Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts Tagged ‘subdivision’


Argument and Speculation that a Project will Violate Local Code Requirements is Insufficient to Support a Fair Argument that a Project may have a Potentially Significant Impact on the Environment

Friday, August 10th, 2018

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 approval of a small housing development 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. The City of Riverside (City) acted within the law in approving a six single-family home development, despite the Friends of Riverside’s Hills’ (FRH) claims to the contrary.

Before this controversy arose, the City established a residential conservation zone to protect the hills, canyons, and unique natural views of the area. Within the residential zone, planned residential developments (PRD) projects meeting certain criteria were permitted to deviate from conventional subdivisions requirements. A PRD applicant could also achieve a “density bonus” if the map and conditions clustered residences in the less steep portions of the site, appointed a conservation group to maintain open space areas, and achieved at least six of eleven “superior design elements” that promote environmentally-conscious design.

In November 2013, Real Parties in Interest Carlton and Raye Lofgren (Lofgrens) submitted plans for a PRD with a density bonus to subdivide a 12-acre site into seven lots and a designated open space. The Planning Commission recommended the City approve the plans with a negative declaration. The City issued a negative declaration (ND) and approved the plans with a revised tract map showing the site as 11.6 acres with six lots clustered on the less steep areas of the property and a designated open space.

FRH brought suit challenging the City’s approval. FRH alleged land use violations because the plan failed to properly cluster the residences and failed to seek a variance for each lot. The trial court denied the petition in its entirety. FRH timely appealed.

The Appellate Court held in favor of the City, finding there were no land use violations and no substantial evidence supporting a fair argument of significant environmental impacts. Such evidence, the Court elaborated, must be founded in facts in the administrative record, not speculation or theory. Here, FRH’s claim that the homes would be unlawfully placed in high grade portions of each lot was merely 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.

FRH claimed the Lofgrens would not comply with the additional conditions required to achieve the “density bonus.” The Court found this claim also to be speculative where there was no evidence the Lofgrens would not comply with the conditions. Indeed, the Court pointed out that to hold differently would absurdly necessitate any project with future conditions be required to complete an EIR. In short, the potential to violate the municipal code is not grounds to mandate the preparation of an EIR.

The Court went on to rule that FRH was incorrect to draw similarities between this case and Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 as the administrative record in that case had “ample” evidence the project violated the city’s land use provisions. Here, the administrative record lacked any similar evidence. As a result, FRH’s claims were speculative and thus rejected.

The Court then turned to FRH’s claim that the City abused its discretion and violated its own municipal code. The Lofgren’s engineer submitted numerous reports throughout the approval process to support the City’s decision to approve the Project. Applying a deferential standard of review, the City was entitled to rely on evidence submitted by the Lofgrens and the Court found substantial evidence supported the City’s determination.

The Court found that there was also no abuse of discretion where the City allowed the Lofgrens to choose which of the eleven design elements to incorporate into the plans. Per the municipal code, this is to be determined by the applicant upon issuance of building permits and the Lofgrens need not have chosen the elements yet because “it is difficult, if not impossible, to know which building or landscaping elements are feasible until later phases of the project like grading or construction.” Despite this, the Lofgrens had already demonstrated in the plans which designs they were to utilize, a fact FRH failed to notice.

The Court affirmed the trial court holding; the negative declaration was sufficient.

Key Point:

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.

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

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.