Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS106746, Dzintra I. Janavs and John P. Shook, Judges.
Law Office of Craig A. Sherman and Craig A. Sherman for Plaintiffs and Appellants.
Michele Beal Bagneris, City Attorney and Frank L. Rhemrev, Assistant City Attorney for Defendant and Respondent.
Rutan & Tucker and Philip D. Kohn for Real Party in Interest.
ASHMANN-GERST J.
Michael M. Wilson and Save Laguna Creek (collectively Wilson) appeal the denial of their petition for writ of mandate challenging the decision by the City Council (Council) of the City of Pasadena (City) to approve a minor conditional use permit allowing Steven A. Jennings (Jennings) to build a single family residence in an area of the City known as Laguna Canyon. According to Wilson, we must reverse on the grounds that the project cannot be built absent an environmental impact report required by the California Environmental Quality Act (CEQA) because there is substantial evidence supporting a fair argument that Jennings’s project will have a significant impact on protected oak trees, community character and views, a stream on the project site, and the project site’s geological resources. Alternatively, Wilson contends that we must reverse because the project will violate two ordinances.
We find no error and affirm.
FACTS
Laguna Canyon and the Hillside Development Overlay District
Laguna Canyon is within the City’s Hillside Overlay District (overlay district). In 2001, a development in the overlay district was subject to the Hillside Development Guidelines in former Chapter 17.48 of the City’s zoning code (former Chapter 17.48). Among other things, former Chapter 17.48 was designed to preserve and protect views to and from hillside areas and maintain the City’s identity, image and environmental quality. While the maximum height for a new development was a static 35 feet, the allowable gross floor area was subject to formulas based on location, lot size and slope. In addition, former Chapter 17.48 required a minor conditional use permit if the gross floor area of all proposed structures was greater than 4,000 square feet.
The current Chapter 17.48 of the City’s zoning code pertains to signs.
Jennings’s application
Jennings submitted a master application form seeking a minor conditional use permit to build a two-story single family residence exceeding 4,000 square feet at an address on Laguna Road in Laguna Canyon.
The geology report from Frank Stillman
Frank C. Stillman (Stillman) from Soils and Geology Inc. reviewed the project site. In his report, he opined that the project site was suited for the proposed development and recommended that all foundations be supported below topsoil and into colluvial soils, bedrock or compacted fill.
The January 16, 2002, and January 30, 2002, hearings
Jennifer Paige-Saeki (Paige-Saeki), an associate planner for the City, notified Jennings that a hearing was set for January 16, 2002, and informed him that the planning staff was recommending that his application be approved with conditions, including that the home “shall be composed of muted earth tone colors to better blend with the hillside.” She stated: “The total proposed floor area is approximately 96 square feet less than the maximum allowable floor area of 5,136 square feet. As proposed, the residence would meet all applicable code requirements of the... zoning district (i.e., lot coverage, floor-area ratio, setbacks, building height, encroachment plane and parking.).” Additionally, Paige-Saeki wrote that the City had prepared an initial study recommending a negative declaration pursuant to CEQA.
The application was considered on January 16, 2002, and the matter was continued to January 30, 2002. On the continued date, the matter was again continued, this time to March 20, 2002. Finally, the hearing was continued to February 18, 2003, so that the City’s planning staff would have time to analyze additional information and complete a new initial study.
Jennings’s new application
Pending the continued hearing, Jennings submitted a new application that included a request to remove four trees.
The environmental report from James Henrickson, Ph.D.
James Henrickson, Ph.D. (Henrickson) from Environmental Consultants issued a revised report on May 23, 2003, regarding the biological and oak resources at the project site. He concluded that “[d]evelopment of the site for a single family home should have [a] minimal impact on the overall biological resources in the immediate area.” Henrickson noted that four of the project site’s 16 trees would be removed and that there was a potential danger to tree Nos. 3, 4 and 10. Because the plans called for an elevated driveway, Henrickson believed that the impact on tree Nos. 3, 4 and 10 would be avoided or minimized. As for tree No. 16, he recommended that the retaining wall near the home be extended out so that it would encompass tree No. 16 and not threaten its root system.
Recommendations from Land Design Consultant, Inc.; the second initial study
Paige-Saeki retained Land Design Consultants, Inc. (Land Design) to evaluate the project. On behalf of Land Design, a certified arborist provided 14 recommendations for protecting the oak trees that would remain on the project site. One recommendation was to move the retaining wall around tree No. 16 to allow a minimum of six feet between the trunk and the closest points of the structure. The author stated: “This will reduce the impacts to the root zone of this tree and reduce the likelihood of future structural instability due to the root loss.”
The second initial study indicated that the project could have a significant impact on 16 Coast Live Oak trees on the project site and that the City planned to prepare a mitigated negative declaration. The impact on area aesthetics was perceived to be less than significant because the project site was in a steep down slope lot that was not visible from the street. Though the planned home was two-story with a maximum height of 28 feet, it was below the legally allowable floor area and maximum height requirements.
Notice of completeness; letter from the Department of Fish and Game
On August 28, 2003, the City sent Jennings a notice informing him that his application was deemed complete. On November 14, 2003, the Department of Fish and Game wrote Jennings to inform him that “[t]he project site was previously disturbed by the installation of a concrete culvert which carried all runoff from this and an adjacent property off of the properties. No sensitive biological species are known or expected onsite, and no new streambed impacts are proposed.” As a result, the Department of Fish and Game told Jennings he would not need a Streambed or Lake Alteration Agreement because the project “1) does not substantially divert, obstruct, or change [any] natural flow or bed, channel, or bank of a river, stream or lake, or 2) use material from a streambed, or 3) substantially adversely [affect] existing fish or wildlife resources.”
The December 17, 2003, hearing; approval with conditions
At the continued hearing, Paige-Saeki explained that the City’s staff recommended approval with conditions. Regarding the driveway, she revealed that the current plan was to build a concrete bridge from the street to the garage. Jennings explained that the purpose of the bridge, or elevated driveway as he chose to call it, was to avoid losing all of the oak trees on the down slope. The caissons supporting the bridge would go down into bedrock and leave the slope untouched. Under revised plans, the house would be on the far side of the “gully” and built into the hill.
Originally the house was going to be built in the middle of the “gully.”
Jennings informed the zoning hearing officer that the only neighbor who would see the caissons was Wilson. But Jennings planned to have his whole property line landscaped and screened. When asked if his house would be higher or lower than Wilson’s house, Jennings averred that Wilson’s house was at a higher level but it was one-story. Jennings’s house would be two-story and for that reason his roof would probably go higher than Wilson’s roof. Paige-Saeki clarified that the pad for Wilson’s home was 20 feet below street level and the proposed pad for Jennings’s home would be 23 feet below street level.
In assessing the size of the structure, Jennings said that the total square footage would be 5,088 square feet. Excluding the garage, the livable square footage would be about 4,400 square feet. He stated that the average livable square footage in the neighborhood, excluding garages, was 4,200 square feet. The proposed home was in keeping with that average.
Wilson spoke next. He stated: “As I understand the project and from reading the materials in the file, this will have extremely strong visual impact on me. While my house might be slightly higher at one point than this proposed property, the entire wall of my house is glass. [I have] eight foot panels of glass that look on this canyon to the east of me.” His view was of wooded land. He did not believe that the proposed mitigation of replacing old trees with young trees on a two-to-one basis would camouflage Jennings’s house.
Wilson objected to the bridge on the grounds that it would not fit in with the neighborhood. He went on to explain: “I’m looking at very likely a financial hit to me in terms of the equity in my home because... the home potentially will be devalued by looking at a wall on the side of the... residence instead of open space. That has an effect of untold value at this point.”
Franklin Raffe (Raffe), the then project architect, also testified. He said that for about 50 feet the driveway would be parallel to the street and the other 50 feet would be perpendicular to the street. At its highest point, the driveway would be about 20 feet from ground level. He believed that at Wilson’s eye level, the driveway would be at most 10 feet high. Raffe testified that if the zoning hearing officer concluded that there was a right to build, there were only three options: Building a house across the gully, as planned; fill in the gully and build a house on it; or build a house on stilts close to the street.
The application was approved.
In the zoning hearing officer’s findings, he concluded that “the proposed residence will meet the development standards of the [overlay district], including gross floor area, height, required yards, and parking. Furthermore, as conditioned, colors, materials, and landscaping will be designed to help the residence blend with its hillside location. [Jennings] has modified the proposal from the original design to limit site impacts such as grading and tree removal. Further, the Department of Fish and Game has evaluated the site and the proposal, and concludes there will be no significant environmental effects as a result of the project.” In addition, the zoning hearing officer concluded that “[t]he proposed dwelling unit will be located in a developed hillside neighborhood and the addition of a new dwelling unit will be compatible with the surrounding single-family residential properties. Furthermore, given the topography of the lot and the proposed setback [of about 90 feet], the home will not have a negative aesthetic on the surrounding neighborhood.” Approval was subject to conditions, such as compliance with Land Design’s recommendations.
De minimis impact finding
The City’s environmental administrator issued and certified the following findings: “The project will not have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the [Department of Fish and Game]... or the [United States] Fish and Wildlife Service[;] have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by [the Department of Fish and Game] or [the United States Fish and Wildlife Service;] have a substantial adverse effect on federally protected wetlands... through direct removal, filling, hydrological interruption, or other means; interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites; conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance, or; conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan.”
Wilson’s appeal to the Board of Zoning Appeals
Wilson appealed the zoning hearing officer’s decision on the following grounds: “Proposed bridge construction of driveway is invasion of my privacy. Proposed square footage exceeds neighborhood [average square footage][.] Incomplete documents do not call out how wall retention [and] drainage will be handled. Excessive disruption of canyon environment.”
On February 18, 2004, the Board of Zoning Appeals Hearing (Board) heard the appeal.
Michael Huntley (Huntley), the City’s zoning administrator, presented the case. He explained that former Chapter 17.48 would allow a 5,136 square foot house and the proposed house was 48 square feet smaller.
Regarding the driveway, Huntley represented that Jennings had a choice between disturbing the oak trees or building a bridge and chose the latter. As to whether the home would be compatible with homes in the neighborhood, Huntley noted that Jennings planned to develop 19 percent of his lot. Other homes in the area were “at about 13 percent.” Huntley advocated that Land Design’s recommendations would take care of environmental concerns.
Wilson appeared and argued that the project was larger than homes on the project side of Laguna Road and would not maintain environmental equilibrium consistent with native vegetation, animal life, geology, slopes and drainage. He also argued that the project would create or increase fire, flood, landslide, or other safety hazards. Wilson claimed that the project would not ensure habitability, stability and value of the properties in the affected community. Rather, he maintained that it would create potential for major financial loss to the City through claims or mitigation. He complained that the caissons would be 30 inches around and he would have to look at a bridge that was 15 to 30 feet wide.
Going through a list, Wilson argued: The project would not preserve significant features of the natural topography “including swales and canyons, natural streambeds and woodlands to the maximum extent feasible” and would not “promote orderly development consistent with traditional scale [and] traditional character of the community.” He also testified that the project would not preserve “privacy, sunlight and views,” or “natural resources including... native fauna and flora, such as wildlife habitats and mature trees.” Next, Wilson objected to “the negative declaration report and the initial report.” In his view, they were inconsistent because one referred to a natural stream and the other referred to a corrugated pipe. He expressed concern that the letter from the Department of Fish and Game did not say who visited the site and what materials they were given by Jennings.
Referring to the water running across Jennings’s property, Wilson averred that “these are jurisdictional waters of the United States, and they do involve the Army Corps of Engineers, and there’s nothing in the report that says the Corps has been involved. There is also a difference between wetlands and waters, and [the stream] is a blue-line stream, but it also meets the definitions of wetlands because it never [dries] up. The stream, as I understand it, is a water bed that may or may not have water in it, only gets water when there’s a rainy season. But in fact, this stream hasn’t dried up in the last 23 years that I’ve live there, and there’s evidence that it’s been going... since God made it. So it’s a wetland area.”
Wilson objected to findings by the City staff that the project would not result in substantial changes to the area. He pointed out that the largest oak tree would be removed, hundreds and hundreds of cubic yards of dirt would be moved, and the plans called for a bridge. He also objected to the soil report from Stillman because it did not mention the nature of the slope even though his follow up letter said it was a two-to-one slope. This conflicted, in Wilson’s mind, with a statement in the mitigated negative declaration that there was a one-to-one slope. He requested a written reply as to what type of slope was legally permitted.
In conclusion, Wilson said that Environcom reviewed the biology report. As relayed by Wilson, Environcom concluded that Henrickson’s May 23, 2003 report, was deficient because it did not discuss all the relevant vegetation and could not rule out the presence of endangered species.
Jennings responded to some of Wilson’s concerns and explained that the lot was difficult to build on. Jennings was then asked by one of the commissioners whether the culvert would run under the bridge or the house. Wilson said it would run under the bridge. He was then asked whether he would have a back patio. He stated that the second floor would have one but that the back wall of the first floor would be a retaining wall.
Wilson’s attorney, Chris Sutton (Sutton), took the floor next. He argued that the project would prevent one of the goals of the Arroyo Seco Master Plan, which was to restore the stream to its natural state and remove the culvert. Sutton was asked whether there was a stream or culvert on Jennings’s property. Sutton replied: “The stream goes through [Wilson’s] property and enters into a culvert over all or a part of [Jennings’s] property.”
Tim Brick (Brick) represented the Arroyo Seco Foundation and informed the Board that he wanted to talk about “the forgotten stream of San Rafael.” Brick maintained that it was “probably the most significant stream in Pasadena” and had been identified by the Arroyo Seco Water Shed Restoration Feasibility Study as a project for restoration “to restore the wetlands and restore the natural streambed from Johnson Lake to the San Rafeal bridge to the arroyo seco.” Brick stated that the stream was included in “the Lower Arroyo Seco Master Plan which was approved by the City Council in September of last year in which project 4.7 is in restoration of Anondale Creek and Laguna Canyon.” Further, he stated: “I would suggest that because the stream goes into a culvert, doesn’t mean it’s not a stream anymore, and it doesn’t mean that the wetlands are lost either. And it’s our goal to fully restore the wetland valleys in that area.” Brick was asked if there was a reason the stream could not be restored because there was a bridge over it. Instead of answering the question, Brick replied: “Well, if you destroyed all the habitat in the stream zone, you’ve destroyed effectively the stream.”
Jennings’s new architect, Franco Narabian (Narabian) testified that there was an easement across the property. Narabian stated, “However, we’re not building in that easement. That easement is where the culvert is, and we’re spanning across it with the bridge, so I don’t see any problems with that.” He added: “And as far as the wildlife corridor and the stream running through, there [are] other homes. It kind of makes it seem like we’re talking about one completely undeveloped area. There are other homes on both sides, on all sides. And the stream runs through those properties, and they have driveways, and... there’s wildlife, and the wildlife will continue to exist after this house is built.” Narabian was asked whether the bridge would be impacted if the culvert was removed. He said “no.”
In rebuttal, Sutton argued that the bridge was inconsistent with restoring the stream because it was going to be built on caissons “that will be down into where... the City would have to come in.” Sutton went on to question whether the side of the slope had been adequately analyzed “in terms of geology.” He adverted to newspaper articles from the 1980’s stating that there was a landslide on a street in the same vicinity as Laguna Road.
The matter was continued to a future date.
Zoning revisions
On March 29, 2004, the City passed a 45-day moratorium on development in the overlay district. Subsequently, the City adopted Chapter 17.29 of the City’s zoning code (Chapter 17.29) to replace former Chapter 17.48. The new ordinance provided: “Projects that have submitted an application for a discretionary action and have been deemed complete by May 3, 2004[,] may be processed under the Hillside District Standards in effect prior to the adoption of the development moratorium on the hillside districts.”
The further hearing on Wilson’s appeal
The Board convened again on May 19, 2004.
Huntley responded to concerns raised at the prior hearing. He explained that Jennings’s property was outside the boundaries of the Arroyo Seco Master Plan. Further, the Arroyo Seco Master Plan specifically pertained to public land rather than private land. Jennings was told to consult with a different arborist. The newly retained arborist concluded that the majority of Henrickson’s May 23, 2003 report, was accurate and correct. In Huntley’s view, additional environmental analysis was not required. The property was not part of a wildlife corridor because it was not large and open enough, and because it was surrounded by single family residences. Though there were animals on the property, they were not endangered species. He opined that three of the trees to be removed were on the building pad and not protected by the tree ordinance.
Huntley stated that the City’s staff still believed that the size of the proposed house was appropriate. Even though Chapter 17.28 did not apply, Huntley explained that the project would pass muster under the new height, square footage and compatibility standards.
At 5,080 square feet, Wilson concluded that the proposed home would be 54 percent larger than nearby homes. He once again stressed that the Army Corps of Engineers had not been consulted about the stream. A contact at the Army Corps of Engineers told Wilson that it would have to approve anything built over the stream. Wilson compared the bridge to a freeway onramp and said he would have “visual pollution.” He was asked about the easement. He said it belonged to the County of Los Angeles but the decision on how to use the water was vested in the Army Corps of Engineers.
The Board overturned the zoning hearing officer’s decision and denied Jennings’s application for a minor conditional use permit. On June 29, 2006, the superior court directed the Board to reconsider its decision because it abused its discretion by failing to make the findings required by the Pasadena Municipal Code. On September 20, 2006, the Board set aside its previous decision but again denied Jennings’s application. It issued findings and concluded that the project would be detrimental to the “to the public health, safety, and welfare of persons residing in or adjacent to the neighborhood of the development, and injurious to properties or improvements in the vicinity. Specifically, the size of the proposed house is larger than other homes in the immediate residential neighborhood. The [Board] found that homes in the area were typically single-story of the mid-century style.” In addition, the Board found that “[t]he proposed elevated concrete driveway that traverses the gully was found to be injurious to [Wilson’s] property to the west of the subject site. The height, size and materials of the elevated driveway would result in a negative visual impact to the abutting property owner and would affect the livability of the abutting property.” Finally, the Board found that Jennings’s proposed home “was too large for the area given the unique and sensitive type of culvert and streambeds on the site.”
The December 4, 2006, hearing before the Council
A member of the Council called the Board’s decision for review. The Council held a hearing, overturned the Board’s decision, and approved Jennings’s minor conditional use permit.
The Council imposed conditions, which included: (1) Only tree Nos. 7, 11, 12 and 13 can be removed. (2) Prior to the issuance of building permits, the Zoning Administrator must receive a tree protection plan from a licensed landscape architect or arborist demonstrating that all remaining trees will be protected. (3) The tree protection plan must incorporate all 14 recommendations from Land Design. (4) The final landscape plan shall include a two-to-one replacement of all removed trees with the same species of tree, and with a minimum of 15 gallon containers. (5) The final landscape plan shall demonstrate that within a reasonable amount of time there will be a greater tree canopy than the tree canopy that will be removed. (6) The elevated driveway shall resemble as closely as possible the country bridge drawing presented at the Council hearing. (7) If possible, the retaining wall near tree No. 16 “should be moved to allow a minimum of six (6) feet between the trunk and the closest points of the wall.” (8) Excluding the garage, the home shall not exceed 4,000 square feet. (9) “Any proposed improvements in or through the existing drainage easement area on the property shall require the review and approval of the Department of Public Works. No bridge supports shall be constructed within the easement area.”
On December 7, 2006, the City filed a mitigated negative declaration. It also filed a notice of determination with the Los Angeles County Clerk stating that a mitigated negative declaration was prepared for the project, mitigation measures were made a condition of project approval, and a mitigation reporting or monitoring program was adopted for the project.
Trial court proceedings
Wilson filed a petition for writ of mandate to challenge the December 4, 2006, decision to approve the permit and a mitigated negative declaration for the project. He coupled his petition with a complaint for declaratory relief, injunctive relief and money damages. He alleged that the City violated CEQA by providing a legally deficient and incomplete initial study. He also alleged that it violated CEQA by making improper and unsupported findings that there will be no potential adverse impact to community character and view, biological resources involving the stream and oak trees, and geological resources. Finally, Wilson alleged that the City misapplied neighborhood compatibility and tree ordinances.
The parties submitted briefs on the pertinent issues related to the petition for writ of mandate.
The trial court issued a statement of decision. It explained that the administrative record contained no substantial evidence that the project will impact any public views, vistas or scenic highways. The project was compatible with the pattern of development in the neighborhood. As well, the home would be below the maximum allowed floor area and lot coverage. It would be only partially visible and would incorporate special considerations as to colors, materials and landscaping to screen the home and make it blend into its surroundings. The elevated driveway will be screened by landscaping and would look like a stone country bridge.
Neither was there substantial evidence that the project would have a deleterious impact on the stability of the slope. The trial court noted that newspaper clippings from 25 years ago reported earth movement following heavy rainstorm activity. However, the project site was not the location of the reported flooding and erosion problems, and there was no evidence to connect those events with the construction of the proposed home. The experts, on the other hand, demonstrated the absence of any geotechnical problems.
The trial court rejected the contention that the project would have an adverse impact on the stream or oak woodland. The only evidence of a potential adverse impact on the stream was Wilson’s opinion. In contrast, the experts reviewed the conditions of the site and concluded that the project would not have a significant impact on water flowing across the property. As for the oak trees, they would be replaced at a two-to-one ratio and the City’s arborist concluded that smaller trees would establish themselves quickly.
Finally, the trial court concluded that the City did not violate its ordinances. The trial court noted that the project fell under the former Chapter 17.48 because it was in effect when Jennings’s application was deemed complete on August 28, 2003. Nonetheless, Wilson argued that the City violated Chapter 17.28. According to the trial court, there was substantial evidence that the project was compatible with the neighborhood using either the subjective standard of former Chapter 17.48 or the objective standard of Chapter 17.28. As for the tree ordinance, the trial court noted that it permitted the removal of trees subject to certain conditions. The trial court concluded that Wilson failed to provide expert evidence contradicting the opinions of the City’s staff and consultants that the mitigation would result in a greater tree canopy.
After denial of his petition for writ of mandate, Wilson had one cause of action that was still standing. That cause of action was disposed via an unopposed motion for judgment on the pleadings.
Judgment was entered for the City.
This timely appeal followed.
STANDARD OF REVIEW
In administrative mandate actions brought under Code of Civil Procedure section 1094.5 to challenge a decision or order by a public agency, our review is limited to the administrative record. (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019.) The question is whether the public agency committed a prejudicial abuse of discretion. “Abuse of discretion is established if the [public agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b); Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 738; Pub. Resources Code, § 21168.5.)
All further statutory references are to the Public Resources Code unless otherwise indicated.
DISCUSSION
Wilson seeks reversal on the following grounds: (1) there is a fair argument that there is substantial evidence of significant potential adverse impact on the environment; (2) the City violated former Chapter 17.48 by not adopting legally sufficient findings and by failing to apply the proper standards for neighborhood compatibility; and (3) the City violated the tree ordinance by approving the removal of trees against stated policy and without making adequate findings.
1. Fair argument.
According to Wilson, there is a fair argument that there is substantial evidence of a significant effect on oak trees and oak woodland; community character and views; stream and streambed alteration; and geological resources. Wilson urges us to conclude that the City therefore abused its discretion by failing to prepare an environmental impact report under CEQA. Upon review, we disagree.
a. Fair argument principles.
“[A]n [environmental impact report] must be prepared on any ‘project’ a public agency intends to approve or carry out which ‘may have a significant effect on the environment.’ [Citations.]” (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 688, fn. omitted.) In other instances, the public agency must prepare a negative declaration. “A negative declaration is a written statement that briefly explains why a project will not have a significant environmental impact and therefore will not require an [environmental impact report]. [Citation.] A negative declaration is proper only if the agency determines based on an initial study that there is no substantial evidence that the project may have a significant effect on the environment. [Citations.]” (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 330 (Mejia).)
“‘Significant effect on the environment’” is defined by the applicable regulation to mean “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.” (Cal. Code Regs., tit. 14, § 15382.) “‘Substantial evidence’ under CEQA ‘includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.’ (Pub. Resources Code, § 21080, subd. (e)(1).)” (Mejia, supra, 130 Cal.App.4th at p. 331.) “The [regulations] define ‘substantial evidence’ as ‘enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence.’ [Citation.]” (Id. at p. 332.)
b. Oak trees and oak woodland.
In his opening brief, Wilson maintains that the removal of trees, digging and drilling through established roots, and cutting well-established oak canopies have the potential to significantly impact both aesthetic and oak woodland biological resources, including nests for bird species.
To support his contention, Wilson adverts to the concerns in Henrickson’s May 23, 2003 report, regarding potential impact to tree Nos. 3, 4, 10 and 16. But in Henrickson’s view, the impact to tree Nos. 3, 4 and 10 would be avoided or limited by the elevated driveway. As for tree No. 16, the Land Design recommendation about moving the retaining wall was adopted. There are no facts, reasonable assumptions based on fact or expert opinions indicating that the Land Design recommendation is not sufficient to protect tree No. 16’s root system and health. Consequently, there is insufficient evidence to support a fair argument that the project will create a significant adverse impact on tree Nos. 3, 4, 10 and 16.
Next, Wilson complains that there is no evidence to support the conclusion that replacing four mature trees with trees in 15-gallon containers will result in a tree canopy of greater significance within a reasonable time. But the conditions imposed on the permit require that the four removed trees be replaced by eight 15-gallon trees. Though Wilson suggests that eight younger trees cannot replace the canopy in a reasonable time, the evidence is to the contrary. While suggesting that the City replace the removed trees as a mitigation, Henrickson pointed that “younger trees become established more quickly [than older containerized trees], have a better spreading root system, and may outgrow larger containerized trees after a few years.” The agenda report for the Council’s December 4, 2006 hearing, noted that the City’s contract arborist recommended replacing the removed trees with smaller trees because they “will establish themselves quickly and are more likely to adapt successfully in the landscape.” As well, a condition of approval is a final landscape plan that provides for, within a reasonable time, a greater canopy than the one removed.
Continuing on, Wilson argues that CEQA dictates reversal.
Section 21081.6, subdivision (a) requires an agency to adopt a mitigation monitoring and reporting program when mitigation is required under CEQA. Wilson informs us that the City did not adopt the required program. He ignores, however, that the City filed a notice of determination with the Los Angeles County Clerk stating that a mitigation reporting or monitoring program had been adopted. Wilson would have us believe that the notice of determination was false. Attachment F to the agenda report for the December 4, 2006 Council meeting, suggests otherwise. It was entitled “Mitigation Monitoring and Reporting Program Matrix” and it identified the entities responsible for the monitoring of specific mitigation measures. Regardless, whether a mitigation and monitoring program was actually adopted by the City is immaterial to Wilson’s CEQA challenge. The question presented is only whether there is substantial evidence of a potential adverse impact to oak trees and oak woodland. If the City failed to comply with section 21081.6, subdivision (a), the remedy is a petition for writ of mandate to enforce a ministerial duty.
Under section 21081.6, subdivision (b), mitigation measures must be fully enforceable. As interpreted by Wilson, a December 4, 2003, memorandum from the City’s engineer that was part of the conditions imposed on the permit contains two items (Nos. 4 and 7) that do not comply with the law. Item No. 4 provides: “Excavations in the street for utility connections shall be as close as possible to each other and the pavement shall be restored contiguously between extreme excavations.” Item No. 7 provides: “The project shall comply with the [tree ordinance] that provides protection for specific types of trees on private property as well as trees on public property.” We need not consider section 21081.6, subdivision (b) because Wilson does not explain why item Nos. 4 and 7 are not fully enforceable. In addition, he does not explain why these purported CEQA violations are substantial evidence of significant impact on oak trees. Undeveloped arguments are waived. (Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811; Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.)
Last, Wilson relies on section 21083.4, subdivision (b). It requires a county to determine whether a project may result in conversion of oak woodlands that will have a significant impact on the environment. If so, the county must require one of the types of mitigation that statute enumerates. Under section 21083.4, subdivision (b)(2)(C), mitigation called for by the statute “shall not fulfill more than one-half of the mitigation requirement for the project.” Wilson, however, does not tell us whether the County of Los Angeles determined that there will be a conversion of oak woodlands or whether there was such a conversion. Also, he does not tell us that the 50 percent limit on oak woodlands mitigation was exceeded. His reliance on section 21083.4 is unsupported and thereby unavailing. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2 [“Moreover, ABC fails to provide any analysis or argument in support of the assertion, which, for this additional reason, is not properly raised”].)
c. Community character and views.
Wilson argues that the proposed driveway and house pose risks to aesthetics that require an environmental impact report.
Notably, CEQA requires an agency to consider the overall aesthetic impact that a project might have on the surrounding environment. (Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402.) Consideration of the overall aesthetic of a project is “by its very nature is subjective.” (Ibid.) This consideration is not the special purview of experts. As a result, “[p]ersonal observations on these nontechnical issues can constitute substantial evidence. [Citation.]” (Ibid.) However, “[t]he possibility of significant adverse environmental impact is not raised simply because of individualized complaints regarding the aesthetic merit of a project. [Citation.] ‘Under CEQA, the question is whether a project will affect the environment of persons in general, not whether a project will affect particular persons.’ [Citation.]” (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 376.)
Keeping these rules in mind, we turn to the evidence.
The agenda report prepared by the City’s manager for the December 4, 2006, hearing, stated: “The proposed home meets all of the development standards of the Hillside Overlay district, including gross floor area, setbacks, encroachment plane, building height, guest parking etc. In terms of gross floor area, the maximum floor area permitted is based upon a formula that is directly related to the size of the lot and the average slope. With the slope reduction, the maximum permitted floor area for the site is 5,136 square feet. [Jennings] is proposing a maximum floor area of 4,648 square feet including the garage.”
Shifting topics, the report stated: “In terms of protection of views and aesthetics in the area, the subject site is a steep downslope lot. To minimize grading, the home has been set back 90 feet from the street and the building pad will be approximately 20 feet below street grade (same elevation as the home immediately to the west). The home will be visible from the two adjacent properties but will only be partially visible from the street and will not impact any views or scenic vistas from any surrounding property. Further, based on the dense vegetation at the site[,] the home will be screened from the adjacent properties and the street.”
Two of the Council’s conditions of approval were that “[t]he final landscape plan shall demonstrate special consideration (increased plantings) along the west property line to aid in screening the home and elevated driveway from the adjacent property” and that the concrete caissons “shall be screened with landscaping from the view of adjacent property owners.”
It does not appear, on this record, that the project will have a significant effect on community character and views in general. Because the proposed home will be built below street grade, it will be only partially visible to the public. Further, the evidence given suggests that the proposed plan is well within the standards of former Chapter 17.48. We acknowledge that the proposed home and elevated driveway will impact Wilson’s view, but a landowner does not have “a right of access to air, light and view over adjoining property.” (Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492.)
Wilson failed to establish the opposite.
First, he complains that the proposed home will be much larger at 5,088 square feet than the largest home in the area, which is 3,600 square feet. Second, he argues that even if the project meets various legal requirements, it still may have a significant impact on the environment if it is obtrusive, out-of-scale, invades neighbor privacy or is otherwise not in harmony with the character of the surrounding neighborhood. Third, he contends that the Council ignored evidence of potential adverse effects on the overall aesthetics of the area. Last, he argues that the elevated driveway is a concern. These arguments, however, do not warrant consideration unless they are backed by supporting evidence.
To identify evidence, Wilson states that “a reasonable number of persons” came forward with testimony and evidence about impairment of community character and views. He did not, however, inform us who these people were or what they testified to or presented. We acknowledge that he provided citations to 88 pages in the administrative record, but citations alone are not enough. In essence, he invites us to review those 88 pages and guess what they contain that might support his appeal. The drawback for Wilson is that a judgment is presumed correct and any “party attacking the judgment, or any part of it, must affirmatively demonstrate prejudicial error. [Citation.]” (People v. Garza (2005) 35 Cal.4th 866, 881.)
Only in his reply brief did Wilson identify witnesses and the substance of what they said. “‘A point not presented in a party’s opening brief is deemed to have been abandoned or waived. [Citations.]’ [Citation.]” (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1755, fn. 1.)
Substantively, Wilson draws our attention to the December 17, 2003, hearing where Raffe, Jennings’s prior architect, testified that “if you look on the site plan, you’ll see for about 50 feet or so, the driveway is almost parallel with the street so therefore... the only visibility effect of it is certainly below the street level and the only visibility will be from the house itself. For the other 50 feet, it is almost perpendicular to the street. That’s where it would be visible from the property to the west.” Wilson also points out that a staff report prepared for the Board stated: “At the highest point the driveway would be located approximately 24 feet from the grade below and it will gradually lower to the driveway area on the finished building pad. Concrete caissons are proposed to support the driveway. [Jennings] has stated that from Laguna Road the caissons will not be visible and the driveway will appear as a typical on-grade driveway. The home to the east sits much higher above the subject site and landscaping will screen the driveway. The home to the west sits at the same approximate elevation as the proposed residence. [Jennings] has stated that only a section of the lower portion of the driveway may be visible and with the existing dense landscaping as well as the proposed landscaping around the driveway and along the west property line, the driveway will not be visible.” It is unclear what conclusion Wilson takes from the statements of Raffe and Jennings. We will not guess.
d. Stream and streambed alteration.
Contrary to the experts, Wilson believes that there is substantial evidence that the project threatens short-term and long-term stream values.
These “stream values” are never identified.
Wilson’s task is to contradict the following. In his May 23, 2003 report, Henrickson noted that the site does not contain a free flowing stream. Rather, he stated: “While the site is shown as a blue-line stream, on the USGS topographic map, the streambed is completely contained within a corrugated metal culvert and no specific riparian plants occur on this portion of the site.” Elsewhere, he concluded that the project “should have minimal impact on the overall biological resources in the immediate area.” With respect to the streambed, he noted that drainage does not flow throughout the year except for nuisance water. The Department of Fish and Game wrote Jennings that a streambed or lake alteration agreement was not required for his project because “the project... 1) does not substantially divert, obstruct, or change [a] natural flow or bed, channel, or bank of a river, stream or lake, or 2) use material from a streambed, or 3) substantially adversely [affect] existing fish or wildlife resources.” Finally, the City’s environmental administrator concluded that the project will not have a substantial adverse effect on any species or any riparian habitat identified or protected by law.
The initial study concluded that there would be less than significant impact on any riparian habitat or other sensitive natural community identified in local or regional plan, policies, and regulations by the Department of Fish and Game or the United States Fish and Wildlife Service. According to the initial study, the area “is identified as the Western Hillside Area natural community. However, the Department of Fish and Game visited the site and classified the site as ‘disturbed’ based on the past construction of a drainage culvert that traverses the site. In addition, they stated that the proposed project will not substantially affect... an existing stream, river, lake or channel, and will not use material from a streambed and will not adversely affect existing fish or wildlife resources.” Next, the initial study concluded that there would be less than significant impact on federally protected wetlands through direct removal, filling, hydrological interruption or other means. In support, the initial study stated that the site “does not contain wetlands or wetland habitat” and the zoning code requires a landscape plan emphasizing the use and management of native plants.
The testimony before the Board established that the proposed home would be built into the hill on the far upslope and that the bridge would go over the easement where the culvert is located. As a permit condition, Jennings was required to obtain review and approval if he planned to alter “the existing drainage system or grading which may affect the storm watercourse.” Further, he was not permitted to construct bridge supports within the easement area.
This evidence suggests that the stream or watercourse on the project site does not support fish or game. It also suggests that the stream or watercourse will not be altered or otherwise disturbed.
In opposition, Wilson states: “Due to the characteristics of the lot, the potential to adversely [affect] the environment through the construction and occupation of the proposed home is evident.” He does not discuss any of the evidence that he cites to support his statement. Tacitly, he invites us to guess what evidence supports reversal. We decline the invitation because our precedent dictates that we must presume that the judgment is correct. (Dunham v. Superior Court (1970) 2 Cal.3d 557, 564.) Wilson has the burden of overcoming the presumption of correctness. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
He goes on to argue that the “City persistently misrepresent[ed] that ‘there is not a free-flowing stream on this site.’... However, as testified by the personal observers and city planning experts, but for the central portion of the subject property, the stream runs the entire length of the canyon, in an unobstructed manner, and is not contained in a man-made artificial drainage.” We have not been cited to any evidence that the City denies the existence of some sort of watercourse. As for whether that watercourse is a free-flowing stream, Wilson has not defined his term and we have not been educated about the term’s significance. Suffice it to say, we must parse the potential adverse impact to the environment, not semantics.
On February 18, 2004, Huntley told the Board that “[t]he neighbor actually has a stream that runs through their property. It snakes through like this and back around and under through the culvert on this side. So they have this stream that runs through, and then they have an area of open grass or landscaping that comes down to the stream itself.”
Keeping pace, Wilson he tells us that “a review of the project’s environmental documents [prepared] by [Wilson’s] biology expert ENVICOM highlighted many of the defects and missing information necessary to evaluate the impact areas and resources of the site.” We are not told how these purported documents relate to the stream and whether they predict an adverse impact. As a consequence, his argument is unsupported and fails.
In further support of his position, Wilson cites to statements at a February 18, 2004 hearing, that a neighbor has a stream, the stream is free-flowing on either side of Jennings’s lot, and the stream, which has great historical significance, has been the subject of a series of studies. This evidence, however, does not demonstrate a significant potential adverse impact on the stream. For example, Wilson does not advert to any evidence that the project will dam up the stream, alter its course or destroy a habitat. The closest Wilson comes to showing an adverse impact is his reference to a diagram attached to a 2001 geological report from Stillman. The diagram points to an underground storm drain and outlet made of concrete and corrugated steel. At the point where the storm drain and outlet end there is an arrow stating “probable location of residence.” Wilson suggests that if the planned home were built there, the stream would be blocked. This is a straw man argument. The evidence established that the design plans changed and Jennings decided to build the proposed home into the hill instead at the bottom of the gully. The evidence also established that the bridge would pass over the easement where the culvert lies and that Jennings is prohibited from placing caissons there.
Next, Wilson complains that the CEQA documents failed to discuss whether future stream restoration will be foreclosed. This leads him to suggest that there is a fair argument that the stream faces potential adverse impact based on the inadequacy of the initial study. Indeed, an initial study must “disclose the evidence upon which it is based in order to afford a basis for judicial review.” (Gentry v. City of Murrietta (1995) 36 Cal.App.4th 1359, 1378.) Further, “‘[t]he agency [will] not be allowed to hide behind its own failure to gather relevant data.... CEQA places the burden of environmental investigation on government rather than the public. If the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record. Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences.’ [Citations.]” (Id. at pp. 1378–1379.)
Wilson’s argument is unavailing. The initial study adequately discussed the project’s risk of environmental impact. More importantly, we have not been cited any law requiring an environmental impact report when a project will preserve the status quo but might prevent restoration efforts. In any event, Wilson did not offer any expert evidence to the zoning hearing officer, Board or Council that the bridge would prevent restoration of the stream.
e. Geological resources.
From Wilson’s vantage, there is a significant potential threat of landslides on the project site. He bases his argument on newspaper articles from 1980 discussing a cave-in of a home on Ellington Lane in the San Rafael Hills and the impact of storms on various parts of the City and Los Angeles County. Wilson complains that this threat was not addressed in the initial study, and the newspaper articles present a fair argument of a potential adverse impact.
This argument is unavailing.
There is no evidence that the project site ever suffered a landslide. The initial study concluded that the project would result in less than significant impact on geology of the site and area. It was noted that “[a]ccording to [the] State of California Seismic Hazard Zone Map (Pasadena Quadrangle) and the Seismic Hazards Map... and Slope Instability Map... [,] the project is located where slopes have low slope instability. In addition[,] the Seismic Hazard map does not show this project to be located in an area where there is geologic evidence of past landslides. Further, the preliminary foundation investigation prepared by Soils and Geology Inc. (2001) does not indicate any past evidence of landslides on the subject site.” The initial study also concluded that the project did not pose a threat to life or property because, as indicated in the soils investigation, “the earth materials encountered at the site consist of organic compacted fill, residual soil and bedrock. Bedrock is suitable for foundation support of the proposed structures and is not considered expansive.” The newspaper articles do not contradict these findings.
Simply put, the administrative record lacks substantial evidence of significant potential threat to geological resources.
2. The City did not violate former Chapter 17.48.
Wilson argues that the City abused its discretion and violated former Chapter 17.48 by not adopting legally sufficient findings and failing to apply the proper standards for neighborhood compatibility.
Former Chapter 17.48 was effective when Jennings’s application was deemed complete. Chapter 17.29 provides: “Projects that have submitted an application for a discretionary action and have been deemed complete by May 3, 2004 may be processed under the Hillside District Standards in effect prior to the adoption of the development moratorium on the hillside districts.” It is clear from the timing of events that former Chapter 17.48 applies.
Once again, we disagree.
In the agenda report prepared for the December 4, 2006 hearing, the City’s manager stated that the proposed home met former Chapter 17.48, the maximum permitted floor area for the site was 5,136 square feet and Jennings proposed a maximum floor area of 4,648 square feet including the garage. The agenda report went on to state: “In addition to the maximum gross floor area, [Jennings] has agreed to comply with the neighborhood compatibility standards of [Chapter 17.28]. Staff prepared the analysis and found that the median home size within 500 feet of the site is 2,964 square feet. [Chapter 17.28] permits a maximum of 35 [percent] above the median or 4,001 square feet. This square footage applies to the home only and excludes the garage. Properties located outside of the City limits are excluded as they are subject to different development standards.”
Wilson argues that because the project, including the garage, is 4,648 square feet, the City abused its discretion. In his mind, former Chapter 17.48 does not permit Jennings to build a home and garage that exceed 4,001 square feet combined. But he ignores the City’s calculation that the combined ceiling on the project was 5,136 square feet. He does not explain why the City was wrong. Also, he fails to establish that former Chapter 17.48 ordinance caps a project’s gross square footage at 35 percent above the median of nearby residences.
Further, it appears from the administrative record that the City did not include the square footage of the garages of the comparison homes. If it had, then the median square footage would have been higher.
In the same vein, Wilson objects to the manner in which the City calculated the neighborhood median square footage. It looked at various homes within the City and within 500 feet of the project. Wilson complains that some of those homes are mansions located on a more prestigious street. He acknowledges that Chapter 17.28 requires the City to consider the size of homes within 500 feet of the project, but he contends that the mansions should have been excluded “because they do not accurately portray the neighborhood where the proposed project is to be built.” He further complains that the City excluded smaller homes within 500 feet of the project because they were located in the City of Los Angeles.
Despite taking issue with the City’s calculation, Wilson has not shown that it abused its discretion. Chapter 17.28 does not apply. Insofar as the City and Wilson adapted current standards to determine the scope of the project under former Chapter 17.48, Wilson cites no law proscribing it. As well, he does not cite and discuss the language of the formula he contends that the City misused. Due to these analytical shortcomings, Wilson failed to demonstrate that the City abused its discretion by failing to proceed in a manner prescribed by law.
3. The City did not violate the tree ordinance.
In his parting argument, Wilson argues that the City abused its discretion and violated the tree ordinance by approving the removal of trees without adequate findings to support the decision.
Section 8.52.075(A) of the City trees tree protection ordinance provides: “Any permit or approval which will result in injury to or removal of a landmark, native or specimen tree... shall be denied unless one of the following findings is made:... (6) the project... includes a landscape design plan which will result in a tree canopy coverage of greater significance than the tree canopy coverage being removed, within a reasonable time after completion of the project.”
As the administrative record reflects, the City made the finding called for by the tree ordinance. Wilson argues that the City’s finding is not supported by substantial evidence. (Code Civ. Proc., § 1094.5, subd. (c) [“Where it is claimed that the findings are not supported by the evidence,... abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the whole record”].) Under the substantial evidence test, our power “begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the [public agency].” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.)
Our study of the administrative record reflects that one of the conditions of permit approval was that the “final landscape plan shall include a 2:1 replacement of all removed trees with the same species of tree (minimum size 15 gallon). Nonnative trees with a caliper in excess of 8 inches... are to be replaced with a 24 inch box tree or larger or a combination of sizes to be approved by the Zoning Administrator if the trees are not transplanted on site. The final landscape plan shall demonstrate special consideration (increased plantings) along the west property line to aid in screening the home from the adjacent property. The plan shall also demonstrate a greater tree canopy than that proposed for the removal within a reasonable amount of time. This plan shall be approved by the Zoning Administrator prior to issuance of a building permit.” In his May 23, 2003 report, Henrickson suggested that the City mitigate the removal of the trees by planting younger trees because “[i]t has been found that younger trees become established more quickly, have a better spreading rootsystem, and may outgrow larger containerized trees after a few years.” The agenda report for the December 4, 2006 hearing, indicated that the plan was to replace the removed trees with smaller trees on the recommendation of the City’s contract arborist because “smaller trees will establish themselves quickly and are more likely to adapt successfully in the landscape.”
This is substantial evidence that the project contains a landscape design plan which will, in a reasonable time, result in a tree canopy coverage of greater significance than the one being removed.
In contradiction, Wilson argues that the City’s finding “has not been established because, although [Jennings] has promised some future landscaping plan to replace trees, the administrative record does not support and the City has not been given the opportunity to examine such a plan, and there is no credible evidence that a mature Coast Live Oak tree canopy can be (or will be) replicated through the planting of new trees in any reasonable amount of time.” Essentially, Wilson asks us to weigh the evidence and find it wanting. But that is beyond our purview. We cannot supplant the City’s findings with our own.
In his reply, Wilson argues that the administrative record lacked sufficient evidence for the Council to evaluate the adverse impacts arising from the project. He also argues that former Chapter 17.48 required to City to consider the views and privacy of adjacent properties. Because fairness militates against our consideration of arguments appellant raised for the first time in his reply brief, we decline to reach the issue. (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.)
DISPOSITION
The judgment is affirmed.
The City shall recover its costs on appeal.
We concur: BOREN P. J. CHAVEZ J.