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COURT OF APPEAL EXTENDS CEQA HOLDING ON RECORD PREPARATION LABOR COSTS TO OTHER ADMINISTRATIVE RECORD CASES

Monday, August 1st, 2016

After successfully defending a challenge to a resolution granting nonconforming use status to a mining operation in Santa Clara County, Respondent’s attorney filed a motion to recover costs associated with the preparation of the administrative record. This included the labor costs for the attorneys and paralegals who had assisted with the preparation of the large and complex record. Respondent was not otherwise entitled to recover attorney’s fees, and Petitioner argued that to grant these fees in the context of labor costs would be the equivalent of granting attorney’s fees.

While the trial court found that there was good reason to grant the costs due to the complexity of the record, it ultimately denied the motion because there was no appellate legal authority on point. In No Toxic Air v. Lehigh Southwest Cement Co., 2016 Cal. App. LEXIS 624, the Court of Appeal provided that authority by extending CEQA precedent to other proceedings that involve an administrative record.

In the CEQA context, this issue was definitively decided in Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60,where the court ruled that the prevailing party could recover the labor costs of attorneys and paralegals in the creation of the administrative record as long as the labor costs were reasonably and necessarily incurred. To hold otherwise, the court stated, would undermine the statutory policy of shifting the costs and expenses of preparing the administrative record.

Here, the Sixth District held that the same reasoning used in Otay Ranch applied in other cases in which an administrative record was prepared. Accordingly, the Court held that labor costs for attorneys and paralegals to prepare the administrative record are recoverable as expenses under Code of Civil Procedure, section 1094.5, subdivision (a).

Key Point: A prevailing party can recover the labor costs of attorneys and paralegals in the creation of the administrative record, even in non-CEQA administrative mandamus cases, as long as the labor costs were reasonably and necessarily incurred.

IN CENTRAL VALLEY SHOWDOWN OVER ANNEXATION, THE CITY OF KINGSBURG REIGNS (MOSTLY) SUPREME

Thursday, July 28th, 2016

In 2012, the City of Kingsburg began the process of annexing approximately 430 acres of land in Fresno County, including developed land that was home to three major facilities: a glass manufacturing plant, a grape processing facility, and a raisin processing plant. The land proposed for annexation separates the City of Kingsburg from the City of Selma, which is located approximately five miles to the north.

Before approving the annexation, Kingsburg concluded that the project would not cause any significant environmental impacts with mitigation and prepared a mitigated negative declaration (MND). When Kinsgburg certified the MND in September of 2012, it also requested that the Fresno County Local Area Formation Commission (LAFCo) initiate proceedings to approve the annexation. After continuing the annexation hearing several times, LAFCo approved the annexation on July 17, 2013.The City of Selma brought two actions challenging the decision: one against Kingsburg and one against LAFCo.

The court decided City of Selma v. City of Kingsburg, 2016 Cal. App. Unpub. LEXIS 5207 in an unpublished opinion. The City of Selma had challenged the CEQA process used by Kingsburg to approve the annexation and to repeal certain design standards applicable to the annexation area that concerned the large glass manufacturer, including a requirement to place electrical and telecommunications lines underground.

The court first held that written materials relevant to the agency’s compliance with CEQA must be included in the administrative record, even if the documents were prepared after the project was approved. Next, the court affirmed the trial court and held that Kingsburg had complied with CEQA for the annexation project by preparing an MND. In doing so, the court rejected Selma’s challenges to the adequacy and scope of the water supply analysis and Kingsburg’s ability to provide fire protection to the annexed area.

Finally, the court found that Kingsburg had failed to demonstrate that the common sense exception applied to the repeal of the design standards. The court rejected Kingsburg’s argument that the existence of other standards precluded the possibility that repealing the design standards could cause significant environmental impacts. The Court also held that Kingsburg erred by failing to reference the factual record in its notice of exemption.

The Fifth Appellate District partially published its opinion in City of Selma v. Fresno County Local Agency Formation Commission, 2016 Cal. App. LEXIS 581. For various reasons, the LAFCo hearing had originally been noticed for April 10, 2013 but was continued until July 17, 2013. Selma argued that this violated Government Code section 56666, subdivision (a)’s 70-day limitation for continuances. The court agreed, but concluded that the 70-day limitation is directory rather than mandatory pursuant to section 56106.

The court contrasted this provision with Government Code section (h), a mandatory provision which requires an annexation hearing to be scheduled for a date not more than 90 days after the annexation application was received. Because the continuance provision at issue was directory rather than mandatory, the remedy was not reversal of LAFCo’s determination.  The court acknowledged that this holding made the 70-day continuance limitation “relatively toothless.”

Key Point: Failure to comply with the continuance limitation, as opposed to the initial scheduling requirement, for LAFCo annexation proceedings will not result in a reversal of the LAFCo’s determination.

COURT OF APPEAL PARTIALLY PUBLISHES RECENT URBAN DECAY MND CASE

Thursday, July 14th, 2016

On July 13, 2016, the Fourth Appellate District ordered the partial publication of its recent decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino. Thomas Law Group requested publication on behalf of the California Infill Builders Federation.

The opinion addresses challenges to a proposed retail store on the basis of alleged urban decay impacts and community plan inconsistencies. While these issues frequently arise in California Environmental Quality Act challenges to a Mitigated Negative Declaration (MND), existing published case law is sparse. Significantly, the opinion is the first published decision in nearly a decade to address an urban decay challenge in the context of an MND. In addition, the opinion articulates that the abuse of discretion standard of review, as opposed to the fair argument standard, is appropriate for land use plan consistency determinations relating to policies that “were not adopted to mitigate environmental impacts.”

The only portion of the opinion that was not published by the Court was Section IV, which addresses whether the County was required to disclose that the future occupant of the project was Dollar General.

For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

COURT OF APPEAL PARTIALLY PUBLISHES RECENT GENERAL PLAN CONSISTENCY CASE

Tuesday, July 5th, 2016

On July 1, 2016, the Fifth Appellate District granted Thomas Law Group’s request to publish the general plan consistency argument in Naraghi Lakes Neighborhood Preservation Association v. City of Modesto. This newly published discussion is a useful aid to practitioners and local governments, providing clarification on when general plan policies should be treated as “mandatory development standards.” The sections on the rezoning findings and CEQA arguments remain unpublished. For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

FOURTH DISTRICT UPHOLDS COUNTY’S MITIGATED NEGATIVE DECLARATION FOR DOLLAR GENERAL STORE IN JOSHUA TREE

Friday, July 1st, 2016

In an unpublished opinion, Joshua Tree Downtown Business Alliance v. County of San Bernardino, 2016 Cal. App. Unpub. LEXIS 4405, the Fourth Appellate District rejected a challenge to the County’s approval of a 9,100-square-foot Dollar General store (“Project”) proposed by Dynamic Development (“Dynamic”) in Joshua Tree.

The County circulated an initial study and proposed negative declaration in August 2012. Many of the nearby property owners raised concerns that the Project would be out of character with the family-owned business community in Joshua Tree. In response to such concerns, the County changed its environmental determination from a negative declaration to a mitigated negative declaration and recirculated it in November 2012. After the County Board of Supervisors approved the Project in January 2013, the Joshua Tree Downtown Business Alliance (“Alliance”) filed a petition for writ of mandate, alleging that the County violated the California Environmental Quality Act (“CEQA”) by failing to analyze the Project’s potential for causing urban decay and blight. The Alliance also alleged that the County violated CEQA by attempting to hide the identity of the intended occupant and by approving a project that was inconsistent with the Joshua Tree Community Plan (“Community Plan”).

The trial court held that an EIR was required because there was substantial evidence to support a fair argument that the Project could cause urban decay. The trial court relied on the comments made by Ms. Doyle, a member of the Alliance and a lawyer who had previously counseled on land use issues as an Assistant Attorney General in the Oregon Department of Justice. The trial court reasoned that her experience demonstrated sufficient relevant personal observations that constituted substantial evidence under CEQA. Dynamic appealed and the Alliance cross-appealed on the remaining claims.

On appeal, the court reversed the trial court on the urban decay claim, holding that the mere fact that the Project may have potential economic impacts did not require an EIR where the economic impacts would not cause reasonably foreseeable indirect environmental impacts. The court found that the County properly considered that this was a “small box” retail project rather than the typical “big box” retail project analyzed in urban decay cases. The court also rejected the Alliance’s contention that Ms. Doyle’s opinions should have been considered substantial evidence. The court explained that Ms. Doyle was not qualified to opine on the Project’s economic impacts because she was not an economist and, moreover, her conclusions that urban decay would occur were speculative because they had no factual basis.

Next, the court rejected the Alliance’s allegation that the County violated CEQA by failing to identify the end user of the Project. The court recognized that CEQA does not require a lead agency to disclose an end user generally, but there may be times where the identity of the end user would be considered “environmentally relevant.” That was not the case here because Alliance did not produce any evidence that a Dollar General would have adverse environmental impacts beyond that of a “general retail store.”

Finally, the court rejected the Alliance’s argument that Project required an EIR because it was inconsistent with the Community Plan. The court declined Alliance’s request to view this as a CEQA issue that should be reviewed under the fair argument standard. Instead, the court applied the usual standard for a claim of inconsistency with a land use plan: abuse of discretion. The court held that the mere fact that the Project might compete with established local businesses did not make it inconsistent with the Community Plan’s provisions encouraging small businesses, and found that the terms “encourage” and “support” to be amorphous policy terms that gave the County discretion when making its consistency determination. Accordingly, the court found that the County had not abused its discretion.

NEWLY PUBLISHED FOURTH DISTRICT OPINION FINDS WAL-MART PROJECT INCONSISTENT WITH GENERAL PLAN AND CREATES NEW FINDINGS REQUIREMENT FOR PARCEL MAP APPROVALS

Monday, June 20th, 2016

On June 15, 2016, the Fourth District Court of Appeal published its opinion in Spring Valley Lake Association v. City of Victorville (D069442). The case involved a CEQA and Planning and Zoning Law challenge to a Wal-Mart project (“Project”) that was approved by the City of Victorville. After the trial court found in favor of Petitioner Spring Valley Lake Association (“Petitioner”) on some of its claims, Real Party in Interest Wal-Mart appealed and Petitioner cross-appealed.

Wal-Mart’s Appeal

Wal-Mart appealed the trial court’s determinations that: (1) there was no substantial evidence in support of the City’s general plan consistency finding; and (2) the EIR had inadequately analyzed the Project’s greenhouse gas emissions impacts. The appellate court affirmed the trial court’s judgment on both issues.

The general plan consistency issue turned on one policy, IM 7.1.1.4, which requires all new commercial or industrial development to generate electricity on-site “to the maximum extent feasible.” The Project was developed to be solar ready, but Wal-Mart did not commit to the installation of panels because, as explained in a response to comment, it was uncertain whether the $750,000 cost would be offset by any federal tax credits or California incentives. Without the offsets, the response stated that the installation was economically infeasible. The court interpreted this response as effectively finding that “there was no extent to which it would be feasible to require the project to generate electricity on-site, whether by solar or other means.” The court held that this finding was not supported by substantial evidence in the record because there was no mention of why non-solar methods of generating electricity on-site were infeasible. The court showed little deference to the City’s own interpretation of what was considered “feasible” in this situation.

Surprisingly, despite the policy’s ambiguous language “to the maximum extent feasible,” the court held that this was a “fundamental, mandatory, and clear” policy. As such, the Project’s failure to be in conformance with this one policy was sufficient for the court to reject the City’s general plan consistency determination. (See Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782.)

Turning to the EIR’s greenhouse gas analysis, the court held there was conflicting evidence about whether the Project would achieve a 15-percent reduction above Title 24 standards. References in the EIR stated in some places that the figure would be 14-percent, and in others, 10-percent. Because the record did not show the Project would actually achieve the 15 percent reduction, the court held that there was no support for the City’s determination that the Project would not have significant greenhouse gas emissions impacts.

Petitioner’s Cross-Appeal

Petitioner cross-appealed the trial court’s determination that the City did not violate CEQA by failing to recirculate the EIR after it revised the traffic, air quality, hydrology, and biological resources impacts analyses. The court of appeal held that recirculation was required only for the air quality and hydrology analyses because the revisions to those sections constituted “significant new information” and the public did not have a meaningful opportunity to comment on those changes.

Petitioner also argued on appeal that the City violated the Planning and Zoning Law by failing to make all the findings required by Government Code section 66474 before approving the Project’s parcel map. In what appears to be an issue of first impression, the court agreed, relying on an Attorney General’s Opinion from 1975.

Key Point: Going forward, local governments should affirmatively address that the approval of the parcel map does not create any of the issues listed in Government Code section 66474. Local governments should also continue to make findings under Government Code section 66473.5 when approving a parcel map.

Thomas Law Group is requesting depublication of the Court’s general plan consistency discussion as it departs from the existing case law’s emphasis on deference to the agency’s determination of consistency.

FIFTH APPELLATE DISTRICT REJECTS GENERAL PLAN CONSISTENCY AND CEQA CHALLENGES TO LARGE SHOPPING CENTER PROJECT IN AN UNPUBLISHED OPINION

Thursday, June 16th, 2016

A neighborhood group, Naraghi Lakes Neighborhood Preservation Association (“Petitioner”), challenged the City of Modesto’s approval of a 170,000 square foot shopping center project (“Project”) on an 18-acre site adjacent to an established residential neighborhood. Petitioner alleged that the City’s approval was inconsistent with Modesto’s General Plan and did not comply with CEQA. On June 7, 2016, the Fifth District ruled in favor of the City in an unpublished opinion, Naraghi Lakes Neighborhood Preservation Association v. City of Modesto, 2016 Cal. App. Unpub. LEXIS 4149.

The Project area was within the General Plan’s “Neighborhood Plan Prototypes,” which were designed to create a blueprint for residential neighborhood development. One of the Neighborhood Plan Prototype’s policies requires: “A 7-9 acre neighborhood shopping center, containing 60,000 to 100,000 square feet gross leasable space.” Petitioner argued that the large size of the Project was inconsistent with this policy. The court disagreed, finding that the prototypes were meant to provide guidance, not inflexible mandates, and that the Project was in conformance with other General Plan policies. The court emphasized that perfect conformity will all policies is not required and that a finding of consistency should be upheld unless “no reasonable person could have reached the same conclusion.”

Next, the court found that the City had made the appropriate findings required by the General Plan to rezone the property and rejected Petitioner’s argument that the proposed environmental mitigation was not “adequate” because some traffic impacts were not mitigated to less than significant levels. Because other policies in the General Plan allowed the City to avoid making infeasible or prohibitively expensive traffic improvements, the court did not agree with Petitioner’s interpretation of “adequate” mitigation. The court did not consider other general plan consistency arguments proffered by Petitioner because these contentions were not raised in the administrative proceedings.

Finally, the court addressed Petitioner’s argument that the City failed to comply with CEQA because: (1) the findings of infeasibility as to certain mitigation measures were not supported by substantial evidence; (2) the EIR did not adequately analyze a reduced project alternative; (3) the urban decay findings were not supported by substantial evidence; and (4) the findings made in connection with the statement of overriding considerations were not supported by substantial evidence. The court held that there was sufficient evidence in the record to support the various findings singled-out by Petitioner and found that the City’s alternatives analysis complied with CEQA.

Accordingly, the appellate court affirmed the trial court’s judgment in favor of the City.

MARIJUANA DISPENSARY ORDINANCES IGNITE CEQA LITIGATION

Friday, April 8th, 2016

Recently, the California Court of Appeals issued two CEQA decisions concerning marijuana dispensary ordinances, specifically addressing whether the ordinances constitute projects under CEQA, and if so, whether the ordinances fall under the common sense exemption.

First, in a published opinion, Union of Medical Marijuana Patients, Inc. v. City of Upland, 2016 Cal. App. LEXIS 223, the Fourth Appellate District upheld the City’s determination that a 2013 ordinance prohibiting mobile medical marijuana dispensaries was not a project under CEQA. The City had previously adopted an ordinance in 2007 that prohibited both fixed and mobile medical marijuana dispensaries. The City’s use of a negative declaration for the 2007 ordinance was not challenged.  

The Union of Medical Marijuana Patients (UMMP), a non-profit civil rights organization advocating the rights of medical cannabis patients, argued that the 2013 ordinance could have new environmental impacts that should be analyzed under CEQA. The court rejected this argument, finding that the 2013 ordinance merely restates the 2007 ordinance and thus does not constitute a project that is subject to CEQA.

Even if the ordinance did not merely restate existing law, the court still would have found that the ordinance did not constitute a project because the alleged impacts from the 2013 ordinance were too speculative.

Because the court concluded that the 2013 ordinance was not a project, it did not address the City’s claim that the ordinance was exempt under the common sense exemption.

The use of the common sense exemption was addressed in the unpublished opinion T.C. v. County of Kern, 2016 Cal. App. Unpub. LEXIS 2333 (TC). In TC, the Fifth Appellate District held an initiative measure (Measure G) placed on the ballot by Kern County, which authorized medical marijuana dispensaries but restricted them to areas zoned for industrial use, was not exempt from CEQA review pursuant to the common sense exemption.

Measure G went to the voters on June 5, 2012 and was approved with 69 percent of the vote. A lawsuit was subsequently filed alleging that the County failed to comply with CEQA.

On appeal, the court held that Measure G did not qualify for CEQA’s common sense exemption because the County’s own findings concerning Measure G explicitly identified “serious secondary effects,” including increased traffic, noise, and litter, that are caused by unregulated dispensaries. The court found that Measure G could force dispensaries currently located in non-industrial zones to relocate to unregulated areas outside of the County, causing these environmental impacts to occur.

The court also rejected contentions that Measure G qualified for two categorical exemptions set forth in sections 15308 (Class 8) and 150321 (Class 21) of the CEQA Guidelines because the adoption of Measure G by the voters did not constitute an action taken by a regulatory agency. The court further held that Measure G did not assure protection of the environment and would have caused a rebalancing and reallocation of environmental impacts.

Accordingly, the court upheld the trial court’s invalidation of Measure G.

Key Point:

Whether a particular activity constitutes a project is a question of law. Therefore, the court considers in the first instance whether the public agency’s activity will cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.

In comparison, whether a particular activity qualifies for the common sense exemption presents an issue of fact that is examined by the court for an abuse of discretion. The standard of review for the use of the common sense exemption is not entirely clear after the Supreme Court’s decision in Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372. Here, in the unpublished decision, the court applied the deferential substantial evidence standard but still found that the County’s use of the exemption was not supported by evidence in the record.

PLACER COUNTY’S HOMEWOOD VILLAGE RESORT EIR COMES UNDER FIRE

Monday, January 4th, 2016

In an unpublished opinion, Cal. Clean Energy Comm. V. County of Placer, 2015 Cal. App. Unpub. LEXIS 9360, the Third Appellate District granted California Clean Energy Committee’s (Clean Energy) petition for writ of mandate challenging the County of Placer’s (County) approval of a proposal to expand an existing ski resort on the West Shore of Lake Tahoe.

Real Party in Interest, Homewood Village Resorts, LLC, proposed improvements to the Homewood Mountain Resort (Project), which would include: the redevelopment of the “North Base” for mixed-use; the “South Base” for residences; and the “Mid-Mountain area” for a lodge and beginner ski area. After a comprehensive Environmental Impact Report (EIR) process, the County Board of Supervisors approved the Project and certified the EIR. The County concluded that the Project’s social and economic “benefits outweigh the Project’s significant and unmitigated adverse impacts,” and “the adverse environmental impacts of the Project that are not fully mitigated are acceptable.” On review, the trial court issued a written ruling concluding the General Plan substantially complied with the statutory mandate to “address” wildfire evacuation routes; the County had broad discretion to determine the appropriate “threshold” for evaluating environmental impacts; and substantial evidence supported the County’s findings.

On appeal, Clean Energy contended that the County’s approval of the Project involved defects in the Placer County General Plan (General Plan) in violation of the Planning and Zoning laws (Gov. Code, § 65000 et seq.), because the General Plan does not “address evacuation routes” for the Project area, a high-risk wildlife area, as required by Government Code, Section 65302. Clean Energy also contended that the County violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) because the EIR for the Project failed to consider: (1) increased wildfire evacuation risks; (2) energy impacts for expanded snowmaking; (3) other energy impacts; (4) world travel impacts; and (5) because the evidence is insufficient to support the findings of infeasibility of carbon offsets and rail packages as climate disruption mitigation measures.

The Court first addressed alleged procedural defects in Clean Energy’s General Plan claims, concluding that Clean Energy’s Subdivision Map Act claim was neither forfeited nor barred by any statute of limitations. The Court then found that even though Clean Energy did not file a direct attack on the General Plan within the specified time period after its approval, Clean Energy had filed a timely lawsuit challenging the Board’s approval of a specific project; there was a nexus between the Project and General Plan to address contentions related to wildfire evacuation routes. Turning to Clean Energy’s substantive claim that the General Plan failed to “address” wildlife evacuation routes as required by Government Code, Section 65302, subdivision (g)(1), the Court applied a deferential standard of review and rejected Clean Energy’s argument. The Court concluded that the County’s General Plan is in substantial compliance with the former Government Code, Section 65302, subdivision (g) requirement to “address evacuation routes” related to “identified fire hazards.”

The Court then turned to Clean Energy’s CEQA claims. Clean Energy argued that the EIR failed to evaluate both components of wildlife evacuation risk – evacuation by residents, workers, and visitors, and the impact of that evacuation on access by emergency entities responding to wildfire. The Court concluded the EIR failed to adequately identify, describe, and analyze the wildfire evacuation risk associated with residents, workers, and visitors fleeing the area and the impact that evacuation will have on emergency response access.   The court explained that the EIR too narrowly focused the public safety discussion on emergency vehicle access, but even then, did so without discussing how emergency responders could share the same inadequate roads with vehicles occupied by residents, workers, and visitors evacuating the area.

Next, the Court rejected Clean Energy’s remaining CEQA claims involving energy impacts, world travel impacts, and climate impacts because Clean Energy failed to establish that any of those arguments are grounds for reversal. Specifically, the Court found that Clean Energy failed to exhaust on its claims related to transportation and equipment energy impacts, renewable energy resources, worldwide tourism impacts, and climate disruption mitigation. The Court rejected Clean Energy’s remaining energy claims and found that the EIR’s treatment of energy impacts complied with CEQA.

The Court reversed the judgment based on Clean Energy’s wildfire evacuation hazard CEQA claim and remanded the matter to the trial court with directions to enter a new judgment granting the petition for writ of mandate.

Court Agrees with City of San Diego’s Interpretation of its Municipal Code

Monday, June 15th, 2015

In Save Our Heritage Organisation v. City of San Diego 2015 Cal. App. LEXIS 462, Plaintiffs challenged the City of San Diego’s (City) approval of a revitalization project that would result in significant impacts to a bridge that has been designated as a National Historic Landmark. The Fourth District Court of Appeal denied all of plaintiff’s arguments and upheld the City’s approval of the project.

The Court of Appeal defined the “pivotal issue” of this case as the proper interpretation of Municipal Code section 126.0504, subdivision (i)(3). Section 126.0504 provides that when the City plans to develop on a site that may result in significant impacts on resources, it must obtain a Site Development Permit. Subdivision (i)(3) of that section requires the City to find that there is no reasonable beneficial use of the property without the project.  Plaintiff challenged the City’s findings made under section 126.0504, subdivision (i)(3), arguing the City failed to provide substantial evidence supporting its decision.

Courts apply rules relating to statutory interpretation in evaluating a municipality’s interpretation of its Code.  Thus, the Court of Appeal afforded deference to the City’s interpretation and found substantial evidence supported the City’s determination that the property had no reasonable beneficial use without the project. In reaching its decision, the court examined whether substantial evidence supported the City’s determination that the property’s uses in its unmodified state were unreasonable under the circumstances. The court did not ask whether a project opponent could present evidence that the property could be put to some beneficial use without the project – that, the court explained, “would set a nearly insurmountable bar.” (Id. at p. 22.)

Plaintiff alternatively argued the City presented no substantial evidence to support the finding under section 126.0504, subdivision (i)(3) that denial of the Project would make it infeasible to derive a reasonable economic return from the property. The court rejected this argument because plaintiff failed to properly preserve the issue during administrative proceedings.

Plaintiff next challenged the City’s actions under section 126.0504, subdivision (a), which requires a finding that the project would not adversely affect the City’s applicable land use plans. After reviewing the record de novo, the court found substantial evidence to support the City’s conclusion that, in spite of some inconsistencies created by impacts to the original bridge, the Project as a whole furthers the majority of the goals and policies in all of the applicable land use plans.

On cross-appeal, plaintiff alleged that by proposing to construct a pay-parking structure, the City had violated the California Statutes of 1870, which set aside certain lands to remain a “free and public park.” The court disagreed; explaining that the 1870 limitations placed on the City’s powers with regard to managing city parks was annulled when the state Legislature approved the City’s charter.

Key Point:

Courts will provide deferential treatment to a City’s interpretation of its own ordinances. In addition, the limits placed on public lands by the California 1870 Statutes are annulled when a later act of the state Legislature grants the City powers to regulate and control its own public lands.