Opinion
A131406
01-31-2012
KENTFIELD-UNION NEIGHBORHOOD ASSOCIATION et al., Plaintiffs and Appellants, v. REDWOOD CITY COUNCIL, Defendant and Respondent; KENTFIELD PACIFIC, LLC, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. CIV 486878)
Kentfield-Union Neighborhood Association (the Neighborhood) and Michael Bautista (Bautista) appeal from the judgment denying their petition for writ of mandate to overturn the resolution of the Redwood City Council (the City Council) authorizing Kentfield Pacific, LLC (the Developer) to construct a 21-unit housing complex (the Project) in Redwood City (the City). Bautista contends the City erred under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) by rendering a legally deficient initial study and in adopting a mitigated negative declaration (MND) for the Project, rather than proceeding with an environmental impact report (EIR). Bautista argues further that the City's zoning ordinances and Municipal Code prohibit the maximum density approved for the Project, as well as the approved parking spaces, sidewalk configuration, and unit heights. We affirm.
It is unclear whether Bautista is appealing both as an individual and on behalf of the Neighborhood. In any event, the only known member of the Neighborhood appears to be Bautista. All further references to Bautista shall also include the Neighborhood.
All further undesignated statutory references are to the Public Resources Code.
The Guidelines for the Implementation of the California Environmental Quality Act, hereafter Guidelines, are found in California Code of Regulations, title 14, section 15000 et seq. All subsequent regulatory citations to the Guidelines are to title 14 of the California Code of Regulations. "[C]ourts should afford great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2.)
According to the City's website, the Redwood City Municipal Code (Municipal Code) "is a collection of Ordinances passed by the City Council," which consists of the Municipal Code itself and a separate category called "Zoning Ordinances." (http://www.redwoodcity.org/government/codesandordinances.html) Unless otherwise specified, zoning ordinance references in this opinion are to Article 6, section 6.6 (the Zoning Ordinance) of the zoning ordinances contained within the Municipal Code.
I. BACKGROUND
The Project is to be built on a 1.54 acre lot on Kentfield Avenue in the City, currently occupied by a single-family residence, a duplex, and several sheds. The property is within a residential neighborhood predominately developed with duplex structures, as well as a multi-unit, multi-story apartment building, and condominium developments.
The property is designated as "Medium Density Residential" in the Redwood City 1990 General Plan (General Plan). This land use designation includes land to be developed with two- to three-story residential structures with a density of 8 to 20 dwelling units per acre. The property is zoned R-2 (Residential-Duplex), which is designed to accommodate single-family dwellings, two-family duplex dwellings, and three-family triplex dwellings. The R-2 zoning, as interpreted by the City, allows a density of up to 16.4 units per acre.
In February 2008, the Developer applied for an environmental assessment, planned development permit, and a tentative map. The Developer proposed to demolish the existing structures and to construct a 24-unit housing project, with an initial configuration of 12 two-story attached or "duplex" style, single family homes, and 12 three-story attached townhomes, with a total of 54 parking spaces.
On March 30, 2009, the City issued a notice of public hearing to surrounding property owners, residents, and interested parties, describing the Project and advising that the City planning commission would be holding a hearing on April 21, 2009. The notice also informed the public that an initial study and MND had been prepared, which would be available for public review and comment from April 1, 2009, through April 20, 2009.
Bautista appeared at the planning commission hearing on April 21, 2009, where he gave a PowerPoint presentation, challenging the Project's density, structure height, setbacks, and parking. At the end of the hearing, the planning commission unanimously approved the Project, adopted the initial study/MND, and approved the tentative map and the planned development permit.
On April 27, 2009, Bautista wrote to the City Council appealing the planning commission's approval of the Project. In this letter, Bautista again challenged the Project's density, height, setbacks, and parking. He also raised two CEQA-related issues, to wit: (1) public comments on the initial study were not included in the staff report to the planning commission; and (2) the review period was 19 days instead of 20 days. Notably absent was any claim by Bautista that an EIR was required. Similarly lacking was any mention that the initial study/MND was legally insufficient for failing to acknowledge an ambiguity in the City's Zoning Ordinance regarding R-2 zoning districts, or that the City's interpretation of the Zoning Ordinance was incorrect.
At a public hearing held on June 1, 2009, the City Council considered Bautista's appeal. City staff submitted an analysis of density requirements in the R-2 zoning district and a memo setting forth the City's interpretation of the General Plan and Zoning Ordinance that had been in place for at least eight years. City staff also provided information regarding previous planned development projects in the R-2 zoning district near the Project. It established that, for the past several decades, projects had been approved with densities ranging from 7.1 to 17 dwellings per acre. City staff presenting the density analysis represented approximately 17 years of zoning experience. Bautista opposed the City's density analysis based on his review of Google Maps and a visual inspection from the street.
At the conclusion of the hearing, the City Council voted six to one to direct the Developer to investigate the viability of reducing the height of the three-story units and to improve the parking. The single vote in opposition was lodged by the vice-mayor, who was pleased with the Project as presented.
After meeting with neighbors and working with City staff, the Developer submitted a revised proposal that reduced the units from 24 to 21, while maintaining the same number of parking spaces. The 21-unit proposal results in a lower density of 13.6 units per acre, as opposed to the 15.6 units per acre for the 24-unit proposal. The Developer also reconfigured the site plan, so that it now consists of 21 single-family, detached homes. The overall height of the units has been reduced to 31 feet, and no unit has more than two and one-half stories.
At the second City Council meeting held on July 13, 2009, Bautista focused his comments in opposition on the Project's density and the City's interpretation of the Zoning Ordinance. City staff again presented information regarding the density interpretation that had been in place for over a decade and the Project's compliance with that interpretation. At the conclusion of the hearing, the City Council voted unanimously to approve the Project as modified.
Bautista filed a petition for writ of mandate in August 2009, alleging, among other things, that an EIR was required and that the Project violated the City's Zoning Ordinance and Municipal Code. The petition for writ of mandate to vacate the City's decision approving the Project was denied by order filed on October 15, 2010, and Bautista has appealed from the ensuing judgment.
II. DISCUSSION
On appeal, Bautista contends that under CEQA: (1) the initial study for the Project was inadequate; (2) the City failed to prepare an EIR; (3) the City erroneously interpreted the Zoning Ordinance regarding the applicable density limits; and, (4) the City's findings regarding the Project's compliance with the Municipal Code were not supported by substantial evidence. The Developer and the City contend that the appeal should be dismissed as moot in light of a subsequent change in the Zoning Ordinance. Alternately, the Developer argues that even if Bautista's claims are not moot, they are nevertheless nonreviewable due to his failure to exhaust his administrative remedies.
Bautista does not respond to the arguments that his claims are moot and/or otherwise have not been preserved for judicial review.
A. Applicable CEQA Principles and Standard of Review
A government agency shall prepare an EIR on any proposed project that may have a significant effect on the environment. (§ 21100, subd. (a); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927.) The purpose of an EIR is "to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment." (§ 21061; see also Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354.)
" 'With certain limited exceptions, a public agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project "may have a significant effect on the environment." (§§ 21100, 21151, 21080, 21082.2 [fair argument standard]; Guidelines, §§ 15002, subd. (f)(1), (2), 15063 . . . .)' [Citation.]" (Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at p. 926.)
"The 'act or decision' we review here is not the decision that the project may or may not have a significant environmental impact, but the decision that it can or cannot be fairly argued that the project may have a significant environmental impact." (City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 541, italics omitted.) "The fair argument standard is a 'low threshold' test for requiring the preparation of an EIR. [Citations.] It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency's determination. Review is de novo, with a preference for resolving doubts in favor of environmental review. [Citations.]" (Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at p. 928, italics omitted.)
" 'In the context of an administrative mandamus action challenging an agency's determination under CEQA . . . , "substantial evidence" means "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." [Citations.] Such substantial evidence may include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts, but not argument, speculation, unsubstantiated opinion, or clearly erroneous evidence.' [Citation.]" (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1498.)
"A reviewing court may neither substitute its views for those of the agency whose determination is being reviewed, nor reweigh conflicting evidence presented to that body. [Citation.]" (Sierra Club v. County of Napa, supra, 121 Cal.App.4th at p. 1497.) Although our review is de novo, we must give the agency the benefit of the doubt on any legitimate, disputed issues of credibility. (Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at p. 928.) The agency "has discretion to determine whether evidence offered by the citizens claiming a fair argument exists meets CEQA's definition of 'substantial evidence.' [Citations.]" (Ibid.)
With these principles in mind, we now turn to the issues on appeal.
B. Mootness
Preliminarily, we address the question of mootness, which has been raised by the Developer and the City. The primary dispute in this appeal centers on Bautista's contention that there is an ambiguity in the Zoning Ordinance regarding the density requirements for lots in excess of 10,000 square feet, and that his interpretation of the Zoning Ordinance should prevail over that of the City.
At the time the Project was approved, the Zoning Ordinance provided, in relevant part, as follows: "The minimum building site area shall be five thousand (5,000) square feet for a single-family dwelling, seven thousand five hundred (7,500) square feet for a two (2)-family duplex dwelling, and ten thousand (10,000) square feet for a three (3)-family triplex dwelling." (Redwood City Mun. Code, Zon. Ords., Art. 6, § 6.6, prior version.) Bautista contends that the zoning ordinances establish a density limitation of 8.7 units per acre for single family homes, such that no more than 13 homes are legally permitted on the 1.54 acre Project site, rather than the 21 homes approved by the City. Bautista arrives at this calculation by dividing an acre (43,560 square feet) by the minimum lot area (5,000 square feet), the quotient of which is 8.7.
The City, however, has consistently interpreted the prior version of the Zoning Ordinance as providing an incremental or graduated approach, to wit: 5,000 square feet for the first dwelling and an additional 2,500 square feet for each additional unit.
On June 14, 2010, while the instant litigation was pending, the City Council adopted Ordinance No. 1130-349, amending Article 6 of the zoning ordinances (the 2010 amendment) to formally adopt the City's interpretation of section 6.6. Section 1.B. of Ordinance No. 1130-349 expressly states that the purpose of the amendment is to "codify the long-standing interpretation" of Article 6 and to "clarify that units in excess of three units on a single project site, whether the unit is a single family residence or part of a duplex or multiplex, shall require 2,500 square feet of lot area per additional unit beyond the first 10,000 square feet of lot area." (Redwood City Ord. No. 1130-349 (June 14, 2010), amending Redwood City Mun. Code, Zon. Ords., Art. 6, § 6.1 et seq.)
The Zoning Ordinance, as amended, now provides as follows: "The minimum building site area shall be five thousand (5,000) square feet for a single-family dwelling, seven thousand five hundred (7,500) square feet for a two (2)-family duplex dwelling, and ten thousand (10,000) square feet for a three (3)-family triplex dwelling, and two thousand five hundred (2,500) square feet for each additional family unit in excess of three (3) units on the same development site subject also to securing a Planned Development Permit as set forth in Article 46." (Redwood City Mun. Code, Zon. Ords., Art. 6, § 6.6, as amended June 14, 2010, italics added.)
Generally speaking, where a disputed statute, order or ordinance is repealed before an appeal challenging it is concluded, the matter is rendered moot. (See Howard Jarvis Taxpayers Assn. v. City of Los Angeles (2000) 79 Cal.App.4th 242, 249, criticized on another point in Ardon v. City of Los Angeles (2011) 52 Cal.4th 241, 250 [taxpayer association's claim for injunctive and declaratory relief to prevent future collection of registration fee for persons engaged in home occupations rendered moot by city's revocation of fee requirement]; see also Equi v. San Francisco (1936) 13 Cal.App.2d 140, 141-142 [action for injunctive and declaratory relief to prevent imposition of tax on automobile supply stations rendered moot where lower court invalidated challenged ordinance and enjoined future collection of tax].)
Here, the challenged ordinance was superseded by the 2010 amendment of Article 6 of the City's zoning ordinances which, as discussed, was expressly intended to "codify" the City's "long-standing interpretation" of the R-2 zoning provisions and "clarify" that 5,000 square feet is required for the first dwelling and an additional 2,500 square feet is required for each additional dwelling. (See Redwood City Ord. No. 1130-349, supra, amending Redwood City Mun. Code, Zon. Ords., Art. 6, § 6.1 et seq.)
Although not cited by the parties, Sierra Club v. Board of Supervisors (1981) 126 Cal.App.3d 698 is particularly instructive. There, the court held a challenge to a zoning ordinance based on an inconsistency with a general plan became moot when, during the pendency of the appeal, a new general plan was adopted with which the ordinance was consistent. (Id. at pp. 704-706.) Here, as in Sierra Club, the challenge to the ambiguity in the City's zoning ordinances was rendered moot by the 2010 amendment. Under the 2010 amendment, there is no longer any ambiguity regarding lots over 10,000 square feet. Further, the Project is unquestionably within the prescribed parameters of the amended zoning provisions.
That said, we are disinclined to accept the Developer's invitation to dismiss the entire appeal as moot. We do, however, agree that Bautista's claims are moot to the extent that he asserts the Project is inconsistent with the Zoning Ordinance or that the City erroneously interpreted the Zoning Ordinance when it approved the Project. Similarly nonreviewable are Bautista's claims that the initial study failed to discuss adequately the then-existing ambiguity in the Zoning Ordinance regarding projects over 10,000 square feet. Any such ambiguities have now been dispelled.
By reason of this holding, we do not address Bautista's claims that the Project is "incompatible" with the Zoning Ordinance and that the City's interpretation of its Zoning Ordinance is "absurd and unreasonable." (Original capitalization omitted.)
C. The Exhaustion of Administrative Remedies Doctrine
Section 21177 codifies the doctrine of exhaustion of administrative remedies in CEQA proceedings. (Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 875.) Former section 21177, subdivision (a) provided: "No action or proceeding may be brought [to attack, review, set aside, void, or annul certain acts or decisions of a public agency on the grounds of noncompliance with CEQA] unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." Although the exhaustion requirement has been described as "jurisdictional" (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199), a failure to exhaust does not deprive a court of fundamental subject matter jurisdiction. (Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1215-1216.) Properly understood, exhaustion under section 21177 is a statutory prerequisite for asserting a ground of CEQA noncompliance. (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 909-910 (Porterville))It is designed to give an agency "the opportunity to receive and respond to articulated factual issues and legal theories before its actions are subject to judicial review. [Citation.]" (Id. at p. 910, relying upon Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198 (Coalition for Student Action).)To that end, the exact issue asserted in the trial court must have been presented to the administrative agency. (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894, disapproved on other grounds in Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 529.) The petitioner bears the burden of showing that the issues raised in the judicial proceeding were first raised at the administrative level. (Porterville, at p. 909.) Whether the exhaustion of administrative remedies doctrine applies in a given case is a legal issue subject to our independent review. (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536.)
Former section 21177 was repealed in 2010 and replaced by a new section 21177 addressing the same subject matter. (Stats. 2010, ch. 496, § 11, eff. Sept. 29, 2010.)
D. The Initial Study's Description of the Project's Density
1. Background
The initial study notes that the Project site is designated as "Medium Density Residential" in the City's General Plan. The initial study describes the density for this land use category as being "approximately 8 to 20 dwelling units" per acre. It noted further that the Project proposes 24 dwelling units on the 1.5 acre site or 16 units per acre. The Project was described as consisting of the demolition of the existing structures and construction of "14 two-story detached single family homes, a two-story duplex (2 units), and eight three-story attached townhomes for a total of 24 dwelling units on a 1.5 acre site." As noted, the Developer subsequently modified the Project, so that now it consists of 21 detached, single-family homes. In a report prepared for the July 13, 2009 City Council hearing, City staff submitted a report describing the revised project and noting that the 21-unit proposal results in a lower density of 13.6 units per acre.
It appears that the initial study was circulated with the MND, however, there is no separate initial study in the record provided to us. Rather, the parties cite to the MND as either the initial study or the IS/MND.
From the time of its inception, the Project has undergone various unit-type configurations.
Bautista contends the initial study fails to comply with CEQA because its discussion of the density under R-2 zoning is "almost non-existent." He further claims that "[t]here most definitely is no reference or analysis" of the 21-unit proposal. The first part of Bautista's claim has not been preserved for judicial review and the latter portion lacks substantive merit.
2. Analysis
Bautista claims the initial study is inadequate because it omits any reference to the Project's density or the "controversy" regarding this issue. During the administrative proceedings, however, Bautista did not raise this issue. Rather, he argued that the lot density of the Project exceeded the permissible limits set forth in the Zoning Ordinance. To the extent he raised specific challenges to the initial study, Bautista's objections were limited to the following: (1) public comments on the initial study were not included in the staff report to the planning commission; and, (2) the public was afforded 19 rather than 20 days to review the initial study. Nothing in these arguments can reasonably be construed as alerting the City that the initial study insufficiently discussed the Project's density.
To the extent Bautista asserts that the initial study is deficient for failing to address the uncertainty in the Zoning Ordinance regarding lots over 10,000 square feet, this claim, as discussed, is moot in light of the 2010 amendment.
The gist of Bautista's objections to the Project turns on his belief that the Project is too dense. However, "[m]ere objections to the project, as opposed to the procedure, are not sufficient to alert an agency to an objection based on CEQA." (Coalition for Student Action, supra, 153 Cal.App.3d at pp. 1197-1198, original italics.) Bautista, having failed to raise his challenge to the adequacy of the initial study at the administrative level, cannot air it for the first time in the courts. (Id. at p. 1198.)
In any event, assuming arguendo that Bautista's repeated challenges to the density of the Project could be deemed sufficient to preserve his claim, it nevertheless fails on the merits. An initial study is designed to inform the choice between a negative declaration and an EIR, as well as eliminate unnecessary EIR's. (Guidelines, § 15063, subd. (c)(1).) "The initial study must include a description of the project. The study must also '[p]rovide documentation of the factual basis for the finding in a Negative Declaration that a project will not have a significant effect on the environment.' " (City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 406, fns. omitted (City of Redlands).)Absent substantial evidence of any significant environmental impact, the agency shall adopt a negative declaration. (§ 21080, subd. (c); City of Redlands, at p. 405.)
An initial study is neither intended nor required to include the level of detail included in an EIR. (Guidelines, § 15063, subd. (a)(3).) Rather, an initial study is meant to provide a brief examination of six enumerated topics, including whether the project would be consistent with the existing zoning, plans, and other applicable land use controls. (Guidelines, § 15063, subd. (d)(5).)
Under the CEQA Guidelines, an initial study must "contain in brief form: (1) A description of the project including the location of the project; [¶] (2) An identification of the environmental setting; [¶] (3) An identification of environmental effects by use of a checklist, matrix, or other method, provided that entries on a checklist or other form are briefly explained to indicate that there is some evidence to support the entries. . . .[¶] (4) A discussion of ways to mitigate the significant effects identified, if any; [¶] (5) An examination of whether the project would be consistent with existing zoning, plans, and other applicable land use controls; [¶] (6) The name of the person or persons who prepared or participated in the initial study. (Guidelines, § 15063, subd. (d), italics added.)
In Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170 (Lighthouse Field Beach Rescue), the reviewing court emphasized the brevity of the topics to be discussed in an initial study. There, the appellants claimed that an initial study insufficiently described the environmental setting of a proposed project because it failed to give adequate consideration to the effect of off-leash dogs in the area. (Id. at p. 1191.) The challenged initial study "briefly mention[ed] the use of the area by visitors with dogs." (Id. at p. 1193.) The court held that the initial study "met the minimum requirements of Guidelines section 15063, subdivision (d)(2) of briefly identifying the baseline environmental setting. The City was not required, as part of a brief
'environmental setting' description, to analyze the extent to which off-leash dog use had caused or contributed to the existing environmental conditions." (Lighthouse Field Beach Rescue, at p. 1194.)
So too here, the initial study's brief discussion of the Project's density complied with the CEQA Guidelines when it examined whether the Project would conflict with any applicable land use plan, policy, or regulation and determined that it would have no significant impact on land use and planning. Specifically, it noted that the Project is located on a 1.5 acre site, designated as "Medium Density Residential"/R-2 Zoning District. It further noted that in this land use category "[d]ensities are approximately 8 to 20 dwelling units per net acre." Thus, the initial study concluded that the 24 units on 1.5 acres was "within the allowable density for this site." The same analysis applies to Bautista's urging that the initial study's failure to analyze the lesser number of units renders the initial study legally inadequate.
We conclude the initial study's brief examination of the original Project's density vis-a-vis the applicable land use controls met the minimum requirements set forth in Guidelines section 15063, subdivision (d)(5) of providing a brief "examination of . . . existing zoning, plans, and other applicable land use controls." A fortiori, the City was not required to analyze a lower density proposed for the site.
City of Redlands, supra, 96 Cal.App.4th 398, cited by Bautista, does not compel a contrary conclusion. In City of Redlands, an initial study was deemed inadequate where the county failed to cite any evidence in support of its conclusion that the project would have no impact or less than a significant impact. (Id. at p. 408.) Instead, the county merely checked the appropriate boxes and provided the same evaluation for each environmental factor with slight variations. (Ibid.)In reversing, the court characterized the county's efforts as " 'a token observance of regulatory requirements.' " (Id. at p. 409, fn. omitted.)
The same cannot be said of the City's efforts in the instant case. The City did not merely go through the motions of complying with CEQA by providing a rote response in support of its conclusion that the Project would not conflict with the existing zoning and land use controls. Rather, it provided three paragraphs of discussion, detailing the Project's proposed plan as well as the applicable density limits, before concluding that the proposed development was "within the allowable density" for the site and that the Project would have no significant impact on land use and planning. In other words, the initial study complied with CEQA, by proving a factual basis for the conclusion in the MND that the Project will not have a significant effect on the environment. (City of Redlands, supra, 96 Cal.App.4th at p. 406, fns. omitted.)
E. EIR
1. Background
The City conducted an initial study and determined that any environmental impacts could be mitigated. It then circulated that study and the MND together for public review and comment.
Bautista claims the City erred under CEQA in adopting a MND for the Project rather than preparing an EIR, because there is substantial evidence that the Project may pose significant environmental issues in the areas of density and parking. Nothing in the record establishes that Bautista raised this argument in the administrative proceedings. As mentioned, Bautista's letter appealing the approval of the Project was limited to two CEQA challenges: (1) the public comments on the MND were not included in the staff report to the planning commission; and, (2) the public was afforded a 19 rather than a 20-day review period. Nowhere in the letter does Bautista claim that an EIR was required. Also, in his public testimony before the planning commission and City Council, Bautista never argued that an EIR was required. At the final City Council hearing, Bautista argued that the Project conflicted with the Zoning Ordinance and reiterated his belief that it was a "non-conforming project." Again, nothing in these comments would have alerted the City to Bautista's claim than an EIR was required.
On the day before the final City Council hearing, Bautista's attorney submitted a letter, alleging that "inconsistency with the General Plan would require further environmental review than that provided in the [MND] . . . ." This letter, however, did not apprise the City that Bautista was claiming an EIR was required. Rather, that letter merely asserts generic complaints about the Project.
2. Analysis
Coalition for Student Action, supra, 153 Cal.App.3d 1194, explains that the exhaustion doctrine is not satisfied by generic statements regarding the environment. That case states: "Petitioners rely on generalized environmental comments at public hearings to satisfy the exhaustion doctrine. It is difficult to imagine any derogatory statement about a land use project which does not implicate the environment somehow. More is obviously required. . . . [¶] The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review. The doctrine was not satisfied here by a relatively few bland and general references to environmental matters. The city was entitled to consider any objection to proceeding by negative declaration in the first instance, if there was one. . . . Petitioners, having failed to raise their CEQA claims at the administrative level, cannot air them for the first time in the courts." (Id. at pp. 1197-1198.)
The same is true here. The procedural CEQA defect argued in this litigation is the failure to prepare an EIR. However, as shown above, no one suggested that an EIR should be prepared instead of a negative declaration (§ 21080, subd. (c)), and the comments that were received related to the objections to the Project itself, not the use of an initial study/MND. (See Temecula Band of Luiseño Mission Indians v. Rancho Cal. Water Dist. (1996) 43 Cal.App.4th 425, 439; Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1620-1621.) The trial court was therefore correct in its ultimate determination that the petition should be denied.
In any event, Bautista's personal opinion that the Project is too dense and has inadequate parking does not amount to substantial evidence supporting a fair argument that the Project may have a significant nonmitigable effect on the environment. (§ 21151, subd. (a); Guidelines § 15064, subd. (f)(1), (2); Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at p. 927.) A "significant effect on the environment" is defined as "a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project." (Guidelines, § 15382.) Here, Bautista fails to allege any specific physical impacts on the environment. Rather, Bautista relies on his own interpretation of the Zoning Ordinance and his visual inspection of parking in the area to support his assertion that an EIR is required. Courts, however, have rejected " 'the inference that the existence of factual controversy, uncertainty, conflicting assertions, argument or public controversy can of themselves nullify the adoption of a negative declaration and require the preparation of an EIR when there is no substantial evidence in the record . . . .' [Citations.]" (Friend of "B" Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002.)
Moreover, substantial evidence "means 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." (Guidelines, § 15384, subd. (a).)
Although relevant personal observations of area residents on nontechnical subjects may qualify as substantial evidence for a fair argument, "mere argument, speculation, and unsubstantiated opinion, even expert opinion, is not substantial evidence for a fair argument. [Citations.]" (Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at pp. 928-929; see also § 21082.2, subd. (c); Guidelines, § 15384, subd. (a).) The mere possibility of adverse impacts on a few people shall not require preparation of an environmental impact report if there is no substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment in general. (Pocket Protectors v. City of Sacramento, supra, at p. 929.)
Here, Bautista's lay opinion that the Project is too dense and has insufficient parking does not constitute substantial evidence supporting a fair argument that the Project may have a significant effect on the environment. Rather, it consists of unsubstantiated opinion. In sum, the City was not required to prepare an EIR.
F. Unit Height
1. Background
After Bautista's initial challenges to the Project and before the final decision on his appeal, the Developer modified the structure height reducing it to two and one-half stories. At the final City Council hearing on the revised plan, Bautista expressly focused his comments on the density issue. Bautista's challenge to the revised number of stories is nowhere to be found in the administrative record. Rather, the first time he challenged the revised structure height was in the trial court.
Bautista now contends that "there is no substantial evidence in the record to support the finding the Project is only 2.5 stories under the City's Zoning Code." (Original capitalization omitted.) Rather, he insists that the approved structures are actually three stories in height. This argument, however, was not raised in the administrative proceedings.
2. Analysis
" 'The requirement of exhaustion of administrative remedy is founded on the theory that the administrative tribunal is created by law to adjudicate the issue sought to be presented to the court . . . .' " (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 589 (Tahoe Vista) ). Consequently, section 21177 "requires one to raise issues in the hearing required by CEQA before the agency decides whether to approve the negative declaration." (Tahoe Vista, at p. 590, original italics.)
For example, in Tahoe Vista, objections were raised to a negative declaration at the planning commission hearing, but the plaintiffs' appeal to the board of supervisors did not specify that the plaintiffs were appealing the planning commission's approval of a negative declaration. (Tahoe Vista, supra, 81 Cal.App.4th at p. 592.) Rather, the appeal was solely based the claim that there was " 'not enough parking.' " (Id. at p. 582.) The plaintiffs' subsequent challenges to the negative declaration were deemed nonreviewable for failing to exhaust their administrative remedies. (Id. at pp. 593-594.)
In the present case, the height issue was raised at the April 21, 2009 planning commission hearing and at the initial City Council hearing on April 27, 2009. Prior to the final City Council hearing on Bautista's appeal, the Developer reduced the structure heights to two and one-half stories. At the final hearing on his appeal, Bautista never challenged the revised plan as being inconsistent with the Zoning Ordinance's requirements for partial stories. On appeal, as he claimed in the trial court, Bautista asserts that the structure are still three stories tall because the approved plans do not meet the partial story requirements set forth in Article 2 of the City's zoning ordinances.
According to the record on appeal, the definition of "Story, Half is as follows: "[section] 2.94 [¶] A partial story under a gable, hip, or gambrel roof, the wall plates of which, on at least two (2) opposite exterior walls, are not more than four (4) feet above the floor of such story, and the interior height of which, from the floor to the underside of the roof, does not equal or exceed seven (7) feet for more than forty (40) percent of the floor space."
The concerns expressed in Tahoe Vista are aptly fitting in this case: "The doctrine's purpose is fully served when parties raise all issues before the administrative body with ultimate or final responsibility to approve or disapprove the project, even if those issues were not raised before subsidiary bodies in earlier hearings. [Citation.] Were we to conclude the trial court erred in not reviewing an issue not raised before the administrative body below with final decisionmaking authority, we would enable litigants to narrow, obscure, or even omit their arguments before the final administrative authority because they could possibly obtain a more favorable decision from a trial court. Such a result would turn the exhaustion doctrine on its head." (Id. at p. 594, italics added.)
Bautista's belated challenge to the revised and reduced unit heights did not provide the City with an opportunity to receive and respond to any articulated factual issues and legal theories before its actions were subject to judicial review. (Porterville, supra, 157 Cal.App.4th at p. 910.) If Bautista believed that the revised structure heights still exceeded permissible limits, he was obligated first to raise this issue at the administrative level. (Id. at p. 909.) This he did not do.
Accordingly, we conclude that Bautista did not exhaust his administrative remedies with respect to this purported claim of error.
G. Sidewalks
1. Background
The initial study found that the Project would have no impact on alternative transportation, including pedestrian travel. City staff prepared a "Traffic Impact Analysis" (TIA), noting that "most of the proposed units will be accessed by a new private street comprised of a 25 foot wide driving surface including a five foot wide edge of enhanced paving on one side for pedestrian use." The TIA further provided that: "The City's Engineering Standards for a private street require a minimum 25 foot wide vehicular roadway surface as well as a separate minimum five foot wide sidewalk on one side of the street. In this case, the developer is seeking an exception to the standards by incorporating a pedestrian access path into the private street's drivable surface. This is considered to be a design related issue and such an exception can be granted by the Planning Commission. This modification is not considered to be an environmental impact." (Italics added.) The TIA is in appendix A, which was circulated with the initial study and MND.
The City's Engineering Standards are not included in the administrative record or in the record on appeal.
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Bautista now challenges the Project's combination of the street and pedestrian walkway. He claims "there is no substantial evidence to support the Project's compliance with Redwood City Municipal Code section 30.87(B)." (Original capitalization omitted.) Bautista, however never raised this specific argument in either his appeal letter or in his verbal presentations before the planning commission and City Council. Rather, the only reference in the administrative record to this claim is in a letter from Bautista's counsel, which the City received on the same day as the final City Council hearing. In that letter, Bautista's counsel, claimed, among other things, that: "There is . . . a question as to the adequacy of the width of the roadway and the evident absence of a sidewalk. This omission of a sidewalk separate from, and in addition to the roadway, should require a Subdivision Exemption under § 30.69 of the Redwood City Municipal Code with appropriate Findings."
Although the letter references section 30.69 of the Municipal Code, which pertains to exemptions in general, there is no reference to the code requirements for sidewalks or how the Project allegedly violates the Municipal Code.
2. Analysis
The general and cursory complaint about the alleged lack of sidewalks was insufficient to put the City on notice regarding Bautista's belated claim that the Project failed to have the requisite sidewalks and/or failed to establish an exception to the sidewalk requirement. (Coalition for Student Action, supra, 153 Cal.App.3d at pp. 1197-1198.) In any event, even if the single, vague sentence relied on by Bautista was sufficient to exhaust his administrative remedies, his claim fails on the merits.
In the trial court, Bautista argued for the first time that the Project violated Redwood City Municipal Code, Chapter 30, article V., section 30.87 B. (section 30.87 B.), which provides, in pertinent part, as follows: "The minimum subdivision improvements that shall be required, if applicable to the proposed subdivision, unless specifically excepted by the Subdivision Committee or the Planning Commission as the case may be, shall be as follows: [¶] . . . Driveways, sidewalks or pedestrian paths and similar features." (Italics added.)
Bautista contends that the Developer was required to apply for and obtain an exception because the Project as approved combines the driving surface of the street with the proposed pedestrian path. He further argues that "[g]iven the intensity of the [Project], it is quite possible that the additional 5 feet of roadway . . . may have not allowed sufficient room for the number of homes . . . ." However, nothing in section 30.87 B. prohibits the combination of the driveable surface with the walkway, or requires an exception before proceeding with a combined driveable surface and walkway. Moreover, Bautista ignores that Chapter 30 of the Municipal Code, addressing subdivisions, specifically provides in Article IX., section 30.120 (pedestrian/bicycle paths) that: "At the option of the City, pedestrian/bicycle paths may be combined with other easements or rights-of-way when such easements are compatible with the purposes of this Chapter." (Italics added.) Here, the City deemed that it was appropriate for the street width to include the walkways, finding that the design and/or improvements of the Project "will not conflict with essential public easements for access through, or use of, property within the proposed subdivision." We will not second-guess this finding. (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2010) 184 Cal.App.4th 1032, 1041.)
Accordingly, even if this issue had been adequately preserved by proper exhaustion of administrative remedies it is nevertheless without merit.
III. DISPOSITION
The judgment is affirmed. The Developer is entitled to its costs on appeal.
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RUVOLO, P. J.
We concur: _______________
REARDON, J.
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RIVERA, J.