Opinion
A150043
11-06-2017
DAVID COURY, Plaintiff and Appellant, v. MARIN COUNTY et al., Defendants and Respondents; PARISH-MARTIN, LLC, et al., Real Parties in Interest and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. No. CV1502686)
David Coury (Coury) appeals the trial court's denial of his petition for a writ of mandate. (Code Civ. Proc., § 1094.5.) The petition challenged the decision of Marin County's Planning Division, Planning Commission, and Board of Supervisors (the County) to approve a design review and sign review application. The application sought permission to renovate an existing, vacant building to operate a Good Earth Natural Foods, Inc. (Good Earth) grocery store in the Shoreline Shopping Center, located at 201-204 Flamingo Road in Mill Valley, California, at Tam Junction.
Unless noted, all further statutory references are to the Code of Civil Procedure.
First, Coury contends the County should have required a new use permit for a restaurant within the grocery store. Second, Coury argues the County's approval was inconsistent with the transportation policies in Marin's Countywide Plan. Third, he contends the application did not qualify for a California Environmental Quality Act (CEQA) categorical exemption. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We begin with a review of the building's permit history, the application to renovate the building, and Coury's opposition to the approval of the application.
A. The Building's Permit History
In 1954, Marin County's Planning Commission issued a building permit for the construction of a "market." This building permit was consistent with the "C-2-H" zoning regulation that applied to the site, which allowed for commercial uses. In 1960, the Planning Commission issued a building permit to expand the building into a "Neighborhood Shopping Center." The building currently occupies approximately 35,000 square feet in the Tam Junction area of Marin County. This building and others in its vicinity are known as the "Shoreline Shopping Center."
"Since the original development of the site, the zoning changed from C-2-H to RMPC in 1978 and a variety of discretionary Use Permit, Design Review, and Sign Permit land use entitlements and ministerial building permits have been issued for various retail and service uses such as a restaurant, a cleaner, a nursery, and a dentist's office." An "RMPC" designation allows for "commercial uses." In 1984, the Marin County Deputy Zoning Administrator approved the market's first use permit, which allowed "the existing market to operate with extended grocery store hours." The use permit application stated: "This property is operating as a Grocery Supermarket, and has been so operating for many years."
In 1987, the Planning Commission approved "the Cala Foods, Inc., Use Permit to extend hours of operation to 24 hours a day and allow establishment of a recycling center." The resolution approving the use permit noted "[t]he project . . . provides more convenience to members of the community by increasing operation hours at the largest purveyor of groceries in Tamalpais Valley." In 1995, the Marin County Deputy Zoning Administrator approved the establishment and operation of a "beverage container redemption center associated with the Bell Market located in the Shoreline Shopping Center . . . ."
In 1998, the Marin County Community Development Agency approved modifications to the existing market, including a 183-square-foot addition to the storefront for a new bank, and "new siding, an outdoor dining area, and a 30-foot tall entry vestibule with new signage." After DeLano's IGA Market closed in 2010 or 2011, the County issued a use permit renewal "to allow the retail grocery store to continue to operate until October 31, 2015."
B. The Design Review and Sign Review Application
Parish-Martin, LLC ("Parish-Martin") owns the building. In October 2014, a representative of Good Earth and/or Parish-Martin submitted a design review and sign review application to renovate the building and establish a Good Earth market. The application noted the existing building had a use permit dating back to 1984, and the total building footprint was approximately 27,228 square feet.
The renovation involved new "exterior building windows and [wood] treatments, new glass storefronts, changes to the entry canopy, addition of a corner cupola, and new roofing." The "removal of the pop-out area of the bank" would reduce the footprint of the building by 61 square feet, and the "[m]ezzanine store operations area" would be reduced by 4,022 square feet. The "new northwest corner cupola (32ft high) will replace the current entry structure (30ft high) on the west side. [Code Limit is 35ft high]. There are no changes to the current setbacks nor the height of the parapet wall." Within the store, there would be "full service operating departments" including "Bakery & Juice Bar; Cheese & Wine/Beer; Deli, Hot Food, and To-Go Meals; Meat & Fish Shoppe; Produce, Floral, and Bulk Foods; Vitamins & Naturals; and, Central Store Groceries."
Outside, the renovation project included "additional landscaping and a reconfigured parking layout." Although the parking requirement was "grandfathered" at 116 spaces, "the parking re-alignments and stripping will provide 139 spaces." There would be "no grading on the site nor changes to the current storm drainage system," but parking lighting fixtures would be removed and replaced. Landscaping would be added to the parking lots and the "outdoor seating areas." A new 1,500-gallon grease interceptor would be installed in an alleyway. The application stated the Shoreline Shopping Center had nine tenants, and proposed new signage for the Center.
C. The Planning Division's Approval
In February 2015, the County's Planning Division approved the application with conditions. The Planning Division found "[t]he project is designed to enhance the architectural style of the existing mixed-use commercial building . . . . [B]ecause the project would not expand the existing footprint of the building other than the proposed cupola and new storefronts, the project's modest scale would be consistent with the overall mass and scale of the building, thus maintaining its existing relationship with the surrounding neighborhood." The Planning Division further found the project "would be consistent with the Countywide Plan as an infill commercial project in a developed general commercial neighborhood." The Planning Division determined the project was categorically exempt from CEQA because "it entails the remodel to an existing structure and new signs that would not add any new floor area to the project site."
D. Coury's Appeal to the Planning Commission
Coury appealed the Planning Division's approval of the application to the Planning Commission. Coury argued the CEQA exemption was inapplicable, CEQA exceptions applied, and the project would increase traffic in an area already highly congested, which was inconsistent with the Marin Countywide Plan.
In May 2015, the Planning Commission held a hearing on the appeal and voted to uphold the Planning Division's approval. In its resolution, the Planning Commission found the project was categorically exempt from CEQA because "[t]he existing building located at the project site has been continuously used as a grocery store since 1954 until 2011." The Planning Commission stated "[t]he approved land uses for the project site have been a grocery store, in addition to other ancillary neighborhood serving uses, such as a dentist's office, a cleaner, a nursery, and a restaurant." The Planning Commission found "the project entails the remodel to an existing structure and new signs that would not add any new floor area to the project site, and would not result in any potentially significant impacts to the environment."
With regard to Coury's concerns about the impact on traffic, the resolution stated "the Department of Public Works - Land Division (DPW) . . . determined that a traffic study was not required for the project because the development was proposed on a parcel that was previously approved for similar uses." Indeed, traffic studies were not required for five prior use and design review applications associated with the site "as those projects did not [intensify] the uses on the project site." The Planning Commission's denial of Coury's appeal was unanimous.
E. Coury's Appeal to the Board of Supervisors
Coury appealed the Planning Commission's decision to the Board of Supervisors ("the Board"). Coury argued the historic use permit had expired, and the Commission should have required a new use permit. In a letter submitted by his attorney, Coury argued that even if "DeLano's was grandfathered as a legal nonconforming use," the new Good Earth market was not covered by that use because it includes "food preparation and customer seating areas . . . - in essence, a restaurant." Coury argued the "unusual circumstances" exception to a CEQA exemption applied based on "the location of the project" in "a heavily congested area," and Coury also argued the Good Earth market had the potential to increase congestion.
Coury faulted the Planning Commission for failing to consider whether the project was consistent with the Countywide Plan's Transportation Element. Coury complained that "no consideration at all was given to the traffic generation potential of the new store," even though "the proposed Good Earth Market expands the uses at the site from the prior DeLano's IGA Grocery store and its predecessors." Coury submitted a letter prepared by a licensed California traffic engineer, who concluded, based on data associated with the Good Earth market in Fairfax, that "a good Earth Natural Foods Market generates substantially more trips than a typical neighborhood grocery store/supermarket, with differences on the order of 40-128% higher."
After the hearing, the Board issued a resolution finding "insufficient bases to overturn the Planning Commission's decision." The Board found the 2014 renewal of the building's use permit was valid, and even without it, the 1984 use permit had no expiration date. In response to Coury's argument that the Good Earth market was an "expanded use" that required a restaurant permit, the Board stated: "The Development Code categorizes a grocery store under the definition of a Retail Store, General Merchandise and does not further distinguish between different retail type uses or the production and services that are available for purchase at the store. The majority of the grocery store use would be dedicated to the retail sale of products consistent with a grocery store use. It is also not uncommon for grocery store[s] to offer organic and prepared foods. Examples include Safeway, Trader Joe's, Whole Foods, Paradise Foods, Woodland's Market, etc. As such, the Good Earth Natural Foods use is consistent with the definition of a grocery store."
The Board disagreed with Coury's contentions regarding CEQA exceptions, finding "the existing grocery store use is similar to other grocery store land uses, and would not be considered an unusual circumstance. Furthermore, the project site is considered an existing commercial in-fill site and the existing commercial building has been used as a grocery store since its original construction in 1954." In addition, "[a]s this would be and has been the only grocery store in the Tam Junction area, the cumulative impact argument would not apply because the appellant has failed to provide evidence to the contrary." The Board's decision denying Coury's appeal was unanimous.
F. Coury's Petition for a Writ of Mandate
In July 2015, Coury filed a petition for a writ of mandate requesting the trial court to order the County to vacate and rescind its approval of the application. Coury asserted three causes of action. First, he alleged the County's approval of the application was inconsistent with Marin's Countywide Plan because it did not require transportation improvements. Second, Coury asserted the County abused its discretion by finding the project exempt from the requirements of CEQA. Third, Coury asserted the approval of the application violated the Marin County Development Code because the application "involved new, expanded and intensified uses that had not been part of the prior grocery store uses, notably a food preparation and on-site consumption use (i.e., restaurant) and a greatly expanded bulk food sales use."
The court denied the petition, finding "substantial evidence exists to support the County's decision and there was no abuse of discretion." The project was categorically exempt from CEQA because it was "an in-kind replacement in an existing space for a permitted grocery store use that does not expand the existing use." The court found the project's location adjacent to the congested Shoreline Highway did not establish an " 'unusual circumstance,' " because the unsatisfactory "Level of Service" of the roadway was " 'grandfathered' " into the zoning district, and the County allowed prior grocery stores to operate without making traffic improvements. The court also determined Coury did not present substantial evidence that the "cumulative impacts" exception applied to nullify the categorical exemption.
In response to Coury's argument that the Good Earth market needed a restaurant use permit, the court deferred to the County's interpretation of what constitutes a "grocery store." It stated: "Given the popularity of these amenities and features which, for many years now, grocery store shoppers in Marin County have come to expect as part of their food shopping experience, it is not within the court's expertise nor does the court have the authority to command that the County halt progress and innovation by limiting the definition of the 'grocery store' in its Development Code only to the sale of products and services linked to a bygone era." In addition, the court determined the renovation project did not require transportation improvements because it was not a new development. Coury appealed.
DISCUSSION
On appeal, Coury contends: (1) the County erred by not requiring a use permit for the restaurant in the grocery store; (2) the County's approval of the application was inconsistent with the Countywide Plan's transportation policies; and (3) the application did not qualify for a CEQA categorical exemption.
I.
Standard of Review
Coury sought a writ of mandate under section 1094.5, arguing the County abused its discretion. "Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (§ 1094.5, subd. (b).) An agency's "consistency determination is entitled to deference as an extension of a planning agency's ' "unique competence to interpret [its] policies when applying them in an adjudicatory capacity." ' " (Orange Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, 155.) "Reviewing courts must defer to a procedurally proper consistency finding unless no reasonable person could have reached the same conclusion." (Ibid.)
Our review is de novo in the sense that "our review of the administrative record for error is the same as the trial court's; we review the agency's action, not the trial court's decision." (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 381; see Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427.) In reviewing an agency's compliance with CEQA, our inquiry "shall extend only to whether there was a prejudicial abuse of discretion." (Pub. Resources Code, § 21168.5.) " 'While we determine de novo whether the agency has employed the correct procedures, . . . we accord greater deference to the agency's substantive factual conclusions.' " (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 131.)
II.
The Board of Supervisors Did Not Abuse Its Discretion by Determining the Good Earth
Market Did Not Require a Restaurant Use Permit
First, Coury contends "the County lacked the authority to approve Good Earth's proposed expanded use without a use permit amendment to add restaurant use" because "restaurant use, as defined under the Development Code, is listed separately as requiring a use permit . . . , and . . . there was no restaurant use to be 'grandfathered' from the prior grocery stores at the site." We disagree.
The Board determined "the Good Earth Natural Foods use is consistent with the definition of a grocery store." The Marin County Development Code includes "grocery stores" as one example of many different kinds of stores included within the land use for "Retail Stores, General Merchandise." Other stores included within this land use are: "department stores," "drug and discount stores," "florists and houseplant stores," "garden supply stores," "general stores," "pet stores," "shoe stores," and "variety stores." There is no indication the Development Code further defines "grocery stores." The Development Code defines "[r]estaurant (land use)" as "the retail sale of prepared food and beverages for on-site consumption."
We grant in part and deny in part Coury's motion for judicial notice. We take judicial notice of the definitions of "RMPC," "Retail Stores, General Merchandise (land use)," and "Restaurant (land use)," from Marin County's Development Code. We take judicial notice of transportation policy TR-1.5, and implementing program TR-1.e from the Marin Countywide Plan. We take judicial notice of the fact that the segment of the Shoreline Highway adjacent to the project site operates at a "Level of Service" of F, and has been "grandfathered," as explained in the Marin Countywide Plan. We take judicial notice of the fact the project site was originally zoned as "C-2-H," which stands for "General Commercial - Highway Frontage Regulations," but is currently zoned as "RMPC," which allows for commercial uses. We otherwise deny Coury's motion because his remaining requests for judicial notice are not relevant to the issues Coury raises on appeal. (California Rules of Court, rule 8.252(a)(2)(A); Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4.)
Considering these definitions, and the description of the renovation project in the application, it was reasonable for the Board to conclude the application did not require a restaurant use permit. The application described the Good Earth market as consisting of "full service operating departments," including "Bakery & Juice Bar; Cheese & Wine/Beer; Deli, Hot Food, and To-Go Meals; Meat & Fish Shoppe; Produce, Floral, and Bulk Foods; Vitamins & Naturals; and, Central Store Groceries." While the Development Code includes "grocery stores" under the category "Retail Stores, General Merchandise," it does not further specify what can or cannot be included in grocery stores. The Board noted "[t]he majority of the grocery store use would be dedicated to the retail sale of products consistent with a grocery store use. It is also not uncommon for grocery store[s] to offer organic and prepared foods." Even though the Development Code separately defines a restaurant use, it does not follow it was unreasonable for the Board to conclude the Good Earth market was consistent with a grocery store use. A county's interpretation of its own ordinances is entitled to considerable deference. (Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1129-1130.) We defer to the Board's determination the products and services available in the proposed Good Earth market were consistent with a grocery store use. (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 243 [agency's determination project was consistent with its general plan should be reversed only if unreasonable].)
Coury and the County debate whether food prepared for on-site consumption and indoor seating are ancillary or accessory uses of a legal, nonconforming use. During oral arguments, the parties also focused on this question. But there is no indication the County considered the grocery store a legal, nonconforming use. The Planning Commission determined "[t]he approved land uses for the project site have been a grocery store, in addition to other ancillary neighborhood serving uses, such as a dentist's office, a cleaner, a nursery, and a restaurant." The Board determined the property operated under use permits approved in 1984 and 1987 allowing "the existing market to operate with extended grocery store hours." The Board considered Coury's argument that Good Earth's proposed uses were "an expanded use." The Board rejected this argument, finding the proposed uses—which included a "Bakery & Juice Bar . . . [and] Deli, Hot Food, and To-Go Meals"—were consistent with the Development Code's definition of a grocery store. As explained ante, we defer to the Board's consistency findings and must affirm them unless unreasonable. The Board's decision was reasonable. Therefore, we do not address the issue of ancillary or accessory uses of legal, nonconforming uses. --------
III.
The County Did Not Abuse Its Discretion by Concluding Certain Transportation Policies
Did Not Apply to the Good Earth Market
Next, Coury argues the County abused its discretion when it "did nothing to address the area's lack of compliance with the County's [Level of Service] standards, nor even consider - never mind mitigate - the new project's traffic impacts before approving it." The Shoreline Highway (SR1) between Northern Avenue and Almonte Boulevard has a "Level of Service" of F, which means it consists of stop-and-go traffic. However, this roadway segment is " 'grandfathered,' " which means it is "allowed to continue to operate at a lower [Level of Service] standard level until such time as [it is] improved or the traffic load is diverted."
Given the location's traffic congestion, Coury asserts "the conclusion is inescapable that the Project's approval was inconsistent with the Countywide Plan, and specifically its fundamental, clear, and mandatory Transportation Element policies and programs." The County responds that its approval of the application had nothing to do with the transportation polices Coury relies upon because those policies apply to new developments. We agree with the County.
Coury refers to Policy TR-1.5, which provides the County should "[r]equire necessary transportation improvements to be in place, or otherwise guaranteed to result in their timely installation, before or concurrent with new developments." (Italics added.) Coury also points to the transportation policies' implementing programs, one of which provides: "New development shall be restricted to the lowest end of the applicable residential density/commercial floor area ratio range where the [Level of Service] standards will be exceeded at any intersection or road segment or worsened on any grandfathered segment. . . . [¶] . . . [¶] All projects shall be conditioned to include feasible mitigation measures for project-related traffic impacts." (Italics added.)
Coury's argument, therefore, is based on the false premise that "the addition of . . . an in-store cafeteria/restaurant and a café, was an expansion of use - and hence new development." Both the Planning Commission and the Board rejected this assumption, observing "the Department of Public Works - Land Division (DPW) . . . determined that a traffic study was not required for the project because the development was proposed on a parcel that was previously approved for similar uses."
We find no abuse of discretion in this determination. After all, the location had been a market and neighborhood shopping center since 1954, and the application concerned renovating the existing building in a manner that "would not expand the existing footprint of the building other than the proposed cupola and the new storefronts." Because the application did not propose "new development," Coury's argument the County's approval of it was inconsistent with its transportation policies is meritless.
IV.
The Application Qualified for a CEQA Categorical Exemption
Coury contends the County's approval of the application under a CEQA exemption was improper, and that two exceptions to the CEQA exemption applied. We disagree.
A. The Categorical Exemption for Existing Facilities
CEQA "establishes a comprehensive scheme to provide long-term protection to the environment. It prescribes review procedures a public agency must follow before approving or carrying out certain projects." (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1092 (Berkeley Hillside).) The Legislature directed the Secretary of the Natural Resources Agency (Secretary) to establish "a list of classes of projects that have been determined not to have a significant effect on the environment and that shall be exempt from" CEQA. (Pub. Resources Code, § 21084, subd. (a).) The Secretary listed those classes of projects in administrative regulations known as Guidelines, and "declared [them] to be categorically exempt from the requirement for the preparation of environmental documents." (Cal. Code Regs., tit. 14, § 15300.)
The Guidelines provide a "Class 1" categorical exemption for "Existing Facilities." (Cal. Code Regs., tit. 14, § 15301.) "Class 1 consists of the operation, repair, maintenance, . . . or minor alteration of existing public or private structures . . . involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination. . . . The key consideration is whether the project involves negligible or no expansion of an existing use." (Ibid.) Examples include "[i]nterior or exterior alterations involving such things as interior partitions, plumbing, and electrical conveyances," and "[a]dditions to existing structures" so long as the additions do not increase the floor area by specified amounts. (Id., subds. (a), (e).)
"On review, an agency's categorical exemption determination will be affirmed if supported by substantial evidence that the project fell within the exempt category of projects." (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 115.) Here, the application described the project as the "[r]enovation of the existing . . . building with a [u]se [p]ermit." Having reviewed the application's description of the renovation project, it provides substantial evidence the project involved "negligible or no expansion of use." (Cal. Code Regs., tit 14, § 15301.)
In arguing otherwise, Coury points out the Good Earth market, unlike its predecessors, would include "a café and a cafeteria-style restaurant with in-store seating." But the Board rejected the contention these uses were an expansion of use. Instead, it determined they were "consistent with the definition of a grocery store." The Board noted "[t]he approved land uses for the project site have been a grocery store, in addition to other ancillary neighborhood serving uses, such as a dentist's office, a cleaner, a nursery, and a restaurant." Both the Planning Commission and the Board determined the application qualified for the exemption for "existing facilities" because "the project entails the remodel to an existing structure and new signs that would not add any new floor area to the project site . . . ." Substantial evidence supports this determination.
B. The Exceptions to the CEQA Exemption
Coury argues the "unusual circumstances" and "cumulative impact" exceptions to the CEQA exemption applied. We are not persuaded.
1. The "Unusual Circumstances" Exception
The Guidelines provide: "A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." (Cal. Code Regs., tit. 14, § 15300.2, subd. (c).) Coury contends this exception applies because of the project's "location . . . adjacent to a roadway segment that the Transportation Element of the Countywide Plan identified as not meeting that element's [Level of Service] standards." Coury argues the traffic report from the Good Earth market in Fairfax provides substantial evidence supporting a fair argument the project might have a significant impact on the environment. According to Coury, this traffic study indicates the "trip generation rate" for a Good Earth market "is far above what would be expected for a standard grocery store," such that the project should not have been exempted from the requirement of preparing an Environmental Impact Report.
When deciding whether a CEQA exception applies, a public agency abuses its discretion "if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (Pub. Resources Code, § 21168.5.) "[B]oth prongs of section 21168.5's abuse of discretion standard apply on review of an agency's decision . . . . The determination as to whether there are 'unusual circumstances' . . . is reviewed under section 21168.5's substantial evidence prong. However, an agency's finding as to whether unusual circumstances give rise to 'a reasonable possibility that the activity will have a significant effect on the environment' . . . is reviewed to determine whether the agency, in applying the fair argument standard, 'proceeded in [the] manner required by law.' " (Berkeley Hillside, supra, 60 Cal.4th at p. 1114.)
Elaborating on these standards, the California Supreme Court explained that whether a project presents unusual circumstances—the first element needed to establish the applicability of the unusual-circumstances exception—"is an essentially factual inquiry," where the court applies the traditional, and "relatively deferential," substantial evidence standard. (Berkeley Hillside, supra, 60 Cal.4th at p. 1114.) " ' "Agencies must weigh the evidence and determine 'which way the scales tip,' while courts conducting [traditional] substantial evidence . . . review generally do not." ' [Citation.] Instead, reviewing courts, after resolving all evidentiary conflicts in the agency's favor and indulging in all legitimate and reasonable inferences to uphold the agency's finding, must affirm that finding if there is any substantial evidence, contradicted or uncontradicted, to support it." (Id. at pp. 1114-1115.)
In reviewing whether there is a reasonable possibility that the activity will have a significant effect on the environment—the second element needed to establish the applicability of the unusual-circumstances exception—"the reviewing court's function 'is to determine whether substantial evidence support[s] the agency's conclusion as to whether' " there is a fair argument of a reasonable possibility that the activity will have a significant effect on the environment. (Berkeley Hillside, supra, 60 Cal.4th at p. 1115.) "If there is substantial evidence of such a reasonable possibility, then the public entity's determination that no fair argument can be made constitutes an abuse of discretion and cannot be upheld. [Citation.] Thus, the standards of review governing a court's consideration of the two elements needed to establish the unusual-circumstances exception differ significantly: the standard governing whether there are unusual circumstances is deferential to the entity's determination, but the standard governing whether there is a reasonable possibility that the activity will have a significant effect on the environment is not." (Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449, 457.)
Here, the County determined, at the first stage of this inquiry, that the Design Review and Sign Review Application did not present unusual circumstances. Applying the deferential substantial evidence standard, we affirm this conclusion. At the hearing before the Board, County Planner Heidi Scoble stated "there were no substantive changes to the building or site other than new siding, restriping of the parking lot, hardscape, landscaping, and signs . . . ." A traffic study was not required because it "was a like-for-like use." The Planning Commission considered "the local conditions and context of the project," and concluded it did not meet the "unusual circumstances" requirement because "it's just a Design Review and Sign Review Application, and there's an existing grocery store use, and . . . there's no expansion of use."
The Board agreed. It concluded "the existing grocery store use is similar to other grocery store land uses, and would not be considered an unusual circumstance. Furthermore, the project site is considered an existing commercial in-fill site and the existing commercial building has been used as a grocery store since its original construction in 1954." Although the Board did not explicitly comment upon Coury's traffic study, the County's traffic engineer stated the study's conclusions were difficult to validate because the study concerned the Good Earth market in Fairfax, which is different from the Tam Junction location. Based on the evidence before the Board regarding the history of the project site, the nature of the existing building, and the proposed changes, there was substantial evidence to support the conclusion the application did not present unusual circumstances. (Berkeley Hillside, supra, 60 Cal.4th at pp. 1114-1115.)
Coury contends the traffic study "supported a fair argument that the new Tam Junction Good Earth would . . . result in significantly increasing traffic impacts at the already congested section of Highway 1 at Tam Junction." But, under the bifurcated approach outlined ante, "[i]t would be inappropriate for an agency to apply the fair argument standard to determine whether unusual circumstances exist. That standard is intended to guide the determination of whether a project has a potentially significant effect, not whether it presents unusual circumstances." (Berkeley Hillside, supra, 60 Cal.4th at p. 1115.) Here, the Board concluded the project did not present unusual circumstances. Therefore, it was not required to apply the fair argument standard in determining whether there was a reasonable possibility of a potential significant effect on the environment. (Id. at pp. 1114-1115.)
2. The "Cumulative Impact" Exception
Coury's final argument is that the "cumulative impact" exception applies. The CEQA Guidelines provide exemptions "are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant." (Cal. Code Regs., tit. 14, § 15300.2, subd. (b).) Coury argues "the projects to be included in assessing cumulative impact are not limited to other grocery stores, but include any other project that would contribute traffic to the congested area of the project." We disagree.
By its express terms, the cumulative impact exception concerns "the cumulative impact of successive projects of the same type in the same place, over time." (Cal. Code Regs., tit. 14, § 15300.2, subd. (b).) The " 'purpose of the requirement that cumulative impacts be considered . . . is to ensure review of the effects of the project in context with other projects of the same type.' " (Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, 956-957.) Here, the County was not considering successive projects of the same type in the same place. Coury presented no evidence of other similar projects proposed for the Tam Junction area. The Board correctly concluded "the cumulative impact argument" did not apply because "this would be and has been the only grocery store in the Tam Junction area."
DISPOSITION
The judgment is affirmed. The County is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.