Chabra v. City of Concord

Filed 6/6/07 Chabra v. City of Concord CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Petitioners and appellants Raj Chabra, Trustee of the Chabra 2003 Living Trust, Vimal Jumar, SDL Concord Partners, L.P., and Willow Pass Center LLC (collectively, petitioners) appeal[1] from the superior courts denial of their petition for a peremptory writ of mandate. Petitioners sought by their petition to reverse the City of Concords (City) approval of real party in interest Harvest Churchs (Harvest) proposed church use of a second-floor space owned by Harvest and located at the Park & Shop commercial center (shopping center). We affirm the judgment.

BACKGROUND

Harvest purchased a two-story space at the shopping center in June 1998. A movie theater had occupied the second floor of the space (Harvest Site) for 30 years; before then, it had been a J.C. Penneys department store.

Harvest I

Before Harvest completed its purchase of the property, City staff advised Harvests representatives that use of the space for religious purposes would be inconsistent with the Citys General Plan and development objectives for the shopping center. After Harvest purchased the Harvest site, it submitted an application for a Zoning Administrators Permit to allow use of the entire second floor of the site for religious services, administrative offices, meeting rooms, and a conference/events center. The Citys Planning Commission denied Harvests requested permit. The Church appealed this determination to the City Council, which denied the appeal.

As recounted in our nonpublished opinion filed on April 17, 2003 in Harvest Church et al. v. City of Concord et al., case No. A096604 (Harvest I), which is a part of the record in the present action, the Church filed a complaint in superior court seeking, among other things, a writ of administrative mandamus. After court trial, the superior court concluded that the City prejudicially abused its discretion within the meaning of Code of Civil Procedure section 1094.5(b), and that [t]he absence of any standards in the Municipal Code to guide the Planning Commissions exercise of discretion is a denial of due process and is an appropriate basis to grant the Writ of Administrative Mandamus. The trial court ordered the City to set aside its decision . . . denying [Harvests] application for zoning administrative permit . . . , and to reconsider its action in light of the courts statement of decision and to take any further action enjoined upon it by law. The City appealed the trial courts ruling to this court.

In our 2003 opinion, we held that the Citys Municipal Code expressly provided that before granting a Zoning Administrators permit, the Zoning Administrator must find that such an action is not detrimental to the general welfare of the City, and that this general welfare standard also applied when the decision regarding the permit application was referred to the Planning Commission. We also found, under a substantial evidence standard of review, that the City Council could properly conclude, as it did, that Harvests proposed use for the site conflicted with the Citys development plans. In doing so, we noted the following:

Whether we consider the proposed project a conference center or a church, the conclusion is the same: Harvest did not propose retail, office, and/or residential development. Harvest argues that the plain language does not restrict the Park N Shop to retail uses, which is of course true because the very language of the General Plan refers to office and/or residential development as other options, but the City did not interpret the plan as requiring a retail use. It instead interpreted the plan as stating a preference, albeit a strong preference, for more traditional uses in this retail shopping center.

We also held that the City could rely on the opinion of its staff, which opposed the use proposed by Harvest, in making decisions, as that opinion constituted substantial evidence. We further stated:

Harvest argues that its proposal could be construed as consistent with other language in the plans, but that argument is not dispositive. The policies expressed in a general plan reflect a range of competing interests. (Save Our Peninsula, supra, 87 Cal.App.4th at p. 142.) As a result, the government agency must be allowed to weigh and balance the plans policies when applying them, and it has broad discretion to construe its policies in light of the plans purposes. [Citations.] A reviewing courts role is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies. [Citation.] (Ibid.) The City met this standard. It simply concluded that the predominant interest was the promotion of retail activities in this shopping center, a conclusion that finds support in the plans. Accordingly, the City properly exercised its discretion.

Finally, we found, in response to Harvests argument that the City could not deny its application simply because it was a church, that many of the Citys findings concern the secular component of Harvests proposal, and that the City made findings that are not tied to Harvests proposal to use the site as a church.

We reversed the trial courts judgment and remanded to that court with directions to deny Harvests petition.

The Present Action

In August 2003, Harvest again applied for a Zoning Administrators Permit, this time requesting that Harvest be allowed to use the Harvest Site as a church only, without any conference/events center use. City staff recommended that Harvests application be denied, and stated to the Planning Commission and City Council that the proposed use was inconsistent with the General Plan, the Redevelopment Plan, and the Action Plan. Nonetheless, in May 2004, after public hearing, the Planning Commission voted to approve Harvests project.

Petitioners appealed to the City Council, which voted 3-2 to uphold the Planning Commissions decision. In doing so, the City Council found that Harvests proposed church use for the site was consistent with the General Plan and the Redevelopment Plan for reasons discussed further, post.

Petitioners subsequently petitioned the superior court for a peremptory writ of mandate directing the City to vacate and set aside its approval of the Harvest project. The trial court denied the petition, rejecting the various arguments that petitioners raise in their appeal.[2] This timely appeal followed.

DISCUSSION

Petitioners petition and complaint below was filed pursuant to, among other statutes, Code of Civil Procedure 1094.5, which they rely on in their appeal. Under Code of Civil Procedure section 1094.5, we review the City Councils decision for an abuse of discretion, which is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., 1094.5, subds. (a) & (b).)

I. Estoppel Issues

Petitioners first argue that the City was both collaterally and judicially estopped from determining that Harvests proposed church use was compatible with the General Plan. These arguments fail because they were not raised in the administrative proceedings, and are incorrect in any event.

A. Failure to Exhaust Administrative Remedies

In administrative mandamus actions brought under section 1094.5 of the Code of Civil Procedure, appellate review is limited to issues in the record at the administrative level. It is fundamental that the review of administrative proceedings provided by section 1094.5 of the Code of Civil Procedure is confined to the issues appearing in the record of that body as made out by the parties to the proceedings, though additional evidence, in a proper case, may be received. [Citation.] It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or skeleton showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court. [Citation.] The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play. (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019-1020 (Walnut Creek).)

Petitioners did not directly raise collateral estoppel or judicial estoppel issues before the Planning Commission or the City Council. Nonetheless, arguing that the issue need not be precisely defined in legal parlance, they contend that they raised them in several unsophisticated, but acceptable, ways, citing Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1449 ( [i]t is no hardship . . . to require a layman to make known what facts are contested . . . in some fashion, however unsophisticated) and Gonzales v. City of Santa Ana (1993) 12 Cal.App.4th 1335, 1348, fn. 17 (challenge to redevelopment plan based on inadequacy of housing plan was preserved by complaints of displacement and that the plan would take my house away). They contend that one-time property owner Betty Louie[3] raised the issues in her Notice of Appeal from the Planning Commission decision as follows:

The conclusions in the Staff Report are well-founded and were exhaustively debated by the City when it rejected Harvest Churchs Project in 1999. These findings were upheld later in litigation with the applicant. The prior findings of General Plan inconsistency bind the City and should be adhered to now because there is no justification for changing the Citys prior decisions.

Louies statement did not preserve petitioners collateral estoppel and judicial estoppel arguments. She did not refer to anything related to these doctrines, which, as discussed further post, involve a partys assertion of identical issues previously litigated by them to a final judgment (collateral estoppel), and a partys assertion of two totally inconsistent positions in judicial or quasi-judicial proceedings, the first of which was successfully asserted (judicial estoppel). Louies assertion that the Citys prior findings bind it because there is no justification for changing the Citys prior decisions did not provide notice that collateral estoppel or judicial estoppel issues were being asserted.

Even if we were to conclude that Louies assertion did suggest collateral estoppel or judicial estoppel issues, it was the only such suggestion that petitioners have identified in the record. Petitioners insist that other references by Louie, petitioner Chabra, and City staff to the prior City determinations and litigationsomehow contributed to the preservation of their collateral estoppel and judicial estoppel arguments. However, these references were to the prior determinations or litigation, and little, if anything, more.[4] Therefore, we are left with Louies notice of appeal statement. It was at best the most skeleton of arguments and, therefore, was insufficient to preserve petitioners collateral estoppel and judicial estoppel arguments for presentation to the trial court and on appeal. (Walnut Creek, supra, 101 Cal.App.3d at pp. 1019-1020.) Accordingly, we find that petitioners have waived these arguments.

Furthermore, even if they had not exhausted their remedies, neither doctrine applies here, as we now discuss.

B. Collateral Estoppel

Collateral estoppel bars a party from relitigating an issue of ultimate fact that a court already has adjudicated. It deals with the finality of judgment on factual matters that were fully considered and decided. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 182.) Traditionally, collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding]. (People v. Sims (1982) 32 Cal.3d 468, 484, quoting People v. Taylor (1974) 12 Cal.3d 686, 691.) Furthermore, [i]t is implicit in this three-prong test that only issues actually litigated in the initial action may be precluded from the second proceeding under the collateral estoppel doctrine. (People v. Sims, supra, 32 Cal.3d at p. 484.)

Petitioners do not present facts establishing all three prongs of this test. Harvests previous use proposal in Harvest I was litigated to a final judgment on the merits, and the City was a party to that prior proceeding. However, the issues litigated were not identical to those in the present action. Harvests previous proposal was for a significantly different use involving a multipurpose events/conference center, as well as church use. A significant part of the Citys determinations in Harvest I, as indicated by its briefing to this court, related to the impact on parking at the shopping center from those proposed uses, with great emphasis placed on the parking strain caused by relatively long events and conferences. As already stated, we found that many of the Citys findings concern the secular component of Harvests proposal, and that the City made findings that are not tied to Harvests proposal to use the site as a church. On the other hand, Harvests present proposal is for church use only. Petitioners contend that the City Council should not have found this particular use was consistent with the Citys General Plan and Redevelopment Plan, and not detrimental to public health, welfare and property. This is not identical to the Harvest I issues.

Petitioners quote certain language from Harvests briefs to this court in Harvest I characterizing the views and actions of the City Council, such as that [t]he majority denied the permit because they deemed the proposal to be for a churchwhich they did not want at Park-N-Shop despite the zoning for second-floor religious use. These excerpts were argument, and are not relevant regarding what was actually determined. Petitioners also emphasize that Harvests petition in the previous proceeding included a Religious Land Use and Institutionalized Persons Act cause of action, and that Harvest had previously argued that the Citys denial of its church project placed a substantial burden on Harvests practice of religion.[5] None of these citations alters the fact that the proposal before us now was not previously litigated. Therefore, petitioners collateral estoppel argument lacks merit.[6]

C. Judicial Estoppel

Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding. The doctrine serves a clear purpose: to protect the integrity of the judicial process. (Jackson v. County of Los Angeles, supra, 60 Cal.App.4th at p. 181.) The doctrine [most appropriately] applies when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422, quoting Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987.)

Judicial estoppel is an extraordinary remed[y] to be invoked when a partys inconsistent behavior will otherwise result in a miscarriage of justice.    (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468.) We have previously explained:

Judicial estoppel is an equitable doctrine and its application by the court is discretionary. [Citation.] Courts may decide to apply this doctrine against a plaintiff's claims to prevent judicial fraud from a litigants deceitful assertion of a position completely inconsistent with one previously asserted, thus compromising the integrity of the administration of justice by creating a risk of conflicting judicial determinations. [Citation.] Some Courts of Appeal have held that the inconsistent position generally must be factual in nature. (Ibid.) If the challenge is merely a legal challenge that reflects two different positions in two lawsuits, this may be a reasonable litigation tactic, which does not undermine the integrity of the judicial process. [Citation.] (Levin v. Ligon, supra, 140 Cal.App.4th at p. 1468.)

Petitioners contend that the City has taken two totally inconsistent positions in Harvest I and the present case before this court. They direct us to two sections of the Citys briefs to this court in Harvest I. Most of the discussion in these sections relates to the since abandoned events/conference center aspect of Harvests previous proposal. As we discuss further, post, that proposed use was made in 1999, approximately five years before the application in the present case, under different circumstances. Accordingly, we cannot say the Citys positions are totally inconsistent.

Furthermore, the Citys Harvest I argument to this court, even if it had related solely to Harvests use of the site as a church (which it did not), was not on its face totally inconsistent with its present position. First, the City argued it was improper for [the trial court] to find by implication that no reasonable person could conclude that the proposed use of the site was inconsistent with its existing function as a regional shopping mall. The City now argues that substantial evidence supports the conclusion that Harvests church use of the site is consistent with the General Plan, i.e., that a reasonable person could conclude that church use of the site is consistent with the General Plan. These two views do not necessarily contradict each other; it is possible for substantial evidence to exist on both sides of the argument. At worst, the City argued that [n]o citation to the Administrative Record is necessary for the truism that a retail business or service is fundamentally different than a place of worship. However, this statement was made as part of the Citys argument that Harvests overall proposed use was inconsistent with the General Plan. The Citys current position does not necessarily deny this statement.

Petitioners also fail to establish the third prong of the test stated in People v. Sims, supra, 32 Cal.3d at page 484, i.e., that the City was successful in asserting its first position. While the City prevailed in its Harvest I appeal, it was not necessarily because of any assertion about Harvests church use only of the site. Rather, our opinion stated that the City Council could properly conclude, as it did, that Harvests proposed use for the site conflicted with the Citys development plans, a reference to the entire proposed use. (Italics added.) We did not find in the Citys favor based only on proposed church use. To the contrary, in response to Harvests complaints that the Citys decision to deny its requested permit was made on religious grounds, we noted that [m]any of the Citys findings are based on grounds wholly independent of any consideration of the religious component of Harvests proposed use of its property. Those findings are alone adequate to affirm the Citys decision.

Finally, a significant part of the parties debate involves the legal question of whether church use at the Harvest site is inconsistent with the General Plan. We also think it inappropriate to invoke the judicial estoppel doctrine in light of the legal nature of this issue.[7] (See Levin v. Ligon, supra, 140 Cal.App.4th at p. 1468.)

II. Substantial Evidence Issues

The City Council determined that Harvests proposed use of the Harvest Site was consistent with the General Plan and Redevelopment Plan, and was not detrimental to public health, welfare and property, finding in relevant part:

1. The project is consistent with the goals, objectives, and policies contained in the Concord General Plan. The proposed uses will help to maintain and enhance Central Concord as the economic, social and symbolic center of the City (Goal 7) by establishing urban-scale development including amenities and services for workers and residents within the Redevelopment Project Area (Policy 7.1.2), contributing to the economic, social and aesthetic condition of the City by emphasizing quality in design, landscaping and construction (Policy 7.1.4), and making optimal use of the Park & Shop Centers excellent freeway access and large size by intensifying development on the site (Policy 7.1.5).

2. The project is consistent with the Central Concord Redevelopment Plan. The long-term presence of vacant and underutilized space in the subject building creates a physical, social, and economic blighting influence on surrounding properties. Renovation of the interior space formerly occupied by the Capri Theater and anticipated faade improvements will intensify the use of the building and eliminate its blighting influence. Occupancy of the second floor space for church and related uses will further the goal of establishing the Redevelopment Project Area as the center of the community in symbolic, functional, and economic terms.

3. The project is consistent with the Downtown Business District - Commercial zoning designation, which expressly permits religious, nonprofit, and office uses above the ground floor of buildings.

4. The establishment, maintenance, and operation of the proposed use will not be detrimental to the health, safety, peace, morals, comfort, or general welfare of persons residing or working in the neighborhood or detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the City. The Citys parking analysis concludes that the parking needs of the proposed uses can be accommodated without creating negative impacts on the Park & Shop Center.

5. The Park & Shop Center is in state of dilapidation and in need of upgrade and renovation, and occupancy by Harvest Church at the subject location will help to provide necessary improvements to the property.

Petitioners contend that there was no substantial evidence to support these findings.

A. Standard of Review

The parties agree that we apply a substantial evidence standard of review to our consideration of the City Councils determinations. (Code Civ. Proc.,  1094.5, subd. (c); Strumsky v. San Diego Co. Employees Retirement Assn. (1974) 11 Cal.3d, 28, 44-45) We do so to review the City Councils decision, not the trial courts. (See Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1583 (Auburn).) In reviewing the validity of the City Councils decision, section 1094.5 requires we inquire into whether the City Council acted in excess of its jurisdiction and whether there was any prejudicial abuse of discretion. (Auburn, at p. 1583.) Abuse of discretion is established if the City Council failed to proceed in the manner required by law or its finding . . . is not supported by substantial evidence in light of the whole record. (Ibid., quoting Code Civ. Proc., 1094.5, subd. (c).) The in light of the whole record language means that the court reviewing the agencys decision cannot just isolate the evidence supporting the findings and call it a day, thereby disregarding other relevant evidence in the record. [Citation.] Rather, the court must consider all relevant evidence, including evidence detracting from the decision, a task which involves some weighing to fairly estimate the worth of the evidence. (Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 141-142.) Nevertheless, [i]n making these determinations, the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision. [Citation.] (Harris v. City of Costa Mesa (1994) 25 Cal.App.4th 963, 969 (Harris).) We will reverse the agencys 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; see also Harris, supra, 25 Cal.App.4th at p. 969.) Moreover, if the City Council committed errors of law, we are not bound by its legal conclusions. (Auburn, supra, 121 Cal.App.4th at p. 1583.)

B. Consistency with the General Plan and Redevelopment Plan

1. General Plan Review

Every county and city must adopt a comprehensive, long-term general plan for the physical development of the county or city . . . . (Gov. Code,  65300.) The general plan has been aptly described as the constitution for all future developments within the city or county. . . . [T]he propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements . . . . [Citations.] The consistency doctrine has been described as the linchpin of Californias land use and development laws; it is the principle which infuse[s] the concept of planned growth with the force of law. . . . [Citations.]
A project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment. [Citation.] A given project need not be in perfect conformity with each and every general plan policy. [Citation.] To be consistent, a subdivision development must be compatible with the objectives, policies, general land uses and programs specified in the general plan. [Citation.] (Families Unafraid to Uphold Rural Etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1336 (FUTURE).)
When we review an agencys decision for consistency with its own general plan, we accord great deference to the agencys determination. (Save Our Peninsula Committee v. MontereyCountyBd. of Supervisors (2001) 87 Cal.App.4th 99, 142 (Save Our Peninsula); see also Walnut Creek, supra, 101 Cal.App.3d 1012, 1021 [[t]he construction placed on a piece of legislation by the enacting body is of very persuasive significance].) This is because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity. (Save Our Peninsula, supra, 87 Cal.App.4th at p. 142.)

We are also mindful that the policies expressed in a general plan reflect a range of competing interests. (Save Our Peninsula, supra, 87 Cal.App.4th at p. 142.) As a result, the governmental agency must be allowed to weigh and balance the plans policies when applying them, and it has broad discretion to construe its policies in light of the plans purposes. [Citations.] A reviewing courts role is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies. [Citation.] (Save Our Peninsula, at p. 142.)

2. Relevant Concord Plans and Ordinances

a. The General Plan

The substance and interpretation of Concords General Plan is at the center of the parties debate in this appeal. The Plan, last revised in 1994, states:

All land use permits, as well as development and zoning ordinances and the capital improvement program, must be consistent with the general plan. . . . The general plan must give direction to help balance necessarily competing goals of the community, and it is the City Councils responsibility to adopt a plan flexible enough to achieve appropriate balances between such goals.

The Plan further states that [a]ll goals, objectives, and policies must be internally consistent, and any implementation measures must follow logically from the plans [sic] goals and policies.

The General Plan states a number of sets of goals, policies, and objectives. The parties direct our attention to two sets in particular. Goal 3 of the General Plans land use element is to [p]romote and enhance Concords role as a regional shopping designation. An objective of this goal is to [e]xpand and enhance existing regional commercial uses through a policy of supporting the expansion of existing regional commercial centers as well as development opportunities for new regional commercial centers.

Goal 7 of the land use element is to [m]aintain and enhance Central Concord as the economic, social, and symbolic center of the City. One of its objectives is to [i]ntegrate commerce, employment, transportation, government, residential, entertainment and cultural attractions at an urban scale, through such policies as the active promotion of business and employment uses in order to expand job opportunities and attract new economic activity, and [u]rban-scale development including both amenities and services for workers and residents . . . within the Redevelopment Area. One of its policies is to [m]ake optimal use of the Park N Shop centers excellent freeway access and large size by maximizing retail sales opportunities and intensifying development on the site, possibly with retail, office and/or residential development.

Furthermore, petitioners assert, and respondent does not contest, that the General Plan designates the shopping center as Regional Commercial and High Density Residential.[8] The General Plan defines Regional Commercial as follows:

This designation contains large-scale (generally greater than 80,000 square feet) commercial uses that serve both residents and the surrounding region. These uses typically require excellent accessibility and locations near freeway interchanges. Regional commercial uses tend to be large in scale. Examples include regional shopping malls, manufacturer outlet stores and new auto sales. (Italics omitted.)

The Plan defines High Density Residential as follows:

This designation contains primarily multi-family residential development with the potential in designated zoning districts for including commercial or office uses at street level. Development at the high end of the range (44-100 dwelling units per acre) may be approved within the Central Area, where such development must be of high rise construction (Type I or Type II construction as defined by the Uniform Building Code.) (Italics omitted.)

b. Redevelopment and Action Plans

The parties also do not contest that the shopping center is included within the area covered by the Citys Central Concord Redevelopment Plan, as well as by the Central Concord Redevelopment Strategy and Implementation Action Plan (Action Plan), described by petitioners as a supplemental policy document adopted in 2000 to clarify the goals, objectives, and strategies for development of the Citys downtown area. The Redevelopment Plan states:

The Redevelopment Agency of the City of Concord proposes to use the process of redevelopment to eliminate many aspects of visual, economic, physical and social blight presently existing within the City of Concord and more specifically within the boundaries set forth within the Central Concord Redevelopment Plan.

Among the Redevelopment Plans central objectives are:

1. To establish the Project Area as the center of the community in symbolic, functional and economic terms.

2. To maximize opportunities wherever possible for the retention of existing property interests, for local investors as well as for the continuation, revitalization and expansion of existing commercial enterprises within the Area.

The Action Plan states[9] that the emphasis for the shopping center is on a combination of local serving and regional retail uses, and that a strategic goal for the center is to [strengthen] regional retail uses on the west-end of Park & Shop so as to allow the mixed-use residential/retail concept to develop on Park & Shops east side . . . . The Action Plan further states that the Citys redevelopment policy of the shopping center is to [e]stablish the western portion as a regional value retail center. (Italics omitted.) The Harvest site is located in the western portion of the shopping center.

c. Municipal Codes

The parties also do not contest that the shopping center is classified under the Citys Municipal Code as zoned for commercial use in the Citys Downtown Business District. Concord Municipal Code (hereafter C.M.C.) section 122-571,[10] which relates to the downtown business district, states:

The principal objective of the redevelopment plan is to establish the project area as the center of the community in symbolic, functional, and economic terms. The purpose of this division is to provide regulations and procedures which will direct land use and development in the Downtown Business District toward the realization of the objectives of the redevelopment plan.

Concord Municipal Code section 122-573, subdivision (a)(1) discusses the acceptable commercial uses for new and existing structures in the downtown business district. The ground floor uses includes retail stores, personal service businesses and offices, restaurants and other eating places, places of entertainment and cultural events, and hotels. (C.M.C. 122-573, subd. (a)(1).) Uses permitted for floors above the ground floor are described as [a]ll ground floor uses, plus public buildings and facilities, religious and nonprofit uses, other offices and residences. (C.M.C. 122-573, subd. (b).)

3. Analysis

Petitioners contend that it is apparent that the Citys approval of the Project is incompatible with the Citys General Plan, Redevelopment Plan, and Action Plan. Petitioners, quoting various portions of the language we quote above from these documents, argues that [s]tanding alone, these designations and policy statements require that the Harvest Site be put to a retail or commercial use, rather than a non-retail use such as a church. Petitioners cite as support the emphasis in the General Plan on promoting Concord as a regional shopping destination, its definition of regional commercial, and its emphasis on the promotion of regional commercial centers and uses.

Petitioners contention is incorrect. In Harvest I, we found that the plain language [of the General Plan] does not restrict the Park N Shop to retail uses and that the City did not interpret the plan as requiring a retail use. Petitioners do not present us with anything to change these views.

We also stated in Harvest I that the City had interpreted the plan as stating a preference, albeit a strong preference, for more traditional uses in this retail shopping center. The record indicates that the City Council continued to focus on the shopping centers development in considering Harvests latest proposal. Among other things, the decline of the shopping center and the long-time lack of retail prospects for the Harvest Site persuaded the Council that Harvests present proposal was a step forward in the shopping centers development, and consistent with the General Plan and Redevelopment Plan. We think these plans are flexible enough to support the City Councils decision.

Certainly, there was substantial evidence presented to the Planning Commission and the City Council that Harvests latest proposal would help develop the shopping center consistent with the General Plans goals.[11] Testimony indicated that in the approximately five years since the Citys consideration of Harvests previous proposal, no other viable tenant for the Harvest Site had come forward, leaving the space vacant during this time. There was testimony that the shopping center had declined over time into some disrepair and blight-like conditions, that some felt unsafe in its parking lot, and that centers property owners had not done enough to improve matters.

On the other hand, there was substantial evidence that Harvests proposal, while it did not call for a traditional retail use for the Harvest Site, would aid in the centers development. Harvests pastor stated that Harvest will make internal and external improvements to the Harvest Site, thereby improving the physical attractiveness of the center. He and others noted that a church use would bring people to the shopping center who would be potential shoppers there, and the pastor testified in some detail as to steps that would be taken so that the church use of the Harvest Site would not create an unmanageable parking problem.[12] Many business operators in the area, including in the center itself, wrote or spoke in support of Harvests proposal, many indicating that the church would be good for business. Harvests potential tenancy at the center had not deterred such significant retailers as Frys and Starbucks from opening stores at the center since Harvest purchased the site. There was testimony about churches having been placed in other commercial areas and shopping centers with positive results. In short, substantial evidence supported the conclusion that Harvests church use would aid the physical and economic development of a dilapidated and underutilized shopping center for which no other viable options had been apparent for a number of years.

As the City Council determined, Harvests proposed church use was consistent with the General Plans Goal 7, which sought to [m]aintain and enhance Central Concord as the economic, social, and symbolic center of the City, as well as its objectives and policies. There was not only substantial evidence that the church use would aid in the shopping centers physical and economic development, but also that it would contribute to the social and symbolic aspects of central Concord, including testimony and letters indicating that the church and its leadership were well-regarded, and that a church in the shopping center would benefit the community, including those who lived and worked in the area.

Moreover, given the substantial evidence that the church use would aid the centers development, the proposal was not inconsistent with Goal 3 of the General Plan, petitioners argument to the contrary. Goal 3 sought to promote and enhance Concords role as a regional shopping designation by enhancing existing regional commercial uses. A reasonable person could conclude from the evidence that the proposal furthered this goal by aiding in the shopping centers development.

We also do not see inconsistency between Harvests present proposal and the Redevelopment Plan or Action Plan for these same reasons. As the City Council indicated in its findings, the Redevelopment Plan proposed, among other things, to eliminate many aspects of visual, economic, physical and social blight within central Concord, including by establishing the area as the center of the community in symbolic, functional and economic terms, and by maximiz[ing] wherever possible for the retention of existing property interests . . . as well as for the . . . revitalization of existing commercial enterprises within the Area. The Action Plan seeks to strengthen regional retail uses on the west end of the shopping center, where the Harvest Site is located. It may well be that a church use for the Harvest Site is not the ideal way to accomplish these goals. However, substantial evidence supported the conclusion that this use would at least aid these goals and, furthermore, that it was better than the most likely alternativethe continued vacancy of the Harvest Site in the foreseeable future, leaving the shopping center underutilized and its blighted condition unchanged.

Petitioners in effect ask us to reweigh all the evidence presented and conclude that the church use would not be an economic benefit to the shopping center, or would ultimately cause traffic problems there. We cannot do so under a substantial evidence standard of review. Such things as the opposition voiced by other property owners at the center or by those who thought that the church use would hurt the shopping centers economic opportunities do not dissuade us that a reasonable person could conclude from the evidence we have summarized, ante, that Harvests church use would benefit the centers development.

Petitioners also attempt to persuade us that this case is analogous to others in which inconsistencies with general plans were found, but these cases are inapposite. (See, e.g., Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 379-380 [finding that the specific plan involved was inconsistent with the general plan because it would frustrate general plan goals and policies regarding reducing traffic congestion and providing adequate housing without attempting to mitigate its adverse effects]; FUTURE, supra, 62 Cal.App.4th at pp. 1341-1342 [finding a clear inconsistency where the project was not contiguous to certain areas as required by the general plan, noting this is not an issue of conflicting evidence, and rejecting the argument that inconsistency with only one general plan policy was insufficient to reject the project].)

Nor are we persuaded by petitioners parsing of the terms of the various plans to emphasize the encouragement of regional commercial opportunities for Concord, or petitioners contention that the City Council focused on more peripheral, general policies stated in the plans. Again, a reasonable person could conclude from the evidence that Harvests present proposal would aid the shopping centers development, and further other General Plan and Redevelopment goals for central Concord. Nothing indicates that these other goals are more peripheral than those petitioners emphasize.

It is also noteworthy that the Citys own Municipal Code allows religious use, among other things, on the second floor of buildings in the downtown business district (C.M.C. 122-573, subd. (b)), which includes the Harvest Site. Petitioners argue that this ordinance must be ignored because it cannot trump the clear dictates of a general plan. To the contrary, we think the ordinance is consistent with the General Plans goals and objectives, and reflects the flexibility called for in the Plan.

In summary, while no one contended that the church use at the Harvest Site amounted to a retail use, a compelling argument was made to the City Council that, as stated by a ground floor Harvest tenant who will lose his lease under the proposal, but nonetheless supported it, [t]here is a difference between what we want and what we can have. The record indicates that the City Council thought it necessary to be somewhat flexible in considering how to encourage the development of a declining downtown shopping center under the existing circumstances. Its findings reflect that it considered these circumstances, as well as the terms the General Plan and Redevelopment Plan, thoroughly before approving Harvests present proposal. We conclude there was substantial evidence to support the City Councils findings.

C. Public Health, Welfare and Property Finding

Petitioners also contend that there is no substantial evidence to support the City Councils finding, pursuant to the Citys Municipal Code, that the church use of the Harvest Site will not be detrimental to the health, safety, peace, morals, comfort and general welfare of the persons residing or working in the neighborhood, or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the city. (C.M.C. 122-53, subd. (4).) Petitioners contend that the only evidence in the record indicates that the proposed use would be detrimental to the comfort and general welfare of relevant persons, property, and improvements. They refer to the statements from property owners at the center, local business owners, and real estate brokers that the proposed use would negatively impact the existing retail tenants and the ability of the City to attract new retail tenants to the center. They also refer to projections of parking problems at the center and the staff reports to the Planning Commission and City Council.

These arguments ignore the substantial evidence that we have already reviewed in part II.B.3, ante. Once more, they ask us to reweigh the evidence, which we will not do.

DISPOSITION

The judgment is affirmed. Each party is to bear their own appeal costs.[13]

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Lambden, J.

We concur:

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Kline, P.J.

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Haerle, J.

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[1] Sinclair and May C. Louie, Trustees for The Louie 1992 Family Trust, were petitioners below and parties to the notice of appeal filed on September 16, 2005. However, they have not submitted any briefs to this court, and petitioners state that they have sold their interest in property at the shopping center.

[2] Petitioners do not raise on appeal the CEQA issues addressed by the court below in its written decision.

[3] As already noted, petitioners state that Sinclair and May C. Louie, Trustees for The Louie Family Trust, have sold their interest in property at the shopping center, and they have not participated in this appeal. However, under the circumstances, Louies statements, if they had sufficiently raised the relevant issues, would be enough to defeat an exhaustion of administrative remedies argument here. (See Leff v. City of Monterey Park (1990) 218 Cal.App.3d 674, 681 [administrative steps taken by any one plaintiff applied to all because they shared a community of interest].)

[4] For example, petitioners cite Louies hearing statement that [s]ince this issue has already been decided, we cannot understand why more taxpayer money will be wasted addressing this issue again. Valuable and critical tax revenue should not be wasted.

[5] In our prior opinion, we rejected Harvests argument that the Citys decision implicated a fundamental vested right, i.e., their right to practice religion, in determining we were to follow a substantial evidence standard of review.

[6] Although the heading and thrust of petitioners collateral estoppel argument argues that the City is barred from purportedly relitigating issues previously determined, they also assert that Harvest is bound under the same doctrine. This too is incorrect for the same reasonthe previously litigated issues were not identical to those presented in the present action.

[7] Petitioners also argue that the City was prohibited from determining in its appeal process that Harvests latest proposal was appropriate because this contradicted the Citys prior position in court. Petitioners contend the City has made a mockery of the first judicial process, and undermined the credibility of its subsequent quasi-judicial process and the validity of legal documents such as general plans themselves. We reject this argument for the same reasons as those stated above.

[8] Petitioners cite a staff report in the record which refers to these designations in the General Plan, but the pages cited in that report do not make clear that they apply to the shopping center.

[9] In their briefs, petitioners refer to Action Plan excerpts contained in the record, rather than the Plan itself. The parties do not contest these excerpts.

[10] We take judicial notice of the municipal laws referred to herein pursuant to Evidence Code sections 452, subdivision (b) and 459.

[11] The City Council clearly considered the Planning Commission evidence, as seen by statements from Councilmembers Bonilla and McManigal and Mayor Allen.

[12] Harvests pastor addressed concerns about Sunday morning parking, the most significant parking day under the present proposal, indicating that the church has experience in managing parking issues, that they planned to leave spaces open in front of all of the merchants, and that if need be, adequate parking could be found outside of the shopping center in the future.

[13] Respondent asks without reference to authority or the record that we remand the matter to the trial court with such instructions to have the City confirm or issue the Churchs Zoning Administrators Permit Application. The remand should consider the award of costs, and suggest the trial court could consider an award of attorney fees to the Real Party In Interest here [Harvest Church] based on the lack of substantiality to this appeal. We decline to do so.