Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. MSN06-1130
OPINION
Haerle, Acting P. J.
I. Introduction
Plaintiff and appellant, Brad Sanders, appeals from an order denying his petition for writ of mandate. He contends that defendants and respondents City of Pleasant Hill, Pleasant Hill Planning Commission and Pleasant Hill City Council (the City) unlawfully applied, to a project put forward by real party in interest Harman Management Corporation, a categorical exemption under the California Environmental Quality Act (CEQA). He also argues that the City’s approval of a use permit and development plan permit for the project violated the City’s Municipal Code.
CEQA is codified at Public Resources Code section 21000 et seq. CEQA is augmented by the state CEQA Guidelines, codified at title 14 of the California Code of Regulations section 15000 et seq. Unless otherwise specified, statutory references are to the Public Resources Code. The state CEQA Guidelines will be referred to as “Guidelines.” We afford the Guidelines “great weight.” (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123, fn. 4.)
We disagree and affirm the order.
II. Factual and Procedural Background
The subject of this appeal is a proposal to tear down and rebuild a Kentucky Fried Chicken restaurant located in the City of Pleasant Hill, in Contra Costa County (the Project). The restaurant is located on a .53-acre site “on the east side of Contra Costa Boulevard just south of the intersection at Chilpancingo Parkway and Contra Costa Boulevard. The site is developed with a 2,971 square foot restaurant building that does not include a drive-through facility.” “The project entails the demolition [of the old facility] and the development of a 3,052 square foot KFC/A&W Root Beer restaurant with a drive-through facility.”
On February 28, 2006, the City of Pleasant Hill notified the Project’s proponent, Harman Management, that its application was complete and that a public hearing before the City Planning Commission would be held on March 28, 2006. Notice of the public hearing stated that, at the public hearing, “The Planning Commission will hear a Use Permit and Development Plan request by the applicant to construct a new 3,052 square foot restaurant facility. In addition, the applicant is requesting a Use Permit for a drive thru service window and for reduced parking for a single use in accordance with 18-55.050 of the Zoning Ordinance. The existing 2,971 square foot KFC restaurant building will be demolished. [¶] Pursuant to section 15302 of the C[EQA], as amended, the proposed project is determined to be a Class 2 categorical exemption.” (Italics omitted.)
In the staff report to the Planning Commission, the project was described as a .53-acre site “developed with a 2,971 square foot restaurant building that does not include a drive-through facility. Site topography is relatively flat. . . .” The surrounding uses are described as a Goodyear Tire store to the north of the Project site, and Interstate 680 to the east. To the west, across Contra Costa Boulevard and to the south, are retail businesses.
The staff report describes the project’s “CEQA status” as follows: “Pursuant to section 15302 of the C[EQA], as amended, the proposed project is determined to be a Class 2 categorical exemption. The project is considered to not have a significant impact on the environment as a use that provides for the replacement of an existing structure where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the commercial structure replaced.” Staff recommended that the “Planning Commission adopt the staff recommended resolution approving the Use Permit and Development Plan.”
On March 28, 2006, Sanders faxed a letter to the Planning Commission. In this letter, he stated that he had not had time to study the proposed project, had just spoken with the Planning Department, and believed that “some of the issues . . . may impact my property.” These “issues” were as follows: “parking; damage to or removal of trees and landscaping bordering and/or on my property; access to the southern side of my building that may be affected by the drive thru; and access and safeguards to be taken during construction. Additionally, the issue of the trash enclosure and the loading areas serving my building as referenced by City Staff Reports have not been addressed.” Sanders requested a 60-day postponement of the Planning Commission vote on the proposal.
That same day, on March 28, 2006, the Planning Commission adopted a resolution conditionally approving respondent’s application.
On April 10, 2006, Sanders filed an appeal of the Planning Commission’s decision to approve respondent’s Development Plan and Use Permit Applications. The appeal objected in general to the decision to approve the Development Plan and Use Permit applications and specifically raised issues related to the proposed drive-through facility and the reduced parking. The appeal also noted that no traffic study was undertaken and took issue with the City’s purported “failure to apply its own zoning ordinances and to recognize the adverse impacts which the approval of this project will have upon the appellant’s business and adjoining property.” Sanders stated that his opposition was not to the “redevelopment of the existing site and the reconstruction of an outdated facility to a multi branded restaurant building” but, rather to “the proposed drive through facility.”
The City Council considered the appeal on May 1, 2006. The Notice of Public Hearing sent out prior to the hearing states that the appeal was directed at the Planning Commission decision conditionally approving the project and addresses issues related to parking, traffic, access to an existing delivery door and trash enclosure and conflict with existing shared easements. The notice described the property’s location and stated that, “[p]ursuant to section 15302 of the C[EQA], as amended, this project is determined to be a Class 2 categorical exemption.”
After a public hearing, during which there was extensive discussion of parking issues, traffic issues, and the impact of the drive-through restaurant on appellant’s neighboring business, the City Council denied appellant’s appeal.
Sanders filed a petition for writ of mandate on July 18, 2006. In this petition, he alleged that the City had violated CEQA by finding that the Project was exempt under Guidelines section 15302, subdivision (b). He also alleged that the denial of his appeal was an abuse of discretion because, in approving the Project, the City violated its municipal code.
Sanders lodged a proposed supplemental administrative record and the trial court excluded those documents that were not originally before the City Council, with the exception of documents regarding the City’s planning guidelines and municipal code, which the trial court judicially noticed.
A hearing was held on March 16, 2007 and on July 2, 2007. The trial court filed a lengthy statement of decision, denying the writ petition and upholding the City’s actions.
This timely appeal followed.
III. Discussion
A. Exhaustion of Administrative Remedies
Before we turn to the substantive issues raised by Sanders in this appeal, we first consider the City’s argument that Sanders waived the issue of the City’s compliance with CEQA because he failed to challenge the project’s exempt status when he appealed the Planning Commission decision to the City Council. We disagree.
In general, a litigant who wishes to challenge a public agency’s action under CEQA must first bring the alleged grounds for CEQA noncompliance to the attention of the public agency that approved the project. Having done so, a litigant may then seek review of that approval in the trial court. (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523; Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109; Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1209-1211 (Azusa).)
In order to determine whether Sanders exhausted his administrative remedies on the issue of the Project’s exempt status, we must consider the nature of a finding that a project is categorically exempt. As the Azusa court explains, when a public agency initially determines that an activity is exempt from CEQA it may prepare a notice of exemption that may be kept with the project application. (Guidelines, § 15061, subd. (d).) However, it is not until after a project is approved that a formal notice of exemption may be issued and may be filed with either the Office of Planning and Research or with the county clerk. (Guidelines, § 15062, subd. (a); Azusa, supra, 52 Cal.App.4th at p. 1192 [public agency not required to prepare a notice of exemption].)
The statute of limitations for challenging a determination that a project is exempt from CEQA takes into account the permissive nature of the notice of exemption procedure. Thus, “[i]f a notice of exemption is filed, the filing starts a 35-day statute of limitations ‘on legal challenges to the agency’s decision that the project is exempt from CEQA. If a Notice Of Exemption is not filed, a 180[-]day statute of limitations will apply.’ (Guidelines, § 15062, subd. (d).)” (Azusa, supra, 52 Cal.App.4th at p. 1192.)
In Azusa, as in this case, the public agency did not file a notice of exemption. When this occurs, “[t]he only prerequisite to an action challenging an exemption determination is that it be brought within 180 days of the date of the final decision of the agency.” (Azusa, supra, 52 Cal.App.4that p. 1210.) Thus, Sanders was required to do nothing more than timely challenge the final decision of the City, which he has done.
The City, however, contends that Sanders had an administrative remedy whereby he could appeal its determination that the Project was categorically exempt from CEQA and, because he did not do so, he failed to exhaust his administrative remedies. In making this argument, the City points to (1) general language in its municipal code to the effect that decisions of the Planning Commission may be appealed to the City Council and (2) to provisions in its municipal code allowing appeals from “an administrative action taken.”
The existence of municipal codes that permit an appeal from Planning Commission decisions and from other administrative actions does not, however, alter the fact that no notice of exemption was filed in this case. Therefore, Sanders did not fail to exhaust his administrative remedies when his appeal to the City Council did not mention the Project’s exempt status.
B. Categorical Exemption
1. Background
The CEQA Guidelines enumerate 33 classes of projects that may be found exempt from CEQA review. These exemptions apply to projects that ordinarily do not have a significant impact on the environment. (Azusa, supra, 52 Cal.App.4th at p. 1191.) In this case, the City determined that the Project was exempt from CEQA and, therefore, from further environmental review. (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 113.) The exemption relied on by the City applies to projects that replace or reconstruct “existing structures and facilities where the new structure will be located on the same site as the structure replaced, including but not limited to: [¶] . . . [¶] (b) [r]eplacement of a commercial structure with a new structure of substantially the same size, purpose, and capacity.” (Guidelines, § 15302, subd. (b).)
The trial court found that the City did not err in finding the Project exempt. It specifically found that “there is substantial evidence in the record to support the City’s determination that the Project qualifies for a Class 2 exemption.” The court pointed out that “the new proposed restaurant will have substantially the same size, purpose and capacity as the existing restaurant. The current structure is 2,971 square feet and will be replaced by a structure of 3,052 square feet on the same parcel—an increase of only 81 feet. [Citation.] The new restaurant will be double-branded and includes a drive-through lane. As to capacity, inside seating will decrease from 63 to 55 seats in the new restaurant [citation]; and designated parking spaces will increase from 21 to 22.” Sanders challenges the City’s finding that the Project is exempt under this Guideline.
The Guidelines also provide an exception to the exemptions in situations in which there is a reasonable possibility that a project will have a significant effect on the environment due to unusual circumstances. Thus, Guidelines section 15300.2, subdivision (c) provides that “[a] categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” The trial court concluded that Sanders failed to carry his burden that the Project was subject to an exception to the categorical exemption, and Sanders also challenges this conclusion.
2. Standard of Review
In reviewing the issue of whether the City erred in finding the Project categorically exempt, we first ask whether the City properly determined that the Project fell within the exemption set out under Guidelines section 15302, subdivision (b). Second, we determine whether Sanders failed to meet his burden of showing that the Project fell within the exception set forth in Guidelines section 15300.2, subdivision (c).
We apply different standards of review to these two issues. With regard to the application of Guidelines section 15302, subdivision (b), to the Project, the authorities are in agreement that “the substantial evidence test governs our review of the city’s factual determination that a project falls within a categorical exemption.” (Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1251 (Fairbank); Davidon Homes v. City of San Jose, supra, 54 Cal.App.4th at p. 115.)
In Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 261, footnote 10 (Banker’s Hill), the court pointed out that “[c]ase law defines ‘substantial evidence’ supporting an agency’s decision as ‘ “relevant evidence that a reasonable mind might accept as adequate support for a conclusion” ’ [citation] or ‘evidence of “ ‘ponderable legal significance . . . reasonable in nature, credible, and of solid value’ ” ’ [citation]. CEQA section 21080(e)(1) states: ‘For the purposes of this section and this division, substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.’ ”
Despite the clear authority to the contrary, in his opening brief Sanders contends that the determination of whether an exemption applies to a project is subject to the “fair argument” standard. He argues that the City’s determination that an exemption applies cannot be sustained if “there is any substantial evidence that the project does not satisfy” the exemption. As we have explained, the applicable standard of review to this question is the substantial evidence standard.
Our standard of review is different, however, when we review the second issue, namely the question of whether any exception to the exemption applies. Here, we apply the “fair argument” test, that is, we independently review the record to determine whether it contains evidence of a fair argument that the project may have a significant effect on the environment. (Banker’s Hill, supra, 139 Cal.App.4th at p. 264.)
In reaching this conclusion, we acknowledge that, a decade ago, in Fairbank, supra, 75 Cal.App.4th 1243, our colleagues in Division Four noted that “[t]here is a split of authority on the appropriate standard of judicial review for a local agency’s decision on the applicability of the Guidelines section 15300.2(c) exception to a project that has been found to fall within a categorical exemption.” The Fairbanks court explained that “[s]ome 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 significant effect exception, deferring to the express or implied findings of the local agency that has found a categorical exemption applicable.” (Id. at pp. 1259-1260.)
Recently, however, the court in Banker’s Hill, supra, 139 Cal.App.4th at pages 264-267, made a strong argument that the appropriate standard of review for this issue should be the “fair argument test,” given that a categorical exemption is applicable only in those situations in which a project has no potentially significant environmental impacts, an issue that is generally reviewed under the “fair argument” standard. (See also Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1396-1397; Azusa, supra, 52 Cal.App.4th 1165, 1202; Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 656.) We agree with the Banker’s Hill court that the “fair argument” standard applies to this issue.
Under the “fair argument” standard of review, our “ ‘function is to determine whether substantial evidence supported the [City’s] conclusion as to whether the prescribed “fair argument” could be made.’ ” (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602.) On this question, we will “independently review the agency’s determination under Guidelines section 15300.2(c) to determine whether the record contains evidence of a fair argument of a significant effect on the environment.” (Banker’s Hill, supra, 139 Cal.App.4th at p. 264.) “If, in independently reviewing the record, we perceive evidence of a fair argument that there may be a significant effect on the environment due to unusual circumstances, we will conclude that the City abused its discretion because its decision to the contrary is not supported by substantial evidence.” (Id. at p. 267.)
We turn now to each of these issues, considering first whether substantial evidence supports the City’s conclusion that the Project is categorically exempt under CEQA and second, whether there is evidence of a fair argument that the Project may have a significant effect on the environment due to unusual circumstances.
3. Guidelines Section 15302, Subdivision (b) Exemption
Guidelines section 15302, subdivision (b), creates a categorical exemption for those projects involving the “replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced, including but not limited to: [¶] . . . [¶] (b) Replacement of a commercial structure with a new structure of substantially the same size, purpose, and capacity.”
Substantial evidence supports the City’s conclusion that the Project falls under this categorical exemption because the Project’s “size, purpose, and capacity” would be substantially the same as the former facility. First, as to size, the existing facility is a 2,971-square-foot Kentucky Fried Chicken fast food restaurant. The new facility is 3,052 square feet—an 81-square-feet increase that is little different in size than the existing facility. Second, the purpose of the new restaurant is substantially similar as the purpose of the original restaurant: it will continue to operate as a fast food restaurant, moving from serving only food from Kentucky Fried Chicken to incorporating items from A&W Root Beer’s menu. Third, with regard to capacity, the record indicates that the new restaurant will seat 55 customers, rather than the original 63, have one more parking space than the original facility, but will include a drive-through option. The facility would not increase its staff. Because the record contains substantial evidence to support the City’s finding that the Project’s “size, purpose and capacity” is substantially the same as the original facility, the City did not err in finding the Project categorically exempt.
Sanders however, argues that, contrary to the City’s finding, the new restaurant will significantly increase its capacity. In support of this argument, he cites a statement by the Project proponent in its answer to Sanders’s mandamus petition that it “anticipates increased sales of approximately 50%.” In the same answer, the proponent also “denies that this will necessarily lead to an increase in use of the property by approximately 50%.” Sanders is incorrect.
A site’s “capacity” is the output of which it is capable, which is not always identical to its output prior to its modernization. For example, in Dehne v. County of Santa Clara (1981) 115 Cal.App.3d 827, 838, a case involving the modernization of a cement plant, the court held that “[t]he requirement that the project ‘have substantially the same purpose and capacity’ speaks only to the productive purpose and capacity of the old and new plants.” (Italics added.) In that case, the project’s opponent argued that, in modernizing the facility, its capacity would increase because its useful life would be extended. The court rejected this argument. In so doing it explained that “[i]mplicit in the statutory exemption for reconstruction and replacement is an understanding that the life of the facilities to be reconstructed or replaced with be extended. To find otherwise would mean that, in order to qualify for exemption, one could replace or reconstruct a facility only if it last no longer than the original facility. Such a proposition is patently unreasonable.” (Id. at p. 840.)
Similarly, here, the reconstruction of the old facility in order to maximize the sales of which it has always been capable does not take it outside the exemption. The new restaurant, which is substantially the same size and configuration as the old one, has a similar capacity to serve a certain number of customers. This capacity does not change with the modernization of the facility. In other words, the project proponent’s hope that, in modernizing the facility, its productive purpose might be maximized does not take it outside the exemption.
The case Sanders cites in support of his argument, Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, is inapposite. Concerned Citizens does not involve the issue of a CEQA exemption. Rather, it dealt with the question of whether a claim regarding the failure to file a subsequent EIR after substantial changes occurred to a project was barred by the statute of limitations. This case has no bearing on the question in front of us.
Sanders also argues that the new restaurant’s “purpose” is not substantially similar to the original restaurant. He contends that the fact that the new restaurant will serve items from an A&W Root Beer menu and have a drive-through are “substantial expansions in purpose and capacity.” We disagree. There is no requirement that the replacement structure be “precisely or literally” the same as the old structure. (Dehne v. County of Santa Clara, supra, 115 Cal.App.3d at p. 837.) Substantial similarity is sufficient. As we have explained, there is substantial evidence in the record supporting the City’s conclusion that the new facility will be substantially the same in purpose and capacity as the old facility. Having found this evidence, we reject Sanders’s arguments to the contrary.
We must next determine whether the City was correct in concluding that “there is no reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances” under Guidelines section 15300.2, subdivision (c). In considering this issue on appeal, we apply the fair argument standard of review.
“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. (Azusa, supra, 52 Cal.App.4th at p. 1207 . . . .)” (Banker’s Hill, supra, 139 Cal.App.4th at p. 278.) With regard to the first prong of this analysis, “the unusual circumstances test is satisfied ‘where the circumstances of a particular project (i) differ from the general circumstances of the projects covered by a particular categorical exemption, and (ii) those circumstances create an environmental risk that does not exist for the general class of exempt projects’ ‘A negative answer to either question means the exception does not apply.’ [Citation.]” (Ibid., quoting Azusa, at p. 1207.)
Here, we need not reach the second of these questions, because we conclude that Sanders has failed to raise a fair argument that the Project meets the unusual circumstances prong of Guidelines section 15300.2, subdivision (c). In making his argument that the Project presents circumstances that “differ from the general circumstances of the projects covered by a particular categorical exemption” (Banker’s Hill, supra, 139 Cal.App.4th at p. 278), Sanders argues that the Project imposes “excess parking demands” on neighboring businesses, including his own, and that the ingress and egress from the current site is “extremely dangerous.”
The petitioner in Fairbank, supra, 75 Cal.App.4th at page 1260, made a similar argument when he contended that “the project does not include adequate parking facilities, and ‘will result in increased demand on the City’s streets and other public parking areas, as well as an increase in traffic and circulation around the project site as potential site users attempt to park in the downtown area.’ She cites various comments from the administrative record, by which project opponents voiced concerns about the existing traffic and parking problems in downtown Mill Valley, and the prospect of the project exacerbating those problems.” In Fairbank, the court concluded that “[t]he shortcoming in Fairbank’s argument is that she has made no showing whatsoever of any ‘unusual circumstances’ surrounding the construction of this small commercial structure giving rise to any risk of ‘significant’ effects upon the environment. (Guidelines, § 15300.2, subd. (c).) While the addition of any small building to a fully developed downtown commercial area is likely to cause minor adverse changes in the amount and flow of traffic and in parking patterns in the area, such effects cannot be deemed ‘significant’ without a showing of some feature of the project that distinguishes it from any other small, run-of-the-mill commercial building or use. Otherwise, no project that satisfies the criteria set forth in Guidelines section 15303(c) could ever be found to be exempt. There is nothing about the proposed 5,855-square-foot retail/office building that sets it apart from any other small commercial structure to be built in an urbanized area, without the use of hazardous substances and without any showing of environmental sensitivity. (See Guidelines, § 15303(c).) In short, in the absence of any evidence of unusual circumstances nullifying the grant of a categorical exemption, there can be no basis for a claim of exception under Guidelines section 15300.2(c).” (Id. at pp. 1260-1261.)
Similarly, here, Sanders has failed to establish any unusual circumstance that sets this small commercial project apart from the many other projects that fall within this exemption to CEQA. The parking and circulation issues identified by Saunders, like those relied on by the petitioner in Fairbank, are insufficient to constitute the “unusual circumstances” that give rise to the exception set out in Guidelines section 15300.2, subdivision (c).
Nor is it the case, as Sanders argues, that because the Project requires a use permit, and because the Pleasant Hill Municipal Code requires a use permit where “the use classification has unusual site development features . . .,” this somehow satisfies his burden of showing evidence of unusual circumstances nullifying the grant of a categorical exemption. The language of the Pleasant Hill Municipal Code does not shed light on this CEQA issue.
Similarly, the fact that the Project’s approval contains conditions designed to alleviate relatively minor parking, traffic and circulation issues does not make the Project “unusual.” The general circumstances of projects replacing existing facilities would commonly involve such conditions, and the mere fact that they are imposed does not, taken alone, indicate the Project differs in any material way from others like it.
C. City Planning Law
Sanders also argues that the trial court erred in rejecting his claim that the Project is inconsistent with the Pleasant Hill Municipal Code. We disagree.
In reviewing this claim, we ask whether there was a “prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5.) “ ‘Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.’ ” (BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1224, fn. 14.) To the extent that Sanders is arguing that the City incorrectly found that the Project complies with its Municipal Code, we must uphold these findings so long as they are supported by substantial evidence in light of the entire record. (Id. at p. 1244) To the extent he is arguing that the City has misconstrued its ordinances, we review these questions of law de novo. (Department of Health Services v. Civil Service Com. (1993) 17 Cal.App.4th 487, 494.) In doing so, we give “great weight” to the City’s own construction of its ordinances. (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1021.) We uphold a City’s reasonable interpretation of its own ordinances. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219-220, 225-226.)
In its resolution approving the use permit and development plan, the City specifically found that “the drive-through windows, queuing lane . . . and drive aisles are properly designed to not create negative traffic, parking or circulation impacts.” The City found that “parking demand will be less than the requirement in section 18.55.030A of the Zoning Ordinance. Potential impacts associated with the project will not negatively affect retailers abutting the project site. More specifically, potential parking impacts have been mitigated by . . . conditions of approval . . . . The parking related conditions include: (1) no queuing shall encroach into undesignated stacking areas, (2) any parking complaints received by the City are required to be mitigated by the current tenant or property owner, to the satisfaction of the Zoning Administrator or Planning Commission or mitigation measures may be taken such as the reduction of indoor seating, (3) outdoor seating is prohibited, (4) the bicycle facility has been required to exceed standard requirements to encourage alternative modes of transportation, and (5) employees are encouraged to park in the easternmost parking spaces to maximize the number of available parking spaces near the building’s most convenient . . . entrance. Lastly, the existing under-parked Kentucky Fried Chicken restaurant has operated for a number of years with no history of parking complaints being submitted to the City.” The City also found that “[t]he probable long-term occupancy of the building . . . will not generate additional parking demand because the drive-through facility will provide an alternative to parking and therefore reduce the demand for parking.”
The record provides substantial evidence to support these findings: City staff visited the existing restaurant and determined there was no shortage of parking at peak times and that the existing facility has no history of parking complaints with the City. The City calculated that the addition of a drive-through facility would reduce the demand for parking below the levels at the existing facility, which did not have any drive-through capacity.
Sanders, however, argues that the City’s calculation of the appropriate number of required parking spaces at the Project site—31 spaces—violates its municipal code. He is incorrect. The record indicates that the City has consistently interpreted its municipal code to require 1 space per 100 square feet of floor area for any fast food restaurant that has indoor seating and a drive-through facility. Moreover, the City’s requirement of 22 parking spaces for the Project was authorized under the City’s use permit process, which allows reduced parking in situations in which the actual parking demand is determined to be less than the code requires and the design of the building will not generate additional parking demand.
Sanders also contends that the Project would reduce easements to and around his property, that drive aisles for the Project were too narrow and violated City code, and that garbage trucks could not access his trash container in violation of code.
We have reviewed the record and conclude that there is no evidence of the existence of any easement in favor of Sanders, prescriptive or otherwise, that would be interfered with by the Project. With regard to drive aisles and garbage truck access, the record contains substantial evidence to support the City’s conclusion that there is adequate access to Sanders’s business. The staff report notes that although the “proposed site design will affect direct access to the trash enclosure,” “the applicant is proposing to construct a new trash enclosure for the property owner . . . 50 feet to the east, of its existing location, to be more adjacent to the shared access easement.”
Sanders also argues that, in approving the Project, the City violated ordinances regarding landscaping standards. However, as the City points out, Sanders never raised this issue when he appealed to the City Council and may not now raise it on appeal. In any event, even if he had, there is substantial evidence in the record that, under the City’s long-standing interpretation of its Municipal Code, an interpretation which is entitled to great deference (Department of Health Services v. Civil Service Com., supra, 17 Cal.App.4th at p. 501), the City properly found that a 5 percent increase in landscape coverage over the existing landscaping complied with its code.
D. Exclusion of Evidence
Finally, we reject Sanders’s argument that the trial court erred in denying certain of his requests to supplement the administrative record. The court did not abuse its discretion in excluding these documents, which were not presented to the City during the administrative hearings on the Project. The court correctly concluded that Sanders failed to show that “such documents could not have been presented during the administrative hearings in the exercise of reasonable diligence.” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 565; Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 890.)
IV. Disposition
The order is affirmed.
We concur: Lambden, J., Richman, J.