Listen to this post

CEQA decisions usually arise in the context of a challenge to a lead agency’s approval of a project and a related CEQA document.  However, in a recent decision, Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034 (certified for publication on May 23, 2017), the Fourth Appellate District resolved a court action arising from a lead agency’s rejection of a project and its MND, and did so in favor of the lead agency.

The challenged project involved the subdivision of two adjacent lots (totaling 1.45 acres) into four lots, retaining an existing residence on one lot, and building a new residence on each of the remaining parcels. The property is located in the La Playa neighborhood of the Peninsula Community Plan (PCP) area in the City of San Diego.  Among the goals and objectives of the PCP are conserving the very low density character of the La Playa neighborhood and encouraging infill housing design compatible with existing development.  The City’s municipal code includes development standards to facilitate these goals and objectives.  For this project, the owners needed approval from the City to deviate from three such standards: a minimum 20-foot rear yard setback; a minimum street frontage of 65 feet; and a maximum six-foot side yard retaining wall. To approve the deviations, the City was required to find that they were appropriate for the project’s location and would result in a more desirable project than would be achieved if designed in strict conformance with the regulations.

The project proponents applied to the City for a vesting tentative parcel map and related permits to allow for the subdivision, and the City prepared an MND.  In relevant part, the MND found only one potentially significant impact—to paleontological resources, which would be mitigated below a level of significance.  The MND identified less-than-significant impacts related to geology and public services and found no impact on any applicable land use plan.

Before reaching the appellate court, the project and MND were the subject of a whiplash-inducing series of contradictory decisions.  First, the local community planning board recommended denial of the project, based on concerns regarding fire protection, density, and deviations from development standards.  However, the planning commission rejected the recommendation, approved the project, and adopted the MND.  On appeal to the city council, the council reversed the planning commission’s decision, finding that:  the MND inadequately assessed the project’s potential impacts on geology, land use, and public safety; the project was inconsistent with the PCP; and the required findings could not be made to support the requested deviations from development standards.  The project proponents then sought review in the superior court.  The court found insufficient evidence to support the City Council’s findings, overturned the council’s decision, and entered judgment for the project proponents.  The City appealed.

The Fourth District reversed, finding that substantial evidence supported the City’s rejection of the project and MND.  The court relied on the opinions and objections of the property’s neighbors, “expertly prepared” renderings of the project, and photographs of the surrounding neighborhood as evidence that adequately supported the City’s findings that the project was inconsistent with the PCP, that the requested deviations from development regulations were not appropriate for the project’s location and would not result in a more desirable project, and that the MND inadequately evaluated the project’s land use impacts.  The court then upheld key City findings, including that the MND was deficient in its analysis of geology and public safety impacts, based on the expert evidence in the record concerning “flaws and omissions” in the project’s geotechnical report and regarding the “significant challenges for fire and emergency services personnel” that would be posed by the project’s configuration.

The appellate panel declined the project proponent’s invitation to weigh the conflicting evidence in the record and instead relied on the applicable substantial evidence standard, as elucidated in Toigo v. Town of Ross (1998) 70 Cal.App.4th 309:  “it is not the role of the courts to micro-manage these development decisions.  Our function is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies, whether the city officials made appropriate findings on this issue, and whether those findings are supported by substantial evidence.”  In this case, “[s]ince the owners have not established no reasonable municipality could have reached the same decision as the City, we must uphold the City’s decision.”