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Albert v. City of Malibu

Court of Appeal of California
Sep 29, 2008
No. B202631 (Cal. Ct. App. Sep. 29, 2008)

Opinion

B202631

9-29-2008

TREVOR ALBERT, Plaintiff and Appellant, v. CITY OF MALIBU, Defendant and Respondent; EVANS CHILDRENS TRUST et al., Real Parties in Interest.

Law Offices of Frank P. Angel, Angel Law, Frank P. Angel, Erin Ganahl for Plaintiff and Appellant. Jenkins & Hogin, Christi Hogin, Gregg Kovacevich for Defendant and Respondent. Richards, Watson & Gershon, Steven H. Kaufmann, Ginetta L. Giovinco for Real Parties in Interest. Edmund G. Brown, Jr., Attorney General, Christina Tiedemann, Assistant Attorney General, John A. Sauerenman, Deputy Attorney General, for amicus curiae on behalf of neither party.

Not to be Published


Appellant Trevor Albert challenges the issuance of various coastal development permits and approvals, which allow the construction of two single-family estate homes and an access road on a large parcel of land in the hills of Malibu. The parcel of land is owned by the real parties in interest, Evans Childrens Trust and Rancho Topanga Enterprises, LLC (collectively referred to as Evans), and is divided into four lots with the dead-end access road from Pacific Coast Highway traversing all four lots.

The trial court denied Alberts petition for a writ of mandate brought under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) and the Malibu Local Coastal Program (MLCP). Contrary to Alberts contentions, we find that the CEQA environmental review was not improperly piecemealed, and that no substantial evidence supports a fair argument that the project has any significant environmental impacts. Thus, an environmental impact report (EIR) was not required in lieu of the mitigated negative declaration issued and approved by respondents City of Malibu and the City Council of the City of Malibu (collectively referred to as the City).

All further statutory references are to the Public Resources Code, unless otherwise indicated. References to Guidelines are to the statewide administrative guidelines which implement the provisions of CEQA. (Cal. Code Regs., tit. 14, § 15000 et seq.) The Guidelines are given great weight. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2.)

The MLCP regulates land use in the City of Malibu and was drafted by the California Coastal Commission (Coastal Commission). (§ 30166.5.) The MLCP is essentially a planning guide with rules to protect the areas resources and govern its development. The MLCP consists of the policies in Malibus Land Use Plan (MLUP; see www.coastal.ca.gov/ventura/malibu-lup-final.pdf) and the provisions in Malibus Local Implementation Plan (MLIP; see www.coastal.ca.gov/ventura/malibu-lip-final.pdf).

FACTUAL AND PROCEDURAL SUMMARY

Evans owns an 88-acre parcel of land in Malibu just east of Pacific Coast Highway and west of Carbon Mesa Road. The parcel of land consists of four lots ranging in size from approximately 17 to 30 acres. The property has some naturally, already disturbed flat areas among the bulk of the land which consists of rolling slopes and drop-offs covered with vegetation. The entire property is mapped in the MLCP as an Environmentally Sensitive Habitat Area (ESHA), as is much of Malibu. The gated dirt access road has existed at least since the 1950s and traverses most of the width of the property, from the southernmost point near Pacific Coast Highway and then up into the hills in a northerly direction through the property.

The property is zoned Rural Residential, which permits one single family residence to be built on each of the four lots. (Malibu Mun. Code, §§ 17.08.010, 17.08.020.) Under the MLCP, the development cannot exceed 10,000 square feet, exclusive of any fuel modification area related to fire safety requirements. (MLIP, §§ 4.7.1, 2.1.)

In February of 2005, Evans submitted applications for the challenged project. It proposed the following for the project: (1) construction of an 8,649-square-foot, one-story, single-family residence with ancillary structures, to be located on the 22.36-acre lot closest to Pacific Coast Highway ("22303 PCH"; also identified as "lot 3"); (2) construction of an 8,271-square-foot, two-story, single-family residence with ancillary structures, to be located on the 29.9-acre lot behind 22303 PCH, with the address 22307 Pacific Coast Highway ("22307 PCH"; also identified as "lot 1"); and (3) improvements required by fire department standards to the entire access road, which is 3,464 feet long and traverses all four lots. Lots 1 and 3 are on opposite ends of the road. The two houses were sited on flat sections of lots 1 and 3 where vegetation was already sparse.

Due to time and financial considerations, Evans waited until July of 2005 to submit applications to develop two other single-family residences, both on the eastern side of the ridge, one on lot 2 and the other on lot 4. In August, however, those applications were rejected by the City as "incomplete." Following objections raised by neighbors, a formal agreement ensued pursuant to which all objections were withdrawn and the proposed residences on lots 2 and 4 were to be relocated so that they would not be visible from the neighbors residences. Evans then ceased pursuing the applications for lots 2 and 4, pending revised site and design plans.

Meanwhile, the City continued to process the applications pertaining to lots 1 and 3. In August of 2005, following a public hearing, the Citys Environmental Review Board recommended reducing the fuel modification zone permitted under the MLCP to preserve additional habitat and a more natural appearance. Evans agreed to these revisions, and the project applications were then deemed complete.

In December of 2005, the City prepared and circulated an initial study and negative declaration. Evans submitted extensive expert documentation, including a comprehensive biology study deemed comparable to that in the biological resources section of an EIR, and several geology reports totaling hundreds of pages. The project was reviewed by the Citys biologist, the Citys geologist, an environmental health specialist, and the Los Angeles Fire Department, all of whom found the project acceptable.

In February of 2006, the Citys Planning Commission held a public hearing on the project at which Albert and others spoke. Following the hearing, the Planning Commission adopted resolutions approving the project. In response to concerns raised during this process by the National Park Service and the Santa Monica Mountains Conservancy, Evans voluntarily agreed to dedicate a trail easement and a buffer easement for use with the planned Coastal Slope Trail. It also agreed to install a privacy landscape screen on one of the lots (22307 PCH) to minimize the view seen by private property owners residing on Carbon Mesa Road. However, a portion of one of the two houses approved for development could be seen from the rear of Alberts residence.

In March of 2006, Albert and others appealed the decision of the Planning Commission to the City Council. The following month, the City Council held a public hearing during which it heard testimony from Albert and other members of the public. At the conclusion of the hearing, the City Council denied the appeals, upheld the Planning Commissions approval of the project, and adopted resolutions with extensive findings in support of the Citys decision.

In May of 2006, Albert filed a petition for a peremptory writ of administrative mandamus seeking to overturn the Citys approval of the project. Litigation ensued, and in July of 2007 the trial court denied Alberts petition for writ of mandate and issued a statement of decision in support of its ruling. Albert appeals.

DISCUSSION

I. CEQA requirements and the standard of review.

"If the substantive and procedural requirements of CEQA are satisfied, a project may be approved even if it would create significant and unmitigateable impacts on the environment." (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197.) In an action challenging compliance with CEQA, an appellate court independently reviews the trial courts judgment and is not bound by its conclusions. (Ibid.) In conducting this de novo review of the administrative record, "inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (§ 21168.5.)

CEQA is "to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.) CEQA provides that to the extent a project "may have a significant effect on the environment," an EIR is required. (§ 21151, subd. (a); see Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 390.) On the other hand, CEQA procedures mandate that when an initial study reveals that a proposed project "would not have a significant effect on the environment, the lead agency shall adopt a negative declaration to that effect." (§ 21080, subd. (c); see Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 330-331.)

Under CEQA, a "`Significant effect on the environment means a substantial, or potentially substantial, adverse change in the environment." (§ 21068; see also Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927.) "The determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data. An ironclad definition of significant effect is not always possible because the significance of an activity may vary with the setting." (Guidelines, § 15064, subd. (b).)

Generally, an EIR is required when "`substantial evidence supports a fair argument that a proposed project "may have a significant effect on the environment."" (Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at p. 927.) Substantial evidence under CEQA "includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact." (§ 21080, subd. (e)(1).) The Guidelines define substantial evidence as "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate . . . does not constitute substantial evidence." (Guidelines, §§ 15384, subd. (a), see also Guidelines, § 15304; accord Mejia v. City of Los Angeles, supra, 130 Cal.App.4th at p. 332.)

The fair argument test sets a low threshold for requiring the preparation of an EIR. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 84.) "Application of the `fair argument test is a question of law for our independent review. [Citations.] We review the trial courts findings and conclusions de novo [citation], and do not defer to the agencys determination [citation], except on `legitimate, disputed issues of credibility [citations]." (Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 580-581; accord, Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1317-1318.)

Our task in reviewing the agencys decision "is not to pass upon the correctness of a public entitys conclusions, but only upon the sufficiency of an EIR or negative declaration as an informative document. [Citations.] In doing so, we look to see whether policy makers have been adequately informed of the consequences of their decisions . . . . As a result, we must be satisfied that the particular governmental agency involved has fully complied with the procedural requirements of CEQA, because only in this way `can a subversion of the important public purpose of CEQA be avoided . . . . [Citation.]" (Long Beach Sav. & Loan Assn. v. Long Beach Redevelopment Agency (1986) 188 Cal.App.3d 249, 259.)

II. The City described and evaluated the project consistent with CEQA requirements, and there was no improper piecemeal review.

Albert contends that the City failed to proceed in the manner required by CEQA because it piecemealed environmental review of the overall project. However, the claim that the City improperly segregated review of the project, consisting of the development of lots 1 and 3 and the access road, from review of the potential future development of lots 2 and 4 is unavailing.

The CEQA mandate is to avoid a piecemealed environmental impact review: "The lead agency must consider the whole of an action, not simply its constituent parts, when determining whether it will have a significant environmental effect." (Guidelines, § 15003, subd. (h).) The purpose of the rule is to prevent "chopping a large project into many little ones—each with a minimal potential impact on the environment—[but] which cumulatively may have disastrous consequences." (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283-284; see Guidelines, § 15355.) Thus, the cumulative environmental impacts of a development may not be "disguised or minimized by filing numerous, serial applications." (Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th 1333, 1346 (Arviv).) "Where an individual project is a necessary precedent for action on a larger project, or commits the lead agency to a larger project, with significant environmental effect, an EIR must address itself to the scope of the larger project." (Guidelines, § 15165.)

Indeed, as used by CEQA, the term "project" is broadly defined. A project entails "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment . . . ." (§ 21065.) It means "the whole of an action" (Guidelines, § 15378, subd. (a)), not "each separate governmental approval" when the whole of an action depends on several such concurrent or sequential approvals. (Guidelines, § 15378, subd. (c).)

In the present case, however, there were no dependent approvals. The approved project was not a necessary precedent for action on a larger project, nor did the approved project commit the City to a larger project. (See Guidelines, § 15165.) Also, the City actually did take into consideration the cumulative impacts that could result from future projects, to the extent such a project was a "reasonably foreseeable probable future" project. (Guideline, § 15355, subd. (b).)

The essence of Alberts complaint about piecemealing is that because the City subsequently received preliminary applications (which were later withdrawn) for development of lots 2 and 4, and because those applications contained a certain degree of detail (proposed site plans, estimated grading calculations, etc.), the City violated CEQA by not defining and analyzing the project at issue with those precise details reflected in the preliminary description for lots 2 and 4. However, it would have been inappropriate for the City to have analyzed the preliminary designs for lots 2 and 4 as though they represented the final details of a fleshed-out project Evans had committed to build. As the City aptly notes, the projects for lots 2 and 4 were in their very early stages, still in the preliminary project shaping phase and subject to various design modifications. For example, the projects for lots 2 and 4 could well be modified to address code compliance and environmental impact issues, or changed by the developer to accommodate the vagaries of design and style or financial constraints.

It would have been premature for the City to have engaged in a full-blown CEQA study of the details of a preliminary project proposal that had not yet gone through the project shaping process and had not yet yielded a final project proposal to which the applicant had committed. Here, the design details for lots 2 and 4 were akin to a tentative or first draft. The design details were still so preliminary and in such a state of flux that they could not at that time properly describe a "reasonably foreseeable" (Guidelines, § 15355, subd. (b)) future project. What the City did properly and reasonably anticipate, however, were the broad parameters of the project—i.e., that someday lots 2 and 4 would be developed, and on each lot would be a substantial single-family residence on a building pad not yet selected but sited on a 10,000-square-foot development area (because of the constraints of the ESHA designation). Under the facts and circumstances of this case, that was all that was at that time "reasonably foreseeable" as to lots 2 and 4. (See Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 168-169.)

Thus, Alberts piecemealing argument fails to fully appreciate the nature of the Citys basic planning approval process. Also, none of the potential horrors associated with improper project segmentation are present here. For example, because the project as defined in the initial study indeed contemplated that two additional legal lots would be served by the access road, the development potential of the other two lots was not in any manner concealed or ignored. The Citys decision makers were completely aware of the development potential of lots 2 and 4 and gave due consideration to them through their questioning, discussion and deliberation of the project.

For example, at the meeting of the Citys Planning Commission, at which members of the public were present and spoke, the planning manager explained that the applications for lots 2 and 4 were not complete, and that the applicant was relocating the structures on those sites. Also, the city biologist explained that the suggestion of clustering the structures—including "the other two properties"—closer together would actually be more environmentally damaging to native habitat because the sites as proposed were already disturbed and would cause less of an impact. And, the city geologist indicated at the meeting that his analysis covered "not just the two developments that were looking at, [but] all four of the developments. The other two are still in progress right now." Similarly, members of the public were present and spoke at the meeting of the City Council when discussion ensued about the four lots and the notion of piecemealing, with the planning manager explaining that only two of the applications were complete, and that the other two projects "are currently being redesigned."

The situation is thus unlike Arviv, supra, 101 Cal.App.4th 1333, 1341, 1346, where the developer misrepresented his project as seven single-family homes when, in fact, he intended all along to construct 21 homes on the neighboring properties he owned. No such obfuscation or deceit has occurred here. Both the Planning Commission and the City Council were well aware of the developers intentions with respect to all four lots at the time the decisions were made on the project.

The situation is more analogous to Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, where the court rejected an argument that the public entity should have analyzed the cumulative impacts of one project, a contractors service center, together with a proposed adjoining mini-storage complex. The court noted that the initial study revealed that the projects would share a driveway and a drainage easement, and found that there was adequate factual support for the public entitys finding that there were no significant cumulative effects from the two projects, which were essentially separate even though they shared some features. (Id. at pp. 1357-1358.)

Accordingly, we find no improper piecemealing of the project. Therefore, contrary to Alberts assertion, the City is not required either to prepare a new initial study to assess whether the project must undergo an EIR review, or simply to proceed now with an EIR and without a new initial study. The City did not abuse its discretion under CEQA by defining the project to include only the residences on lots 1 and 3 and the access road.

III. No substantial evidence supports a fair argument that the project has any significant, unmitigated environmental impacts, and thus an EIR was not required.

An EIR must be prepared if substantial evidence supports a fair argument that "any aspect of the project, either individually or cumulatively, may cause a significant effect on the environment . . . ." (Guidelines, § 15063, subd. (b)(1); see also Guidelines, § 15064, subd. (h).) The initial study provides "documentation of the factual basis for the finding in a negative declaration that a project will not have a significant effect on the environment." (Guidelines, § 15063, subd. (c)(5).) "If the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record." (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.)

"However, the ultimate issue is not the validity of the initial study, but rather the validity of the lead agencys adoption of a negative declaration [instead of an EIR]. Even if the initial study fails to cite evidentiary support for its findings, `it remains the appellants burden to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact. [Citation.] `An absence of evidence in the record on a particular issue does not automatically invalidate a negative declaration. "The lack of study is hardly evidence that there will be a significant impact." [Citation.] [¶] An agencys adoption of a negative declaration may be based on the initial study `together with any comments received during the public review process. (Guidelines, § 15074, subd. (b).) Thus, `where the agency decision is based on more information than the initial study, the additional information may cure any defects in the initial study." (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1379.)

Contrary to Alberts contention, the record in the present case reveals no substantial evidence to support his three different "fair arguments" seeking to justify the need to prepare an EIR. In fact, the City and Evans presented abundant evidence demonstrating that the project will not cause any significant, unmitigated impacts regarding biological factors (i.e., ESHA), geological issues, or MLCP consistency, as discussed below.

A. No substantial evidence of any significant unmitigated biological impacts.

Albert focuses, in part, on the potential impacts to the Catalina mariposa lily. Although the project site is located in a mapped ESHA area, the Catalina mariposa lily does not qualify as ESHA under MLIP section 4.3B. Also, there are no known federal or state endangered or threatened species located on the project site.

The 2003 biology study to which Albert refers actually contemplated the presence of the Catalina mariposa lily and stated that its occurrence potential was "high." The 2003 study proposed four measures to mitigate impacts to the lily and concluded that "this taxon can be translocated outside of proposed impact areas during the appropriate season." Significantly, the subsequent 2005 biology study also noted that these lilies do "not have a formal state or federal listing status[, and] the expected loss of a relatively small, but undetermined number of individuals would not likely constitute a CEQA-significant impact, nor amount to a measurable impact to the species within southern California or their overall range."

The 2005 biology study remarked that the lilies were considered "of limited distribution" and would be impacted by grading of the new access road and driveways, but tellingly revealed that the lilies are "very common in the Santa Monica Mountains, especially following fires." The 2005 study concluded that "the proposed development project is designed to be highly compatible with biotic resources present on the site by maximizing existing disturbed areas present at each proposed building pad and utilizing existing dirt roads. Impacts to vegetation resources are minimized on the site." Hence, the biology studies reveal no substantial evidence supporting a fair argument of any significant environmental impact.

Also, "mere argument, speculation, and unsubstantiated opinion, even expert opinion, is not substantial evidence for a fair argument." (Pocket Protectors, supra, 124 Cal.App.4th at p. 928; see § 21080, subd. (e)(2).) Thus, there is no merit to Alberts reliance on the unsupported conclusory remark of a Coastal Commission planning supervisor (Barbara Carey) in her letter to the Citys Planning Manager. This staff member stated in her letter that the removal or thinning of several acres of habitat area for the fuel modification for each residence, as well as the removal of vegetation and grading within the ESHA for road widening, "will certainly result in significant impacts" to the ESHA. However, because her speculative opinion was erroneously premised on inaccurate figures of anticipated habitat removal, it could not constitute substantial evidence. (See Citizens Com. to Save Our Village v. City of Claremont (1995) 37 Cal.App.4th 1157, 1170-1172; Gentry v. City of Murrieta, supra, 36 Cal.App.4th 1359, 1422-1423.)

The staff members erroneous premise was revealed by the city biologist (Dave Crawford) at the Citys Planning Commission meeting. The biologist provided his expert analysis in response to the staff members letter. He explained that the home sites would be confined to the minimal economically viable use standards set forth in the MLCP (10,000 square feet of development area) and that, together with the mandatory fuel modification requirements, the total acreage of native vegetation disturbance would be 3.76 acres at 22303 PCH and 2.42 acres at 22307 PCH. However, he further explained that, although the total combined area of disturbance would be 6.18 acres, native habitat would remain on 5.5 of those acres because it falls within a zone which requires only thinning, not clearing. Hence, the biologist concluded that the loss of any native vegetation would be "less than significant" under CEQA.

We also note that correspondence from another biologist (one employed by Evans) emphasized that "the applicant has selected the least environmentally damaging location . . . because these areas have previously been affected by past disturbances, and have subsequently been invaded by non-native weedy plant species."

Further undermining the Coastal Commission staff members opinion is the fact that it was inconsistent with the MLCP, which the Coastal Commission itself had certified. As specified in the very definition of a "development area" (MLIP, § 2.1), the MLCP expressly permits fuel modification "required by the Los Angeles County Fire Department . . . beyond the limits of the approved development area."

Nonetheless, we note that Evans agreed to recommended reductions to the fuel modification zones to preserve additional habitat and to retain a more natural appearance. Consequently, as aptly observed by the trial court, only .68 acres out of approximately 52.31 acres would be eliminated for the fuel modification zones, which roughly amounts to 1 percent of the native vegetation on the two parcels. Similarly, approximately 1.5 acres of native vegetation would be removed for the road improvements, which represents l percent of the entire 88-acre propertys native vegetation.

Accordingly, there is no substantial evidence in the record to support the assertion that the project may have any significant biological impacts, and the City was thus not required to prepare an EIR.

B. No substantial evidence of any significant geological impacts.

According to Albert, an EIR was required because the evidence supports a fair argument of potentially significant impacts on people and structures due to seismic and landslide hazards, particularly as to the access road. We disagree.

The city geologist thoroughly inspected the entire site and analyzed all of the reports and data for all four lots, including substantial information from the early 1970s reflecting numerous borings and trenches. He concluded that there was no evidence whatsoever of any deep, large-scale slide on the property and no threat of any catastrophic failure. Evidence to the contrary is based on the suggestion in a 1989 report that a subsurface investigation should go down over 100 feet below the surface. However, such suggestion does not constitute substantial evidence. (See Citizens Com. to Save Our Village v. City of Claremont, supra, 37 Cal.App.4th at pp. 1170-1172.)

The city geologist reviewed and noted over 25 geology reports, accompanying maps, and County review sheets, including various reports dating as far back as 1974, and nine reports prepared specifically for this project. These reports concluded that the building area is "grossly stable."

The city geologist further explained that each building site in the project was trenched for fault rupture hazard (based on traces of a coastal fault mapped by the United States Geological Survey), and that there was no evidence of any active fault across the building sites. None of the boring logs, nor any of the other evidence reviewed, indicated any deep feature that had failed toward the Pacific Coast Highway.

The project specific reports also evaluated the stability of the access road. Each analysis concluded that the proposed access road was in an area that is "grossly stable," and that the access road could be adequately maintained through an owner maintenance agreement, an opinion shared by the city geologist, as well as Evans geologist, civil engineer, soils engineer, and structural engineer.

Albert contends, however, that despite the extensive geological reviews and the imposition of certain conditions, the Citys action constituted improper deferred mitigation. According to Albert, critical geological data is lacking, and thus the question of whether the proposed access road will provide continuous service to the residences "remains unsolved." Specifically, Albert complains that a study should have revealed all proposed cut and fill areas (with their specific heights and depths), that the geotechnical impacts of grading the access road have not been addressed, and that those concerns were improperly deferred to the postapproval grading plan check stage.

Alberts contention is premised on a fundamental misunderstanding of the planning approval process and on the faulty assumption that it is possible to have absolutely all information available prior to the planning approval stage. As the City properly points out, it simply was not the function of the Planning Commission or the City Council to review and approve detailed geological engineering plans for the development. That is the function of the Citys expert, its geologist.

The City proceeded in a manner completely consistent with the process required in MLIP section 9.4, for a new development located in or near an area subject to geological hazards. The record is replete with geological reports prepared by highly qualified experts. As required by the process outlined in the MLIP, the ultimate recommendations of the geotechnical engineer and the Citys geotechnical staff were necessarily deferred because they will be incorporated into final design and construction plans, with those plans to be reviewed and approved for compliance by the certified engineering geologist or other appropriate geotechnical personnel. (MLIP, § 9.4, subd. (B).)

If, during the compliance review and approval process, the access road becomes unfeasible to construct as proposed because of an adverse discovery during construction, a permit amendment or an entirely new permit may be required for any substantial design changes. (See MLIP, § 9.4, subd. (C).) By analogy, for example, an archeological study based on historical research and on a site inspection may reveal no evidence of any cultural significance, but discoveries during subsequent construction at the project site may impact the nature or viability of the final project. Yet, of course, under such circumstances, a full-scale archaeological dig would not be required prior even to the Citys approval of the project. So, too, here, the geological information gathered and reviewed did not trigger the need for more extensive inquiry, though an adverse discovery during construction could require a new permit or design changes.

Accordingly, there is no substantial evidence supporting a fair argument that the project has any significant, unmitigated geological environmental impacts.

C. No substantial evidence that the project conflicts with the MLCP.

Albert contends that an EIR was required because substantial evidence in the administrative record supports a fair argument that the approved development will conflict with mandatory MLCP policies and regulations. We find no such conflict.

The touchstone for the necessity of an EIR is whether substantial evidence supports a fair argument that some aspect of the project "may cause a significant effect on the environment." (Guidelines, § 15063, subd. (b)(1).) An initial study of a project must contain a brief examination of the projects consistency with "existing zoning, plans, and other applicable land use controls." (Guidelines, § 15063, subd. (d)(5).) However, an inconsistency between a project and the Citys general plan or local coastal program "does not in itself mandate a finding of significance" of an effect on the environment under either section 21083, subdivision (b) or Guidelines section 15056, subdivision (a). (Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1207.) Rather, "[i]t is merely a factor to be considered in determining whether a particular project may cause a significant environmental effect." (Ibid.)

In the present case, Albert complains that although the initial study includes sweeping conclusions of consistency with the MLCP, the development is purportedly inconsistent with various policies in the MLUP and the MLIP.

General land use policies are set forth in the certified MLUP; the land use plan is defined in the Coastal Act as "the relevant portions of a local governments general plan." (§ 30108.5.)

The MLIP implements the policies of the MLUP. (See § 30513.)

MLUP policies 3.10, 3.12, and 3.14; and MLIP sections 4.7 and 4.7.1.

Pursuant to MLUP policy 3.14, if it is not feasible for a new development to eliminate all impacts to ESHA, then an alternative shall be selected that results in the least significant impacts. MLUP policy 3.12 and MLIP sections 4.7 and 4.7.1 specifically permit an "allowable development area" of 10,000 square feet (or 25 percent of the parcel size, whichever is less), for "parcels where all feasible building sites are ESHA or ESHA buffer," such as the project here, which lies entirely within an ESHA.

Evans takes the position that the Coastal Commissions selection of a 10,000-square-foot allowable development area in adopting the MLCP is equivalent to a determination that 10,000 square feet is reasonable per se, thus requiring the City to approve a development project that complies with this numerical standard, without inquiring whether it is the minimum necessary to avoid an unconstitutional taking without just compensation. On the other hand, Albert contends that there is no entitlement to a 10,000-square-foot development area, and that the Coastal Commission only set a ceiling or a maximum development size, which the City had a duty to reduce, to the degree feasible by site conditions, to protect coastal resources.

We agree with the middle-ground position taken by amicus curiae, the Coastal Commission, which drafted the MLCP and thus can provide meaningful input into its interpretation. (See Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 12-13 (Yamaha).) As the Coastal Commission aptly notes, although MLIP section 4.7.1 provides generally that the City "shall" allow a development area of 10,000 square feet if the parcel is wholly ESHA, MLIP section 4.7 also characterizes the 10,000-square-foot development area as a "maximum" standard, thus acknowledging that other MLCP provisions may result in reductions in the size of the development area.

The MLCP arose in an unusual context. Ordinarily, the local agency located within the coastal zone is responsible for preparing its own local coastal program to regulate development consistent with the Coastal Act, and then its local coastal program is certified by the Coastal Commission. (§§ 30200, subd. (a), 30500, 30510, 30512, 30513.) Because the City did not promptly prepare a local coastal program, legislation ensued which authorized the Coastal Commission to craft and certify the Citys local coastal program with a land use plan and implementing ordinances. (City of Malibu v. California Coastal Com. (2004) 121 Cal.App.4th 989, 992, 994, 998.) Nonetheless, the City notes that the resulting MLCP is actually a combination of both the Citys preexisting Municipal Code and original work by the Coastal Commission. Also, after the Coastal Commission certified the MLCP, the City immediately assumed responsibility for implementing it (§ 30166.5), and thus has some expertise in interpreting it. (Yamaha, supra, 19 Cal.4th at p. 12.)
The MLCPs unusual genesis is relevant because courts typically defer to a local governments interpretation of its general plan because it authored the plan. (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1192.) Here, however, the MLCPs hybrid nature means that both the Coastal Commission, which largely authored it, and the City, which implements it, are entitled to some deference in their interpretation of the plan.

MLUP policy 3.10 also acknowledges some flexibility. MLUP policy 3.10 recognizes that if the application of the ESHA protection policies would result in the taking of private property, then a use inconsistent with ESHA is permissible, as long as it is consistent with other MLCP policies and is the minimum amount of development necessary to avoid a taking. Similarly acknowledging flexibility in development size, both MLUP policy 3.12 and MLIP section 4.7.1 allow for the size reduction of the development area, or even complete denial of the development, if necessary to avoid a nuisance. (See First English Evangelical Lutheran Church v. County of Los Angeles (1989) 210 Cal.App.3d 1353, 1366, fn. 10, discussing nuisance exception to compensation for a taking.)

Also, a general goal stated in MLUP policy 4.2 is that "[a]ll new development shall be sized, designed and sited to minimize risks to life and property from geologic, flood, and fire hazard." Likewise, MLIP section 9.1 proclaims that the purpose and intent of the MLCP and MLIP are "to insure that new development shall minimize risks to life and property in areas of high geologic, flood, and fire hazard," and to permit measures so that a development is "sited and designed" to minimize those risks.

Thus, as explained by the Coastal Commission, there are conditions—not present here — where the MLCP could properly require that the development size be reduced. In other words, where a parcel is entirely in an ESHA, the MLCP does not create an absolute entitlement to a 10,000-square-foot development area in all circumstances.

Accordingly, while the City properly granted development areas of that particular size, under different circumstances not present here, other provisions of the MLCP may warrant the City in reducing the size of the development area. Nonetheless, it is apparent that the Coastal Commission has already envisioned the type of situation present here and, as reflected in its MLCP, has already determined that a 10,000-square-foot development area in an ESHA (exclusive of the fuel modification area mandated by the county fire department) represents an acceptable threshold of impact to the ESHA (see § 30240)—a calculated balance between the overarching goals of habitat preservation and constitutionally protected property rights.

MLUP policy 3.39.

MLUP policy 3.39 requires that an environmental review board "shall consider the individual and cumulative impacts of the development on ESHA, define the least environmentally damaging alternative, and recommend modifications or mitigation measures to avoid or minimize impacts." According to Albert, by piecemealing the environmental review, the City improperly precluded its Environmental Review Board from considering the cumulative ESHA impacts and the environmentally least damaging alternative to the overall project.

However, the Citys Environmental Review Board did analyze different alternatives to determine the least environmentally damaging alternative for siting a residence on each lot. Its report in August of 2005 concluded: "Other alternative building locations on the property are highly constrained by steep slopes, have undisturbed ESHA, or have greater visibility from PCH. Given the factors above, the proposed project is the least environmentally damaging alternative." As the City Council explained in its findings, "Due to environmental constraints on the property, and since there is an already disturbed area on the site where the structure is to be located, the proposed location is the least environmentally damaging feasible alternative." The City Council also noted that the project "will not result in significant cumulative impacts because the projects incremental effect is not cumulatively considerable."

MLUP policy 3.42.

As stated in MLUP policy 3.42, "new on-site access roads shall be a maximum of 300 feet or one-third the parcel depth, whichever is less," with longer roads permitted only upon recommendation of the environmental review board. However, the projects access road has existed since sometime prior to 1958, and therefore does not constitute a "new" road within the meaning of the MLUP. Instead, the existing road is being widened, realigned and improved to comply with the Los Angeles County Fire Departments requirements and safety standards.

MLUP policies 6.5, 6.6, 6.7, 6.8, 6.9 and 6.20; and MLIP sections 6.5 and 6.7.

These various MLCP provisions require a development to be sited and designed to minimize adverse impacts on scenic areas from scenic roads or public viewing areas to the maximum extent feasible. Alberts complaint is premised principally on the assertion that evidence in the administrative record supports the conclusion that both approved residences sit astride a significant ridgeline. He points to such a description in a letter to the City from a company representing residents of Carbon Mesa Road, as well as to a remark from a National Park Service representative who described lot 1 as "on the knoll." Also, a site photograph and a Google Earth aerial view depicting the site in relation to the coastline show obviously hilly terrain.

However, as indicated in MLIP section 6.2, the scenic and visual protections in the various MLCP provisions reflect hillside development standards that only "apply to properties where the project site includes any area of slope over 20 percent." As noted by the Citys staff, who visited the site and reviewed pertinent maps, "[t]he project site does not include any areas with 20 percent slope," and the residences would be constructed on a flat portion of the site. Thus, the ridgeline development standards are not applicable to the proposed project, and the project as approved is not inconsistent with the cited MLCP provisions.

Moreover, the proposed houses were story-poled and, as the City Council found, based on the observations of the Citys planning staff, homes would be "only minutely visible from PCH and Surfrider Beach." The homes would appear against a panorama of existing homes, thus further minimizing their impact. To the extent the homes might be slightly visible from the planned but not yet implemented Coastal Slope Trail, the high elevation of the trail would result in the homes appearing as minor objects, similar to the appearance of other already existing homes. And, substantial documentary evidence supports the conclusion that any effort to re-site and cluster the homes would only result in greater view impacts and adverse impacts to the ESHA.

Finally, in an argument related to the above contentions and equally unavailing, Albert perfunctorily asserts that the City abused its discretion under the Coastal Act (§ 30000, et seq.) and the MLCP because the approved development is inconsistent with fundamental and mandatory MLCP policies and regulations. For the reasons already discussed, there is no fair argument establishing any inconsistency with identified policies and regulations, and the Planning Commission honored the Citys zoning ordinances, which promote the protection of all its citizens.

Accordingly, for all the above stated reasons, the trial court properly denied Alberts petition for a writ of mandate.

DISPOSITION

The judgment is affirmed.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.


Summaries of

Albert v. City of Malibu

Court of Appeal of California
Sep 29, 2008
No. B202631 (Cal. Ct. App. Sep. 29, 2008)
Case details for

Albert v. City of Malibu

Case Details

Full title:TREVOR ALBERT, Plaintiff and Appellant, v. CITY OF MALIBU, Defendant and…

Court:Court of Appeal of California

Date published: Sep 29, 2008

Citations

No. B202631 (Cal. Ct. App. Sep. 29, 2008)