Save Historic Roseville v. City of Roseville CA3 ( 2020 )

Filed 11/18/20 Save Historic Roseville v. City of Roseville CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
SAVE HISTORIC ROSEVILLE, C090754
Plaintiff and Appellant, (Super. Ct. No. SCV0042495)
v.
CITY OF ROSEVILLE et al.,
Defendants and Respondents.
Plaintiff Save Historic Roseville (Historic Roseville) filed a petition for writ of
mandate and complaint for declaratory relief (petition) seeking to enjoin defendants the
City of Roseville (City) and Junction Station, LP (collectively defendants) from building
a residential structure without further environmental review at the location the City’s
specific plan and associated environmental impact report designated a parking structure.
Historic Roseville brought its petition following the City’s approval of a development
agreement, which occurred months after the City approved a permit and tentative
subdivision map. The issue in this appeal is whether the City’s approval of the permit
and tentative subdivision map constituted approval of the project under the California
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Environmental Quality Act (the Act) or whether it was the subsequent approval of the
development agreement that constituted the approval.
We agree with defendants that the City’s approval of the permit and tentative
subdivision map constituted approval of the project. Thus, Historic Roseville was
required to file its petition within 35 days of the City’s filing of a notice of exemption
following those approvals. (See Pub. Resources Code,1 §§ 21152, subd. (b), 21167,
subd. (d); Cal. Code. Regs., tit. 14, § 15112, subd. (c)(2).) Because Historic Roseville
failed to timely file its petition, its petition is barred by the statute of limitations.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
In April 2009, the City amended its general plan to include the downtown specific
plan (specific plan). The specific plan “encompasses 176-acres and includes the Historic
Old Town, Vernon Street District and Royer Saugstad Parks. The Plan area is divided by
11 districts and emphasizes the addition of mixed-use and residential development. At
buildout, the Plan area is expected to accommodate 900,000 square feet of new ground
floor retail development, 1,020 new residential units, and a cumulative total of 4.4
1 Further section references are to the Public Resources Code unless otherwise
indicated. The Act is implemented by administrative regulations found at title 14,
division 6, chapter 3 of the California Code of Regulations, and will be referred to as the
Guidelines.
2 We previously granted Historic Roseville’s request to judicially notice portions of
the City’s municipal code relevant to its granting of permits. We now deny defendants’
request to judicially notice prior litigation between the parties as irrelevant to the issues
raised on appeal (see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal. 4th 260, 295,
fn. 21) and because the trial court did not consider the prior litigation when ruling on the
current petition (see People v. Peevy (1998) 17 Cal. 4th 1184, 1207-1208, fn. 4 [appellate
courts generally do not take judicial notice of matter not presented to and considered by
the trial court]).
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million square feet. The [specific plan] is the overriding policy document and contains
the guiding principles for development of the plan area.”
The specific plan provides: “The focus in Historic Old Town is to promote a mix
of entertainment/commercial/residential uses that will breathe life into Historic Old Town
and create the desired aesthetic and intensity.” Further, “[t]he goal is to have Historic
Old Town become a vibrant, energetic, exciting urban area that draws young
professionals, empty nesters, and families who enjoy energetic urban settings to it
because of the lifestyle and convenience offered by shops, entertainment, restaurants and
residences being all in one place. Historic Old Town will be highly walkable aided by
this denser urban fabric.”
One of Historic Old Town’s five districts is the Historic Old Town Commercial
District (district). The specific plan provides: “The focus of the [district] is to promote a
unique mix of entertainment/commercial/residential uses that will breathe life into
Historic Old Town and create the desired aesthetic and intensity. The intent of this
[d]istrict is to create a lively destination where nightclubs, comedy clubs, dinner theatres,
bars, lounges, and restaurants are within walking distance of new residential uses . . . .
[¶] Higher density residential and commercial will be contextually designed, and alleys
will provide exciting development opportunities for both commercial and residential
uses. An essential element to the success of this [d]istrict is good quality and diverse
residential options and a range of housing products.”
The specific plan designates two adjoining lots in the district as catalyst sites.
“When [catalyst sites are] developed as mixed-use or high density housing projects, they
will serve as indicators of positive change in Downtown. In order to facilitate early
development of these sites, ‘Pre-design’ concepts have been developed . . . .” “There are
five ‘Pre-Design’ projects within the Specific Plan. These projects have been designed to
reflect the development standards of the Plan. They take property that is currently
underutilized and provide a project that supports the vision and is viable for development
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by the private sector. These project sites are exempt from future entitlement review, as
long as the construction drawings are substantially consistent with what has been
developed. This approach is similar to the City’s existing major project permit process,
where an initial design concept is approved. Additionally, the Environmental Impact
Report analyzes the development impacts at a ‘project’ level.”
The Downtown Code, which was adopted by the City around the same time it
adopted the specific plan provides: “Implementation of these projects will be exempt
from the City’s Design Review Process. To receive this exemption, the future project
will need to follow the process outlined in . . . the Downtown Specific Plan, which is
reflective of an administrative approval process, and the project shall be substantially
consistent with the plans that are approved as part of the Specific Plan.” “New
construction and minor additions that are consistent with the provisions of the Specific
Plan and Downtown Code will be approved via the Minor Design Review Permit
process . . . .” (Bolding omitted.)
The specific plan specifies as a “pre-design” project that the district’s adjoining
catalyst sites become a parking structure given the accessibility of multiple destinations
from the sites’ location. “This structured parking will ultimately help to offset the on-site
required parking for future development. The approach to using public realm parking to
satisfy private parking needs is an essential tool that will help promote redevelopment
within the area.” “This project proposes to construct a four-level public parking structure
providing approximately 400 parking stalls, with a variety of commercial uses [at the
catalyst sites] totaling approximately 91,000 square feet. Access to the parking structure
would be available from Pacific Street, preserving the Church Street frontage for retail
uses on the ground floor . . . .” An environmental impact report analyzing the specific
plan’s impact on the environment was prepared and certified by the City.
In April 2016, the City allocated $3,760,000 from its affordable housing fund to
build Junction Crossing, a 100 percent affordable housing community offering 80 units to
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accommodate very-low and low-income households. Two years later, the City’s
planning commission approved a minor design review permit and a tentative subdivision
map to allow construction of the housing community on the district’s catalyst sites (the
permit). The City filed a notice of exemption with the Placer County clerk indicating the
housing community was exempt from the Act for multiple reasons. Historic Roseville’s
attorney and member Ryan Richards appealed the planning commission’s approval of the
permit and tentative subdivision map.
In June 2018, the city council denied Richards’s appeal and approved the permit,
as well as the tentative subdivision map. In so doing, the City recognized the specific
plan requires approval of minor design review permits for projects that deviate from a
“pre-design” plan. The City further found the housing community deviated from the
“pre-design” project, but was “consistent with the design guidelines and regulations” of
the City and “[t]he proposed improvement complies with all applicable standards and
requirements of the [City], with the applicable goals, policies and objectives set forth in
the General Plan and the . . . Specific Plan.” Accordingly, the City determined the
housing community “to be consistent with the goals, policies, and regulations of the
General Plan [and] Specific Plan . . . ; and [¶] . . . eliminating the private/public parking
garage that is included in the Pre-Design Project for [the catalyst sites] does not require
an amendment to the . . . Specific Plan.” The City again filed a notice of exemption with
the Placer County clerk.
The notice of exemption summarized the project as follows: “A Minor Design
Review Permit to allow a four-story, approximately 80,460 square feet, 80-unit
affordable multi-family residential building, with associated parking. A Tentative
Subdivision Map to allow the merging and resubdivision of 11 parcels, totaling
approximately 1.38 acres, into two parcels (Parcel 1 = 0.07 acres, Parcel 2 = 1.31 acres),
with right-of-way abandonments and dedications, consistent with Government Code
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Section 66499.20.2.” The notice of exemption further provides the project is exempt
from the Act for multiple reasons.
In January 2019, the city council acting in its role as housing successor, passed a
resolution approving a disposition and development agreement between the City and
Junction Station, LP “for the development of 80 affordable housing units utilizing City
and housing successor affordable housing funds and the sale of City property at” the
catalyst sites (agreement). Following the City’s approval of the agreement, it filed a
notice of exemption with the Placer County clerk.
On February 7, 2019, Historic Roseville filed the instant petition. In it, Historic
Roseville requested a declaration that the City violated the Act by approving the
agreement without also adopting a negative declaration or an environmental impact
report. Historic Roseville further requested an injunction setting aside the City’s
resolution adopting the agreement and enjoining defendants from developing the project.3
The trial court denied Historic Roseville’s petition finding it untimely and the
project it challenged exempt under the Act. As to the petition’s timeliness, the court
reasoned Historic Roseville’s petition challenging the City’s resolution adopting the
agreement “makes clear that [its] primary objection is to the [project], and the fact that it
will purportedly reduce available public parking . . . .” Because Historic Roseville’s
attack is to the project, the court reasoned Historic Roseville was required to challenge
the City’s earliest approval of the project, i.e., the permit and not the subsequent approval
as contained in the agreement.
Historic Roseville appeals.
3 Historic Roseville brought a third cause of action irrelevant to this appeal.
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DISCUSSION
Historic Roseville contends the City did not approve the project until it approved
the agreement, and thus the notice of exemption the City filed after approval of the
agreement triggered the statute of limitations under the Act. Defendants disagree and
argue the project was approved, thus triggering the statute of limitations, when the City
approved the permit and tentative subdivision map. We agree with defendants.
The Act “was enacted to advance four related purposes: to (1) inform the
government and public about a proposed activity’s potential environmental impacts;
(2) identify ways to reduce, or avoid, environmental damage; (3) prevent environmental
damage by requiring project changes via alternatives or mitigation measures when
feasible; and (4) disclose to the public the rationale for governmental approval of a
project that may significantly impact the environment.” (California Building Industry
Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal. 4th 369, 382.)
When “a public agency decides that a project is exempt from [the Act] . . . and the
public agency approves or determines to carry out the project, the agency may, file a
notice of exemption.” (Guidelines, § 15062.) If an agency files a notice of exemption
with the county clerk’s office, then a 35-day statute of limitation period applies.
(§§ 21152, subd. (b), 21167, subd. (d); Guidelines, § 15112, subd. (c)(2); see Stockton
Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal. 4th 481, 498-499
(Stockton).) In the absence of a filing, a 180-day statute of limitations begins to run on
“the date of the public agency’s decision to carry out or approve the project.” (§ 21167,
subd. (a); Guidelines, § 15112, subd. (c)(5)(A).) “The notice shall be filed, if at all, after
approval of the project.” (Guidelines, § 15062, subd. (a).)
“Under [the Act], ‘approval’ of a project is ‘the decision by a public agency which
commits the agency to a definite course of action in regard to a project intended to be
carried out by any person.’ ” (Stockton, supra, 48 Cal.4th at pp. 505-506, quoting
Guidelines, § 15352.) “The exact date of approval of any project is a matter determined
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by each public agency according to its rules, regulations, and ordinances. Legislative
action in regard to a project often constitutes approval.” (Guidelines, § 15352, subd. (a).)
Historic Roseville, in essence, argues the City’s approval of the permit was
insufficient to constitute approval of the project because approval of the permit was not a
discretionary act nor did it commit the City to the project.4 We disagree.
“A project is discretionary when an agency is required to exercise judgment or
deliberation in deciding whether to approve an activity. [Citation.] It is distinguished
from a ministerial project, for which the agency merely determines whether applicable
statutes, ordinances, regulations, or other fixed standards have been satisfied. [Citation.]
Ministerial projects are those for which ‘the law requires [an] agency to act . . . in a set
way without allowing the agency to use its own judgment . . . .’ [Citation.] They involve
‘little or no personal judgment by the public official as to the wisdom or manner of
carrying out the project. The public official merely applies the law to the facts as
presented but uses no special discretion or judgment in reaching a decision.’ ”
(Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10
Cal. 5th 479, 489.)
4 Historic Roseville further argues approval of the permit did not constitute approval
of the project because the City did not have the power to approve the permit as worded.
Specifically, Historic Roseville contends the project described in the permit was not
consistent with the specific plan, making the City’s approval of the permit an amendment
to the specific plan, which it could not do through its permitting authority. But the City
made factual findings the project was consistent with the specific plan, thus its approval
of the permit did not amend the specific plan. To address this issue further would be to
address a claim that is properly addressed only upon a petition attacking the City’s
approval of the permit, and not its approval of the agreement, which is at issue here. (See
Stockton, supra, 48 Cal.4th at pp. 506-507 [misuse of authority does not prevent a
project’s approval and subsequently filed notice of exemption from triggering the statute
of limitations].)
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The City’s municipal code provides: “A Minor Design Review Permit shall be
obtained prior to the issuance of a building permit for minor improvements to multi-
family residential and non-residential developments, including . . . [¶] . . . A project
within the Downtown Specific Plan area which is consistent with the design guidelines
and regulations outlined within the Downtown Code . . . .” To approve a minor design
review permit the approving authority “shall” make two findings: 1) The proposed
improvement is minor in nature and is substantially compatible with the existing structure
and complimentary to the adjacent land uses; and 2) The proposed improvement complies
with all applicable standards and requirements of this title and with the applicable goals,
policies and objectives set forth in the General Plan, the applicable Community Design
Guidelines and the applicable specific plan.”
Whether an improvement is “minor,” “substantially compatible with existing
structures,” and “complimentary to the adjacent land uses” do not involve applying fixed
standards. Instead, these determinations require the use of personal judgment and the
simultaneous weighing of several interests and facts. Thus, the City’s approval of the
permit was a discretionary act.
Further, the City’s approval of the permit committed the City to the project.
Commitment occurs when an agency’s action significantly furthers a project “ ‘in a
manner that forecloses alternatives or mitigation measures that would ordinarily be part
of [an environmental] review of that public project.’ ” (Save Tara v. City of West
Hollywood (2008) 45 Cal. 4th 116, 138.) Courts should look to “whether, as a practical
matter, the agency has committed itself to the project as a whole or to any particular
features, so as to effectively preclude any alternatives or mitigation measures that [the
Act] would otherwise require to be considered, including the alternative of not going
forward with the project.” (Id. at p. 139.)
Approval is not equivalent to an agency’s “mere interest in, or inclination to
support, a project.” (Save Tara v. City of West Hollywood, supra, 45 Cal.4th at p. 136.)
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On the other hand, an agency can “commit” to a project “as a practical matter” even
before it has legally and/or irreversibly bound itself to move forward with the project.
For example, “[a] public entity that, in theory, retains legal discretion to reject a proposed
project may, by executing a detailed and definite agreement . . . and by lending its
political and financial assistance to the project, have as a practical matter committed itself
to the project.” (Save Tara, supra, 45 Cal.4th at p. 135.) Moreover, an agency may be
deemed to have committed to a project “even though further discretionary governmental
decisions would be needed before any environmental change could occur.” (Id. at
p. 134.)
With approval of the permit, the City conferred an entitlement to Junction Station
manifesting its intent to build the project. (See Guidelines, § 15352, subd. (b) [“With
private projects, approval occurs upon the earliest commitment to issue or the issuance by
the public agency of a discretionary contract, grant, subsidy, loan, or other form of
financial assistance, lease, permit, license, certificate, or other entitlement for use of the
project”].) Further, the City approved a tentative subdivision map at the time it approved
the permit. This approval moved the City forward toward completing the project by
creating parcels suitable for construction of the project. Such entitlements, effectively
precludes consideration of any alternatives or mitigation measures the Act would
otherwise require. (See Save Tara v. City of West Hollywood, supra, 45 Cal.4th at p.
139.) Thus, as a practical matter, the City committed itself to the project by approving
the permit. Accordingly, the notice of exemption filed with the county clerk following
that approval served to trigger the statute of limitations under the Act.
Historic Roseville attempts to avoid this conclusion by arguing the notice of
exemption filed after approval of the permit is defective because it failed to adequately
identify the project as approved by the agreement. Specifically, Historic Roseville
contends the notice was invalid because it omitted that the City would sell City property
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for development of the project and that the City intended the parking structure not be
constructed. We disagree.
A notice of exemption must give a description of the project, the location, the
finding that it is exempt and a “brief statement of reasons to support the finding.”
(Guidelines, § 15062, subd. (a)(1)-(a)(5).) “In Ventura Foothill Neighbors v. County of
Ventura (2014) 232 Cal. App. 4th 429 [181 Cal. Rptr. 3d 421], the court found [a notice of
determination] ineffective to trigger the 30-day statute of limitations because the project
description failed to disclose a 15-foot increase in the building’s height, and so the public
had not received formal notice of that fact. Instead, the 180-day statute of limitations
period applied, and began on the date that members were first informed of the height
increase.” (Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles
(2020) 47 Cal. App. 5th 368, 379.)
Unlike Ventura Foothill Neighbors, Historic Roseville does not point to specific
project descriptions contained in the agreement or its associated notice of exemption that
differed from the project description in the notice of exemption following approval of the
permit. The sale of City land to build the project did not change the project from that
described in the notice of exemption filed after the City’s approval of the permit and
tentative subdivision map. Thus, the fact the City sold property cannot serve as a basis to
invalidate the notice of exemption. Similarly, the project never purported to include a
parking structure, thus the fact that the absence of a parking structure was disclosed
during approval of the agreement does not invalidate the notice of exemption. Moreover,
even if the notice of exemption did not properly disclose the fact a parking structure was
not to be included at the catalyst sites, Historic Roseville’s petition would still be
untimely because the record reflects the City disclosed that fact when approving the
permit. Therefore, to the extent the notice of exemption is invalid for failing to
adequately describe the parking structure was no longer part of the project, the 180-day
statute of limitation period was triggered from the City’s approval of the permit. (See
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§ 21167, subd. (a); Guidelines, § 15112, subd. (c)(5)(A).) Historic Roseville’s petition
was not filed within that time frame either.
Because the notice of exemption filed after the City approved the permit occurred
after project approval and was valid, it triggered the statute of limitations under the Act.
Consequently, Historic Roseville’s petition challenging the City’s project approval under
the Act is untimely.5
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Blease, J.
5 Given this outcome, we deny defendants’ request to judicially notice a provision
of the City’s municipal code pertaining to the sale of surplus property as irrelevant
because it pertains to the substantive issue not reached in this appeal. For the same
reason, we also deny Historic Roseville’s request to judicially notice the train schedule at
the train station located near the district.
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