Protect Our Village v. >Cal.> Coastal
Com.























Filed 2/7/13 Protect Our Village v. Cal. Coastal Com. CA2/6











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE
DISTRICT



DIVISION SIX




>

PROTECT OUR VILLAGE, Plaintiff and Appellant, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent; OLIVE OIL AND GAS, LP, et al., Real Parties in Interest and Respondents.

2d Civil No. B236341 (Super. Ct. No. 1338881) (Santa Barbara County)

The City of Santa
Barbara (City) issued a conditional coastal
development permit for a mixed use residential/commercial project on two
adjoining parcels of land. At the City's
request, the California Coastal Commission (Commission) certified a local
coastal plan (LCP) amendment rezoning one of the parcels from residential to
commercial. The trial court rejected
appellant's contention that the Commission had to assess the environmental impacts
of the whole development project before certifying the amendment. We conclude the Commission appropriately
limited its review to whether the amendment's zoning change conforms to and
carries out the provisions of the City's existing, certified land use plan
(LUP). (Pub. Resources Code, § 30513.)href="#_ftn1" name="_ftnref1" title="">>[1] We affirm.


FACTS AND PROCEDURAL BACKGROUND

Real parties in interest
Olive Oil and Gas, LP (Olive) and John Price propose to build a 17,270
square-foot, three-story building with eight residential condominiums and 5,000
square feet of ground floor commercial space, on two adjoining parcels of land
containing an existing gas station and parking lot. The gas station is at the intersection of Coast
Village Road and Olive
Mill Road in the Montecito area of Santa
Barbara. The
parking lot fronts on Olive Mill Road
and is adjacent to and north of the gas station.

Under the City's
existing certified LCP, both parcels of land are designated for
"commercial" land use but have different zoning designations. The gas station is zoned as C-1 (limited
commercial), while the parking lot is R-2 (two-family residential). The proposed project requires that the
parking lot (subject parcel) be re-zoned as C-1.

In August 2008, the City
conditionally approved a coastal development permit, tentative subdivision map
and development plan for the project, and adopted a mitigated negative
declaration. The City also approved an
amendment to the LCP designating the subject parcel as C-1 to "bring the
zone designation into conformance with the existing, certified Commercial land
use designation." Because an LCP
amendment is not effective until it is certified by the Commission (§ 30514,
subd. (a)), the City conditioned its approval of the project on the
Commission's certification. Appellant Protect Our Village (POV)
challenged the City's approval of the project, first in the trial court and
then in this court, claiming the City should have prepared an environmental
impact report (EIR) instead of a mitigated negative declaration under the href="http://www.fearnotlaw.com/">California Environmental Quality Act
(CEQA). In an unpublished decision, we
upheld the City's determination that the project would not have significant
environmental effects on water supply, mountain views or aesthetics. (Protect
Our Village v. City of Santa Barbara (Dec. 1, 2011) [2011 WL 6015598] (>POV I).)href="#_ftn2" name="_ftnref2" title="">>[2]

In the meantime, the
City submitted the proposed LCP amendment to the Commission for
certification. The Commission held a
public hearing to assess whether the amendment was consistent with the
California Coastal Act (§ 30000 et seq.) and the LUP portion of the City's
certified LCP. The Commission observed
"[t]he proposed amendment will resolve an internal conflict within the
existing certified LCP wherein the zoning on the subject parcel is not
consistent with the land use designation."
The Commission considered whether a commercial zoning designation, with
a greater permissible development height, would have significant impact on
public scenic views. It concluded that
the LCP amendment would not result in significant impact to public scenic
views, and that rezoning the subject parcel as commercial was consistent with
the visual character of the surrounding area.
The Commission adopted its staff report findings and certified the
amendment.

POV petitioned the trial
court for a writ of mandate vacating the Commission's decision. The trial court denied the petition,
observing the only issue before the Commission was whether the amendment brought
the zoning for the subject parcel into compliance with the City's LUP. The court determined the Commission properly
limited its environmental review to those impacts that can be attributed to the
proposed zoning change. POV
appeals.

DISCUSSION

Standard
of Appellate Review

In ruling on a petition
for writ of administrative mandate, a trial court must assess "whether the
agency in question prejudicially abused its discretion; that is, whether the
agency action was arbitrary, capricious, in excess of its jurisdiction,
entirely lacking in evidentiary support, or without reasonable or rational
basis as a matter of law.
[Citations.]" (>Sierra Club v. County of Napa (2004) 121
Cal.App.4th 1490, 1497.) On appeal, our
review is identical to that of the trial court.
(Reddell v. California Coastal
Com. (2009) 180 Cal.App.4th 956, 962.)
"We review the administrative record to determine whether the
Commission's findings are supported by substantial evidence." (LT-WR,
L.L.C. v. California Coastal Com. (2007) 152 Cal.App.4th 770, 780.) "Courts may reverse an agency's decision
only if, based on the evidence before the
agency, a reasonable person could not reach the conclusion reached by the
agency." (McMillan v. American Gen. Fin. Corp. (1976) 60 Cal.App.3d 175,
186.)

To the extent the
challenge involves the interpretation of a statute or provisions of the City's
LCP, we engage in de novo review. (>Reddell v. California Coastal Com., supra, 180
Cal.App.4th at pp. 962, 965.) Although
we exercise our independent judgment in reviewing the County's interpretation
of the Coastal Act, we must accord appropriate deference to the agency's
decision given the circumstances of its action.
(Dunn v. County of Santa Barbara
(2006) 135 Cal.App.4th 1281, 1289.)

Scope
of Commission's Review of Proposed LCP Amendment

The Coastal Act requires
each local government to prepare an LCP governing land use for the portion of
the coastal zone within its jurisdiction. (§ 30500, subd. (a).) An LCP consists of land use plans, zoning
ordinances, zoning district maps and other implementing actions. (§ 30108.6.)
The Commission must certify that a proposed LCP conforms with the
Coastal Act before the local government can adopt it. (§§ 30512, 30513.) The Commission certified the City's LCP in
1981. (See Yost v. Thomas (1984) 36 Cal.3d 561, 567 (Yost).)

Development within the
coastal zone generally requires a coastal development permit, in addition to
any other required permits. (§ 30600,
subd. (a).) After the Commission certifies
an LCP, as it did here, the authority to review development within the coastal
zone and to issue a coastal development permit is delegated to the local
government. (§§ 30519, subd. (a), 30600,
subd. (d); City of Half Moon Bay v.
Superior Court (2003) 106 Cal.App.4th 795, 804.) In limited circumstances, the Commission has
authority to hear appeals of a local government's approval of a coastal
development permit, such as when the development is located between the first
public road and the sea or within 100 feet of streams and wetlands.

(§
30603; see Hines v. California Coastal
Com. (2010) 186 Cal.App.4th 830, 848-849.)
In those cases, the Commission hears the permit application de novo and
its decision supersedes the local agency's decision. (§ 30621, subd. (a).)

Here, the City's
approval of the project was not within the Commission's appellate
jurisdiction. POV concedes in its
opening brief that "[t]he coastal development permit itself, however was
not appealable to the . . . Commission."
The only issue before the Commission, therefore, was whether to certify
the proposed LCP amendment to allow for the zoning change.

The Coastal Act provides
that the Commission must certify proposed amendments to local implementation
plans, such as zoning ordinances, when they conform to the local government's
LUP. (§§ 30513, 30514.) Section 30513 states: "The commission may only reject zoning
ordinances, zoning district maps, or other implementing actions on the grounds
that they do not conform with, or are inadequate to carry out, the provisions
of the certified land use plan."
(See Yost, supra, 36 Cal.3d at
p. 572; Cal. Code Regs., tit. 14, § 13542, subd. (c) ["The standard of
review of the implementing actions shall be the land use plan as certified by
the Commission"].) Here, the
Commission determined that its role under section 30513 was to assess whether
the proposed zoning change to the subject parcel conforms with, and carries
out, the City's LUP.

POV contends the
Commission had a broader duty. Relying
on Bozung v. Local Agency Formation Com. (1975)
13 Cal.3d 263 (Bozung), POV asserts
that an agency with an independent responsibility to consider a preliminary
approval, such as a zone or annexation change, must also consider the
environmental impact of the whole project driving the request. Bozung
addressed whether CEQA applies to the approval of annexation proposals by a
Local Agency Formation Commission (LAFCO) where property development is
intended to follow the annexation. (>Id. at p. 268.) Characterizing LAFCO as a "lead
agency" under CEQA, the court concluded it was subject to CEQA rules,
including preparation of an EIR for the proposed development project. (Id.
at pp. 282-287.) The court rejected the
assertion that requiring LAFCO to prepare an EIR would be "premature and
wasteful" because the city will have to prepare its own EIR to rezone the
annexed property. (Ibid.)

POV maintains the
Commission is analogous to LAFCO in that it, too, must conduct its own
environmental analysis of the proposed project.
This analogy fails for two reasons.
First and foremost, Bozung
addressed CEQA requirements, which are inapplicable here. CEQA permits the Secretary of the Natural
Resources Agency (Secretary) to certify that state agencies with regulatory
programs meeting certain environmental standards may follow their own program
rather than CEQA. (§ 21080.5, subd. (a);
Sierra Club v. State Bd. of Forestry
(1994) 7 Cal.4th 1215, 1229-1230.) The
Secretary has certified the Commission's regulatory program regarding the
"preparation, approval, and certification of local coastal programs"
as complying with CEQA. (Cal. Code
Regs., tit. 14, § 15251, subd. (f); San
Mateo County Coastal Landowners' Assn. v. County of San Mateo (1995) 38
Cal.App.4th 523, 552, fn. 18.) Thus, the
Commission was not required to follow CEQA in approving the City's proposed LCP
amendment. (Santa Barbara County Flower & Nursery Growers Assn. v. County of
Santa Barbara (2004) 121 Cal.App.4th 864, 872 ["[A]n EIR is not
required for the approval of an LCP or LCP amendment by the Commission"].)

Second, >Bozung has been superseded by statute on
the very point raised by POV. (>City of Redding v. Shasta County Local
Agency Formation Com. (1989) 209 Cal.App.3d 1169, 1175-1177 (>City of Redding); accord, >Natural Resources Defense Council, Inc. v.
City of Los Angeles (2002) 103 Cal.App.4th 268, 271, fn. 2.) After Bozung,
the Legislature amended CEQA to clarify the roles of lead agencies and
responsible agencies in the CEQA analysis.
(City of Redding, at pp.
1175-1176.) As directed by section
21083, subd. (c), the California Resources Agency adopted California Code of
Regulations, title 14, section 15051 (CEQA Guideline 15051), which designates
the city, not LAFCO, as the lead agency responsible for the EIR.href="#_ftn3" name="_ftnref3" title="">>[3] As noted in City of Redding, CEQA Guideline 15051 solved the "problem the >Bozung court twice grappled with: that requiring a LAFCO to prepare an EIR was
inefficient because two EIR's would be required for the same annexation, one by
a LAFCO and one by a city undertaking zoning of the area sought for
annexation." (City of Redding, at p. 1177.)
In view of these legislative and administrative amendments, >Bozung does not support POV's assertion
that an agency such as LAFCO, with independent authority to consider an
annexation request, must necessarily consider the environmental impact of the
project driving the request. (See >ibid.)


In its reply brief, POV
cites Ross v. California Coastal Com. (2011) 199 Cal.App.4th 900 (>Ross), for the proposition that the
Commission was required to make its own CEQA equivalent environmental review of
the proposed LCP amendment. The scope of
the Commission's review under section 30513 was not at issue in >Ross.
It also is factually distinct because it involved the proposed
development of the only remaining undeveloped beachfront property in
Malibu. The city approved the project
subject to the Commission's certification of an LCP amendment to reduce the
minimum lot width standard from 80 feet to 45 feet for all 733 beachfront parcels in the area. (Id.
at pp. 910-911.) Given the sweeping
nature of the proposed amendment, the Commission necessarily had to consider
the environmental impacts of the zoning change to assess whether it conformed
to the city's LUP with respect to ocean views and environmentally sensitive
habitat areas. (Id. at pp. 926-930.) Those
issues are not present here. The subject
parcel is not on the beach, does not have coastal views and is not in an
environmentally sensitive habitat area.

We conclude the
Commission appropriately limited its review under section 30513 to whether the
rezoning of the subject parcel conforms with, and carries out, the provisions
of the City's LUP. The Commission had no
authority to consider matters outside the scope of the LUP. It was the City's burden to perform the
requisite environmental assessment prior to approving the project. The City satisfied that burden, as we
confirmed in POV I. POV is not entitled to further review of
that decision.

Substantial
Evidence Supports the Commission's Determination that the

Proposed
LCP Amendment Conforms to the City's LUP

The City's certified LUP
designates the subject parcel as "commercial." POV does not dispute the proposed rezone is
consistent with that designation. It
contends the Commission also had to consider the environmental impact of the
project on water supply, views and aesthetics.href="#_ftn4" name="_ftnref4" title="">>[4] As discussed above, the only matter before
the Commission was whether the zoning change conforms to the City's LUP. (§ 30513.)
POV has not identified any provision or policy in the LUP addressing
water supply. Nor has it pointed to any
evidence demonstrating the zoning change, in and of itself, would necessarily
affect the local water agency's ability to supply water to the area.

The City's LUP does
provide for "protection of visual resources." Incorporating section 30251, the LUP requires
that developments be sited and designed to protect public views to and along
the ocean and scenic coastal areas, and be visually compatible with the
character of surrounding areas. The
Commission appropriately conducted a visual impact analysis to assess whether
the proposed zoning change could impact public scenic views, particularly since
it increases the maximum height of any permitted development on the subject
parcel from 30 to 45 feet. (See §
30251.)

The City's land use map
identifies the Coast Village Road area as a commercial district including
service stations, motels, restaurants, financial institutions and general
commercial operations. The Commission's
staff report determined the



proposed
rezone will not adversely impact existing public views or the character of the
surrounding area because: (1) views of
the mountains along Coast Village Road are already significantly impacted by
current development, (2) views from Coast Village Road through the subject site
are already impacted by the existing service station, and (3) the maximum
height under the C-1 zone district is compatible with surrounding commercial
buildings and uses along Coast Village Road.
The report further observed:
"There are no public parks or significant open space areas in the
area. In addition, the project site is
not visible from the coastal bluff or beach.
Neither Coast Village Road nor Olive Mill Road [is] designated [a]
scenic highway[] and the immediate areas are also not designated visual
resources in the City's LCP."

POV asserts the
Commission was confused as to the location of the subject parcel, referencing
the portion of the Commission's staff report stating the parcel is on the
corner of Coast Village Road and Olive Mill Road, instead of entirely on Olive
Mill Road. The record as a whole reveals
no such confusion. The staff report also
states: "The proposed development
site (comprised of the subject parcel and the adjacent parcel to the south) is
located at the east end of the City of Santa Barbara on the east side of Coast
Village Road at Olive Mill Road . . . .
The northern lot along Olive Mill Road is the subject of this LCP
Amendment." In addition, the report
contains multiple maps depicting the location of the subject parcel in relation
to Coast Village Road and Olive Mill Road.
Although POV disputes the Commission's findings relating to visual
impact, they are supported by substantial evidence in the administrative
record.

The
Coastal Act sets minimum standards and policies local governments must follow
in coastal zones, but it "does not mandate the action to be taken by a
local government in implementing local land use controls." (Yost,
supra, 36 Cal.3d at p. 572.) As long
as the local government satisfies these minimum standards and policies,
"the decision of whether to build a hotel or whether to designate an area
for a park remains with the local government." (Id.
at p. 573.) Having determined the
proposed rezone meets these standards and policies, the Commission
appropriately deferred to the City's decision to approve the project.

DISPOSITION

The
judgment is affirmed. Respondents shall
recover their costs on appeal.

NOT
TO BE PUBLISHED.





PERREN,
J.





We
concur:





GILBERT, P. J.





YEGAN, J.
>


James
W. Brown, Judge



Superior
Court County of Santa Barbara



______________________________



Law Offices of Babak
Naficy, Babak Naficy for Plaintiff and Appellant.

Kamala D. Harris,
Attorney General, John A. Saurenman, Senior Assistant Attorney General,
Christina Bull Arndt, Supervising Deputy Attorney General, Wyatt E.
Sloan-Tribe, Deputy Attorney General, for Defendant and Respondent California
Coastal Commission.

Fell, Marking, Abkin,
Montgomery, Granet & Raney, Craig S. Granet for Real Parties in Interest
and Respondents Olive Oil & Gas, LP, and John Price.