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 III …………

b. Traffic Concerns Relating to the Alley

The Preservation Group makes several points related to the alley located behind the Project. The alley is located to the north of the Project and connects Sixth Avenue and Seventh Avenue. It provides access to parking spaces for nearby apartment buildings and is where the entrance and exit to the underground parking garage for the Project will be located.

The Preservation Group argues that it will be dangerous for drivers to turn onto Sixth Avenue when exiting from the alley because the Project will block a driver's view of cars driving north on Sixth Avenue. However, as the record indicates, the City Manager explained that the Project fully complies with the City's requirements for visibility areas at the street and alley intersections.

Next, the Preservation Group argues that it is dangerous for drivers to enter the alley when driving southbound on Sixth Avenue if they illegally cross a double yellow line or make a dangerous U‑turn at Upas Street to do so. However, the difficulty of turning left into the alley from Sixth Avenue is not a condition caused by the Project and exists whether or not the Project is built. Moreover, as the Preservation Group recognizes, the safest way to enter the alley from southbound Sixth Avenue is to make a left turn at the traffic signal on Upas Street and enter the alley from Seventh Avenue. The Project does not preclude that approach.

Finally, the Preservation Group also suggests that congestion in the alley will "interfere with the residents of the apartments on the other side of the alley who must park in stalls along the mid-block alley." However, as the City Manager explained, while the Project would be expected to generate some additional traffic in the alley, it would not be a significant addition, because the Project would be expected to generate an average of only seven trips in the morning peak hours and eight trips in the afternoon peak hours. Further, the Project would improve congestion problems in the alley by dedicating an additional five feet of property to widen and improve the existing 15‑foot‑wide alley.

Based on this evidence, we conclude that substantial evidence supports the City's finding that the Project would not cause any significant effects on traffic as related to the alley to the north of the Project.

c. Effects on Parking

The Preservation Group argues the Project will have a significant adverse impact on the availability of parking spaces in the neighborhood, which are already limited because of the proximity of Balboa Park and parking congestion caused by events held at the Marston House.

The records shows that the Project will provide 28 parking spaces (two for each of the 14 units), which is more than the required 25 spaces mandated by applicable requirements. The Preservation Group nevertheless argues that the Project will negatively impact the availability of neighborhood parking (1) because it does not designate any additional space for visitor parking, and (2) it will cause the elimination of three on‑street parking spaces.^[1]

We conclude that there may be some small effect on the availability of on‑street parking because of the loss of three on‑street parking spaces and the parking needs of visitors to the 14 single-family residences in the Project. However, the effect cannot be described as "significant." A significant effect is a "substantial, or potentially substantial, adverse change." (CEQA, § 21068; Guidelines, § 15382.) Under the Guidelines, a project will normally have a significant effect on the environment if it will "[c]ause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system." (Guidelines, appen. G, § XV, subd. (a), italics added.) The slight increase in parking congestion that may result from the Project will not be "substantial" in relation to the preexisting parking congestion in the area as described in the record. (Fairbank, supra, 75 Cal.App.4th at p. 1260 ["While the addition of any small building to a fully developed downtown commercial area is likely to cause minor adverse changes in the amount and flow of traffic and in parking patterns in the area, such effects cannot be deemed 'significant' without a showing of some feature of the project that distinguishes it from any other small, run-of-the-mill commercial building or use"]; City of Orange v. Valenti (1974) 37 Cal.App.3d 240, 249 [if a project concerns "a commercial area of such character that a few dozen additional cars (or a few hundred depending on the economy) would be expected to be a logical part of that local environmental picture, it could then be said that the [project] would have no significant effect on the environment of that particular area"].)

E

Substantial Evidence Supports the City's Determination That There Is No Reasonable

Probability of a Significant Effect on the Environment Due to Unusual Circumstances

We next examine the City's finding that "there is no reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances" under Guidelines section 15300.2(c). As we have explained above, the fair argument standard applies to our analysis. (See part II.C.1.b, ante.)

The Preservation Group argues there are "unusual circumstances" in this case, making Guidelines section 15300.2(c) applicable, because the Project (1) is adjacent to Balboa Park; (2) is located near houses that are designated as historic; (3) abuts the Del Prado condominium building and will impact its residents' views; and (4) sits at a dangerous offset intersection. The Preservation Group contends that due to these purportedly unusual circumstances, there is a reasonable possibility that the Project will significantly effect (1) shadowing of Balboa Park, (2) views, (3) traffic, and (4) "community character."

The application of Guidelines section 15300.2(c) involves two distinct inquiries. First, we inquire whether the Project presents unusual circumstances. Second, we inquire whether there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances. (Azusa, supra, 52 Cal.App.4th at p. 1207 [the unusual circumstances test is satisfied "where the circumstances of a particular project (i) differ from the general circumstances of the projects covered by a particular categorical exemption, and (ii) those circumstances create an environmental risk that does not exist for the general class of exempt projects"].) "A negative answer to either question means the exception does not apply." (Santa Monica Chamber, supra, 101 Cal.App.4th at p. 800.)

Instead of beginning our inquiry with an analysis of whether the various circumstances identified by the Preservation Group qualify as "unusual," in this case our inquiry will be streamlined if we proceed directly to the question of whether, applying the fair argument standard, there is a reasonable possibility of a significant effect on the environment due to any of those purported unusual circumstances.

1. Shadows

We first address the Preservation Group's contention that due to the Project's location across from Balboa Park, there is a reasonable possibility that the Project will significantly affect the environment by casting shadows on Balboa Park that will harm the park's vegetation.

We reject this argument because the record does not contain evidence creating a fair argument that the shadows cast by the Project will have an adverse effect on the park's vegetation. We reach this conclusion keeping in mind that as the party challenging the exemption, it is the Preservation Group's burden to produce substantial evidence establishing an exception to the urban in‑fill exemption. (Santa Monica Chamber, supra, 101 Cal.App.4th at pp. 795-796.)

The record contains shadow diagrams showing the shadows that would be cast by the Project. As the City Manager explained, interpreting these diagrams: "On June 21, the shadow created by the proposed [P]roject extends to the southeast, crossing Upas Street at 5:00 p.m. and ultimately extending 130 feet into Balboa Park by sunset." However, due to the movement of the sun throughout the year, the Project would cast a shadow to the north, rather than to the south into Balboa Park, at other times of the year.

The Preservation Group submitted no evidence showing that the park's vegetation would be impacted by the shadow created by the Project on summer evenings. To the contrary, the only evidence in the record on that subject suggested no significant effect. The record contains evidence that there was no known significant impact on the vegetation on the west side of Balboa Park due to the construction of buildings there, and the City's horticulturalist for Balboa Park stated that because of the movement of the sun, "it seems fair to assume that the construction of a building on the north end of the park," where the Project is located, "will have less of an impact than any changes in the buildings on the [w]est side of [Sixth] Avenue." (Italics added.)^[2] Accordingly, we conclude that the record does not contain substantial evidence supporting a fair argument of a significant effect on the vegetation in Balboa Park.

2. Views

The Preservation Group argues that due to the Project's location next to the Del Prado, views to the west from that building will be blocked. We reject this argument because "obstruction of a few private views in a project's immediate vicinity is not generally regarded as a significant environmental impact." (Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 586.) "Under CEQA, the question is whether a project will affect the environment of persons in general, not whether a project will affect particular persons." (Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492-493.)^[3]

The Preservation Group also argues that there is a reasonable possibility that the Project's location next to Balboa Park will negatively impact the public's view of Balboa Park from Sixth Avenue. However, as we have explained, the record shows that sight lines down Sixth Avenue will be preserved to a reasonable extent. The views of Balboa Park from Sixth Avenue will not be impacted in any way that can be fairly described as "significant" or "substantial."

The Preservation Group also contends that view from inside Balboa Park looking north will be negatively impacted because the view will consist of a wall of tall buildings. However, we agree with the City that the view toward the lot where the Project will be built, as shown from photographs in the record, consists of an unremarkable urban street, not a "scenic vista" with aesthetic qualities. (See Guidelines, appen. G, § I, subds. (a) & (c) [in deciding whether to prepare a negative declaration an agency may ask whether a project would "[h]ave a substantial adverse effect on a scenic vista" or "[s]ubstantially degrade the existing visual character or quality of the site and its surroundings"].) Further, the view already contains the Del Prado, which is three and a half times wider than the Project and substantially the same height. In light of these facts, it cannot be fairly argued that the existing character of the view looking north from Balboa Park will be significantly affected by the Project.

3. Community Character

Relying on the alleged inconsistency of the Project with the Plan's objectives for development adjacent to Balboa Park, the Preservation Group argues that the Project would "have significant impacts with respect to community character." However, as we have discussed above, the Project is consistent with the Plan. The Preservation Group further argues that the Project would significantly impact community character because it "would be the only building higher than four stories on the east side of [Sixth] Avenue between Elm and University." This argument ignores the fact that the Del Prado, while one lot removed from Sixth Avenue, is substantially higher than four stories, and that the Project will be consistent with the community character already established by the Del Prado.

4. Traffic

Finally, the Preservation Group makes the identical arguments that we have already discussed above with respect to traffic impacts. In support of the "unusual circumstances" component of the exception, the Preservation Group argues that the unusual circumstances consist of (1) the proximity to Balboa Park and the Marston House, which causes parking problems and high pedestrian traffic, and (2) the allegedly dangerous nature of the offset intersection. We do not reach the issue of whether these circumstances are unusual. Instead, we determine, with reference to our discussion above, that the City correctly determined that there is no reasonable possibility of a significant effect on traffic from the Project

In reaching this conclusion, we consciously apply a different standard than we applied in determining whether the elements of the urban in‑fill exemption were met. Here, we ask whether the record contains any substantial evidence supporting a fair argument that the Project will have a significant effect on traffic. (See part II.C.1.b, ante.) Applying that standard to the traffic issues discussed above, we conclude that the record does not support a fair argument that the Project (1) will exacerbate any dangerous conditions to drivers and pedestrians posed by the offset intersection, (2) will cause dangerous conditions or substantial amounts of congestion regarding the alley to the north of the Project, or (3) will have a significant effect on the parking problems in the neighborhood.

F

There Is No Merit to the Preservation Group's Argument That the City Impermissibly

Piecemealed the Approval of the Project

Focusing on the fact that the City issued shoring, grading and pad footings permits before it undertook its analysis of whether the Project was exempt from CEQA, the Preservation Group argues that the City impermissibly approached the CEQA analysis of the Project in a "piecemeal" manner. The Preservation Group relies on case law holding that "[a] public agency is not permitted to subdivide a single project into smaller individual subprojects in order to avoid the responsibility of considering the environmental impact of the project as a whole." (Orinda Assn. v. Board of Supervisors (1986) 182 Cal.App.3d 1145, 1171, italics added; see also Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1358.) The rationale behind the piecemealing prohibition is that " '[t]he requirements of CEQA, "cannot be avoided by chopping up proposed projects into bite-size pieces which, individually considered, might be found to have no significant effect on the environment or to be only ministerial." ' " (Orinda, at p. 1171.) In this case, the Preservation Group's argument is that the shoring, grading permit, and pad footings permits should not have been issued as ministerial matters separate from the Project because they were an inseparable part of the Project.^[4]

We reject this argument on the ground that the Preservation Group failed to object to the City about the alleged piecemeal treatment of the Project and thus failed to exhaust its administrative remedies. CEQA states that an action may not be brought to challenge an agency's decision "unless the alleged grounds for noncompliance with [CEQA] were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing." (CEQA, § 21177(a).)

The Preservation Group never raised the issue of piecemealing to the City.^[5] The best it can do is to point to an unclear comment at the City Council hearing by a member of the public, who stated, "Now there ha[s] also been a project splitting, ignoring environmental issues such as traffic and light, ignoring unusual issues as being located directly by the entrance of Balboa Park, ignoring the cumulative effects and so on." Although the Preservation Group "may assert any issues raised by other parties during the administrative proceedings" (Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1119, italics added), we do not perceive this isolated and unelaborated comment by a member of the public as fairly raising the piecemealing argument to the City. "[O]bjections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them. Otherwise, the purpose of the exhaustion doctrine would not be served, since the courts would be called upon to step outside their limited role of reviewing the decisionmaking process of the administrative agency . . . ." (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1140.) Accordingly, we conclude that the Preservation Group may not advance the piecemealing argument in this proceeding because the issue was not fairly presented to the City.

DISPOSITION

The order is affirmed.

CERTIFIED FOR PUBLICATION

IRION, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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^[1] The loss of three on‑street parking spaces on Sixth Avenue is due to the widening of the alley, the creation of a red-painted curb area for fire truck access, and designating a space for postal service parking.

^[2] The horticulturalist stated she was unable to offer an opinion on the degree, if any, to which existing trees would be impacted by the Project, but explained that a licensed consulting arborist could give such a opinion. The Preservation Group did not submit a study by a licensed consulting arborist.

^[3] The exception set forth in Guidelines section 15300.2(c) does not apply to the environmental impacts caused by the Project's location next to the Del Prado for the additional reason that the location next to the Del Prado is not an unusual circumstance as is required for the exception to apply. The location of urban in‑fill construction next to another building which might result in blocked views is not an unusual circumstance for urban in‑fill construction, as such construction normally takes place in an already built-up urban environment. "[W]hether a circumstance is 'unusual' is judged relative to the typical circumstances related to an otherwise typically exempt project." (Santa Monica Chamber, supra, 101 Cal.App.4th at p. 801.)

^[4] The arguably more logical counter-perspective, of course, is that the City issued the initial permits because, at the time, it viewed the whole of the Project as only requiring ministerial approvals (as the Project was proposed as an apartment building at the time), not because it viewed the grading, shoring and pad footings permits as separable from the Project. It was not until the Preservation Group objected to the lack of a CEQA review that the City undertook a more detailed analysis of the Project.

^[5] The Preservation Group points out that its attorney stated at the City Council hearing that the Project has "a full head of steam [be]cause they went ahead and they dug the hole." Because this comment does not assert that the City has treated the grading, shoring and pad footings permits as separate from the rest of the Project, we do not perceive it as raising a piecemealing argument. The Preservation Group also argues that it clearly objected that the initial permits were issued without environmental review. Such objections, however, cannot be interpreted as raising a piecemealing argument. An objection that all of the permits issued to date were issued without environmental review does not equate to an objection that those permits were treated as separate from the rest of the Project.