Opinion
E064737
12-11-2017
HIGHLAND HILLS HOMEOWNERS ASSOCIATION, Plaintiff and Appellant, v. CITY OF SAN BERNARDINO et al., Defendants and Respondents; FIRST AMERICAN TITLE INSURANCE COMPANY, Real Party in Interest and Respondent.
Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for Plaintiff and Appellant. Gary D. Saenz and Steven P. Graham for Defendant and Respondent City of San Bernardino and Mayor and Common Council for the City of San Bernardino. Gresham, Savage, Nolan & Tilden, John C. Nolan, Mark A. Ostoich and Martin P. Stratte for Real Party in Interest and Respondent First American Title Insurance Company.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SCVSS241464) OPINION APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed. Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for Plaintiff and Appellant. Gary D. Saenz and Steven P. Graham for Defendant and Respondent City of San Bernardino and Mayor and Common Council for the City of San Bernardino. Gresham, Savage, Nolan & Tilden, John C. Nolan, Mark A. Ostoich and Martin P. Stratte for Real Party in Interest and Respondent First American Title Insurance Company.
I. INTRODUCTION
This matter relates to a proposed development in the Highland Hills area of the City of San Bernardino that has been pending, in various permutations, for decades. Plaintiff and appellant Highland Hills Homeowners Association (HOA) brought suit alleging, among other things, violations of the California Environmental Quality Act, Public Resources Code § 21000 et seq. (CEQA). The lawsuit resulted in a settlement agreement and stipulated judgment, which was later amended twice by the parties. The "Second Addendum" to the settlement agreement implemented an expedited procedure for approval of "minor modifications" to the project.
In the present appeal, HOA challenges the trial court's order confirming that proposed changes to the project constitute "a minor modification under the Second Addendum § 1.4 thereby not requiring a supplemental or subsequent CEQA report . . . ." The other parties to the appeal are real party in interest and respondent First American Title Insurance Company (First American), the successor in interest to the original developer and the party that proposed the changes at issue, as well as defendants and respondents City of San Bernardino and the Mayor and Common Council for the City of San Bernardino (the City), who approved the proposed changes and, together with First American, requested a court order confirming compliance with the Second Addendum.
HOA argues that the proposed changes to the project are not properly treated as minor modifications under the settlement agreement, and would have environmental impacts requiring additional CEQA review regardless of what is authorized under the settlement agreement.
We disagree and affirm the trial court's ruling.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 1982, the City approved the "Highland Hills Specific Plan 82-1" (Specific Plan), describing a proposed residential development on a 541-acre site in the northeastern section of the City of San Bernardino. The City also certified the Environmental Impact Report for the Specific Plan (Specific Plan EIR).
In 1985, the City amended the Specific Plan to allow for the construction of low-and moderate-income multi-family residential units in an area where single-family units had originally been planned. HOA challenged the change to the project, bringing suit against the City and the developer (the predecessor-in-interest to First American). That lawsuit resulted in the settlement agreement that, as later amended, is at issue in the present appeal.
The settlement agreement, which was incorporated into a stipulated judgment entered on July 3, 1989, noted that the developer had prepared two plans of development, with the "North Plan" to be the "preferred Plan of Development" pursuant to the Specific Plan. The North Plan provided for, among other things, the construction of up to 1,730 residential dwelling units, as well as a golf course. After entry of the stipulated judgment, as contemplated in the settlement agreement, the City incorporated the North Plan into its updated General Plan, and certified a final EIR for the General Plan.
In February 1992, HOA, the City, and the former developer agreed to an "Addendum" to the settlement agreement, which was approved by the trial court and incorporated into the stipulated judgment. Among other things, the Addendum reduced the number of multi-family dwelling units permitted under the North Plan from 1,200 to 566. The Addendum also acknowledged that freeway construction as part of the development had resulted in the removal of many trees, and that HOA had "concern[s]" regarding this and other, related issues. The Addendum specified that a particular canyon and its "existing mature trees will be left to meander through" the golf course to be constructed, and that the former developer would "cause over one thousand (1,000) new trees be to planted over the golf course."
In 2001, the City's Planning Commission approved a tentative tract map for the North Plan, which reduced the maximum total number of residential dwelling units (including both single and multi-family) from 1,730 to 1,516.
Later in 2001, HOA, the City, and the former developer agreed to the Second Addendum to the stipulated judgment, which, like the first addendum, was approved by the trial court and incorporated into the stipulated judgment. The parties agreed that the environmental impacts of North Plan, as modified by the tentative tract map, had been adequately reviewed pursuant to CEQA, so "no subsequent or supplemental environmental impact report is required."
The Second Addendum also introduced a new application process to facilitate approval of any "minor modifications" to the project that "the passage of time may demonstrate . . . are necessary or appropriate . . . ." Under this process, the City's Director of Development Services (development director) reviews any modifications requested by the developer to determine whether they constitute "minor modifications" as defined in Section 1.4 of the Second Addendum. Specifically, "minor modifications" are those "which result in development which is equal to or less intense from the standpoint of environmental impacts under CEQA, than development of the Highland Hills Property pursuant to the North Plan including, without limitation, (a) fewer residential dwelling units, (b) less gross leasable commercial space, (c) changes in improvement locations which are equal to or less intrusive than the location of improvements under the North Plan, (d) enhancement of architectural, landscape and hardscape improvements, (e) more efficient mitigation measures/conditions of approval resulting from advancement in scientific knowledge, know how or improved technology, or (f) other modifications which the [development director] determines are similar to the foregoing, or any combination of the same (even if, in such combination, some elements intensify and other elements deintensify, but in the aggregate the modification is equal to or less intense from the standpoint of environmental impacts under CEQA, than development of the Highland Hills Property pursuant to the North Plan)."
The Second Addendum provides for the approval of minor modifications to be a ministerial act: "If [the development director] determines that a modification in the North Plan is a Minor Modification, then [he or she] shall be obligated to approve the Minor Modification in the North Plan." If, however, the development director determines that the requested modification is not a "[m]inor [m]odification" as defined by the Second Addendum, the matter must be referred to the Planning Commission for consideration.
In 2014, First American, which had taken over the project from the former developer, applied for approval of modified construction plans (the Modified North Plan) as minor modifications pursuant to the process adopted in the Second Addendum. At the City's request, an independent environmental consultant prepared an evaluation of the Modified North Plan. The consultant's report discusses in turn each of the criteria for "[m]inor [m]odifications" as defined in the Second Addendum, and separately addresses each "specific CEQA topic, as listed in a standard Initial Study Environmental Checklist Form (Appendix G of the State CEQA Guidelines) . . . ." It notes, among other things, that the Modified North Plan, if implemented, would reduce the maximum total number of dwelling units constructed from 1,516 to 695, and eliminate all previously contemplated commercial uses, including a gas station and convenience store, as well as the golf course. In comparison to the unmodified North Plan, the total area disturbed by construction, the volume of earthwork required, and the project's impact on jurisdictional streams and wetlands, would each be substantially reduced. Acreage devoted to parks would be substantially increased. All proposed development would be eliminated from the northern, higher elevations of the project site, thereby "protecting the visual integrity of this important ridge line." The consultant concluded that the Modified North Plan met each of the criteria for "[m]inor [m]odifications" set forth in the Second Addendum, and that, with respect to each of the specific "CEQA Environmental Issues," the overall adverse impact of the Modified North Plan would be less than that of the unmodified North Plan.
In December 2014, the City's development director approved First American's application, agreeing that the changes proposed in the Modified North Plan constituted minor modifications as defined by the Second Addendum. The approval memorandum notes that in considering First American's application, the director had considered the modified project plans and tentative tract map and supporting technical reports, the report by the environmental consultant, and an "updated Mitigation Monitoring and Reporting Program dated December 1, 2014 . . . ." The approval also explicitly "adopt[s] and make[s] herein all of the findings contained" in the environmental consultant's report. The City's Planning Commission subsequently rejected HOA's appeal of the development director's approval, and the City's Mayor and Common Council upheld the Planning Commission's decision.
In June 2015, First American and the City filed a motion requesting that the trial court confirm that First American's proposed changes complied with the terms of the Second Addendum and that no further CEQA review was required. In August 2015, after a hearing on the matter, the trial court granted the motion, finding that "the proposed Modified Plan is a minor modification under the Second Addendum § 1.4 thereby not requiring a supplemental or subsequent CEQA report under Pub. Res. Code § 21166."
In July 2015, HOA, together with two other organizations that are not parties to the present action, filed a separate lawsuit (Case No. CIVDS1509296) challenging the City's approval of First American's proposed changes on several bases. That lawsuit was dismissed by the trial court after it sustained without leave to amend the joint demurrer of the City and First American; the appeal of that ruling is pending (The Inland Oversight Committee v. City of San Bernardino, case No. E065836), and will be addressed separately.
III. DISCUSSION
A. Standard of Review.
"The trial court's factual findings on a motion to enforce settlement pursuant to [Code of Civil Procedure] section 664.6 are subject to limited appellate review and will not be disturbed if supported by substantial evidence." (Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162.) Where "the central issue on appeal" is a claim of legal error arising from undisputed facts, the appellate court "conducts an independent review of the trial court's ruling." (Ibid.)
"To the extent there are questions about whether substantial evidence exists, '[t]he agency is the finder of fact and a court must indulge all reasonable inferences from the evidence that would support the agency's determinations and resolve all conflicts in the evidence in favor of the agency's decision.'" (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1397.) "As with all substantial evidence issues, an appellant challenging the evidence must lay out the evidence favorable to the other side and show why it is lacking. A reviewing court need not independently review the record to make up for an appellant's failure to carry this burden." (Id. at p. 1402.)
B. Analysis.
1. Elimination of Mitigation Measures.
HOA contends that the undisputed facts demonstrate that the Modified North Plan will "eliminate at least one mandatory mitigation measure," so to approve it without further environmental review violates principles discussed in Katzeff v. Department of Forestry & Fire Protection (2010) 181 Cal.App.4th 601 (Katzeff). It points in particular to the elimination of the golf course from the project, but also highlights language in the consultant's report, which repeatedly recites that previously identified mitigation measures "which are not in conflict with" the project as modified "must still be implemented . . . ." It interprets this language to suggest that at least one unidentified mitigation measure that is in conflict with the modified project has been eliminated without due consideration. We disagree and reject HOA's arguments.
In Katzeff, the Court of Appeal considered "whether the California Department of Forestry and Fire Protection (CDF) properly granted an exemption allowing the harvesting of less than three acres of timber without environmental review, when one of the mitigation measures to two prior timber harvesting plans for the same property was that the trees in question remain in place to protect a neighboring property from excessive wind." (Katzeff, supra, 181 Cal.App.4th at p. 606.) Although the time for harvesting timber under those prior timber harvesting plans had passed, the Court of Appeal noted that "the environmental effects of the harvest are presumed to remain," and hence the need for the mitigation measure is also presumed to remain. (Id. at p. 612.) The Court of Appeal concluded "that where a public agency has adopted a mitigation measure for a project, it may not authorize destruction or cancellation of the mitigation—whether or not the approval is ministerial—without reviewing the continuing need for the mitigation, stating a reason for its actions, and supporting it with substantial evidence." (Id. at p. 614.) The Court of Appeal therefore reversed the trial court's grant of judgment on the pleadings in favor of CDF, commenting that "[w]hile the passage of time may have eliminated the need for the mitigation, it does not on its own render the mitigation inoperative, and CDF must justify its decision to allow the buffer strip to be cut down." (Ibid.)
In the present case, the record supports the conclusion that the City met the standard articulated in Katzef by reviewing the continuing need for mitigation under the Modified North Plan, and stating its reasons, supported by substantial evidence, for concluding that, to the extent any mitigation measures are changed or eliminated in the project as modified, it was appropriate do so from an environmental perspective. The City's development director's memorandum approving First American's application recites that he reviewed the Modified North Plan and its supporting technical reports, as well as the environmental consultant's report and the "updated Mitigation Monitoring and Reporting Program dated December 1, 2014." The environmental consultant's analysis of the environmental impacts of the Modified North Plan in comparison with the unmodified plan, which was adopted by the City, takes into account changes to mitigation measures. The consultant notes that in some respects, mitigation measures are changed, reduced, or even eliminated as incompatible with the modified project. Nevertheless, he concludes that the Modified North Plan would have less overall adverse impact with respect to each "CEQA topic."
More specifically, the consultant opines that the "one component of the [Modified North Plan] which has a potential negative effect is the elimination of the golf course." In the original North Plan, the golf course served a passive role in containing potential flooding, and also "acted as a buffer between the proposed higher density project components, primarily apartments, and the single-family residential units to the east." A 2010 storm, however, proved that the golf course would have been inadequate as a flood control measure, and the Modified North Plan replaces it with more efficient, engineered measures. Additionally, no buffer between single-family residential units and apartments is necessary under the Modified North Plan, because the apartments are eliminated from the project, and the area previously proposed for the golf course is to be used for "medium density single-family residential development, which will be compatible with the adjacent single-family residential development." The elimination of the golf course changes the type of recreation available on the site, but the Modified North Plan provides for a substantial increase in park space and "enhanced open space with trails," which the consultant considered "sufficient . . . to offset the previous recreational benefit of the golf course . . . ." Furthermore, elimination of the golf course from the Modified North Plan contributes to various other reductions to the environmental impact of the development; reducing the amount of grading necessary for the project, and allowing retention of substantially more of the natural landscape; eliminating the need to remove several "building foundations of a historic nature (constructed between 1938 and 1959)"; reducing the "future hazards . . . associated with discharges of fertilizers and pesticides" that would be used in maintaining the golf course; "greatly" reducing the demand for water, by eliminating the need to use "substantial" amounts of irrigation water on the course; and reducing "visual intrusion into the San Bernardino Mountains." The consultant found, therefore, that the elimination of the golf course "can be considered a reasonable trade-off."
The report also speaks generally about changes to mitigation measures for various categories of "CEQA Environmental Issues." With respect to air quality, noise, and utilities and service systems, the report notes that "all . . . mitigation measures identified for the [unmodified North Plan] must still be implemented under the [Modified North Plan] as the type of activities on the project site remain the same, but are just reduced compared to the [unmodified North Plan]." With respect to biological resources, geology and soil resources, hazards and hazardous materials, hydrology and water quality, and public services, the report makes a similar, but slightly qualified observation; "all . . . mitigation measures . . . which are not in conflict with the [Modified North Plan], must still be implemented under the [Modified North Plan], as the type of activities on the project site remain the same, but are just reduced compared to the [unmodified North Plan]." (Italics added.) In each case, the consultant (and therefore the City, by virtue of its adoption of the consultant's analysis) concludes that the Modified North Plan has less overall adverse environmental impact than the unmodified North Plan, taking into account not only the changes to the features of the project, but also the concomitant changes to mitigation measures.
Viewed in context, it is apparent the consultant's repeated use of the clause ". . . which are not in conflict with the [Modified North Plan] . . ." does not mean what HOA takes it to mean. Although the consultant did not precisely catalogue all the changes to mitigation measures resulting from the Modified North Plan, there is no basis for concluding from the report that any "mandatory mitigation measures" relevant to the reduced construction are being secretly eliminated. Quite the opposite is true. Mitigation measures specifically relating to portions of the unmodified North Plan that are not going to be constructed under the modified plan—for example, relandscaping and irrigation for areas that were to be developed, but which are left undisturbed by the Modified North Plan, or plans for mitigating the hazards posed by fertilizers and pesticides that would have been used on the previously-contemplated golf course—are obviously moot, and will not be implemented. But previously contemplated mitigation measures that relate to portions of the project that remain as part of the Modified North Plan must still be implemented. And the consultant was unequivocal that, regardless of any changes to mitigation measures—and, in some cases, because of those changes—the aggregate environmental impact of the Modified North Plan would be less than the unmodified North Plan in every analyzed category. HOA's contention that the City has eliminated mitigation measures without considering the continued need for mitigation is not supported by the record.
2. Evaluation of Environmental Impacts.
HOA also contends that the City's evaluation of the environmental impacts of the Modified North Plan is simply "wrong." This line of argument is, however, largely unsupported by evidence, and HOA fails to show that the consultant's contrary conclusions, adopted by the City, are unsupported by substantial evidence. We are unpersuaded by HOA's argument.
a. Fire hazard impacts.
HOA asserts that the golf course is a "crucial fire-protection mechanism," the removal of which will create a "significant new" fire hazard. It points to language in the Specific Plan EIR describing "open space," and in particular a "large amount of irrigated green space" as being "as much a fire prevention measure as it is a visual and recreational amenity." HOA ignores, however, that the golf course is not included among the various fire-protection mitigation measures specifically listed in the "Environmental Findings and Mitigation Measures" adopted for the project in 2001, and which continue to be required under the Modified North Plan. HOA also makes no attempt to grapple with the consultant's analysis that fire hazards would be reduced, even without the golf course, because the Modified North Plan "eliminates development from the most severe fire hazard areas on the project site," while retaining "[e]xtensive mitigation, particularly for wildland fire hazards, identified for the [unmodified North Plan] . . . ." There is no basis to conclude, on this record, either that the City failed to consider the fire-hazard impacts of the Modified North Plan, or that the proposed modifications will create any significant new hazard in that regard, in comparison to the unmodified North Plan.
b. Air quality impacts.
HOA points to the circumstance that the Specific Plan EIR identifies "the location of a convenience shopping center on site" and "the provision of recreational amenities on site" as measures to reduce air pollutants from automobiles, and assumes on that basis that "removal of the golf course and the commercial portion of the Project will result in significant new air-quality impacts not previously considered by the EIR." HOA ignores the consultant's analysis, adopted by the City, concluding that due to the reduced scope of the Modified North Plan "overall project emissions should be less than 50% of that forecast for the [unmodified North Plan] . . . ." The consultant's report also supports the conclusion that air pollutants caused by automobiles would be dramatically reduced under the Modified North Plan; the estimated total number of trips generated from the development is reduced by more than half, and construction traffic is reduced by about 65 percent, compared to the unmodified project. Recreational amenities on site are increased substantially under the Modified North Plan, when measured by acreage, and there is nothing in the record that supports the inference that the additional park space and "enhanced open space with trails" would have a greater negative air quality impact than a golf course.
c. Impact on recreational area.
HOA faults the City for not considering "impacts on recreational/open space . . . ." In doing so, HOA fails to consider that the consultant's report, adopted by the City, explicitly discusses the Modified North Plan's addition of substantial amounts of park space and "enhanced open space with trails," and concludes that the latter provides "sufficient onsite recreational resources to offset the previous recreational benefit of the golf course.," and "less overall adverse impact" with respect to recreation than the unmodified plan. HOA has presented no reasoned argument why these conclusions might lack the support of substantial evidence.
d. Aesthetic impacts.
With respect to aesthetic impacts, HOA characterizes the golf course as a "'visual amenity,'" whose elimination from the Modified North Plan would result in an "aesthetic impact not previously considered in the EIR." The focus of the aesthetic analysis under CEQA, however, is the effects of the project on the character of the site; whether the project would have an "adverse effect on a scenic vista," for example, or "degrade the existing visual character or quality of the site and its surroundings." (See Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 401 [discussing guidelines for aesthetic analysis in Appendix G to the CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.].) HOA offers no rebuttal to the consultant's analysis, adopted by the City, that the Modified North Plan represents a "major reduction in landscape modification on the project site," including the protection of "the visual integrity" of an "important ridge line." The City is well justified, from a CEQA perspective, in concluding that a reduction in landscaping and hardscaping, such as would be required for a golf course, that is offset by retention of "native/natural landscape," is "not considered an adverse impact."
Also in relation to aesthetic impacts, HOA points out that the Second Addendum contemplates the planting of "over one thousand (1,000) new trees . . . over the golf course." As the consultant noted, however, "all biological resource mitigation measures identified for the [unmodified North Plan], which are not in conflict with the [Modified North Plan], must still be implemented under the [Modified North Plan]." And the City and First American have explicitly conceded that the obligation to plant trees to offset the removal of others is not eliminated from the project, even if the golf course is not constructed.
e. Traffic impacts.
HOA asserts that the Modified North Plan "will result in significant new traffic impacts not previously considered by the EIR." It makes no attempt, however, to show a lack of substantial evidence supporting the consultant's analysis regarding traffic impacts, which was adopted by the City, and which reaches a different conclusion. Specifically, the consultant found that traffic generated from the residential units constructed under the Modified North Plan would be less than half the amount of the unmodified North Plan, and that construction traffic would be reduced by nearly two-thirds. HOA asserts, without reference to any evidence, that "existing residences to the east" will suffer from increased traffic circulation, but ignores the consultant's analysis that "offsite circulation impacts . . .will also be substantially reduced . . . ."
f. Noise impacts.
With respect to noise impacts, HOA asserts that replacing the golf course with single-family residential units will "result in significant noise impacts for existing residences," but makes no attempt to grapple with the consultant's analysis of that issue, adopted by the City. Specifically, the consultant recognized that "activities for residential development will be closer to the existing sensitive noise receptors," but concluded that, because of reduced construction activity and reduced traffic from the smaller residential development, overall offsite noise impacts would be reduced compared to the unmodified North Plan.
C. Conclusion.
HOA has failed to demonstrate either that the City eliminated any mitigation measures without due consideration, or that there is a lack of substantial evidence supporting the City's conclusion that Modified North Plan will have equally intense or less-intense environmental impacts than the unmodified North Plan. It has therefore demonstrated no error with respect to the trial court's finding that "the proposed Modified Plan is a minor modification under the Second Addendum § 1.4 thereby not requiring a supplemental or subsequent CEQA report under Pub. Res. Code § 21166."
IV. DISPOSITION
The order appealed from is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.