Opinion
D069024
12-22-2016
SEASCAPE SURF ESTATE MANAGEMENT CORP. et al., Plaintiffs and Appellants, v. CITY OF SOLANA BEACH, Defendant and Respondent, HITZKE DEVELOPMENT CORPORATION, Real Party in Interest and Respondent.
DeLano & DeLano, Everett L. DeLano III and M. Dare DeLano, for Plaintiffs and Appellants. McDougal Love Ekis, et al., Johanna N. Canlas and Hogan Law APC, Michael M. Hogan for Defendant and Respondent, City of Solana Beach. Coast Law Group, Marco A. Gonzalez and Chris C. Polychron, Real Party in Interest and Respondent, Hitzke Development Corporation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00016582-CU-WM-NC) APPEAL from a judgment of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed. DeLano & DeLano, Everett L. DeLano III and M. Dare DeLano, for Plaintiffs and Appellants. McDougal Love Ekis, et al., Johanna N. Canlas and Hogan Law APC, Michael M. Hogan for Defendant and Respondent, City of Solana Beach. Coast Law Group, Marco A. Gonzalez and Chris C. Polychron, Real Party in Interest and Respondent, Hitzke Development Corporation.
In 2014, the City of Solana Beach (the City) approved a development by Hitzke Development Corporation (Hitzke) of a ten-unit housing project on a city-owned parking lot (the Project) adjacent to the Seascape Surf condominium complex. The complex's homeowners' association, Seascape Surf Estate Management Corporation (Seascape), opposed the Project and undertook efforts to prevent the City's approval. After those efforts proved unsuccessful, Seascape and an association of Solana Beach residents called Save Our Beach Access (collectively Seascape) brought a petition for writ of mandate and complaint for declaratory relief in San Diego County Superior Court seeking to overturn the City's approval. The court denied Seascape's requested relief and entered judgment in favor of the City and Hitzke.
On appeal, Seascape asserts (1) the City's approval of the Project violated use restrictions contained in the deeds transferring the property to the City; (2) the City violated Municipal Code provisions related to conducting a view assessment and project density; and (3) the City improperly concluded the Project was exempt from the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). Seascape also challenges the trial court's ruling precluding it from conducting additional discovery. We reject Seascape's contentions and affirm the judgment.
Statutory references are to the Public Resources Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
The parking lot at issue is located in Solana Beach on the east side of South Sierra Avenue, which is the western most street running parallel to the Pacific Ocean. On February 15, 1972, in connection with the development of the Seascape Surf condominium complex by Westward Construction Corporation (Westward), the site of the parking lot was conveyed from Westward to the County of San Diego (County) by corporation grant deed. The conveyance was approved by the County Board of Supervisors on March 7, 1972.
The development approval process for the condominium project included a study by the County's Environmental Development Administrator that determined portions of the project site were impliedly dedicated for public beach access, public parking and public beach use. As a result of the study, Westward offered to dedicate easements to the County for public rights, including a parcel of land for 35 parking spaces, in exchange for the County's agreement not to assert any claim to the public rights. In December 1971, prior to its approval of the deed conveying the property, the County Board of Supervisors approved a tentative map for the condominium project that included an easement for "sufficient land . . . for the parking of 35 automobiles and necessary driveways." The final corporation grant deed that conveyed the property for the parking lot to the County, however, did not contain any restriction on the use of the property.
In 1986 the City incorporated. As part of the incorporation process, the parking lot site was deeded to the City from the County. The quit claim deed conveying the property to the City, dated June 9, 1987, described the parcel as "[a] strip of land 100.00 feet wide for Public vehicular parking in the City of Solana Beach . . . ."
The property was used thereafter as a public parking lot. Then, in March 2009, Hitzke submitted a proposal to the City and the City's redevelopment agency to develop an affordable housing project on the parking lot site. After initial meetings with the City, Hitzke proposed to develop a three-story building with affordable housing units for low income residents on the second and third floors and commercial space for an "upscale neighborhood market" on the first floor. The proposal also included 16 residential parking spaces, seven commercial parking spaces, and 31 public parking spaces. The following year, the City and its redevelopment agency approved an exclusive negotiation agreement with Hitzke, which was extended in 2011 to provide additional time to reach a final agreement for the development of the property. The City and the redevelopment agency also approved a $648,000 pre-development loan to Hitzke to defray the planning costs it expected to undertake on the Project.
The City conducted three workshops in 2011 to provide an opportunity for the public to comment on the proposed development. After input from the community, the Project was modified from its initial form to consist of 795 square feet of commercial office space on the first floor, ten affordable housing units on the second and third floors, and a total of 53 parking spaces on the ground and basement levels of the development—31 spaces to replace those in the existing parking lot, 18 spaces for residents and their guests, and four spaces for the commercial office use.
Two view assessment applications were filed with the City in connection with the proposal. The City's records show an application submitted on August 29, 2011, by Karen Medley as management representative for the Solana Beach Plan Owners Association for the Sand Pebbles timeshare complex, located next to the proposed development, and another submitted on August 31, 2011, by Dan Peters on behalf of Seascape. On January 24, 2012, the City sent letters to both applicants stating it was refunding the $600 fee paid for the view assessments because the Project had been redesigned. The letters also stated a new 30-day public comment period had begun with a deadline of February 13, 2012 for any new view assessment application.
Peters submitted another application for a view assessment on behalf of Seascape on February 9, 2012 and Medley submitted another application on behalf of the Solana Beach Plan Owners Association on February 13, 2012. The record contains letters dated July 19, 2012, to both Seascape and the Solana Beach Plan Owners Association from Mikki Eggum, an administrative assistant in the City's Community Development Department, refunding the $600 fee to each for their view assessment applications on the Project. The letters do not explain the reason for the refund. The staff report prepared for the City Council in advance of the final approval hearing for the Project notes that the applications were rejected because "[n]either a homeowners association nor a time share meets the definition of a person or residence as described in SBMC 17.63.040(E) and therefore neither had standing to file for view assessment, and their filing fees were refunded."
The City and Hitzke retained experts to evaluate the potential environmental effects of the proposed development. The City and Hitzke contracted Kimley-Horn & Associates to provide a traffic impact study, SWS Engineering, Inc. to provide a drainage study and stormwater management plan, Earth-Strata, Inc. to provide a Phase I Environmental Site Assessment and a geological study, and Miller Environmental Consultants to provide an air and greenhouse gas analysis and a noise impact analysis. In 2014, the City retained Harvey Meyerhoff Consulting Group to evaluate the technical reports and recommend the appropriate level of CEQA review. Based on that information and analysis, the City concluded that the Project satisfied the requirements for an "in-fill development project exemption under State CEQA Guidelines 15332."
In April 2014, the City Council provided notice of a public hearing to consider the proposed development. At the April 23, 2014 hearing, the City Council received public testimony both in support of and in opposition to the City staff's recommendation to adopt the CEQA exemption and approve the Project. At the conclusion of the hearing the City Council voted to approve the development by unanimously passing Resolution 2014-039, which stated the Project satisfied the requirements of the in-fill exemption to CEQA, and Resolution 2014-040, which approved a Disposition, Development and Loan Agreement with Hitzke authorizing the conveyance of a leasehold interest in the property and allocating City funds for the development.
On May 23, 2014, Seascape filed its initial verified petition for writ of mandate and complaint for declaratory and injunctive relief against the City and Hitzke, challenging the City's approval of the Project. Seascape asserted 12 causes of action: (1) "failure to comply with CEQA procedural requirements"; (2) "failure to consider all aspects of the project"; (3) "failure to prepare environmental analysis as required by CEQA"; (4) "failure to prepare an environmental impact report as required by CEQA"; (5) "failure to adopt feasible mitigation measures and alternatives required by CEQA"; (6) "failure to adopt findings that are supported by the evidence in the record"; (7) "violations of Municipal Code"; (8) "violations of general plan and specific plan"; (9) "violations of due process and fair hearing"; (10) "violation of dead restriction and public trust"; (11) "ultra vires act"; and (12) "illegal use of taxpayer funds and property." (Capitalization omitted.)
The City and Hitzke answered the petition and complaint. Thereafter, Seascape sought discovery of documentation outside of the administrative record. Hitzke then brought a motion to limit evidence in the proceedings on Seascape's petition and complaint to the documents contained in the administrative record. Days later, Seascape filed a motion to compel responses to its discovery requests. After consolidating the hearings on the two motions, the trial court issued an order granting Hiztke's motion to limit evidence to the administrative record with the "proviso that specific items of evidence may be admitted at the hearing on the merits of the petitioner's petition if the offering party makes an offer of proof and demonstrates that the evidence is admissible." The order also denied Seascape's motion to compel additional discovery outside the administrative record.
In February 2015, Seascape was granted leave to amend the petition to add Save Our Beach Access as an additional petitioner and plaintiff, to add a new cause of action for declaratory relief, and to add allegations regarding its tenth cause of action for violation of deed restriction and the public trust. In August 2015, after full briefing on the petition and complaint, and a hearing over the course of two days, the trial court issued an order rejecting all of Seascape's claims.
The court concluded Seascape's petition was not meritorious and upheld the City's determinations that (1) the Project qualified for an in-fill exemption under CEQA, (2) the Project was consistent with the City's land use plan and its Highway 101 Specific Plan, and (3) view assessments were not required under the City's municipal code because the applicants lacked standing to seek the assessment. The trial court also concluded the City correctly calculated the size of the Project and that the deed conveying the parking lot to the City from the County of San Diego did not contain a restriction limiting the City's use of the property to a parking lot. Judgment was entered against Seascape and Save Our Beach Access on September 8, 2015.
DISCUSSION
I
Code of Civil Procedure section 1094.5 provides for judicial review of administrative orders or decisions. Subdivision (b) of that section states, "The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent 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." This court applies the same standards that the trial court applies in its review of the administrative agency action. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334-335.)
Under the substantial evidence test, as applied in review of an administrative agency action, "we must examine all relevant evidence in the entire record, considering both the evidence that supports the administrative decision and the evidence against it, in order to determine whether or not the agency decision is supported by 'substantial evidence.' " (Desmond v. County of Contra Costs, supra, 21 Cal.App.4th at p. 335.) "[T]he petitioner in an administrative mandamus proceeding has the burden of proving that the agency's decision was invalid and should be set aside, because it is presumed that the agency regularly performed its official duty." (Ibid.) "Thus, since the same standard of review applies now on appeal as did in the trial court, the burden is on appellant to show there is no substantial evidence whatsoever to support the findings of [the City]." (Id. at p. 336; see also Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514 ["[A] reviewing court, before sustaining the grant of a variance, must scrutinize the record and determine whether substantial evidence supports the administrative agency's findings and whether these findings support the agency's decision. In making these determinations, the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision."].)
II
Seascape first contends that in the conveyance to the County of San Diego in 1972, Westward dedicated the subject property solely for use as public beach access parking. Seascape further asserts that the City is bound by that restriction and the City's approval of the development of the property violates that public dedication. In response, the City and Hitzke argue the trial court correctly determined that neither the 1972 deed conveying the property from Westward to the County, nor the 1986 quit claim deed conveying the property from the County to the City limited the use of the property to public beach access parking. They further contend that even if such a restriction exists, it does not preclude the concurrent use of the property for the proposed development.
A
"With deeds, as with all contracts, the primary object of interpretation is to ascertain and carry out the intention of the parties." (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238; City and County of San Francisco v. Union Pacific R.R. Co. (1996) 50 Cal.App.4th 987, 994.) In achieving this purpose, we must keep in mind the following: A grant is to be construed in the same manner as contracts in general (Civ. Code, § 1066); the deed's language determines its interpretation so long as it is clear and explicit (Civ. Code, § 1638); and a grant is to be interpreted in favor of the grantee, except that a reservation in a grant is to be interpreted in favor of the grantor (Civ. Code, § 1069). Further, " ' "[e]xtrinsic evidence is 'admissible to interpret the instrument, but not to give it a meaning to which it is not susceptible' [citations], and it is the instrument itself that must be given effect." ' " (County of Solano v. Handlery (2007) 155 Cal.App.4th 566, 573, citing City of Manhattan Beach v. Superior Court, supra, 13 Cal.4th at p. 238.)
"Where the claimed dedication assertedly arises out of a conveyance, the deed itself is the best evidence of whether or not the grantor intended a dedication. The primary object of the interpretation of a deed is to ascertain and give effect to the intention of the parties, especially that of the grantor, as it existed at the time of the execution of the instrument." (Palos Verdes Corp. v. Housing Authority of Los Angeles County (1962) 202 Cal.App.2d 827, 835.) Restrictions on the use of land conveyed in a deed " 'will not be read into a restrictive covenant by implication . . . .' " (County of Solano v. Handlery, supra, 155 Cal.App.4th at p. 573.)
"If the language of a deed is plain, certain and unambiguous, neither parol evidence nor surrounding facts and circumstances will be considered to add to, detract from, or vary its terms or to determine the estate conveyed. [Citation.] In the absence of mistake, fraud, or other matter affecting the validity of the instrument, and except where collateral matters are involved, a deed executed in consummation of an agreement between the parties merges all prior negotiations and agreements relating thereto; and, with the exceptions noted, the deed becomes the measure of the rights of the parties." (Palos Verdes Corp. v. Housing Authority of Los Angeles County, supra, 202 Cal.App.2d at pp. 835-836.)
It is " 'solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence. Accordingly, "An appellate court is not bound by a construction of the contract based solely upon the terms of the written instrument without the aid of evidence [citations], where there is no conflict in the evidence [citations], or a determination has been made upon incompetent evidence [citation]." ' " (City of Manhattan Beach v. Superior Court, supra, 13 Cal.4th at p. 238.)
B
The trial court found that the corporation grant deed conveying the property from Westward to the County in 1972 did not "[c]ontain any restriction on the use of the subject property" and that "there [was] no ambiguity in the grant deed" requiring the court to consider extrinsic evidence. With respect to the later quit claim deed, the court found that the description of the property as "[a] strip of land 100.00 feet wide for Public vehicular parking in the City of Solana Beach . . ." was unusual and required the court to evaluate extrinsic evidence to determine whether the deed restricted the use of the property to the description. The court found that there was no extrinsic evidence supporting one parties' interpretation over the other, and citing the principal set forth in Civil Code section 1069 that deeds be interpreted in favor of the grantee, found the quit claim deed did not contain the restriction advanced by Seascape.
On appeal, Seascape repeats the argument it made in the trial court that the County accepted an express dedication of the property solely for the use of parking for beach access. Seascape concedes the "deed does not itself contain language stating that the Site can only be used for public parking," but asserts there is ambiguity requiring the review of extrinsic evidence because the deed contains notations that the deed was subsequently approved by the County Board of Supervisors on "3/7/72 #5" and that the consideration for the property is less than $100. We agree with the trial court that these notations do not show ambiguity in the property conveyed or the parties' intentions concerning the conveyance. If the use restriction was intended, the parties could easily have included it in the deed. They did not, and this court will not rewrite the deed to include such a restriction. (See County of Solano v. Handerly, supra, 155 Cal.App.4th at p. 573 ["[R]restrictions on the use of land conveyed in a deed . . . 'will not be read into a restrictive covenant by implication.' "].)
Even were we to look to the extrinsic evidence presented by Seascape, however, we do not agree that the evidence is necessarily consistent only with Seascape's proffered explanation that the County would not have accepted the property absent the use restriction. Rather, the evidence shows only that the County wanted to obtain property for parking in relation to the beach access system being established. The County used the existence of public rights on Westward's parcel as a basis to negotiate easements from Westward in the process of Westward seeking approval for its development of the Seascape Surf complex. The negotiations were successful and the County obtained several easements from Westward, as well as Westward's agreement to convey land to replace a public parking lot that would be eliminated by the development of the complex.
We do not agree with Seascape that the documents memorializing those negotiations showed Westward and the County intended to restrict the future use of the property being conveyed. In support of its assertion, Seascape points to a memorandum, dated August 18, 1971, from the County's Chief Administrative Officer and County Counsel to the Board of Supervisors explaining the existence of public rights on the property Westward was seeking to develop, which recommended the County acquire property to "satisfy the County's responsibility to protect prescriptive rights of public beach access." Seascape also cites another memorandum, dated March 1, 1972, from the County Environmental Development Administrator to the Board of Supervisors recommending acceptance of the deed conveying the property. The memo states: "One of the conditions of approval of the Tentative Map for the Seascape Surf Development was the conveyance of certain property to the County for parking in relation to the beach access system being established by the County." Neither document suggests the parties intended to impose a future use restriction, only that the County should acquire property to provide coastal access parking at that time.
Seascape also cites a November 4, 1971 letter from Westward to the County's Environmental Development Agency stating that "In settlement of the prescriptive rights and map exaction issues, along with the parking requirements, the following tentative agreements have been reached and are to be recommended to the Board by your department. [¶] . . . [¶] . . . Westward Construction Corporation agrees to donate the use of the land in its unimproved condition for public parking until such time the County feels it is necessary to improve said parcel." (Italics added.) A memo from the same day from the County Counsel to the Environmental Development Administrator recommends acceptance of Westward's proposal, but disagrees with Westward's proposal that the deed include a "reverter clause in the dedication of the parking areas." The memo goes on to state that County Counsel recommends "acceptance of a dedication in fee for parking purposes only since that is the nature of one of the rights which has arisen by implied dedication. In essence, the developer is only recognizing the right that exists and should not be permitted to attach conditions to it."
The November 4, 1971 letter proposed that if the improvement of the parcel identified for parking becomes "impractical or illogical after a specified amount of time, say five (5) years, that said parcel revert back to the donor and its further use to be determined solely by him."
While these documents, as the trial court found, show the County planned "to use the subject property as a part of [its] comprehensive plan for preserving public beach access," they do not necessarily establish the parties sought to impose a future restriction on the County's use of the property. The documents, particularly the November 4, 1971 letter, also support an inference that the County sought to obtain the property unencumbered. Contrary to Seascape's argument, the two inferences are not mutually exclusive—the County could seek to provide public parking to facilitate beach access and also seek to not restrict its ability to develop the property in the future. As stated, we agree with the trial court that the grant deed is not ambiguous and does not restrict the use of the property in the manner Seascape asserts. Further, even if the document were ambiguous, the extrinsic evidence Seascape relies on does not necessarily lead to a contrary finding.
C
Seascape also asserts that the quit claim deed conveying the property from the County to the City when it incorporated in 1986 restricted the City's use of the property to a public parking lot. The deed at issue conveys several parcels, including Parcel no. B6-0310-C, which it describes as a "strip of land 100.00 feed wide for Public vehicular parking in the City of Solana Beach . . . ." The trial court found the deed "does not, on its face, contain an obvious restriction on the use of the property" and that as a quit claim deed it transferred only the non-restricted interest held by the County. The trial court then went on to find plausible both Seascape's assertion that the description was intended as a use restriction and the City and Hitzke's assertion that the language was "merely descriptive of the then-existing use." Because of this ambiguity, the court concluded it was appropriate to examine extrinsic evidence to help determine the parties' intentions, but concluded the evidence was not determinative. The court construed the deed in favor of the City as the grantee under Civil Code section 1069 and found it did not restrict the City's use of the property.
Seascape argues that because the earlier conveyance from Westward to the County was restricted, the quit claim deed could only transfer that restricted interest. As discussed, we reject Seascape's assertion that the earlier deed contained a restriction on the County's use of the property. Because the corporate grant deed did not restrict the County's use, we agree with the trial court that the quit claim deed could not convey a restricted interest in this manner. (See In re Marriage of Gioia (2004) 119 Cal.App.4th 272, 280 ["A quitclaim deed . . . 'transfers only whatever interest the grantors possess at the time of the conveyance.' "].)
We also agree with the trial court that extrinsic evidence does not establish the description of the property contained in the quit claim deed was intended as a use restriction. Seascape asserts that the recommendation of the County's Chief Administrative Officer to the County's Board of Supervisors to transfer the property to the City shows the language was intended to be a limitation on the City's use of the property. That document describes the property recommended for transfer as "local beach parks and miscellaneous easements for access and open space with existing improvements thereon" and "all easements for recreational public pathway and beach access purposes and all open space easements and public vehicular parking areas." There is no indication in the document, however, that the grantor County intended to limit the property's future use in any way.
Finally, Seascape asserts that, regardless of how the deeds are interpreted, the property was "restricted by the public's rights of implied dedication to use as public parking for beach access." (Italics added.) As discussed, a dedication cannot be implied in the manner Seascape advances. (County Solano v. Handlery, supra, 155 Cal.App.4th at p. 573.) Further, the proposed development does not infringe on the public's use of the property for beach access parking. The Project maintains the same number of public parking spaces as the existing lot. (See City and County of San Francisco v. Lineras (1940) 16 Cal.2d 441, 446 [Upholding the construction of underground parking on property dedicated to the City as a public park where "the contemplated use [was] not inconsistent with enjoyment by the public of the land for park purposes."].)
Seascape's reliance on Save the Welwood Murray Memorial Library Committee v. City Council of the City of Palm Springs (1989) 215 Cal.App.3d 1003 (Welwood) in support of its assertion that the proposed development is inconsistent with the purpose of public parking is misplaced. In that case there was no question that the property at issue had been dedicated to the City of Palm Springs, as set forth in the deeds conveying the property, for the limited use of maintaining a public library. The Court of Appeal overturned the city council's approval of development of some of the property at issue that would have eliminated the city's ability to use that portion for its dedicated purpose. Here, there is no restriction on the future use of the property. Other cases cited by Seascape are distinguishable on the same grounds. (See Big Sur Properties v. Mott (1976) 62 Cal.App.3d 99, 101-102 [grant deed donating property for use as public park contains explicit restrictions]; Roberts v. City of Ranchos Palos Verdes Estates (1949) 93 Cal.App.2d 545, 546 [same]; County of Solano v. Handlery, supra, 155 Cal.App.4th at pp. 569-570 [deed explicitly restricted use of property to fairground].)
Seascape also contends the City's approval of the Project constitutes a waste of public funds because the property is restricted to public beach parking and, therefore, the approval was an unauthorized, ultra vires, act. Because we conclude the property is not so restricted, this challenge to the City's approval is moot.
III
Seascape asserts the trial court's reliance on Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559 to deny its motion to compel discovery responses was error. According to Seascape, the error was prejudicial because if the trial court had compelled its requested discovery it "could have sought to discover the circumstances under which the [Project site] was deeded, first to the County and later to the City" and "sought to discover the financial and other information" associated with its claim for misuse of public funds. Seascape's arguments are not well taken.
"A trial court's determination of a motion to compel discovery is reviewed for abuse of discretion. [Citation.] An abuse of discretion is shown when the trial court applies the wrong legal standard. [Citation.] However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence." (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) Additionally, " '[a]ppellate briefs must provide argument and legal authority for the positions taken. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." ' " (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 956.)
The trial court's minute order on Seascape's motion to compel responses to its discovery requests denies the discovery under Code of Civil Procedure section 2019.030, subdivision (a)(2) as "unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation." The order grants Hitzke's competing motion to limit evidence at the trial on Seascape's petition to the administrative record, but includes the "proviso" that evidence outside the record "may be admitted at the hearing on the merits' of the petitioner's petition if the offering party makes an offer of proof and demonstrates that the evidence is admissible" and states the "ruling is intended to follow the procedure used by the trial court in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566."
The trial court's "proviso" is a quotation of the language in Western States Petroleum Assocation v. Superior Court, supra, 9 Cal.4th 559 (WSPA) describing the trial court's ruling in that case. (Id. at p. 566.)
Seascape contends the court erred by denying its motion to compel discovery under the authority of WSPA. The court, however, denied Seascape's motion to compel because it found the discovery sought was unduly burdensome. Seascape presents no argument on appeal concerning the burdensomeness of its requests. Further, the appellate record does not contain the discovery requests at issue, and neither the briefing on the motion to compel in the trial court nor the briefing in this court explains what specific information Seascape sought and was precluded from discovering.
Seascape claims its motion should have been granted to allow it to discover under what circumstances the property was deeded to the County from Westward and from the County to the City. Documentation surrounding both transfers, however, is included in the appellate record. Seascape also contends it should have been allowed to discover "the financial and other information associated with" its claim that the City misused public funds by approving Hitzke's development of the property, but provides no record of the information it claims it was prevented from obtaining. Because Seascape has not explained what discovery it sought, or how it was prejudiced by the denial of its motion to compel that discovery, we reject Seascape's arguments. (See Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362 [" 'The absence of a record concerning what actually occurred at the trial precludes a determination that the trial court [erred].' "].)
IV
Seascape next asserts the City violated the Solana Beach Municipal Code by (1) rejecting its application for a view assessment and (2) allowing housing density that is not supported by the size of the property.
A
Seascape contends the City's approval of the Project must be overturned because the City improperly rejected its view assessment application on the basis that it lacked standing. Seascape asserts the definition of a "person" contained in the Solana Beach Municipal Code includes associations and, therefore, the City's rejection of its view assessment applications violated the Municipal Code. The City and Hitzke respond that Seascape's application for a view assessment was not rejected based on Seascape's status as an association, but because Seascape does not meet the view assessment ordinance's requirement that the applicant have "lawful possession of a residence from which a view may be impaired by the proposed structure." The record supports this conclusion.
The documentation in the administrative record concerning the return of Seascape's and the Solana Beach Plan Owners Association's second application for a view assessment includes the staff report for the final approval hearing, which states the applications were rejected because Seascape and the Solana Beach Plan Owners Association did not meet "the definition of a person or residence as described in SBMC 17.63.040(E) and therefore neither had standing to file for view assessment, and their filings fees were refunded." The same finding was repeated by the City's staff at the April 23, 2014 hearing.
The Municipal Code provision states "Any person who owns or has lawful possession of a residence from which a view may be impaired by the proposed structure . . . may, within 30 days of the date of notice [of the proposed development], file an application for view assessment." (Solana Beach Mun. Code, § 17.63.040 (E), italics added.) The trial court agreed with the City that its rejection of the application was appropriate because there was no evidence that Seascape owned or occupied a residence from which a view was impaired by the development.
Seascape now asserts that "the evidence shows the associations occupy a residence and represent numerous individuals who own or occupy a residence. . . . Accordingly, both associations had standing in their own right and had representational standing." The evidence Seascape cites, however, is (1) the view assessment application filed by Seascape and (2) the testimony of the resort manager at Sand Pebbles at the final approval hearing that: "I know it was brought up that we're an association, a homeowners association, which we are, but does that mean you want each one of our 2,548 owners to plunk down $600 to do a view assessment because they're considered a resident and we're not." This evidence does not establish Seascape met the provision's ownership or occupation requirement.
Seascape also asserts that its application "clearly identifies both Dan Peters and Appellant as applicants" because the application lists two addresses and two telephone numbers. This evidence does not show Peters intended to file the application on his own behalf as a property owner and other evidence in the record shows Peters filed the application solely on behalf of Seascape. Of note, the fee for the application was paid by Seascape, not Peters. When the issue was raised in the final approval hearing, Peters did not assert that he had filed the application on his own behalf. Rather, he stated only that the "Solana Beach Municipal Code does not provide for the City staff to arbitrarily decide who has standing to file a view assessment" and that "by accepting the first applications from both Seascape Sur and Sand Pebble Resort, the City waived its right to deny view assessment applications."
We agree with the trial court that sufficient evidence supported the City's determination that Seascape lacked standing to obtain the view assessment under the plain language of Solana Beach Municipal Code section 17.63.0404 (E). The issue before this court, and that was before the trial court, is whether Seascape owned or occupied a residence at the time it filed the view assessment application. There is no evidence in the record demonstrating Seascape satisfied the requirement and, therefore, the City's determination that Seascape lacked standing to pursue the view assessment stands. (See Desmond v. County of Contra Costa, supra, 21 Cal.App.4th at p. 336 ["[T]he burden is on appellant to show there is no substantial evidence whatsoever to support the [administrative] findings . . . ."].)
B
Seascape also asserts that the City's approval should be overturned because it is inconsistent with the density requirements contained in the Municipal Code. Seascape argues that the City improperly included a ten-foot wide strip of land made up of sidewalks and related public areas that should have been excluded under the definition of "Project Site" contained in section 17.08 of the City's Municipal Code. Seascape also argues that the City should not have rounded the number of dwelling units for the Project up to seven, from the 6.76 units calculated by the City's staff, because the City did not make the findings required under Solana Beach Municipal Code section 17.20.030(B)(1) to support that determination. We reject these claims and conclude there is sufficient evidence in the administrative record to support the City's approval of ten dwelling units.
The City and Hitzke note that the Housing Element of the City's General Plan describes the Project site as consisting of 14,721 square feet, the figure relied on by the City's staff in making its density calculations. Further, they assert that to the extent the square footage contained in the General Plan description is inconsistent with the definition of project site contained in Municipal Code section 17.08, the General Plan description should prevail in light of Government Code section 37364, subdivision (a).
Government Code section 37364, subdivision (a) provides: "The Legislature reaffirms its finding that the provision of housing for all Californians is a concern of vital statewide importance. The Legislature recognizes that real property of cities can be utilized, in accordance with a city's best interests, to provide housing affordable to persons and families of low or moderate income. Therefore, notwithstanding any provision of a city's charter, or any other provision of law, whenever the legislative body of a city determines that any real property or interest therein owned or to be purchased by the city can be used to provide housing affordable to persons and families of low or moderate income, as defined by Section 50093 of the Health and Safety Code or as defined by the United States Department of Housing and Urban Development or its successors, and that this use is in the city's best interests, the city may sell, lease, exchange, quitclaim, convey, or otherwise dispose of the real property or interest therein at less than fair market value, or purchase an interest in the real property, to provide that affordable housing under whatever terms and conditions the city deems best suited to the provision of such housing."
Solana Beach Municipal Code section 17.08.030 contains "definitions of terms used" in that title of the Code (title 17). That section defines "Acreage, Net" as "[t]he total land area within the lot lines of a lot or parcel minus land area which will be required for public streets, easements or other areas to be dedicated or reserved for public use or open space (including undevelopable slopes, bluffs, and sensitive lands)." (Solana Beach Mun. Code, § 17.08.030.) It also defines "Site Area" as "[t]he net area included within the boundary lines of a site, not including the area within the established right-of-way of a public street, future public street, or railroad, or any other area dedicated or to be dedicated or reserved for a public use or open space including undevelopable slopes, bluffs, and sensitive lands . . . ." (Ibid.)
These definitions suggest that public sidewalks, which Seascape asserts accounts for some of the square footage included in the City's density calculations, are excluded from the boundary lines of a site for some purposes. Seascape, however, does not explain how this definition is tied to the density calculations made by the City or provide authority that mandates the exclusion of the area for purposes of the calculations. The square footage used by the City in its determination of the number of dwelling units was set forth in the Housing Element of the City's General Plan. This evidence supported the City's density calculations and Seascape has not shown the City's reliance on the figure was an abuse of its discretion.
With respect to Seascape's claim that the City improperly rounded up the number of dwelling units, the City and Hitzke respond that the City did make the requisite findings under Solana Beach Municipal Code section 17.20.030(B)(2). That section provides that a "fractional density of 0.70 or more may be rounded up to the nearest whole number of dwelling units; provided the project incorporates superior design and site planning as set forth in subsection (B)(1) of this section." (Solana Beach Mun. Code, § 17.20.030(B)(2).) Subsection (B)(1) in turn states that increased density is permitted "upon demonstration that the proposed development incorporates exemplary site planning and design and complies with all applicable zoning regulations and general plan objectives. Whenever the proposed density for a site is greater than that permitted by subsection (a) of this table, the increased density shall be justified by consideration of such matters as: superior project design; public facility availability; availability of public transportation; proximity to public recreation; proximity to public facilities or community amenities provided by the developer of the site; whether the increased density will assist the city in meeting its regional housing obligations and local housing goals; whether the increased density will adversely affect the neighborhood; or whether the increased density will assist the city in meeting other general plan goals and objectives." (Solana Beach Mun. Code, § 17.20.030(B)(1).)
Contrary to Seascape's assertion, there is sufficient evidence in the record to show the City considered the requirements set forth in Solana Beach Municipal Code section 17.20.030(B) before concluding the proposed density was appropriate. The resolutions approving the Project, the staff reports to the City Council recommending approval, and the testimony of staff and Council members at the final hearing on the Project all explicitly show that before finding increased density was appropriate, the City specifically considered the various factors, including the superior design of the Project, the Project's preservation of public parking, its provision of ten units of needed affordable housing, the proximity of the development to public recreation and community amenities on site, the impact of the increased density on the neighborhood, and whether the increased density would assist the City in meeting other General Plan goals. Seascape's assertion that the City Council did not consider these factors before finding increased density for the Project was appropriate is not supported by the record.
V
Seascape's final contention on appeal is that City improperly found the Project exempt from CEQA under the exception for urban in-fill development projects set forth in the CEQA Guidelines. Seascape argues that the determination was incorrect "as a matter of law" because the Project will have a significant effect on noise and traffic in the surrounding area. We reject this contention.
"The term 'CEQA Guidelines' refers to the regulations for the implementation of CEQA authorized by the Legislature (Pub. Resources Code, § 21083), codified in title 14, section 15000 et seq. of the California Code of Regulations, and 'prescribed by the Secretary of Resources to be followed by all state and local agencies in California in the implementation of [CEQA].' (CEQA Guidelines, § 15000.) In interpreting CEQA, we accord the CEQA Guidelines great weight except where they are clearly unauthorized or erroneous." (Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, 389 , fn. 2. (Muzzy Ranch).)
A
CEQA and its implementing administrative regulations "establish a three-tier process to ensure that public agencies inform their decisions with environmental considerations. [Citation.] The first tier is jurisdictional, requiring that an agency conduct a preliminary review to determine whether an activity is subject to CEQA. (CEQA Guidelines, § 15060; see Pub. Resources Code, § 21065.) An activity that is not a 'project' as defined in the Public Resources Code (see § 21065) and the CEQA Guidelines (see § 15378) is not subject to CEQA. (CEQA Guidelines, § 15060, subd. (c)(3).)" (Muzzy Ranch, supra, 41 Cal.4th at pp. 379-380.)
"The second tier concerns exemptions from CEQA review. The Legislature has provided that certain projects, such as ministerial projects and repairs to public service facilities of an emergency nature, are exempt. (Pub. Resources Code, § 21080, subd. (b)(1), (2); CEQA Guidelines, §§ 15061, subd. (b)(1), 15260.) In addition, pursuant to the Legislature's command (see Pub. Resources Code, § 21084, subd. (a)), the CEQA Guidelines list categorical exemptions or 'classes of projects' that the resources agency has determined to be exempt per se because they do not have a significant effect on the environment. (CEQA Guidelines, § 15300 et seq.; see § 15061, subd. (b)(2).)" (Muzzy Ranch, supra, 41 Cal.4th at p. 380.)
The exemption at issue here is the "Class 32" exemption for urban in-fill, set forth in section 15332 of the Guidelines. Under that provision "urban in-fill development is exempt from CEQA if it meets the following conditions (the urban in-fill exemption): [¶] '(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. [¶] (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. [¶] (c) The project site has no value as habitat for endangered, rare or threatened species. [¶] (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. [¶] (e) The site can be adequately served by all required utilities and public services.' " (Banker's Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 259 (Banker's Hill), quoting CEQA Guidelines, § 15332.)
This court's "inquiry into whether [an agency] has complied with CEQA extends only to 'whether there was a prejudicial abuse of discretion.' (Pub. Resources Code, § 21168.5.)" (Muzzy Ranch, supra, 41 Cal.4th at p. 381.) "Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (§ 21168.5.) "In a CEQA case, as in other mandamus cases, our review of the administrative record for error is the same as the trial court's; we review the agency's action, not the trial court's decision." (Muzzy Ranch, at p. 381.)
In addition, " 'the substantial evidence test governs our review of the city's factual determination that a project falls within a categorical exemption.' " (Banker's Hill, supra, 139 Cal.App.4th at p. 267.) "We inquire whether the record contains substantial evidence to support the City's finding that the Project will not have a significant effect. If we locate substantial evidence in the record to support that conclusion, we will uphold the City's determination, even if other evidence arguably supports a different conclusion." (Id. at p. 296; see also Laurel Heights Improvement Assocation v. Regents of the University of California (1988) 47 Cal.3d 376, 407 ["The question, however, is not whether there is substantial evidence to support the [objecting organization's] position; the question is only whether there is substantial evidence to support the [approving agency's] conclusion."]
B
In challenging the City's finding that the Project was exempt from CEQA under the Class 32 exemption, Seascape contends the evidence showed that the Project would result in significant effects relating to noise, and to traffic and parking. Although the evidence shows there would be increased noise and traffic congestion for the period of time that the development is being constructed, there is sufficient evidence in the administrative record to support the City's finding the Project was not disqualified by that particular criteria of the Class 32 exemption (Guidelines, § 15332, subd. (d)).
The City and Hitzke assert Seascape's challenge to the application of the exemption because of noise impacts was waived because it was not adequately raised during the City Council's approval proceedings. We agree with the trial court that the issue of the noise effect of the Project was raised by various commentators, and that rejection of Seascape's argument on the basis of failure to exhaust administrative remedies is not warranted. (See Paulek v. California Department of Water Resources (2014) 231 Cal.App.4th 35, 41-42 ["Section 21177 requires a petitioner to have 'objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project . . . .' . . . [C]omments need only ' " 'be sufficiently specific so that the agency has the opportunity to evaluate and respond to them' " ' to constitute an objection that confers standing. [Citation.] Any person who objected to a CEQA approval on some ground may also raise issues presented to the agency by any other person who objected."].)
With respect to noise impacts, Seascape points to the "Noise Technical Report" prepared by Miller Environmental Consultants, which noted there would be "typical constriction noise levels" as high as 89 dBA at a distance of 50 feet from the equipment and that construction would be within 25 feet of the Sand Pebbles resort and 75 feet of the multi-family residences, the closest "noise sensitive receptors" (defined in the report as "land uses associated with indoor and/or outdoor activities that might be subject to stress and/or significant interference from noise"). The report also states that "construction noise would be considered a potentially significant impact" and that the "increase in noise could result in temporary annoyance to residents and people staying at the Sand Pebbles Resort immediately adjacent to the construction site." Seascape asserts "[t]his evidence alone establishes that the Project does not meet the Class 32 exemption."
Seascape focuses too narrowly on the evidence that supports its position. The City, as the lead CEQA agency in this case, had discretion to determine the significance of the noise effects of the Project, and to consider the duration of the noise and the developer's compliance with applicable noise regulations. (See San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1033 ["An agency may rely on generally applicable regulations to conclude an environmental impact will not be significant and therefore does not require mitigation."].) Seascape fails to acknowledge that the Technical Noise Report concluded that the construction noise was only potentially significant, that the noise would be both temporary and periodic, that the developer was required to submit a noise reduction plan that included recommendations contained in the report before construction commenced (and which were incorporated into the Project approved by the City), and to comply with the City's noise ordinance.
Further, the Noise Technical Report also concluded that there would be no long-term noise impact as a result of the Project. In addition, the consultant hired to evaluate the appropriate level of CEQA review opined that the Project "is consistent with the criteria required to be satisfied in order to qualify for an in-fill development project exemption under State CEQA Guidelines § 15332." This evidence was sufficient to support the City's determination that the noise effects were not significant and did not preclude the Project from meeting the requirements of the Class 32 categorical exemption.
Seascape also argues that the City improperly relied on mitigation measures as a basis to find the exemption applied. Seascape, however, misconstrues the cases it cites in support of this assertion. Those cases preclude approval of project subject to CEQA where the Environmental Impact Report (EIR) defers the determination of what mitigation measures are required until after the final approval of the EIR. (See Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 95 ["[T]he City's decision to approve the Project, after giving the City Council final approval over a mitigation plan that Chevron formulates a year later outside the EIR process, does not satisfy CEQA's requirements."]; and Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 793-794 ["EIR improperly defers analysis and mitigation" where proposed "mitigation measure does no more than require a report be prepared and followed, or allow approval by a county department without setting any standards."].) Here, the question is the application of the Class 32 categorical exemption, not approval of a final EIR. Further, the proposed mitigation of the construction noise adopted by the City and the developer's compliance with the City's noise ordinance is definite; it does not leave the determination of the appropriate measures to a future time.
The Court of Appeal case that Seascape relies on to assert that an agency may not reference or rely on mitigation measures in deciding whether a project is eligible for a categorical exemption, Salmon Protection and Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098 (Salmon Protection), is also not controlling. In that case, and in the case it relies on—Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, the courts held that a mitigation measure could not be used to bring the projects out of the exception to exemption found in section 15300.2 of the Guidelines. That provision precludes the application of an exemption for activities that " 'may impact on an environmental resource of . . . critical concern[;'] . . . 'when the cumulative impact of successive projects of the same type in the same place, over time is significant[;'] or . . . 'where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.' " (Salmon Protection, supra, 125 Cal.App.4th at p. 1106.) Those courts concluded mitigation measures could not serve to counter the exception to exemption created by section 15300.2 of the Guidelines. Here, there has been no assertion that without the noise mitigation measures and compliance with the City's noise regulations, the Project would fall into the section 15300.2 exception to the section 15332 exemption.
Seascape asserts the displacement of public parking during the construction period and the difficulty of parking in an underground garage, rather than a surface lot, are "significant impacts to parking and traffic" that precluded the City from finding the Class 32 exemption applicable. Seascape cites to the testimony from members of the public at the final approval hearing raising concerns that the public parking spots would not all be visible from the street, that residents of the development might take street parking rather than their assigned parking spaces, and that visitors to the residences and business located in the commercial space could also take up parking that would otherwise be used to facilitate beach access. Seascape also points to the fact that the City Manager acknowledged there would be displacement of parking during construction and another City staff member who noted the design of the underground parking was a dead end requiring several moves to turn a car around to exit the garage.
As the City and Hitzke point out, Seascape discounts the Traffic Impact Study conducted by Kimley-Horn & Associates, Inc., which was peer reviewed by a separate engineering firm, that did not indicate any significant traffic impact as a result of the Project. Seascape also ignores the City Manager's testimony addressing the concerns of commenters concerning the ability to turn around in the garage, who stated that the underground parking conformed to the City's parking standards and there was sufficient room for cars to turn around in the garage. In addition, the same staff member who noted the design required a car to make several moves to turn around in the garage also testified that the design was compliant with the City's "off-street design manual." Given these facts in the administrative record, we cannot say insufficient evidence supported the City's determination that there would not be a significant effect on traffic or parking as a result of the Project.
Further, although personal observations concerning potential impacts to parking are evidence, "in the absence of a specific factual foundation in the record, dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence." (Banker's Hill, supra, 139 Cal.App.4th at p. 274.) " 'Unsubstantiated opinions, concerns, and suspicions about a project, though sincere and deeply felt, do not rise to the level of substantial evidence . . . .' [Citation.] Thus, 'project opponents must produce . . . evidence, other than their unsubstantiated opinions, that a project will produce a particular adverse effect.' " (Ibid.) Here, like the opponents of the development in Banker's Hill, Seascape does not point to any factual foundation for the testimony of commentators concerning the potential lost parking. (Ibid.) Seascape has not shown the City abused its discretion by finding that the Project would not have any significant effect on traffic and parking that precluded application of the Class 32 exemption.
DISPOSITION
The judgment is affirmed. The respondents are awarded costs on appeal.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. IRION, J.