Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIC 438549, Gloria Trask, Judge.
Johnson & Sedlack, Raymond W. Johnson, Abigail A. Broedling and Veera K. Tyagi for Plaintiff and Appellant.
Best Best & Krieger, Michelle Ouellette, Charity B. Schiller; Gregory P. Priamos, City Attorney, Kristi J. Smith, Deputy City Attorney and Anthony L. Beaumon for Defendant, Real party in Interest and Respondents.
OPINION
Gaut, J.
1. Introduction
The narrow issue presented in this case is whether the City of Riverside (City) can enact an exemption from its zoning code that eliminates planning commission review of public projects. We answer in the affirmative notwithstanding appellant’s contention that broader, more complicated concerns are implicated by the City’s action.
The Friends of Riverside’s Hills (Friends) filed a CEQA petition for writ of mandate, challenging the City’s adoption of a Negative Declaration and approval of Planning Case No. P05-0749 and the corresponding ordinance amending Title 19 of the municipal code (the Amendment). The petition alleges the Amendment exempts all City projects, including private projects for a public purpose, from the City’s zoning requirements and the Amendment specifically exempts City projects from the growth-control restrictions expressed in Measures R and C, enacted in 1979 and 1987. In more concrete terms, petitioner argues that the Amendment would allow the City to establish inappropriate private projects in the residential greenbelt area without entertaining any public comment or complying with any land-use laws.
California Environmental Quality Act, Public Resources Code, section 21000 et seq.
On appeal, Friends does not pursue its related challenge involving Planning Case No. P05-0748.
The trial court denied the petition and Friends’s reconsideration motion. We affirm the judgment because the Amendment will not create the dire consequences Friends foresees.
2. Factual and Procedural Background
a. Measures R and C
We have previously described two growth-control zoning voter’s initiatives, Measures R and C, as follows:
“The voters of the City adopted a zoning ordinance, Measure R, in November 1979. In large part, Measure R served to apply an RA (residential agricultural) zoning classification to various portions of the City’s territory and an RC (residential conservation) zoning classification to other portions of that territory—all with an eye to controlling the growth of development in areas of an ‘open’ or ‘rural’ character. The City thereafter amended its general plan so as to encompass the requirements of Measure R.
“In November 1987, the voters of the City adopted further land-use and development legislation by initiative by adopting a Measure C. Measure C had a variety of functions, among them: (a) Amending Measure R so as to delete the authority of the City’s council to amend or repeal Measure R; (b) amending Measure R so as to further promote and encourage agriculture by ‘protecting’ agricultural lands from ‘premature’ development (quotations, ours); and (c) requiring the City to develop a general plan for those areas within the City’s sphere of influence that had not already been encompassed by the City’s extant general plan.” (Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 271, disapproved of on other grounds in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725.) In Garat, this court upheld the validity of the general plan and of Measures R and C.
Measure R limited the use of all RA property to single-family occupancy and a minimum of five acres. Measure R limited the use of some RC property to single-family occupancy and a minimum of two acres and some RC property to single-family occupancy and a minimum of five acres.
Measure C amended Measure R to establish that Measure R could only be amended or appealed by a majority vote of the people. On November 3, 1987, the day the voters approved Measure C, the City adopted Ordinance No. 5585, amending Title 19 of the municipal code (the Zoning Code) to include the provisions of Measure R.
b. Planning Case No. PO5-0748
In June 2005, the Planning and Building Department made a request to the city council to initiate the Amendment “to the Zoning Code to: [¶] . . . [¶] . . . streamline the review process for City projects to allow for either administrative review or review directly by the City Council.” The background for the request was described as follows: “The current Zoning Code . . . requires that all City projects, even those in which site acquisition has already been authorized by the City Council, go through the standard pre-development review process. The City Manager had requested a Code Amendment to allow for a more efficient and expeditious review of City projects. The Planning staff recommends this be accomplished by authorizing review at a staff level or directly by the City Council. In any event, public notification would be given in accordance with established policy.” The city council approved the request to initiate the Amendment.
On August 4, 2005, the planning commission considered a report on the proposed Amendment, which recommended that “all City projects be exempt from all Zoning Code requirements.” City projects would still be subject to CEQA and its notice and review requirements. It was also stated: “it is not uncommon for municipal projects to be exempt from local zoning code provisions” and the Amendment would cause Riverside to conform with “more common municipal practices . . . to the public’s benefit.” The proposed Amendment read: “19.02.030 Applicability to City: Notwithstanding any other section of this Title, the provisions of this Title shall not apply to any buildings, improvements, lots or premises, owned, leased, operated or controlled by the City or any City Project as defined under Section 19.04.094. [¶] 19.04.094 City Project. A project for public purposes by the City of Riverside.” The practical effect of the Amendment was to eliminate advisory review by the planning commission of projects which are already reviewed by the city council.
The accompanying draft negative declaration performed a comprehensive analysis of potential land use and planning impacts and concluded there would not be a significant impact from adopting the Amendment.
Friends submitted its one-page opposition to the proposed Amendment, citing “reduction in the opportunity for public review” and that the “proposed change is contrary to measures R and C.” Additionally, Friends argued, the proposed Amendment would exempt any City Project located in RC or RA areas from the zoning requirements of Measures R and C. Friends complained about “cumulative effects,” “undermining the zoning restrictions within the city,” and land use incompatibility. It contended the true purpose of the amendment was to remove City “planning of public projects from public scrutiny.”
At the hearing of the planning commission, Michael Beck, the Assistant City Manager, explained that “the intent is that if the City Council has already conceptually approved a project, is it fair to ask the Commission to reconsider something the City Council may have already reviewed.” The planning commission denied Planning Case No. P05-0749 by a vote of two in favor and five against. Beck filed an appeal to the city council.
Friends submitted another one-page opposition based on the following objections: the threat of diminished public review; incompatibility with general land use and planning; lack of evidence to justify the amendment; and violation of Measures R and C.
At the city council’s hearing on the appeal, Ken Gutierrez, the planning director, offered his comments that a City project is reviewed by the city council, with opportunity for public comment, several times before it is submitted for review by the planning commission. Therefore, it is not necessary for the planning commission to review a City project before returning it again to the city council.
Friends objected that the Amendment would eliminate another opportunity for public comment and would also violate Measures R and C.
Art Gage, a city council member, objected that some City projects should not be exempted from the Zoning Code. The City manager explained the Amendment was not a violation of Measures R and C or of the Zoning Code and that there would still be multiple opportunities for public comment on a City project.
In September 2005, the City approved Planning Case No. P05-0749 and adopted the Amendment.
c. The Writ Petition
Friends filed the instant writ petition, alleging the City’s failure to comply with CEQA and that the approval of the Amendment violates Measures R and C.
The court denied the petition, finding the City had complied with CEQA by addressing all cumulative impacts and making all the required findings. Additionally, the court ruled the Amendment did not affect or amend Measures R and C. The court also held Friends failed to exhaust its administrative remedies on certain issues and that Friends’s proposed interpretation of the Amendment should be rejected as leading to absurd consequences.
3. Exhaustion of Administrative Remedies
As a threshold issue, we consider the City’s argument that Friends failed to exhaust its administrative remedies. One jurisdictional requirement of CEQA is that a party must first raise its CEQA objections, orally or in writing, to the public agency or it cannot sue on those grounds. (Pub. Resources Code, § 21177; Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197-1198.)
The City contends there were a host of issues not raised initially by Friends, including segmentation and deferral of analysis to avoid finding an environmental impact, and the inadequacy of findings regarding agricultural resources, substantial growth, impact to geological features, and parking. Arguably, some other issues identified by the City—the inadequacy of the negative declaration, cumulative effects on “land form alteration,” conflict with and improper amendment of the City’s “Development Code,” and inadequate findings regarding conflicts with the general plan designation, zoning, and Measures R and C – were encompassed by the objections made by Friends during the administrative process. (East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, 176-177.) Nevertheless, many of the issues are new in the trial court or on appeal. In particular, the issues of segmentation and deferral of analysis were not presented to the City or in the writ petition and will be disregarded. (Coalition for Student Action v. City of Fullerton, supra, 153 Cal.App.3d at pp. 1197-1198.)
4. Violation of Measures R and C
Friends’s case rests primarily on its assertion that the Amendment conflicts with Measures R and C because the Amendment operates to amend Measure R by making City projects exempt from the Zoning Code. We disagree because we conclude that a City project must still comply with the general plan incorporating Measures R and C. (Garat v. City of Riverside, supra, 2 Cal.App.4that p. 283.) And, notwithstanding the general plan, a City project must still comply with Measures R and C even if it is exempt from the zoning code. We reject Friends’ contention that a City project, exempt from the zoning code, is also exempt from Measures R and C.
We apply an independent standard of review. (Franchise Tax Board v. Cory (1978) 80 Cal.App.3d 772, 777.) The Amendment does not expressly mention Measures R and C. But Friends contends the operation of the Amendment will result in an exemption from Measures R and C for a City project. (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1486 .)
For this reason, it is unnecessary to discuss the issue of an absurd result inviting statutory interpretation.
This argument fails because, independent of the Zoning Code, the Amendment remains subject to the general plan and to Measures R and C. (Garat v. City of Riverside, supra, 2 Cal.App.4th at pp. 282-284.) And, by its express terms, Measure R also operates by its own force independently of the general plan and of the zoning code. Any City projects that would violate Measure R would continue to be prohibited in spite of the Amendment making City projects exempt from the zoning code. Therefore, it does not matter, as repeatedly asserted by Friends, if the general plan and the Zoning Code are inconsistent with one another. Measures R and C continue to be effective as land-use regulation in the City of Riverside both under the general plan and by their own force.
The other cases relied upon by Friends do not support their position. The case of Lee v. City of Monterey Park (1985) 173 Cal.App.3d 798, 812, held that city residents have the power to enact zoning initiatives that bar the city council from amending or repealing the zoning established by initiative. The Amendment does not amend or repeal Measures R or C. In Franchise Tax Board v. Cory, supra, 80 Cal.App.3d at pp. 774-776,there was an express conflict between a voter’s initiative and a piece of legislation, with the latter placing explicit limitations on the former. Similarly, in Proposition 103 Enforcement Project v. Quackenbush, supra, 64 Cal.App.4th at p. 1486, a voter initiative was threatened by amendment in subsequent legislation. No such express conflict occurred between Measures R and C and the Amendment.
5. Friends’s CEQA Claim
The appellate standard of review for CEQA cases is de novo: “As noted in Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, ‘[t]he distinction, however, is rarely significant. In either case, the issue before the trial court is whether the agency abused its discretion. Abuse of discretion is shown if (1) the agency has not proceeded in a manner required by law, or (2) the determination is not supported by substantial evidence. [Citations.]’ (At p. 1375.) Thus, ‘[i]n a mandate proceeding to review an agency’s decision for compliance with CEQA, the scope and standard of our review are the same as the trial court’s, and the lower court’s findings are not binding on us. [Citation.] We review the administrative record to determine whether the agency prejudicially abused its discretion.’ [Citation.]” (Eller Media Co. v. Community Redevelopment Agency (2003) 108 Cal.App.4th 25, 31.)
At the outset, we reject Friends’s effort to invoke Kelo v. City of New London (2005) 545 U.S. 469, a case involving redevelopment and the power of eminent domain, neither of which have any bearing on the issues here.
Friends first asserts the City abused its discretion by adopting a negative declaration instead of preparing an environmental impact report (EIR) because it could be “fairly argued on the basis of substantial evidence that the [Amendment] may have significant environmental impact.” (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75; Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927; Citizens’ Com. To Save Our Village v. City of Claremont (1995) 37 Cal.App.4th 1157, 1169.) As this has court recognized, “In reviewing an agency’s decision to adopt a negative declaration, a trial court applies the ‘fair argument’ test. [Fn. omitted.] ‘Under this test, the agency must prepare an EIR whenever substantial evidence in the record supports a fair argument that a proposed project may have a significant effect on the environment. . . .’ [Fn. omitted.] If such evidence exists, the court must set aside the agency’s decision to adopt a negative declaration as an abuse of discretion in failing to proceed in a manner as required by law.” (City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 405 (Redlands).)
Friends has the burden of proof on the issue of fair argument: “The burden is on the petitioner to demonstrate by citation to the record the existence of such substantial evidence.” (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 498-499, citing Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1348.) Speculation based upon hearsay, “an impermissible attempt to inquire into the motives of the City Council[,] will be disregarded. [Citation.]” (Citizens for Responsible Development v. City of West Hollywood, supra, at p. 499, fn. 2.) Rather, “[s]ubstantial evidence includes facts, reasonable assumptions based on fact, and expert opinion supported by facts. (Pub. Resources Code, § 21080, subd. (e).) Substantial evidence does not include speculation, unsubstantiated opinion, or evidence that is clearly erroneous. [Citation.]” (Ibid.)
No substantial evidence in the record supports a fair argument about the Amendment causing a significant environmental effect. (Pub. Resources Code, § 21080, subd. (c).) Obviously, the Amendment itself has little direct physical effect because it does not involve an actual City project. (Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 753-754; Pub. Resources Code, § 21068; State CEQA Guidelines, § 15382.) Instead, on appeal, Friends speculates that there may be future City projects that do not comply with the requirements for conditional use permits (CUP) and variances, as well as many other kinds of land use restrictions, especially in the RC and RA zones. Additionally, Friends argues a City project could include private development with a public purpose, such as low-income housing or redevelopment projects.
These points were arguably not raised (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417), or certainly not developed, in the administrative proceedings, in which Friends focused their arguments on the issues of public comment and Measures R and C. There was some discussion about the definition of a City project but no evidence that any future City project would not be the subject of public comment or would violate Measures R and C. Nor did the record show that, absent planning commission review, future City projects would not comply with requirements for a CUP or a variance.
Friends’s reliance on our case, Redlands, supra, 96 Cal.App.4th 398, is not persuasive. In Redlands, the county amended its general plan drastically, causing a potentially significant environmental impact to numerous cities, which provided lengthy and detailed evaluations of the effects and conflicts caused by the county’s amendments. (Id. at pp. 407-408, 412.) Notably, “the County admitted that the amendments may cause an increase in development under the County’s jurisdiction without annexation. The County also acknowledged ‘a history of conflict with the cities of Redlands and Rancho Cucamonga over the concept of allowing development in unincorporated sphere of influence areas, and over the application of city development standards or growth control measures.’” (Id. at p. 414.) The case of City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, also relied upon by Friends is similarly distinguishable because it involved significant land-use changes and a record of detailed opposing evidence. (Id. at pp. 541-542.)
In contrast, the Amendment does not involve any physical environmental changes and does not approve proposed, contemplated, or ongoing development. As discussed above, the general plan and Measures R and C still apply and are unaltered. Based on this slight record, we do not perceive a fair argument exists that the Amendment may have a significant effect on the environment, requiring the preparation of an EIR instead of a negative declaration. (Leonoff v. Monterey County Bd. of Supervisors, supra, 222 Cal.App.3d at p. 1352; Pub. Resources Code, § 21080, subd. (c)(1).)
6. Disposition
We affirm the judgment. The prevailing parties recover their costs on appeal.
We concur: Richli, Acting P. J., Miller, J.