Covina Residents for Responsible Development v. City of Covina ( 2018 )

Filed 2/28/18; Certified for Publication 3/22/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
COVINA RESIDENTS FOR B279590
RESPONSIBLE
DEVELOPMENT, (Los Angeles County
Super. Ct. No. BS147861)
Plaintiff and Appellant,
v.
CITY OF COVINA,
Defendant and Respondent;
CITY VENTURES, INC. et al.,
Real Parties in Interest.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Amy D. Hogue, Judge. Affirmed.
Briggs Law Corporation, Cory J. Briggs and Anthony N.
Kim, for Plaintiff and Appellant Covina Residents for Responsible
Development.
Richards, Watson & Gershon and Ginetta L. Giovinco for
Defendant and Respondent City of Covina.
Holland & Knight, Amanda J. Monchamp and Joanna L.
Meldrum, for Real Parties in Interest City Ventures, Inc. and City
Ventures LLC.
_______________________
In this CEQA1 action Covina Residents for Responsible
Development (CRRD) appeals from the trial court’s denial of its
petition for writ of mandate seeking to overturn the City of
Covina’s approval of a 68-unit, mixed-use, infill project2 located a
quarter-mile from the Covina Metrolink commuter rail station.
CRRD contends the project’s significant parking impacts required
the City to prepare an environmental impact report (EIR) rather
than the mitigated negative declaration it adopted in March 2016.
We conclude section 21099, subdivision (d)(1), which took effect
three months before the City approved the project, exempts the
project’s parking impacts, as alleged by CRRD, from CEQA
review. We also reject CRRD’s contentions the City’s approval of
the project violated the Subdivision Map Act and affirm the
judgment.
1 CEQA refers to the California Environmental Quality Act
(Pub. Resources Code, § 21000 et seq.) and the regulations
implementing it (Cal. Code Regs., tit. 14, § 15000 et seq.) (CEQA
Guidelines). Citations are to the Public Resources Code unless
otherwise stated.
2 An infill project develops vacant or under-used parcels
within urban areas that are already largely developed. (See
generally § 21099, subd. (a)(4).)
2
FACTUAL AND PROCEDURAL BACKGROUND
1. The Proposed Project
In 2000 the City adopted a general plan and certified a
program-level EIR governing future development within the City.
In October 2004 the City adopted the Town Center Specific Plan
(TCSP), which governs the site where the project is to be located
and certified a second EIR tiered from the General Plan EIR. The
TCSP EIR identified the following objectives for development
within the town center: facilitate infill development and
redevelopment of deteriorated properties “particularly for housing
creation and rehabilitation and economic development purposes”;
revitalize and attract more people and retail businesses;
“[c]apture [of] all potential benefits resulting from the Metrolink
Commuter Train station”; and “[p]ermit mixed uses in appropriate
areas in the downtown . . . to provide needed housing” “via ‘urban
village’ or livable cities concepts, as a means for . . . maximizing
the efficiency and attractiveness of transit usage, reducing vehicle
trips, and encouraging and facilitating pedestrian circulation.”
By 2012 Real Parties in Interest City Ventures, Inc. and
City Ventures LLC (City Ventures) had assembled a 3.4-acre site
within the TCSP area bordered by Orange Street, Citrus Avenue,
San Bernardino Road and 3rd Avenue. The site is comprised of an
entire block with 27 parcels (24 of which will be used by the
project) located a quarter-mile from the Covina Metrolink station
and served by a major bus line. The site is paved in its entirety,
contains 25,000 square feet of existing but vacant single-story
buildings previously used by a car dealership, and is surrounded
by developed residential and commercial parcels with improved
streets, sidewalks, curbs and gutters. City staff described the
condition of the site as “deteriorating and underutilized” and
3
acknowledged the City and former Redevelopment Agency had
worked for several years to remove blighted conditions and
revitalize the area.
City Ventures submitted the proposed project application to
the City in December 2012. Over the next year City Ventures
adapted the project to accommodate the recommendations of City
staff. On November 20, 2013 the City circulated an initial study
and proposed mitigated negative declaration (MND), which
described measures incorporated into the project to mitigate
potentially significant environmental impacts.
As proposed to the City planning commission in December
2013, the project consisted of 52 townhomes (32 three-bedroom
plans and 20 four-bedroom plans), 16 urban lofts (12 one-bedroom
plans and 4 two-bedroom plans), four live-work units (three four-
bedroom plans and one three-bedroom plan), 8,000 square feet of
retail space and a 4,800 square-foot gallery. Each unit was
designed with rooftop solar energy to power the home and a 220-
volt outlet intended for use as an electric vehicle charging station.
Common areas were to be planted with drought-tolerant plants
and trees.
City staff calculated the project, as designed, would require
238 parking spaces (174 residential spaces and 64 nonresidential
spaces). Anticipating the project, as a transit-oriented, mixed-use
development, would be eligible for parking credits under the
TCSP, City Ventures proposed a design with 177 spaces that
assumed the availability of 23 off-site, street parking spaces. The
staff report prepared for the planning commission concluded the
project was short 61 spaces, a number increased to 84 if street
parking was excluded from the count. The report recommended
allowance of the 23 street parking spaces but recommended
4
against allowing credits for shared residential-commercial spaces
and transit proximity for three reasons: existing parking
pressures in the area and City Ventures’s inability to provide
adequate detail about future tenants and failure to address ride-
sharing or public transportation subsidies necessary to earn
transit-related credits.3 The staff report concluded the project
“[left] too much of its parking requirements unmitigated” and
recommended City Ventures be asked to work with the City to
redesign the project to satisfy TCSP parking requirements.
Based on these unresolved parking concerns, the planning
commission denied approval of the project at its December 10,
2013 meeting.
2. The Redesigned Project
City Ventures appealed the planning commission’s denial to
the city council and submitted a modestly revised project reducing
the retail and gallery space by 3,600 square feet, a revision that
cut the parking deficit (and need for parking reduction credits) to
46 spaces. The city council considered the revised project at its
meeting on January 21, 2014, told City Ventures to come back
“with something that is viable and practical,” and continued the
hearing to February 4, 2014.
City Ventures again revised the project by redesigning all
four-bedroom units to three bedrooms, reducing the total number
3 As the staff report explained, “The TCSP provides that ‘The
City may approve a reduction in the number of off-street parking
spaces when a development is located within 1/4 mile of a
Metrolink station, an employer implements a ride-sharing
program approved by the City, and/or an employer pays for at
least 50% of the cost of public transit for its employees.’”
5
of three-bedroom units, increasing the number of two-bedroom
units and adding six on-site parking spaces. This redesign
eliminated the residential parking deficit and reduced the
commercial parking deficit to 19 spaces. Because a pending traffic
analysis had not been received, the staff report recommended any
action on the item be continued to February 18, 2014. At the
February 4, 2014 hearing the developer spoke about the
modifications to the project and fielded questions from council
members. Two residents opposed the project: One urged the
council to ensure adequate parking and support for the
commercial uses, noting the failure of the commercial section of a
previous mixed-use project; and another spoke against the design
of the buildings on Orange Street.
The staff report for the February 18, 2014 council meeting
advised the council, “With the exception of parking concerns, the
Planning Commission and Staff have been overall in support of
the Project. With these latest revisions . . . , Staff believes its
prior analysis presented to the Planning Commission (supporting
all other Project aspects except parking) remains in effect and
continues to support overall approval of the Project.” The staff
report also advised that new architectural features had been
added to the townhome design in response to public input.
Further, the project as proposed was now in compliance with all
zoning ordinances if the council decided to approve City
Ventures’s request for 19 transit-related parking credits. The
staff recommended the adoption of a MND if the council approved
the project. Only one letter had been submitted during the
comment period for the MND. In response staff had made minor
6
revisions to the MND, clarifying the findings; consequently,
recirculation was not warranted.4
The council again considered the project at the February 18,
2014 meeting. Council members questioned City Ventures at
length about the parking shortage and inquired whether one of
the buildings containing four units could be omitted to allow
additional on-site parking. Three downtown business owners
spoke against allowing the project to receive parking credits,
voicing particular concern about the assumption employees would
use public transit and the failure of another recently developed
project to secure retail tenants because of a similar parking
shortage. Asking City Ventures to consider further alterations to
the project, the council continued the public hearing on the project
to March 4, 2014.
Pending the March 4, 2014 meeting, City Ventures again
revised the project by replacing a four-unit residential loft
building with a 14-space parking lot. The revision reduced the
number of units from 72 to 68. In addition, 614 square feet of
gallery space was eliminated, and 600 square feet of the
commercial building was changed to administrative office space.
With these final revisions the planning staff concluded the project
met all City parking requirements and no longer required an
4 Additional letters were received after the comment period
had closed, including one from counsel for CRRD appearing on
behalf of Bentley Real Estate LLC, an entity linked to Ziad
Alhassen, the former owner of the defunct car dealership on the
project site and owner of the remaining parcels on the block. All
of the comment letters challenged the project’s failure to provide
adequate parking.
7
award of public transit credits. The staff report recommended the
council approve the project.
Cory Briggs, counsel for CRRD, spoke at the meeting on
behalf of his then-client Bentley Real Estate LLC. Having
submitted a letter opposing the project earlier that afternoon,
Briggs objected that the council had failed to provide the public
with an opportunity to review the revisions to the project. Briggs
also accused the council of violating the Brown Act by discussing
his client’s opposition to the project in closed session. The city
attorney told Briggs the closed session was justified by comments
made by his client to several staff members threatening
litigation.5
Following a break to allow attendees to review the revisions
to the project, the public hearing was reopened. After several
council members spoke, the city clerk, apparently unaware of any
other requests to speak, closed the meeting. The council voted
unanimously to approve the project and to adopt the MND,
making all required findings, including those necessary for
approval of City Ventures’s application for a subdivision tentative
tract map. On March 6, 2014 the City filed a notice of
determination under sections 21108 and 21152, as well as a notice
of categorical exemption for a Class 32 infill project pursuant to
CEQA Guidelines, section 15332.
5 As described by the city attorney, Ziad Alhassen had spoken
with several staff members and stated he had not been able to
reach a price with City Ventures for the remaining parcels and
intended to protect his interests with litigation if necessary. A
City Ventures representative told the council he had been in
discussions with Alhassen and would continue efforts to purchase
the parcels at a reasonable price.
8
3. The Litigation
CRRD filed this action on April 3, 2014. The petition alleged
three causes of action: a CEQA claim the City had improperly
approved the project without preparing an EIR and improperly
tiered the MND from the TCSP EIR; a claim the City had violated
the Subdivision Map Act (Gov. Code, §§ 66473.5, 66474) by failing
to make the necessary findings for approval of the project or, in the
alternative, making findings that were not supported by
substantial evidence in the record; and a claim the City had
violated due process by failing to allow a meaningful opportunity to
respond to last-minute revisions in the project.6
CRRD’s principal CEQA challenge focused on the project’s
allegedly inadequate parking. After briefing and a hearing the
trial court denied the petition, finding (a) a lack of substantial
evidence to support CRRD’s claim the parking shortage would
result in any environmental impacts; (b) any parking impacts
from the project were exempt from environmental review under
section 21099; (c) the City had properly tiered its environmental
review from the TCSP EIR; (d) the City did not violate the
Subdivision Map Act; and (e) the record did not indicate any
person had been prevented from speaking at the final council
meeting.
DISCUSSION
1. CRRD Has Failed To Establish a Violation of CEQA
a. CEQA overview
CEQA and the regulations implementing it “embody
California’s strong public policy of protecting the environment.”
6 CRRD has abandoned its due process claim on appeal.
9
(Tomlinson v. County of Alameda (2012) 54 Cal. 4th 281, 286.) As
the Supreme Court has explained, “CEQA was enacted to advance
four related purposes: to (1) inform the government and public
about a proposed activity’s potential environmental impacts;
(2) identify ways to reduce, or avoid, environmental damage;
(3) prevent environmental damage by requiring project changes
via alternatives or mitigation measures when feasible; and
(4) disclose to the public the rationale for governmental approval
of a project that may significantly impact the environment.”
(California Building Industry Assn. v. Bay Area Air Quality
Management Dist. (2015) 62 Cal. 4th 369, 382; accord, Respect Life
South San Francisco v. City of South San Francisco (2017)
15 Cal.App.5th 449, 454.)
“The first step [under CEQA] ‘is jurisdictional, requiring
that an agency conduct a preliminary review in order to determine
whether CEQA applies to a proposed activity.’ [Citation.] As part
of the preliminary review, the public agency must determine the
application of any statutory exemptions that would exempt the
proposed project from further review under CEQA. If, as a result
of preliminary review, ‘the agency finds the project is exempt from
CEQA under any of the stated exemptions, no further
environmental review is necessary. The agency may prepare and
file a notice of exemption, citing the relevant section of the
Guidelines and including a brief “statement of reasons to support
the finding.”’” (Concerned Dublin Citizens v. City of Dublin (2013)
214 Cal. App. 4th 1301, 1309-1310; see CEQA Guidelines, § 15062,
subd. (b) [“[a] notice of exemption may be filled out and may
accompany the project application through the approval
process”].)
10
When an activity is a project and does not fall under a
CEQA exemption, the agency must “conduct an initial study to
determine if the project may have a significant effect on the
environment.” (CEQA Guidelines, § 15063, subd. (a).) If no
substantial evidence shows the project may have a significant
environmental effect, the agency must prepare a negative
declaration describing the reasons for this determination. (CEQA
Guidelines, §§ 15063, subd. (b)(2), 15070; see Parker Shattuck
Neighbors v. Berkeley City Council (2013) 222 Cal. App. 4th 768,
776.) “If there is such evidence, ‘“but revisions in the project plans
‘would avoid the effects or mitigate the effects to a point where
clearly no significant effect on the environment would occur’ and
there is no substantial evidence that the project as revised may
have a significant effect on the environment, [an MND] may be
used.”’” (Parker Shattuck, at p. 776; see § 21064.5; Friends of the
College of San Mateo Gardens v. San Mateo Community College
Dist. (2016) 1 Cal.5th 937, 945 (Friends of the College).)
With limited exceptions the lead agency must prepare an
EIR “whenever substantial evidence supports a fair argument
that a proposed project ‘may have a significant effect on the
environment.’” (Laurel Heights Improvement Assn. v. Regents of
University of California (1993) 6 Cal. 4th 1112, 1123; accord,
Friends of the College, supra, 1 Cal.5th at p. 945; Tomlinson,
supra, 54 Cal.4th at p. 286; Parker Shattuck Neighbors v. Berkeley
City Council, supra, 222 Cal.App.4th at p. 777; see §§ 21100,
21151; CEQA Guidelines, § 15064, subd. (f)(1).) Explaining this
standard, the Supreme Court has stated, “a reviewing court may
not uphold an agency’s decision [not to prepare an initial EIR
under the fair argument test] ‘merely because substantial
evidence was presented that the project would not have [a
11
significant environmental] impact. The [reviewing] court’s
function is to determine whether substantial evidence support[s]
the agency’s conclusion as to whether the prescribed “fair
argument” could be made. If there [is] substantial evidence that
the proposed project might have a significant environmental
impact, evidence to the contrary is not sufficient to support a
decision to dispense with preparation of an EIR and adopt a
negative declaration, because it [can] be “fairly argued” that the
project might have a significant environmental impact. Stated
another way, if the [reviewing] court perceives substantial
evidence that the project might have such an impact, but the
agency failed to secure preparation of the required EIR, the
agency’s action is to be set aside because the agency abused its
discretion by failing to proceed “in a manner required by law.”’”
(Berkeley Hillside Preservation v. City of Berkeley (2015)
60 Cal. 4th 1086, 1112, citation omitted.) The fair argument
standard thus creates a low threshold for requiring an EIR,
reflecting the legislative preference for resolving doubts in favor of
environmental review. (Latinos Unidos de Napa v. City of Napa
(2013) 221 Cal. App. 4th 192, 200; Taxpayers for Accountable
School Bond Spending v. San Diego Unified School Dist. (2013)
215 Cal. App. 4th 1013, 1034 (Taxpayers).)7
7 City Ventures and the City, citing Friends of the College,
supra, 1 Cal.5th 937, contend the substantial evidence standard,
rather than the more rigorous fair argument standard, governs
review of the City’s actions in this case. In Friends of the College
the Supreme Court held that an agency’s decision to proceed
under CEQA’s subsequent review provisions (see § 21166; CEQA
Guidelines, § 15162) is subject to substantial evidence review,
reasoning that the previous environmental review retains
12
b. Standard of review
In reviewing the City’s actions “for compliance with CEQA,
we ask whether the agency has prejudicially abused its discretion;
such an abuse 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.’ (§ 21168.5.) [Fn. omitted.] In
determining whether there has been an abuse of discretion, we
review the agency’s action, not the trial court’s decision. ‘[I]n that
sense appellate judicial review under CEQA is de novo.’” (Center
for Biological Diversity v. Department of Fish & Wildlife (2015)
62 Cal. 4th 204, 214-215.) We determine de novo whether the
agency has followed the proper procedures, and we review the
agency’s substantive factual conclusions for substantial evidence.
(Id. at p. 215.) We may not interpret CEQA or its guidelines “in a
manner which imposes procedural or substantive requirements
beyond those explicitly stated.” (§ 21083.1)
We apply a de novo standard of review to questions of
statutory interpretation. (Concerned Dublin Citizens v. City of
relevance and warrants increased deference to the agency’s
determination. (Friends, at pp. 951-953.)
While this analysis is superficially appealing because the
City relied in part on the TCSP EIR in choosing to adopt an MND,
the City did not proceed under the subsequent review provisions
at issue in Friends of the College. Instead, the City structured its
environmental review for a new, rather than modified, project
under CEQA’s tiering provisions (§§ 21093, 21094; CEQA
Guidelines, § 15152). (See Friends of the College, supra, 1 Cal.5th
at p. 950 [“the subsequent review provisions . . . have no
application if the agency has proposed a new project that has not
previously been subject to review”].)
13
Dublin, supra, 214 Cal.App.4th at p. 1311; San Lorenzo Valley
Community Advocates for Responsible Education v. San Lorenzo
Valley Unified School Dist. (2006) 139 Cal. App. 4th 1356, 1382.)
“The scope of an exemption may be analyzed as a question of
statutory interpretation and thus subject to independent review.”
(San Lorenzo Valley, at p. 1382.) In determining the availability
of a statutory exemption, “‘we review the administrative record to
see that substantial evidence supports each element of the
exemption. [Citations.] “There must be ‘substantial evidence that
the [activity is] within the exempt category of projects.’ [Citation.]
That evidence may be found in the information submitted in
connection with the project, including at any hearings that the
agency chooses to hold.”’” (Concerned Citizens of Dublin, at
p. 1311, quoting Great Oaks Water Co. v. Santa Clara Valley
Water Dist. (2009) 170 Cal. App. 4th 956, 973.)
c. The alleged parking impacts of the project are exempt
from environmental review under section 21099,
subdivision (d)(1)
“There are two types of exemptions: statutory, which are
enacted by the Legislature and are not subject to exceptions, and
categorical, which are adopted in the Guidelines and are subject
to exceptions. [Citation.] ‘If the project is in an exempt category
for which there is no exception, “‘no further environmental review
is necessary.’”’” (Respect Life South San Francisco v. City of
South San Francisco, supra, 15 Cal.App.5th at p. 455; accord,
Parker Shattuck Neighbors v. Berkeley City Council, supra,
222 Cal.App.4th at p. 776.)
Enacted in 2013 and effective on January 1, 2014,
section 21099, subdivision (d)(1), provides, “Aesthetic and parking
impacts of a residential, mixed-use residential, or employment
14
center project on an infill site within a transit priority area shall
not be considered significant impacts on the environment.” (See
Stats. 2013, ch. 386, § 5, pp. 705-706.) Because section 21099 took
effect after the City had completed its initial study and circulated
the proposed MND, the City did not rely on this statute in March
2014 when it adopted the MND and approved the project.8
Nonetheless, section 21099 exempts the project’s parking impacts,
as alleged by CRRD, from CEQA review.
Section 21099 was enacted as part of Senate Bill No. 743
(2013-2014 Reg. Sess.) to further the Legislature’s strategy of
encouraging transit-oriented, infill development consistent with
the goal of reducing greenhouse gases announced in the
“Sustainable Communities and Climate Protection Act of 2008”
(Stats. 2008, ch. 728, § 1; Stats. 2009, ch. 354, § 5), also known as
Senate Bill No. 375. Senate Bill No. 375, in turn, was enacted to
implement the California Global Warming Solutions Act of 2006
8 The City’s notice of exemption cited a categorical exemption
under CEQA Guidelines, section 15332 for Class 32 infill
development. (See Tomlinson v. County of Alameda, supra,
54 Cal.4th at p. 288, fn. 4 [discussing requirements for the
Class 32 categorical exemption for infill development: “‘(a) The
project is consistent with the applicable general plan designation
and all applicable general plan policies as well as with applicable
zoning designation and regulations. [¶] (b) The proposed
development occurs within city limits on a project site of no more
than five acres substantially surrounded by urban uses. [¶]
(c) The project site has no value, as habitat for endangered, rare
or threatened species. [¶] (d) Approval of the project would not
result in any significant effects relating to traffic, noise, air
quality, or water quality. [¶] (e) The site can be adequately
served by all required utilities and public services.’” (Italics
omitted.)].) The parties have not raised this exemption on appeal.
15
(Stats. 2006, ch. 488, § 1, p. 3419),9 and “is one in a series of
executive, legislative and administrative measures enacted to
reduce greenhouse gas emissions and their adverse effects on our
climate.” (Bay Area Citizens v. Association of Bay Area
Governments (2016) 248 Cal. App. 4th 966, 975; see also Cleveland
National Forest Foundation v. San Diego Assn. of Governments
(2017) 3 Cal.5th 497, 506 [discussing Senate Bill 375; “[t]he
Legislature . . . found the state could not meet its emission
reduction goals without improved land use and transportation
policy”]; id. at p. 522 [“When it comes to climate change, the
state’s long-term environmental goals are clear. Senate Bill 375
and other statutes have codified into California law the scientific
consensus that the state must reduce greenhouse gas emissions
over the next few decades.”] (dis. opn. of Cuéllar, J.).)10
9 Better known as Assembly Bill No. 32, the Global Warming
Solutions Act of 2006 “established as state policy the achievement
of a substantial reduction in the emissions of gases contributing to
global warming.” (Center for Biological Diversity v. Department of
Fish & Wildlife, supra, 62 Cal.4th at p. 215.)
10 As one commentator has explained, “The Sustainable
Communities Act seeks to change California’s existing land
development patterns characterized by sprawl development—low-
density residential uses (car-oriented suburbs) extending into
exurban areas. Instead, the Sustainable Communities Act foresees
compact patterns of dense residential development in mixed-use
walkable communities located along public transit corridors. . . .
[T]he Sustainable Communities Act assembles an arsenal of
regulatory measures, including regional transportation plans, local
land use planning, increased investment in transit, and enhanced
intercity public transportation, all designed to reduce the number of
vehicle miles traveled by personal cars and light trucks.” (Glancy,
Vehicle Miles Traveled and Sustainable Communities (2014)
16
There is little doubt section 21099 applies to the City
Ventures project.11 Section 21099, subdivision (a)(4), defines an
“infill site” as “a lot located within an urban area that has been
previously developed, or on a vacant site where at least 75 percent
of the perimeter of the site adjoins, or is separated only by an
improved public right-of-way from, parcels that are developed
with qualified urban uses.”12 A “transit priority area” is defined
as “an area within one-half mile of a major transit stop that is
existing or planned . . . .” (§ 21099, subd. (a)(7).) The project site
encompasses 24 parcels on a block previously developed for car
dealerships and surrounded by qualifying urban uses
approximately a quarter-mile from the Covina Metrolink station.
46 McGeorge L.Rev. 23, 25, fns. omitted; see also Kasner, Arena
Development and Environmental Review Reform Under SB 743
(2014) 25 Stan. L. & Policy Rev. 203, 208-209 [“Perhaps the best
aspect of SB 743 is its changed approach toward transportation and
parking analysis. Under the old legislative regime, development
projects could demonstrate traffic mitigation by increasing parking
lot size and adding lanes to surrounding surface streets. From an
environmental perspective, these allowances provide little benefit,
as congestion effects are offset but automobile use is encouraged.
SB 743 allows for greater flexibility for projects while incentivizing
public transit.”].)
11 CRRD argues section 21099 does not apply because the City
completed the initial study and MND before the effective date of
the statute. CRRD cites no authority for this argument, and we
have found none. The project was approved three months after
the effective date of the statute.
12 CEQA defines a qualified urban use as “any residential,
commercial, public institutional, transit or transportation
passenger facility, or retail use, or any combination of those uses.”
(§ 21072.)
17
(See Protect Telegraph Hill v. City and County of San Francisco
(2017) 16 Cal.App.5th 261, 272 [applying section 21099,
subdivision (d)(1)’s exemption of aesthetic impacts from CEQA
review to a residential infill project within a transit priority
area].)
Section 21099 also directs the Office of Planning and
Research (OPR) to propose revisions to the CEQA Guidelines
“establishing criteria for determining the significance of
transportation impacts of projects within transit priority areas”
(subd. (b)(1)). Upon certification, “automobile delay” or “traffic
congestion” will no longer be considered a significant impact on
the environment (subd. (b)(2)). Subdivision (b) “does not relieve a
public agency of the requirement to analyze a project’s potentially
significant transportation impacts related to air quality, noise
safety, or any other impact associated with transportation,” but
clarifies, “the adequacy of parking for a project shall not support a
finding of significance pursuant to this section.” (§ 21099,
subd. (b)(3).)13
In arguing section 21099 does not exempt the parking
impacts alleged here from review, CRRD emphasizes
subdivision (b)(3)’s requirement that transportation-linked
environmental impacts continue to be analyzed and points to the
13 As directed, OPR has proposed a new guideline (§ 15064.3,
pending adoption by the Secretary of Natural Resources) and
issued a technical advisory identifying “vehicle miles traveled
(VMT) as the most appropriate metric to evaluate a project’s
transportation impacts.” (OPR, “Technical Advisory on
Evaluating Transportation Impacts in CEQA” (November 2017),
at p. 1, retrieved from http://www.opr.ca.gov/ceqa/updates/sb-743/,
as of February 28, 2018.)
18
decision in Taxpayers, supra, 215 Cal. App. 4th 1013, a decision
that predates section 21099, in which Division One of the Fourth
District found a project’s impact on the parking of vehicles “a
physical impact that could constitute a significant effect on the
environment.” (Taxpayers, at p. 1051.)
Decisions predating the enactment of section 21099 conflict
somewhat in their analysis of parking impacts under CEQA. In
San Franciscans Upholding the Downtown Plan v. City and
County of San Francisco (2002) 102 Cal. App. 4th 656
(San Franciscans) the First District observed, “[T]here is no
statutory or case authority requiring an EIR to identify specific
measures to provide additional parking spaces in order to meet an
anticipated shortfall in parking availability. The social
inconvenience of having to hunt for scarce parking spaces is not
an environmental impact; the secondary effect of scarce parking
on traffic and air quality is. Under CEQA, a project’s social
impacts need not be treated as significant impacts on the
environment. An EIR need only address the secondary physical
impacts that could be triggered by a social impact. (Guidelines,
§ 15131, subd. (a).)” (San Franciscans, at p. 697.) The court found
the EIR at issue adequate in its analysis of parking impacts in the
context of urban development: “[T]he EIR correctly concluded
that ‘[p]arking shortfalls relative to demand are not considered
significant environmental impacts in the urban context of San
Francisco. Parking deficits are an inconvenience to drivers, but
not a significant physical impact on the environment.’” (Ibid.)
Taxpayers, supra, 215 Cal. App. 4th 1013, expressly
disagreed with what it called “the broad statement in
[San Franciscans] that a parking shortage is merely a social
inconvenience and can never constitute a primary impact on the
19
environment.” (Taxpayers, at p. 1051.) The court opined,
“[W]henever vehicles are driven or parked, they naturally must
have some impact on the physical environment. The fact that a
vehicle’s impact may be only temporary (e.g., only so long as the
vehicle remains parked) does not preclude it from having a
physical impact on the environment around it. Therefore, as a
general rule, we believe CEQA considers a project’s impact on
parking of vehicles to be a physical impact that could constitute a
significant effect on the environment.” (Ibid.)
The perceived conflict between these decisions can be
explained by the context of the projects analyzed. In Taxpayers,
supra, 215 Cal. App. 4th 1013, a school district had approved the
installation of new stadium field lighting and other improvements
at a suburban high school that had previously been unable to host
evening sporting events. (Id. at p. 1023.) In evaluating whether a
fair argument existed that the project’s parking impacts could be
significant during evening games, the court of appeal criticized the
District’s parking analysis, finding it contained “no basis on which
to conclude the parking shortage of 174 spaces would be filled by
available off site, street parking spaces” (id. at p. 1050) and noted
the project would cause significant traffic congestion (a secondary
impact) in the narrow, residential canyon streets surrounding the
school (id. at p. 1053).
In contrast, the First District was reviewing the City’s
approval of a large Market Street redevelopment project the
petitioners claimed would increase gridlock in the area. (San
Franciscans, supra, 102 Cal.App.4th at p. 666.) The court agreed
the project’s location at a transit hub served by BART, as well as
multiple bus and cable car lines, justified the EIR’s conclusion that
“‘[p]arking shortfalls relative to demand are not considered
20
significant environmental impacts in the urban context of San
Francisco” (id. at p. 697) and that “providing additional off-street
parking would result in the adverse environmental impact of
attracting more cars to the area, in conflict with the City’s charter
policy to encourage the use of public transit first and discourage
the use of private automobiles in areas ‘well served by public
transit.’” (Ibid.) The court concluded the EIR “fulfilled its CEQA-
mandated purpose by identifying ways in which the secondary
environmental impacts resulting from the projected parking
deficits could be mitigated, in keeping with the specific
environmental strictures imposed by the City’s own transit-first
policy.” (Ibid.)
Through its 2013 enactment of section 21099 the Legislature
endorsed the approach of the First District in San Franciscans for
urban, infill projects near transit hubs like the City Ventures
project. While secondary parking impacts caused by ensuing
traffic congestion (“air quality, noise, safety, or any other impact
associated with transportation”) must be addressed, parking
impacts, in and of themselves, are exempted from CEQA review for
these projects. (§ 21099, subd. (b)(3).)
Here, CRRD failed to submit any evidence of secondary
impacts associated with the project’s allegedly inadequate parking.
Instead, the complaints identified by CRRD concern the lack of
parking spaces for downtown businesses, a concern falling within
the scope of section 21099, subdivision (d)(1). For instance, one
business owner commented, “I have [four] parking spots in front of
my building that I have had to work hard to keep for my clients . . .
[t]hese people I’m sure will spill over to our spots.” Another wrote,
“Business space with adequate parking for owners, employees, and
patrons is essential for the future of the downtown as a viable
21
business community. . . . I look out from the front of my store daily
to the sight of empty storefronts.” A petition drafted to oppose the
project as originally designed accused the project of providing
“ZERO onsite parking spaces for the owners, employees, and
customers of the commercial space.” As to secondary impacts
associated with the claimed lack of parking, CRRD criticizes the
MND’s assertion the TCSP EIR had adequately analyzed traffic
impacts for future development consistent with the TCSP but
provides no explanation, let alone evidence, why that analysis was
inadequate. While the City responded to the business owners’
concerns by requiring the project to comply with existing parking
requirements, that decision was not compelled by CEQA.
CRRD also asks us to speculate that the revised project’s
conversion of four- and three-bedroom apartments to three- and
two-bedroom apartments will not prevent residents from adding
additional tenants, thereby exceeding occupancy standards and
generating increased parking demand. To prevent such behavior,
however, the City included a condition of approval stating, “In
order for the residential component of the project to meet City
parking requirements in perpetuity, none of the dens or family
rooms in the residential dwelling units shall be marketed for or
advertised as bedrooms or used as bedrooms or for principally
sleeping purposes. This restriction shall be stated in and enforced
under the project-related Conditions, Covenants, and Restrictions
(C, C & Rs).” This condition is binding on the future homeowners
association and enforceable by the City (see Civ. Code, §§ 5975,
5980), and speculation about possible violations does not constitute
substantial evidence of a significant impact. (See East Sacramento
Partnerships for a Livable City v. City of Sacramento (2016)
5 Cal.App.5th 281, 297 [“‘[i]n the absence of a specific factual
22
foundation in the record, dire predictions by nonexperts regarding
the consequences of a project do not constitute substantial
evidence’”].)
It may seem somewhat ironic to apply section 21099 to
exempt from review the parking impacts of a project that, in the
end, was revised to comply with existing City parking
requirements. That is not the point, however; and section 21099
“does not preclude the application of local general plan policies,
zoning codes, conditions of approval, thresholds, or any other
planning requirements pursuant to the police power or any other
authority.” (§ 21099, subd. (b)(4); see also id., subd. (e) [“[t]his
section does not affect the authority of a public agency to establish
or adopt thresholds of significance that are more protective of the
environment”].) During the last 10 years, the Legislature has
charted a course of long-term sustainability based on denser infill
development, reduced reliance on individual vehicles and
improved mass transit, all with the goal of reducing greenhouse
gas emissions. Section 21099 is part of that strategy, and
subdivision (d)(1) exempts parking impacts from CEQA review for
qualifying infill projects located within a half-mile of a major
transit stop. On the record presented here, this statutory
provision applies to the City Ventures project and precludes
CRRD’s claim the project lacked adequate parking.
d. The MND was properly tiered from the TCSP EIR
“‘Tiering’ refers to using the analysis of general matters
contained in a broader EIR (such as one prepared for a general
plan or policy statement) with later EIRs and negative
declarations on narrower projects; incorporating by reference the
general discussions from the broader EIR; and concentrating the
later EIR or negative declaration solely on the issues specific to the
23
later project.” (CEQA Guidelines, § 15152.) “Unlike ‘[p]roject
EIR[s],’ which ‘examine[ ] the environmental impacts of a specific
development project’ (CEQA Guidelines, § 15161), the CEQA
provisions governing tiered EIRs ‘permit[ ] the environmental
analysis for long-term, multipart projects to be “tiered,” so that the
broad overall impacts analyzed in an EIR at the first-tier
programmatic level need not be reassessed as each of the project’s
subsequent, narrower phases is approved.’” (Friends of the College,
supra, 1 Cal.5th at p. 959, quoting Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007)
40 Cal. 4th 412, 429.) “Tiering is proper ‘when it helps a public
agency to focus upon the issues ripe for decision at each level of
environmental review and in order to exclude duplicative analysis
of environmental effects examined in previous environmental
impact reports.’” (In re Bay-Delta etc. (2008) 43 Cal. 4th 1143,
1170; accord, City of Hayward v. Bd. Trustees of California State
University (2015) 242 Cal. App. 4th 833, 849.)
CRRD challenges the MND’s reliance on the TCSP EIR’s
analysis of traffic impacts, which it claims was insufficient for the
impacts associated with the City Ventures project. CRRD
acknowledges, however, the City was permitted to tier from the
TCSP EIR “if the proposed action falls under one or more
statutory or categorical exemptions . . . or if the potential project
impacts have been adequately analyzed and mitigated” under that
document. As discussed, the project’s parking impacts are exempt
under section 21099, subdivision (d)(1). Consequently, the only
remaining issue raised by CRRD is the general allegation the
MND’s analysis of traffic impacts from the alleged parking
shortage was inadequate.
24
CRRD’s challenge based on traffic impacts suffers from
multiple flaws. First, as the City notes, there is no parking
shortage because the project, as approved, complied with the
TCSP’s parking requirements. Second, CRRD did not previously
question the adequacy of the traffic analysis, independent of the
claimed parking shortage. Finally, even if this argument were not
forfeited because it was not raised in the trial court (see, e.g.,
Kaufman & Broad Communities, Inc. v. Performance Plastering,
Inc. (2006) 136 Cal. App. 4th 212, 226), it is without merit. The
City conducted a project-specific trip analysis and required the
project to comply with an imposed mitigation measure and
improvements to San Bernardino Road as a final condition of
approval based on those findings. CRRD has not identified any
deficiencies or omissions in that analysis. Consequently, there is
no evidence in the record to support CRRD’s assertion the project
had impacts not contemplated by the TCSP EIR, and the City
properly tiered its review from that document.
In sum, CRRD has failed to provide any evidence the City
violated CEQA by approving the project.
2. The City Did Not Violate the Subdivision Map Act
a. Governing law and standard of review
The Subdivision Map Act (Gov. Code, § 66410 et seq.) (the
Act) is “‘the primary regulatory control’” governing the subdivision
of real property in California. (Gardner v. County of Sonoma
(2003) 29 Cal. 4th 990, 996; accord, Carson Harbor Village, Ltd. v.
City of Carson (2015) 239 Cal. App. 4th 56, 63.) The Act is
“designed to promote orderly community developments and
involves an application process that culminates in public hearings
to determine whether a subdivision map will be approved.”
25
(Carson Harbor Village, at p. 63.) Under the Act, “the
‘“[r]egulation and control of the design and improvement of
subdivisions”’ is vested in local agency legislative bodies such as a
city council, which must adopt ordinances on the subject.” (Save
Laurel Way v. City of Redwood City (2017) 14 Cal.App.5th 1005,
1012; see Gardner, at pp. 996-997.) “‘“[T]he propriety of virtually
any local decision affecting land use and development depends
upon consistency with the applicable general plan and its
elements.”’” (Orange Citizens for Parks & Recreation v. Superior
Court (2016) 2 Cal.5th 141, 153; see Gov. Code, §§ 65359
[requiring specific plans be consistent with general plan], 66473.5
[requiring tentative maps and parcel maps to be consistent with
general plan].)
An agency’s decisions regarding project consistency with a
general plan are reviewed by ordinary mandamus. “The inquiry in
such cases is ‘whether the decision is arbitrary, capricious,
entirely lacking in evidentiary support, unlawful, or procedurally
unfair.’” (San Francisco Tomorrow v. City and County of
San Francisco (2014) 229 Cal. App. 4th 498, 515-516.) “[A]
consistency determination is entitled to deference as an extension
of a planning agency’s ‘“unique competence to interpret [its]
policies when applying them in its adjudicatory capacity.”’
[Citation.] Reviewing courts must defer to a procedurally proper
consistency finding unless no reasonable person could have
reached the same conclusion.” (Orange Citizens for Parks and
Recreation v. Superior Court, supra, 2 Cal.5th at p. 155; accord,
San Franciscans, supra, 102 Cal.App.4th at pp. 667-678; see
Joshua Tree Downtown Business Alliance v. County of
San Bernardino (2016) 1 Cal.App.5th 677, 695-696.)
26
“‘“An action, program, or project is consistent with the
general plan if, considering all its aspects, it will further the
objectives and policies of the general plan and not obstruct their
attainment.”’” (Orange Citizens for Parks & Recreation v.
Superior Court, supra, 2 Cal.5th at p. 153, quoting OPR, General
Plan Guidelines (2003) p. 164.) “State law does not require perfect
conformity between a proposed project and the applicable general
plan. . . . [Citations.] In other words, it is nearly, if not
absolutely, impossible for a project to be in perfect conformity with
each and every policy set forth in the applicable plan. . . . It is
enough that the proposed project will be compatible with the
objectives, policies, general land uses and programs specified in
the applicable plan.” (San Francisco Tomorrow v. City and
County of San Francisco, supra, 229 Cal.App.4th at p. 514,
internal quotations omitted.)
b. CRRD’s Subdivision Map Act challenge lacks merit
CRRD asserts the findings made by the City under
Government Code sections 66473.5 and 66474 relating to the
consistency of the project’s tentative map with the TCSP were not
supported by substantial evidence. Government Code
section 66473.5 provides: “No local agency shall approve a
tentative map, or a parcel map . . . unless the legislative body
finds that the proposed subdivision, together with the provisions
for its design and improvement, is consistent with the general
plan . . . or any specific plan. . . . [¶] A proposed subdivision shall
be consistent with a general plan or a specific plan only if the local
agency has officially adopted such a plan and the proposed
subdivision or land use is compatible with the objectives, policies,
general land uses, and programs specified in such a plan.”
Government Code section 66474 requires the legislative body of a
27
city or county to deny approval of a tentative or parcel map unless
it makes a series of findings related to consistency of the proposed
map and design of the project with the general or specific plan
(subds. (a) & (b)), the suitability of the site for the type and
density of the development (subds. (c) & (d)), the likelihood the
proposed map and improvements will cause environmental
damage, harm wildlife and habitat or cause serious public health
problems (subds. (e) & (f)) and the effect of the map and project on
public easements (subd. (g)). The necessary findings under these
sections were adopted at the city council’s March 4, 2014 meeting.
Once again, CRRD’s principal complaint about the City’s
findings concerns parking. CRRD argues the project does not
comply with the parking standards set forth in the TCSP and
criticizes City Venture’s “stunt” of relabelling bedrooms as dens, a
modification CRRD believes will be easily circumvented. As
discussed, CRRD’s argument is based on speculation, rather than
evidence, and does not support the relief sought. CRRD has also
emphasized the importance of adequate parking for the business
community. The City responded to that concern by insisting the
project fully comply with the parking requirements of the TCSP.
Attempting to broaden its focus from parking to traffic
circulation, CRRD claims the City’s parking analysis “cherry-
picked” certain circulation elements of the TCSP while ignoring
others. The example cited by CRRD relates to the TCSP’s policies
requiring developments to provide adequate pedestrian and
bicycle access and create “[s]tronger pedestrian and bicycle
linkages through the downtown.” CRRD, however, does not
identify any evidence suggesting the project is not compatible with
these policies; and the record refutes its contention. As a higher
density, mixed-use residential, transit-oriented project, the project
28
inherently encourages alternative travel modes. In reviewing
changes to the subdivision map, the City found the project was
“consistent with the General Plan in that it offers a different form
of circulation in the sense of promoting walking and bicycling to
meet Circulation Goal 1 of the General Plan,” which identifies the
goal of offering “‘[a] balanced circulation system that offers
multiple travel options so that people can live, work, shop, and
play without relying on private vehicles.’” The proposed MND
expressly inquired whether the project would “[c]onflict with
adopted policies, plans, or programs regarding public transit,
bicycle, or pedestrian facilities, or otherwise decrease the
performance or safety of such facilities,” and found no significant
impact. The MND analysis explained, “The Project will not
conflict with adopted policies, plans, or programs supporting
alternative transportation in that it has been designed as a
pedestrian-oriented community with direct access to the
downtown, Metrolink Station, and bus stops and is required to
comply with the policies of the [TCSP].”
In short, the project’s map was fully consistent with the
TCSP.
29
DISPOSITION
The judgment is affirmed. The City and City Ventures are
to recover their costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
BENSINGER, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
30
Filed 3/22/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
COVINA RESIDENTS FOR B279590
RESPONSIBLE
DEVELOPMENT, (Los Angeles County
Super. Ct. No. BS147861)
Plaintiff and Appellant,
ORDER CERTIFYING
v. OPINION FOR
PUBLICATION
CITY OF COVINA,
Defendant and Respondent;
CITY VENTURES, INC. et al.,
Real Parties in Interest.
THE COURT:
The opinion in this case filed February 28, 2018 was not
certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), the non-parties’ requests pursuant to California
Rules of Court, rule 8.1120(a) for publication are granted.
IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.
___________________________________________________________
PERLUSS, P. J. SEGAL, J. BENSINGER, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
2