Venturans for Responsible Growth v. City of >San
Buenaventura

 

 

 

 

 

 

 

 

 

 

Filed 6/20/13  Venturans for Responsible Growth v. City of San Buenaventura 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

 
>

VENTURANS FOR RESPONSIBLE GROWTH,       Plaintiff and Appellant,   v.   CITY OF SAN BUENAVENTURA,       Defendant and Respondent;   WINCO FOODS, LLC,       Real Party in Interest.

2d Civil No. B242008 (Super. Ct. No. 56-2011- 00402390-CU-WM-OXN) (Ventura County)

 

                        Venturans for
Responsible Growth, an unincorporated Association (Venturans) appeal a judgment
denying its petition for peremptory and administrative writ of mandate.  (Code Civ. Proc., §§ 1085, 1094.5.)  Venturans contend that the City of San
Buenaventura's (City) design approval for exterior
modifications to an existing building and grant of a sign variance violated the
California Environmental Quality Act
(CEQA; Pub. Resources Code § 21000 et seq.), and county and city
codes.  We affirm.

FACTS

                        WINCO
Foods, LLC (WINCO) intends to operate a 24-hour grocery store at the Riviera
Shopping Center on Telephone
Road in the City of Ventura
(City).  The space in which WINCO intends
to operate was occupied by Mervyn's Department Store from 1992 to 2008.

                        The
Riviera Shopping
Center was constructed in the early 1980s.  An environmental impact report (EIR) for the
shopping center project was certified in 1977.

                        The
WINCO property is in the City's commercial planned development (CPD) zone.  Grocery stores are a permitted use in the
zone.  The City's zoning ordinance does
not limit operating hours.  The only
discretionary approvals WINCO needs from the City are for cosmetic improvements
to the exterior and a sign variance.

                        The
cosmetic improvements are modifications to the exterior of the existing
structure, restriping the parking lot, and removal and replacement of the
landscaping.  Modifications to the
exterior include a tower element at the front of the building.  The tower element will increase the height of
the building by 22 feet.

                        The
City's current sign ordinance allows signs of 100 square feet.  WINCO sought a variance to allow two signs
totaling 360.25 square feet.

                        WINCO
applied to the City's design review committee (DRC) for design approval and a
sign variance.

                        Venturans
demanded that the City prepare an EIR to study the impacts of the proposed
24-hour grocery store on air quality and traffic.  The City conducted an initial study for the
project and gave notice that a negative declaration would be prepared.  But the City later rescinded the initial
study.  Instead, the City determined that
the project is categorically exempt from CEQA pursuant to Guidelines sections
15301 and 15303.href="#_ftn1" name="_ftnref1"
title="">[1]

DISCUSSION

I

                        Venturans
contend CEQA requires a comprehensive review of all environmental impacts.

                        Unless
exempt, all "discretionary projects" proposed to be carried out or
approved by a city require environmental review.  (Pub. Resources Code, § 21080, subd.
(a).)  A discretionary project is a
project that requires the exercise of judgment or deliberation when a public
agency decides to approve or disapprove a particular activity.  (Guidelines, § 15357.)

                        CEQA
does not apply to "[m]inisterial projects."  (Pub. Resources Code, § 21080, subd.
(b)(1).)  A ministerial project is a
project involving little or no personal judgment by a public official.  (Guidelines, § 15369.)

                        CEQA
may require an EIR where the City's approval or denial of a project is a matter
of the exercise of its discretion.  But
even if a project will have significant negative environmental consequences, no
EIR is required if the City has no discretion to deny or modify the project.  As the court in Friends of Westwood, Inc. v. City of Los Angeles (1987) 191
Cal.App.3d 259, 272, explained:  "[F]or truly ministerial
permits an EIR is irrelevant.  No matter
what the EIR might reveal about the terrible environmental consequences of
going ahead with a given project the government agency would lack the power
(that is, the discretion) to stop or modify it in any relevant way.  The agency could not lawfully deny the permit
nor condition it in any way which would mitigate the environmental damage
in any significant way.  The applicant
would be able to legally compel issuance of the permit without
change.  Thus, to require the preparation
of an EIR would constitute a useless - and indeed wasteful - gesture."

                        Venturans
claim the project is discretionary.  It
is only discretionary with regard to the exterior design and signs.  But Venturans are complaining about lack of
environmental review for impacts on air quality and traffic.  Those impacts are not related to exterior
design and signs.  Those impacts are
related to the use of the premises as a 24-hour grocery store.  The City has no discretion with regard to
WINCO's use of the premises as a 24-hour grocery store.  Thus, CEQA does not require and EIR to assess
impacts related to such use.

                        Venturans
argue that the City's Municipal Code (SBMC) gives the DRC authority to respond
to concerns beyond aesthetics or design. 
Venturans cite SBMC section 24.545.110. 
"The decision-making authority, in approving an application for
design review, may impose such conditions that it deems necessary or desirable
to insure that the project authorized by such design review will be
established, operated, and maintained in accordance with the findings required
by Section 24.545.100 and all other requirements of this zoning ordinance, this
Code, and other provisions of law.  The
decision-making authority may further require reasonable guarantees and
evidence that such conditions are being, or will be, complied with.  Such conditions imposed by the
decision-making authority may involve any factors affecting the colors,
materials, design, landscaping, signs, or other architectural features of a
project."

                        Venturans
emphasize "all
other requirements of this zoning ordinance, this Code, and other provisions of
law."  (SBMC,
§ 24.545.110)  Venturans fail to
include the final sentence, "Such conditions imposed by the
decision-making authority may involve any factors affecting the colors,
materials, design, landscaping, signs, or other architectural features of a
project."  (Ibid.)

                        It
would be unreasonable to interpret SBMC section 24.545.110 as giving a design
review committee authority to impose conditions involving any and all
provisions of the law.  Instead, the
reasonable interpretation of the section is that the authority to impose
conditions is limited to "factors affecting colors, materials, design,
landscaping, signs or other architectural features of the project."  (Ibid.)

                        If
there is any doubt about the DRC's authority over WINCO's use of the premises
as a 24-hour grocery store, it is resolved by SBMC section 24.545.040,
subdivision A.  That subdivision
provides:  "Neither the design
review committee, the historic preservation committee, nor the director shall
in the course of the design review process for projects or uses requiring no
other discretionary permits or approvals, determine the operation or
appropriateness of land uses if such uses of land comply with applicable zoning
district regulations."

                        Because
the use of the premises as a 24-hour grocery store complies with applicable
zoning district regulations, the DRC has no authority whatsoever over WINCO's
use of the premises, Venturans' concerns over air quality and traffic arises
from the use of the premises, not its exterior design.

                        Venturans
argue that CEQA does not allow partial environmental review.  But nothing in CEQA requires the City to do a
useless act.  That is why Public
Resources Code section 21080, subdivision (b)(1) provides that CEQA does not
apply to ministerial projects.  Because
the City has no authority to prevent or modify WINCO's use of the premises as a
24-hour grocery store, environmental review of the impacts of that use would be
worthless.  A statute should be
interpreted to avoid an absurd result.  (>Cummings v. Stanley (2009) 177 Cal.App.4th
493, 507-508.)

                        Venturans'
argument was rejected in San Diego Navy
Broadway Complex Coalition v. City of san Diego (2010) 185 Cal.App.4th
924.  There, the city's discretion in
approving the project was limited to design review.  Opponents of the project argued the EIR
should include a study of the project's impacts on global warming.  In rejecting the argument, the court noted
that the City has no discretion to modify or deny the project based on global
warming.  The court stated, "[T]here
is no basis for requiring the City to conduct an environmental review of an
issue as to which it would have no ability to respond."  (Id.
at p. 940.)

II.

                        Venturans
contend the categorical exemption contained in Guidelines section 15301 does
not apply.

                        Guidelines
section 15301 provides a categorical exemption from CEQA for projects
consisting of "minor alteration of existing . . . private structures . . .
involving negligible or no expansion of use beyond that existing at the time of
the lead agency's determination."

                        It
was not necessary for the City to rely on Guidelines section 15301 to exempt
the use of the premises as a 24-hour grocery store from CEQA review.  Public Resources Code section 21080,
subdivision (b)(1) contains its own categorical exemption for "ministerial
projects."  Because any permit WINCO
might need to operate a 24-hour grocery store would be ministerial, CEQA simply
does not apply to the use of the premises for that purpose.  (See San
Diego Navy Broadway Complex Coalition v. City of San Diego, >supra, 185 Cal.App.4th at p. 940.)

                        In
any event, the City's reliance on Guidelines section 15301 is supported by the
evidence.  The City bears the burden of
demonstrating, based on substantial evidence, that the project falls within the
categorical exemption.  (>California Unions for Reliable Energy v.
Mojave Desert Air Quality Management Dist. (2009) 178 Cal.App.4th 1225,
1239.)  We must determine the scope of
the exemption as a matter of law, and then determine whether substantial
evidence supports the City's finding that the project falls within the
exemption's scope.  (Ibid.)

                        Venturans
argue adding a tower that increases the building height by 22 feet and a
variance allowing 360.25 square feet of signs does not qualify as a "minor
alteration."  But Guidelines section
15301 gives examples of qualifying projects. 
One example allows additions to existing structures of up to 10,000
square feet.  (Guidelines, § 15301,
subd. (e)(2).)  If additions of up to
10,000 square feet qualify for the exemption as a "minor alteration,"
certainly WINCO's cosmetic alterations to the exterior qualify.

                        Venturans
point out the exemption requires a finding that the project involves
"negligible or no expansion of use beyond that existing at the time of the
lead agency's determination." 
(Guidelines, § 15301.) 
Venturans argue that at the time of the lead agency's determination the
building had been vacant for three years. 
Venturans claim that the traffic generated by WINCO's project will
exceed even the traffic generated by the building's previous use as a Mervyn's
Department Store.

                        But
the only project before the City was WINCO's application to change the
building's façade and for a sign variance. 
The City's approval of the design for the building façade and signs does
not involve an expansion of the building's use.

                        The
project is categorically exempt from CEQA review under Guidelines section
15301.  We need not determine whether the
project is also exempt under Public Resources Code section 21166 or Guidelines
section 15303.

                        Venturans
argue that an exception to the categorical exemption applies.  Guidelines section 15300.2, subdivision (c)
provides:  "A categorical exemption
shall not be used for an activity where there is a reasonable possibility that
the activity will have a significant effect on the environment due to unusual
circumstances."

                        But
the only "activity" before the City is the modification of the
building's façade.  There is no fair
argument that such an activity will have a significant effect on the environment
or that modification of the building's exterior constitutes any unusual
circumstances.

III.

                        Venturans
contend the City violated city and county requirements.

(a)

                        Venturans
argue the project is inconsistent with the general plan.  The City found the project is consistent.

                        Venturans
cite Action 7.21 of the Ventura General Plan, Policy 7D.  Action 7.21 provides:  "Require analysis of individual
development projects in accordance with the most current version of the Ventura
County Air Pollution Control District Air Quality Assessment Guidelines and,
when significant impacts are identified, require implementation of air
pollutant mitigation measures determined to be feasible at the time of project
approval."  But the only
"development project[]" before the City is WINCO's application to
alter the exterior of the building and a sign variance.  The City's conclusion that alterations to the
exterior of the building and a sign variance complies with the air quality provisions
of the general plan is supported by the record. 
There simply will be no "significant impact[]."  (Ibid.)

(b)

                        Venturans
contend the project conflicts with the county's air quality guidelines and the
City's air quality ordinance.

                        Venturans'
contention, like most of its other contentions, is based on the theory that the
project includes use of the premises as a grocery store.  It does not. 
The only project before the City is limited to alterations to the building's
exterior.

(c)

                        Venturans
contend the project violates conditions of approval.

                        The
conditions of approval for Mervyn's Department Store allowed a maximum of 100
square feet of sign area.  WINCO,
however, has obtained a variance for 360 square feet of sign.  Venturans argue that while a variance may
allow a deviation from the municipal code, it does not change the conditions of
approval.  Venturans cite no authority
for the proposition that a variance does not affect the conditions of
approval.  There appears no valid reason
why it does not.

(d)

                        Venturans
contend the grant of the sign variance is not supported by substantial
evidence.

                        SBMC
section 24.535.140 provides:

                        "In
order for the design review committee to approve a sign variance, it must make
all of the following findings:

                        "1.  The
proposed sign is in conformance with the purposes of chapter 24.420;^{[href="#_ftn2" name="_ftnref2" title="">[2]]}

                        "2.  The
proposed sign will enhance the unique character and visual appearance of the
city;

                        "3.  The proposed sign is an integral and
well-designed portion of the overall building or site;

                        "4.  Strict compliance with the provisions of
chapter 24.420 would be detrimental to the design of the sign, architectural
characteristics of the building, or design of the site; and

                        "5.  The granting of a sign variance would not
constitute the granting of a special privilege to the applicant, nor would it
grant an undue advantage to the applicant."

                        Venturans
argue the finding that granting of the sign variance would not constitute the
granting of a special privilege or undue advantage to the applicant is not
supported by substantial evidence.

                        But
the opinions of planning staff constitute substantial evidence upon which the
City may rely to support its findings. 
(See City of San Diego v.
California Coastal Commission (1981) 119 Cal.App.3d 228, 232.)  Here the DRC staff reported:  "In staff's analysis, the proposed sign
is significantly larger than allowed by the Zoning Regulations and the existing
Mervyns sign (44 sq. ft.).  However, as
the sign letter heights are consistent with other stores in other shopping
centers in the vicinity and reflects Winco's standard corporate sign format,
staff determined the sign is consistent in scale with the proposed changes to
the façade and recommends the DRC approve the Sign Variance as
submitted."  That is sufficient to
support the DRC's finding.

                        Venturans
cite Orinda Association v. Board of
Supervisors (1986) 182 Cal.App.3d 1145, 1166, for the proposition that the
DRC's finding of consistency with recently approved signs in the area must be
supported by "'comparative data.'" 
Venturans' reliance on Orinda is
misplaced.

                        >Orinda concerns a variance from a
general zoning ordinance, not a sign variance. 
In granting the variance, the county found that similar variances have
been granted on several occasions.  In
discussing the lack of evidence to support such a finding the court noted that
no specific examples are provided, and, in fact, the record indicates that
every previous request for a variance had been denied.  (Orinda
Assn. v. Bd. of Supervisors, supra,
182 Cal.App.3d at p. 1166, fn. 11.)  The court
did not hold that such a finding must be supported by comparative data.

                        The judgment is affirmed.  Costs are awarded to respondents.

                        NOT
TO BE PUBLISHED.

 

 

 

 

                                                                        GILBERT,
P.J.

 

 

We concur:

 

 

 

                        YEGAN,
J.

 

 

 

                        PERREN,
J.

 

 

Glen M. Reiser, Judge

 

Superior Court County of Ventura

______________________________

 

 

                        Johnson
& Sedlack, Raymond W. Johnson, Abigail A. Broedling, Kimberly A. Foy for
Plaintiff and Appellant.

                        Ariel
Pierre Calonne, City Attorney; Jenkins & Hogin, Christi Hogin, Gregg
Kovacevich for Defendant and Respondent.

                        Best
Best & Krieger, Sarah E. Owsowitz, Stephanie R. Straka for Real Party in
Interest.