Land Use Preservation Def. Fund v. County of LA

Filed 3/8/07 Land Use Preservation Def. Fund v. County of LA CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Appeal from a judgment of the Superior Court of Los Angeles County, Dzintra Janavs, Judge presiding. Affirmed.

Cox, Castle & Nicholson LLP, Stanley W. Lamport, and James R. Repking, for plaintiffs and appellants.

Fox & Sohagi, LLP, Deborah J. Fox, Philip A. Seymour; Office of the County Counsel, Raymond J. Fortner, Jr., County Counsel, Elaine M. Lemke, Principal Deputy County Counsel, and Lawrence L. Hafetz, Principal Deputy County Counsel, for defendants and respondents.

INTRODUCTION

Plaintiffs and appellants Land Use Preservation Defense Fund and Anne Hoffman (collectively Land Use) sued Los Angeles County (County) and its Board of Supervisors (Board) seeking a writ of mandate preventing the County from enforcing a recently enacted zoning ordinance that restricted development in the Santa Monica Mountains by imposing limitations on grading and development on significant ridgelines. Land Use alleged the new zoning ordinance was void because it was inconsistent with the Countys applicable general plan based on a Grandfather Clause in the plan that states, Existing legal lots are not affected and may be developedfollowing current development requirementsregardless of lot size. Land Use also contended that the ordinance was void because the County had failed to prepare a supplemental environmental impact report (Supplemental Report) prior to enacting the ordinance, pursuant to the California Environmental Quality Act (CEQA).[1]

At the hearing on Land Uses motion for writ of mandate, the trial court, after admitting the entire administrative record, ruled that the Countys determination that the new ordinance was consistent with the general plan was not arbitrary or capricious. It also found that the Countys determination that the ordinance did not require a Supplemental Report was supported by substantial evidence from the administrative record. Accordingly, the trial court denied Land Uses motion and entered judgment in favor of the County and the Board.

Land Use renews on appeal both of the arguments it made in the trial court concerning the ordinances alleged inconsistency with the general plan and the Countys failure to prepare a Supplemental Report. After reviewing the relevant portions of the administrative record, we hold that (1) the Countys consistency determination was not arbitrary or capricious and that the Grandfather Clause cannot reasonably be interpreted to foreclose the applicability of future zoning regulations, and (2) substantial evidence supported the Countys determination that a Supplemental Report was not required under CEQA. We therefore affirm the judgment of the trial court.

FACTUAL BACKGROUND

A.The North Area Plan

On October 24, 2000, the Board adopted the Santa Monica Mountains North Area[2]Plan (North Area Plan). The North Area Plan is a component of the Los Angeles County General Plan. All of its goals, policies, standards, and implementing actions must be consistent with the county-wide chapters and elements of the General Plan. The North Area Plan stated land use goals and policies that restricted land use in the planning area. Among other things, the North Area Plan contained express policies that limited the grading of hillsides and development on ridgelines.

B. The Grandfather Clause

The County included a Grandfather Clause in the North Area Plan that described certain limitations on the Plans application. The Grandfather Clause provided that [a]ll legally established uses in existence at the time of adoption of this North Area Plan are deemed to be consistent with this plan. Existing legal lots are not affected, and may be developedfollowing current development requirementsregardless of lot size.Applications requesting expansion of such uses, however, which are not consistent with the goals and policies of the North Area Planonce it is adoptedwill be required to file for an amendment to the Plan to proceed. Land division applications must meet the following general plan consistency requirements: [] Applications pending, and deemed complete, as of June 23, 1999: Must be found consistent with the Malibu/Santa Monica Mountains Interim Area Plan. [] Applications pending, but not deemed complete, as of June 23, 1999 as well as all applications filed on or after June 23, 1999: Must be found consistent with the plan in effect at the time of final County approval of tentative map. [] Other discretionary applications (such as zone changes, use permits, oak tree permits) must be found consistent with the plan in effect at the time of final County approval.

During the October 24, 2000, public meeting at which the Board considered the North Area Plan, Supervisor Zev Yaroslavsky engaged in the following exchange with Supervisors Michael Antonovich and Don Knabe: [] Mr. Antonovich: Okay. So in no way is this going to put additional delays on [conditional use permits] is what were saying? [] Mr. Stark [a Department of Regional Planning representative]: I would certainly hope not, No. [] Mr. Knabe: Well, what does I would certainly hope not mean? [] Mr. Stark: Well, this is not a zoning document and it doesnt regulate how discretionary applications are processed. [] Mr. Antonovich: Do we have a guarantee that there [are] no additional regulatory impediments being imposed? [] Mr. Stark: There are policies that are changing, but there are no regulatory changes. [] Mr. Yaroslavsky: Lee, I think the question hes asking is there anything [in] this plan which would require a conditional use permit or other kind of discretionary process that are now not currently required? [] Mr. Stark: No. Not to my knowledge, no. [] Mr. Yaroslavsky: Okay, then the answer is no. [] Mr. Stark: The answers no.[3]

C. The Establishment of the North Area Community Standards District

On August 20, 2002, the Board established the North Area Community Standards District (North Area CSD).[4]The stated purpose of the North Area CSD was to implement the goals and policies of the Santa Monica Mountains North Area Plan in a manner that protects the health, safety, and welfare of the community, especially the surrounding natural environment. (Los Angeles County Code,  22.44.133.) Thus, with the establishment of the North Area CSD, the County had commenced implementation of the goals and policies of the North Area Plan.

D. The Ridgeline Ordinance Amending the North Area CSD

On December 7, 2004, the Board adopted a grading and ridgeline ordinance that amended the North Area CSD (Ridgeline Ordinance). The Ridgeline Ordinance created permitting requirements relating to grading and imposed vertical and horizontal setbacks for developments near significant ridgelines that applied to all lots in the North Area, including legal lots in existence when the North Area Plan was adopted.[5] The Ordinance provided in pertinent part: A conditional use permit [(CUP)] as provided in Part 1 of Chapter 22.56 shall be required for any grading on a lot or parcel of land, or in connection with any project, that exceeds 5,000 cubic yards of total cut plus total fill material. It further provides: b. The highest point of a structure that requires any permit shall be located at least 50 vertical feet and 50 horizontal feet from a significant ridgeline, excluding chimneys, rooftop antennas, wind energy conversion systems, and amateur radio antennas. [] c. Where structures on a lot or parcel of land cannot meet the standards prescribed by [the foregoing subsection], a variance as provided in Part 2 of Chapter 22.56 shall be required.

E. The Environmental Review of the Ridgeline Ordinance

The North Area Plan was part of a regional planning effort, known as the Ventura Freeway Corridor Areawide Plan [(Corridor Plan)] undertaken by the County [and] the Cities of Agoura Hills, Calabasas, Hidden Hills, and Westlake Village . . . . The objective of the effort was coordinated long-range planning and achievement of a consistent statement of growth and environmental management policy between the participating agencies. As part of the Corridor Plan, the County certified a Final Environmental Impact Report (FEIR) that also served as the environmental document for the North Area Plan. The FEIR found that the development allowed by the Corridor Plan and North Area Plan would have various environmental impacts that could be mitigated to less than significant levels, but that there would be three significant and unavoidable environmental impacts relating to transportation, air quality, and loss of open space. The County, however, determined that the economic, social, and other considerations of the [Corridor and North Area Plans] outweighed the unavoidable adverse effects of the project.

In establishing the North Area CSD in 2002, the County adopted a negative declaration based on the FEIR, i.e., the County determined that the zoning provisions of the CSD would not have a significant effect on the environment. Two years later, in connection with the public hearings on the proposed Ridgeline Ordinance, the County Regional Planning Committee determined that the negative declaration adopted in response to the North Area Plan CSD still applies and a new environmental analysis is not necessary [to enact the Ridgeline Ordinance]. In June 2004, however, a group of property owners appealed the negative declaration to the Board. On August 10, 2004, the Board directed the Department of Regional Planning (Planning Department) to reexamine the environmental review conducted for the . . . [Ridgeline Ordinance] and take any action deemed appropriate to ensure compliance with CEQA . . . .

In response, Planning Department staff produced a 100 page Addendum to the [Corridor Plan FEIR] and Initial Study (Addendum).[6] The staff report accompanying the Addendum states, An [Addendum] was prepared for the project to determine whether amending the [North Area CSD] to adopt the [Ridgeline Ordinance] would result in significant new or substantially more severe environmental impacts than were addressed in the FEIR, thus triggering the need for a supplemental or subsequent EIR or negative declaration (CEQA Guidelines  15162 and 15163). The report concluded that [b]ased on the [Addendum], staff determined that none of the conditions described in CEQA Guidelines Section 15162 have occurred and only minor technical changes and additions to the FEIR are necessary. In such instances, CEQA Guidelines Section 15164 mandates that an Addendum be prepared.

The Addendum identified certain impacts to the environment that could potentially result from the Ridgeline Ordinance on a site- and project-specific basis, including potential impacts to biological resources, water quality, and drainage. The primary concern was that by pushing development down from ridgelines and onto slopes, the Ridgeline Ordinance would cause more extensive development on those slopes than would have otherwise occurred at those locations.

As to biological resources, the Addendum provided that, [a]s a result of prohibiting development on significant ridgelines, there will be an increased tendency for development permitted by the North Area Plan that would otherwise have occurred on significant ridgelinesto impact certain sensitive plant types that typically occur in these habitat types or topographic features, unless mitigation measures are implemented. In addition, where these areas are occupied by sensitive animal life, it could be expected that prohibiting development on significant ridgelines will increase the potential for specific sensitive animal species to be displaced or succumb to construction due to direct impacts, or otherwise be impacted due to competition from limited adjacent holding capabilities, potentially leading to significant biological resource impacts in the absence of mitigation measures. Consequently, to the extent that future development permitted by the North Area Plan could have occurred along significant ridgelines, the proposed [Ridgeline Ordinance] could change the diversity and number of species, which could be significant, depending on the extent of the proposed development and application of mitigation measures within these areas.

As to water quality, the Addendum provided that [p]rojects allowed by the proposed [Ridgeline Ordinance] pursuant to the North Area Plan will result in development and construction activities that could impact water quality. The proposed [Ridgeline Ordinance] establishes vertical and horizontal setbacks from significant ridgelines. This provision would cause new development that would otherwise occur on significant ridgelines to be located along slopes, potentially requiring more extensive grading to create building pads, but reducing the amount of grading required to create access to significant ridgelines in areas where existing roadways run along lower slopes or in canyon or valley bottoms. Modifications to the ground surface due to such construction activities could alter local absorption rates, drainage patterns, and runoff characteristics on a site-and project-specific basis.

As to drainage, the Addendum provided that the vertical and horizontal setbacks from significant ridgelines could cause development that would otherwise occur on significant ridgelines to occur closer to canyon bottoms where drainages are located. The Addendum further provided that [m]odifications to the ground surface due to such construction activities could alter drainage patterns, on a project-specific basis.

In response to the potential impacts on biological resources, water quality, and drainage, the Addendum identified certain measures that would mitigate those impacts. As to biological impacts, the Addendum provided that [a] number of features of the North Area Plan and the proposed [Ridgeline Ordinance] will reduce the potential biological resources impacts of the proposed [Ridgeline Ordinance] to a less than significant level. First, the proposed [Ridgeline Ordinance] establishes provisions for situations where ridgeline setback requirements would increase the potential for substantial habitat damage or destruction. In these cases, the proposed [Ridgeline Ordinance] and County code provide relief via the variance process,and permit granting of a variance to allow development on a significant ridgeline if such development is determined to be more protective of habitats. Such variances would thereby avoid significant impacts to biological resources. [] Second, the proposed [Ridgeline Ordinance] ensures that the biological mitigation measures contained in the North Area Plan and the FEIR will be implemented by the development projects that are allowed by the proposed ordinance pursuant to the provisions of the North Area Plan. []  Development allowed by the proposed [Ridgeline Ordinance] will be subject to the provisions of the North Area Plan,including the policies set forth in Section IV. B of the North Area Plan along with the FEIR, ensuring that the biological resource protection provisions of the North Area Plan and related FEIR mitigation measures are implemented. In addition, by requiring a CUP for development permitted by the North Area Plan that involves grading in excess of 5,000 cubic yards of total cut plus total fill, the proposed [Ridgeline Ordinance] ensures that such projects will be subject to further CEQA review.

The Addendum identified the same three measures to mitigate any water quality and drainage impacts. As to water quality, the Addendum explained [d]evelopment allowed by the proposed [Ridgeline Ordinance] pursuant to the North Area Plan will be consistent with the provisions of the North Area Plan and will be required to implement the provisions of the North Area Plan pertaining to water quality protection and related mitigation measures contained in the Section IV-B of the FEIR. As to drainage, the Addendum stated that [t]o avoid potentially significant impacts associated with development disrupting local drainage patterns as a result of a required setback from a significant ridgeline, the proposed [Ridgeline Ordinance] and County Code provide relief through the variance process. Through this process, an applicant may be granted a variance that allows development on a significant ridgeline if it is determined that developing in areas other than along the ridgeline lead to substantial environmental damage. The Addendum also concluded that, as to both the water quality and drainage impacts, the CUP required for grading over 5,000 cubic yards of total cut and fill would allow for further CEQA review to mitigate any impacts.

PROCEDURAL BACKGROUND

The Board adopted the Ridgeline Ordinance on December 7, 2004, by a vote of three to two, and it became effective January 6, 2005. On January 5, 2005, Land Use filed its Petition for Writ of Mandate and Complaint for Declaratory Relief. The first and second causes of action for writ of mandate were based on the assertion that the Ridgeline Ordinance was inconsistent with the Grandfather Clause and the stated policies of the North Area Plan. The third cause of action for writ of mandate was based on the Countys failure to prepare a Supplemental Report in alleged violation of CEQA. The fourth cause of action for declaratory relief sought a declaration of the parties respective rights and duties under the Grandfather Clause of the North Area Plan.

On January 27, 2006, the trial court held a hearing on Land Uses motion for writ of mandate. Prior to hearing argument, the trial court provided the parties with a detailed tentative ruling. In the tentative ruling, the trial court found that the Grandfather Clause was not entirely clear and unambiguous, but that the term current development requirements does not refer to requirements existing prior to the enactment of the Plan. The trial court interpreted the Grandfather Clause as providing that future development and applications must conform to the plans and standards in effect at the time of final county approval. The trial court also interpreted the exchange between Board members Yaroslavsky, Antonovich, and Knabe as referring to whether the North Area Plan would cause further delays to pending applications for CUPs, not whether existing lots with no pending CUP applications would be immune from future zoning requirements enacted to implement the policies of the North Area Plan. The trial court concluded that the North Area Plan was adopted primarily for the purpose of protecting the remaining undeveloped properties of the Santa Monica Mountains from improvident development, the goals being to protect existing environmental resources and qualities of the area from avoidable damage. . . . [Land Uses] interpretation is not reasonable as it would, in essence, mean that the North Area Plans provisions and future implementation of regulations would not apply to any existing legal lot.

As to Land Uses contention that the County could not proceed by way of an Addendum, but rather was required under the applicable CEQA Guidelines to prepare a Supplemental Report, the trial court ruling concluded that [n]o [Supplemental Report] was required here. According to the tentative ruling, the Countys conclusions that the environmental impacts identified in the Addendum would be mitigated to a level of insignificance [were] supported by substantial evidence in the record.

After admitting the administrative record into evidence and hearing extensive oral argument, the trial court stated that the tentative ruling denying the motion for a writ of mandate would become its statement of decision. On March 3, 2006, the trial court entered judgment on its statement of decision.

DISCUSSION

A. Standards of Review

Land Use contends that the Grandfather Clause must be interpreted in a way that renders it inconsistent with the Ridgeline Ordinance. Although interpretation of local legislative enactments is a question of law, courts accept the agencys interpretation unless it is clearly erroneous or unauthorized. (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1193.) As with the interpretations of statutes in general, portions of a general plan should be reconciled if reasonably possible. (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 244.) Courts will defer to the enacting agencys interpretation of its own general plan (id. at p. 449) because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them. (Save Our Peninsula Committee v. MontereyCountyBd. of Supervisors (2001) 87 Cal.App.4th 99, 142.) It should be noted that consistency determinations by local agencies are governed by an arbitrary and capricious standard of review. (Endangered Habitats League, Inc. v. County of Orange(2005) 131 Cal.App.4th 777, 782 [We review decisions regarding consistency with a general plan under the arbitrary and capricious standard].) Under this standard the inquiry is whether the decision is arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair. [Citations.] . . . [W]e defer to an agencys factual finding of consistency unless no reasonable person could have reached the same conclusion on the evidence before it. [Citation.] (Ibid.)

Land Uses challenge under CEQA to the propriety of the Addendum is governed by the standard of review set forth in Public Resources Code section 21168.5. Under that statute, the Countys decision to prepare the Addendum, as opposed to a Supplemental Report, will not be disturbed unless Land Use can show a prejudicial abuse of discretion. (Ibid.) Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. (Ibid.)

B.                The Countys Determination Was Not Erroneous

Land Use contends that certain language in the Grandfather Clause and the comments of the Supervisors during a public hearing demonstrate the Boards intent to exempt all legal existing lots from any future regulations implementing the goals and policies of the North Area Plan. Relying on the plain meaning rule[7]of statutory construction, as well as its extrinsic evidence of the intent of the Board, Land Use focuses on a single phrase in the second sentence of the Grandfather Clause―following current development requirements―and concludes that the regulations in effect at the time the North Area Plan became effective in 2000 govern the future development of all legal lots in existence when the Plan was enacted.

Land Use argues that the Ridgeline Ordinance, on its face, conflicts with the policy reflected in the Grandfather Clause because the phrase current development requirements plainly refers to the development requirements that were then current, i.e., in effect at the time the County enacted the North Area Plan in 2000. According to Land Use, the Ridgeline Ordinance conflicts with the Grandfather Clause because the Ordinance purports to apply to all existing lots, including those in existence in 2000 that were allegedly exempt from such new land use regulations.

Land Uses interpretation of the phrase current development regulations, when read in the context of the entire North Area Plan, is unreasonable. As noted, it is undisputed that the North Area Plan is part of the Countys general plan. All counties and cities must adopt a general plan for the physical development of their land. (Gov. Code, 65300.) The general plan functions as a constitution for all future developments, and land use decisions must be consistent with the general plan and its elements. [Citation.] (Endangered Habitats League, Inc. v. County of Orange, supra, 131 Cal.App.4th at p. 782.) Zoning laws, ordinances, rules, and regulations implement the policies and goals of the general plan. (SeeGov. Code, 65800.) As a result, zoning laws, ordinances, rules, and regulations must be consistent with an adopted general plan. (Gov. Code, 65860.) A zoning ordinance that is inconsistent with the general plan is invalid when passed. . . . (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 541 [The tail does not wag the dog. The general plan is the charter to which the [zoning] ordinance must conform].)

Under the plain meaning rule of statutory interpretation, the Grandfather Clause is arguably susceptible to Land Uses interpretation. But the plain meaning rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with the other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in the light of the statutory scheme [citation]; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation]. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735.)

The Grandfather Clause is part of the North Area Plan and, as such, the Clause must be interpreted in the context of the overall purposes and policies of that Plan. Among the many policy statements and goals specified in the plan are the following concerning grading: New development projects shall be designed to protect significant natural features, and to minimize the amount of grading. [] . . . [] Grading in areas of over 50% slope shall be severely limited to those circumstances where clustering is not possible and when demonstrated safety hazards and environmental degradation . . . will be avoided.

In addition, the North Area Plan sets forth the following policies and goals concerning ridgeline development: Ensure that the overall project design/layout of hillside developments adapts to the natural hillside topography and protects ridgelines and natural-appearing views from surrounding vantage points such as highways, parklands and overlooks . . . . [] Prohibit skyline development and require that structures be located sufficiently below ridgelines so as to preserve unobstructed views of a natural skyline . . . . (Footnote omitted.) [] Require that structures within hillside development areas be sited in a manner that will: [] . . . [] c. preserve vistas of natural hillside areas and ridgelines from designated public places, including streets and highways. [] Preserve areas of diverse topography with large areas unbroken by man-made slopes, and long-range vistas of open ridgelines and mountain slopes . . . . []  Limit ridgeline development occurring on hillsides and mountain areas, following closely those North Area Plan policies and standards designed to protect the resources and views of these areas.

These policy statements evidence an intent to limit grading and ridgeline development in the Santa Monica Mountains within the jurisdiction of the North Area Plan. Land Uses interpretation of the Grandfather Clause would directly conflict with those stated policies. Under that interpretation, every legal, but undeveloped lot in existence at the time the North Area Plan was adopted in 2000 would be exempt from future regulations implementing the foregoing policies, thereby rendering those policy statements largely useless and ineffectual. In adopting the North Area Plan, the County clearly envisioned the subsequent promulgation of zoning and other regulations that would effectively implement the Plans stated policies, including the policies adopted to limit the grading of hillsides and development on ridgelines. The Ridgeline Ordinance is just such a regulation. As such, it is consistent with the overall North Area Plan, and its enactment would have been contemplated by the Board at the time it adopted that Plan.

Under applicable rules of statutory interpretation, we must interpret the phrase current development requirements in a way that harmonizes the Grandfather Clause with the apparent intent of the North Area Plan, rather than focus on a single word or sentence. (See Lungren v. Deukmejian, supra, 45 Cal.3d at 735.) We must also prefer the more reasonable of two proffered interpretations, and the Countys interpretation of that language is more reasonable than Land Uses in light of the plain and unequivocal policy statements in the Plan. (Ibid. [if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed].)

The sentence upon which Land Use relies deals with the future development of existing lots, not lots that were under development at the time the North Area Plan was adopted. It is therefore reasonable to construe that sentence as providing that future development of existing, but undeveloped lots will be permitted under whatever development requirements are current at the time of that future development. (See Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735 [The intent [of a statute] prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act].)

In addition, that sentence, when read in its entirety, can be fairly interpreted as referring to the future development of existing lots that would be considered undersized under future minimum lot size requirements implementing the policies of the North Area Plan. Without the following current development requirements clause, the sentence reads, Existing legal lots are not affected and may be developed regardless of lot size. Thus, because the North Area Plan included new policies about increasing the minimum size requirements for lots to be developed in the future,[8]that sentence merely clarifies that existing lots―that would otherwise be considered undersized or nonconforming under future lot size requirements―would not be effected by the Plan and could still be developed despite any nonconformance with future lot size requirements.

The Countys interpretation is also entitled to deference. [C]ourts accord great deference to a local government agencys determination of consistency with its own general plan, recognizing that 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. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 677-678.) The Boards reading of its own General Plan comes to this court with a strong presumption of regularity. [Citation.] In evaluating whether the Board abused its discretion, we are obligated to give its finding of consistency great deference, without substituting our own views for those of the Board, or reweighing conflicting evidence in the record. [Citations.] (Id. at p. 679.)

The County enacted the Ridgeline Ordinance and made it applicable to all existing lots. In doing so, it made a land use decision under the auspices of the North Area Plan. Implicit in the passage of the Ridgeline Ordinance is the finding that it is consistent with the North Area Plan because, as a matter of law, all such zoning ordinances must be consistent with the general plan. (Gov. Code, 65860) The Board was in the best position to determine whether the Ridgeline Ordinance was consistent with the North Area Plan, and its implicit conclusion of consistency through the enactment of the Ridgeline Ordinance is therefore entitled to great deference. (See No Oil, Inc., v. City of Los Angeles, supra, 196 Cal.App.3d at pp. 248-249.)

Because the intent of the North Area Plan is apparent from the policy statements in the Plan itself, there is no need to resort to extrinsic evidence of intent, such as the Board meeting exchange among the Supervisors upon which Land Use relies. The policy statements in the Plan are express and unequivocal, and they evidence an intent to regulate the future development of lots in the North Area to minimize grading and limit development on ridgelines. No distinction is made in the North Area Plans policy statements between existing lots, and lots that may come into existence in the future. Rather, the Plan speaks to future development generally. Moreover, even assuming the Board members respective comments can be construed as Land Use contends, Land Use cites to no authority that would have compelled the trial court to alter or vary the otherwise unambiguous policy statements in the North Area Plan based upon such extrinsic evidence. (See No Oil, Inc. v. City of Los Angeles, supra, 196 Cal.App,3d at p. 248 [in construing legislation, a court does not consider the motives or understanding of individual legislators].)

Even assuming the Board members comments have some bearing on the interpretation of the Grandfather Clause, they are ambiguous, at best. When read in context, those comments can reasonably be construed as relating to Supervisor Antonovichs prior questions about delays on pending CUP applications.[9] It is also apparent from the exchange that Mr. Stark, a Planning Department representative, qualified his answers by pointing out that the proposed Plan, by its nature, was intended to change land use policies in the North Area, but did not operate to change existing zoning regulations.[10] In doing so, he left open the question of whether subsequent regulations enacted to implement those new policies would affect the existing CUP process.

The Countys interpretation of the Grandfather Clause in the North Area Plan is reasonable and appropriate. Therefore, the Countys finding that the Ridgeline Ordinance was consistent with the North Area Plan was not arbitrary or capricious.

C.                There Is Substantial Evidence in the Record to Support the Countys Conclusion That A Supplemental Report Was Not Necessary

Land Use contends that because the Addendum identified significant environmental impacts that potentially could arise from enforcement of the Ridgeline Ordinance, the County was required as a matter of law under CEQA to prepare a Supplemental Report. According to Land Use, the Countys failure to prepare a Supplemental Report requires this court to order the County to void the Ridgeline Ordinance and to take such further actions as are necessary to comply with CEQA.

To support this assertion, Land Use points to certain statements in the Addendum concerning potential adverse environmental impacts, characterizes them as findings, and concludes that under Public Resources Code section 21166 the County was required to prepare a Supplemental Report. The Addendums ultimate conclusions, however, were that the potential adverse impacts identified would be mitigated to less than significant levels. Those conclusions concerning mitigation are what affect the analysis of whether a Supplemental Report was required, and they were based on factual determinations that County staff members were in the best position to make.

Therefore, the issue is not whether the County proceeded in a manner proscribed by law (Pub. Resources Code, 21168.5) in determining whether a Supplemental Report was required. The issue is whether the [administrative] record as a whole contains substantial evidence to support a determination that the changes in the project [or its circumstances] were not so substantial as to require major modifications to the EIR. (River Valley Preservation Project v. Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154, 166 (River Valley).) The question whether [a Supplemental Report] is required with respect to a proposed project is governed by [Public Resources Code] section 21166 . . . . (Ibid.) An EIR is required in the first instance whenever a project may have a significant effect on the environment. ([Pub. Resources Code,] 21151.) On the other hand, [a Supplemental Report] is prepared under [Public Resources Code] section 21166 only where it is necessary to explore the environmental ramifications of a substantial change [in the project] not considered in the EIR. [Citations.] (Id. at p. 167.)

Relying on Mira Monte Homeowners Assn. v. County of Ventura (1985) 165 Cal.App.3d 357 (Mira Monte), Land Use argues that a Supplemental Report is required based on the Addendums alleged findings that new and significant environmental impacts will result from the Ridgeline Ordinance. In that case, the environmental impact report (EIR) for a residential development project concluded that the project would not encroach upon an adjacent wetlands area and vernal pool that was the habitat of rare plant species. (Id. at pp. 359, 360, fn. 4.) Just prior to the hearing on final certification of the EIR, the county discovered that a street shown in the proposed project would encroach upon the wetlands. (Id. at pp. 362-363.) At the hearing on the certification of the EIR, expert testimony established that rare plant species, including some not identified in the EIR, would be impacted by the encroachment. (Id. at p. 363.) Following the hearing, the county certified the EIR and tentatively approved the project. (Ibid.) Mira Monte Homeowners Association filed a petition for writ of administrative mandamus challenging the certification of the EIR and the approval of the development project, but the trial court denied the petition. (Id. at p. 362.)

The Court of Appeal reversed, holding that the subsequent discovery of the encroachment and its potential impact on rare plant species required the preparation of a Supplemental Report under Public Resources Code section 21166 and its implementing guidelines. (Mira Monte, supra, 165 Cal.App.3d at pp. 364-365.) The court based its holding on the conclusion that the street encroachment on the wetlands was a change in circumstances. It meant that the significant impact upon the wetlands would be more severe than previously recognized by the EIR. By definition, that unaddressed encroachment involved a new significant effect because it eliminated a portion of the wetlands thereby restricting the range of a rare or endangered plant. (Id. at p. 364.) Thus, Mira Monte involved a fact pattern different from the instant case. There, the county discovered a material factual inaccuracy in the EIR, just before it was certified, that resulted in a new significant impact on a rare plant species, which impact had not been studied, addressed or contemplated in the EIR.

Land Uses argument based on Mira Monte, supra, 165 Cal.App.3d 357, is misplaced. It is premised on the faulty assumption that the County made specific findings in the Addendum―similar to the ones made in Mira Monte―that the Ridgeline Ordinance constituted a substantial change in the scope of the original project, i.e., the North Area Plan, that would cause new environmental impacts not contemplated or considered in the FEIR. That assumption, however, is not supported by the record.

First, it is not clear, as Land Use contends, that the FEIR failed to consider the environmental impacts that would result from placing restrictions on grading and ridgeline development, such as the three impacts identified in the Addendum. As noted above, the North Area Plan specifically and repeatedly stated policies concerning limitations on grading and development on ridgelines in the North Area. Those policies were unambiguous, and there is nothing in the Addendum to suggest that the FEIR did not take them into account when it concluded that numerous potential impacts could be mitigated, and that the three unavoidable impacts―relating to transportation, air quality, and loss of open space―were outweighed by the economic, social, and other considerations of the [Corridor and North Area Plans] . . . . To the contrary, the FEIR reflects that the County considered the impact of the North Area Plan on both Water Resources and Biological Resources, and concluded that the Mitigation Measures specified in the FEIR would reduce those impacts to less than significant levels. These facts distinguish this case from Mira Monte, supra, 165 Cal.App.3d 357,in which the county discovered a material factual inaccuracy in the EIR and concluded that it would have a new significant impact that had not been considered in the EIR. Here, the North Area Plan specifically contemplated restrictions on ridgeline development and grading, and the FEIR studied the effects of that Plan on biological resources and water resources.

In addition, Land Uses assertion that the Addendum found three significant impacts that were not considered in the FEIR is contradicted by the express terms of the Addendum itself. For example, section 3.2.4 of the Addendum, entitled Biological Resources, provides: The following analysis compares the proposed project as described in Section 2.3 [i.e., the Ridgeline Ordinance] with the FEIR [for the North Area Plan] and indicates that there are no new significant biological resource impacts that may be caused by implementation of the proposed project. Major changes to the final EIR are not required. Similarly, section 3.2.8, entitled Hydrology and Water Quality, provides: The following analysis compares the proposed project as described in Section 2.3 [i.e., the Ridgeline Ordinance] of this document with the FEIR and indicates that there are no new significant hydrology or water quality impacts that may be caused by implementation of the proposed project. Major changes to the final EIR are not required. Therefore, contrary to Land Uses assertion, the County did not find that the Ridgeline Ordinance constituted a substantial change in the project, i.e., the North Area Plan, or that the impacts discussed in the Addendum were new and never addressed in the FEIR.

Notwithstanding the clarity of the Addendum on this issue, Land Use urges us to question the wisdom or correctness of the Countys conclusions concerning mitigation. As noted, however, those conclusions are reviewed under a substantial evidence standard. (Pub. Resources Code, 21168.5.) That standard limits the scope of our inquiry on review, and does not allow us to judge the wisdom of the agencys action in approving the Project or pass upon the correctness of the EIRs environmental conclusions. (River Valley, supra, 37 Cal.App.4th at p. 168.) [An appellate courts] function is simply to determine whether the agency followed proper procedures and whether there is substantial evidence supporting the agencys determination that the changes in the Project (or its circumstances) were not substantial enough to require [a Supplemental Report]. (Ibid.)

In the Addendum, Planning Department staff concluded that the Ridgeline Ordinance expressly provided for both a variance and a CUP process, and that those procedural mechanisms would operate to allow exceptions to the grading and setback limitations in the Ridgeline Ordinance. According to staff, the availability of those mechanisms would serve to mitigate the three potential environmental impacts identified in the Addendum. Staff also concluded that the mitigation measures specified in the FEIR would further serve to mitigate the effects of the three impacts. Thus, the record reflects that the County staff, presumably experienced in environmental matters, was familiar with the available measures to mitigate potential impacts, considered those measures as they related to each potential impact, and concluded that they would serve to reduce those impacts to less than significant levels.

Land Use questions the effectiveness of the mitigation measures identified in the Addendum. It contends that variances and future CUPs regulating the development of a portion of the undeveloped lots in the North Area are not valid and effective mitigation measures. The record, however, does not establish that these mechanisms cannot validly be used to minimize or avoid impacts. (Cal. Code Reg., tit. 14, 15370 (CEQA Guidelines).) Land Use further contends that the numerous mitigation measures in the North Area Plan and FEIR have not been implemented by enforceable regulations.

But as noted, we cannot question under the applicable standard of review the wisdom or correctness of the Countys conclusions. (River Valley, supra, 37 Cal.App.4th at p. 168.) There is substantial evidence in the record that all three measures identified by County staff were in place and, according to County staffs interpretation of how those measures would operate, each would function to some extent to reduce the potential adverse impacts to less than significant levels.

Nevertheless, Land Use takes exception to each of the Countys conclusions about mitigation. As to the variance provision of the Ridgeline Ordinance, Land Use contends that it rarely, if ever, would operate as a mitigation measure because a variance to develop on a ridgeline would only be allowed if the landowner could demonstrate that there was no other portion of his lot upon which the project could be built. But there may be other bases for a variance under special or exceptional circumstances.[11] (See Gov. Code 65906; Los Angeles County Code, tit. 22, 22.56.290 [variance granted when there are special circumstances or exceptional characteristics applicable to the property involved].) Moreover, section 5.C. of the Ridgeline Ordinance also provides for a variance if the landowner demonstrates the necessary special circumstances and that development on other locations of his lot would potentially damage or destroy habitats. (Los Angeles County Code, tit. 22,  22.44.133 Although Land Use disagrees that this provision of the Ridgeline Ordinance would serve to mitigate biological impacts, County staff determined otherwise.

As to the Ridgeline Ordinances CUP process―that is available for lot developments requiring more than 5000 cubic yards of grading―Land Use concedes that it could serve to mitigate the identified impacts, but only as to approximately one-half of the lots that would be developed. Again, County staff considered that process an effective mitigation measure, despite the potential that it would not apply to the development of lots that require less than 5000 cubic yards of grading.

As to the mitigation measures in the North Area Plan itself, including the FEIR, Land Use argues that none of them has been implemented by specific zoning regulations, and that they are not self-implementing or otherwise enforceable. Butthe North Area Plan specifically provides that discretionary applications (such as zoning changes, use permits, oak tree permits) must be found [by the County] to be consistent with the plan in effect at the time of final County approval [of a discretionary use permit application]. That language confirms that any CUP, including permits issued under the Ridgeline Ordinances grading provision, would first be reviewed by County staff to ensure that the proposed development was consistent with the various environmental mitigation measures in the North Area Plan and FEIR.The County therefore had factual grounds to conclude that those measures would serve to mitigate the subject impacts. Those factual grounds constitute substantial evidence to support the Countys conclusions concerning the mitigation measures.

Although reasonable minds may differ as to what extent the variance process, the CUP process, and FEIR measures would, in fact, mitigate potential impacts to biological resources, water quality, and drainage, it is not our province to second-guess the County. (See A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1799-1800 [A court may not substitute [its] own judgment for that of the [decision making] agency, and must resolve reasonable doubts in favor of the [agencys] finding and decision].) We therefore decline Land Uses invitation to reweigh the findings and conclusions in the Addendum on the mitigation issue, and hold instead that there is substantial evidence in the record, when read as a whole, supporting the Countys conclusion that no major changes to the FEIR were required.

DISPOSITION

The judgment of the trial court is affirmed and the respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

[1] The California Environmental Quality Act appears at Division 13 of the Public Resources Code, commencing at section 21000. Section 21050 provides, This Division shall be known and may be cited as the California Environmental Quality Act.

[2] The so-called North Area encompasses the unincorporated portion of the Santa Monica Mountains that extends from the coastal zone boundary to approximately the 101 Freeway. The North Area is located in the Third Supervisorial District, and Supervisor Zev Yaroslavsky sponsored the Plan.

[3] The trial court granted Land Uses motion to augment the record with the video tape of the foregoing exchange, and Land Use has lodged the video tape on appeal. Land Use appears to contend that a more accurate version of the foregoing exchange was read into the record of an October 26, 2004, meeting of the Board by Supervisor Antonovich. But the differences between the two transcribed versions of the exchange are not significant enough to warrant a comparison of them here.

[4] The North Area CSD is set forth in Title 22 of the Los Angeles County Code, which is entitled Planning and Zoning. A community standards district is a form of zoning regulation. Community standards districts are established as supplemental districts to provide a means of implementing special development standards contained in adopted neighborhood, community, area, specific and local coastal plans within the unincorporated areas of Los Angeles County, or to provide a means of addressing special problems which are unique to certain geographic areas within the unincorporated areas of Los Angeles County. (County Code, 22.44.090.)

[5] The Ordinance states that it is amending Title 22Planning and Zoning of the Los Angeles County Code, relating to the Santa Monica Mountains North Area Community Standards District (CSD), to establish restrictions for grading and ridgeline development within the CSD.

[6] The record contains two versions of the Addendum, one dated September 24, 2004, bearing the title quoted, and a second version dated November 30, 2004, with a different title. The parties appear to agree that there are no significant differences between the two versions.

[7]Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [Words used in a statute or constitutional provision should be given the meaning they bear in ordinary use].

[8] For example, the Land Use Map portion of the North Area Plan provides that lands designated as Mountain Lands are divided into three categories. Lands within the N 20 category cannot exceed a maximum residential density of one dwelling unit per 20 acres. Lands within the N 10 category cannot exceed a maximum residential density of one dwelling unit per 10 acres. Lands within the N 5 category cannot exceed a maximum residential density of one dwelling unit per 5 acres.

[9] Prior to the question by Supervisor Antonovich that triggered the exchange upon which Land Use relies, he asked Mr. Stark why the [CUP] process [had] taken so long for some of the applicants who had lost their homes in previous disasters that hit the area as presented to us today? He then stated if someone is being denied going through the [CUP] process I would like to know why that delay was imposed? And, at the end of the exchange in issue, Supervisor Knabe asked, How many projects are pending right now that would be impacted by this [proposed plan]?

[10] Specifically, Mr. Stark clarified that this is not a zoning document and it doesnt regulate how discretionary applications are processed. [] . . . [] There are [land use] policies that are changing, but there are no regulatory changes.

[11] Government Code section 65906 provides: Variances from the terms of the zoning ordinances shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification.