In Friends of Riverside’s Hills v. City of Riverside (2018) 26 Cal.App.5th 1137, the Fourth District Court of Appeal denied a neighborhood group’s petition to set aside the City of Riverside’s (City) approval of a six single-family housing development (Project) where there was no substantial evidence supporting a fair argument of a violation of the land use ordinances and no evidence of an abuse of discretion.
Before this controversy arose, the City established a residential conservation zone in order to protect the hills, canyons, and unique natural views of the area. Within this zone, planned residential developments (PRD) meeting eight criteria are permitted to deviate from conventional subdivisions requirements in specified ways. The purpose of this allowance is to provide more flexibility in site density and individual lot size for PRDs. A PRD applicant may also pursue a “density bonus.” To do this, the PRD plan must cluster residences in the less steep portions of the site, appoint a conservation group to maintain open space areas, and achieve at least six of eleven “superior design elements” that promote environmentally conscious design.
In November 2013, Real Parties in Interest Carlton and Raye Lofgren (the Lofgrens) submitted plans for a PRD with a density bonus to subdivide a 12-acre site into six lots with designated open space. The Planning Commission recommended the City Council approve the Project and adopt a negative declaration. The City Council ultimately approved the Project and adopted a negative declaration with a revised tract map showing the site as 11.6 acres with six lots clustered on the less steep parts of the site and the remainder of the site designated as open space.
Friends of Riverside’s Hills (FRH) brought suit challenging the City’s approval. FRH alleged the Project failed to properly cluster the residences as required to qualify as a PRD, and failed to seek a variance from the City’s standard lot size requirement. The trial court denied the petition in its entirety. FRH appealed.
On appeal, FRH advanced numerous arguments alleging that the Project violated the City’s code. The Court concluded that the record established that the Project, as approved, did not violate the City’s code.
First, the Court explained that FRH’s claims that the Lofgrens would not comply with the Project’s conditions of approval and that the homes would be unlawfully placed in high grade portions of each lot were speculative. The tract map approved by the City showed division of the site into lots but not where the residence would be on each lot. FRH’s claim that the Lofgrens would not build each residence in accordance with the municipal code was therefore speculative, absent any additional evidence.
Next, the Court rejected FRH’s argument that the City violated its code by failing to require the Lofgrens seek individual variances for each lot. The Court explained that, pursuant to the express requirements of the City’s code, individual lot variances are only required for conventional residential developments, not PRDs.
In reaching its holding, the court distinguished Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 (Pocket Protectors). In Pocket Protectors, “ample” evidence supported the conclusion that the project violated the city’s land use provisions and those violations had the potential to result in significant environmental impacts. Here, while the Court concluded that the code provisions identified by FRH were adopted to potentially avoid or mitigate environmental impacts of development, the Court held that the City did not violate its code in approving the Project. As a result, the Court necessarily concluded that FRH could not make a “fair argument” that an EIR was necessary in reliance on the alleged code violations.
FRH also argued that the City abused its discretion in approving the Project because the City’s conclusion that the natural slope of the lots was between 15 and 30 percent was not supported by substantial evidence and because it was improper for the City to allow developer to defer selection between design elements authorized by the City until the grading permit stage. The Court quickly rejected the slope argument stating that it “borders on frivolous” because Lofgren’s engineer submitted many reports throughout the approval process demonstrating that the slope does not exceed 30 percent.
Finally, in rejecting, FRH’s deferred design element argument. The court first noted that at the time the City approved the Project the Lofgrens had already demonstrated in their proposed plans which designs they proposed to utilize. Thus, this information was before the City when it approved the Project. Moreover, per the municipal code, an applicant is not required to choose the design elements at this stage of the approval process because it is difficult, if not impossible, to know which building or landscaping elements are feasible at this stage.
Where a challenger alleges violations of local code as a basis for asserting a fair argument that a project may have a significant environmental impact, the challenger has the burden to both demonstrate a violation or conflict with the local code exists and that the local code provisions at issue were adopted for the purpose of avoiding or mitigating an environmental effect.