Tag: Due Process

FIRST DISTRICT HOLDS LACK OF A LEGALLY COMPLIANT LAND USE DESIGNATION ALONE DOES NOT PRECLUDE AN AGENCY FROM DENYING A PROJECT FOR UNRELATED REASONS

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In Lafayette Bollinger Development LLC v. Town of Moraga (2023) 93 Cal.App.5th 752, the First District Court of Appeal upheld the Town of Moraga’s denial of a development application based on unrelated inconsistencies with the general plan, despite the fact that Moraga’s land use element included a land use designation for the project site that was out of compliance with the law.

Background

The Town of Moraga denied Lafayette Bollinger Development LLC’s and Joan and David Bruzzone’s application to develop housing on the developers’ property and certify the EIR for the project because the project was not consistent with portions of the general plan related to public safety, residential density, grading volumes, location of other proposed development relative to the site, and impacts to natural resources. Moraga also denied the developers’ request for a general plan amendment and to change the zoning of the subject property from a “Study” designation to “residential.” The “Study” designation was originally intended to be temporary, but remained in place for approximately two decades and only allowed agricultural and accessory building uses. The developers sued Moraga, challenging its denial of the development application and general plan and zoning changes. The trial court issued a peremptory writ of mandate in favor of the developers, directing Moraga to issue a legally compliant land use designation, but rejecting the developers’ other claims regarding the denial of the development application, including takings, equal protection, and due process violations. The developers appealed.

Court of Appeal’s Opinion

 While the Court of Appeal agreed that the “Study” designation violates Government Code section 65302, subdivision (a), it rejected the developers’ argument that the improper land use designation rendered Moraga’s entire land use element unlawful, and that Moraga was therefore unauthorized to reject its development application. The court concluded that a lack of a legally compliant land use designation alone does not preclude a local agency from denying a project application for unrelated reasons.

Procedural Issues

The court rejected Moraga’s argument that the developers’ challenge of the illegal land use designation is time barred because the court agreed that Moraga forfeited this argument by failing to raise it before the trial court.

The court also rejected Moraga’s argument that the developers failed to exhaust their administrative remedies by not requesting that Moraga adopt a land use designation independent of the development application. The court determined that the developers had repeatedly challenged the designation during the administrative proceedings—including specifically arguing that the designation prevented them from developing the property, that there was no legal precedent for leaving the designation in place for an extended duration, and that Moraga had an obligation to change it. Therefore, the court concluded, Moraga had sufficient notice of these claims.

Unlawful “Study” Land Use Designation

The parties did not contest that the “Study” land use designation violates section 65302, subdivision (a) because, as the court explained, the designation fails to describe a use of land and there is no dispute that the designation was a placeholder until Moraga could determine the appropriate permanent category. The court agreed with the trial court that Moraga had a mandatory duty to adopt a legally compliant land use designation for the property and that the trial court properly issued a writ directing Moraga to fulfill its duty.

The court further held, however, that this deficiency in the general plan did not void Moraga’s denial of the project application. The court explained that the developers failed to identify any law that prohibited Moraga from denying the project application simply because the general plan’s land use element did not comply with section 65302, subdivision (a). Here, the reasons given for the denial of the application involved public safety concerns and environmental impacts, and had nothing to do with the improper designation. If the developers were to prevail on their argument, the court reasoned, any deficiency in the general plan would preclude a local government from making any land use decision until the deficiency was corrected. Therefore, the developers failed to demonstrate a prejudicial abuse of discretion in the denial of their project application.

Takings

The court upheld the trial court’s determination that the developers’ takings claim was ripe as to the denial of the development project application and the land use designation, but not smaller potential projects, because neither Moraga or the developers explained why the trial court’s holding was unsound. Therefore, both parties forfeited their ripeness arguments.

The court rejected the developers’ takings claim on the merits. The court held that the illegal land use designation did not prevent the developers from seeking to develop the property, as the project application was not denied because of the land use designation and Moraga’s denial of the project did not deprive developers of all economically beneficial use of the property. The developers failed to argue otherwise on appeal, or show that smaller projects would not be economically beneficial or that they had no other reasonable use of the property. Moreover, the court also reiterated the trial court’s finding that the developers did not have a reasonable expectation of building the number of homes for which it claimed it had an “investment-backed” expectation because the character of the land might have limited the number of residences that could be built.

Equal Protection & Substantive Due Process

The court rejected the developers’ claim that Moraga’s actions denied them equal protection. The court determined that although Moraga’s actions resulted in an unreasonably long delay in adopting a permanent land use designation to comply with Government Code section 65302, Moraga had a rational basis in the delay to gather more information about the property due to the property’s unique aspects, including significant slopes and grading. Moreover, the court reiterated that the unlawful land use designation did not make it impossible for developers to develop the property or prevent them from submitting a project application, as they were able to propose a permanent designation in conjunction with the project application. Lastly, the developers failed to explain why Moraga’s denial of the project application had no rational basis beyond those involving the land use designation.

The court also rejected the developers’ substantive due process claims based on Moraga’s failure to issue a permanent and lawful land use designation for similar reasons. The court reiterated that there were rational reasons to retain the “Study” land use designation, and that it did not prevent other development or substantially hinder use of the property.

SIXTH DISTRICT HOLDS CEQA ACTION IS BARRED UNDER COVID-19 EMERGENCY RULE 9’S EXTENDED STATUTE OF LIMITATIONS

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In Committee for Sound Water and Land Development v. City of Seaside (2022) 79 Cal.App.5th 389, certified for publication on June 1, 2022, the Sixth District Court of Appeal held that a nonprofit group’s CEQA claims were time-barred by the statute of limitations, even with the extended period afforded by Emergency rule 9, which the Judicial Council adopted in response to the COVID-19 pandemic.

Background

This case involves the City of Seaside’s certification of an EIR for the Campus Town 122-acre development project located on the former Ford Ord military base.

On March 6, 2020, the City issued a notice of determination for the Project. On April 5, the Committee for Sound Water and Land Development (the Committee), a nonprofit organization, submitted a request to the Fort Ord Reuse Authority (FORA) to receive written notice of (1) the City’s request of FORA to determine the Project’s consistency with the Fort Ord Reuse Plan (Reuse Plan), and (2) FORA’s consistency determination hearing. On June 6, FORA held a hearing at which it determined the Project was consistent with the Reuse Plan. It did not notify the Committee.

On April 6, 2020, the Committee filed a petition for writ of mandate challenging the City’s approval of the Project and FORA’s consistency determination under CEQA. The trial court subsequently granted its request to dismiss the petition without prejudice. On September 1, 2020, the Committee filed a second petition, alleging that the City violated CEQA and that FORA violated its constitutional due process rights.

The trial court sustained the City’s and Real Party’s demurrers on the grounds that (1) the CEQA claims were time-barred, (2) the due process causes were moot because FORA ceased existing as of June 30, 2020, and (3) the second writ petition was a sham pleading because it was only filed to cure the Committee’s failure to request a hearing within 90 days of filing the original petition, as required by Public Resources Code section 21167.4. The Court of Appeal affirmed the trial court’s dismissal.

The Court of Appeal’s Decision

Statute of Limitations

First, the court held that the petition was time-barred under the deadlines established by Public Resources Code section 21167, subdivision (c), as extended by Emergency Rule 9, subdivision (b).

The original Emergency rule, adopted by the Judicial Council on April 6, 2020 in response to the COVID-19 pandemic, tolled the statute of limitations in civil cases for 90 days until Governor Gavin Newsom lifts the state of emergency order that the Governor had declared on March 4, 2020. In response to requests from the CEQA bar, the rule was subsequently amended to end the tolling period on August 3, 2020 for 30-day statute of limitations applicable to CEQA causes of action. Thus, the last day for the Committee to file its CEQA petition was August 4, 2020. The Committee relied on the original version of Emergency rule 9 and claimed that its counsel was unaware of the amendment. The petition, filed on September 1, 2020, was therefore untimely.

The court was unpersuaded by the Committee’s argument that the amendment of the rule resulted in impermissible “truncation” of the limitations period. It explained that the rule was not unreasonable because the 30-day period would have ended on April 6, 2020—several months earlier—but for Emergency rule 9, as amended.

The court, consequently, did not address the sham pleading doctrine issue.

Mootness

The court also held that no effectual relief could be provided to the Committee for the alleged due process violation because the relief requested—that the City re-notice and conduct a new consistency determination hearing regarding the Project—could not be granted because the law requiring the consistency determination was repealed. By law, former Government Code sections 67650–67700 were repealed, dissolving FORA and eliminating the statutory requirement for FORA to determine whether projects at the base are consistent with the Reuse Plan.

The court rejected the Committee’s arguments that the City is a “successor in interest” to FORA’s obligations under the Reuse Plan and should be charged with correcting the improperly unnoticed hearing. It explained that the repeal of the law means that there is currently no requirement for a Reuse Plan consistency determination. Therefore, the Committee’s due process cause of action is moot.

Because the matter was moot, declaratory relief was also not available, and the court accordingly held that it was appropriate for the trial court to sustain the demurrers without leave to amend.

FOURTH DISTRICT UPHOLDS EIR FOR ROADWAY CONNECTION PROJECT AND HOLDS CITY’S QUASI-LEGISLATIVE APPROVALS WERE NOT SUBJECT TO PROCEDURAL DUE PROCESS REQUIREMENTS

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In Save Civita Because Sudberry Won’t v. City of San Diego (2021) 72 Cal.App.5th 957, a partially published opinion, the Fourth District Court of Appeal held that the City of San Diego did not violate CEQA by failing to summarize revisions made in its recirculated draft EIR, and that the City’s certification of the Final EIR and approval of the project were quasi-legislative acts not subject to procedural due process requirements.

Background

In 2008, as part of an alternative to a proposed mixed-use development project, the City of San Diego proposed a four-lane major roadway in Mission Valley that would directly connect the development to local roadways. This connector roadway required an amendment to the Serra Mesa Community Plan (SMCP) and the City’s General Plan.

In April 2016, the City issued examined this connector roadway as its own project and prepared a programmatic draft EIR (PDEIR) for the SMCP and General Plan amendments. In March 2017, when roadway construction became foreseeable and upon a large volume of public comment, the City issued a revised and recirculated draft EIR (RE-DEIR) that looked at both the programmatic portion of the project, the adoption of amendments, as well as the actual construction of the roadway. In August 2017, the City issued the Final EIR for the project. Also in August 2017, the Planning Commission voted unanimously, with one member recusing, to recommend approval of the project and certification of the FEIR, with the City Council’s Smart Growth & Land Use Committee voting the same a month later. The City Council certified the Final EIR and approved the project in October 2017.

Save Civita Because Sudberry Won’t (Save Civita) filed a petition for writ of mandate and complaint for declaratory and injunctive relief challenging the City’s certification of the Final EIR and approval of the project on several grounds, namely here that it violated the requirement in CEQA Guidelines section 15088.5, subdivision (g) that a recirculated EIR summarize the revisions made to the prior EIR, and also that it violated procedural due process rights. The trial court denied the petition and complaint. Save Civita appealed.

The Court of Appeal’s Decision

Save Civita argued that the City violated CEQA Guidelines section 15088.5, subdivision (g), because it failed to summarize the changes in the RE-DEIR from the PDEIR, thereby forcing readers to “‘leaf through thousands of pages,’” and cause them “‘to have the mistaken belief’” that the two EIRs address the same project. The Court of Appeal disagreed, holding that statements in the RE-DEIR adequately summarized the changes to the PDEIR, and that these summary provisions informed the public that the revisions to the PDEIR were extensive and the PDEIR had been effectively “replaced” by the RE-DEIR. To make its determination, the court also looked to section 15088.5, subdivision (f), which requires that an agency inform the public that, when an EIR is so substantially revised that the document is recirculated, then comments on the prior EIR will not receive a response. The City fulfilled this criteria.

Furthermore, the court concluded that even if the City had failed to comply with the summation requirements of section 15088.5, any such failure was not prejudicial because it did not deprive the public of a meaningful opportunity to discuss and critique the project. Specifically, the court noted that the administrative record contained “ample and vigorous” public discussion of the RE-DEIR, proof that there were not fatal obstacles to public discourse created by any absence of a revision summary.

Save Civita also argued that the City’s certification of the Final EIR and project approval violated the public’s procedural right to due process and a fair hearing because a member of the City Council, who voted to approve the project was, according to Save Civita, “‘a cheerleader for the Project’” who had predetermined his vote. The court foreclosed this claim by explaining that procedural due process requirements are applicable only to quasi-adjudicatory hearings. Here, the City’s actions were quasi-legislative because they involved the adoption of generally applicable rules on the basis of broad public policy. The project approved by the City and analyzed in its EIR—construction of the roadway and amendment of planning documents—were, as the court determined, matters of public policy that required it to assess a broad spectrum of community costs and benefits. Therefore, procedural due process did not apply.

– Veronika S. Morrison

Fourth District Court of Appeal upholds determination that one group of utilities undergrounding projects is exempt from CEQA because of petitioner’s failure to exhaust, but remands for further consideration of GHG impacts from second group of utilities undergrounding projects

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In a procedurally complicated holding, in McCann v. City of San Diego (2021) 70 Cal.App.5th 51,the Fourth District Court of Appeal upheld the trial court’s ruling on the City of San Diego’s determination that one set of utilities undergrounding districts is exempt from CEQA, but remanded for further analysis of another set of utilities undergrounding districts to determine whether the project’s greenhouse gas (GHG) emissions are consistent with the City’s Climate Action Plan (CAP).

Background

The City of San Diego adopted a Utilities Undergrounding Program Master Plan in 2017, which sets out a process by which the City is converting overhead utility wires to an underground system. Undergrounding includes digging tunnels or trenches, installing underground conduit, filling in the soil, and pulling cable through the conduit. In addition, the City installs new above-ground transformers, three-foot cube-shaped cable boxes, and pedestals. The Master Plan and the City’s Municipal Code divide the larger effort to convert the entire above-ground utility system into smaller “districts,” each of which the City considers and approves separately.

Margaret McCann, a property owner, challenged the City’s approval of two sets of districts. The first set, City staff determined, was exempt from CEQA pursuant to Guidelines section 15302, subdivision (d). For the second set, the City adopted a mitigated negative declaration (MND).

The exempt districts

City staff determined that the first set of districts is exempt from CEQA. The City posted a Notice of Right to Appeal Environmental Determination in its City Development Services Department Office and on its website, and emailed the notice to City Councilmembers and local community planning groups. The notice stated that the exemption determination was appealable to the City Council within ten days. No one appealed. The City Council subsequently mailed notice of a public hearing regarding the districts to affected property owners, including McCann. McCann emailed the City and indicated that she had not seen the Notice of Right to Appeal, and that she believed the environmental review was inadequate. Her attorney also spoke at the Council hearing. The City Council subsequently approved the projects and the City filed a Notice of Exemption.

The MND districts

Separately, the City published a draft MND for another set of undergrounding districts, because some of them included sites with cultural significance. The MND also considered potential aesthetic and GHG effects from the projects. McCann and her attorney submitted written comments disputing the adequacy of the MND, and McCann’s attorney spoke at the public hearing. The City Council adopted the MND and approved the undergrounding districts.

Trial court decision

McCann filed a petition challenging both the exempt districts and the MND districts. The trial court denied the petition in its entirety. With respect to the exempt projects, the trial court found that McCann failed to exhaust administrative remedies, and in the alternative, denied her claims outright. Regarding the MND projects, the trial court found that McCann failed to demonstrate that substantial evidence supported a fair argument that the projects may have a significant effect on the environment.

The Court of Appeal’s Decision

The Court of Appeal agreed with the trial court, with one exception. First, with respect to the exempt projects, the court explained that CEQA does not prescribe a specific appeal process following a determination that a project is exempt. But, the court said, CEQA does require that if a nonelected official or decisionmaking body determines that a project is exempt, the agency must allow for an appeal of that determination to the decisionmaking body. Here, the City provided an administrative appeal process, but McCann did not file a timely appeal pursuant to the City’s procedures. McCann argued that City staff’s exemption determination did not comply with due process principles, but the court disagreed because the determination was not a land use decision and did not deprive McCann of any significant property interest. As a result, the court concluded, McCann failed to exhaust her administrative remedies, barring her claims with respect to the exempt projects.

Second, with respect to the MND projects, the Court of Appeal rejected all but one of McCann’s arguments. McCann argued that the City improperly segmented the projects; the court disagreed because each utility underground district is independently functional and does not rely on other districts to operate, and no set of districts is the “first step” toward any other projects. McCann argued that the project description was inadequate because it did not identify the precise locations of above-ground transformer boxes; the court disagreed because regardless of the precise location of each transformer, the environmental impacts of the project are the same. McCann argued that the MND projects will have significant aesthetic effects on the environment; the court disagreed because McCann failed to meet her burden to identify substantial evidence in the record that the project might have significant impacts. Most of McCann’s arguments, the court said, revolved around her neighborhood, which falls under the exempt projects, not the MND projects. McCann also cited to testimony of a person who commented on the project, but the court concluded that stray comments or expressions of concern related to aesthetic impacts are not enough to constitute substantial evidence.

The Court of Appeal remanded to the trial court on one narrow issue–the City’s determination that GHG impacts are not significant. Interestingly, the court explained that it was not holding that McCann proved that substantial evidence supported a fair argument that the project might have significant GHG impacts, which is usually the standard of review applied by the courts when considering an MND. Instead, the court said that because the City relied on an inapplicable checklist to conclude that the project was consistent with the City’s CAP, the City’s conclusions were not supported by substantial evidence.

To determine whether the project is consistent with the CAP, the City looked to its “Climate Action Plan Consistency Checklist.” The checklist directs staff to first consider whether a project is consistent with the City’s land use and zoning regulations. If yes, staff must then move to step two. But the checklist explains that step two does not apply to projects that, like this one, do not require a certificate of occupancy. Because step two does not apply, the City concluded that the project was consistent with the CAP. The court found, though, that the City could not rely on a checklist which expressly states that it does not apply to projects like this one to make a consistency determination. Thus, the court concluded, the City never considered whether the MND projects are consistent with the CAP. The court clarified that the use of a checklist to determine consistency might still be appropriate; the City could amend the checklist to include a step for assessing infrastructure projects, or it could create a separate checklist entirely. Without such a checklist though, the City was required to consider whether the projects comply with each individual action identified in the CAP if it wished to rely on streamlined review of GHG impacts.

The Court of Appeal reversed the trial court’s judgment on this limited issue, with directions to the trial court to enter a new judgment granting the petition in part, and to issue a peremptory writ of mandate directing the City to set aside its adoption of the MND and approval of the project.

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 Holds Storm Drainage Repair and Subsequent Revegetation Project Properly Exempted from CEQA

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The City of San Diego appealed a judgment granting CREED-21’s petition for injunctive and other relief for CEQA violations relating to emergency storm drainage repair and revegetation projects in La Jolla. The court held in favor of the City, finding it had used the correct baseline and had properly issued an exemption for the revegetation project. Furthermore, CREED had not been denied its due process right to a fair hearing. The court affirmed the judgment below to the extent it declared the City’s appeal fee assessment invalid and set it aside. The opinion, filed January 29, was certified for publication on February 18. CREED-21 v. City of San Diego (Feb. 18, 2015) ___ Cal.App.4th ___, Case No. D064186.

In 2010, the City issued an emergency permit for storm drainage repair work, and a notice of exemption from CEQA for the work. The emergency permit was conditioned on seeking a permanent permit and implementing a revegetation plan. The City found the revegetation plan to be exempt from CEQA relying on the “common sense” exemption and two categorical exemptions. CREED filed a lawsuit challenging the revegetation plan, and the work performed under the emergency permit. CREED argued that in reviewing the revegetation plan, the City was required to consider the physical setting of the area prior to the emergency storm drainage work, rather than after when the revegetation work commenced. The court refused to set the baseline earlier. The court similarly held that CREED did not have standing to challenge the 2010 emergency exemption, as it had missed the statute of limitations to challenge that project.

CREED argued that the 2010 emergency exemption was merely for temporary work, and that CEQA required the City to conduct at least a preliminary review, if not an initial study and EIR, to determine whether the already completed repair work might have a significant effect on the environment. The court disagreed, noting that any argument about the temporary status of the emergency work performed by the City in 2010 was based solely on the San Diego Municipal Code and not on CEQA or the Guidelines.

The court found that the City properly relied on the common sense exemption to find the revegetation project exempt from CEQA under Guidelines section 15061, subdivision (b)(3). That exemption applies where there is no possibility that the activity in question may have a significant effect on the environment. Because the revegetation plan would indisputably improve the site’s physical conditions—consisting primarily of bare dirt—the plan would not cause an adverse change so as to constitute a significant effect on the environment. The court added that the revegetation plan would also be exempt under the Class 1 exemption for existing facilities, which encompasses repair to existing topographical features. CREED failed to satisfy its burden of showing that the unusual circumstances exception applied to override the exemption.

The court also found CREED was not denied due process of law when the City did not timely disclose a document requested under the California Public Records Act. The City Council heard and denied CREED’s appeal of the City’s exemption determination, but did not provide CREED with a copy of the initial study until after that hearing. This omission did not deny CREED its right to due process and a fair hearing. CREED had received reasonable notice of the hearing and a reasonable opportunity to be heard.

Finally, the Fourth District held that the trial court had not abused its discretion by denying the City’s request for judicial notice of an ordinance and by finding that an appeal fee was unauthorized. There was no evidence in the record authorizing the $100 appeal fee. CREED alleged there was also no provision in the Municipal Code authorizing the City to charge a fee for an administrative appeal. The City argued there was an ordinance authorizing such fees, and requested the court take judicial notice of the ordinance. The court found the City had not given CREED sufficient notice of its request for judicial notice to allow for preparation of an opposition, and the request’s lack of an attachment listing specific fees rendered the document insufficient for the court to take notice.

City Council Member’s Appeal of Planning Commission Decision Violated Principles of Fairness and the Newport Beach Municipal Code

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In Woody’s Group, Inc. v. City of Newport Beach, the Fourth District Court of Appeal, Division 3, reversed the trial court’s decision denying a writ of administrative mandamus and held that the City Council of Newport Beach violated principles of fairness in overturning a permit application approved by the city’s planning commission.

Woody’s Warf (“Woody’s”) is a long-established restaurant overlooking the harbor in Newport Beach. In 2013, the Newport Beach Planning Commission voted to approve a conditional use permit to allow Woody’s to have a patio cover, remain open until 2 a.m. on weekends, and allow dancing in the restaurant. Four days after the planning commission’s decision, a member of the Newport Beach City Council filed an appeal of the planning commission’s decision because the council member “strongly believe[d]” the conditional use permit was inconsistent with the city’s general plan. Following a “lively” public meeting, in which the council member who filed the appeal presented a lengthy presentation on why the planning commission’s decision should be overturned, the city council voted to reverse the planning commission’s decision.

Woody’s thereafter filed with the Orange County Superior Court a petition for a writ of administrative mandate with the superior court, seeking to set aside the city council’s decision. The trial court denied the writ. The Court of Appeal reversed.

The Court of Appeal first held that Woody’s had established an “‘unacceptable probability of actual bias”’ on the part of the council member that filed the appeal. According to the court, the council member’s notice of appeal “showed he was strongly opposed to the planning commission’s decision on Woody’s application” – that is, he took a position against the project. Furthermore, the court explained, the council member’s speech to the council had been written out beforehand, “wholly belying his own self-serving comment at the hearing that “‘I have no bias in this situation.’” Therefore, the court held, the council member should not have been part of the body hearing the appeal.

Second, the court held that the appeal did not meet the procedural requirements of the city’s municipal code, and therefore should not have been brought. The city argued that the city had a “policy and practice” of allowing council members to appeal the planning commission’s decision. This argument was not well taken by the court. As the court explained: “The City violated the rules laid down in the city’s own municipal code, then purported to exempt itself from that code by invoking some previously undocumented custom of ignoring those rules when it comes to council members themselves. Needless to say, changing the rules in the middle of the game does not accord with fundamentally fair process.”

 

First District Upholds Approval of Parkmerced Redevelopment Project in San Francisco

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In a partially published opinion, the court upheld San Francisco’s approval of the Parkmerced project, concluding that the San Francisco General Plan contains adequate standards for population density and building intensity, the city did not violate due process rights in approving a development agreement for the project, and the administrative record properly included certain hearing transcripts. The court affirmed the judgment below. San Francisco Tomorrow v. City and County of San Francisco, Case No. A137753.

Parkmerced is an existing 3,221-unit residential complex on 152 acres in southwest San Francisco. The housing is currently divided between 13-story towers and 2-story townhouses. The proposed project is a comprehensive mixed-use redevelopment plan that proposes, over the course of 20 to 30 years, to demolish all the townhouse units, build an equal number of replacement units, and add 5,679 units. The project also envisions providing new commercial and retail services, transit facilities, parks, and open-space amenities, and improving existing utilities and stormwater management systems. The project would also include office space, a new school, daycare facilities, and a fitness center. The Planning Commission certified the final EIR for the project, after which the Board of Supervisors approved the project. San Francisco Tomorrow and Parkmerced Action Coalition filed a petition for writ of mandate. The trial court denied the petition on all counts. Petitioners argued that the San Francisco General Plan’s Urban Design Element is inadequate for failing to include standards for population density and building intensity as required by Government Code section 65302. “Population density,” the court noted, refers to the number of people in a given area rather than the concentration of dwelling units. The court emphasized that the actual layout of a general plan is for the most part within the local agency’s discretion. Here, the section of the Housing Element describing existing housing stock contained a table and map that together provided an adequate description of the population densities for the Parkmerced area. The table and map also projected the likely future densities throughout the city. The court found this adequate. The Urban Design Element was adequate in establishing maximum dimensions of buildings only above specified heights, as this type of standard was contemplated by case law and the general plan. The court afforded the city broad discretion as to the degree that the circulation element correlated with the changes in population density and building intensity.

Petitioners also contended the trial court erred in dismissing Parkmerced Action Coalition’s due process claim. Petitioners argued that as tenants of Parkmerced, members of the coalition held property rights associated with their rent-controlled units, and those rights had been violated by the failure to provide proper notice. The court found no error. The court noted that the only governmental decisions subject to procedural due process principles are decisions that are adjudicative in nature. Legislative action is generally not governed by procedural due process requirements. To conform to this rule, appellants posited that a development agreement is an entitlement, rather than a law of general applicability. While a few cases support the expansion of due process protection where a legislative act exceptionally affects a small number of people, under state law the approval of a development agreement is a legislative act. The court was unwilling to subject the approval to due process requirements simply because it affected property rights in some manner.

Finally, the court held that the trial court had not erred in including in the administrative record transcripts of a set of hearings before a board committee. Though the audio recordings and their transcriptions constituted “other written materials relevant to the agency’s decision on the merits of the project,” no cases held that such documents must be identified in the motion affirming certification of the EIR in order to be “before the decisionmaker.” Furthermore, the hearings occurred before the board’s decision, and thus the recordings and transcripts were properly part of the administrative record. Even if the transcripts were not part of the administrative record, the court held that petitioner had failed to meet their burden of showing such error was prejudicial.