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Posts Tagged ‘mitigated negative declaration’


Fourth District Court of Appeal Finds Project Approval Improper in Seaside Subdivision; Cites Inconsistency with Local Law, Health and Safety Violations

Thursday, February 8th, 2018

The La Playa neighborhood is home to some of the most expensive homes in San Diego (Mike McCarthy / The Beacon)

In Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034, the Fourth District Court of Appeal reversed the trial court and upheld the City Council’s findings that a mitigated negative declaration (“MND”) prepared for a vesting tentative parcel map and related construction permits (“Project”) was inadequate.

The Project proposed subdividing a 1.45-acre lot into four lots, retaining an existing two-story residence on one lot, and constructing a new residence on each of the three remaining lots. The Project site is located in the La Playa neighborhood of the Peninsula Community Plan (“Plan”) area, which includes large single-family homes of various ages and architectural styles.

The proposed four lots would share a private driveway, but the slope of the driveway would be too steep for fire trucks to access the property. Accordingly, the Project would include the installation of standpipes near the furthest three residences, which would provide fire personnel with direct access to water connections in an emergency. The Project requested deviations from applicable development regulations, including the minimum rear yard setback, the minimum street frontage, and the maximum height for side yard retaining walls.

After the local community planning board recommended denial of the project based on concerns about fire safety, fire truck access, density, and the appropriateness of the requested deviation, the Planning Commission certified the MND and approved the Project. A citizen appealed the Planning Commission’s decision to the City Council, which found the MND inadequate and reversed the Planning Commission’s decision to approve the Project. The City Council denied the Project because it found it did not meet applicable City requirements, including consistency with the Plan and provisions for public health, safety, and welfare. The owners of the Project site sued the City, alleging violation of their civil rights, inverse condemnation, mandamus, and nuisance. The trial court held for the owners.

On appeal, the court held that evidence in the record supported the City’s findings that the Project was inconsistent with the Plan, particularly the Plan’s goals of conserving the character of existing single-family neighborhoods. The court found that opinions and objections of neighbors, along with expertly prepared renderings of the Project and photographs of the surrounding neighborhood, that lend credence to the neighbors’ opinions, sufficed to support the City’s findings.

The court also held that evidence in the record supported the City’s findings that the Project would be detrimental to public health, safety, and welfare. The record contained expert evidence showing flaws and omissions in the Project’s geotechnical report, as well as evidence showing that the configuration of the residences and steepness of the shared private driveway would present significant challenges for fire services personnel.

Key Point:

To succeed in recourse for City Council disapproval of a project previously approved at Planning Commission, it is essential that the project is aligned with local building requirements and is not detrimental to public health, safety, or welfare.

Court Rejects Use of an MND for a Residential Development Relying on Groundwater Holding that Existing Groundwater Overdraft Establishes the Project will Potentially Result in a Cumulatively Considerable Groundwater Impact

Tuesday, February 21st, 2012

In an unpublished decision, the Consolidated Irrigation District filed a petition for writ of mandate challenging the City of Selma’s use of a mitigated negative declaration in approving a 160-unit, 44-acre residential development (Consolidated Irrig. Dist. v. City of Selma, Fifth Appellate District Case No. F061103 (Feb. 8, 2012 – unpublished)).  The trial court granted the writ.  On appeal, the City argued that (1) the irrigation district lacked standing to bring the CEQA challenge, (2) the trial court relied on documents that were not before the City Council when it approved the project to rule against the City, and (3) substantial evidence did not support a fair argument that the proposed development might have a significant effect on the environment.  The Court upheld the trial court on all three accounts.  First, the Court held the irrigation district has standing to sue pursuant to Water Code section 22650 because it has beneficial interests that might be affected by the project.  Second, the Court held substantial evidence supports the trial court’s determination that the documents the trial court ordered to be included in the record were submitted to the City prior to the City Council approving the project.  Third, the irrigation district presented substantial evidence of a fair argument that the project would result in at least two potentially significant impacts.  Specifically, the Court held the project will contribute to this cumulative impact on groundwater due to that fact that the project requires 80.65 acre-feet of groundwater per year in a groundwater basin currently impacted by existing overdraft, and the project may have a cumulative impact on agricultural land because the MND entirely failed to analyze this issue.  The Court declined to address any other impact arguments advanced by the irrigation district because the City was required to produce an EIR.  Therefore, the Court concluded it would serve no purpose for it to address every claimed flaw in the MND.

Written By: Tina Thomas and Chris Butcher

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