Friends of San AntonioHeights v. County of San Bernardino

Filed 12/30/09 Friends of San Antonio Heights v. County of San Bernardino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed.

Briggs Law Corporation and Cory J. Briggs for Plaintiff and Appellant.

Barth Berus & Calderon and David R. Calderon for Real Parties in Interest and Respondents.

No appearance for Defendant and Respondent.

1. Introduction

Appellant and petitioner, Friends of San Antonio Heights (Friends), is a group of residents of an Upland neighborhood in San Bernardino County. Wade Prater and Emily Prater, the real parties in interest, own a .77-acre lot located at 2476 Sierra Drive that they propose to subdivide into two lots. After the County approved the subdivision, Friends filed a petition for writ of mandate. The superior court denied the petition, finding the project was compatible with the community character and consistent with the general plan and that it would not have a substantial environmental impact. We reject the appeal by Friends and affirm the judgment.

2. Factual and Procedural Background

For the most part, Friends has not complied with the court rules, requiring an appellant to [p]rovide a summary of the significant facts limited to matters in the record (Cal. Rules of Court, rule 8.204 (a)(1)(C)) and to [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. (Cal. Rules of Court, rule 8.204(a)(2)(C).) For that reason, we rely primarily on the recitation of the relevant facts and appropriate record references, as submitted by the Praters.

A. The Proposed Subdivision

The subject property is in an area of single-family residential lots with minimum square footage of 15,000 feet. In November 2005, the Praters filed their application for approval of Tentative Parcel Map 17374. They proposed to subdivide their lot into two parcels for single family use of 15,145 square feet and 20,176 square feet, the latter a flag lot, with an access driveway providing minimum frontage on Sierra Drive.^[1] The initial review by the County environmental planner deemed the property to be exempt from CEQA.^[2] The County invited comment on the proposed subdivision from various public entities and agencies and four adjacent neighbors.

B. The Planning Appeals

After the subdivision received approval with conditions from the planning staff in May 2006, a neighbor, Keri Taylor, filed an appeal application, objecting to the absence of an environmental impact report. Many residents signed petitions objecting to proposed lot splits which will have the result of the creation of flag lots. They also submitted letters and comments opposing the project.^[3] After a hearing in August 2006, the County planning commission denied Taylors appeal, adopted a negative declaration, and approved the tentative parcel map. Taylor filed another appeal.

A second planning commission hearing was conducted de novo on November 2, 2006. The planner, Loretta Mathieu, testified that the project was an infill project without potentially significant adverse environmental impacts. It was consistent with the general plan, adjacent land uses, community character, and numerous similar existing lots. The creation of a flag lot complied with minimum lot area requirements. The planning commission again voted unanimously to deny Taylors appeal and uphold approval of the project.

C. Appeal to the Board of Supervisors

A hearing on Taylors subsequent appeal to the Board of Supervisors was conducted in February 2007. The planning commission recommended denying the appeal. Julie Ryerson, the deputy director of planning, testified the proposed project complied with the general plan and existing development, including other flag lots. The project was not subject to CEQA. Wade Prater and his son testified about his plan to subdivide his lot and build a second, more private family residence behind the existing residence.

Taylor submitted a letter brief; various exhibits directed at the issue of community character as described in the General Plan, Policy LU-2; and a declaration by Gabriel Elliot, an urban planner, about flag lots and community character. Taylors attorney, Cory Briggs, testified about the importance of community character. Twelve community members spoke both in favor of and against the subdivision.

The supervisors acknowledged the concerns expressed about community character but they also observed the two parcels complied with the local zoning law requiring the size of a lot to be 15,000 square feet. Furthermore, other flag lots had been approved in the neighborhood. The proposed subdivision would not significantly alter the community character. Therefore, the Board rejected the appeal and upheld the planning approval of the tentative parcel map.

The findings adopted by the Board included finding No.1:

The proposed Tentative Parcel Map, together with the provisions for the design and improvements is consistent with the General Plan because the design and improvements conform to the provisions of the Single Family Residentialminimum parcel size 15,000 square feet (RS-15m) General Plan Land Use District and is compatible with existing land use patterns in the area.

The project is consistent with the following goals and policies of the General Plan:

Policy LU-2Requires the design and siting of new residential development that meet locational and development standards that ensure compatibility with adjacent land uses and community character and encourages the fostering of a variety of housing types and densities and more efficient use of the land.

The proposed subdivision includes the creation of a flag lot that is in compliance with minimum lot area requirements for the RS-15M Land Use District. The lot is consistent with numerous existing lots of similar configuration in the surrounding area, . . . Further, the subdivision is consistent with the Countys land use and growth management strategies, incorporated into the General Plan, to promote and encourage the infill of existing urban areas. If the County were to deny the proposed subdivision based on the flag configuration of one of the parcels, it would deprive this property of privileges enjoyed by other properties in the vicinity and in the same land use district.

Finding No. 4 pronounced: The design of the Tentative Parcel Map and its improvements are not likely to cause substantial environmental damage or substantially or avoidably injure fish or wildlife or their habitat because the project site is completely disturbed and no such habitat has been identified on the site.

D. The Writ Petition

In June 2007, Friends filed an amended petition for writ of mandate, asserting causes of action for violations of CEQA and the Subdivision Map Act, Government Code sections 66473.5 and 66474.^[4] In February 2009, the superior court denied the petition and entered judgment in favor of the County. Friends appealed in May 2009.

3. Analysis

On appeal, Friends focuses on its claims made under sections 66473.5 and 66474.^[5] The parties generally agree on the standard of review as expressed in Topanga Assn. for Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514: [A] reviewing court . . . must scrutinize the record and determine whether substantial evidence supports the administrative agencys findings and whether these findings support the agencys decision. In making these determinations, the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision. Also, . . . implicit in section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. (Topanga, supra, at p. 515.)

A. Section 66473.5

Section 66473.5 provides: No local agency shall approve a tentative map . . . unless the legislative body finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan . . . .

A proposed subdivision shall be consistent with a general plan or a specific plan only if the local agency has officially adopted such a plan and the proposed subdivision or land use is compatible with the objectives, policies, general land uses, and programs specified in such a plan.

Friends argues there was not substantial evidence to support the Countys finding No.1 about compliance with the general plan and the proposed subdivisions compatibility with the community character. Friends argues the evidence about existing flag lots was equivocal. Friends also contends that the privacy restrictions governing the property would be violated by the subdivision. Additionally, Friends points to the high degree of public opposition and the declaration of Elliott that community character would be adversely affected.

Friends, however, declines to acknowledge that the issue of community character was thoroughly analyzed and discussed throughout the planning process and the subsequent hearings and appeals. The opinions of the neighbors and other members of the public were properly received and considered. Ultimately, of course, the Board of Supervisors adopted specific findings on this issue, determining that the two lots met minimum size requirements, that a flag lot was not an anomaly in the area, and that the subdivision would meet the goal of efficient land use by increasing density and encouraging urban infill. Friends cannot successfully argue there was not sufficient evidence to support the Countys findings that community character would not suffer because of the subdivision of one large lot into two medium size lots.

B. Section 66474

Section 66474 provides: A legislative body of a city or county shall deny approval of a tentative map . . . if it makes any of the following findings: [] . . . [] (e) That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. In an argument related to the previous one, Friends maintains substantial evidence of the proposals injury to community character in San Antonio Heights prevented [the County] from finding that the proposal will not cause substantial environmental damage. . . .

We conclude the administrative record supports the Countys findings of no substantial environmental damage. The subdivision was the subject of an initial environmental study. It was certified to have no impact on wildlife resources.

Although this is admittedly not a CEQA case, Friends asserts it should be analyzed using CEQA cases involving aesthetic impacts. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1989) 214 Cal.App.3d 1348, 1355-1356; Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 937-939; Ocean View Estates Homeowners Assn. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402; Citizens for Responsible and Open Gov. v. City of Grand Terrace (2008) 160 Cal.App.4th 1323 [4th Dist., Div. 2.]) Friends does not cite any cases which equate aesthetic impacts as used in CEQA with the term substantial environmental damage as used in section 66474, subdivision (e).

Notwithstanding the effort of Friends, the record supplies substantial evidence that aesthetic impacts, as well as the absence of substantial environmental damage, were both fully considered during the Countys multiple reviews of the proposed subdivision. The administrative findings on this issue are supported by the record.

4. Disposition

We affirm the judgment. The County, as the prevailing party, shall recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Richli

J.

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^[1] A flag lot is a parcel of land that is accessible only by a very long narrow strip leading from a main road.

^[2] The California Environmental Quality Act, Public Resources Code sections 21000 et seq.

^[3] More than 600 residents raised objections to the project.

^[4] All statutory references are to the Government Code unless stated otherwise.

^[5] The CEQA claim was dismissed below and has been abandoned on appeal.