BANKER'S HILL v. CITY OF SAN DIEGO

Filed 5/8/06; reposted 5/9/06 to provide correct version

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Ronald S. Prager, Judge. Affirmed.

Johnson & Hanson, Kevin K. Johnson and Jared Phil Hanson for Plaintiff and Appellant.

Michael J. Aguirre, City Attorney, and Joe B. Cordileone, Deputy City Attorney, for Defendant and Respondent City of San Diego.

Seltzer Caplan McMahon Vitek, Monty A. McIntyre and G. Scott Williams for Real Parties in Interest and Respondents Mi Arbolito, LLC, Martinez + Cutri Corporation and 1700 Investors, LLC.

Continued from Part II …………

However, as the Preservation Group points out, the urban in‑fill exemption contains one unique element that arguably complicates the application of the standard of review. The urban in‑fill exemption states that it applies only if "[a]pproval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality." (Guidelines, § 15332(d), italics added.) Because this provision requires the City's finding as to significant effects, it is in some respects similar to the Guidelines section 15300.2(c), discussed above, which requires a determination that there is no "reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." The Preservation Group advocates that we approach the "significant effect" aspect of the urban in‑fill exemption in the same way that we approach the exception set forth in Guidelines section 15300.2(c), namely, by asking if the record shows substantial evidence of a fair argument that there could be a significant effect on the environment. As we explain, because of the differences between Guidelines section 15300.2(c) and the significant effect element of the urban in‑fill exemption, we reject the Preservation Group's argument that the same standard of review should apply to both.

Although there are several important differences between the language of Guidelines section 15300.2(c) and the significant effect element of the urban in‑fill exemption,^[1] the dispositive difference for the purpose of our analysis is that the urban in‑fill exemption does not refer to a reasonable possibility of a significant effect. Instead, the urban in‑fill exemption requires the agency to determine that "[a]pproval of the project would not result" in a significant effect to traffic, noise, air quality, or water quality.^[2] (Guidelines, § 15332(d), italics added.) Thus, the urban in‑fill exemption calls for the agency to make a definitive finding, at the preliminary review stage, as to whether or not there will be a significant environmental effect. We note that the Secretary could have elected to use the term "may" or "reasonable possibility" in the significant effect element of the urban in‑fill exemption, thus invoking the fair argument standard, but did not. Instead, the urban in‑fill exemption simply directs the agency to determine if a project "would not" have a significant effect. (Guidelines, § 15332(d), italics added.) The use of this language leads us to conclude that the fair argument standard does not apply.

Consistent with this analysis, a leading commentator has suggested that the fair argument standard does not apply to the significant effect element of the urban in‑fill exemption because the urban in‑fill exemption does not depend on whether a project may have a significant effect, but instead depends on if it will have a significant effect. "Had the Resources Agency intended that a reviewing court use the more stringent 'fair argument' standard of review, then it would have instead used terms echoing that standard as it appears in other contexts (e.g., 'there is no substantial evidence that approval of the project may have significant effects relating to traffic, noise, air quality, or water quality'). This view is consistent with the general rule that the courts, in reviewing an agency's decision to rely on a categorical exemption, employ the 'substantial evidence' standard of review." (Remy et al., Guide to the Cal. Environmental Quality Act (10th ed. 1999) p. 117.) We agree with this reasoning.

Having concluded that the fair argument standard does not apply to the City's finding regarding the significant effect element of the urban in‑fill exemption, we apply the traditional substantial evidence standard of review. We inquire whether the record contains substantial evidence to support the City's finding that the Project will not have a significant effect. If we locate substantial evidence in the record to support that conclusion, we will uphold the City's determination, even if other evidence arguably supports a different conclusion.^[3]

D

Substantial Evidence Supports the City's Determination That the Urban In‑fill

Exemption Applied According to Its Terms

We now turn to an analysis of the City's determination that the urban in‑fill exemption applies by its own terms.

In concluding that the elements of the urban in‑fill exemption were present in this case, the City made a number of subsidiary findings. At issue here are three of those findings: (a) the Project is substantially surrounded by urban uses, (b) the Project is consistent with the applicable general plan, and (c) the Project would not result in any significant effects relating to traffic. We examine each of these findings in turn.

1. Substantially Surrounded by Urban Uses

The first finding that the Preservation Group challenges is that the Project will be developed on a site "substantially surrounded by urban uses." (Guidelines, § 15332(b), italics added.) The Preservation Group points out that although the Project will be surrounded by urban buildings to the east, north and west, the corner of Balboa Park will be directly to the south of the Project, across Upas Street. The Preservation Group argues that Balboa Park is not an "urban use," and thus the Project will not be "substantially surrounded by urban uses."

We have not located or been directed by the parties to any authority interpreting the phrase "substantially surrounded by urban uses" as it appears in the urban in‑fill exemption.^[4] Thus, to inform our analysis we turn to case law that has defined the term "urban uses" in the Community Redevelopment Law (Health & Saf. Code, § 33000 et seq.).^[5] According to case law there defining the term "urban uses," "[t]he term 'urban' is 'not fixed, objective, or easily ascertainable,' " but it has been " 'defined as "of, relating to, characteristic of, or taking place in a city . . . constituting or including and centered on a city . . . of, relating to, or concerned with an urban and [specifically] a densely populated area . . . belonging or having relation to buildings that are characteristic of cities . . . ." ' " (Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511, 541, 544 (Friends of Mammoth) [as part of a CEQA analysis, determining whether a series of proposed projects related to "urban uses" under the Community Redevelopment Law].) Accordingly, "[t]he term 'urban' . . . refers more to the location and 'varying characteristics' of a use than to the type of use. [Citation.] For example, a residential dwelling can exist either in an urban area or in a rural area. . . . [¶] So it is with golf courses." (Id. at p. 545, italics added.) The Friends of Mammoth court, for instance, analyzed whether the golf course at issue was an urban use or a rural use by analyzing its specific characteristics and location. Because it contained "significant amounts of natural and preserved forest lands" and was "surrounded by undeveloped forest land," the court determined that it was not "related to or characteristic of a city or a densely populated area," and thus not an urban use. (Ibid.)

We apply the Friends of Mammoth approach to determine whether Balboa Park should be considered an urban use. Doing so, we focus on the fact that Balboa Park is a quintessential urban park, heavily landscaped, surrounded by a densely populated area, and containing urban amenities such as museums, theaters and restaurants. Accordingly, it is "characteristic of a city or a densely populated area," and we conclude that it constitutes an urban use. Having determined that Balboa Park is an urban use, we reject the Preservation Group's argument that, due to its frontage on Balboa Park, the Project is not "substantially surrounded by urban uses."^[6]

2. Consistency with the General Plan

We next examine whether substantial evidence supports the City's finding that the Project "is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations." (Guidelines, § 15332(a).) The Preservation Group does not challenge the Project's compliance with zoning requirements, but argues that the Project does not comply with the Uptown Community Plan adopted by the City Council in 1988 and amended in 1989 (the Plan).

The Preservation Group makes two arguments centering on the setback of the building and its effect on views of Balboa Park. It first points to a statement in the Plan dealing with general urban design guidelines, which states that "[d]evelopments on corner lots of existing streets which serve as public view corridors for vistas and open space need special design considerations such as being required to setback from the corner or terrace away from the street." Based on this language, the Preservation Group argues that the Project is inconsistent with the Plan because "it has been unnecessarily crammed into the southern end of the lot with a minimized setback from the corner and the park." Similarly, the Preservation Group points to the Plan's stated objective in the Park West area of San Diego (in which the Project is located) to "[m]aintain and enhance pedestrian and auto views of Balboa Park." The Preservation Group argues that the Project is inconsistent with this objective because it is insufficiently set back to maintain views of Balboa Park from southbound Sixth Avenue. As we will explain, we reject these arguments and determine that substantial evidence supports the City's finding that the Project is consistent with the applicable planning documents, which, as quoted above, express a general policy in favor of using setbacks to maintain view corridors.

Our conclusion is based in large part on the fact that the record contains evidence that the Project's setbacks more than comply with the specific applicable setback zoning provisions. Specifically relevant to the views of Balboa Park from Sixth Avenue, the Project provides a 12.5‑foot setback from the property line along Upas Street where only a five‑foot setback is required. Further, there will be a 20‑foot setback from the face of the easterly curb on Sixth Avenue. A diagram in the record shows that because of these setbacks, drivers proceeding south on Sixth Avenue will have a view across Upas Street and to the east toward Balboa Park from at least 68 feet from the intersection with Upas Street. The use of setbacks that exceed the applicable requirements, along with evidence in the record showing that there will be sight lines of Balboa Park for southbound drivers, lead us to conclude that substantial evidence supports the City's conclusion that the Project is consistent with the Plan's policy in favor of using setbacks to maintain view corridors.

The Preservation Group also contends that the Project is inconsistent with the Plan's statement that "development adjacent to the north side of Balboa Park should be low density, residential uses." However, the record shows that this policy does not apply to the northeast corner of Upas Street and Sixth Avenue, where the Project is located. A map in the Plan shows that the low density area is located adjacent to the north end of Balboa Park east of Seventh Avenue and on the other side of the highway that cuts through Balboa Park. Further, other maps in the Plan show that the corner of Upas Street and Sixth Avenue is contained in a "very high density" area.^[7] We accordingly conclude that the Plan does not place the Project in a low density area, and the Project is thus not inconsistent with the Plan due to its density.

3. No Significant Effects on Traffic

Turning to the next element of the urban in‑fill exemption, we analyze whether substantial evidence supports the City's finding that "[a]pproval of the project would not result in any significant effects relating to traffic . . . ." (Guidelines, § 15332(d).) As we have discussed above, in reviewing the City's finding we apply a traditional substantial evidence standard of review rather than the fair argument standard. (See part II.C.2, ante.) Thus, we will affirm the City's findings if the record contains substantial evidence that the Project will cause no significant effect relating to traffic, even if other evidence arguably supports a different conclusion.

The Preservation Group presents several arguments concerning the Project's impact on traffic -- all of which we reject based on the following analysis.

a. The Offset Intersection

First, the Preservation Group argues that the Project would have a significant effect on traffic because it will be located at a dangerous intersection. Specifically, the Preservation Group argues that the intersection of Sixth Avenue and Upas Street is an "offset" intersection: (1) Sixth Avenue does not line up to the north and south of Upas Street, with Sixth Avenue jogging to the west as it continues in front of the Project; and (2) Upas Street does not line up on either side of Sixth Avenue, with a third street -- Balboa Drive, being directly across Sixth Avenue from the western portion of Upas Street. The Preservation Group also cites testimony from several residents attesting to the dangerous nature this offset intersection. For example, residents explained that drivers use excessive speeds, that the signage is confusing and that accidents occur at the intersection when traffic northbound on Sixth Avenue fails to veer west at the offset intersection and runs into the lot on which the Project will be located. In contrast, police department accident records show only two reported accidents near the intersection in a one-year period, and only two accidents in the previous five years. None of the reported accidents involved drivers running into the lot where the Project will be located.

The observation of local residents that accidents (even if unreported) have occurred at the intersection may be properly considered here. " 'In the context of an administrative hearing, "relevant personal observations are evidence. For example, an adjacent property owner may testify to traffic conditions based upon personal knowledge." ' " (Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1351-1352; see also Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928 ["Relevant personal observations of area residents on nontechnical subjects may qualify as substantial evidence," italics added].) However, although local residents may testify to their observations regarding existing traffic conditions, "in the absence of specific factual foundation in the record, dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence." (Gentry, supra, 36 Cal.App.4th at p. 1417, italics added.) "Unsubstantiated opinions, concerns, and suspicions about a project, though sincere and deeply felt, do not rise to the level of substantial evidence . . . ." (Leonoff, at p. 1352.) Thus, "project opponents must produce . . . evidence, other than their unsubstantiated opinions, that a project will produce a particular adverse effect." (Ukiah, supra, 2 Cal.App.4th at pp. 735-736, italics added.)

Here, although the testimony of the local residents arguably provides some evidence of the dangerous nature of the intersection, the record contains no factual foundation for the claim that the Project would exacerbate that condition for pedestrians and drivers. To the contrary, a study by a traffic engineer concluded that "the [P]roject does not create a significant impact at the intersection of Sixth Avenue and Upas Street and there are no 'safety' or sight distance problems at the intersection." Diagrams in the record show that sight lines for drivers will not be substantially impacted by the Project, with drivers proceeding south on Sixth Avenue and turning east onto Upas Street and drivers proceeding west on Upas Street and turning north onto Sixth Avenue able to see across the intersection from 68 feet back. Pedestrian sight lines of the intersection will also not be obstructed. Further, the intersection is controlled with traffic lights, minimizing the risk that an accident, involving either pedestrians or only vehicles, will be caused by any diminished ability to see cross-traffic. Because the Project's design calls for the placement of a series of 36-inch-tall planters along the southern and western perimeter of the site, it also takes account of the possibility that drivers northbound on Sixth Avenue will cause substantial damage if they drive onto the property. The Preservation Group presented no evidence to counter any of these points.

Instead, the Preservation Group argues that the Project will have a significant effect on traffic because it will foreclose the City from taking certain future steps to address problems at the intersection, such as constructing a traffic circle, widening the sidewalks or other measures. This argument suffers from the same flaws as the Preservation Group's argument about the exacerbation of the dangerous conditions at the intersection: It is based solely on unsubstantiated lay opinion. Except for the nontechnical and unsupported lay opinion of one local resident, the record contains no evidence that the Project will foreclose the City from taking meaningful steps in the future to address any dangerous conditions that it perceives at the intersection. The record also contains the report from the City Manager, which states that it is not reasonably foreseeable that the Project would impact any plans to adjust the intersection, because no plans have been adopted. This report provided a further basis for the City to reject the Preservation Group's argument.

Based on the above, we conclude that substantial evidence supports a finding that the Project will not have a significant effect on traffic relating to the offset intersection.

Continued in Part IV …………

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Apartment Manager Attorneys.

^[1] For one thing, the "significant effect" language in the urban in‑fill exemption refers only to certain types of environmental effects, namely, "traffic, noise, air quality, or water quality." (Guidelines, § 15332(d).) In contrast, Guidelines section 15300.2(c) applies to all types of significant environmental effects. In addition, unlike Guidelines section 15300.2(c), the significant effect element of the urban in‑fill exemption, does not require unusual circumstances, but instead, by its terms, applies to a significant effect on traffic, noise, air quality, or water quality caused by any circumstance.

^[2] Similarly, comparing the language of the urban in‑fill exemption to the language of CEQA section 21151(a), which, as we have explained, first gave rise to the fair argument standard, we see that the fair argument standard originated with a provision requiring an agency to determine whether a project may have a significant effect.

^[3] We recognize that because " 'the administrati[ve] record must disclose substantial evidence of every element of the contended exemption' " (CalBeach Advocates, supra, 103 Cal.App.4th at p. 536), and an agency "has the burden to demonstrate substantial evidence that the ordinance fell within the [exemption]" (Magan, supra, 105 Cal.App.4th at p. 475), an agency will often have to conduct a fairly extensive preliminary review to develop substantial evidence that there will be no significant effect on traffic, noise, air quality or water quality for a project that appears to fall under the urban in‑fill exemption. Although there may be some theoretical objection to the performance of such a study at the preliminary review stage, the need to perform a thorough analysis "simply to determine whether an activity is subject to CEQA in the first instance . . . is not absurd when we consider the principles that a[n] exemption . . . should be strictly construed . . . , and that such strict construction allows CEQA to be interpreted ' "in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." ' [I]t is not unreasonable to require a consideration of the issue of significant environmental effects at the preliminary review stage . . . when the agency assesses the applicability of a categorical exemption." (East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, 171, citations omitted.)

^[4] As we have explained above, the interpretation of the terms used in a categorical exemption is a question of law, to which we apply a de novo standard of review. (Fairbank, supra, 75 Cal.App.4th at p. 1251.)

^[5] The Community Redevelopment Law contains the phrase "urban uses" because it covers "blighted area[s]" that are " 'predominantly urbanized,' " which is defined to mean that "not less than 80 percent of the land in the project area: (1) Has been or is developed for urban uses; [¶] . . . [¶] or (3) Is an integral part of one or more areas developed for urban uses which are surrounded or substantially surrounded by parcels which have been or are developed for urban uses." (Health & Saf. Code, § 33320.1, italics added.)

^[6] We need not and do not reach the issue of whether development that is admittedly surrounded on three sides by urban uses would nevertheless not be "substantially surrounded" by urban uses if it is fronted by a nonurban use on the fourth side.

^[7] We note that the maps we rely on show that the Project is on the border of the very high density area. One map draws the border slightly differently and shows the Project as being just outside of the very high density area (but not in a low density area, in any event). To the extent that the Plan contains any ambiguity, we defer to the City's interpretation of its own Plan. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 142 [in reviewing "an agency's decision for consistency with its own general plan, we accord great deference to the agency's determination. This is because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those polices when applying them in its adjudicatory capacity"].)