Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV462235
McGuiness, P.J.
At a March 13, 2007 meeting, the Menlo Park City Council approved a use permit allowing a private school to operate in a M-2 district zoned for general industrial use after finding that the project was exempt from review under the California Environmental Quality Act (Public Resources Code section 21000 et. seq.) (CEQA) and its Guidelines (Cal. Code Regs., tit. 14, § 15000 et. seq.).
For convenience, we will refer to specific statutory provisions of the Public Resources Code as CEQA followed by citation to the Public Resources Code, and specific CEQA Guidelines will be referred to as Guidelines followed by citation to the California Code of Regulations.
Appellant Menlo Business Park, LLC (MBP), the owner of real property located near the school, filed a petition for writ of mandate and a complaint for declaratory relief, against respondents City of Menlo Park and the City Council, challenging the grant of the use permit alleging noncompliance with Menlo Park’s Municipal Code and CEQA and its Guidelines. On March 6, 2008, the trial court filed a final statement of decision in which it denied the petition and dismissed the complaint. We affirm.
The final statement of decision was signed by the trial judge, filed on March 6, 2008, and represents the court’s final determination of the merits. In the absence of a showing of prejudice, we shall treat the final statement of decision as an appealable final judgment notwithstanding its label. (See Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901 [“[r]eviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court’s final decision on the merits”].)
FACTS
A. Background
In June 2006, respondent Casa Dei Bambini School, Inc., a Montessori private school for children ranging in ages from 2 years 9 months to 6 years, applied for a use permit to operate its school in an existing building on O’Brien Drive in the M-2 (General Industrial) zoning district of the respondent City of Menlo Park (hereinafter referred to as the school or the project). In the M-2 district, private schools and child care centers are classified as special uses, and require use permit approval by the city planning commission, or upon appeal, by the respondent city council. (Menlo Park Mun. Code, tit. 16, ch. 16.46, § 16.46.020, subd. (8); ch. 16.78, § 16.78.030, subds. (14), (16); ch. 16.82, §§ 16.82.010, 16.82.030, 16.82.040.)
Both the planning commission and the city council decided that the school’s application for a use permit was a project subject to CEQA. Although the parties did not raise the issue at trial, the court found as a matter of law that CEQA did not apply because the school was not a project subject to CEQA. Although respondents mention that the court made a “threshold” finding that the school was not a project subject to CEQA, they do not go so far as to urge that the appeal should be resolved on this basis. Accordingly, we shall identify the school as a project in this opinion for convenience only. We express no opinion on the trial court’s ruling on the issue.
The school would be located in an existing 40,000 square foot two-story building leased from the owners Joseph Y. Sahyoun aka Youssef Sahyoun and Sabine Sahyoun, Trustees of the Sahyoun Family Revocable Trust of April 20, 2000. At the time of the application, the building had been vacant for three years. At one time the building had been used by a clothing company, which employed 75 people, who “always parked on the premises.”
The school would accommodate up to 72 children and be staffed by 6 teachers and 2 supporting staff members. It would be open from 8:00 a.m. to 5:30 p.m. Monday through Friday, and there would be no activities at the school after 5:30 p.m. Parent/teacher conferences would take place before 5:30 p.m., and would be staggered so potentially there would be no more than six parents at a time at the school.
The building site is located at the intersection of O’Brien Drive and Casey Court. It abuts a bottled water company at the rear and a section of Hetch Hetchy right-of-way on the right side. Other uses in the M-2 district varied, and included a non-profit job training and placement center, a contract machine shop, roofing and HVAC contractors, a landscape maintenance firm, a copy and printing shop, and light manufacturing facilities. At the time of the application, several nearby buildings were also vacant.
The portion of M-2 district in which the project site is located also abuts residential properties with nearby school sites in the City of East Palo Alto. Within a quarter-mile radius of the site and within the City of Menlo Park itself, there is (1) a non-profit job training and placement center that operates an on-site day care facility for 12 children (located directly across the street from the project), (2) a high school on Willow Road; and (3) an after-school Girls’ Club program.
B. Planning Commission Proceeding
Before the hearing on the school’s application, the planning commission staff prepared a report, authored by Associate Planner Thomas Rogers and signed by Senior Planner Deanna Chow. The staff recommended the Planning Commission make a finding that the project was exempt from CEQA review. The staff also recommended that the use permit be subject to certain standard, construction-related and project-specific conditions, including (a) compliance with all Sanitary District, Menlo Park Fire Protection District, utility company’s, Building Division, Engineering Division, and Transportation Division regulations and requirements; (b) submission of a plan for any new utility installations and upgrades for review and approval by the Planning, Engineering and Building Divisions; (c) submission of plans and elevations for the proposed garbage enclosure, which should be covered and designed to be compatible with the existing building, subject to review and approval by the Planning Division; and (d) submission of a lighting plan, which clearly identified the fixtures and placement of all existing and proposed exterior lighting, subject to review and approval by the Planning Division.
The staff reported that the existing site and layout would be retained with only minor modifications, noting that the front façade of the building and the existing landscape would remain unchanged. The staff indicated the planning commission might wish to discuss (a) whether aesthetic changes, such as painting the structure or planting new landscaping, were warranted at the site given the nature of the proposed educational facility; and (b) whether additional landscaping to screen the parking spaces along the edge of the front property line was appropriate. The staff also indicated the renovations that would be made in the interior of the building to convert it to use as a school.
The staff also noted that the front on-site parking lot would be reconfigured. A new curb cut on O’Brien Drive would serve as vehicular ingress to the site, the existing curb cut along Casey Court would serve as the vehicular egress point from the site, and on-site vehicular circulation would become one-way. The parking spaces would be restriped to be consistent with the proposed one-way circulation; the proposed 15 on-site parking spaces would be sufficient for the proposed staff of eight adults; and the rear yard would provide an additional eight overflow parking spaces that would be unnecessary for normal site operations. Parents would drop off and pick up the students in staggered 15-minute intervals. Vehicles would enter the site and proceed to the drop-off and pick up area near the front of the building. A staff member would escort each child from and to the vehicle. Addressing a concern of a neighboring landowner regarding traffic on O’Brien Drive, the staff believed that the escorted drop-off system and fenced rear play area should ensure that the school’s children would not have an opportunity to run out into traffic. The Transportation Division had reviewed and approved the proposed parking layout and drop-off area. The staff recommended that the planning commission might wish to discuss whether the installation of a sidewalk was warranted.
Carlos Balzaretti, the school’s project manager, submitted a letter addressed to the planning commission. He indicated that the staggered drop off system would minimize the amount of parking needed in the morning. As to the pick up of children, some of the children would attend school until noon; other children stayed until 3:00 p.m.; and a minority of children stayed for extended care until 5:30 p.m. At the November 27, 2006 planning commission hearing, Sandra Balzaretti, co-owner of school, stated that 40 of the 72 children would be picked up at 3 p.m., taking about 20 minutes, and there would be other pickups at 4 p.m., 4:30 p.m., 5 p.m. and 5:30 p.m.
“In addition to the criteria for determining whether or not a use permit should be issued...,” the planning commission was also required to consider the “the following additional factors to determine that the characteristics of the [special use] will not be unreasonably incompatible with uses permitted in surrounding areas: [¶] (1) Damage or nuisance from noise, smoke, odor, dust or vibration; [¶] (2) Hazard from explosion, contamination or fire; [¶] (3) Hazard occasioned by unusual volume or character of traffic or the congregation of a large number of people or vehicles.” (Menlo Park Mun. Code, tit. 16, ch. 16.78, § 16.78.020.) The staff believed that the proposed private school would not create any such nuisance or hazards. The rear play area would generate some new noise, but the sounds of children playing would be temporary and not disruptive to the surrounding uses; and the staggered drop-off system should ensure that a large number of vehicles did not congregate on site or flow over onto the street at any particular time. The staff report noted, however, that once the school occupied the site, future businesses that use and/or store hazardous materials within 1,000 feet of the school might be required to employ additional safeguards.
On November 27, 2006, the planning commission held a public hearing on the school’s application for use permit. Associate Planner Rogers and Development Services Manager Justin Murphy, as well as representatives of the school, answered the commissioners’ questions regarding the project. The planning commission heard public comments on the application, both for and against the project, including opposing comments by John Tarlton, president of Tarlton Properties, Inc., the managing agent of MBP. Tarlton described MBP as “a 50 acre, 900,000 square foot research and industrial park immediately adjacent to the proposed site.” “The majority of the [Planning] Commission’s discussion centered on the relationship between the proposed school and the industrial character of the district.” Among other things, the “nearby property owners and business operators” voiced “concerns about the inability of a school for young children to conduct an evacuation in the event of a nearby hazardous materials (hazmat) emergency, [and] the potential for the presence of a school to hinder the operations of industrial and R&D (research and development) facilities....”
The school’s representatives, Sandra and Carlos Balzaretti, responded to the opposition by noting that neither the county nor the fire protection district required an evacuation plan as the permitted uses for hazardous materials in the area were only for research and development and did not warrant either a hazardous material evacuation plan or even an emergency plan. Although the existing businesses had permits for research quantities of chemicals, no permits had been issued for production amounts of chemicals as of the time of the school’s application. Thus, the school’s representatives had not submitted a fire protection district report to the planning commission regarding an evacuation or emergency plan based on hazardous materials in the area because there was not enough hazardous material in the area to even warrant a study.
After the public hearing was closed, the planning commission discussed the application. It found that the project was exempt from CEQA review. Nevertheless, it unanimously denied the application on the grounds that the proposed use “would further discourage investment by, and potentially hinder the operations of, R&D (research and development) and production facilities in the area, and would potentially increase the risk of exposure to children of hazardous materials....”
C. City Council Proceedings
1. February 6, 2007 Hearing
The school timely appealed the denial of its application to the city council. Before the hearing on the appeal, the community development department submitted a report, which was authored by Associate Planner Thomas Rogers and signed by Development Services Manager Justin Murphy.
The community development department report noted that the school’s site plan had been modified to incorporate staff recommendations for “revisions to the parking layout and route of travel” on the site, as well as “fencing and landscape changes to the front of the property to address safety and aesthetic concerns voiced by the Planning Commission members at the November 27, 2006 meeting.”
In its report to the city council, the planning commission staff recommended that the conditions of approval of the use permit be modified to also require the applicant to submit a revised site plan, subject to review and approval of the Planning and Building Division, showing “the access aisle next to the accessible parking space with a width of eight feet and a clear path of travel from the head of the access aisle to the front door.” The staff noted that the revision might result in the loss of one parking space and the removal of some landscaping at the front of the building.
MBP’s counsel sent a letter to Mayor Fergusson and the city council members arguing that the city council should uphold the denial of the application for a use permit. MBP alternatively argued that if the city council “responds positively to the [proposed] project,” then the use permit should not be granted without CEQA-mandated environmental studies. According to MBP, an exemption from CEQA was not warranted in this case because of the following unusual circumstances: “[t]he pre-school would be authorized to provide school services for up to 72 pre-school aged children [in] an industrial zone where hazardous materials are in use, create new traffic impacts, and require new emergency response planning, all of which are potentially significant environmental effects.”
On February 6, 2007, the city council held a public hearing on the school’s appeal. Associate Planner Rogers explained: [¶] “Since the Planning Commission meeting, staff ha[d] conducted additional research with representatives from the Menlo Park Fire Protection District and San Mateo County Environmental Health Division in order to clarify the precise requirements that apply to businesses using hazardous materials in the vicinity of school sites. [¶] With regards to the types of R&D and production facilities in the city that currently use hazardous materials, the fire district and county health representatives have stated that there would typically be no unique requirements or restrictions imposed on such businesses located in proximity to schools. [¶] However, a business using a specific set of materials known as extremely hazardous substances would be subject to additional requirements under the California Accidental Release Prevention or Cal ARP program. With regard to this category of business, staff believes [that] a use permit request to operate any such facility within the city would likely face serious challenges regardless of its precise proximity to schools and other cited land uses,” noting that with the exception of a unique facility located in an unincorporated part of San Mateo County, there were no Cal ARP facilities in any adjoining communities in East Palo Alto or Redwood City. Rogers also reported to the city council that “[t]he Fire District and County Health representatives ha[d]... confirmed that the most common procedure in the event of a hazardous material spill or release would not be to immediately evacuate the facility, but rather to shelter in place, which typically entails seeking refuge in an interior room with a limited number of windows or vents and waiting for the release to dissipate and/or be contained by emergency crews.” Associate Planner Rogers’s statements concerning the use of hazardous materials by current businesses were confirmed by a January 17, 2007 letter from Menlo Park Fire Protection District’s Assistant Fire Marshall Ronald Keefer, which was submitted to the city council.
A council member asked whether the additional information regarding the use of hazardous materials by businesses in the area had been reconsidered by the planning commission. Associate Planner Rogers replied that the additional information had not been presented to the planning commission because the reanalysis was done to determine whether the staff’s original recommendation was accurate, and with regard to the specific requirements of the fire district and the county health department, the staff felt that its original recommendation was “on a solid foundation.” Additionally, the school’s attorney’s January 30, 2007 letter to the city council reported that since the planning commission hearing, the school had completed a “Phase I study” that concerned some “very specific information about the potential environmental hazards [and] the chemicals that were stored” in the area, and the conclusion was that there were no significant environmental risks to the proposed use of the site as a school. The school’s attorney also indicated that the school’s interior rooms were suitable for the kind of shelter that would be required in case of a hazardous material accident, and that if required, the school was willing to comply with specific shelter in place requirements as a condition of the use permit.
After the public portion of the hearing, council members met in closed session to discuss the proposed findings necessary to support a motion to approve the appeal. During the discussion, council members noted, among other things, that even though the project was described as being located in the interior of the M-2 district it was actually located on one edge of the district, and based on the community’s record and the number of children and schools already in the area, the addition of another school would not likely cause the businesses in the M-2 district to leave the area.
The city council voted on a modified motion to approve the appeal, adding directions to the staff to (1) modify the draft findings supporting the appeal based upon the comments of the council members, and (2) return the matter to the city council for final approval of the findings supporting the appeal. The modified motion carried by four votes with one council member opposing.
2. March 13, 2007 Meeting
The proposed “findings for granting an appeal to approve [the school’s] Use Permit” was considered at a city council meeting held on March 13, 2007. At that meeting, Associate Planner Rogers indicated that since the publication of the staff report submitted at the February 6, 2007 hearing, additional correspondence had been received from (a) the chief of the fire protection district opposing the application, (b) counsel for MBP opposing the application; (c) counsel for the school supporting the application, and (d) Menlo Park Chamber of Commerce opposing the application.
In his March 12, 2007 letter, the fire chief noted that the fire protection district had determined that there were no Health and Safety Code provisions that prohibited the school from occupying the location, but that the presence of hazardous materials in close proximity to a day care facility is a significant cause for concern. The fire chief commented that “[i]f a significant emergency were to occur, the physical presence of the children at this site would have an immediate impact on the Fire District’s tactical operations. The safety of the children would become the first priority of the response teams, diverting critical resources and lengthening response time to the mitigation of the actual emergency.”
Because of the late submission of the fire chief’s correspondence, a council member asked the staff to explain the discussions previously held with the fire protection district’s representatives regarding the application. Associate Planner Rogers stated that the fire protection district representatives had been contacted before the November 2006 planning commission hearing regarding the different requirements for the use of hazardous materials by businesses located near the project. After the planning commission’s denial, the staff held a supplemental meeting with representatives of the fire protection district and the county health agency to verify that nothing had been misrepresented to the planning commission in advance of the earlier city council meeting. The “feedback from that meeting” was consistent with the information in the staff report that the council members considered at the February 6, 2007 hearing.
During the public comment portion of the meeting, Sandra Balzaretti stated that she had spoken to the fire chief, who told her that his correspondence represented his opinion that in an ideal situation, schools should not be close to businesses using hazardous materials, and that his letter was prompted by a request of the former city mayor, who apparently was representing someone within the Tarlton family. MBP’s representative John Tarlton stated that he believed that “[t]his matter is fundamentally a land use dispute, and it’s a dispute about the future of this portion of M-2. It’s not a debate about the school. [¶] The question is instead the conflicting visions for this land area. [¶] Casa dei Bambini envisions a light industrial office and commercial zone. The current landowners including Menlo Business Park, envision an industrial and R&D zone.” Tarlton also noted that a school was not compatible with the existing and planned industrial research and development uses in this portion of the M-2 district; and that the matter should be sent back to the planning commission because the constraints on the business community had not been fully investigated and the city council was being asked to make a decision on an incomplete record and incomplete information.
Keith B. Higgins, a civil and traffic engineer, spoke concerning the information in a letter report, prepared at the request of MBP, and submitted to the city council on March 13, 2007. Higgins stated he had concerns about site planning issues including on-site parking dimensions that did not meet the requirements of the city’s parking ordinance, and that the city “might need” to look at the adequacy of on-site space to drop off and pick up children to prevent potential congestion and vehicle conflict at the project’s driveway on O’Brien Drive. Higgins suggested that the city consider requiring on-site exterior lighting and sidewalks, and recommended that the school’s representatives be questioned about the possible need for parking for special events at the school.
After closing the public portion of the meeting, the council members discussed whether to accept the proposed findings submitted by the staff, as written or with modifications, or whether the application should be returned to the planning commission for further review and evaluation. The council members discussed both the fire chief’s recently submitted correspondence and the traffic expert’s statements regarding special event parking. Some council members commented that the fire chief’s letter lacked information regarding the magnitude of prior accidents at the industrial park, and how many accidents actually required evacuation; that the fire protection district would necessarily have prioritization its operations given the number of child care and school facilities already in the immediate area; and that the fire chief’s concern of “an extra operational burden” caused by the proposed school was part of his responsibilities. The traffic expert’s comment about special event parking was found to be “confusing” because the building’s prior occupancy showed that the area could support parking for the parents of the children attending the school.
A majority of the city council (four to one) approved the proposed findings granting the school’s appeal. The city council adopted the following CEQA findings: “[T]he project is categorically exempt under Class 1 (Existing Facilities) of the current CEQA Guidelines, because: (1) the project consists only of the operation of and minor alteration to an existing private physical structure and facility, involving negligible if any expansion of use beyond that which has previously existed, including interior and exterior alterations; (2) the presence of children at the project location is not an unusual circumstance in light of the long-established presence of multiple child care, day care, and school facilities and residential housing within the zone and in the immediate vicinity of the project location; and (3) the project will not result in a significant effect on the environment, because (a) the project involves only a change in the economic or social use of the property, not any substantial change in the physical conditions within the area affected by the project; and (b) the presence of children at the project location will not result in substantial additional burden on existing or future users with respect to the use or storage of hazardous materials, due to the existing presence of multiple child care, day care, and school facilities and residential housing in the immediate vicinity of the project location.”
D. Trial Court Proceeding
MBP filed a petition for writ of mandate and a complaint for declaratory relief arguing that as a nearby property owner it had a beneficial interest in the matter, and that the city had violated its Municipal Code, and CEQA and the Guidelines. Respondents City of Menlo Park and the city council filed an answer and asserted several affirmative defenses, including that MBP had no standing to pursue any relief. The school adopted the city’s responsive pleading as its own. The parties also filed trial briefs in support of their positions.
MBP also named the owners of the property as real parties in interest. However, the property owners have taken no position in the litigation, were not required to appear or file briefs or other papers in the trial court, and they agreed to be bound by the rulings and judgment issued in the matter. Similarly, the property owners have not joined in the joint brief filed by respondents on this appeal.
On March 6, 2008, after a hearing, the trial court issued a final statement of decision in which it denied the writ petition and dismissed the complaint. The court found that MBP had no standing to challenge the city’s alleged noncompliance with its Municipal Code and CEQA and its Guidelines, and that MBP’s substantive challenges to the city council’s decision were without merit. MBP’s timely appeal ensued.
DISCUSSION
I. CEQA and Its Guidelines
MBP challenges the city council’s findings that the project was categorically exempt from CEQA review, and that the project would not have a significant effect on the environment due to unusual circumstances. We conclude that MBP’s contentions are unavailing.
In light of our determination, we need not address the trial court’s finding that MBP had no standing to pursue the substantive issues it raises in its petition and complaint.
A. City Council Properly Applied Existing Facilities Exemption
“The Legislature has authorized the Secretary of the Resources Agency to adopt a list of classes of projects determined to be exempt from CEQA because they ‘do not have a significant effect on the environment.’ [Citation.] Such classes of projects are ‘declared to be categorically exempt from the requirement for the preparation of environmental documents.’ [Citation.] The determination whether a project is exempt under one of these classes is made as part of the preliminary review process prior to any formal environmental evaluation of the project. [Citation.]... ‘Where a project is categorically exempt, it is not subject to CEQA requirements and “may be implemented without any CEQA compliance whatsoever.” ’ [Citation].” (Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 688 (Save Our Carmel River).)
The city council’s “determination that the project was exempt from compliance with CEQA requirements... is subject to judicial review under the abuse of discretion standard in [CEQA] section 21168.5. [Citations.]... 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.’ [Citation.] [¶] Where the issue turns only on an interpretation of the language of the Guidelines or the scope of a particular CEQA exemption, this presents ‘a question of law, subject to de novo review by this court.’ [Citations.] Our task is ‘to determine whether, as a matter of law, the [project] met the definition of a categorically exempt project.’ [Citation.] Thus as to the question whether the activity comes within the categorical class of exemptions, ‘we apply a de novo standard of review, not a substantial evidence standard.’ [Citations.]” (Save Our Carmel River, supra, 141 Cal.App.4th at pp. 693-694.) However, “[w]here the record contains evidence bearing on the question whether the project qualifies for the exemption, such as reports or other information submitted in connection with the project, and the agency makes factual determinations as to whether the project fits within an exemption category, we determine whether the record contains substantial evidence to support the agency's decision. [Citations.] There must be ‘ “substantial evidence that the [activity is] within the exempt category of projects.” [Citation.]’ [Citation.]” (Id. at pp. 693-694.)
The city council found that the proposed school was categorically exempt as a Class 1 activity under Guidelines section 15301, entitled “Existing Facilities.” The Guidelines describe existing facilities that are categorically exempt projects as activities concerning “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination. The types of ‘existing facilities’ itemized [in this category] are not intended to be all-inclusive of the types of projects which might fall within Class 1. The key consideration is whether the project involves negligible or no expansion of an existing use.” (Guidelines, § 15301.)
MBP argues that the project cannot fall within the existing facilities exemption because the new use as a “large daycare facility,” which requires a use permit for a special use in the M-2 district, is completely different from the prior use of the building described by the planning commission staff as “[v]acant [i]ndustrial.” We disagree. The city’s reliance on the existing facilities exemption was not barred by the building’s vacancy at the time of the application for a use permit, the change in the type of occupants of the building (from 75 adults to 72 children and 8 adults), or the requirement that the school obtain a use permit to operate a special use in the M-2 district. The circumstances cited by MBP are not mentioned in the Guidelines exemption because they concern issues separate from whether a project is categorically exempt from CEQA review. Contrary to MBP’s contention, the exemption categories are not to be narrowly constructed, but are to be considered “within the reasonable scope” of the Guidelines language. (Dehne v. County of Santa Clara (1981) 115 Cal.App.3d 827, 842.) Under MBP’s argument, CEQA review would be required—without any showing of a significant adverse impact on the environment—whenever a commercial enterprise moved into an existing building that had been vacant, and the new commercial enterprise was different from the previous occupant’s business.
MBP’s reliance on County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931 (Amador), and Lewis v. Seventeenth Dist. Agricultural Assn. (1985) 165 Cal.App.3d 823 (Lewis), is misplaced. The Amador project concerned a hydroelectric facility that proposed a change from providing only hydroelectric power to also providing consumptive water supplies by using an additional 17,000 acre feet of water annually from three high Sierra lakes. (Amador, supra, 76 Cal.App.4th at pp. 940, 941, 967.) The Lewis project concerned an auto racing facility that was changed from a flat dirt race track for sporting events, including “ ‘stock’ ” and “ ‘jalopy’ ” auto racing, to a banked race track permitting higher-powered “ ‘modified stock’ ” car racing at higher speeds and with greater noise and dust. (Lewis, supra, 165 Cal.App.3d at pp. 826, 829.) In both Amador and Lewis, the projects themselves caused a physical change in the environment. Here, as noted by the trial court, “[t]he conversion of a vacant building into a childcare facility is not effectuating any physical change to the environment,” because there was essentially no proposed exterior physical change to the building (except for painting), and the occupancy of the building by 72 children and 8 adults (instead of 75 adults) does not constitute a physical change in the environment.
MBP’s reliance on the day care center example included in the Guidelines as an example of an activity covered by the existing facilities exemption is also misplaced. “The types of ‘existing facilities’ itemized [in the Guidelines] are not intended to be all-inclusive of the types of projects which might fall within” the exemption. (Guidelines, § 15301.) The Guidelines list as an activity that may fall within the exemption the following activity: “use of a single-family residence as a small family day care home” for eight or fewer children. (Guidelines, § 15301, subd. (p); see Health & Saf. Code, § 1596.78, subd. (c) [definition of a small family day care home].) MBP contends that the existing facilities exemption “should not be interpreted to permit a change in use to a daycare center in an industrial area with heightened environmental issues such as the nature of an emergency response during a hazardous materials emergency where the proposed daycare is 900% larger than would be permitted in a residential area absent any environmental review.” However, we agree with the trial court that MBP’s contention is “misguided.” The day care home example concerns a change from a private residence to a commercial business use where the change from residential to business use is deemed sufficiently de minimus if the number of day care children is very limited. Here, we are concerned with the commercial use of a building by a similar number of persons than had previously occupied the building, also for a commercial purpose.
We are not persuaded by MBP ’s argument that respondents should be judicially estopped from arguing that the school is exempt from CEQA review simply because the building will not be physically expanded or changed except for minor alterations. In support of its argument, MBP contends that a few months before the city council approved the school project, it had required a different use permit applicant to prepare a full environmental impact report for its proposed project even though no change to the building’s physical structure was planned. MBP asks us to take judicial notice of the city council’s prior land use determination regarding a project on Middlefield Road, described as “the conversion of an existing 48,400-square foot general office building into a medical office building, exterior modifications to the building, and improvements to the site, including street frontage improvements along Middlefield Road and Linfield Drive.” (Hereinafter referred to as the Middlefield Road project.) The Middlefield Road project also “include[d] the removal of eight heritage trees, the relocation of three heritage trees, and the installation of over 80 24-inch box trees.” Before its action in this case, the city council approved the Middlefield Road project, which included a “Use Permit, Architectural Control, and Heritage Tree Removal Permit.” Our consideration of MBP’s request for judicial notice was deferred until this time. We now deny the request for judicial notice on the grounds that the issue of judicial estoppel is not properly before us, and in any event, the city council’s prior land use determination is not relevant to the matter before us.
MBP contends it did not waive its judicial estoppel argument because in its unsuccessful motion for a preliminary injunction, it noted the inconsistency of the earlier land use decision. The prior land use decision was also referred to in MBP’s opening trial brief in support of its petition. However, MBP never asked the trial court to take judicial notice of the prior land use decision and it did not at any time seek a court ruling on the issue of judicial estoppel. Judicial estoppel “is an equitable doctrine” (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422) to be applied in the first instance by the trial judge, whose decision we would then review for an abuse of discretion. (CaliforniaAmplifier, Inc. v. RLI Ins. Co. (2001) 94 Cal.App.4th 102, 118). To permit MBP to raise the issue of judicial estoppel without having litigated the relevant facts and sought a decision from the trial court in the first instance “would unnecessarily burden” us with an issue that should have been resolved at the trial court level. (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev.Co. (1977) 66 Cal.App.3d 101, 122.) Consequently, we may treat the issue “as waived, or meritless, and pass [it] without further consideration.” (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.)
In any event, we see no relevance to the city council’s prior land use decision requiring CEQA review of the Middlefield Road project. “[I]t may be that, because of facts specific to such [project], some exception to the categorical exemption did apply to [it]. Or, it may simply be that [the city council] failed to consider using, or decided not to use, the categorical exemption as to such project[].” (Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 Cal.App.4th 786, 794, fn. 8.) MBP cites no authority, and we have found none, that demonstrates that the prior land use decision “legally compels [the city council] to follow a similar course as to all future [projects].” (Ibid.)
B. City Council’s Reliance on Existing Facilities Exemption Was Not Precluded By Unusual Circumstances
Guidelines section 15300.2, subdivision (c), provides that “[a] categorical exemption shall not be used for [a particular] activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” “The application of Guidelines section 15300.2(c) involves two distinct inquiries. First, we inquire whether the Project presents unusual circumstances. Second, we inquire whether there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances. [Citation.] ‘A negative answer to either question means the exception does not apply.’ [Citation.]” (Banker’s Hill, Hillcrest Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 278 (Banker’s Hill).) The burden of showing “unusual circumstance” rests on MBP, the party challenging the city council’s reliance on the existing facilities exemption. (Ibid.)
As to the first inquiry regarding whether the project presents unusual circumstances, MBP argues that the project does so in that the school will be located “in an industrial business zone with hazardous [material] users,” and the school “will bring children into close proximity to potentially hazardous conditions.” However, the city council appropriately found that the presence of children was not an unusual circumstance in light of the existing presence of child care, day care, and school facilities as well as residential housing within the zone and in the immediate vicinity of the project location. (See Bloom v. McGurk (1994) 26 Cal.App.4th 1307, 1316 [presence of comparable facilities in the immediate area of the project adequately supports finding that no “unusual circumstances” preclude categorical exemption]; City of Pasadena v. State of California (1993) 14 Cal.App.4th 810, 826-827 (Pasadena) [use of facility as a parole office does not constitute an “unusual circumstance” within meaning of CEQA in light of presence of other custodial and criminal justice facilities in the immediate area], disapproved on another ground in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, fn. 2, 576, fn. 6.)
MBP also argues that the project presents unusual circumstances because the presence of the students may have a significant impact on emergency services in the event of a hazardous materials accident at the nearby industrial park. However, MBP’s argument ignores the fact that the purpose of CEQA review “ ‘is to identify the significant effects on the environment of a project...’ [citations], not the impact of the environment on the project, such as [a] school’s students and staff.” (City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 905; see also Clinton Community Hospital Corp. v. Southern Maryland Medical Center (D.C. Md. 1974) 374 F.Supp. 450, 456-457 [National Environmental Protection Act (federal counterpart to CEQA) is concerned with effect of the project on surrounding environment, not the effect of the environment on the project], affd. (4th Cir. 1975) 510 F.2d 1037.)
Nor are we persuaded by MBP’s argument that its traffic expert’s letter report demonstrates that the project presents unusual circumstances within the meaning of CEQA. The traffic expert described certain deficiencies in parking spaces, inadequacy in the on-site drop off area, on site queuing capacity, recommendations for pedestrian sidewalks and street lighting, and then concludes that “there are a number of traffic and parking related issues that need to be resolved to ensure that the project does not create circulation problems along O’Brien Drive in the project vicinity.” However, the circumstances discussed by the traffic expert do not “ ‘differ from the general circumstances of... projects’ ” that would fall under the existing facilities exemption. (Banker’s Hill, supra, 139 Cal.App.4th at p. 278.) Often when a new commercial enterprise moves into a vacant existing building in the M-2 district there will be some “minor adverse changes in the amount and flow of traffic and in parking patterns in the area.... [S]uch effects cannot be deemed ‘significant’ without a showing of some feature of the project that distinguishes it from” other similar commercial enterprises in the immediate area. (Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1260 (Fairbank) [concerns of existing traffic and parking problems and the prospect of the project exacerbating those problems are not “unusual circumstances” giving rise to any risk of “significant” effects upon the environment].)
Nor has MBP met its burden of establishing “the other prong of the exception: that there is a reasonable possibility that the [project] would have a ‘significant effect’ on the environment within the meaning of Guidelines section 15300.2, subdivision (c).” (Pasadena, supra, 14 Cal.App.4th at p. 827.) The Guidelines define “environment” to mean “the physical conditions which exist within the area which will be affected by a proposed project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.” (Guidelines, § 15360.) A “significant effect on the environment” is defined in relevant part as “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.” (Guidelines, § 15382.) “Effects analyzed under CEQA must be related to a physical change.” (Guidelines, § 15358, subd. (b).) “ ‘Economic and social changes resulting from a project will not be treated as significant effects on the environment.’ [Citations].” (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1019.) In other words, “ ‘[e]vidence of economic and social impacts that do not contribute to or are not caused by physical changes in the environment is not substantial evidence that the project may have a significant effect on the environment.’ [Citation.]” (Ibid.)
There is a split of authority on the appropriate standard of review of the second prong of the analysis. “Some courts have relied on cases involving review of a negative declaration, holding that a finding of categorical exemption cannot be sustained if there is a ‘fair argument’ based on substantial evidence that the project will have significant environmental impacts, even where the agency is presented with substantial evidence to the contrary. [Citation.] Other courts apply an ordinary substantial evidence test to questions of fact relating to the... exception, deferring to the express or implied findings of the local agency that has found a categorical exemption applicable. [Citations.]” (Fairbank, supra, 75 Cal.App.4th at pp. 1259-1260.) We need not resolve the matter. Even if we apply the fair argument standard, we conclude that MBP has failed to meet its burden of demonstrating that “the record contains any substantial evidence supporting a fair argument that the [p]roject will have a significant effect” on the environment. (Banker’s Hills, supra, 139 Cal.App.4th at p. 281.)
MBP argues that the placement of a large daycare facility in an industrial area surrounded by hazardous material users creates a reasonable possibility of a significant effect on the environment because the school will attract children to the location, expose them to the risk of harm due to an accident involving the use of hazardous materials by adjoining landowners, and the fire protection district will have to change its tactical operations to consider the children’s safety first and to the detriment of the adjoining landowners. MBP contends the school project is analogous to the construction of a subdivision astride an active earthquake fault line or a situation in which a project causes people or structures to be exposed to major geologic hazards, which situations require CEQA review. However, as noted, CEQA review concerns the project’s effects on the environment, not the impact of the environment on the project, such as the school’s students and staff. (City of Long Beach v. Los Angeles UnifiedSchool Dist., supra, 176 Cal.App.4th at p. 905.) The possibility of a hazardous material accident on an adjoining landowner’s property and the fire chief’s concerns about the fire protection district’s tactical operations in the case of an emergency at the nearby industrial park, raise “economic [and] business” concerns, and not environmental concerns within the meaning of CEQA.
Nor has MBP shown that the record contains substantial evidence supporting a fair argument that the project will have a significant effect on traffic in the area. (Banker’s Hill, supra, 139 Cal.App.4th at p. 281.) “Under the Guidelines, a project will normally have a significant effect on the environment if it will ‘[c]ause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system.’ ” (Banker’s Hill, supra, 139 Cal.App.4th at p. 277, quoting Guidelines, appen. G, § XV, subd. (a); italics added; see City of Orange v. Valenti (1974) 37 Cal.App.3d 240, 249 [when the project was in “a commercial area of such character that a few dozen additional cars (or a few hundred depending on the economy) would be expected to be a logical part of that local environmental picture, it could be said that [a project] would have no significant effect on the environment of that particular area”].) In his letter report, MBP’s traffic expert estimated that “the school would generate approximately 4 to 5 times more daily trips and 3 to 5 times more peak hour trips than that of a warehouse or manufacturing land use.” However, the expert did not contend that there was a reasonable possibility, or any possibility, that the increased traffic or air emissions from the traffic, if allowed, may have a significant adverse effect on the traffic or environment existing in the immediate area. MBP merely assumes that the raw data supports a reasonable possibility that an environmental impact will be “significant.” However, MBP does not explain why the evidence would support a conclusion of significance. (See Citizen Action To Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 756.)
We conclude by noting that MBP’s objections are “really a thinly disguised attack” on the city council’s “policy decision” to allow a school to operate so closely to MBP’s property in the M-2 district. (Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1082.) The “substantive correctness of that [policy] decision” is not before us on this appeal and we express no opinion on the matter. (Id. at p. 1083.)
II. City of Menlo Park Municipal Code
MBP argues that even if the city council appropriately determined the project was exempt from CEQA review, reversal is required because the city council failed to remand the application to the planning commission for further consideration of the new information submitted at the March 13, 2007 city council meeting. We disagree.
Menlo Park Municipal Code, title 16, chapter 16.82, section 16.82.040, provides that “[i]f on appeal, any material information or evidence is submitted to the City Council which was not presented or made available to the planning commission, the application shall be returned to the planning commission for its reconsideration.” The relevant factor is that the information and evidence be “material” so as to “further[] public participation in the CEQA process” but “not unduly prolong[ ] the process so that the process deters development and advancement.” (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1132.) Having found the project was exempt from CEQA review, the city council appropriately decided the new information submitted at the March 13, 2007 meeting was not “material information or evidence” that required reconsideration of the application by the planning commission.
DISPOSITION
The final statement of decision filed March 6, 2008 is affirmed. Respondents are awarded costs on appeal.
We concur: Siggins, J., Jenkins, J.