Opposition

Cal. Super. - 3rd Dist.November 27, 2019

RESPONDENT’S AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KRISTINE MOLLENKOPF, SBN 185914 Kristine.Mollenkopf@lincolnca.gov CITY ATTORNEY’S OFFICE, CITY OF LINCOLN 600 Sixth Street Lincoln, California 95648 Telephone: (916) 434-2400 TINA A. THOMAS, SBN 088796 tthomas@thomaslaw.com CHRISTOPHER J. BUTCHER, SBN 253285 cbutcher@thomaslaw.com THOMAS LAW GROUP 455 Capitol Mall, Suite 801 Sacramento, California 95814 Exempt from Filing Fees Telephone: (916) 287-9292 Pursuant to Government Code Section 6013 Attorneys for Respondent, CITY OF LINCOLN; CITY COUNCIL OF THE CITY OF LINCOLN SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF PLACER STOP LINCOLN TWELVE BRIDGES HOTEL, an unincorporated association; Petitioner, v. CITY OF LINCOLN; CITY COUNCIL OF THE CITY OF LINCOLN Respondents JG LAND & INVESTMENT, LLC., a Limited Liability Company. Real Party in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. SCV0044111 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF [Pub. Resources Code § 21167.8(a)] Hearing Date: July 10, 2020 Time: 8:30 a.m. Dept.: 42 Filing Date of Action: November 27, 2019 ACTION BASED ON CALIFORNIA ENVIRONMENTAL QUALITY ACT 05/27/2020 P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 2 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................................... 9 II. STATEMENT OF FACTS ................................................................................................................ 10 A. Background Planning Documents and Prior Environmental Review .......................................... 10 B. The TBSP and Development Plan intend dense, urban development, in the Main Village .......................................................................................................................................... 11 C. The Project Site and Surrounding Development ......................................................................... 11 D. Summary of the Administrative Process...................................................................................... 12 III. ANALYSIS ........................................................................................................................................ 13 A. The City complied fully with CEQA before approving the Project ............................................ 13 1. Standard of Review ................................................................................................................ 13 a. Substantial evidence is a highly deferential standard of review ...................................... 14 2. Petitioner’s CEQA challenge fails because Petitioner does not meet its burden under the substantial evidence standard of review ................................................................................ 15 3. The City properly determined that the Project is exempt from CEQA pursuant to Public Resource Code section 21083.3 and CEQA Guidelines section 15183 ................................. 16 a. Alleged crime impacts are not environmental impacts pursuant to CEQA ..................... 16 b. Alleged aesthetic and land use compatibility impacts do not constitute significant environmental impacts peculiar to the Project ................................................................. 18 i. Aesthetic and land use impacts associated with commercial development built consistent with the Twelve Bridges Development Plan were evaluated in the prior TBSP SEIR ................................................................................................................ 18 ii. Substantial evidence demonstrates that the Project will not result in project-specific significant aesthetic or land use compatibility impacts ............................................. 21 a. Public debate is not evidence of aesthetic and land use compatibility impacts ... 21 b. The City’s determination that the Project complies with the height, bulk, and design criteria set forth in the Twelve Bridges Development Plan constitutes additional substantial evidence that the Project will not result in significant aesthetic impacts .................................................................................................. 23 c. The height of existing commercial buildings and structures in the area supports the conclusion that the Project will not cause a significant aesthetic impact ................................................................................................................... 24 4. The Project is consistent with the development density in the Twelve Bridges Development Plan ........................................................................................................................................ 25 P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 3 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. The City properly required that the Project implement the mitigation measures included in the TBSP SEIR ...................................................................................................................... 26 B. The City complied fully with the Lincoln Municipal Code in approving the Project ................. 28 1. Standard of Review ................................................................................................................ 28 2. Petitioners’ Municipal Code challenge is premised on a misreading of the LMC ................ 29 3. Substantial evidence supports the City’s determination that the Project complies with non- mandatory Finding 1 of LMC section 18.56.020 ................................................................... 30 4. Substantial evidence supports the City’s determination that the Project use will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the city ..... 31 C. The Project complies with all applicable requirements of the City’s General Plan .................... 33 1. Standard of Review ................................................................................................................ 33 2. The Floor Area Ratio standard set forth in the City’s 2008 General Plan is not applicable to the Project .............................................................................................................................. 35 a. The Project is subject to the Twelve Bridges Development Agreement ......................... 35 b. Land use regulations in effect at the time the Development Agreement was entered control the authorized density and intensity of development on the Project site until expiration of the Agreement ............................................................................................ 35 c. The FAR in the 2008 General Plan is inapplicable to the Project because it is a subsequent development standard that would limit the square footage of development allowed on the Project site ............................................................................................... 36 IV. CONCLUSION .................................................................................................................................. 38 P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 4 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Page(s) A Local & Regional Monitor v. City of L.A. (1993) 12 Cal.App.4th 1773 .................................................................................................................... 34 Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173 .................................................................................................................. 28 Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383 .................................................................................................................. 14 Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464 .................................................................................................................... 17 Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 .................................................................................................................. 22 Banker’s Hill, Hillcrest, Park West Cmty. Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249 .................................................................................................................... 23 Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880 ...................................................................................................................... 28 Better Alternatives for Neighborhoods v. Heyman (1989) 212 Cal.App.3d 663 ..................................................................................................................... 15 Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572 .................................................................................................. 22, 23, 24, 25 Center for Community Action & Environmental Justice v. City of Moreno Valley (2018) 26 Cal.App.5th 689 ...................................................................................................................... 35 Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151 ..................................................................................................................... 22 Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515 .................................................................................................................... 15 Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency (2005) 134 Cal.App.4th 598 .............................................................................................................. 13, 14 Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 ............................................................................................................................... 33 City of Irvine v. County of Orange (2015) 238 Cal.App.4th 526 .................................................................................................................... 17 City of Pasadena v. State of California (1993) 14 Cal.App.4th 810 ...................................................................................................................... 17 P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 5 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200 .............................................................................................................. 21, 34 Committee for Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237 ...................................................................................................................... 15 Defend Our Waterfront v. State Lands Com. (2015) 240 Cal.App.4th 570 .................................................................................................................... 13 Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261 .................................................................................................................. 15 Diablo Valley College Faculty Senate v. Contra Costa Community College Dist. (2007) 148 Cal.App.4th 1023 .................................................................................................................. 28 Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055 ...................................................................................................................... 14 Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777 .................................................................................................................... 34 Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937 ................................................................................................................................ 15 Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359 ........................................................................................................ 13, 14, 27 Harrington v. City of Davis (2017) 16 Cal.App.5th 420 ................................................................................................................ 28, 33 Health First v. March Joint Powers Authority (2009) 174 Cal.App.4th 1135 ............................................................................................................ 14, 27 J. Arthur Properties, II, LLC v. City of San Jose (2018) 21 Cal.App.5th 480 ...................................................................................................................... 28 Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192 .................................................................................................................... 15 Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 ............................................................................................................................... 15 M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607 ...................................................................................................................... 15 Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010) 191 Cal.App.4th 435 .................................................................................................................... 35 Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322 .................................................................................................................... 22 Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477 .................................................................................................................... 23 P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 6 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372 .............................................................................................................................. 13 Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342 ...................................................................................................................... 33 Naraghi Lakes Neighborhood Preservation Assn. v. City of Modesto (2016) 1 Cal.App.5th 9 ...................................................................................................................... 34, 37 Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997 .............................................................................................................. 36, 37 Nolte Sheet Metal, Inc. v. Occupational Safety & Health Appeals Bd. (2020) 44 Cal.App.5th 437 ...................................................................................................................... 33 North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614 .................................................................................................................... 22 North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832 .................................................................................................................... 14 Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396 .............................................................................................................. 22, 23 Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552 .................................................................................................................. 34 Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 .............................................................................................................. 22, 23 Porterville Citizens for Responsible Hillside Dev. v. City of Porterville (2007) 157 Cal.App.4th 885 .................................................................................................................... 23 Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560 .............................................................................................................. 17, 21 Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899 .................................................................................................................... 30 San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498 .............................................................................................................. 34, 37 San Franciscans Upholding the Downtown Plan v. City & County of San Francisco (2002) 102 Cal.App.4th 656 .................................................................................................................... 34 Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163 .................................................................................................................... 34 Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704 ...................................................................................................................... 34 Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11 ........................................................................................................................ 14 South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316 .................................................................................................................... 16 P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 7 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013 .................................................................................................................. 21 Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273 .............................................................................................................. 14, 16 Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559 ................................................................................................................................ 17 Wollersheim v. Church of Scientology (1999) 69 Cal.App.4th 1012 .................................................................................................................... 32 Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1 .................................................................................................................................. 28 Regulations and Statutes Page(s) CEQA Guidelines, Section 15131, subd. (a)................................................................ 17 15183................................ 13, 14, 16, 17, 18, 23, 25, 26, 28 15183, subd. (a)........................................ 16, 18, 21, 25, 26 15183, subd. (b) ............................................................... 21 15183, subd. (c)................................................................ 16 15183, subd. (d)(1)(A)-(C) .............................................. 26 15183, subd. (d)(1)(B) ..................................................... 25 15183, subd. (e)(2) ........................................................... 27 15183, subd. (i)(2)............................................................ 25 15384, subd. (a)................................................................ 14 Appendix G ...................................................................... 17 Gov. Code, Section 65010, subd. (b).) ............................................................. 30 65866.......................................................................... 35, 37 Public Resources Code, Section 21080, subd. (e) ................................................................ 14 21083.1 ............................................................................. 28 21083.3................................... 13, 14, 16, 17, 18, 25, 26, 28 21083.3, subd. (a) ............................................................. 26 21083.3, subd. (b) ............................................................ 26 21083.3, subd. (c) ............................................................. 27 21083.3, subd. (f) ............................................................. 27 P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 8 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Miscellaneous Page(s) Lincoln Municipal Code, Section 18.06.010.......................................................................... 30 18.22.010 .......................................................................... 30 18.22.020 .......................................................................... 30 18.22.030 .................................................................... 11, 29 18.56.010 ........................................................ 29, 30, 31, 33 18.56.020 .............................................................. 29, 30, 31 18.56.020(1) ..................................................................... 31 18.66.020 .......................................................................... 12 67 Ops.Cal.Atty.Gen. 75 (1984) .............................................................................................................. 34 P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 9 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION This litigation concerns the La Quinta Inns & Suites project (Project), a four-story hotel proposed on a commercially zoned parcel surrounded by other commercial parcels within the Twelve Bridges Specific Plan (TBSP) area in the City of Lincoln (City). The Project site is located near the center of the TBSP “Main Village.” (AR 2265.) The Main Village serves as “the primary activity center” mixing commercial, employment and residential uses in an urban environment designed to serve the needs of TBSP residents and to draw people from the surrounding communities. (AR 2225.) The vision for the TBSP and its mixed-use Main Village dates back decades and evolved through implementation of the TBSP and subsequent related planning actions. As part of this process, the City carefully and repeatedly considered the potential environmental impacts associated with build- out of the TBSP including the 1994 TBSP Environmental Impact Report (TBSP EIR) (AR 1476-2214), the 1998 TBSP Subsequent EIR (TBSP SEIR) (AR 251-1475), and related addenda and subsequent environmental analyses in 2000, 2004, 2005 and 2011 (AR 35-250, 7960-7975). In this litigation, Petitioner Stop Lincoln Twelve Bridges Hotel (Petitioner) challenges the City’s approval of the Project pursuant to the California Environmental Quality Act (CEQA), Lincoln Municipal Code (LMC), and the State Planning and Zoning Law. However, at its core, this litigation is not about these legal issues. Opponents of the Project believe hotels lead to human and sex trafficking. (AR 2863.) Based on this perception, as succinctly stated by Petitioner’s counsel, the Project makes some residents “uncomfortable.” (Ibid.) As demonstrated herein, the City listened carefully to these concerns and, in consultation with other agencies, stakeholders, and the Police Chief, concluded that the concerns, though heartfelt, lack merit. The City understands that Petitioner’s concerns remain. However, as demonstrated below, the City complied fully with CEQA, its LMC, and State Planning and Zoning Law in approving the Project. Therefore, the City and Real Parties in Interest JG Land & Investment, LLC (RPI) respectfully request that the Court deny Petitioner’s Verified Petition for Writ of Mandate (Petition) in its entirety and enter judgment in favor of the City and RPI. P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 10 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. STATEMENT OF FACTS A. Background Planning Documents and Prior Environmental Review. Decades of organized planning demonstrates an ongoing process to urbanize the TBSP area. Over fifty years ago, the 1967 Placer County General Plan designated the TBSP area for urban uses. (AR 1711, 12568.) In 1982, the City expanded its sphere of influence to include the area. (AR 29, 431, 1711.) The City’s 1988 General Plan again identified the Project site for future urban development. (See AR 29, 1711, 2233-2234, 12568, 12788.) In 1994, the City annexed and approved the 4,900-acre Twelve Bridges project and approved the TBSP. (AR 431, 433, 2234.) The TBSP was designed to develop Twelve Bridges into an urban area. (See AR 30, 12265, 12290-12291, 12328, 12534.) In approving the TBSP, the City also certified the TBSP EIR, which analyzed the impacts associated with buildout of the TBSP. (AR 1702-2214.) In 1998, the City adopted a Revised TBSP as well as the Twelve Bridges General Development Plan (Development Plan) and Twelve Bridges Development Agreement (Development Agreement).1 (AR 11816, 12129, 12258-12261.) The Development Plan implements the TBSP while adding more specific guidance to prevent incompatible land uses from occurring. (AR 685, 7802, 12129.) Pursuant to the Development Agreement, the development standards in effect in 1998 control development within the TBSP. (AR 11832, 11854-11858.) These standards included, for example, the height restrictions, minimum setbacks, and lot coverage limitations set forth in the Development Plan. (See AR 2235, 12160-12161.) Furthermore, the Development Agreement prohibits the application of any subsequent regulation that would diminish the development rights provided by the agreement, such as regulations that would reduce the permitted density or size of development. (AR 11832, 11854-11857.) Prior to adopting the Revised TBSP, Development Plan, and Development Agreement, the City evaluated the environmental impacts of the proposed changes to the TBSP in the TBSP SEIR. (AR 251- 1475.) The City also determined that, like the 1994 TBSP, the 1998 Revised TBSP, Development Plan, and Development Agreement, were consistent with the 1988 General Plan. (AR 7813, 11817, 11833, 12099, 12140, 12259-12261.) 1 In 2015, the Sixth Amendment to the Development Agreement was executed, extending the terms of the Development Agreement until 2023. (AR 7937-7940.) P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 11 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In 2011, the City amended the TBSP to, in part, rezone a 10.7-acre area in the Main Village, including the Project site, from Village Commercial (VC-1) to General Commercial (GC-1). (AR 7976- 7979, 7960-7975.) Prior to adopting the 2011 amendment, the City prepared an Initial Study (2011 Initial Study), which confirmed that the changes would not result in any new or greater environmental impacts than analyzed in the TBSP EIR and SEIR. (AR 7960-7975.) B. The TBSP and Development Plan intend dense, urban development, in the Main Village. The TBSP anticipates development of over 11,000 homes, 126 acres of commercial uses, and 150 acres of schools and public institution sites, including a community college. (AR 30.) It reflects the intent to aggressively attract industry to the area to provide on-site employment. (AR 11534, 11563, 12537-12538.) The TBSP also specifically seeks to include “land uses which are economically beneficial to the City of Lincoln and generate property and sales tax revenues.” (AR 11529, 12285.) To achieve this vision, the TBSP creates several distinct villages. (AR 11535, 12291, 12538- 12539.) The Project is located in the Main Village, which is intended to provide the greatest concentration of employment, commercial, and higher density residential uses in the TBSP area. (AR 2234, 2270-2271, 7804, 7846-7847, 12291, 12539.) The Main Village is expressly intended to “[c]reate a place with civic/urban character” and “[p]rovide places of gathering and activity.” (AR 7847; see also 7885, 7906-7907.) Five land use zones are included in the Main Village: General Commercial (GC-1), Village Commercial (VC-1), Employment Center (EC-1), and Medium and High Density Residential. (AR 7814.) These land use designations permit intensive development. For example, each commercial zone included in the Main Village (i.e., GC-1, VC-1, and EC-1) permit the construction of heights up to sixty (60) feet and lot coverage up to sixty (60) percent. (AR 7829-7840.) And, the GC-1 zone was designed to “accommodate large tenants” including large scale commercial centers. (AR 12143; see also AR 7804, 7861, 12131, 12188.) Hotel uses are permitted with a conditional use permit (CUP) in the GC-1 zone pursuant to the Twelve Bridges Development Plan and LMC section 18.22.030. (AR 2264.) C. The Project and Surrounding Development. As approved, the Project entails the construction of a four story, 56,914 square-foot hotel and associated site improvements on a vacant 3.1-acre parcel zoned General Commercial (GC-1). (AR P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 12 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3059, 7814, 7861.) At its peak, the building will be 50 feet tall with an architectural element that reaches 60 feet tall, and, thus, the Project complies with the height standard in the GC-1 zone. (AR 2266, 3064; see AR 2315, 2426, 2660-2663 [photo simulations]; AR 2292, 2303-2305, 2314 [Project renderings].) Additionally, the Project proposes a lot coverage of twelve (12) percent on the 3.1-acre parcel, substantially less than the sixty (60) percent lot coverage allowed in the GC-1 zone. (AR 2235.) The Project site is surrounded by General Commercial (GC-1) and Employment Center (EC) zoned properties. (AR 3601.) The Project site and other nearby undeveloped commercial parcels were previously mass graded in preparation for future development. (AR 3061.) The area is ideally situated for commercial development based on its location adjacent to several major thoroughfares, including State Highway 65, Twelve Bridges Drive, Joiner Parkway, and Colonnade Drive. (AR 8.) Existing commercial projects in the Main Village include commercial / retail / restaurant uses (including two built but vacant commercial buildings), a Walgreens drug store, Kaiser Permanente Medical Center, and a City library; a high school and K-12 charter school are under construction in the area, and an assisted living and memory care facility has also been approved for development. (AR 2820-2821, 2852, 3061, 3164, 3339.) A number of these surrounding commercial uses include tall structures, such as the Kaiser Medical Center (approximately 35-40 feet tall), a clock and cell tower (approximately 60 feet tall), and the approved assisted living project, which will include a three-story component and approximately 55-foot tower elements. (AR 2822, 2921, 3164, 3178.) D. Summary of the Administrative Process Prior to the beginning of administrative proceedings, RPI held a community outreach meeting, pursuant to the City’s request, to address the community’s concerns about the Project, including those related to public safety and land use policy. (AR 6528, 6589, 6593, 6654.) During the administrative process, public commenters generally either welcomed the benefits of the Project to the area or expressed dissatisfaction with alleged aesthetics impacts and the potential for a hotel to introduce crime into an area with nearby schools and residential neighborhoods. (E.g., AR 2861-2916 [City Council comments], 3180-3240 [Planning Commission comments].) On July 31, 2019, the Design Review Board reviewed the Project. (AR 3309.) Pursuant to section 18.66.020 of the LMC, the Design Review Board is tasked with making recommendations “on P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 13 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any matter requiring qualified aesthetic and/or architectural judgments to the end that the general appearance of any improvement shall preserve or enhance the physical environment and character of the community.” (AR 2236.) After carefully reviewing the Project, the Design Review Board found that it was well designed and incorporated designs and materials similar to those of existing development in Twelve Bridges. (AR 3063.) Regarding the Project’s size, the Design Review Board stated that “the architect did a great job of ‘taking a four story building and reducing its scale by roof and elevation articulation.’” (Ibid.) Finally, the Design Review Board concluded the Project is consistent with the Twelve Bridges Development Plan and recommended approval of the Project. (AR 3064.) Thereafter, on August 21, 2019, the Planning Commission held a public hearing and approved the Project. (AR 7-21.) In doing so, the Commission determined that the Project is exempt from CEQA as a project consistent with a community plan or zoning. (AR 8, 12; see also Pub. Resources Code, § 21083.3; CEQA Guidelines, § 15183.) On August 30, 2019, Petitioner appealed the Commission’s approval of the Project and its determination that the Project is exempt from CEQA. (AR 4024-4033.) On October 22, 2019, the City Council held a public hearing to evaluate Petitioner’s appeal. After considering the evidence and public testimony, the Council adopted a resolution, which confirmed that the Project is exempt from CEQA, denied the appeal, and upheld the Commission’s approval of the Project. (AR 5-6.) The City filed a Notice of Exemption on October 25, 2019. (AR 1-2.) III. ANALYSIS A. The City complied fully with CEQA before approving the Project. 1. Standard of Review The City determined that the Project is exempt from CEQA pursuant to Section 21083.3 and its companion CEQA Guidelines section 15183. (See Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 388, fn. 7 [“CEQA Guidelines section 15183 was promulgated on the authority of Public Resources Code section 21083.3 ….”]; Petitioner’s Opening Brief (POB), p. 10:24- 25.) Section 21083.3 is a statutory exemption. (Citizens for Responsible Equitable Env’l Development v. City of San Diego Redevelopment Agency (2005) 134 Cal.App.4th 598, 612, fn. 12 (CREED); Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1406 (Gentry).) Statutory exemptions, such as Section 21083.3, are subject to the substantial evidence standard of review. (See Defend Our Waterfront v. P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 14 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 State Lands Com. (2015) 240 Cal.App.4th 570, 587 [“[A] statutory exemption … will be upheld if substantial evidence supports the finding of exemption.”]; North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 850 [same]; Health First v. March Joint Powers Authority (2009) 174 Cal.App.4th 1135, 1145 [holding “substantial evidence support[ed] the administrative decision” made under Section 21083.3 and CEQA Guidelines section 15183].) Case law cited by Petitioner asserting that the fair argument standard of review applies to Section 21083.3 and CEQA Guidelines section 15183 is not determinative. (POB, p. 10:3-9, citing Wal- Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 287 (Wal-Mart); Gentry, supra, 36 Cal.App.4th at p. 1406, fn. 24.) Neither Wal-Mart nor Gentry decided the issue. (See Wal-Mart supra, 138 Cal.App.4th at p. 287, 296 [assuming without deciding the fair argument standard of review applied because petitioner failed to satisfy even the fair argument standard); Gentry, supra, 36 Cal.App.4th at p. 1406 [explaining that “[t]he results of section 21083.3 are much like those of tiering” and, therefore, assuming without deciding substantial evidence applied].) The fair argument standard of review does not apply. (Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 24 [“To the extent an agency’s determination that an activity is exempt involves factual determinations, we review those determinations for substantial evidence.”]; CREED, supra, 134 Cal.App.4th at p. 610 [“the fair argument standard does not apply to judicial review of an agency’s determination that a project is within the scope of a previously completed EIR”].) As shown above, Section 21083.3 and its companion CEQA Guidelines section 15183 are entitled to the substantial evidence standard of review. a. Substantial evidence is a highly deferential standard of review. Substantial evidence is an “extremely deferential standard of review.” (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1073.) Substantial evidence is “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.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391; CEQA Guidelines, § 15384, subd. (a).) Substantial evidence “includes fact[s], a reasonable assumption predicated upon fact[s], or expert opinion supported by fact[s]” (Pub. Resources Code, § 21080, subd. (e)) such as the “expertise of [an agency’s] planning staff in determining whether a project will not have a significant impact on the P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 15 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 environment.” (Citizens for Responsible Equitable Env’l Development v. City of San Diego (2011) 196 Cal.App.4th 515, 529-530.) “In applying the substantial evidence standard, ‘the reviewing court must resolve reasonable doubts in favor of the administrative finding and decision.’” (Laurel Heights Improvement Assn. v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 393 (citation omitted).) “[T]he question is not whether substantial evidence would support a different decision from the one the agency made; the question is whether the agency’s decision is supported by substantial evidence.” (Committee for Re-Evaluation of T-Line Loop v. S.F. Muni. Transp. Agency (2016) 6 Cal.App.5th 1237, 1255.) Thus, “[t]he court must ‘accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the [administrative decision].’” (M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607, 616; Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 953 [courts do not to weigh conflicting evidence].) 2. Petitioner’s CEQA challenge fails because Petitioner does not meet its burden under the substantial evidence standard of review. All of Petitioner’s CEQA arguments are premised on the wrong “fair argument” standard of review. (See, e.g., POB, p. 10:3-5.) Petitioner advances no CEQA arguments pursuant to the applicable substantial evidence standard of review. Petitioner’s failure to advance any arguments under the correct standard of review alone constitutes a sufficient basis for this Court to hold Petitioner forfeited its CEQA arguments. (Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 206 [stating that because the petitioner “lost its legal argument [concerning the applicable standard of review], there are no further issues … to address”]; Better Alternatives for Neighborhoods v. Heyman (1989) 212 Cal.App.3d 663, 672 [applying the substantial evidence standard and rejecting arguments that “ignore[d] the proper standard of review”].) Even if this Court were willing to forgive Petitioner’s reliance on the wrong standard of review, to prevail under the substantial evidence standard of review, Petitioner had the burden to “lay out the evidence favorable to the other side and show why it is lacking.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) Petitioner’s Opening Brief fails to satisfy this requirement. Instead, Petitioner includes minimal citations to the evidence supporting the City’s CEQA P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 16 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 determinations and merely suggest the Court should accept Petitioner’s evidence over the evidence relied on by the City. Petitioner’s approach “is fatal. A reviewing court will not independently review the record to make up for… [a petitioner’s] failure to carry his burden.” (South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 330.) Moreover, as demonstrated, infra Section III.A.3, Petitioner’s CEQA arguments fail under both the applicable substantial evidence and inapplicable fair argument standards of review. 3. The City properly determined that the Project is exempt from CEQA pursuant to Public Resource Code section 21083.3 and CEQA Guidelines section 15183. The parties agree that, for the City to rely on Section 21083.3 and CEQA Guidelines section 15183, the City was required to determine “whether there are project-specific significant effects which are peculiar to the project or its site.” (CEQA Guidelines, § 15183, subd. (a).) An effect is “peculiar” to a project under Section 21083.3, if the “change belongs exclusively or especially to the… [project] or if it is [a] characteristic of only the… [project].” (Wal-Mart, supra, 138 Cal.App.4th at p. 294.) “If an impact is not peculiar to the parcel or to the project, has been addressed as a significant effect in the prior EIR, or can be substantially mitigated by the imposition of uniformly applied development policies or standards … then an additional EIR need not be prepared for the project solely on the basis of that impact.” (CEQA Guidelines, § 15183, subd. (c) (emphasis added).) Petitioner alleges two project-specific impacts are “peculiar” to the Project: crime and aesthetic/land use compatibility impacts. (POB, pp. 13:9-10; 15:8-10.) As demonstrated below, Petitioner is incorrect. Neither of these alleged impacts constitute environmental impacts “peculiar” to the Project for the purposes of Section 21083.3 and CEQA Guidelines section 15183. a. Alleged crime impacts are not environmental impacts pursuant to CEQA. The vast majority of the public comments cited by Petitioner in its Opening Brief concern the potential for a hotel located near schools and residential neighborhoods to result in an increase in crime, including prostitution and sex trafficking. (POB, pp. 12:23 - 13:1, 15:5-10, citing, e.g., AR 3186-3187, 3189, 3202, 3218, 3219, 3226, 3232, 3235, 3238, 4085, 4104, 4110, 4187, 4226, 4269, 4270, 4278.) Petitioner suggests these concerns are evidence of an environmental impact peculiar to the Project pursuant to CEQA. (POB, p. 15:5-10.) Petitioner is wrong as a matter of law. P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 17 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CEQA does not require an analysis of subjective physiological feelings or social impacts. (City of Pasadena v. State of California (1993) 14 Cal.App.4th 810, 830-834 (Pasadena), disapproved on other grounds in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, fn. 2.) Rather, CEQA’s overriding and primary goal is to protect the physical environment. (Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 579.) As a result, “[e]conomic or social effects of a project shall not be treated as significant effects on the environment….” (Ibid., quoting CEQA Guidelines, § 15131, subd. (a).) Thus, “increased crime problems is not a proper subject of CEQA inquiry.” (Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464, 1469, fn. 2 (emphasis added); see also City of Irvine v. County of Orange (2015) 238 Cal.App.4th 526, 534 [“threat of increased crime… [is a] socioeconomic impact not covered by” CEQA].) The fact that Petitioner believes the Project’s alleged crime risk is greater due to its location near homes and schools does not turn these fears into a cognizable impact pursuant to CEQA. For example, in Pasadena, supra, the petitioner challenged the lead agency’s approval of a parole office project based on evidence suggesting that crime increases near parole offices. (Pasadena, supra, 14 Cal.App.4th at pp. 817-818.) The petitioner alleged this increased crime established that the project would impact “recreational and educational uses in the area….” (Id. at p. 834.) The court held that the project’s potential to lead to an increase in crime coupled with its proximity to recreational and educational uses was “insufficient to establish a significant effect within appendix G to the [CEQA] Guidelines.” (Ibid.) Here, as in Pasadena, Petitioner’s concerns regarding crime do not constitute an environmental impact pursuant to CEQA. As these concerns do not constitute an environmental impact pursuant to CEQA, they cannot constitute evidence of a project-specific significant effect peculiar to the project for the purposes of Section 21083.3 and CEQA Guidelines section 15183. Furthermore, while Petitioner’s concerns regarding crime do not constitute a potentially significant environmental impact pursuant to CEQA, as demonstrated, infra Section III.B.4, in evaluating whether to approve the Project, the City carefully considered whether the Project would lead to criminal activity that would negatively impact the nearby schools and neighborhoods. In consideration of substantial evidence in the record, including testimony from the City’s Police Chief at both the Planning Commission and City Council hearings (AR 2831-2840, 3176-3177, 3281-3284), the P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 18 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City concluded that the hotel use proposed by the Project will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the neighborhood. b. Alleged aesthetic and land use compatibility impacts do not constitute significant environmental impacts peculiar to the Project. Petitioner argues the Project’s aesthetic and land use compatibility impacts are not covered by the TBSP EIR and SEIR because those EIRs “did not address or discuss hotels within the General Commercial area.” (POB, p. 11:17-22.) Section 21083.3 and CEQA Guidelines section 15183 require the City to consider whether the Project will lead to “project-specific significant effects” that are “peculiar” to the Project. (CEQA Guidelines, § 15183, subd. (a).) In other words, for the purposes of Section 21083.3 and CEQA Guidelines section 15183, the question is whether the impacts of the project are peculiar and not whether the use itself is peculiar in some abstract sense. As demonstrated below, the City properly determined that potential aesthetic and land use impacts of the Project are adequately addressed by the TBSP EIR, SEIR, and 2011 Initial Study. Preliminarily, the vast majority of public comments cited by Petitioner to support its aesthetic and land use compatibility argument express concern that a hotel will impact the character of the neighborhood because it is located too close to residential neighborhoods and schools. (POB, p. 15:6- 8.) To the extent these concerns relate to perceived crime risks associated with a hotel, as demonstrated, supra Section III.A.3.a, such risks are not environmental impacts pursuant to CEQA. i. Aesthetic and land use impacts associated with commercial development built consistent with the Twelve Bridges Development Plan were evaluated in the prior TBSP SEIR. Excluding general compatibility concerns based on perceived crime risk, the only aesthetic and land use compatibility argument involving a change in physical environment advanced by Petitioner is that the Project is too tall and, as a result, may be visible from some nearby residential properties and may block hillside views. (POB, pp. 13:6 - 15:4.) A fundamental problem with this argument is that this alleged aesthetic and land use compatibility impact is not an impact peculiar to the Project. The Twelve Bridges Development Plan provides that in both the Village Commercial (VC-1) zone (the site’s original zone in 1998) and General Commercial (GC-1) zone (the site’s existing zone as of 2011) a four-story commercial building is permitted. (AR 2266, 2268, 7834-7836, 12161- P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 19 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12163.)2 The TBSP EIR, SEIR, and subsequent 2011 Initial Study considered whether buildout of the Plan area, including the Project site, would result in the type of aesthetic and land use compatibility impacts alleged by Petitioner in this litigation. (See generally AR 1834-1862, 2005-2014 [TBSP EIR aesthetic and land use analysis]; AR 656-692, 934-947 [TBSP SEIR aesthetic and land use analysis]; AR 7972-7974 [2011 Initial Study aesthetic and land use analysis].) Specifically, when the City certified the original TBSP EIR, the City had not yet developed the Twelve Bridges Development Plan. Therefore, the TBSP EIR includes a mitigation measure requiring that the City incorporate “setbacks, building heights, and other design elements … into the General Development Plans” and concluded that, because the Development Plans had not yet been developed, aesthetic compatibility impacts were significant and unavoidable. (AR 941-942, 2012; see also AR 1678 [TBSP EIR Mitigation Measures 4.11-1 and 4.11-3].) With respect to views and the scenic quality of the area, the TBSP EIR explains that “the siting and construction of … commercial structures would substantially alter views of nearby open space” (AR 2012) and “found that development of the Plan Area, in conjunction with other development proposals in the vicinity, would continue the trend of replacing the rural character of the area with urban development.” (AR 944.) In consideration of the aesthetic impacts associated with transitioning the area to urban development, the TBSP EIR concludes that development of the TBSP area would also result in a significant and unavoidable change in the scenic quality and alteration of views in the area, and the City adopted a statement of overriding considerations. (AR 2013; see also AR 39, 944.) Thereafter, the City prepared the Twelve Bridges Development Plan, which was evaluated in the TBSP SEIR. (AR 934-935.) In evaluating aesthetic impacts, the SEIR considers several thresholds of significance, including whether build-out of the TBSP would “significantly alter existing viewsheds, including changes in natural terrain; [or] result in the obstruction of any scenic vista or view open to the public, or in the creation of an aesthetically offensive site open to public view.” (AR 940.) Applying these thresholds, the SEIR finds that the “height limits, recommended building materials and 2 In the VC-1 zone, buildings may be 60 feet tall. (AR 7836, 12163.) In the GC-1 zone, buildings may be 50 feet tall with an additional 10 feet of architectural elements. (AR 7834, 12161.) The Project complies with these height standards. (AR 2266, 2268.) P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 20 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specifications for lighting” included in the Development Plan will “minimize the visual intrusion of new development.” (AR 942.) As a result, the SEIR concludes visual incompatibilities associated with implementation of the TBSP would be less than significant. (AR 941-942.) The TBSP SEIR also considers the view impact of the TBSP after implementation of the Development Plan. (AR 941.) The SEIR concludes that “[b]ecause the City has determined that the change in scenic quality and the alteration of views [is] outweighed by the benefits of developing the Plan Area, and the Proposed Project would result in a less severe impact than the prior Specific Plans,” the impact of the proposed TBSP revisions is less than significant. (Ibid.) However, the SEIR concludes that the cumulative aesthetic impacts associated with build-out of the TBSP area remains significant and unavoidable and the City adopted a statement of overriding considerations. (AR 944, 39.) Additionally, the TBSP SEIR evaluates land use compatibility. The SEIR finds that the Development Plan “contains detailed policies and guidelines, including setbacks, fencing requirements, height restrictions, and limitations on the placement of facilities such as loading docks” in order to “minimize conflicts between residential and other uses by ensuring that noise, light and other potential nuisances would not occur near residences, or would be blocked by fences or minimized by masonry walls.” (AR 684.) The SEIR explains that “[t]he Village Commercial and General Commercial areas are located adjacent to similar uses and are designed to incorporate landscaping and other elements to minimize any incompatibilities.” (Ibid.) For these reasons, the SEIR concludes that the TBSP will “not create any new incompatible land uses … [and] Development Plans add more specific guidance and information to ensure that no incompatibilities occur.” (AR 685.) Finally, in 2011, when the City approved the rezoning of the Project site from Village Commercial (VC-1) to General Commercial (GC-1), the City prepared the 2011 Initial Study. (AR 7960-7975.) The 2011 Initial Study evaluates whether the zoning change had the potential to result in any new or substantially more severe aesthetic or land use compatibility impacts as compared to the impacts analyzed in the TBSP SEIR and concludes that it would not. (AR 7972-7974.) The preceding analysis demonstrates that the impacts of transforming the Main Village into a dense urbanized area (AR 2270-2271) have been fully analyzed. When properly placed within this historical and factual context, Petitioner’s argument is that developing a building at the height P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 21 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contemplated by the Development Plan (AR 2266, 12160) on a commercial site (AR 8) surrounded by other commercial zoned properties (AR 2265) within the Main Village constitutes an impact peculiar to the Project. This argument is meritless on its face. As demonstrated above, the City carefully evaluated the potential aesthetic and land use compatibility impacts associated with build-out of the TBSP consistent with the height, bulk, and aesthetic standards set forth in the Development Plan. Thus, the aesthetic and land use compatibility impacts alleged by Petitioner are not peculiar to the Project. ii. Substantial evidence demonstrates that the Project will not result in project- specific significant aesthetic or land use compatibility impacts. As aesthetic and land use compatibility impacts alleged by Petitioner are (1) not peculiar to the Project, (2) evaluated in the prior TBSP EIR, SEIR, and 2011 Initial Study, and (3) not based on new information because the Project will be developed consistent with the standards set forth in the Twelve Bridges Development Plan, no further evidence or analysis is required to reject Petitioner’s argument. (CEQA Guidelines, § 15183, subd. (b).) However, even if these impacts were peculiar to the Project, as demonstrated below, Petitioner has not met its burden to demonstrate that its aesthetic concerns constitute project-specific significant effects of the Project. (CEQA Guidelines, § 15183, subd. (a).) a. Public debate is not evidence of aesthetic and land use compatibility impacts. “‘The possibility of significant adverse environmental impact is not raised simply because of individualized complaints regarding the aesthetic merit of a project.’” (Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 243 (citation omitted) (Clover Valley); see also Poway, supra, 245 Cal.App.4th at p. 579 [“heated public debate about community character does not make it cognizable under CEQA”]; Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1042 [comments that neighbors “want to come home to peace and calm, not bright lights” do not constitute evidence of a significant aesthetic impact].) Here, as in Clover Valley, Poway, and Taxpayers, Petitioner’s concerns about the Project’s potential impacts on the character of the community are insufficient under CEQA’s substantial evidence standard of review. Petitioner cites a string of cases to suggest that residents’ lay opinions are sufficient to demonstrate that the Project may result in significant aesthetic and land use compatibility impacts. (POB, p. 14:12-25.) However, unlike the issue presented in this litigation, the cases cited by Petitioner P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 22 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 do not involve challenges subject to CEQA’s substantial evidence standard of review.3 (Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 399 (Ocean View) [challenge to a mitigated negative declaration subject to the fair argument standard of review]; Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 326-327 [same]; Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 932 [same]; Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 172-173 [same]; Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1213 [agency’s EIR failed to consider potential urban decay which constituted a failure to proceed in a manner required by law].) Moreover, contrary to Petitioner’s suggestion, Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572 (Bowman) does not support its argument. (POB, 14:10-13.) In Bowman - even under the inapplicable “fair argument” standard of review - the court held that claims by residents that a four- story housing complex “by virtue of its size… will interfere with scenic views, and will be visually incompatible with its surroundings” because it was “too big[,]” “too massive[,]” and may block views of “Berkeley hills to the east of the Project” were insufficient to demonstrate that the project had a potentially significant aesthetic impact.4 (Bowman, supra, 122 Cal.App.4th at pp. 586-587; see id. at p. 593 [holding that, giving CEQA “a reasonable and practical construction,” the court could “discern no practical benefit to be derived from further review, under the guise of environmental law, of the Project’s aesthetic merits”].) Additionally, the types of evidence of aesthetic impacts involved in the cases cited by Petitioner differ substantially from the facts and evidence at issue in this litigation. For example, in Pocket Protectors, evidence in the record, including an admission from city planning staff, demonstrated that 3 In CEQA litigation, decisions applying the fair argument standard of review are “irrelevant” in cases involving the substantial evidence standard of review. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 626.) 4 Here, as a Bowman, Petitioner suggests that the Project may impact hillside views. The only comment raising this concern during the administrative process is a comment Petitioner’s counsel made for the first time during the final City Council hearing considering Petitioner’s administrative appeal. At no point during the administrative process did any residents of the City of Lincoln express concern that the Project would obstruct hillside views. Furthermore, as discussed above, impacts to scenic views caused by build-out of the TBSP are analyzed in the TBSP SEIR and are not considered an aesthetic impact peculiar to the Project. (See AR 2315, 2426, 2660-2663.) P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 23 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the project would violate the objectives of the planned development creating the zoning for the project site and evidence also supported the conclusion that the project would encroach into an existing greenbelt. (Pocket Protectors, supra, 124 Cal.App.4th at pp. 931, 937.) Here, the Project proposes to develop an existing mass graded commercial site, not a greenbelt, and, as explained further, infra Section III.C, Petitioner’s General Plan inconsistency claim is meritless as a matter of law. Furthermore, in Ocean View, supra, 116 Cal.App.4th 396, the court acknowledged that a lead agency may consider whether “a project affects only a few private views … in determining whether the impact is significant.” (Id. at 402; see also Bowman, supra, 122 Cal.App.4th at p. 586 [“obstruction of a few private views in a project’s immediate vicinity is not generally regarded as a significant environmental impact”]; Banker’s Hill, Hillcrest, Park West Cmty. Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 279 [same]; see also Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 494 [“neither state nor local law protects private views from private lands”].) However, in Ocean View, the court held that petitioners had made a fair argument that the impacts “involved more than private views” because the proposed expansive four-acre aluminum reservoir cover would “be visible from public trails.” (Ocean View, supra, 116 Cal.App.4th at p. 402; Porterville Citizens for Responsible Hillside Dev. v. City of Porterville (2007) 157 Cal.App.4th 885, 902 [rejecting aesthetics argument because there was “no evidence that the housing project will impact any public views, vistas or scenic highways”].) Here, as in Bowman and unlike in Ocean View, excluding neighborhood character concerns associated with alleged crime, the only comments cited by Petitioner concern private views from nearby residential properties. As a result, the comments relied on by Petitioner are not even sufficient to prevail under the inapplicable fair argument standard of review. b. The City’s determination that the Project complies with the height, bulk, and design criteria set forth in the Twelve Bridges Development Plan constitutes additional substantial evidence that the Project will not result in significant aesthetic impacts. Even when a lead agency is not relying on CEQA Guidelines section 15183, the agency may evaluate a project’s potential to result in significant aesthetic impacts in consideration of the agency’s design review process because “that process itself can be found to mitigate purely aesthetic impacts to insignificance, even if some people are dissatisfied with the outcome. A contrary holding that mandated P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 24 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 redundant analysis would only produce needless delay and expense.” (Bowman, supra, 122 Cal.App.4th at p. 594.) Here, as discussed, supra Section II.D, the Project was subject to an extensive Design Review Process including public hearings before the City’s Design Review Board, Planning Commission, and City Council. In consideration of the project materials and public comments, the Design Review Board concluded that the Project complies with the Twelve Bridges Development Plan “siting criteria involving height, setbacks, access, off-street parking, architectural guidelines, building scale, colors and materials, and landscape character” (AR 2268) and does “a great job of ‘taking a four- story building and reducing its scale by roof and elevation articulation.’” (AR 2267.) Petitioner’s Opening Brief demonstrates that Petitioner opposes the City’s existing design standards such as the permitted maximum height and lot coverage standards in the Village Commercial (VC-1) and General Commercial (GC-1) zones. (POB, pp. 6:16-18, 14:28 - 15:1.) However, those design standards were adopted by the City long ago and evaluated in the TBSP SEIR and 2011 Initial Study. Petitioner’s opposition to these existing design standards does not provide a basis to conclude that the Project will result in a significant aesthetic impact. c. The height of existing commercial buildings and structures in the area supports the conclusion that the Project will not cause a significant aesthetic impact. The record demonstrates that existing and approved land uses surrounding the Project site include three-story buildings and other tall buildings and structures. (AR 2921-2922, 3164 [discussing an approved assisted living and memory care project that includes a three-story component and an approximately 55-foot tower elements]; AR 2822, 3178 [discussing an existing clock tower and cell tower that is 60 feet tall]; AR 3164 [discussing the existing Kaiser Permanente Medical Center that is approximately 35-40 feet tall].) In Bowman, the court held that “[t]he aesthetic difference between a four-story and three-story building on a commercial lot on a major thoroughfare in a developed urban area is not a significant environmental impact, even under the fair argument standard.” (Bowman, supra, 122 Cal.App.4th at p. 592.) Here, as in Bowman, the Project is proposed on a commercial site located on a major thoroughfare. (AR 8, 2260 [the Project site is “adjacent to and assessable to major roadways including State Highway 65, Twelve Bridges Drive, Joiner Parkway, and Colonnade Drive”].) While the TBSP constitutes an approved planned urban area including 126 acres zoned for P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 25 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 commercial uses (AR 30) allowing buildings up to 60 feet tall (AR 7834-7836, 12161-12163) and Bowman concerned a project in the City of Berkeley, Respondents and RPI believe Bowman’s holding is equally applicable here. In consideration of existing and approved commercial development in the area, the intensity of development envisioned and permitted in the Main Village, and the proximity of the project to major thoroughfares, the difference between a three- and four- story building on the Project site does not constitute a significant environmental impact. For all of the above reasons, even if the aesthetic impacts alleged by Petitioner were peculiar to the Project, Petitioner has not met its burden to establish that the Project will result in a significant aesthetic or land use compatibility impact under CEQA’s substantial evidence, or even the inapplicable fair argument, standard of review. 4. The Project is consistent with the development density in the Twelve Bridge Development Plan. Petitioner argues that Section 21083.3 and CEQA Guidelines section 15183 require that the “Project must be consistent with the General Plan.” (POB, p. 16:4-5.) As explained immediately below, this is a misstatement of the law. Further, as explained, infra Section III.C, the Project is consistent with all applicable provisions of the City’s 2008 General Plan. Accordingly, even if Section 21083.3 and CEQA Guidelines section 15183 required consistency with the City’s General Plan, Petitioner’s challenge would fail. Section 21083.3 applies where a project is “consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified….” (CEQA Guidelines, § 15183, subd. (a) (emphasis added).) Therefore, the lead agency can comply with the requirements of Section 21083.3 and CEQA Guidelines section 15183 by determining: that the density of the proposed project is the same or less than the standard expressed for the involved parcel in the … zoning action for which an EIR has been certified, and that the project complies with the density-related standards contained in that… zoning. (CEQA Guidelines, § 15183, subd. (i)(2).) In this context, “existing zoning” means “[a] zoning action which zoned or designated the parcel on which the project would be located to accommodate a particular density of development….” (CEQA Guidelines, § 15183, subd. (d)(1)(B).) Here, the City concluded that the Project was exempt from P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 26 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 further review pursuant to Section 21083.3 and CEQA Guidelines section 15183 because the Project is consistent with the development density in the TBSP and its Development Plan. (AR 4, 668.) As the TBSP and its Development Plan implement the “zoning for the Plan area and design guidelines that establish building setbacks, heights and materials,” these planning documents constitute the zoning action relevant to the City’s Section 21083.3 and CEQA Guidelines section 15183 analysis. (AR 29, 6; see also AR 12129, 12528.) The Project is consistent with all density-related standards included in the zoning for the Project site. (AR 2267-2268.) Petitioner does not dispute this fact. This is all Section 21083.3 and CEQA Guidelines section 15183 require. Petitioner’s argument regarding the Project’s consistency with the City’s General Plan (POB, pp. 15:15 - 16:6) is not relevant to the City’s Section 21083.3 and CEQA Guidelines section 15183 consistency analysis. (Compare Pub. Resources Code, § 21083.3, subd. (a) [application of the exemption to a “project that is consistent with the zoning or community plan”] to subd. (b) [application of the exemption to a project that is “consistent with the general plan of a local agency”]; see also CEQA Guidelines, §15183, subd. (d)(1)(A)-(C).) Moreover, even if Section 21083.3 and CEQA Guidelines section 15183 required consistency with all applicable density-related standards in both the City’s zoning and general plan notwithstanding the plain language in CEQA Guidelines section 15183, subdivision (a), as explained, infra Section III.C, the Project is consistent with all applicable standards. 5. The City properly required that the Project implement the mitigation measures included in the TBSP SEIR. Petitioner admits that, in approving the Project, the City required the Project to “comply with the Subsequent Environmental Impact Report for the Revised Twelve Bridges Specific Plan EIR Mitigation Measures.” (POB, p. 16:16-19.) However, Petitioner alleges that this is inadequate. Petitioner argues that, to comply with Section 21083.3 and CEQA Guidelines section 15183, a lead agency must make a separate finding as to each of the mitigation measures included in the prior EIR. (POB, p. 16:19-22.) Petitioner is incorrect. Section 21083.3 and CEQA Guidelines section 15183 do not require that a lead agency make a separate finding for each mitigation measure set forth in the prior applicable EIR. Rather, the lead P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 27 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agency is required to make “a finding at a public hearing as to whether the feasible mitigation measures will be undertaken.” (CEQA Guidelines, § 15183, subd. (e)(2) (emphasis added); see Pub. Resources Code, § 21083.3, subd. (c).) For example, in Health First, supra, 174 Cal.App.4th 1135, citing Section 21083.3 and CEQA Guidelines section 15183, the court rejected the petitioner’s argument that a project would “not comply with the mitigation plan adopted as part of the specific plan” because the lead agency expressly made the project “subject to the same mitigation measures” by mandating the project comply with “the mitigation measures adopted in the specific plan, unless they had been deleted.” (Health First, supra, 174 Cal.App.4th at p. 1145; see also Gentry, supra, 36 Cal.App.4th at p. 1408 [holding that mitigation conformity finding required pursuant to Section 21083.3 is not satisfied by a finding that a “Project complied with all ‘applicable’ laws” because that finding is “not the equivalent of a finding that the mitigation measures in the [] Plan EIR were actually being undertaken”].) Here, as in Health First, supra, and unlike in Gentry, supra, both the Planning Commission and the City Council made findings requiring that the Project comply with the mitigation measures set forth in the TBSP SEIR. (AR 6-9, 12.) The Project’s conditions of approval also mandate this requirement. (AR 13.) Thus, as explained by City staff, “[n]o mitigation measures have been abandoned or deleted as part of this land use decision; rather, the CUP requires the … [Project] comply with all mitigation measures called for within the Subsequent Environmental Impact Report for the Revised Twelve Bridges Specific Plan….” (AR 2233.) Section 21083.3 and CEQA Guidelines section 15183 require nothing more. (CEQA Guidelines, § 15183, subd. (e)(2).) Finally, Section 21083.3 authorizes a challenger that has participated in the administrative process “to bring an action or proceeding to attack, review, set aside, void, or annul a finding of a public agency … with respect to the conformity of the project to the mitigation measures identified in the prior environmental impact report for the zoning or planning action….” (Pub. Resources Code, § 21083.3, subd. (f).) Pursuant to this requirement, to the extent Petitioner believed the Project is not in conformity with one or more mitigation measures set forth in the TBSP SEIR, Petitioner could have raised a specific mitigation conformity challenge during the administrative process and in this litigation. Petitioner did not. P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 28 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Instead, Petitioner merely advances a procedural argument that, as explained above, exceeds the requirements of the plain language of Section 21083.3 and CEQA Guidelines section 15183. Therefore, the argument must be rejected because, in enacting CEQA, the Legislature declared that CEQA and the CEQA Guidelines should not be interpreted “in a manner which imposes procedural or substantive requirements beyond those explicitly stated in… [CEQA] or in the state guidelines.” (Pub. Resources Code, § 21083.1.) For these reasons, Petitioner’s challenge to the City’s mitigation finding is meritless. B. The City complied fully with the Lincoln Municipal Code in approving the Project. 1. Standard of Review “Though … [courts] independently judge the text of the Municipal Code, [courts] … give appropriate respect to a government entity’s interpretation of its own laws.” (J. Arthur Properties, II, LLC v. City of San Jose (2018) 21 Cal.App.5th 480, 486, quoting Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8 (Yamaha).) This is because “[a]n agency has a potential interpretive advantage over the courts if it has developed a specialized expertise, ‘especially where the legal text to be interpreted is … entwined with issues of fact, policy, and discretion.’” (Diablo Valley College Faculty Senate v. Contra Costa Community College Dist. (2007) 148 Cal.App.4th 1023, 1035, quoting Yamaha, supra, 19 Cal.4th at p. 12.) Thus, “‘[a] court is more likely to defer to an agency’s interpretation of its own regulation than to its interpretation of a statute, since the agency is likely to be intimately familiar with regulations it authored and sensitive to the practical implications of one interpretation over another.’” (Ibid.) As a result, courts have routinely held that “a city’s interpretation of its own ordinance ‘is entitled to great weight unless it is clearly erroneous or unauthorized.’” (Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 896, quoting Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1193.) When evaluating findings made by a city pursuant to its municipal code, the court determines whether the findings are supported by substantial evidence. Under the substantial evidence review, the City Council’s “findings are presumed to be supported by the administrative record, and … [petitioner] has the burden to show there is no substantial evidence whatsoever to support them.” (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 443 (emphasis added).) P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 29 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Petitioner’s Municipal Code challenge is premised on a misreading of the LMC. In the City of Lincoln, there are two types of conditional use permits (CUPs). CUPs for (1) “uses or purposes for which such permits are required or permitted by the terms” of the City’s Zoning Code (LMC, § 18.56.010) and (2) “uses which are not provided for in the district” (LMC, § 18.56.020). Here, “per the Twelve Bridges General Development Plan, appropriate land uses within this zoning district (GC-1) are referred to the City of Lincoln Municipal Code (LMC). In this instance, LMC Section 18.22.030 (Commercial Districts) allows for hotels in the GC-1 district subject to the issuance of a Conditional Use Permit.” (AR 2264 (emphasis added).) Therefore, the CUP requirements for “uses or purposes for which such permits are required or permitted by the terms” of the City’s Zoning Code apply to the Project. (See LMC, § 18.56.010.) Pursuant to LMC section 18.56.010, the only finding that the Planning Commission must make in order to approve the Project is “that the establishment, maintenance or operation of the use, building or structure applied for will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the city.” (LMC, § 18.56.010.) The LMC reiterates that this finding “shall be based on substantial evidence in view of the whole record.” (Ibid.) Petitioner, however, argues that the Planning Commission failed to properly make two of four findings prior to approving the Project. (POB, p. 17:6-12.) Petitioner does not cite any section of the LMC for these four findings. (Ibid.) These findings are set forth in LMC section 18.56.020 - the section applicable to uses not provided for in the zoning district in which a project is proposed. In other words, Petitioner applies the incorrect LMC section to this CUP. As the hotel use proposed by the Project is expressly identified as a conditionally allowed use in the commercial district in which it is proposed, the findings required by LMC section 18.56.020 are not mandatory for the Project. Instead, the Project is subject to the single finding required pursuant to LMC section 18.56.010. Nevertheless, to be thorough and for the purposes of public disclosure, the Planning Commission and City Council went beyond the single mandatory finding required by LMC section 18.56.010 and considered each of the four findings set forth in LMC section 18.56.020. P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 30 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner alleges that the City failed to make adequate findings pursuant to Findings 1 and 3 of LMC section 18.56.020. As demonstrated below, Petitioner is incorrect. Substantial evidence supports the City’s determination as to both of these findings. 3. Substantial evidence supports the City’s determination that the Project complies with non-mandatory Finding 1 of LMC section 18.56.020. Petitioner argues that “Finding 1 under Lincoln Municipal Code section 18.56.010 requires that the City find that the use is substantially similar in characteristic to a use or uses currently within the district.” (POB, p. 18:2-5.) As explained, supra Section III.B.2, this statement is incorrect. LMC section 18.56.010 does not include this finding. The finding is required by LMC section 18.56.020, which is not directly applicable to the Project. Thus, the finding challenged by Petitioner is not mandatory as applied to this Project. Even if substantial evidence did not support the City’s determination as to Finding 1, such error would necessarily be harmless. (See Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 921, citing Gov. Code, § 65010, subd. (b).) While the City was not required to make Finding 1 under LMC section 18.56.020 in order to approve the CUP for the Project, the City nevertheless determined, based on substantial evidence, that the use proposed by the Project “is substantially similar in characteristic to a use or uses currently within the district.” (AR 2225-2226, 2268-2269; see also AR 8.) For example, as Petitioner acknowledges, the City determined that a “Holiday Inn is about one and a half miles” from the Project site. (POB, p. 19:1-8; see AR 2862.) Petitioner suggests that, because the Holiday Inn is located approximately 1.5 miles from the Project site, the Holiday Inn is not a use “currently within this district.” (Ibid.) Petitioner is mistaken. The City’s CUP requirements are set forth in Division VI of the Title 18 (Zoning Code) of the LMC. Pursuant to the City’s LMC, the term “district” refers to the zoning “districts” established in the City’s Zoning Code. (See LMC, § 18.06.010.) As relevant here, the Project site is subject to the permitted and conditional uses set forth in the “commercial district” as defined in the City’s Zoning Code. (AR 7833, 12160; LMC, §§ 18.22.010, 18.22.020.) The Holiday Inn is also located on a property subject to the permitted and conditional uses set forth in the “commercial district” as defined in the City’s Zoning Code. (AR 2631, 2637.) Therefore, the City determined that the Project (i.e., a hotel) is P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 31 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 similar to a use or uses (i.e., the Holiday Inn hotel) currently located within the same district (i.e., the commercial district). This, by itself, constitutes substantial evidence supporting the City’s determination that the Project complies with the nonmandatory Finding 1 in LMC section 18.56.020. Moreover, the Planning Commission and City Council also concluded that the Project “is substantially similar in characteristic to developed commercial properties in Twelve Bridges….” (AR 8.) Specifically, within the Main Village of the TBSP existing uses include a drug store (Walgreen’s), commercial / retail / restaurant uses (including two built but vacant buildings), office / medical uses (including the Kaiser Medical Center), and an approved - but not yet developed - senior care project. (AR 2273, 2852, 3107, 3112, 3164.) During the final City Council hearing on the Project, Petitioner’s counsel stated that “other than Kaiser, it appears to me that there are no similar uses.” (AR 2862 (emphasis added).) Even if the Kaiser Medical Center was the only similar use in the Main Village as suggested by Petitioner’s counsel, that fact alone would support the City’s determination that Finding 1 is satisfied. (LMC, § 18.56.020(1) [requiring substantial similarity to “a use or uses”] (emphasis added).) For these reasons, substantial evidence supports the City’s determination that the Project complies with nonmandatory Finding 1 in LMC section 18.56.020. 4. Substantial evidence supports the City’s determination that the Project use will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the city. Petitioner argues that the City improperly made “Finding 3 of Lincoln Municipal Code section 18.56.010….” (POB, p. 19:19.) Finding 3 of Section 18.56.020 mirrors the lone finding required by Section 18.56.010. Therefore, unlike Finding 1, supra Section III.B.3, Respondents acknowledge that, to approve the CUP for the Project, it was required to determine, based on substantial evidence, that the use will not be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the city. (LMC, § 18.56.010.) P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 32 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner suggests that the City could not properly make this finding as a result of alleged crime-related risks associated with the Project. Petitioner is incorrect. After considering numerous sources of substantial evidence, including the Project’s operational characteristics, proposed security measures, location, public safety data for other hotels located near schools and residential neighborhoods, and public safety data in the City, the City Council concluded that “existing statistics do not point to a criminal element surrounding a hotel use” in the City and made the required finding. (AR 2227, 2270-2273, 2831.) Prior to the City Council reaching this conclusion, the City consulted with other agencies and stakeholders including the Western Placer Unified School District and Athlos Academies, the parent company to the local John Adam Academies school. (AR 2226.) Both confirmed that they were aware of no evidence of sex trafficking issues in the City. (Ibid.) As Petitioner acknowledges, the City also carefully considered testimony from the Police Chief prior to making this finding. (POB, p. 20:22-26.) Specifically, the Police Chief explained his experience with the limited issues encountered at the existing Holiday Inn Express, other crime data in the City, as well as his 35 years of law enforcement experience including work combatting human trafficking and prostitution in other jurisdictions. (AR 2226-2227, 2831-2840, 3176-3177, 3281-3284.) Based on this data and his professional experience, from the perspective of community safety, the Police Chief concluded that (1) he was “not concerned about another hotel here of this caliber … in this city” (AR 3176), and (2) he “did not believe that a hotel in proximity to the high school would result in an increase in human trafficking.” (AR 3283; see also AR 2854 [explaining that the class action lawsuit cited by Petitioner (POB, p. 20:27-28) in “Atlanta, Georgia 2500 miles from here, … [does not mean there is] a sex trafficking problem in Lincoln, California”].) Petitioner attempts to discount the Police Chief’s testimony because he “did not rule out” that human and sex trafficking “exists within Lincoln and at hotels within Lincoln.” (POB, p. 20:24-26.) However, the standard of review is not beyond a reasonable doubt, the standard is substantial evidence. “Inherent in the substantial evidence test is the proposition that a finding must be affirmed even though the reviewing court considers it more likely than not that the finding under review is incorrect, so long as that finding is supported by substantial evidence.” (Wollersheim v. Church of Scientology (1999) 69 Cal.App.4th 1012, 1015.) Thus, while Petitioner may believe that a “contrary finding would have been P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 33 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 equally or more reasonable,” that does not mean that the City’s finding is not supported by substantial evidence. (Nolte Sheet Metal, Inc. v. Occupational Safety & Health Appeals Bd. (2020) 44 Cal.App.5th 437, 442.) The testimony of the Police Chief, based on 35 years of experience and his consideration of available crime data in the City, constitutes substantial evidence supporting the City’s finding. Furthermore, as Petitioner acknowledges, the City determined that, rather than being a detriment to the neighborhood and the City, the location of the hotel was beneficial. (POB, p. 19:22-26, citing AR 2270.) Specifically, based on planning staff’s professional judgment and public testimony, the City Council and Planning Commission concluded that the Project would benefit the area by providing accommodations “for those visiting for special events (school graduations), visiting for sporting events/sports tourism (Western Placer County is a hub for sports tourism), [and] concerts at Thunder Valley Casino” and “would provide a synergy to the Main Village and infuse development.” (AR 8, 2260, 2269, 2873-2874.) Petitioner alleges that substantial evidence does not support these conclusions. (POB, p. 19:26-28.) But, the expert opinion of planning staff, based on their knowledge of existing hotel operations and tourism demands in the City constitutes substantial evidence. (Harrington, supra, 16 Cal.App.5th at p. 440 [“opinion of staff has been recognized as constituting substantial evidence”].) For these reasons, substantial evidence supports the City’s determination that the Project complies with the CUP finding required by LMC section 18.56.010. C. The Project complies with all applicable requirements of the City’s General Plan. 1. Standard of Review A city’s decisions that affect land use and development must be consistent with its adopted general plan. (See, e.g., Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 570.) Specifically, “‘the propriety of virtually every local decision affecting land use and development depends on consistency with the applicable general plan and its elements ... The consistency doctrine has been described as the ‘linchpin of California’s land use and development laws; it is the principle which infuse[s] the concept of planned growth with the force of law.’” (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 355 (citations omitted).) Courts have interpreted this “consistency” requirement to mean that a project should be “‘in agreement or harmony with’ the terms of the applicable plan, not in rigid conformity with every detail P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 34 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 thereof.” (San Franciscans Upholding the Downtown Plan v. City & County of SF (2002) 102 Cal.App.4th 656, 678, quoting Sequoyah Hills Homeowners v. City of Oakland (1993) 23 Cal.App.4th 704, 718; Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1563-1566 [“State law does not require perfect conformity between a proposed project and the applicable general plan”]; see also Clover Valley, supra, 197 Cal.App.4th at p. 238 [“a given project need not be in perfect conformity with each and every general plan policy”]; 67 Ops.Cal.Atty.Gen. 75 (1984).) A project will only be found inconsistent if it conflicts with a general plan policy that is “fundamental, mandatory, and clear.” (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782.) Challenges concerning land use plan consistency are reviewed under the arbitrary and capricious standard of review. (SF Tomorrow v. City and County of SF (2014) 229 Cal.App.4th 498, 514 (SF Tomorrow).) Thus, courts “‘accord great deference to a local governmental agency’s determination of consistency’” with land use plans because a local agency has “‘unique competence to interpret those policies when applying them in its adjudicatory capacity.’” (Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163, 185 (SOHO) [an “‘agency must be allowed to weigh and balance the plan’s policies when applying them, and it has broad discretion to construe its policies in light of the plan’s purposes’”] (citations omitted); see also Naraghi Lakes Neighborhood Preservation Assn. v. City of Modesto (2016) 1 Cal.App.5th 9, 18 (Naraghi) [“[J]udicial review of consistency findings is highly deferential to the local agency.”]; SF Tomorrow, supra, 229 Cal.App.4th at pp. 513-516 [consistency determinations come “with a strong presumption of regularity”].) “It is, emphatically, not the role of the courts to micromanage these development decisions.” (SOHO, supra, 237 Cal.App.4th at p. 186 (citation omitted); A Local & Regional Monitor v. City of L.A. (1993) 12 Cal.App.4th 1773, 1794 [“[r]eview of merits or political wisdom is not permitted because planning is an ‘inexact science…’”].) “Such deference to the actions of the legislative body stems from well-settled principles of court respect for the separation of powers.” (SF Tomorrow, supra, 229 Cal.App.4th at p. 515.) Therefore, a city’s determination of consistency will be reversed only if no reasonable person could have reached the same conclusion based on the evidence before the governing body. (Id. at pp. 514-515.) P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 35 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The Floor Area Ratio standard set forth in the City’s 2008 General Plan is not applicable to the Project. Petitioner argues the Project is inconsistent with the City’s 2008 General Plan because the Project proposes a FAR in excess of the applicable General Plan FAR limit. Petitioner is incorrect. As demonstrated below, the Project is subject to the Twelve Bridges Development Agreement, which prohibits application of any subsequent development standards adopted by the City that limits or reduces the density or intensity of allowed development on the Project site below the level permitted when the Development Agreement was executed. As a result, the FAR established in the 2008 General Plan is not applicable to the Project site. As Petitioner’s General Plan consistency argument is premised on an inconsistency between the Project and provision of the City’s 2008 General Plan that is not applicable to the Project, Petitioner’s General Plan consistency challenge fails. a. The Project is subject to the Twelve Bridges Development Agreement. On April 14, 1998, the City of Lincoln entered into a Development Agreement concerning the TBSP project, which was recorded on May 7, 1998. (AR 11816-11865.) In 2013, the City approved a modification to the Development Agreement, which extended the term of Agreement through April 13, 2023. (AR 7938 [¶ 2].) The Development Agreement remains in effect today. b. Land use regulations in effect at the time the Development Agreement was entered control the authorized density and intensity of development on the Project site until expiration of the Agreement. A development agreement “‘is an enforceable contract between the municipality and the developer.’” (Center for Community Action & Env’l Justice v. City of Moreno Valley (2018) 26 Cal.App.5th 689, 696, quoting Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010) 191 Cal.App.4th 435, 442.) “Unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement.” (Gov. Code § 65866 (emphasis added).) P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 36 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For example, the later adoption of an amendment to the general plan, specific plan, or other zoning ordinances which would have the effect of precluding the developer from completing the development project in accordance with the development plan contemplated by the development agreement would not be effective and could not be applied to subsequent approvals or permits required for the development project. (Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1013 (Tuolumne) (emphasis added).) “This provision allows a developer to make long-term plans for development without risking future changes in the municipality’s land use rules, regulations, and policies.” (SF Tomorrow, supra, 229 Cal.App.4th at p. 528, fn. 28.) The Development Agreement includes a provision that prohibits the City from applying “any ordinance, resolution, rule, regulation, standard directive, condition or measure… that reduces the development rights or assurances provided by this Agreement.” (AR 11856 [¶ 2.3.5].) The Development Agreement explains that a conflict exists if, for example, a subsequent regulation would “limit or reduce the density or intensity of the Project, or any part thereof, or otherwise require any reduction in the total… square footage, floor area ratio, height of buildings, or number of proposed non- residential buildings or other improvements….” (AR 11857 [¶ 2.3.5(a)].) The 2008 General Plan was adopted by the City after the City adopted the Development Agreement in 1998 and constitutes a subsequently adopted land use plan. As a result, any standard set forth in the 2008 General Plan that limits or reduces the intensity of development permitted, or otherwise requires any reduction in square footage or floor area ratio, as compared to what was allowed on the Project site when the Development Agreement was entered, is not applicable to the Project. c. The FAR in the 2008 General Plan is inapplicable to the Project because it is a subsequent development standard that would limit the square footage of development allowed on the Project site. When the City adopted the Development Agreement, the Twelve Bridges Development Plan permitted development based on a lot coverage of sixty (60) percent in both in the Village Commercial (VC-1) and General Commercial (GC-1) zones. (AR 12160, 12162.) This 60 percent lot coverage standard established in the Development Plan permits a greater intensity and square footage of development than the 2008 General Plan’s 0.35 FAR. Specifically, as explained in the 2008 General Plan: P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 37 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 footage of the lot (or parcel). [¶] For example, on a lot with 10,000 net square feet of land area, an FAR of 1.00 will allow 10,000 square feet of gross building floor area to be built, regardless of the number of stories in the building (e.g., 5,000 square feet per floor on two floors or 10,000 square feet on one floor). (AR 8040.) In other words, the largest one-story building permitted based on an FAR of 0.35 would be 3,500 square foot on a 10,000 square foot property (i.e., 10,000 x 0.35). However, a lot coverage standard of 60 percent on that same 10,000 square foot lot would allow development of a 6,000 square foot single story building on the lot (i.e., 10,000 x 0.60). Thus, a 0.35 FAR would allow substantially less total development (3,500 square feet) than even the ground floor development allowed by the 60 percent lot coverage standard (6,000 square feet). As a result, the 2008 General Plan’s 0.35 FAR cannot be reconciled with the Twelve Bridges Development Plan’s 60 percent lot coverage standard. For this reason, pursuant to Government Code section 65866 and the Development Agreement, and as explained by City staff during the administrative process, the 2008 General Plan’s 0.35 FAR is not applicable to the Project. (AR 2234 [the development agreement “locks in development rights between the City and the developer to ensure future development rights”], 2235 [“the DA… locks-in development standards”], 2846 [explaining that the 2008 General Plan FAR is not applicable to the Project due, in part, to the fact that as a result “of the Development Agreement, the developer is allowed to develop based upon the vested rights as granted to them, which locks in development standards as outlined in the General Development Plan”], 2927 [inconsistent provisions of a general plan “that came out after this developer had already recorded and secured all of its entitlements” do not apply], 2943 [confirming that, after the Development Agreement expires, the then existing FAR will apply to projects approved thereafter]; Tuolumne, supra, 157 Cal.App.4th at p. 1013.) As the 2008 General Plan’s 0.35 FAR is not applicable to the Project, Petitioner has not, and cannot, demonstrate that the Project is inconsistent with any “mandatory policies of the applicable general plan.” (SF Tomorrow, supra, 229 Cal.App.4th at p. 518; see also Naraghi, supra, 1 Cal.App.5th at pp. 21-23 [rejecting general plan consistency challenge premised on compliance with non-mandatory design standards].) Therefore, Petitioner’s General Plan consistency challenge is meritless. P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M 38 RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the above reasons, the City and RPI respectfully request this Court deny the Petition and enter judgment in favor of the City and RPI. Dated: May 27, 2020 THOMAS LAW GROUP _____________________ Christopher J. Butcher Attorney for Respondent City of Lincoln and City Council of the City of Lincoln Dated: May 27, 2020 ELGUINDY MEYER & KOEGEL _____________________ Ryan Meyer Attorney for Real Party in Interest JG Land & Investment, LLC P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stop the Twelve Bridges Hotel v. City of Lincoln Placer County Superior Court Case No. SCV0044111 PROOF OF SERVICE I am a resident of the United States, employed in the City and County of Sacramento. My business address is 455 Capitol Mall, Suite 801, Sacramento, California 95814. I am over the age of 18 years and not a party to the above-entitled action. On May 27, 2020, I served the following: RESPONDENTS’ AND REAL PARTY IN INTEREST’S OPPOSITION BRIEF □ On the parties in this action by causing a true copy thereof to be placed in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail addressed as follows; or □ On the parties in this action by causing a true copy thereof to be delivered via Federal Express to the following person(s) or their representative at the address(es) listed below; or □ On the parties in this action by causing a true copy thereof to be delivered by facsimile machine number (916) 737-5858 to the following person(s) or their representative at the address(es) and facsimile number(s) listed below; or □ On the parties in this action by causing a true copy thereof to be hand-delivered to the following person(s) or representative at the address(es) listed below; or X On the parties in this action by causing a true copy thereof to be electronically delivered via the internet to the following person(s) or representative at the address(es) listed below: SEE ATTACHED SERVICE LIST I declare under penalty of perjury that the foregoing is true and correct and that this Proof of Service was executed this 27th day of May 2020, at Sacramento, California. Stephanie Richburg P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stop the Twelve Bridges Hotel v. City of Lincoln Placer County Superior Court Case No. SCV0044111 SERVICE LIST Donald B. Mooney Law Office of Donald B. Mooney dbmooney@dcn.org 417 Mace Blvd, Ste. J-334 Davis, CA 95618 Attorney for Petitioner: Stop Lincoln Twelve Bridges Hotel Ryan N. Meyer Elguindy Meyer Koegel rmeyer@emklawyers.com 2990 Lava Ridge Court, ste. 205 Roseville, CA 95661 Attorney for Real Party in Interest: JG Land & Investment, LLC P la ce r S up er io r C ou rt A cc ep te d th ro ug h eD el iv er y su bm itt ed 0 5- 27 -2 02 0 at 0 1: 11 :5 3 P M