Ocean Street Extension etc. v. City of Santa Cruz CA4/1 ( 2021 )

Filed 12/16/21 Ocean Street Extension etc. v. City of Santa Cruz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
OCEAN STREET EXTENSION D079064
NEIGHBORHOOD ASSOCIATION,
Plaintiff and Appellant,
(Super. Ct. No. 18CV03212)
v.
CITY OF SANTA CRUZ et al.,
Defendants and Appellants;
RICHARD MOE et al.,
Real Parties in Interest and
Appellants.
APPEAL from an order and judgment of the Superior Court of Santa
Cruz County, Paul P. Burdick, Judge. Affirmed in part; reversed in part.
Law Office of Babak Naficy and Babak Naficy for Plaintiff and
Appellant.
Atchison, Barisone & Condotti, Anthony P. Condotti, and Barbara H.
Choi for Defendants and Appellants.
Remy Moose Manley, Christopher L. Stiles, and Tiffany K. Wright for
Real Parties in Interest and Appellants.
INTRODUCTION
In 2010, real parties in interest, Richard Moe, Ruth Moe, Craig Rowell,
and Corinda Ray,1 applied to the City of Santa Cruz for design and planned
development permits and a tentative map to construct a 40-unit development
with 10 four-unit buildings on a parcel of land located at 1930 Ocean Street
Extension. Following an initial mitigated negative declaration and years of
litigation surrounding the impact of the nearby crematory at Santa Cruz
Memorial Park, in 2016, the real parties in interest renewed their interest in
moving forward with their project. As required by the California
Environmental Quality Act (CEQA) (Pub. Resources Code,2 § 21000 et seq.),
the project applicant and the City of Santa Cruz prepared and circulated the
initial study, the draft environmental impact report (EIR), the partially
recirculated draft EIR, and the final EIR. Following a public hearing, the
city council adopted a resolution to certify the EIR and to adopt Alternative 3,
a 32-unit housing project.
The Ocean Street Extension Neighborhood Association (OSENA) filed a
petition for writ of mandamus, alleging the City of Santa Cruz and its city
1 The real parties in interest are the project applicants. Some
documentation indicates all real parties in interest own the property; other
documentation indicates the property is owned in a co-trust by Richard and
Ruth Moe.
2 Further section references are to the Public Resources Code unless
otherwise specified.
2
council violated CEQA and the Santa Cruz Municipal Code in approving the
project.3
The court concluded the City had complied with CEQA, but it
determined the City violated the municipal code, and it issued a limited writ
prohibiting the City from allowing the project to proceed unless and until it
followed the municipal code and the court was satisfied with its compliance.
Following entry of judgment, OSENA appealed, arguing the court erred
by concluding the City complied with CEQA’s requirements. OSENA
contends the City violated CEQA by (1) insufficiently addressing potentially
significant biological impacts and mitigation measures in the initial study
rather than in the EIR directly, (2) establishing improperly narrow and
unreasonable objectives so that alternative options could not be considered
meaningfully, and (3) failing to address cumulative impacts adequately. The
City cross-appealed, contending the court incorrectly concluded it violated the
municipal code by granting a planned development permit (PDP) (Santa Cruz
Mun. Code, § 24.08.700) without also requiring the project applicant to
comply with the slope modifications regulations (Id., § 24.08.800). We agree
with the City, and we will affirm the portion of the order and judgment
concluding it complied with CEQA and reverse the portion of the order and
judgment concluding the City violated its municipal code.
BACKGROUND AND PROCEDURAL FACTS
In 2010, the project applicant submitted a PDP to the City. The project
is located on a 2.74 acre, irregularly shaped lot on the east side of Ocean
Street Extension, adjacent to the northern city limits. It has a frontage on
Ocean Street Extension, and the property slopes up from Ocean Street
3 The City of Santa Cruz, the city council, and the real parties in interest
filed jointly. Accordingly, we refer to them collectively as the City.
3
Extension to Graham Hill Road. The portion of the site adjacent to Ocean
Street has slopes of less than 15 percent, and the upper portion of the site has
slopes greater than 15 percent, with the steepest slopes located along the
eastern edge of the property line, where they are greater than 30 percent. On
the north side of the property, there is an adjacent vacant parcel. On the
south side is the Santa Cruz Memorial Crematory. The surrounding area
includes a mix of residential uses, including multifamily apartments and
condominiums along Graham Hill Road south of Ocean Street Extension and
low-density, single-family homes along Graham Hill Road to the north.
The project proposal consisted of a 40-unit residential complex, with 10
buildings, each containing four units, located at 1930 Ocean Street
Extension. There is a mix of one-bedroom/one-bath units and two-
bedroom/two bath units, with living areas of 940 square feet and 1,091 square
feet respectively. The first-floor units of two of the buildings contain two one-
bedroom/one-bath handicapped-accessible units, for a total of four accessible
units on the site. The project also includes three detached carports, three
refuse areas, and a 375-square foot manager’s office with a terrace and
garden. The applicants intend to rent the units for the foreseeable future,
but they may eventually opt to sell them.
The project required approval of a design permit, a PDP, and a
condominium subdivision map, as well as amendments to the General Plan
designating the parcel as LM (low medium density residential) and rezoning
it to multiple residence-low density. The PDP sought two variations from
conventional regulations: tandem parking and development within 10 feet of
a 30 percent or greater slope.
The City prepared an initial study and a mitigated negative
declaration, which it circulated for public review. Comments in response
4
raised concerns about the nearby crematory and potential health and
environmental impacts resulting from its emissions. The City Planning
Commission initially heard the request in October 2010 and continued the
hearing to collect additional information related to concerns about the
crematory. Eventually the crematory owner agreed to relocate the
crematory, and the City approved that relocation in 2014. OSENA
challenged the relocation of the crematory, and the Santa Cruz Memorial
Park eventually agreed to remove dental amalgams from teeth of deceased
individuals to resolve the concerns. Subsequent studies revealed the mercury
levels on the project site were below established human health screening
levels and posed no threat.
In September 2016, the project applicant decided to move forward with
the project, and the City prepared an initial study. The City circulated the
initial study and the notice of preparation for the EIR for a 30-day comment
period. It also held a meeting to solicit comments on the scope of the EIR.
The initial study identified two potentially significant biological impacts that
would be reduced to less-than-significant impacts with required mitigation
measures in place. Public comments included, among other things, questions
about potential biological impacts, which the City subsequently addressed.
In May 2017, the City released a draft EIR (DEIR) for public comment.
The DEIR included as an appendix the entirety of the initial study. It also
included and discussed three project alternatives: a project with nine
dwelling units; a project with 19 single family homes; and a 32-unit multi-
family alternative, in addition to the “no project” alternative. At the request
of commenters, the City revised and recirculated for a 45-day review period a
partially recirculated DEIR that updated information about traffic and
transportation.
5
In August 2018, the City released the final EIR (FEIR). The Planning
Commission held a public hearing and recommended the city council approve
the proposed 40-unit project. The City Council considered the EIR and the
project proposal on September 25, 2018. The vice mayor moved to accept
Alternative 3, reducing the project from 40 units to 32 units. A majority of
council members voted to approve this alternative and certify the EIR. The
City filed a Notice of Determination on September 26, 2018. OSENA filed a
petition for writ of mandamus on October 25, 2018, alleging the City’s
certification of the EIR violated CEQA, and it failed to comply with the Santa
Cruz Municipal Code.
On November 12, 2018, the City Council adopted Resolution
No. NS-29,449, which amended the General Plan to change the land use
designation of the project parcel to low medium density, rezoned the parcel to
multiple residence-low density, and approved the design permit and PDP
applications, as well as the tentative map.
The superior court heard arguments on November 22, 2019 and
January 10, 2020. On April 22, 2020, the court entered judgment. It found
the City fully complied with CEQA in preparing and certifying the EIR and
denied the writ as to those claims. It granted a limited peremptory writ of
mandamus remanding the proceedings to the City and directing the City to
set aside the PDP granted by Resolution No. NS-29,449 and to take further
action in compliance with the judgment. It granted injunctive relief
prohibiting the City from proceeding with the project unless and until the
City complied with the Santa Cruz Municipal Code regarding the slope
regulations.
OSENA timely appealed the court’s CEQA decision. The City timely
appealed the court’s decision regarding the municipal code.
6
DISCUSSION
I.
ADEQUACY OF EIR
A. Additional Facts
1. Initial Study
The October 3, 2016 initial study described the project as a 40-unit
apartment/condominium development consisting of 10 residential buildings
and three carports. Project access would be provided via a private street, and
it would create 95 parking spaces, as well as offsite road improvements.
The environmental impacts table noted potentially significant issues
with two air quality factors, three geology and soil factors, one greenhouse
gas emissions factor, two hydrology and water quality factors, one land use
and planning factor, two transportation/traffic factors, and one utilities
factor. It also noted several factors as potentially significant unless
mitigation were incorporated: two biological resources impacts, one noise
factor, and one cumulative impact. The initial study determined that the
proposed project may have a significant impact on the environment, so an
EIR was required. It identified topics to be discussed in the EIR, none of
which were factors identified as potentially significant unless mitigation were
incorporated.
In the section explaining the environmental checklist responses, the
initial study addressed biological resources. It identified plant communities
and habitat type and shared that a biological assessment had been conducted
in March 2007 and updated in 2016. It explained the onsite grasslands
provided a potential habitat for the Ohlone tiger beetle, the American badger,
and the western burrowing owl, none of which were observed during the site
survey. The site survey also found no evidence of San Francisco dusky-footed
7
woodrat nests but noted the site had the potential to support the species, and
it recognized that eucalyptus groves could provide wintering habitat for
monarch butterflies but explained the location offered a low-quality habitat
because of the limited number of trees and lack of adjacent water source.
Site visits in December 2007 and January 2008 also found no evidence of the
monarch butterflies.
The initial study concluded there was a less-than-significant impact to
special status species or sensitive habitats but nonetheless recommended as a
condition of approval a preconstruction survey for active woodrat nests and
either removal of the nests or enactment of a protective exclusion zone.
The initial study also detailed the locations of three main wildlife
corridors, noting the project site did not fall within any of them. It identified
nesting raptors as having the potential to occur in the eucalyptus trees on the
project site. The impact analysis explained the proposed tree removal of
seven eucalyptus trees and two acacia trees during breeding season,
generally March 1 through August 1, could cause mortality to nesting avian
species if active nest sites were destroyed. It also explained prolonged
construction activity could result in nest abandonment or failure, and it
determined this was a potentially significant impact, which would be reduced
to a less-than-significant level by following the proposed mitigation measure.
Mitigation measure Bio-1 would schedule tree removal between
August 15 and February 15, outside breeding season. If that schedule were
not practical, a qualified biologist would conduct a pre-construction survey
within 15 days of tree removal, and removal would be delayed until the nests
8
were not in use. It also required a suitable buffer zone, typically 300 feet for
raptors and 100 feet for other species, to allow for construction activities
without disturbing active nests.4
The initial study identified local ordinances related to tree removal,
which set mitigation requirements. The project would require the removal of
10 heritage trees, nine onsite and one offsite in connection with road
improvements. These removals were considered not significant because of
the project’s plan to plant 90 additional trees, including 11 live oak trees,
which exceeded ordinance requirements.
The initial study recognized that construction could inadvertently
damage six onsite live oak trees due to grading and disturbance of the root
zones unless the trees and root zones were adequately protected. This
potential damage led the agency to identify the project as having a
potentially significant impact on the environment that would be reduced to
less than significant with mitigation measures implemented.
In addition to planting additional trees beyond the number required by
ordinance, the initial study required mitigation measure Bio-2 to mitigate the
potential damage to the retained trees. Bio-2 requires the adoption of
measures outlined in the project arborist reports, which detail specific
measures for each tree, including construction fencing, cabling tree trunks,
prohibiting storage or dumping in the fenced area, protecting trees and root
zones, and pruning. The mitigation measures also require retention of an
arborist to inspect and monitor tree protection zones throughout the duration
of the project to ensure compliance with the measures.
4 The Biotics Resources Group report specified that a buffer zone would
be an area where no construction would occur until fledglings had left the
nest and were able to forage on their own.
9
In November 2016, in response to the City’s notice of preparation of an
EIR, OSENA complained that the site surveys were inadequate to establish
the presence or absence of some protected species and sought information
about the project impact on several species: the white-rayed pentachaeta, the
garter snake, the Zayante band-winged grasshopper, and the Mount Hermon
June beetle. OSENA also sought information about the risks to wildlife in
the area from paving, traffic, and lights. The comments recommended risk
mitigation efforts, like protective fencing, reduced speed limits, restricted
traffic, and restricted construction timelines “to ensure breeding, nesting and
migration habits” were unimpaired.
The agency revised the initial study to respond to comments. The
revision explained that the March 2007, October 2010, and September 2014
site surveys produced no evidence of the white-rayed pentachaeta and noted
that the species was last reported in the county in 1955. It also explained
that the site was not located in a sensitive habitat area, and the biological
surveys did not identify sandhills habitats, where the Mount Hermon June
beetle and the Zayante band-winged grasshoppers are found.
2. DEIR
In May 2017, the agency issued the DEIR, which included Section 2.5.2,
entitled Summary of Impacts and Mitigation Measures, Significant Impacts.
In the portion entitled “Impacts Evaluated in Initial Study (Appendix A),” the
DEIR identified nesting birds and heritage tree damage as biological impacts.
The DEIR briefly noted that tree removal during nesting season could lead to
mortality to nesting avian species and detailed the recommended mitigation.
It identified the retention of six onsite coast live oak trees that could be
inadvertently damaged during construction and detailed the recommended
10
mitigation measures explained in the initial study. It also separately
identified that riparian, wetland, and sensitive habitats were addressed in
the Biological Resources section of the initial study, found at Appendix A.5
3. Partially Recirculated DEIR
In April 2018, the lead agency issued its Partially Recirculated DEIR
that addressed traffic and transportation. The Biological Resources section
from the May 2017 DEIR was unchanged.
4. FEIR
In August 2018, the City issued the FEIR. The section summarizing
impacts and mitigation measures explained that “[t]he discussions in the
Initial Study of impacts that are not being addressed in detail in the text of
the DEIR are intended to satisfy the requirement of CEQA Guidelines
section 15128 that an EIR ‘shall contain a statement briefly indicating the
reasons that various possible significant effects of a project were determined
not to be significant and therefore were not discussed in detail in the EIR.’
The Initial Study is included in Appendix A of the EIR. A summary of less-
than-significant and no impacts identified in the Initial study is presented at
the end of this section.”
FEIR, section 2.5.2, Significant Impacts, includes a summary of the
project impacts on nesting birds and heritage trees. The text is identical to
what appeared in the DEIR. The FEIR also separately identifies special
status species and the riparian, wetland, and sensitive habitats as impacts
evaluated in the Biological Resources section of the initial study, which was
attached as Appendix A to the DEIR.
5 Appendix A to the EIR contained the full text of the initial study,
including the discussion of biological resources.
11
B. CEQA Requirements
CEQA was adopted so that “all agencies of the state government which
regulate activities . . . which are found to affect the quality of the
environment, shall regulate such activities so that major consideration is
given to preventing environmental damage. . . .” (§ 21000, subd. (g).) The
agency evaluates whether the proposed activity is subject to CEQA because it
could affect the quality of the environment. If it is subject to CEQA, the
agency decides whether the project qualifies for an exemption from CEQA
review. (Union of Medical Marijuana Patients, Inc. v. City of San Diego
(2019) 7 Cal.5th 1171, 1185 (Union).) If a project does not fall within a CEQA
exemption, the lead agency conducts an initial study to determine whether
the project may have a significant impact on the environment. (Muzzy Ranch
Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380;
CEQA Guidelines, §§ 15063, subd. (a), 15002, subd. (k)(2) [hereinafter
“Guidelines”].) The purposes of the initial study are to provide information to
the lead agency so it can determine whether to prepare an EIR or a negative
declaration, to enable the lead agency to modify the project by mitigating
adverse impacts to a less-than-significant level so it can prepare a mitigated
negative declaration, and to assist in preparing and EIR if one is required, by
focusing the EIR on significant effects, identifying the effects determined not
to be significant, and explaining why potentially significant effects would not
be significant. (Guidelines, § 15063, subd. (c)(1)-(3)(C).) If the initial study
reveals “substantial evidence that any aspect of the project, either
individually or cumulatively, may cause a significant effect on the
12
environment,” the lead agency prepares an EIR. (Guidelines, § 15063,
subd. (b)(1)(A); Union, at p. 1187; Save Our Big Trees v. City of Santa Cruz
(2015) 241 Cal.App.4th 694, 704-705.)
The CEQA Guidelines include an Environmental Checklist for use with
the initial study to help lead agencies assess whether there are potentially
significant environmental impacts that necessitate completing an EIR.
(Guidelines, Appendix G.) This form contains a table that lists each of the
environmental factors and asks the lead agency to identify whether that
factor will have a potentially significant impact on the environment, a less
than significant impact with mitigation incorporated, a less than significant
impact, or no impact. (Ibid.) It directs users: “If there are one or more
‘Potentially Significant Impact’ entries when the determination is made, an
EIR is required.” (Ibid., Evaluation of Environmental Impacts, No. 3.)
Accordingly, if no aspect of the project causes a significant effect on the
environment, the lead agency prepares a negative declaration. (Guidelines,
§ 15063, subd. (b)(2); Union, supra, 7 Cal.5th at pp. 1186-1187.) And if the
initial study identifies potentially significant environmental effects that can
all be fully mitigated by changes in the project, and the project applicant
agrees to incorporate the changes into the project, the lead agency prepares a
mitigated negative declaration. (Guidelines, § 15070, subd. (b); Protecting
Our Water and Environmental Resources v. County of Stanislaus (2020) 10
Cal.5th 479, 488-489.)
“An EIR is an ‘environmental “alarm bell” whose purpose it is to alert
the public and its responsible officials to environmental changes before they
have reached ecological points of no return.’ [Citations.] The EIR is also
intended to ‘demonstrate to an apprehensive citizenry that the agency has, in
fact, analyzed and considered the ecological implications of its action.’
13
[Citations.] Because the EIR must be certified or rejected by public officials,
it is a document of accountability. If CEQA is scrupulously followed, the
public will know the basis on which its responsible officials either approve or
reject environmentally significant action, and the public, being duly
informed, can respond accordingly to action with which it disagrees.
[Citations.] The EIR process protects not only the environment but also
informed self-government.” (Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights).) The EIR
“must include detail sufficient to enable those who did not participate in its
preparation to understand and to consider meaningfully the issues raised by
the proposed project.” (Id. at p. 405.)
Among other topics, an EIR must discuss significant environmental
effects and unavoidable significant environmental effects, either in separate
sections or by identifying them in a table showing where these subjects are
addressed. (Guidelines, § 15126, subds. (a) & (b).) The EIR focuses on
significant environmental effects, by “[d]escrib[ing] any significant impacts,
including those which can be mitigated but not reduced to a level of
insignificance” in addition to “impacts that cannot be alleviated without
imposing an alternative design,” as well as “their implications and the
reasons why the project is being proposed, notwithstanding their effect.” (Id.,
§ 15126.2, subds. (a) & (c).) For significant adverse effects, the EIR must
describe feasible measures to minimize significant adverse effects and discuss
the basis for selecting a particular measure where several are available. (Id.,
§ 15126.4, subds. (a)(1)(A) & (B).) And for any possible significant effects of a
project determined not to be significant and therefore not discussed in detail
14
in the EIR, the EIR must contain a statement indicating the reasons for the
determination, which can be contained in the initial study and attached. (Id.,
§ 15128.)
C. The EIR is Adequate.
OSENA contends the City failed to comply with CEQA because the EIR
does not analyze impacts to biological resources “in the EIR itself,” and
because the “cursory reference to the Initial Study’s discussion of biological
impacts was inadequate to fulfill its informational mandate.”
We review compliance with CEQA for a prejudicial abuse of discretion.
(§ 21168.5; Cleveland National Forest Foundation v. San Diego Assn. of
Governments (2017) 3 Cal.5th 497, 511.) Prejudicial abuse of discretion exists
“ ‘if the agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.’ ”
(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova (2007) 40 Cal.4th 412, 426 (Vineyard).)
“[W]hen the issue is whether an EIR’s discussion of environmental
impacts is adequate, that is, whether the discussion sufficiently performs the
function of facilitating ‘informed agency decisionmaking and informed public
participation[,]’ ” such a claim is “not typically amendable to substantial
evidence review.” (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 513,
515 (Sierra Club).) Noncompliance with information disclosure provisions
may constitute prejudicial abuse of discretion. (Id. at p. 515.)
The EIR must be prepared “with a sufficient degree of analysis to
provide decisionmakers with information which enables them to make a
decision which intelligently takes account of environmental consequences. . . .
The courts have looked not for perfection but for adequacy, completeness, and
a good faith effort at full disclosure.” (Guidelines, § 15151; Sierra Club,
15
supra, 6 Cal.5th at p. 514; San Francisco Ecology Center v. City and County
of San Francisco (1975) 48 Cal.App.3d 584, 594.) Thus, the legal standard
that applies to whether an EIR meaningfully addresses an issue is the
general standard for adequacy. (King & Gardiner Farm, LLC v. County of
Kern (2020) 45 Cal.App.5th 814, 848 (King).) The question is “whether [the]
EIR’s discussion of environmental impacts is adequate, that is, whether the
discussion sufficiently performs the function of facilitating ‘informed agency
decisionmaking and informed public participation.’ [Citation.]” (Id., at
p. 848; Sierra Club, at p. 510 [reviewing court must be satisfied there is
sufficient detail to enable those who did not participate in preparation to
understand and meaningfully consider issues raised by project].)
1. Location of Discussion
We begin by addressing the placement of the discussion of biological
resources in the initial study rather than in the EIR itself. Citing Guidelines,
section 15063, subdivision (c)(2), OSENA argues that the discussion of
environmental impacts mitigated to less than significant can only occur in an
initial study when no EIR is prepared. The City counters that Guidelines
section 15128 allows a lead agency to place the information in an initial study
when possible significant effects are determined to be less than significant
with mitigation.
Public Resources Code section 21068 defines “significant effect on the
environment” as “a substantial, or potentially substantial, adverse change in
the environment.” The Guidelines use this definition to explain that an EIR
is required if there is substantial evidence in the record that the project may
have a significant effect on the environment. (Guidelines, § 15064, subd. (f).)
The Guidelines also explain that that effects dismissed “as clearly
insignificant and unlikely to occur” need not be discussed further in the EIR.
16
(Id., § 15143.) But neither the statutes nor the Guidelines explicitly
addresses how to characterize an impact in the EIR after the lead agency has
determined it in the initial study to be less than significant with mitigation
incorporated.
The checklist promulgated in the Guidelines asks the lead agency to
characterize each factor as potentially significant, less than significant with
mitigation incorporated, less than significant, or having no impact.
(Guidelines, Appendix G.) When any of the factors is identified on the
checklist as potentially significant, the EIR is triggered, but if the factors are
all determined to be less than significant with mitigation, no EIR is required;
a negative mitigated declaration is acceptable. (Ibid.; Id., §§ 15063,
subd. (b)(1)(A), 15070, subd. (b).) This suggests that an environmental factor
that is “less than significant with mitigation incorporated” is not considered
“potentially significant” for purposes of triggering the EIR. The EIR focuses
on the environmental factors that have a significant impact. (Id., §§ 15063,
subd. (c)(3), 15126, subd. (a) & (b).)
Here, the initial study did not use the information about the biological
resources to decide whether to prepare an EIR or a negative declaration
(Guidelines, § 15063, subd. (c)(1)) because other environmental factors
necessitated the completion of an EIR. (See Id., § 15063, subd. (b)(1)(A);
Union, supra, 7 Cal.5th at p. 1187 [if any aspect of the project may cause a
significant effect on the environment, EIR is required].) The information
from the initial study enabled the lead agency to modify the project to
mitigate adverse impacts before the EIR was prepared, helped focus the EIR
on the effects determined to be significant, and explained the reasons
potentially significant effects would not be significant, all purposes of an
initial study identified in the Guidelines. (See Guidelines, § 15063,
17
subds. (c)(2), (c)(3)(A) & (c)(3)(C).) Further, nothing prohibits the discussion
of impacts that are less than significant with mitigation in an initial study
rather than in the EIR so long as the EIR complies with its purpose as an
informational document.
The purpose of CEQA is to ensure that a public agency regulates
activities to prevent environmental damage (§ 21000, subd. (g)) and to alert
the public and officials to environmental change so they can “consider
meaningfully the [environmental] issues raised by the proposed project”
(Laurel Heights, supra, 47 Cal.3d at pp. 392, 405; § 21002). Thus, rather
than elevate form over function here, we ask whether the information is
adequate to facilitate “ ‘ “informed agency decisionmaking and informed
public participation.” ’ ” (King, supra, 45 Cal.App.5th at p. 848.) As we next
detail, the EIR, including its appendices, fulfills CEQA’s purpose.
2. Sufficiency of the Information
There is no litmus test or minimum length required to ensure a
discussion is sufficiently detailed to comply with CEQA’s informational
mandate. We do not look for technical perfection or “ ‘an exhaustive
analysis,’ ” but instead we consider whether the information supplied is
adequate, complete, and the agency has made a good faith effort at fully
disclosing the information. (Sierra Club, supra, 6 Cal.5th at p. 515.)
The DEIR included a summary of impacts and mitigation measures
and identified nesting birds and heritage tree damage as potential biological
impacts. It explained that tree removal during nesting season would lead to
avian mortality and detailed the recommended mitigation. It specifically
identified the coast live oak trees that would be retained onsite, explained the
potential for damage to those six trees, and outlined mitigation measures to
18
protect each of them. And it directed readers to the initial study. After the
initial study was circulated for comment, the DEIR, which included a full
copy of the initial study, was also circulated for public comment.
The FEIR explains that there are possible significant effects that were
determined not to be significant with mitigation measures in place and
directs readers to the appendix for more detail. It summarizes the impacts
the lead agency determined were less than significant, including the impacts
on biological resources, and specifically potential impacts on nesting birds
and heritage trees. The FEIR also recognizes comments regarding biological
resources and directly addressed the concerns regarding the Ohlone tiger
beetle, the monarch butterfly, Mount Hermon June beetle, kangaroo rat, and
endangered plants, steelhead and coho salmon, and the tidewater goby.
The FEIR directs the public and decisionmakers to information about
the project’s potential effects on biological resources in the section
summarizing impacts and mitigation procedures, in section 2.5.2, and again
in the section labeled Biological Resources.6
The initial study is available in its entirety and incorporated into the
FEIR. It describes the habitat and summarizes the findings from site
surveys conducted in 2007, 2010, 2014, and 2016. It explains the significance
of tree removal to nesting birds’ mortality and requires mitigation measures
to avoid disrupting active nests. It also recognizes the potential for activities
to disturb the birds and incorporates mitigation measures to avoid those
disruptions. The initial study details the potential for inadvertent damage to
live oak trees and adopts mitigation measures to address those possibilities.
6 This information was identical to what was included in the DEIR, so
OSENA also had time to review and respond to it.
19
The information alerts officials and the public to the environmental issues
and provides adequate information to inform them. (Laurel Heights, supra,
47 Cal.3d at pp. 391, 405; King, supra, 45 Cal.App.5th at p. 848.)
To challenge the depth of the analysis, OSENA argues in its reply brief
that the EIR should have addressed the types of birds that could be affected,
the likelihood that they could be found at the site, and the likelihood and
magnitude of the project’s impact on them. While these details may have
enhanced the discussion, their absence does not undermine the adequacy of
the EIR as an informational document because the initial study makes clear
that whatever the birds affected, their nests will not be removed when in use;
thus, any impact to bird mortality has been eliminated.
Finally, OSENA argues that it was improper for the City to rely on
mitigation measures identified in the initial study, suggesting Salmon
Protection & Watershed Network v. City of Marin (2004) 125 Cal.App.4th
1098 holds that mitigation measures may only be discussed as part of the
FEIR. In Salmon the lead agency employed an exemption to avoid any
CEQA review and did not prepare an initial study, relying on mitigation
measures to justify the exemption. (Salmon, at pp. 1104, 1107.) The court
explained that if a project may have a significant effect on the environment, a
CEQA review is required, at which time mitigation measures become
relevant. (Salmon, at p. 1107.) But the court did not conclude that
mitigation was only relevant to an EIR; it recognized that mitigation
measures could be considered for a mitigated negative declaration, too (ibid.),
and that determination is made before an EIR is developed (Guidelines,
§ 15070, subd. (b)). Further, in addition to being supplied in the initial study,
20
the mitigation measures are identified and detailed in the FEIR, in
section 2.5.2 and in the Mitigation Monitoring and Reporting Program
(MMRP) adopted by the City.
The EIR provides a sufficient degree of analysis so that decisionmakers
could intelligently take account of environmental consequences. It
appropriately focuses on significant environmental effects (Guidelines,
§§ 15126, 15126.2, subds. (a) & (c)), describes feasible mitigation measures
(Id., §§ 15126.4, subds. (a)(1)(A) & (B), 15123), and it explains why it
determined the environmental effects on biological resources will be less than
significant with the required mitigation measures.7 (Id., § 15128). Thus, we
conclude the FEIR is adequate; there is no prejudicial abuse of discretion.
3. Discussion of Mitigation Measures
OSENA also argues that the EIR is inadequate because the mitigation
measures are vague, and their adoption impermissibly defers determination
of the measures to a later date.
OSENA raises these challenges for the first time on appeal. Because
OSENA failed to exhaust its administrative remedies, as it was required to
7 OSENA contends that “credible information received by the City
subsequent to the approval of the Initial Study contradicts the Initial Study’s
findings.” This argument is not one of adequacy but instead appears to
challenge the correctness of the agency’s conclusions. We note that the
documents OSENA references are letters requesting an additional survey for
monarch butterflies, which ultimately occurred and found no presence of
monarch butterflies; a recommendation for a preconstruction survey to verify
the lack of woodrats, which was adopted as a condition of approval; and a
letter explaining more recent surveys confirmed earlier findings. Further,
while some of OSENA’s comments challenged the findings of the site surveys,
OSENA did not offer contradictory findings. And even if they had, we would
find no error by the superior court because there is substantial evidence to
support the City’s conclusions. (See Laurel Heights, supra, 47 Cal.3d at pp.
392-393.)
21
do (see § 21177, subd. (a); City of Long Beach v. City of Los Angeles (2018) 19
Cal.App.5th 465, 474-475), we lack jurisdiction to consider this argument
(California Native Plant Society v. City of Rancho Cordova (2009) 172
Cal.App.4th 603, 615 [exhaustion of administrative remedies is
jurisdictional]; Coalition for Student Action v. City of Fullerton (1984) 153
Cal.App.3d 1194, 1198 [failure to exhaust administrative remedies precludes
raising an issue on appeal]).
Even if we had jurisdiction, we would find OSENA forfeited this
argument by failing to raise it in the superior court. (See South of Market
Community Action Network v. City and County of San Francisco (2019) 33
Cal.App.5th 321, 329 [appellant forfeited CEQA argument by raising it for
the first time on appeal]; Sacramentans for Fair Planning v. City of
Sacramento (2019) 37 Cal.App.5th 698, 717-718 [same].)
Finally, even we were to consider the issue on the merits, we would
conclude there was no prejudicial abuse of discretion because substantial
evidence in the record supports the City’s determination. The question of the
effectiveness of the mitigation measures is a factual one. (See North Coast
Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216
Cal.App.4th 614, 637-638 (North Coast Rivers).) Where, as here, the
challenge is to the City’s conclusions, we ask whether substantial evidence
supports the conclusions, not whether others might disagree with them. (Id.
at pp. 626-627.)
OSENA directs us to Lotus v. Department of Transportation (2014) 223
Cal.App.4th 645 (Lotus) to compare the deficiencies there to the EIR here. In
Lotus, the FEIR discussed overall impacts on the community of redwood trees
but failed to identify trees that would be impacted or the significance of those
impacts. (Id. at p. 654.) Because experts cited in the EIR concluded there
22
would be no significant impact on tree roots without first discussing the
environmental impacts without mitigation measures, it was not possible to
assess whether other possible mitigation measures would be more effective.
(Id. at p. 657.) Further, this deficiency was pointed out in the comments to
the DEIR by the Department of Parks and Recreation but not addressed in
the FEIR. (Id. at pp. 657-658.) The failure to correct this deficiency was
exacerbated by other inconsistencies in the DEIR that likewise were not
corrected in the FEIR. For example, although the DEIR stated no mitigation
measures were proposed, it also contained mitigation measures elsewhere in
the draft. (Ibid.)
Further, the DEIR in Lotus identified mitigation measures to be taken
at the contractors’ discretion rather than as enforceable mitigation measures,
even though the measures would be necessary to avoid a significant
environmental impact to tree roots. (Lotus, supra, 223 Cal.App.4th at p.
657.) Although the lead agency responded to these concerns with an
assurance that it would identify avoidance and mitigation measures in the
final draft, it failed to do so. (Id. at pp. 657-658.) Ultimately, the appellate
court concluded that the failure to separately identify and analyze the
significance of the project’s impacts to the redwood trees’ root zones before
proposing mitigation measures was a procedural failing showing a prejudicial
abuse of discretion. (Id. at p. 658.)
But the mitigation measures here are not comparable to those in Lotus;
they are neither vague nor deferred. Bio-1 requires tree removal between
August 15 and February 15, outside breeding season, to avoid disrupting
nesting birds. For construction that occurs during nesting season, Bio-1
establishes buffer zones of 100 to 300 yards based on the bird species so that
activities do not disturb the nesting birds. To verify the need for buffer zones,
23
Bio-1 requires a qualified biologist to conduct a preconstruction survey to
identify any active nests and employ the aforementioned measures. By
prohibiting tree removal and establishing zones in which no construction can
occur, this mitigation measure sets specific guidelines to ensure there is no
disturbance of active nests, thereby eliminating potential for bird mortality.
The requirement of a preconstruction survey does not make this mitigation
measure a deferred one or one based solely on the discretion of the biologist
because it specifies the actions taken based on the findings of the survey.
(See Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1126-1127
[mitigation measure required lighting design that avoids adjacent
properties]; Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261,
1277 [mitigation measure requires preconstruction surveys for toads and
establishes requirement for satisfactory breeding pools if toads found].)
Accordingly, it complies with CEQA. (Laurel Heights, supra, 47 Cal.3d at
p. 408 [EIR discussion of mitigation measures can be imperfect in particulars
and also adequate].)
The mitigation measures in Bio-2 likewise are sufficiently detailed and
certain, distinguishing them from those in Lotus. Unlike the measures in
Lotus, Bio-2 is directed at identified trees, and the adopted arborist reports
specify the treatment for each one of the trees. Bio-2 requires fencing,
cabling tree trunks, prohibiting storage or dumping in the fenced area,
pruning, and other root protection activities.8 It requires an arborist to be
retained throughout construction to ensure that each of the recommendations
listed in the arborist report occurs. And additional conditions of approval
8 OSENA’s comments asked the City to consider mitigation efforts such
as protective fencing and construction timelines to ensure breeding, nesting
and migration habits were protected.
24
separately mitigate tree loss because the City must plant 90 new trees, more
than three times the amount required for the 11 oak trees that are identified
for removal. Even if these six trees are damaged, their damage is mitigated
through planting additional trees in accordance with city ordinances. Thus,
not only is the information sufficiently detailed, but the conclusions are
supported by substantial evidence.
II.
PROJECT OBJECTIVES
A. Additional Facts
The EIR identified six project objectives, the first three of which
reference the City’s General Plan Housing Element Goals:
“1. To develop a multi-family project that will provide 40
new work force housing opportunities to the City of Santa
Cruz per the Housing Element, Goal 1.[9]
“2. To provide 40 affordable-by-design, moderate cost
housing opportunities per the Housing Element, Goal 2.[10]
“3. To provide housing opportunities to persons with
disabilities, per the Housing Element Goal 3.[11]
“4. To make efficient use of an undeveloped parcel
within existing city limits that is encircled by a greenbelt,
9 The City’s General Plan Housing Element Goal 1 is to “[e]ncourage an
adequate diversity in housing types and affordability levels to accommodate
present and future needs of Santa Cruz residents.”
10 Goal 2 is to “[i]ncrease and protect the supply of housing affordable to
extreme low, very low, low, and moderate income households.”
11 Goal 3 is to “[p]rovide for the development of accessible housing and
appropriate supportive services that provide equal housing opportunities for
special needs populations.”
25
with new infill housing as a critical part of the City’s
approach to providing new housing opportunities.
“5. To provide new housing opportunities in a location
that:
▪ Is close to Santa Cruz City core and services
▪ Can be accessed by public transportation, bicycle and
pedestrians
▪ Is close to an arterial street (600 feet) and State
highway transportation (1,650 feet)
“6. To develop 40 new housing opportunities in the free
market:
▪ Without government or private subsidies
▪ While paying all application, impact and permit fees
($1,000,000+)
▪ While providing substantial off-site community
improvements
▪ And creating jobs for local trades people and vendors
via $10,000,000+ in construction costs”
An alternate use for the property was considered and eliminated
because it was not consistent with the General Plan and did not meet the
project objectives. The EIR also considered placing the project in an alternate
location and eliminated that option because it was infeasible unless the
applicant were to obtain ownership of an alternate property. This left four
possible alternatives: no project; Alternative 1, a residential project under
existing general plan and zoning designations (9 dwelling units);
Alternative 2, a residential project with an existing General Plan amendment
and rezoning the land to R-1-5 (19 dwelling units); and Alternative 3, a
reduced-size project (32 dwelling units).
26
The agency did not recommend the no-project alternative because it did
not meet any of the project’s stated goals.
Alternative 1 considered developing nine single-family homes. Each
home would be larger than 2,000 square feet, but the land use density would
be substantially reduced from the original project. Homes this size are
estimated to sell for between $1.7 million and $1.9 million. The project would
meet objectives 3 and 5 but did not meet objectives 1, 2, 4, and 6.
Alternative 2 would develop 19 dwelling units on the property, which
was nine more buildings than the project called for, and it would achieve
objects 3, 4, and 5 and partially obtain objectives 1, 2, and 6. This alternative
was consistent with the zoning as a low-density area.
Alternative 3 would develop 32 condominium/apartment units. It
would reduce density, attain objectives 3, 5, and 6 and partially attain
objectives 1, 2, and 6.12
The EIR contains a chart that compares the environmental impacts of
the various alternatives. It explains that Alternatives 1 and 2 would
potentially eliminate the significant impact related to nesting birds because
it may not require tree removal, but it would not eliminate any of the other
identified environmental impacts. Alternatives 2 and 3 partially attained
objectives 1, 2, and 6 and attained objectives 3, 4, and 5. The EIR concludes
that Alternative 3 would best achieve project objectives and reduce the
severity of the impacts. Accordingly, the agency viewed Alternative 3 as the
environmentally superior alternative of those reviewed.
12 The EIR states that Alternative 3 would attain objectives 3, 5, and 6
and partially attain objectives 1, 2, and 6. This appears to be a typo because
it ignores objective 4 and mentions objective 6 twice.
27
B. Project Objectives are Adequate.
OSENA argues the project’s objectives are too narrow because they
target 40 units, and also vague and misleading in their choice of descriptors.
In particular, OSENA contends the terminology “work force housing
opportunities,” “affordable-by-design,” and “moderate cost housing
opportunities,” merely function as advertising descriptors of the planned
space. The City responds that the target number of 40 housing units reflects
the desire to help meet the needs of the community in response to a housing
crisis. The City also argues that the objectives did not preclude consideration
of a reasonable range of alternatives.
CEQA requires an EIR to consider and analyze a range of reasonable
project alternatives that would feasibly attain most of the basic objectives but
would avoid or substantially lessen significant impacts of the project. (In re
Bay-Delta etc. (2008) 43 Cal.4th 1143, 1163 (Bay-Delta); Pub. Resources Code,
§ 21061; Guidelines, § 15126.6, subd. (a).) Clearly written objectives help the
lead agency develop the range of alternatives by including the underlying
purpose of the project. (Bay-Delta, at p. 1165; Guidelines, § 15124, subd. (b).)
“Although a lead agency may not give a project’s purpose an artificially
narrow definition, a lead agency may structure its EIR alternative analysis
around a reasonable definition of underlying purpose and need not study
alternatives that cannot achieve that basic goal.” (Bay-Delta, at p. 1166.)
As we previously indicated, under the prejudicial abuse of discretion
standard, we review the challenge to the EIR to determine whether it
adequately informs decisionmakers (Sierra Club, supra, 6 Cal.5th at p. 515;
accord Laurel Heights, supra, 47 Cal.3d at p. 406; King, supra, 45
Cal.App.5th at p. 848), and we ask whether the agency’s conclusions are
28
supported by substantial evidence (Vineyard, supra, 40 Cal.4th at p. 426;
North Coast Rivers, supra, 216 Cal.App.4th at pp. 626-627).
Objective 1, which uses the term “work force housing opportunities”
ties to Housing Element Goal 1, which seeks to encourage diversity in both
types of housing and affordability levels, not tied to a particular definition of
affordability. Objective 2, which uses the language “affordable-by-design,
moderate cost housing opportunities,” is tied to Housing Element Goal 2,
which focuses on providing housing for “extreme low, very low, low, and
moderate income households.” While the EIR does not defined “affordable-
by-design” or “moderate cost housing,” the City’s General Plan does explain
what constitutes “affordable” housing: “Housing capable of being purchased
or rented by a household with very low, low, or moderate income, based on a
household’s ability to make monthly payment necessary to obtain housing.
Housing is considered affordable when a household pays less than 30 percent
of its gross monthly income (GMI) for housing including utilities.” The first
two project objectives specify a goal of providing 40 housing units,13 and they
also incorporate the City’s General Plan Housing Element Goals 1 and 2,
which are to encourage diversity in housing types and affordability levels,
including by increasing housing that is “affordable to extremely low, very low,
low, and moderate income households.” Thus, the underlying purpose of the
project is to increase the volume of housing available to residents with a
range of incomes.
Although OSENA challenges the objectives, it does not argue the City
failed to consider a reasonable range of alternatives. Nor could it
appropriately do so here because the City considered alternatives ranging in
size from nine houses to 32 units. OSENA instead argues that the objectives
13 The sixth objective also uses a target number of 40 housing units.
29
prevented serious consideration of smaller-sized projects and failed to foster
informed decisionmaking. OSENA also implies Alternative 3 does not better
meet the objectives than other alternatives.
1. Objectives Related to Affordability.
OSENA contends the project does not offer residential units that are
affordable to “moderate income” families whose income does not exceed 120
percent of the area’s median income and therefore does not achieve the first
two objectives.
Alternative 3 partially attains the “affordable” housing goals because it
requires the sale or rental of 15 percent of the units in compliance with the
General Plan definition of “affordable housing.” Alternative 3 also provides
housing for residents with a range of incomes because it is multi-family
housing, making it less expensive for working families-and thus more
“affordable” as that word is used colloquially– than the proposals for 19 or
nine single family homes, which would be more expensive.
OSENA argues the second objective is not bona fide because the project
only requires affordable housing units consistent with the requirements in
the City’s inclusionary housing ordinance. This argument ignores the limited
requirement of the City’s inclusionary housing ordinance14 and misstates the
project’s offerings. Because the underlying purpose of the project is to
increase the volume of housing, and affordable housing in particular, the
project’s size impacts how well it achieves that underlying purpose. While all
of the alternatives provide more affordable housing than currently exists,
they do not all equally do so. Further, because Alternative 3 is a multi-family
14 At the time of the EIR, Santa Cruz Municipal Code, § 24.16.020(3)(d)
required 15 percent of new housing units sold to be made available to lower
and median income families at reduced prices.
30
option that provides rental opportunities, it exceeds the requirements of the
ordinance, which do not require affordable rentals. (See Santa Cruz Mun.
Code, § 24.020(3)(a) (2018).)
2. Increase Housing for People with Disabilities.
OSENA next challenges the EIR findings regarding the third objective,
arguing that the project’s goal of providing housing for people with
disabilities is not met because the project does not include any services to
meet the needs of individuals with special needs and only supplies the
minimum number of handicapped-accessible units otherwise required by law.
OSENA does not explain why housing must supply particular services to
support people with disabilities to achieve this objective. As the City notes,
Alternative 3 includes ADA-accessible units, which provide housing
opportunities for people with disabilities.
3. Application Fees
OSENA contends objective 6 is invalid because all construction projects
must pay application, impact, and permit fees. It is unclear from the parties’
briefs whether some projects benefit from fee reductions or government
subsidies that may reduce the expenses a project would incur. Regardless,
because all the alternatives attain this goal, its inclusion or exclusion as an
objective had no impact on the outcome here.
4. Allegedly Conflicting Objectives
Finally, OSENA argues that objectives 1 and 2 conflict with objective 6
because the first two objectives relate to affordable housing options while the
last one seeks to develop housing opportunities in the free market. OSENA
suggests a project cannot desire to increase more than one type of housing,
i.e., provide affordable housing and also market rate housing simultaneously.
However, these goals are not mutually exclusive; a project can provide
31
additional housing options of varying degrees of affordability, including units
that are offered at market rate. And even where the underlying purpose of
some of the objectives is to increase the availability of affordable housing,
doing so does not preclude the development of other housing, particularly
where, as here, the selected alternative includes multi-family units that may
be more accessible to some economic segments of a community than larger,
single-family homes, which under Alternative 1 would cost $1.7 to $1.9
million.
5. Substantial Evidence Supports City’s Conclusion
OSENA ultimately disagrees with the City’s analysis of the
alternatives and its final conclusion. But whether to reject or approve any of
the alternatives is a decision only for the decisionmakers. (California Native
Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 980-981.)
They may reject alternatives that are undesirable from a policy standpoint
(id. at p. 1001; Los Angeles Conservancy v. City of West Hollywood (2017) 18
Cal.App.5th 1031, 1041-1042; City of Del Mar v. City of San Diego (1982) 133
Cal.App.3d 401, 417 [feasibility includes a consideration of desirability based
on “reasonable balancing of relevant economic, environmental, social, and
technological factors”]) as well as alternatives that fail to meet project
objectives (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208
Cal.App.4th 899, 948-949 (Rialto)).
The EIR considered each of the alternatives and evaluated the degree
to which each attained the project objectives and whether the alternatives
would eliminate or reduce significant impacts. It compared each of the
alternatives to the original proposal and the no-project option, and it
recognized that all of the alternatives would reduce the significance of
environmental impacts to varying degrees. As required, the EIR provided
32
information about each alternative that showed the major characteristics and
significant environmental effects of each one. (See Guidelines, § 15126.6,
subds. (a), (d); Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 547.)
Thus, there was sufficient information for decisionmakers.
OSENA contends the City council was convinced not to select lower
density alternatives because they failed to meet the project objectives. This
would be an appropriate reason not to select an alternative. (Rialto, supra,
208 Cal.App.4th at pp. 948-949.) But none of the alternatives met all the
objectives, and the EIR still selected Alternative 3 as the superior alternative
because it best achieved the project’s objectives of increasing housing
availability while also reducing the severity of the significant impacts,
conclusions supported by the analysis in the EIR. Notably, the EIR did not
recommend adoption of any of the alternatives, but the city council
nonetheless opted to approve a reduced-sized alternative instead of the 40
units proposed, showing the use of 40 units as a target did not prevent the
city council from earnestly considering lower density options.
III.
CUMULATIVE IMPACTS
A. Additional Facts
1. Water Supply and Demand
The EIR analyzes the water supply, drawing from the City of Santa
Cruz 2015 Urban Water Management Plan (UWMP). The UWMP takes into
account anticipated population growth and estimates a 20-year water supply
of about 3,200 million gallons per year (MGY) in 2035. Water supply
reliability is impacted by a variety of factors, including fish flow release
requirements, anticipated impacts from climate change, and limited storage
options. The existing system will not provide a reliable water supply during
33
prolonged droughts, but the City plans to augment the water supply through
conservation, recharging of regional aquifers, or advanced treated recycled
water.
The project contributes to this environmental condition because the
housing units will increase demand for water. The EIR estimates the project
could result in a water demand of approximately 2.0 MGY, or less than one
hundredth of one percent of the total estimated future water demand within
the City’s service area. During average and normal years, there are adequate
supplies. During periods of dry years and drought, the customers in the
project’s areas would be subject to curtailment and conservation measures.
The EIR explains “the impact of increased water demand on water supplies
due to the proposed project is considered less than significant as there are
sufficient supplies from existing sources to serve the project.”
In the cumulative impact discussion, the EIR states the project will not
substantially exacerbate water supply reliability because it will not increase
curtailment measures otherwise required in dry years. It also explains the
project’s required mitigation measures and payment of the System
Development Charge reduces the impacts so that the incremental
contribution to the water supply is not cumulatively considerable.
2. Traffic Impacts
The recirculated DEIR uses a “level of service” (LOS) measurement to
describe traffic congestion and delay at intersections based on the amount of
traffic each roadway can accommodate, in addition to factors like
maneuverability, driver dissatisfaction, and delay. The study rated
intersections on an LOS scale of “A” through “F,” with A representing free-
flowing conditions and F representing congested conditions. The City’s
General Plan 2030 seeks to maintain an LOS D or better at intersections
34
with signals, but it accepts a lower LOS at major regional intersections if
necessary improvements are prohibitively costly. For state highways,
Caltrans targets appropriate traffic levels between LOS C and D. If an
existing highway is operating at less than the appropriate LOS target, the
existing LOS should be maintained.
The City determined the project would have a significant impact on the
traffic system’s circulation. For intersections already operating at LOS D
and F levels, the City considered the project impacts to be significant if the
congestion levels at the intersections would become “measurably worse” as a
result of the project. The EIR recognized that project trips would contribute
to the existing unacceptable LOS at the Ocean Street/Highway 1 southbound
offramp, and it considered that contribution to be a significant impact. It
required the project applicant to contribute to the cost of signalization and
widening the offramp to reduce congestion and improve the LOS to B. Thus,
although the EIR concluded that the project would result in an increase in
daily and peak hour trips, it determined the project would not cause existing
or planned intersections to operate at an unacceptable LOS.
The EIR also concluded that the project’s contribution to the daily and
peak hour trips along the state highway segments was less than significant
because it would not change the LOS to an unacceptable level.
The cumulative impact analysis for traffic and transportation
considered the effect of the project in light of the General Plan 2030. The
General Plan was based on estimated buildouts using a number of approved
and foreseeable projects, as well as long-range growth. The buildout
assumptions provided for an increase of 315 dwelling units, including in the
Ocean Street neighborhood area, but the original buildout assumed a low-
density residential designation.
35
The EIR also concluded that the cumulative traffic would result in
significant cumulative impacts at several intersections. At those
intersections where the LOS would continue to be unacceptable, the project’s
contribution would be less than 25 peak hour trips, which the EIR
determined was minor because it would not result in discernible changes to
delays or operations, and therefore was not cumulatively considerable.
The EIR also noted that Senate Bill No. 743, signed in September 2013,
made significant changes to how transportation impacts would be assessed.
It anticipated that vehicle miles traveled (VMT) would be the new metric,
and it estimated information based on VMT for informational purposes. The
calculated VMT fell below the state’s suggested threshold of significance, so
the EIR determined that even under the VMT measure, the project would not
have a significant impact.
B. Legal Principles
An EIR must discuss cumulative impacts when a project’s incremental
effect is cumulatively considerable. (Guidelines, § 15130, subd. (a).)
Cumulative impacts occur when “two or more individual effects which, when
considered together, are considerable or which compound or increase other
environmental impacts.” (Id., § 15355.) However, an EIR may conclude the
project’s contribution is less than cumulatively considerable if the project “is
required to implement or fund its fair share of a mitigation measure or
measures designed to alleviate the cumulative impact. The lead agency shall
identify facts and analysis supporting its conclusion that the contribution will
be rendered less than cumulatively considerable.” (Id., § 15130, subd. (a)(3).)
The Guidelines require the discussion of cumulative impacts to reflect
the severity of the impact and the likelihood of happening; however, the
discussion does not need to provide as much detail as is required for effects
36
attributable solely to the project. (Guidelines, § 15130, subd. (b).) “The
discussion should be guided by the standards of practicality and
reasonableness” (ibid); “[a] good faith and reasonable disclosure of the
cumulative impacts is sufficient” (City of Long Beach v. Los Angeles Unified
School Dist. (2009) 176 Cal.App.4th 889, 906).
C. Cumulative Impacts on Water Demand
OSENA contends the EIR draws an incorrect conclusion about the
significance of the project’s impacts to the water supply. We consider
whether the EIR provides adequate information to decisionmakers, and we
review its factual conclusions for substantial evidence. (Laurel Heights,
supra, 47 Cal.3d at pp. 392, 402; Sierra Club, supra, 6 Cal.5th at p. 515;
North Coast Rivers, supra, 216 Cal.App.4th at pp. 626-627.)
In discussing the project’s impact on water supply, the EIR relies on
the UWMP, which evaluates the water supply within the City’s system based
on projected growth within the area for the next 20 years. (Vineyard, supra,40 Cal.4th at pp. 434-435 [no requirement to “reinvent the water planning
wheel” for each new land use development].) The UWMP takes into
consideration population growth when it predicts water supply shortfalls by
2035. The EIR recognizes this existing problem, and it discusses citywide
measures that address water supply because of anticipated shortfalls. The
EIR also considers the project’s contribution to the environmental condition,
identifying the project as using 2.0 MGY, or less than one-hundredth of one
percent of the estimated future water demand.
OSENA cites to Kings County Farm Bureau v. City of Handford (1990)
221 Cal.App.3d 692 (Kings County) and Los Angeles Unified School District v.
City of Los Angeles (1997) 58 Cal.App.4th 1019 (LA Unified), characterizing
the City’s approach as an inappropriate ratio analysis, and it argues that the
37
EIR “improperly focused on the relatively small contribution of the [p]roject
rather than the City’s severe water supply shortage and the expected growth”
and failed to consider the Project’s impact in light of past, present and future
projects and the magnitude of the City’s water shortfall.15 However, the
DEIR analysis is different from the ratio theory used in Kings County. In
Kings County, the project would have contributed less than one percent to the
air quality condition, which the agency concluded meant it would be less than
significant. (Kings County, at pp. 719-720.) The court disapproved of the
approach, explaining that the cumulative impacts analysis must assess the
collective and combined effect of the condition. (Id. at p. 721.) There, the EIR
omitted facts relevant to the collective effect the project and other sources
would have had on air quality (ibid), but here the EIR discusses the project’s
contribution to water consumption in the context of the other sources also
contributing to water consumption, thereby assessing the combined effect of
the water supply.
Likewise, the cumulative impacts analysis in LA Unified is different
from the present case. There, the EIR concluded additional traffic noise from
the project was not significant because the noise level already exceeded the
maximum specified by health guidelines. (LA Unified, supra, 58 Cal.App.4th
at pp. 1024-1025.) The court rejected the approach, concluding it trivialized
the noise impact and explaining that the issue was whether the additional
traffic noise should be considered significant in light of the serious existing
noise problem, a question the City did not consider. (Id. at pp. 1025-1026.)
Here, the cumulative impacts analysis considers the impact of the additional
water demand in light of the city-wide needs. Although the EIR discusses the
15 OSENA does not identify any omitted projects that similarly serve to
contribute to the water demands.
38
additional water demand in terms of a percentage (less than one-hundredth
of one percent), it also looks at the total demand amount (2.0 MGY) and
explains whether that is significant in light of current water supply
conditions and future demands. It explains that because the project’s
consumers will not cause additional curtailment requirements and will be
subject to city-wide conservation requirements, the impact is less than
significant. The project’s contribution is not cumulatively considerable
because its contribution is already accounted for in the UWMP estimates.
Further, the project is required to mitigate water use by installing
water conserving fixtures and landscaping, as well as curtailing use based on
the severity of the drought, and it is required to contribute to a “System
Development Charge” to pay for system improvements and conservation
programs designed to help alleviate future water supply issues. Because the
project implements and funds its share of measures to reduce water supply
demand, the EIR concludes the project’s contribution is not cumulatively
considerable, as the Guidelines permit. (See Guidelines, § 15130,
subd. (a)(3).) Accordingly, the EIR provides adequate information to allow for
informed decisionmaking, and there is substantial evidence in the record to
explain to support the City’s conclusions.
D. Cumulative Impacts on Traffic
In its opening brief, OSENA contends the analysis of cumulative
impacts on traffic is inadequate because it compares the project’s relative
impact to the overall magnitude of the problem. It argues the City was
required to consider the significance of the incremental contribution in light
of the seriousness of the existing traffic problem but failed to do so.
Even assuming OSENA is correct, its arguments on this point are moot
in light of recent amendments to the CEQA Guidelines. (Citizens for Positive
39
Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, 625.)
After the release of the FEIR in 2018, the California Natural Resources
Agency adopted revisions to the CEQA Guidelines that established criteria
for analyzing the significance of traffic impacts. (Pub. Resources Code,
§ 21099, subd. (b)(1).) Guidelines section 15064.3 became effective July 1,
2020, and it applies prospectively (Guidelines, §§ 15064.3, subd. (c), 15007,
subd. (b)). It provides that “a project’s effect on automobile delay shall not
constitute a significant environmental impact.” (Guidelines, § 15064.3,
subd. (a).) Because LOS-based traffic analysis is no longer a consideration to
determine if a project’s impact is significant, the City would be under no
obligation to conduct a LOS-based analysis on remand. (Citizens, at pp. 625-
626.)
Further, the Guidelines now identify vehicle miles traveled (VMT) as
the proper metric for analyzing transportation impacts. (Guidelines,
§ 15064.3.) The EIR separately addresses the project’s potential impact on
traffic using the VMT metric that was proposed at the time and concludes the
impact would be less than significant. OSENA does not challenge this
analysis or determination on appeal.
IV.
COMPLIANCE WITH SANTA CRUZ MUNICIPAL CODE
A. Additional Facts
In October 2010, the planning commission recommended adoption of a
PDP for the project, among other things. Neighbors raised concerns about
mercury air emissions from dental amalgams caused by the adjacent
crematorium. To explore the issue, the item was continued to the November
meeting. It was continued again at the November 4, 2010 city council
meeting, and it was continued indefinitely at the December 2, 2010 meeting.
40
On June 21, 2018, the project applicants held a community meeting to
present and discuss the project, and the planning commission held a public
hearing on August 16, 2018. The planning commission recommended
approval, and the planning and community development department
recommended adoption of the PDP. The city council held a public hearing
about the project at its September 25, 2018 meeting.
The city council adopted Resolution No. NS-29,449 on September 25,
2018. The resolution included General Plan and Zoning amendments to
redesignate the project’s parcel to a multiple residence, low density zone. The
resolution found the PDP would “allow for variations in off-street parking
and slope regulations.” It explained the PDP would support the City’s
Housing Element Goal 1.0. The resolution specifically found that allowing
development closer than 20 feet from 30 percent slopes (at a 10-foot minimum
distance) would facilitate the development of residential buildings in a
cluster manner. It also found the project to be consistent with the purpose of
the PDP to allow for creative and innovative design to meet the public
interest and General Plan goals, in particular by allowing for development 10
feet from a 30-percent or greater slope. And it made the other findings
required by Santa Cruz Municipal Code sections 24.08.720, et seq.
OSENA filed a petition for writ of mandamus, arguing the approved
project violated the municipal code because the City erroneously granted a
variance through the PDP process without requiring slope modifications to be
granted “pursuant to procedures set forth in Chapter 24.08, Part 9 (Slope
Regulations Modifications).” (See Santa Cruz Mun. Code, § 24.08.720.) The
City opposed the petition, arguing the PDP did not require compliance with
the slope regulations modifications.
41
In its tentative ruling, the trial court declined to give the City’s
statutory interpretation any deference, explaining the court did not find the
language or context of the code ambiguous. The qualifying language
“pursuant to” contained in subsection 9 persuaded the trial court that a PDP
required compliance with the slope modification regulation procedures
contained in Part 9 of Chapter 24 notwithstanding their inclusion among a
list of areas available for variance via the PDP.
At the initial writ hearing, the court commented that the word
“variation” contained in the disputed provision was a broad term, and it was
unclear what it meant in the context of the ordinance: “You don’t have to
comply with anything? Or does it simply mean that the zoning director can
say, well, you don’t need to do this for slope modification . . . . I don’t know.”
At its final hearing on the writ, the court told the parties it found the
statutory language to be clear; it found no ambiguity. It concluded the City
failed to make the findings required by Santa Cruz Municipal Code
section 24.08.820 and failed to follow the procedures required by Santa Cruz
Municipal Code section 24.08.810; the court granted the writ of mandamus
on that limited issue.
The court told the parties it did not have sufficient familiarity with the
intricacies of the project or where the lots were laid out, but it appeared that
no lot could be “established” that created a building site within 20 feet of a 30
percent slope unless certain procedures were followed. The court also
explained that to the extent the project was redesigned so that no lot was
“created which results in a building site within 20 feet of the 30-degree
slope,” the slope modification regulations would not come into play.
The court said it thought the parties had stipulated that the project
authorized the creation of lots which permit a building site or sites within 20
42
feet of a 30 percent slope. Counsel for the City told the court there had been
no stipulation to create lots; the City had a single lot that encompassed the
whole project. The court responded: “So long as there is no building sited
within 20 feet of a 30 percent slope, there is no violation of the zoning
ordinance. And that’s the intent of my ruling.” It then specified that “no
further action [could] be taken in furtherance of the permit, until the city
ha[d] complied with the slope regulation modification provisions of the
ordinance, or ha[d] removed the offending building site,” and it told the
parties the writ was limited to “curing the violation, which has been
established that the planned development permit was issued without
compliance with the slope regulation modifications, given the current
configuration of the project.”
The court said, “to the extent the project changes so that that [the slope
regulation modification] violation no longer exists, then the writ could be
returned, and whatever authorized permits could then issue.” It further
detailed its expectation: “[W]hat I’m directing the city to rescind is the
permit itself, until there has been either compliance with the slope regulation
modification or until the project itself is modified so that it no longer violates
the 20 feet within 30 percent slope provisions.”
The order and judgment states: “Because [the City] did not follow the
procedures provided in Chapter 24.08, Part 9, . . . and because the proposed
development would create a new lot that requires a house to be sited within
twenty feet of a thirty-percent slope, [the City] committed a prejudicial abuse
of discretion by failing to proceed in a manner required by law.”
B. Relevant Municipal Code Sections
Chapter 24 of the Santa Cruz Municipal Code addresses zoning. The
ordinance’s purpose among other things, is to “prevent unnecessary
43
regulation or arbitrary restrictions in the exercise of private initiative of
property use” and to “establish simple and readily available procedures
through which private individuals or groups, the planning department, the
planning commission, or the city council may initiate zoning changes as
evolving community needs dictate.” (Santa Cruz Mun. Code, § 24.02.020.)
Part 8 of the zoning ordinance addresses land use permits and findings.
It contains the ordinances detailing the requirements for variances (Santa
Cruz Mun. Code, § 24.08.100 et seq.); slope regulation modifications (id.,
§ 24.08.800 et seq.); development agreements (id., § 24.08.2500); and various
permits, including PDPs (id., § 24.08.700).
A PDP “allows deviation from conventional zoning in a number of
areas,” which the code details. (Branciforte Heights, LLC v. City of Santa
Cruz (2006) 138 Cal.App.4th 914, 920, fn.2; see Santa Cruz Mun. Code,
§ 24.08.720.) The PDP process is intended to allow for innovation and
creativity in site planning to benefit the public and the developer. (Santa
Cruz Mun. Code, § 24.08.710.) For a PDP to be granted, there must be
findings that the project is consistent with the General Plan and the purpose
of the PDP zoning chapter; its variations to the regulations serve the public
to an equal or higher degree than the underlying district regulations; it can
be coordinated with development of surrounding areas; and the project
provides greater open space than would be permitted by underlying
regulations. (Santa Cruz Mun. Code, § 24.08.770.) Before the permit is
granted, the zoning board holds a public hearing and makes a
recommendation to the city council. (Santa Cruz Mun. Code, § 24.08.760.)
The General Provisions section of the PDP part of the code states that
“[a] planned development permit provides variation on district regulation,
where appropriate,” and it identifies 10 areas of variation, listing them:
44
“1. Building setbacks.
“2. Street standards.
“3. Lot coverage.
“4. Parking and loading.
“5. Landscaping.
“6. Open space.
“7. Lot area.
“8. Uses.
“9. Slope modifications, pursuant to procedures set forth in
Chapter 24.08, Part 9 (Slope Regulations Modifications).
“10. Height, not to exceed one story or twenty percent of
height (in feet) over and above regulations established in
district regulations for the district in which the project is
proposed.” (Santa Cruz Mun. Code, § 24.08.720.)
The section concludes with the statement that “[a]ll aspects of the proposed
development which represent a departure from strict application of district
regulations shall be explained in the application and reasons given why the
proposed development plan affords greater public benefits than would be
achieved through application of conventional zoning regulations.” (Ibid.)
C. Standards of Review
At issue here is how to interpret paragraph 9. OSENA contends that to
comply with the PDP variance requirements, an applicant must follow the
procedures found in Chapter 24.08, Part 9 for any slope modifications. The
City argues the inclusion of the slope regulation modifications provided in
45
Chapter 24.08, Part 9 on the list of areas for variation in a PDP means an
applicant does not have to comply with the modification procedures provided
in Part 9.
We review disputes over the interpretation of a statute or ordinance de
novo. (Audio Visual Services Group, Inc. v. Superior Court (2015) 233
Cal.App.4th 481, 489 (Audio Visual).) “[W]e accord no deference to the trial
court’s ruling on this issue.” (Save Our Heritage Organisation v. City of San
Diego (2015) 237 Cal.App.4th 163, 174.) When interpreting an ordinance, we
apply the same rules of interpretation applicable to statutes. (Ibid.) Thus,
we first examine the language of the ordinance, giving the words their usual
and ordinary meaning, in the context of the ordinance as a whole and its
purpose. (Audio Visual, at p. 489.) In addition, we “apply common sense to
the language at hand” and interpret a provision in a manner that makes “it
workable and reasonable” and avoids an absurd result. (Wasatch Property
Management v. Degrate (2005) 35 Cal.4th 1111, 1122.)
“Whether judicial deference to an agency’s interpretation is appropriate
and, if so, its extent—the ‘weight’ it should be given—is . . . fundamentally
situational.” (Yamaha Corp. of America v. State Bd. of Equalization (1998)
19 Cal.4th 1, 12.) The interpretation of an ordinance or other legislation by
its enacting body “is of very persuasive significance.” (City of Walnut Creek v.
County of Contra Costa (1980) 101 Cal.App.3d 1012, 1021.) “Deference is
particularly appropriate where, as here, the agency is interpreting its own
language, drafted to suit a particular circumstance, rather than the language
drafted by the Legislature.” (Bello v. ABA Energy Corp. (2004) 121
Cal.App.4th 301, 318 (Bello).)
Although we consider the plain language of the statute, we consider it
in context and with reference to its purpose. (Audio Visual, supra, 233
46
Cal.App.4th at p. 489; Woodland Park Management, LLC v. City of East Palo
Alto Rent Stabilization Bd. (2010) 181 Cal.App.4th 915, 923 (Woodland)
[courts can determine if literal meaning of statute comports with its
purpose].) Moreover, we recognize that sometimes the meaning of a statute
is not properly determined from a word or phrase in a sentence; a literal
construction should not prevail when it is contrary to the statute’s intent.
(Woodland, at p. 923.)
D. The City Did Not Violate its Municipal Code
1. The City Complied with the PDP Requirements.
The City argues the trial court improperly declined to give deference to
the City’s interpretation of its municipal code and focused on the words
“pursuant to” without regard to the context of their use. We agree. OSENA
argued below, as it does here, that the inclusion of the words “pursuant to”
following “Slope regulation modifications” means, unambiguously, that the
project developer must comply with the provisions of Chapter 24.08, Part 9.
The trial court agreed; its tentative ruling stated it did not find the language
or context of the code ambiguous, and so it was not giving the City’s
interpretation deference. But the court acknowledged during the hearing
that the General Provisions subsection’s reference to “variations” was broad,
and it also told the City the language in the ordinance “created confusion.”
When we read subdivision 9 in the context of the remaining items on
the list and with the purpose of the PDP section in mind, we reach a different
conclusion: The City’s interpretation is consistent with the ordinance text.
The General Provision section explains that it provides a “variation” and a
“departure” from the listed regulations. (Santa Cruz Mun. Code,
§ 24.08.720.) In other words, it provides a variation to the slope regulations
47
modification procedures identified in subdivision 9 because project applicants
already have to follow the slope modification procedures.
Under OSENA’s interpretation of the language, a project applicant
would need to apply for a PDP and, as part of that application process, also
separately apply for a slope modification following the requirements of
section 24.08.720. Under that interpretation, subdivision 9 creates a
redundancy and serves no readily apparent purpose. (See Woodland, supra,
181 Cal.App.4th at p. 926 [rejecting ordinance interpretation that serves no
apparent purpose].) Had the City intended PDP applicants to comply with
the slope modification requirements, it would have achieved that result
simply by omitting slope modifications as an area of variation available
through the PDP process.
The difference in wording of the slope modification procedures as
compared to the preceding areas on the list which concerned the court is
easily explained. Other than subdivision 9, none of the areas listed for
variation via the PDP has a separate Part in the code devoted to a
modification procedure, which distinguishes slope modifications from other
types of variations.16 Additionally, the other areas identified in the General
Provisions section for variances via the PDP have regulations scattered
throughout the code. (See, e.g., Santa Cruz Mun. Code, §§ 24.10.110 [height
limits]; 24.10.130 [yard or open space limitations]; 24.10.450 [open space
16 Portions of the Santa Cruz Municipal Code address building setbacks
or parking variations explicitly. However, they are unlike the slope
regulation modifications because they do not just detail procedures for
seeking modifications; they detail the specific modifications and variances
available. (See Santa Cruz Mun. Code, §§ 24.12.110, 24.12.290.)
48
regulations for multiple residence - low density]; 24.10.585 [open space for
high density multiple residences]; 24.08.440 [substandard residential lot
coverage]; 24.16.140 [lot coverage for accessory dwelling units].)
OSENA’s argument that a procedure for simultaneously seeking a PDP
and a slope modification permit is anticipated in Santa Cruz Municipal Code
section 24.08.810 is unpersuasive. Santa Cruz Municipal Code section
24.08.820 includes a provision that precludes granting a permit for a slope
modification without a hearing if it is accompanied by an application that
must be heard by a higher body. OSENA contends a PDP is just such an
application, but it offers no evidence to support this claim. And the claim
ignores that there are other situations to which the language applies,
including requests for other types of permits or zoning map amendments,
which require public hearings. (See Santa Cruz Mun. Code, §§ 24.04.130
[detailing permits and actions requiring public hearings]; 24.08.030
[administrative use permit]; 24.08.240 [special use permit]; 24.08.920
[historic alteration permit].)
Moreover, OSENA’s contention that the City’s interpretation is
somehow faulty because the DEIR explicitly acknowledges in one location
that conventional slope regulations apply lacks merit because the FEIR
corrects that statement, and other statements in the EIR make clear a PDP
provides a variation from the conventional slope regulations.
Unlike the trial court, we offer deference to the City here. Doing so is
appropriate because we are evaluating a code section the City itself
49
developed.17 (See Bello, supra, 121 Cal.App.4th at p. 319.) Assuming it is
reasonable to treat the words “pursuant to” in subdivision 9 as requiring
compliance with Part 9, the slope modification regulations procedures, we
would nonetheless defer to the City’s interpretation here because it is equally
reasonable to treat “pursuant to,” a phrase that follows a comma, as
introducing a descriptor rather than a mandate, i.e., the area of variation is
the slope regulation modifications, which have detailed procedures in Part 9
of Chapter 24.08. (See Craik, at p. 891 [deferring to county’s construction of
its own ordinance where equally reasonable views reach differing
conclusions]; Bello, at p. 319.) Further, the City’s interpretation is consistent
with the legislative intent of the PDP to allow creative and innovative design
to meet the public interests more readily than through application of the
conventional zoning regulations, which are more cumbersome. (See Santa
Cruz Mun. Code, § 24.08.700.) Accordingly, we conclude the City did not
17 OSENA contends the City’s interpretation of its own ordinance is
undeserving of deference because the interpretation was not formulated
contemporaneously with the adoption of the regulation. However, this
consideration is more appropriate when evaluating an agency’s interpretation
of a statute drafted by a different body. (See Eskeland v. City of Del Mar
(2014) 224 Cal.App.4th 936, 946; see also Craik v. County of Santa Cruz
(2000) 81 Cal.App.4th 880, 891 (Craik).)
50
violate the municipal code by granting a slope modification as part of the
PDP.18
2. The Project Does Not Create New Lots.
OSENA contends the project also violates Santa Cruz Municipal Code
section 24.14.030, subdivision (1)(h), a subdivision of the code’s slope
regulations. Under that provision, “[n]o new lot shall be created which will
require the house to be sited within twenty feet of a thirty-percent slope.”
(Santa Cruz Mun. Code, § 24.14.030, subd. (1)(h).) OSENA argues that
because the project creates a “new lot,” the City is prohibited from building
within 20 feet of a 30 percent slope.19 However, the City explains that the
project does not create new lots; thus, this provision does not apply.
The Santa Cruz Municipal Code defines a “lot” as a “piece or parcel of
land, occupied or intended to be occupied, or capable of being occupied, by a
permitted principal building or a group of such buildings . . . .” (Santa Cruz
Mun. Code, § 24.22.494.) The project has been designed on an already-
existing lot of land, one that is intended to be occupied by a permitted group
of buildings. There is no evidence in the record that the City has requested to
18 Although not necessary to our conclusion regarding the meaning of
subdivision 9 in section 24.08.720, we note that the City addressed slope
stability and other potential concerns via geotechnical analyses and testing
by geotechnical engineers, as well as through studies and testing by civil
engineers and soils experts, as required by other provisions in the code. (See
Santa Cruz Mun. Code, §§ 24.14.060 [erosion hazards]; 24.14.070 [seismic
hazards]; 18.45.010 et seq. [excavation and grading regulations].) The
reports indicate that the project design will improve slope stability.
19 Santa Cruz Municipal Code section 24.14.030 contemplates slopes on
existing lots. Buildings can be added to existing lots within 20 feet of a 30 to
50 percent slope if an exception or variance is granted. (Santa Cruz Mun.
Code, § 24.14.030, subd. (1)(d).)
51
divide the existing lot into smaller lots to build upon. OSENA more or less
concedes this by explaining that the City here approved “a tentative map and
condominium plan that place residential buildings on a single lot” and then
by arguing the City “essentially” created a lot placing residential buildings on
it, because it contends approval of a tract map and a condominium plan
creates a lot. But OSENA does not explain why that must be so under these
circumstances. The project applicant sought approval of a tentative map for
potential future sales of condominium units (see Santa Cruz Mun. Code,
§ 23.16.050), but that approval did not alter the fact that the project was
building 32 units on a single lot of land. Accordingly, Santa Cruz Municipal
Code section 24.14.030, subdivision (1)(h) does not apply.
OSENA also argues the City failed to make this argument before the
trial court. However, when the court commented it believed the parties had
stipulated that the project authorized the creation of lots, the City
contradicted the court’s statement and clarified there was a single lot; it was
not creating new lots.
The court seemed unconcerned about the distinction, explaining its
intent was to prohibit a building within 20 feet of a 30 percent slope until the
City complied with the slope modification provisions. Although the judgment
states the City committed a prejudicial abuse of discretion in part because
the project would create a new lot with a house sited within 20 feet of a 30
percent slope, the court’s admission that it did not have sufficient familiarity
with the intricacies of the project or where lots were laid out belies any claim
the court expressly found the project was creating new lots for the multi-unit
buildings.
Instead, the court focused on the slope regulation modification
requirements found in subdivision (1)(d): “[W]hat I’m directing the city to
52
rescind is the permit itself, until there has been either compliance with the
slope regulation modification or until the project itself is modified so that it
no longer violates the 20 feet within 30 percent slope provisions.” In other
words, the court was concerned about compliance with the slope modification
regulation procedures.
3. Building Setbacks and Slope Regulations are Handled Separately.
Finally, the City contends that because the PDP allows variances to
building setbacks, it can permit building within 20 feet of a 30 percent slope,
as slope regulations are a type of building setback. We need not reach this
issue, having already determined that the City properly sought a variance for
slope modifications via the PDP process. However, were we to consider this
issue on the merits, we would conclude the trial court appropriately
concluded setbacks and slope regulations are separately regulated.
We recognize that the slope regulations create a type of setback in the
conventional sense, because they prohibit building within a certain distance
from a slope. (See Santa Cruz Mun. Code, § 24.14.030.) However, the
municipal code addresses setbacks separately from slope regulations. Not
only is this apparent in the General Provisions of the PDP (id., § 24.08.410),
where they are separately referenced, and in section 24.14.030, which
provides slope regulations but does not mention setbacks, but it also
apparent throughout the code. The District Regulations, which define the
setback requirements for various types of dwelling units, identify the
minimum setbacks for front yard space, rear space, and side yard space, as
well as the minimum distance between buildings and the requirements for
attached garages or carports. (Id., §§ 24.10.585, subd. (2) [high density
districts]; 24.10.608, subd. (2) [medium density districts]; 24.10.616, subd. (2)
[motel residential districts]; 24.10.632, subds. (1), (2) & (3)(b)(1) [beach
53
residential]; 24.10.640, subds. (1), (2) [beach medium/high density
residential].) But there is no mention of setbacks from slopes.20 (Ibid.)
DISPOSITION
We reverse the order and judgment granting the limited writ of
mandamus and remand the matter to the superior court with instructions to
vacate that portion of the judgment that commands the City to set aside
approval of the Planned Development Permit pursuant to Resolution
No. NS-29,949 for the 1930 Ocean Street Extension Residential Project as it
pertains to variations from slope regulations, as approved by the City Council
of the City of Santa Cruz on September 25, 2018. We further direct the trial
20 Slopes are also mentioned in section 24.08.450 in the design
subdivision addressing grading for large homes in single family areas, not in
the subdivision addressing setbacks. (Santa Cruz Mun. Code, § 24.08.450,
subds. (4)(d) & (f)(1).)
54
court to strike the related injunctive relief. In all other respects the
judgment is affirmed.21 Parties to bear their own costs.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
21 The court entered judgment in favor of OSENA. The judgment also
granted OSENA permission to file a Memorandum of Costs (Cal. Rules of
Court, rule 3.1700) and to request an award of attorney fees as the prevailing
party (Cal. Rules of Court, rule 3.1702). We leave this issue for the parties
and the court to address on remand in a manner consistent with this opinion.
55