Speculation Concerning Potential Impacts Insufficient To Defeat Use Of A Categorical Exemption

Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809.

By Brian Russell

Auto-Spa applied for a conditional use permit to build a car wash and coffee shop in Redondo Beach, California. The property is zoned commercial. The project consisted of a 90-foot car wash tunnel and an attached coffee shop totaling 4,080 square feet. The rest of the property would be used for drying and parking cars. Entry to the car wash was from a residential street, just off of a major street. From 1965 to 2001, there was a car wash on the property.

The Planning Commission approved the project under a categorical exemption in CEQA Guidelines section 15303(c).  That provided an exemption from CEQA review for commercial buildings not exceeding 10,000 square feet in floor area on sites zoned for such use if not involving the use of significant amounts of hazardous substances, where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive.

After an appeal and approval by city council, Appellants filed a petition challenging the CEQA exemption. The trial court ruled in favor of the city.

On appeal, the initial issue was whether the project qualified as a commercial structure and met the square footage limitations of the CEQA exemption. In reviewing the determination of whether a project fits within an exemption, the court applied the substantial evidence test and agreed with the city that the exemption embraced a broad range of commercial projects. The appellant also urged that the use of hazardous materials was not allowed in conjunction with the exemption. However, the evidence did not support this argument, and that the argument was based upon speculation.

Appellants then argued that even if the exemption applies, it should not apply for this project because “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Under the Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (“Berkeley Hillside”), a challenger must prove both the unusual circumstances and a significant environmental effect that is due to those circumstances. If unusual circumstances are found, agencies apply the fair argument standard in determining whether there is a reasonable possibility of a significant effect on the environment due to unusual circumstances. Alternatively, under Berkeley Hillside, a challenger may establish an unusual circumstance with evidence that the project will have a significant environmental effect, applying the traditional substantial evidence test. Here, the court explained that a party can show an unusual circumstance by demonstrating that the project has some characteristic or feature that distinguishes it from others in the exempt class, such as its size or location. But the court concluded that there is nothing particularly unusual about the proposed car wash and coffee shop. The evidence establishes that there are many other car washes in the surrounding area, plus the site itself was a car wash and snack bar for nearly 40 years, which suggests that this project is not an unusual circumstance.

The court further analyzed whether the plaintiffs had established that the unusual circumstances will have a significant environmental effect. The plaintiffs argued that the operation of the car wash would violate the city’s interior and exterior noise limits at the abutting property line. However, the court rejected that argument, and found that the exceedance will not occur, because the project was conditioned upon the car wash’s adherence to the city’s noise standards. Furthermore there was an additional condition that provides that compliance with the noise requirements “shall be tested and documented prior to the final inspection and opening of the car wash operation.” Given those conditions and assurances, plaintiffs failed to meet their burden of showing that the project will actually have a significant environmental effect.

Plaintiffs then argue that the project will have a significant impact on traffic. They argued that the design of the car wash is inefficient and will cause back ups within the project property. However, the court held that plaintiffs’ argument was speculative and was contradicted by both the plaintiffs’ expert and the city’s findings that any such backup could be avoided by managing the flow of cars through the car wash. The court found that, at best, plaintiffs provided evidence that suggests that the project possibly could have a periodic impact on traffic. That was insufficient. The court held that plaintiffs failed to provide evidence that the project will actually have a significant impact on the environment by causing a substantial adverse change in the physical conditions that exist in the area.

With that holding, the court concluded that plaintiffs failed to establish the unusual circumstances exception under the Berkeley Hillside alternative analysis. Therefore, the city properly determined that the car wash project is categorically exempt under the CEQA Guidelines.

Brian Russell is an attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

It's All About That Baseline: Factors to Consider When Establishing a CEQA Baseline

By Brian Russell 

North County Advocates v.City of Carlsbad (2015) 241 Cal.App.4th 94.

Westfield, the landowner and developer, (“Westfield”) proposed to renovate a 40‑year‑old shopping center located in the City of Carlsbad, California (“City”). In July 2013, the City approved Westfield’s request to renovate the former Robinsons-May store and other small portions of the shopping center (“Project”). North County Advocates (“Advocates”) challenged the City’s approval under the California Environmental Quality Act (“CEQA”), arguing that the Project’s environmental impact report (“EIR”) used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it was vacated in 2006 and had been only periodically occupied since.

Advocates filed a petition for writ of mandate challenging the City’s approval of the project, and the trial court denied Advocates’ petition. Advocates appealed the trial court’s judgment to the Fourth District Court of Appeal.

Advocates contended that the EIR’s traffic baseline is “incorrect and misleading” because it did not follow the “‘normally’” applicable rule of measuring conditions as they actually existed when environmental review began. Advocates argued that the City instead “falsely inflated the existing traffic conditions” by “imputing over 5,000 daily trips” to the baseline premised on a fully occupied Robinsons-May building when, in fact, Robinsons-May vacated the space in 2006. By falsely inflating the existing traffic conditions, the baseline understates the Project’s true impact on the environment.

The EIR’s Transportation Study elaborated on the City’s determination of the traffic baseline:

“Westfield Plaza Camino Real is an existing super regional shopping center which is entitled for 1,151,092 square feet of retail commercial space. All of the currently entitled square footage is completely constructed. However, the nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates. Plaza Camino Real currently has unoccupied leasable space beyond the normal amount, mainly the 148,159 square foot Robinsons-May building. Since this space is currently vacant, traffic from this space is not included in the actual traffic counts conducted at the analyzed intersections and street segments. However, for the purposes of determining the Existing Baseline Conditions pursuant to CEQA Guidelines Section 15125, trips attributable to that currently unoccupied space are imputed. A full occupancy assumption is consistent with San Diego Association of Government’s regional traffic modeling methodology which assumes full occupancy of all entitled square footage. It is also consistent with the City of Carlsbad and City of Oceanside’s determination of existing baseline because the currently vacant space could be occupied at anytime without discretionary action. In fact, portions of that space are periodically occupied with temporary uses such as a Halloween store which leases the space in the month of October. For these reasons, full occupancy of all entitled square footage is assumed in determining the Existing Baseline Conditions.”

Using the baseline with the imputed Robinsons-May traffic, the Transportation Study concluded the “Project will not result in a significant impact at any of the analyzed intersections during either peak hour, or any of the analyzed street segments during either peak hour or daily conditions.”

The appellate court concluded that the City’s selection of a traffic baseline that assumed full occupancy of the Robinsons-May space was not merely hypothetical because it was not based solely on Westfield’s entitlement to reoccupy the Robinsons-May building “at anytime with discretionary action” but was also based on the actual historical operation of the space at full occupancy for more than 30 years up until 2006. Then, from 2007 to 2009, the Robinson-May space had a reduction in occupied square footage. The court viewed this fluctuating occupancy, “which is the nature of a shopping center,” to allow the agency to have the discretion to consider conditions over a range of time periods to account for a temporary lull or spike in operations. Further, the City’s decision to base the traffic baseline on historical occupancy rates is further supported by substantial evidence consisting of San Diego Association of Government data on such use levels. These factors together were substantial evidence which supported the City’s exercise of discretion in selecting a traffic baseline that assumed a fully occupied Robinsons‑May building.

Brian Russell is an associate attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

The Prevailing Winds of Prevailing Wage

By William W. Abbott

The dividing line separating which privately undertaken improvements are subject to prevailing wage requirements from those which do not, has become less clear over time. The result is that some contractors, after bidding a project as a purely private undertaking, learn that they incorrectly bid their labor costs. It is common practice in construction agreements that this financial risk is borne by the contractor. Earlier this year, this blog reported the Azusa Land Partners decision. The most recent chapter in the story of prevailing wage comes from a challenged ground lease between the San Diego Unified Port District and a hotel developer.

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Bad Deeds Make Bad Law

By Cori Badgley and Emilio Camacho

In Monterey/Santa Cruz County Bldg. & Constr. Trades Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500, the California Court of Appeal, Sixth District, held that deeds acquiring property from a redevelopment agency required the purchaser/developer to pay prevailing wages to the construction workers. In addition, the appellate court also held that plaintiffs were entitled to $73,167.50 in attorney’s fees pursuant to Code of Civil Procedure section 1021.5.

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REMINDER! Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Arbitration Clause in Condominium Project CC&Rs Unenforceable in Construction Defects Action by Homeowners' Association against Developer

By Glen Hansen

In Pinnacle Museum TowerAssn. v. Pinnacle Market Development (UC), LLC (D055422, July 30, 2010), 2010 Cal.App. LEXIS 1261, the California Court of Appeal for the Fourth Appellate District held that an arbitration provision in a declaration of covenants, conditions and restrictions (CC&R's) recorded by a condominium project developer did not constitute an “agreement” sufficient to waive the constitutional right to jury trial for construction defect claims brought by the homeowners association against the developer.

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Article XXXIV Voter Requirements Inapplicable to Senior Housing Project Owned by a City Formed Non-Profit Public Benefit Corporation

By William W. Abbott

As a black-mark on the history of progressive thought in California, the voters, in 1950, enacted Article XXXIV as part of the California Constitution. It had the effect of requiring voter approval of low rent housing projects. Over time, the legislature had codified various interpretations, excluding from the voter approval process, certain types of affordable projects. On a parallel path, the legislature has modified the redevelopment law to ensure that there are minimum expenditures for affordable housing. After all, how many automalls, big box retailers and movie theaters does California really need to fund through the redevelopment process?

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Too Late! Challenge at the Time of Project Implementation is not Timely

By Katherine J. Hart

A state appellate court has upheld the adoption of design guidelines that are intended to implement a City of Los Angeles redevelopment plan.

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