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In Coastal Defender v. City of Manhattan Beach (Dec. 6, 2012) 2012 Cal. App. Unpub. LEXIS 8919, the Second District Court of Appeal issued an unpublished decision upholding the trial court’s determination that the City of Manhattan Beach correctly concluded a proposed renovation of a restaurant and nightclub was exempt from the California Environmental Quality Act (CEQA) and coastal development permit requirements under the California Coastal Act.  The developer proposed constructing two new outdoor balconies on the second story, extending 18-inches over the sidewalk; installing fully retractable, roll-up windows and doors on the first story at the front of the building; constructing a new basement; and extending the hours of dining, drinking, and dancing on certain days.  In approving the project, the city’s planning commission rejected construction of the balconies and placed a number of conditions on the project including noise reduction measures.  The city council, in turn, approved the project based on the planning commission’s conditions except that it permitted construction of the balconies.  In approving the project, the city council filed a notice of exemption from CEQA and, after the California Coastal Commission concurred, concluded the project was exempt from the requirement to obtain a coastal development permit.

In reaching its holding, the court acknowledged that the California Supreme Court has granted review in a case concerning the proper standard of review to apply to CEQA exemption determinations.  For the purposes of this appeal, the court stated that it would assume that the fair argument standard applies and that the significant effects exception to the exemption applies if substantial evidence in the record supports a fair argument that the project may have a significant effect on the environment.

The court first rejected the petitioners’ argument that the city improperly relied on mitigation measures to conclude the project was exempt from CEQA.  The court acknowledged that the city imposed a number of conditions on the project including:  (1) limiting the operating hours on weeknights; (2) requiring compliance with the city’s noise ordinance and a future group entertainment permit; (3) prohibiting any operable windows on the north, east or west sides of the building; (4) requiring that all doors and windows must remain closed during entertainment or dancing; and (5) requiring that noise from the site must be inaudible beyond 75 feet from the property.  However, the court held that the conditions constituted nothing more than ordinary operating restrictions designed to alleviate noise concerns and did not constitute CEQA mitigation measures for project impacts.   The court also noted that the measures were incorporated into the project to respond to concerns of residents and explained that such collaboration and constructive problem solving should be encouraged rather than discouraged.

Next, the court rejected the petitioners’ argument that construction of the balconies overhanging the sidewalks constituted an “unusual circumstance” triggering an exception to the exemption.  The court found that the petitioners failed to present a fair argument that the balconies may result in a significant effect on the environment.  In reaching this conclusion, the court stated that neither the general aesthetic concerns expressed by a planning commissioner nor the public concerns noted in the city council’s staff report nor the photographs and renderings of the balconies purportedly showing an obstructed view transcend the realm of unsubstantiated fears and speculation so as to constitute substantial evidence of a reasonable possibility that the balconies would create significant visual impacts.

Finally, with respect to the petitioners’ California Coastal Act challenge, the court found that the petitioners failed to exhaust their administrative remedies on several arguments and, therefore rejected those arguments.  The petitioners did exhaust their administrative remedies with respect to their claim that the project increased the restaurant’s permitted occupancy level, and that this increase constituted a change in the intensity or use of the structure within the meaning of section A.96.050 of the local coastal plan, thereby requiring issuance of a coastal development permit.  However, the court found that the petitioners failed to point to evidence in the administrative record compelling the conclusion that the project authorized an increase in the permitted occupancy level.  Therefore, the court rejected this argument.

Written By: Tina Thomas and Christopher Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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