Fairbank v. City of Mill Valley (1999)

PATRICIA ANN FAIRBANK, Plaintiff and Appellant, v. CITY OF MILL VALLEY et al., Defendants and Respondents; JACK LEE et al., Real Parties in Interest and Respondents.

[Opinion certified for partial publication. fn. * ]

(Superior Court of Marin County, No. 173891, Vernon F. Smith, Judge.)

(Opinion by Sepulveda, J., with Poché, Acting P. J., and Reardon, J., concurring.)

COUNSEL

Stanley & Rose and Laurel S. Stanley for Plaintiff and Appellant.

McDonough, Holland & Allen and Craig Labadie for Defendants and Respondents. [75 Cal. App. 4th 1247]

Neil Sorensen; Bien & Summers and Eliott L. Bien for Real Parties in Interest and Respondents.

OPINION

SEPULVEDA, J.-

Appellant Patricia Ann Fairbank filed a petition for writ of mandate in the trial court seeking to overturn an approval by respondents, the City of Mill Valley and the Mill Valley City Council, of a commercial building project proposed by real parties in interest, Jack Lee and Christine Lum. fn. 1 The trial court concluded there was substantial evidence for the city's findings that the project is exempt from the requirements of the California Environmental Quality Act, Public Resources Code section 21000 et seq. fn. 2 (CEQA or the Act), and that it complied with the city's general plan and zoning ordinance. Accordingly, the trial court denied Fairbank's petition.

In her appeal, Fairbank argues that the city and trial court misinterpreted the so-called "Class 3" categorical exemption for small commercial structures, which is found in section 15303, subdivision (c), of the Guidelines for Implementation of CEQA (Cal. Code Regs., tit. 14, § 15000 et seq. (Guidelines)). fn. 3 Fairbank further contends that there is no substantial evidence to support the city's findings as to the applicability of this CEQA exemption or the project's compliance with the general plan and zoning ordinance.

Respondents counter that case law applying Guidelines section 15303(c) as it read at the time of the trial court's decision, fn. 4 as well as new language [75 Cal. App. 4th 1248] adopted after the hearing on Fairbank's petition, fn. 5 support the trial court's interpretation and application of the Class 3 exemption in this case. Respondents further contend that the findings of compliance with the general plan and zoning ordinance are supported by substantial evidence. We agree and, accordingly, will affirm.

I. Factual and Procedural Background

Real parties in interest own a one-half city block in downtown Mill Valley on Throckmorton Avenue. In early 1996, they applied for a conditional use permit to allow expansion of an existing restaurant space on the property, which is known as Sonapa Farms. The 1996 application also included a plan to demolish approximately 1,995 square feet of existing building area, expand the parking lot, and convert to office use some 3,978 square feet of existing space located on the second floor of the building, above the businesses known as Banana Republic and Vintage Wine & Spirits. This project was approved by the city's planning commission on June 10, 1996, but was never built.

After concluding that the original proposal was not economically feasible, real parties in interest submitted an application to the city in July 1997, seeking to amend the conditional use permit as follows: (1) to reduce the size of the Sonapa Farms restaurant space from 3,638 square feet to 2,050 square feet; (2) to develop a new 1,828-square-foot restaurant with an 875-square-foot outdoor deck, to be located north of the Corte Madera Creek in a redwood grove; (3) to add a 1,974-square-foot retail building near the location of the proposed project; (4) to refurbish and create a total of 4,880 square feet of second level office space, partially within the existing building above Vintage Wine & Spirits and Banana Republic; and (5) to undertake various site and landscape improvements.

On August 25, 1997, the planning commission approved the restaurant/office proposal. However, after an appeal to the city council, the application [75 Cal. App. 4th 1249] was referred back to the planning commission for consideration of a revised plan to be prepared by real parties in interest, which would respond to issues raised at the city council hearing.

The revised plan, submitted on January 9, 1998, was for only one new building-a freestanding, 2-story, 5,855-square-foot retail/office building-on a portion of an existing parking lot behind the existing commercial buildings that front on Throckmorton. The previous proposal for a creekside restaurant was eliminated, and the redwood grove area was to be retained as visual open space. The revised project did not propose any use of the existing space above the Banana Republic and Vintage Wine & Spirits stores.

On March 9, 1998, the planning commission held a hearing on the revised project. It voted to recommend approval of the design review application and the granting of a floodplain management ordinance variance as requested by real parties in interest. In recommending approval of the project, however, the planning commission sought clarification regarding parking regulations, CEQA review, and creek access issues. The CEQA issue was raised for the first time at the March 9, 1998, planning commission hearing.

The city council voted unanimously to approve the revised project at the conclusion of a public hearing held on April 6, 1998. Prior to approving the project, the council reviewed a 19-page staff report, and a written opinion from the city attorney relating to parking requirements, CEQA compliance, and creek access. In approving the project, the council voted to: "Find that the plans for the proposed commercial building are consistent with all applicable policies in the Mill Valley General Plan and with the criteria in Section 20.66.040 of the Zoning Ordinance in that the design will satisfy the following criteria: [¶] The proposed building will carry out its intended function while resulting in an attractive development which will be in substantial harmony with its locale and surroundings and generally compatible with the size, mass and height of other buildings in the vicinity. [¶] The proposed building will not impair or interfere with the development, use or enjoyment of other property in the vicinity including public lands and rights-of-way. [¶] The materials, colors and architectural character of the proposed building are generally compatible with other structures in the vicinity. [¶] The proposed building and site will be appropriately and adequately landscaped with all existing significant site vegetation being preserved. [¶] Drainage systems and appurtenant structures will have no adverse impacts on other properties. [¶] There will be no cut and fill areas, and there will be very little excavation outside the actual footprint of the [75 Cal. App. 4th 1250] building which will be located on an existing parking lot. [¶] The design and location of the parking area and driveway will meet the intended functional requirements and minimize or avoid adverse effects on natural resources or adjacent properties. [¶] The proposed building is consistent with all applicable Building Intensity Standards and Design Guidelines contained in the Mill Valley General Plan." In addition, the city council imposed 31 conditions on the project, covering matters such as the colors and materials to be used in construction of the buildings, a requirement that no trees be cut down, and restrictions on the use of the buildings.

On April 7, 1998, the city filed a notice of exemption, citing Guidelines sections 15301, 15302(b), 15303(b) and (c), and 15061(b)(3). Fairbank sought judicial review of this decision by filing a petition for writ of mandate in the trial court on May 12, 1998. On July 27, 1998, the city filed a motion to exclude certain items of evidence Fairbank had attached as exhibits to her memorandum of points and authorities in support of her petition. In particular, the city sought exclusion of declarations submitted by an architect, Brian Farnsworth, and by Antero Rivasplata, the Chief of the State Clearinghouse in the Governor's Office of Planning and Research. Those declarants would have testified that "occupant load" is a term of art used in the architectural and engineering fields, one that was defined in the 1994 Uniform Building Code (Cal. Code Regs., tit. 24, former § 1002 et seq. (UBC)), which was in effect when the city approved the project in this case. In addition, Rivasplata would have testified that it has been the position of his office that the term "occupant load," as used in the Guidelines, is a reference to the term used in the UBC. The city's motion was granted by order dated September 4, 1998.

The trial court denied Fairbank's petition after a hearing on September 25, 1998. The court found that: (1) the revised project qualifies for an exemption under Guidelines section 15303(c); (2) Fairbank had failed to carry her burden of producing substantial evidence to show a reasonable possibility of adverse environmental impact sufficient to remove the project from the exempt category; (3) the city had reasonably interpreted its general plan policies in determining that city codes allowed for "grandfathering" of nonconforming parking facilities; and (4) Fairbank was precluded from litigating various issues for failure to raise them in the administrative proceedings. This timely appeal followed. fn. 6 [75 Cal. App. 4th 1251]

II. Discussion

A. The Revised Project Is Exempt From CEQA Under the Current Version of Section 15303(c).

Fairbank's principal arguments are that the city and the trial court misinterpreted Guidelines section 15303(c), and that there was no substantial evidence for the city's finding that the Class 3 exemption applies to the project in this case. [1] We agree with Fairbank that the first of these issues is a question of law, subject to de novo review by this court. (Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal. App. 4th 1165, 1192 [61 Cal. Rptr. 2d 447] (Azusa).) On the other hand, the substantial evidence test governs our review of the city's factual determination that a project falls within a categorical exemption. (§ 21168; Code Civ. Proc., § 1094.5; see also Western States Petroleum Assn. v. Superior Court (1995) 9 Cal. 4th 559, 566-567 [38 Cal. Rptr. 2d 139, 888 P.2d 1268]; Dehne v. County of Santa Clara (1981) 115 Cal. App. 3d 827, 835 [171 Cal. Rptr. 753] (Dehne).) [2a] After independently reviewing the language and history of Guidelines section 15303(c), and reviewing the record for substantial evidence, we are satisfied that the exemption found in that provision, as amended in 1998, applies to the project in this case.

"The Legislature has made certain categories of projects exempt from CEQA. Many of these exemptions appear in Public Resources Code section 21080, subdivision (b). [Citations.] Public Resources Code section 21080, subdivision (b)(9) exempts from CEQA '[a]ll classes of projects designated pursuant to Section 21084.' [¶] Public Resources Code section 21084 authorizes the Secretary of the Resources Agency to include in the Guidelines a list of classes of projects exempt from CEQA provided that the Secretary makes 'a finding that the listed classes ... do not have a significant effect on the environment.' The classes of projects identified by the Secretary of the Resources Agency appear in Guideline section 15300 et seq. and are sometimes referred to as 'categorical exemptions.' The Secretary of the Resources Agency's authority to identify classes of projects exempt from CEQA is not unfettered. 'The secretary is empowered to exempt only those activities which do not have a significant effect on the environment. (Pub. Resources Code, § 21084.) It follows that where there is any reasonable possibility that a project or activity may have a significant effect on the environment, an exemption would be improper.' (Wildlife Alive v. Chickering (1976) 18 Cal. 3d 190, 205-206 [132 Cal. Rptr. 377, 553 P.2d 537].) To implement the rule laid out in Chickering, Guidelines section 15300.2, subdivision (c) was adopted, which provides: 'Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the [75 Cal. App. 4th 1252] activity will have a significant effect on the environment due to unusual circumstances.' " (Azusa, supra, 52 Cal.App.4th at p. 1191.)

Fairbank first contends that the language of the Class 3 exemption, as it existed at the time of the administrative and trial court proceedings, cannot apply to this case because the proposed building was "designed for an occupant load" of more than 30 people. Fairbank further contends that "occupant load" is a term of art used in the architectural and engineering professions, and is defined in the UBC (Cal. Code Regs., tit. 24, § 1003.2.2 et seq. & table 10-A; see also id., former § 1002.1.2 & former table 10-A). Applying the UBC standard to the present project, moreover, Fairbank claims the occupant load of the proposed 5,855-square-foot building-with 3,130 square feet of office space and 2,725 square feet of retail space-would be 122 persons. fn. 7

Respondents point out that the Guidelines do not define "occupant load," and do not indicate that the UBC is an authoritative source for defining that term. In addition, relying on Centinela Hospital Assn. v. City of Inglewood (1990) 225 Cal. App. 3d 1586 [275 Cal. Rptr. 901] (Centinela), respondents appear to contend that a small commercial facility could qualify under the former version of the Class 3 exemption even if, under the UBC, it has an occupant load exceeding 30 persons. Although Centinela provides some support for respondents' position, we reject this argument because it cannot be reconciled with the plain language of former Guidelines section 15303(c).

Centinela, supra, involved a proposed 15-bed, 2-story, 5,400-square-foot crisis psychiatric facility. (225 Cal.App.3d at pp. 1590, 1600-1601.) After the City of Inglewood granted a use permit for the new facility, and determined that the project was exempt from CEQA pursuant to Guidelines section 15303(c), a local hospital association unsuccessfully challenged the approval insuperior court. Division Seven of the Second Appellate District affirmed the decision of the trial court, ruling as a matter of law that the proposed facility fell within the Class 3 exemption because it was "similar to both the apartments and duplexes permitted under subdivision (b) and the [75 Cal. App. 4th 1253] small commercial structures permitted under subdivision (c)" of Guidelines section 15303. (Centinela, supra, at p. 1600.) Without any meaningful analysis, the Centinela court rejected the appellant's claim that the project was "designed for an occupant load" of greater than 30 persons, saying: "We find to be without merit appellant's claim that in determining whether the facility meets the requirement in subdivision (c) pertaining to the occupant load of 30 persons or less, we should apply the calculations set out in the Inglewood Municipal Code for determining the 'occupant load' for hospitals, sanitariums, nursing homes, or dormitories." (Id. at p. 1600.)

Apparently, respondents view this aspect of the Centinela decision as a holding that local agencies are free to disregard the occupant load limit stated in Guidelines section 15303(c) and the technical meaning of that term as it is used in the UBC (Cal. Code Regs., tit. 24, pt. 2), fn. 8 in the various locally adopted versions of the UBC (see Health & Saf. Code, §§ 17958, 17958.5, 17958.7, 18941.5; ABS Institute v. City of Lancaster (1994) 24 Cal. App. 4th 285, 289 [29 Cal. Rptr. 2d 224] [all California cities and counties are required to adopt the UBC, as modified by the Department of Housing and Community Development, as their local building codes]), and in numerous other California regulations (see, e.g., Cal. Code Regs., tit. 8, §§ 3207, 3216, 3223, 3226, 3228, 3229, 3231, 3235; id., tit. 14, §§ 757, 15301; id., tit. 19, § 3.30; id., tit. 24, § 1003.2.2 et seq.; id., tit. 25, §§ 1640, 1738, 6962).

This is not an entirely unreasonable reading of the holding in Centinela. After all, the 5,400-square-foot building in that case would have had an occupant load of 108 if it was computed using the occupant load factor of 50 for dormitories, or an occupant load of 67.5 if it was computed using the occupant load factor of 80 for a hospital. (See Cal. Code Regs., tit. 24, former § 1002.1.2 & table 10-A.) In either case, the psychiatric facility approved in Centinela could not have been found to fall within the occupant load limit established by former Guidelines section 15303(c). Presumably, the Centinela court viewed the occupant load limit as a flexible standard, or one that could be overlooked so long as the proposed commercial building(s) were similar to the specific types of "small commercial structures" listed in former Guidelines section 15303(c). fn. 9

[3] We do not share the Centinela court's view of the former Class 3 exemption. It seems quite obvious to us that the phrase "if designed for an [75 Cal. App. 4th 1254] occupant load of 30 persons or less," was used in former Guidelines section 15303(c), and is currently used in other California regulations (see, e.g., Guidelines, § 15301(l)(3); Cal. Code Regs., tit. 14, § 757), as an objective standard for classifying a structure by its size and-perhaps more importantly for purposes of CEQA review-by the likely density or intensity of its use. It is also quite apparent that the phrase "occupant load" is a reference to a term of art in the architectural and engineering professions, and one that is defined in the UBC. fn. 10 Applying the UBC definition, moreover, it is clear that the revised project proposed by real parties in interest exceeds the occupant load limit established by former Guidelines section 15303(c). In any event, the city planning director's comment that he "could not imagine 30 or more people in the building at any one time" is not substantial evidence to support a finding that the project was designed for an occupant load of 30 persons or less. (See § 21082.2, subd. (c) [substantial evidence includes "facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts," but does not include "[a]rgument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous"].)

In former Guidelines section 15303(c), in particular, the occupant load limit was used to determine what it means to be a "small" commercial structure, the construction or renovation or demolition of which is unlikely to have any significant impact upon the environment. Plainly, the list of small commercial structures in former Guidelines section 15303(c) was not intended to be exhaustive. However, and contrary to the holding in Centinela, supra, 225 Cal.App.3d at page 1600, a fair reading of the provision strongly suggests that while commercial occupancies other than "stores, motels, offices, restaurants" may have been found to be covered by former Guidelines section 15303(c), any proposed commercial building was nevertheless required to meet the UBC occupant load standard in order to enjoy a Class 3 exemption from the requirements of CEQA.

If that were the end of our inquiry, we would almost certainly have to reverse the trial court's decision on the Guidelines section 15303(c) exemption. It is, as we have noted, undisputed that the UBC occupant load of the retail/office building proposed by real parties in interest is 122, which is 4 times greater than the former Guidelines section 15303(c) occupant load limit. [2b] However, since the administrative and trial court proceedings were completed, that provision was amended to incorporate a new and [75 Cal. App. 4th 1255] different, but nonetheless objective, standard for determining what now qualifies as a small "store, motel, office, restaurant or similar structure," in an "urbanized" area. (Ibid.) Most significantly, the 1998 amendments eliminated the occupant load measure in favor of one that focuses solely on the "floor area" of the structure, without regard to the proposed density or intensity of use. Thus, under Guidelines section 15303(c), as amended in 1998, the Class 3 exemption applies to "[a] store, motel, office, restaurant or similar structure ... not exceeding 2500 square feet in floor area" and "[i]n urbanized areas ... up to four such commercial buildings not exceeding 10,000 square feet in floor area on sites zoned for such use." (Italics added.) fn. 11 As the California Resources Agency has explained: "[Section 15303] describes the class of small projects involving new construction or conversion of existing small structures. The 1998 revisions to the section clarify the types of projects to which it applies. In order to simplify and standardize application of this section to commercial structures, the reference to 'occupant load of 30 persons or less' contained in the prior guideline was replaced by a limit on square footage. Subsection (c) further limits the use of this exemption to those commercial projects which have available all necessary public services and facilities, and which are not located in an environmentally sensitive area." (Cal. Resources Agency, Cal. Environmental Resources Evaluation System, CEQA Guidelines, art. 19, p. 6