise stated) because they
failed to require an environmental impact report (EIR). He also alleged defendants violated the
zoning requirements set out in the Anaheim Municipal Code (AMC). The trial court entered judgment in favor of
defendants and real parties, and plaintiff appealed.
Plaintiff raises several issues, contending (1) there
is substantial evidence supporting a fair argument there may be significant
environmental impacts on noise, land use and planning, drainage, and traffic,
necessitating an EIR or, alternatively, a mitigated negative declaration; (2)
defendants violated zoning laws by failing to require a noise study, exceeding
the maximum density, and approving improper lot lines; and (3) the case is not
moot. Plaintiff’s first two arguments
have no merit, eliminating any need to rule on the mootness claim. We affirm.
After
the opening brief was filed and simultaneously with the filing of the
respondent’s brief, real parties filed a motion seeking to introduce additional
evidence to support its claim the appeal was moot. They later filed a supplemental motion to
introduce additional evidence. We decide
the case on the merits, and, having no need for additional evidence, deny the
motions.
FACTS AND
PROCEDURAL HISTORY
Real
parties applied to defendants to develop 32 single-family residences, commonly
referred to as an “in-fill†project. The
property is located within an already built-out residential neighborhood
surrounded on three sides by single-family homes and on the fourth by
apartments. The Project is served by one
private street dead-ending in a cul-de-sac.
Infrastructure, including roads and utilities, was already in place. City’s general plan designated the bare
ground for “Corridor Residential†use.
It was zoned “T†or “Transition,†a temporary designation that remains
only until the property is to be developed.
A developer must apply for a zoning change as part of the development
process. (AMC §§18.14.-2-.040,
18.90.050.040.) Real parties sought to
have the property rezoned as RS-4, designed to be flexible to “address the
challenges of developing homes in a built-out
environment . . . .â€
Thus, RS-4 zoning allows for relaxation of some normal development
requirements, including setbacks.
Pursuant
to an initial study defendants conducted under CEQA, they determined the
development would not have any significant environmental impact and issued a
negative declaration for the Project.
After it was promulgated for review and comment, City’s planning
commission adopted it and approved the tract map, conditional use permit (CUP),
and variance.
Thereafter, plaintiff’s son, David Stahovich
(David), appealed the approval to the Council.
Defendants addressed each claim David raised and issued a revised
negative declaration (Revised Negative Declaration) that was circulated for
public review and then approved along with the Project. Defendants then granted David’s request for a
rehearing. Six weeks later and four days
before the scheduled rehearing, defendants received a letter from plaintiff’s
lawyer in which he set out several purported deficiencies in the Revised
Negative Declaration. Defendants granted
real parties’ request for continuance to respond to the issues raised.
A
second revised negative declaration (Negative Declaration), which is the
subject of this action, was prepared and circulated. It included a final drainage report prepared
by real parties’ engineer. After reviewing
the report defendants’ public works department concluded “the proposed on-site
storm drains and the existing off-site drains would adequately drain storm
water from this site and the neighboring properties and that the [P]roject
would not result in the flooding of nearby streets.â€
At the
continued hearing, Council heard public comment and continued the hearing to
allow real parties and residents to discuss the Project’s density and for real
parties to consider enlarging the size of the side yards for two of the
lots. Real parties subsequently provided
revised site plans showing enlarged side yard setbacks. At the continued hearing Council approved the
Project, adopting the Negative Declaration.
As
approved the Project was rezoned RS-4 and included a Tentative Tract Map
approval, a CUP allowing a reduction of setbacks for rear yards, and a variance
to reduce the length of some driveways.
Defendants imposed 34 conditions for approval, including submission of
plans incorporating the drainage system set out in a drainage report and a
“right turn in-right turn out†restriction on access to and from the Project’s
private street. Real parties also
granted defendants an exception reducing the standard width requirement for
private streets to accommodate landscaped planters that projected out into the
street, known as “bulb-outs†or “chicanes.â€
After
defendants denied David’s request for another rehearing plaintiff filed his
petition for writ of mandate. A trial
was conducted and the court ruled in favor of defendants and real parties. Although plaintiff appealed the judgment as
to all parties, only real parties filed a respondents’ brief; defendants joined
in that brief.
DISCUSSION
1. Exhaustion of Administrative
Remedies
To file
a CEQA action a party must have first exhausted its administrative
remedies. (Sierra Club v. City of
This requirement is jurisdictional.
(Ibid.) The grounds on which the challenge is made
must have been presented to the agency during the public comment period or
before the public hearing is closed (§ 21177, subd. (a)) and the plaintiff
must have objected to the project during that same time frame (§ 21177,
subd. (b)).
Under
AMC sections 1.12.100.010 and 1.12.100.020, once Council approved the Revised
Negative Declaration, plaintiff was required to request a rehearing, including
a declaration setting out the basis for the rehearing and facts supporting the
requested relief.
Real
parties contend plaintiff did not exhaust his administrative remedies because
he did not file the request for rehearing; only David did. Given that the record is replete with
references that David was acting on plaintiff’s behalf, and defendants’
apparent knowledge of it, we conclude there was a sufficient exhaustion of
plaintiff’s remedies by David.
Defendants
also argue certain of the issues raised in plaintiff’s opening brief were not
included in the request for rehearing.
We agree with plaintiff his request sufficiently put defendants on
notice of his complaints.
Negative Declaration
a. Introduction and Applicable
Law
An
EIR is required if there is substantial evidence supporting a fair argument
that a project may have a significant environmental effect. (Pocket
Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927 (Pocket Protectors).) If, based
on the entire record, there is no substantial evidence the project would
significantly affect the environment, the agency must then adopt a negative
declaration (§ 21080, subd. (c)), which is what defendants did here. Plaintiff claims this was error.
A
significant environmental effect is a substantial or potentially substantial
adverse change in the environment. (
Cal.App.4th at p. 927; § 21068; Cal. Code Regs., tit. 14,
§ 15382.) Plaintiff must show there
is a reasonable possibility of this occurring.
(Pocket Protectors, supra, 124
Cal.App.4th at p. 927.) A “mere
possibility of adverse impact on a few people†is not sufficient. (Id. at p.
929.)
The
fair argument standard, which is a “‘low threshold’ test,†presents a question
of law as to whether environmental review is required and no deference may be
given to an agency’s decision. (
Cal.App.4th at p. 928.) Instead, any
doubts are to be resolved in favor of preparation of an EIR. (Ibid.)
But
our independent review of the record must reveal substantial evidence
supporting a fair argument of a significant effect on the environment. (
“[S]ubstantial evidence includes fact, a reasonable assumption
predicated upon fact, or expert opinion supported by fact†(§ 21080, subd.
(e)(1)) but does not include “argument, speculation, unsubstantiated opinion or
narrative, [or] evidence that is clearly inaccurate or
erroneous . . .†(§ 21080, subd. (e)(2)). Put another way, substantial evidence is
“enough relevant information and reasonable inferences from this information
that a fair argument can be made to support a conclusion, even though other
conclusions might also be reached.â€
(Cal. Code Regs., tit. 14, § 15384, subd. (a).)
An
agency has the discretion to determine whether evidence meets the definition of
substantial, and we give that decision deference. (Pocket
Protectors, supra, 124 Cal.App.4th at pp. 928, 934.) Thus defendants, and we in our de novo
review, may weigh all the evidence in the record to determine if it is
substantial. (Id. at p. 935.) We may not,
however, weigh substantial evidence to determine whether an EIR is
required. If there is substantial
evidence supporting environmental review, review is required.
Noise Impacts
Plaintiff
posits there is a fair argument that noise from the Project may be
environmentally significant because established noise standards will be
exceeded and ambient noise will increase over existing levels. He challenges the findings of the Negative
Declaration that there will be a “less than significant impact†from the Project
resulting in “[e]xposure of persons to or generation of noise levels in excess
of standards established in the local general plan†and there would be no
impact causing a “substantial permanent increase in ambient noise levels in the
[P]roject vicinity above levels existing without the [P]roject.â€
City’s
exterior noise standard is 65 decibels (dB).
Plaintiff argues defendants’ general plan and the EIR supporting it show
the Project is near Western Avenue, which is “within a 65 dBA CNEL (community
noise equivalent level) noise contour,†so the Project’s added noise “may
feasibly†exceed the maximum level. He
relies on a statement in the general plan that “[a]ny siting of sensitive land
uses within these contours . . . represents a potentially
significant impact and would require a separate noise
study . . . to determine the level of impacts and required
mitigation.†He asserts the EIR states
that growth based on increased intensity of land use, “as with the [P]roject,â€
will lead to increased noise. He
concludes that the general plan and EIR contain substantial evidence that
“growth, traffic, and increased land use intensity†from the Project will
increase the noise level above 65 dB.
This argument is flawed. First, according to staff reports, the
general plan shows noise levels for properties adjacent to Western Avenue as
less than 65 dB CNEL once built. None of
plaintiff’s record references show anything to the contrary. Further, the environmental checklist supporting
the Negative Declaration states additional noise would come from vehicular
traffic in and out of the development and “normal operation of mechanical
equipment,†which would be “typical†and not increase noise. There are only an estimated “306 daily
vehicle trips†in and out of the development.
This defeats plaintiff’s unsubstantiated claim that the Negative
Declaration somehow states noise will increase to the point where an EIR would
be required.
Nor do statements made
by plaintiff and other neighboring residents based on their personal
observations constitute substantial
evidence. Case law does provide
personal observations may suffice. In
(1990) 225 Cal.App.3d 872, on which plaintiff relies, several residents had
complained to governmental agencies about actual noise from a mining operation
and testified to this effect at hearings on a proposal to expand the
project. The court stated that
“[r]elevant personal observations such as these can constitute substantial
evidence. [Citations.]†(Id.
at p. 882.)
Observations in that
case were based on actual knowledge and experience, quite different from the
vague, general statements and unsubstantiated opinions made here. For example, regarding the fact two and a
half new lots would be backing up to her backyard, one neighbor stated “I can’t
even imagine the . . . noise impactâ€; two or three others made the same speculative
comments. These types of statements are
specifically excluded from the definition of substantial evidence. (§ 21080, subd. (e)(2).)
The out-of-context
statements from a council member and the mayor also fail to meet the definition
of substantial evidence. The council
member was summarizing comments made by citizens, including complaints about a possible
noise increase, not making a finding there would be a significant impact on the
environment caused by noise. Likewise,
the mayor was referring to complaints by neighbors and noted that a lot of them
were not “significant,†stating he thought the noise would “be handled.â€
And defendants cannot be
faulted for plaintiff’s lack of evidence, as he contends. They were not required to prepare a noise
study just because plaintiff claimed they should.
Plaintiff’s reliance on
an AMC provision for a noise study is equally inapt. This study is not CEQA requirement; it is a
municipal code provision and by its terms is required only to measure the
impact of existing noise on future residents of the homes being built. (AMC § 18.40.090.020 [“A noise level
analysis shall be performed for any new residential
development . . . to determine the
projected . . . noise levels within the
developmentâ€].)
As a related argument
plaintiff asserts there was no evidence to support defendants’ conclusion there
would not be a “substantial permanent increase in ambient noise levels.†But plaintiff cites solely to the
environmental checklist, where only a brief explanation is required. (Cal. Code Regs., tit. 14, § 15063,
subd. (d)(3).) And defendants referred
to the general plan, which shows noise levels for built out property adjacent
to Western Avenue as under 65 dB CNEL.
Finally, plaintiff
maintains defendants improperly deferred mitigation of noise impacts. But as defendants point out, mitigation
measures are required only when there are significant environmental
effects. (Cal. Code Regs., tit. 14,
§ 15126.4, subd. (a)(3).)
Plaintiff’s argument defendants violated the AMC by failing to require a
study be submitted with the development application has nothing to do with
CEQA, as noted above.
Plaintiff failed to
establish there is a fair argument noise from the Project may be
environmentally significant.
Land Use and Planning Impacts
Plaintiff
rather conclusorily contends the Project may have significant impacts on land
use and planning because it conflicts with City’s general plan and zoning. He lists seven conflicts to support his
argument.
The
record shows six of the seven claimed impacts were covered by a zoning change,
CUP, or variance as provided by the AMC and one is consistent with the
AMC. As defendants note, the point of
those processes is to avoid conflicts with the general plan or zoning
requirements. None of the seven items
about which plaintiff complains might have a significant impact on land use or
planning.
First,
plaintiff attacks the variance allowing 18 of the driveways to be two feet
shorter than what is normally required.
His only support is reference to neighbors’ comments the shorter
driveways would not accommodate larger vehicles. But plaintiff completely fails to make any
reasoned legal argument or cite to any authority in support of the claim. This forfeits the issue. (Benach
v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) And even on the merits, neighbors’ comments
about problems with parking larger vehicles do not constitute
Second,
plaintiff complains about defendants’ issuance of a CUP to reduce setbacks for
several of the backyards from 15 feet to 13.5 feet. He again points solely, and only generally,
to residents’ comments about the shorter setbacks, and “related issues of
noise, privacy, visibility and light, enjoyment, etc.†As with the variance claim, this abbreviated
argument is insufficient and waived.
But
also, again, on the merits it fails. As
noted above, the purpose of a CUP is to allow for deviations from zone code
requirements. And the AMC specifically
allows for this decrease in length in projects zoned RS-4. (AMC § 18.04.160.040 [“minimum
setbacks . . . may be modified . . . to
achieve a high quality project designâ€].)
Real parties sought this modification to make the Project more
aesthetically pleasing, thus fulfilling the code requirements. Without citing authority, plaintiff argues “mere
compliance with the law†does not eliminate the possibility of a significant
impact on the environment. Even if that
is correct, plaintiff has not met his burden to point to substantial evidence
of such a possible impact.
Plaintiff’s
third argument deals with drawing of lot lines for four lots that abut the
cul-de-sac. Without citation to any
authority, he asserts the lots were not situated radially to the cul-de-sac as
required but were instead tangential, causing a reduction in setbacks on two of
the lots. He concludes with a
one-sentence statement that he and other residents objected to this. Again, this argument is waived for lack of
proper briefing. It likewise fails on
the merits. The record shows, in
reliance on the AMC, defendants routinely treat cul-de-sacs as “straight†and
not “curved†streets, requiring lot lines to be at approximate “right angles to
the street centerline.†(AMC §
is incorrect.
attacks the exception to the width of the private road where the six
“bulb-outs†are built, reducing it from 32 to 24 feet. He makes another abbreviated argument, merely
that this violates the zoning code, making the potential impacts to planning
and land use “evident.†To repeat, this
argument is forfeited for lack of proper briefing, and again, it fails on the
merits. Reduction in width is allowed by
code. (AMC 18.40.060.) Contrary to plaintiff’s claim, it is not
evident why reduction may have a significant environmental effect and he has
the burden to demonstrate to us that it does.
Rather, the record shows several positive effects, including better
drainage, enhanced aesthetic neighborhood quality, “[t]raffic [c]alming,†better
traffic circulation and safety, and compliance with defendants’ traffic
management plan.
The
fifth challenge is a claim that rezoning the property to RS-4 conflicts with
the general plan and zoning requirements, and specifically Goal 4.1 of the
general plan, due to excessive density.
Plaintiff again notes generalized citizen statements to this effect and
that the density is inconsistent with surrounding developments. But these comments do not rise to the level
of substantial evidence and plaintiff fails to cite to Goal 4.1 in the record.
Next,
plaintiff challenges the determination of actual density, claiming defendants
incorrectly calculated it in violation of the AMC. He argues that, based on the 11 units per
acre maximum density (AMC § 18.04.160.020) , the maximum number of houses should
be 28, not 32.
Defendants
lay out their method of calculation: The
number of net acres is calculated and then multiplied by 11. “Net Acre†is
defined as “[t]he overall acreage of an area, excluding public and private
streets and alleys.†(AMC § 18.04.020.) From the total 3.39 acres of the Project,
defendants subtracted streets and alleys and arrived at 2.9 net acres allowing
for 31.9 homes. This was rounded to 32.
Plaintiff
argues this calculation is incorrect because it does not factor in the
definition of density set out in the AMC, i.e., “[t]he number of dwelling units
per acre of land . . . excluding public and private
streets, public and private easements for ingress and egress and any area used
for non-residential purposes.†(AMC 18.92.070.) He asserts defendants’ calculations did not
exclude areas for ingress and egress easements or property used for
non-residential purposes. The conclusory
comments by David and a lawyer that the density was incorrect are not
substantial evidence. Further, the
opinion of plaintiff’s expert that the maximum number of units should be 28 is
based on his interpretation of the definition of “streets†in the AMC. But defendants’ “view of the meaning and
scope of its own ordinance is entitled to great weight ‘unless it is clearly
erroneous or unauthorized.’
[Citation.]†(
Environment v. City of Santa Clarita (2011) 197 Cal.App.4th 1042,
1062.) Plaintiff has not shown either of
those situations.
Finally,
plaintiff again asserts a noise study was required to comply with a goal of the
general plan to protect “‘sensitive land uses from excessive noise through
diligent planning.’†As noted above the
record shows the noise impacts from the Project will be minimal and will not
exceed the maximum decibel level.
In sum,
there is no substantial evidence of a negative impact on planning or land use.
Drainage Impacts
The
final drainage report, dated January 13, 2011, along with the Water Quality
Management Plan, were incorporated into the Negative Declaration. The Negative Declaration stated
“site-generated surface water runoff from 10, 25, and 100 year storm events
would be safely conveyed by a new on-site underground storm drain system that
connects to the existing storm drain system in Western Avenue.†It found that drainage would cause a less
than significant impact. Plaintiff
claims this is error because defendants recognized off-site ponding could have
a significant effect and included mitigation conditions in the final approval
of the Project. The final drainage
report states “the Project is expected to increase gross storm flows by
approximately 4%, which is not significant.â€
This is correct within the definition of “significant,†which requires
that the adverse effect be “substantial, or potentially substantial.†(§ 21068; Cal. Code Regs, tit. 14,
§ 15382.)
Plaintiff
argues that runoff from four existing homes adjacent to the Project will be
blocked leading to ponding in their back yards.
But according to the final drainage report, the Project’s drainage
system will handle the runoff. There
will be four 6-inch underground drains that will carry the water from adjoining
property and the site out to the existing sewer system. In addition, maintenance of the system is
facilitated by “cleanouts†on the Project property. These and other elements of the drainage
system make “the Project’s impacts on hydrological conditions at and near the
site . . . less than significant. In fact, the new underground system will
improve existing drainage conditions by . . . accommodating
off-site runoff from the homes north of the
Project . . . .â€
When
the Project was approved defendants imposed conditions to make certain the
drainage system would be built according to the drainage plan. Real parties were required to record an
agreement reserving easement for drainage on lots within the Project that would
accept drainage from adjoining property; maintain the storm drain and use best
management practices as spelled out in the Water Quality Management Plan; and
submit plans for the drainage as set forth in the drainage report.
Plaintiff
relies on analysis from his engineering consultant, James Bolton, who stated
that his review of the drainage plan showed water would pond on the adjoining
properties to the north of the Project because the water would “concentrated at
the grated[]openings of the inlets before it will flow into the draining
facility.†And, silt or debris in the
system would increase ponding, requiring a maintenance system, which he claimed
was not properly discussed in the plan.
We
agree with defendants that this does not constitute substantial evidence in
support of a fair argument drainage may have a significant effect on the
environment. As they point out, Bolton
failed to explain the duration of the ponding, i.e., a matter of minutes or
longer or its severity, and thus did not support the claim it may be
significant. Rather, he stated the
ponding would be at the inlets, thus presumably for a short period in a limited
area.
Moreover,
real parties’ civil engineer responded to Bolton’s claims, noting there could
possibly be two to three inches of “temporary ponding†during a major rainfall,
but it would not be significant for several reasons. The number and placement of inlets were
designed “to mimic the exiting sheet flow characteristics†and were sufficient
to handle runoff; any development would require a wall between the new
construction and existing property and the same type of plan to include outlets
handling water from yards of existing homes; major storms occur only every 25
and 100 years; and any ponding would not affect any structures, the principal
criterion for designing a drainage system.
Contrary
to plaintiff’s argument, this is not a battle of experts, requiring an
EIR. For expert opinion to rise to the
level of substantial evidence it cannot be “unsubstantiated
opinion . . . [or] evidence that is clearly inaccurate or
erroneous†(§ 21080, subd. (e)(2)) but must be “supported by factâ€
(§ 21080, subd. (e)(1)). Bolton’s
opinion does not satisfy this requirement.
Plaintiff’s
reference to his and other neighbors “ongoing concerns†also is
insufficient. Of the record references,
most are not citizen comments and those that are predate the final drainage
plan.
Attacking
from a different angle, plaintiff contends the conditions approving the Project
are mitigation measures and suggest drainage may result in significant
impacts.
The CUP
imposed a condition requiring real parties to “submit project improvement plans
that incorporate the drainage improvements required, and the mechanisms
proposed, in the site specific Drainage Report dated 1/13/2011†before
defendants would issue a grading permit.
Plaintiff points to language in the final drainage report that, based on
the specific design of the proposed drainage system, states: “With these design features in place, the
Project’s impacts . . . will be less than significant.†He concludes this is a deferred mitigation
measure that is vague and unenforceable.
Again,
we agree with defendants that the condition is not a mitigation measure imposed
to remedy a significant impact. The
record reflects the drainage system was part of the Project design from the
beginning, before CEQA review.
Plaintiff
complains about another condition, a maintenance covenant, which he claims was
enacted in response to his concern about maintaining the drainage system. This
argument has no merit. Plaintiff points
to nothing in the record to support his conclusion about why it was
imposed. The condition is not specific
to the drainage system but includes landscaping, sewer, and the private street.
Plaintiff
has not met his burden to point to substantial evidence supporting a fair
argument drainage may have a significant environmental impact.
Traffic Impacts
Plaintiff
challenges the Negative Declaration’s finding there would be no traffic impact
because the Project would not “‘[s]ubstantially increase hazards due to a
design feature (e.g., sharp curves or dangerous intersections) or incompatible
uses.’†He points to the “right turn in,
right turn out†condition imposed by defendants, claiming this demonstrates
traffic would have a significant impact requiring an EIR. He attacks the finding in the Negative
Declaration that this was not a measure imposed “to mitigate a potentially
hazardous situation . . . .â€
But the
evidence on which he relies is not sufficient to support his argument. Comments of neighbors and David do not
provide substantial evidence. David
stated that, because there had been no right-of-way dedication, there was a
line of sight problem. Most of the
neighbors merely voiced complaints about existing traffic, in part due to
nearby schools. Another speculated there
would be increased jaywalking, which would block the views of cars leaving a
neighboring street. This is all
unsubstantiated opinion. (§ 21080,
subd. (e)(2).)
Plaintiff
also misconstrues a comment by a member of City’s public works department that
a concern would be visibility of pedestrians.
The staff member went on to say the landscaping plan would take care of
this. Moreover, his additional statement
a right turn in, right turn out condition would be ideal means nothing more
than that. And, contrary to plaintiff’s
claim, he did not state the main reason for this condition was for safety; he
was paraphrasing a comment from a resident.
Nor does a planning commissioner’s statement that this condition would
“‘mitigate the traffic . . . or mitigate the concern of the
neighbors’†rise to the level of a finding of mitigation.
Again,
plaintiff failed to meet his burden.
Mitigated Negative Declaration
As
an alternative argument, plaintiff asserts that even if an EIR was not required
defendants abused their discretion by not requiring a mitigated negative
declaration. A mitigated negative
declaration is “a negative declaration prepared for a project when the initial
study has identified potentially significant effects on the environment, but
(1) revisions in the project plans or proposals made by, or agreed to by, the
applicant before the proposed negative declaration and initial study are
released for public review would avoid the effects or mitigate the effects to a
point where clearly no significant effect on the environment would occur, and
(2) there is no substantial evidence in light of the whole record before the
public agency that the project, as revised, may have a significant effect on
the environment.†(§ 21064.5) Plaintiff claims a mitigated negative
declaration is necessary because mitigation measures were included in the
Negative Declaration. But as the record
contains no substantial evidence supporting a fair argument the Project may
have a significant effect on the environment, mitigation was not required. And, as discussed above, the conditions of
approval were not mitigation measures.
Introduction and Standard of Review
Plaintiff
contends defendants violated their zoning code in three ways: 1) failing to require real parties to submit
a noise study with the initial application for the Project; 2) approving
construction of 32 homes when the limit was 28; and 3) allowing two lots to be
built tangentially to the cul-de-sac rather than radially, causing
a reduction in setbacks of those two lots. None of these arguments has merit.
We
review plaintiff’s claims under an abuse of discretion standard. (Code Civ. Proc., § 1094.5, subd.
(b).) Plaintiff has the burden to show
defendants did “not proceed[] in the manner required by law, the order or
decision is not supported by the findings, or the findings are not supported by
the evidence.†(Ibid.) In our review we use
our “independent judgment on legal issues, such as the interpretation of
statutes.†(Citizens for Responsible Equitable Environmental Development v. City of
San Diego (2010) 184 Cal.App.4th 1032, 1040-1041.)
Noise Study
AMC
18.40.090.020 states: “A noise level
analysis shall be performed for any new residential
development . . . to determine the projected interior and
exterior noise levels within the development.
The study shall include mitigation measures that would be required to
comply with applicable City noise
standards . . . . The study shall be provided by
the applicant . . . to the City at the time of application
for development of the residential
development . . . .â€
This requirement applies to any residential development of two or more
homes located within 600 feet of a secondary arterial, in this case Western
Avenue. (AMC § 18.40.090.010.)
Here
defendants did not require the filing of a noise analysis when real parties
filed the application; it was filed later in the process. A City planner explained the reason for the
analysis is to make sure the Project complies with City’s noise regulations. It is not to evaluate the impact of the
development’s noise on the surrounding area.
Thus, circulation is not required under CEQA. (City
of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th
889, 905 [EIR required to evaluate impacts of project on environment, not
reverse].)
The
planner further stated that if the development is in an area where exterior
noise is not expected to exceed 65 dB, as in this case, the noise analysis was
not necessary for defendants to determine the Project’s exterior noise levels
would not exceed City’s maximum level.
As for
interior noise levels, where a project is outside the 65 dB CNEL contour, the
“practice is to require this [noise] analysis when applications for building
permits are submitted. [¶] This allows
[defendants] to better evaluate interior noise levels based upon the actual
construction drawings . . . .â€
Plaintiff concludes defendants’ failure to
require noise analysis until later in the development process was a prejudicial
abuse of discretion. Even assuming
defendants did violate the regulation, plaintiff has not demonstrated any
prejudice. His assertion the study would
have been available to the public or to guide defendants early in the process
does not suffice. Further his claim
that, because CEQA does call for analysis of cumulative impacts, the study
“presumably would have evaluated [it]†is pure speculation and far afield from
the argument.
Density
Plaintiff
again argues defendants should have approved only 28 units, not 32, this time
in the context of an alleged zoning
violation. He disagrees with how
defendants calculated the maximum number of units. As noted above, for property zoned RS-4, the
maximum number of units per acre is 11.
(AMC 18.04.160.020.) “Net Acreâ€
is defined as “[t]he overall acreage of an area, excluding public and private
streets and alleys.†(AMC
18.92.040.) A staff report explained
that in calculating the maximum number of units defendants subtracted the area
of streets and alleys from the 3.39 acreage of the Project, arriving at 2.9 net
acres, which, multiplied by 11, results in 31.9 units. The report further explained that the street
serving the Project is private, defined as “[a] road or street that is not
owned and maintained by the City and that is used or set aside to provide
vehicular access and circulation within a development.†(AMC 18.92.190.) Because this definition does not include
sidewalks and parkways, defendants do not deduct those areas from the gross
Project area.
Plaintiff
asserts sidewalks, parkways, and ingress and egress easements should have been
excluded. He relies on the definition of
“density,†which is “[t]he number of dwelling units per acre of land, including
the area used for open space, recreational uses, and accessory uses associated
with the residential use, but excluding public and private streets, public and
private easements for ingress and egress, and any area used for non-residential
purposes.†(AMC § 18.92.070.)
Plaintiff
also challenges defendants’ definition of “street,†claiming they should
include the right-of-way area and not just measure from curb to curb. He claims defendants’ interpretation of these
provisions violates the rules of statutory interpretation of multiple
applicable sections because it fails to harmonize them.
We
disagree. As stated above, “an agency’s
view of the meaning and scope of its own ordinance is entitled to great weight
‘unless it is clearly erroneous or unauthorized.’ [Citation.]â€
(Santa Clarita Organization for
Planning the Environment v. City of Santa Clarita, supra, 197 Cal.App.4th
at p. 1062.) We defer to an agency’s
interpretation of its ordinances where “‘the agency has expertise and technical
knowledge, especially where the legal text to be interpreted is technical,
obscure, complex, open-ended, or entwined with issues of fact, policy, and
discretion.’†(Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal.4th 1, 12.) When an “‘agency[] interpret[s] . . . its
own regulation . . . the agency is likely to be intimately
familiar with regulations it authored and sensitive to the practical
implications of one interpretation over another.’†(Ibid.) Greater deference is accorded when there are
“indications of careful consideration by senior agency officials.†(Id.
at p. 13.)
Plaintiff
has not persuaded us defendants’ construction and application of its ordinances
is “clearly erroneous or unauthorized.â€
Rather, the record reflects they considered the meaning and practical
application of the sections and applied them in a reasonable fashion. As such, we defer to their interpretation.
Further,
plaintiff’s position is not supported by the fact the drawings originally
submitted calculated acreage the way he thinks is proper and later changed them
to support the greater density.
Defendants explained those drawings had incorrectly deducted certain
property from the gross acreage and were subsequently corrected. This is a reasonable explanation and we see
nothing sinister or untoward about it.
Side Yard Property Lines
As his final claim, plaintiff again argues the
property lines of the sides of four homes on the cul-de-sac portion of the
street should have intersected radially, not tangentially. They rely on AMC section 18.40.020.030, which
states that “[t]he side property lines of lots shall be at approximately at
right angles to the street centerline on straight streets, or approximately
radial on curved streets.†Plaintiff
asserts that defendants’ failure to require the homes be situated radially
resulted in an insufficient setback between the side yards of two of the new
homes and the back yards of existing homes.
This, he argues, requires that the cul-de-sac must be treated as if it
were a curved street.
Defendants
referred to historic interpretation of the section to support their current
interpretation. A staff member explained
defendants treated the cul-de-sac as straight because there was no bend in the
center line of the street. Plaintiff
claims there is evidence in the record showing defendants have interpreted the
section differently in the past, thus defeating any basis to defer to
defendants’ interpretation of the ordinance.
We note
that when plaintiff first brought this to the attention of defendants and real
parties, real parties revised the drawings so the side yard setbacks went from
five feet to 14 feet, four inches for one and 14 feet, seven inches for the
other, and this is what defendants
ultimately approved. Plaintiff maintains
that had the lots been situated properly the setback would have been 15
feet. The 14-plus foot setbacks fall
well within the flexible development requirements for the RS-4 zoning of the
Project. We find no abuse of discretion.
Mootness
Because
we decide the appeal on the merits, we have no need to take additional evidence
and therefore deny the motion. For the
same reason, there is no reason for us to decide defendants’ argument the case is
moot.
DISPOSITION
The
motions to introduce additional evidence are denied. The judgment is
affirmed. Respondents are entitled to
costs on appeal.
THOMPSON,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
IKOLA, J.
