Archives: September 2018

Fourth District Court of Appeal Holds City’s Use of Historical Baseline Legally Erroneous

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In Bottini v. City of San Diego (2018) 27 Cal.App.5th 281* the Fourth District Court of Appeal upheld the trial court’s ruling ordering the City of San Diego to set aside its determination that the construction of a single-family home required full environmental review.
In February 2011, the Bottini family purchased Windemere Cottage (“Windemere”). At that time, Windemere’s designation as a historical resource was pending before the city’s historical resources board. Shortly thereafter, the board declined to grant historical status to Windemere. In November 2011, the city’s neighborhood code compliance division determined that Windemere constituted a public nuisance and ordered the Bottinis to demolish the structure. They complied. Then in August 2012, the Bottinis applied for a coastal development permit for the construction of a single-family home on the vacant lot. City staff determined that the project was categorically exempt from CEQA, but on an appeal of the determination, the city council ordered a fuller evaluation of the project using a January 2010 baseline, concluding that the demolition of Windemere was part of the project. The council further concluded that the project was not exempt because the unusual circumstances and historic resources exceptions to the exemption applied. In response to the city council’s decision, the Bottinis filed a petition for writ of administrative mandamus seeking to compel the city council to set aside its decision, as well as a complaint alleging constitutional causes of action. The trial court granted the CEQA petition finding that the demolition of Windemere was not a component of the project and therefore the city’s determination that the project is not categorically exempt lacked substantial evidentiary support. It granted summary judgment in favor of the city as to the constitutional claims. The Bottinis and the city cross-appealed.

CEQA
The court of appeal held that an environmental baseline that presumed the existence of the Windemere cottage, which in reality no longer existed at the time the project was proposed, did not accurately reflect the environmental conditions that would be affected by the project. The court dismissed the city’s allegations that the Bottinis “strong-armed” the city into making a public nuisance determination because there was no evidence to support such an allegation. Moreover, the court found that the public nuisance determination confirmed that the demolition permit served a purpose distinct from and not part of the single-family home under review. Thus, the court concluded that the demolition of the cottage could not properly be considered part of the project.

Using the appropriate baseline, the court held that city erred in concluding that the Class 3 exemption did not apply to the project. The construction of a single-family home on a vacant lot is typically categorically exempt. The court further determined that no exceptions to the exemption applied.

Constitutional Violations
The Bottinis alleged three causes of action for violation of the California Constitution’s takings, equal protection, and due process clauses. Regarding the takings claim, the court applied the test set forth in Penn Central Transportation Co. v. New York City (1978) 438 U.S. 104, 124, concluding that the Bottinis did not have a “reasonable investment-backed expectation” because there was no evidence they intended to demolish the cottage when they purchased the property. Even if they had articulated a distinct expectation to do so, there was no basis to conclude that they had a reasonable expectation that they could demolish the cottage to construct a new residence without undertaking any form of environmental review. The court further found that the Bottinis could not sustain a claim for due process because they did not identify any property interest or statutorily conferred benefit of which the city had deprived them. Finally, with respect to equal protection, the court held that the Bottinis did not meet their burden to show that the city’s decision was not rationally related to a legitimate government interest.

  • Review granted, December 19, 2018.

Fourth District Upholds Negative Declaration, Finding No “Fair Argument” of Land Use Impacts

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In Friends of Riverside’s Hills v. City of Riverside (2018) 26 Cal.App.5th 1137, the Fourth District Court of Appeal upheld the trial court’s conclusion that the City of Riverside properly adopted a negative declaration and was not required to prepare an EIR for a six-unit Planned Residential Development in the city’s Residential Conservation Zone. The court also found that the city did not abuse its discretion by approving the project with six homes on six lots.

In 2015, Real Parties in Interest, Carlton and Raye Lofgren, applied to develop approximately twelve acres of property they owned in the city’s Residential Conservation Zone (RCZ). The RCZ places special requirements on proposed residential development in order to protect the natural landscape in the zone. These requirements include submitting information on the natural slope of lots in the parcel to determine the minimum lot size (the greater the average slope, the larger the minimum lot size), and, ordinarily, a maximum density of 0.5 dwelling units per acre. Projects that qualify as Planned Residential Developments (PRDs) allow smaller minimum lot sizes and higher density. PRDs must be designed to protect and retain the natural topographic features of the site and may cluster homes in less steep areas of the site to protect such features and preserve open space. The Lofgrens also sought a density bonus to allow 0.63 dwelling units per acre by preserving 4.85 acres of the site as managed open space and selecting from a list of “superior design” elements.

As the project moved through the city’s administrative process, the acreage information fluctuated on the maps submitted by the Lofgrens (between just over 12 acres and just over 11 and a half acres) and the design of the site changed. After preparing an initial study, the city issued a negative declaration for the project. Petitioner Friends of Riverside’s Hills (Friends) commented several times during the administrative process concerning the acreage (and thus the number of allowable lots) and density. Twice, the city and/or the Lofgrens amended the project to address Friends’ concerns. Friends also argued that: the city had failed to require the Lofgrens to have a recognized conservation group oversee the open space preservation because an early version of the conditions of approval designated a homeowners’ association, the project would require excessive grading, the natural slope information submitted by the Lofgrens was inconsistent, and the project violated CEQA because it was inconsistent with the city’s zoning and grading ordinances. Ultimately, the city approved the project with the density bonus to allow six single-family homes on six lots ranging from just over a half-acre to just over an acre in size and with average natural slopes ranging from 21% to 29.5 percent.

Friends sought a writ of mandate to set aside the city’s approval and require an EIR. Friends argued that the project did not comply with the RCZ because it failed to cluster the proposed lots on the less steep portions of the site and preserve the natural features. Friends argued that the project would require excessive grading, and that the Lofgrens were required to seek a variance for lots smaller than two acres. Friends also argued that the city abused its discretion by failing to support its determination regarding the natural slope of the proposed lots and by deferring selection of the “superior design” elements to the grading permit stage of development. The trial court found that there was no evidence that the project violated any of the land use provisions identified by Friends and denied the petition. Friends appealed.

On appeal, the court found that the RCZ was adopted by the city for environmental protection purposes, so violating those provisions could create a significant impact on the environment. But, the court found that there was no evidence in the record of any of the land use impacts alleged by Friends. First, Friends claimed that the project might violate the RCZ in the future, if it did not buildout as proposed in the PRD. The court found this to be speculation because the Lofgrens had not yet submitted final plans for the location of the homes. The court also found that while the RCZ required site design to be sensitive towards the natural topographic and habitat features of the site, clustering homes in less sensitive and steep portions of the site was one way that the applicant could choose to demonstrate the required sensitivity. There was no requirement to build in the least steep area of the site.

The court also pointed out that Friends were not challenging the actual conditions of approval, but arguing that the Lofgrens might not comply with them in the future, and that could have environmental impacts. The court stated that such an argument was true in nearly all cases, and that, if the project did not comply with the permit conditions, Friends could seek supplemental environmental review at that time. Further, the conditions required the project to be built in substantial conformance with the proposed PRD. Next, the court dismissed the variance argument, finding that the minimum two-acre lot size only applied where a proposed development was not a PRD. Lastly, the court rejected the abuse of discretion claims, finding that there was substantial evidence in the record of the average natural slope of the lots to support the city’s determination that the site could support six lots. The court also found that RCZ did not require an applicant to select the “superior design” elements prior to permit approval, but, in any case, the Lofgrens had selected their preferred “superior design” elements.