Plaintiff organization sued the City to stop its effort to modernize an equestrian center it owned. Plaintiff contended the remodeling project had not been approved as required by the California Environmental Quality Act. The trial court said that the project made such small changes at the site that it was exempt from the act. In this opinion, the Court of Appeals agrees with that decision and says that compliance with the Act’s procedures is not required.
Appellant Better Government (hereinafter, BG) seeks to invalidate the decision of respondent City of Palos Verdes Estates (hereinafter, the City) to renovate an existing horse stable facility, and seeks further environmental review under the California Environmental Quality Act (Pub. Res.Code, § 21000 et seq ., hereinafter, CEQA). The renovation plan for the horse stable facility was pursuant to a concession agreement between the City and the real parties in interest and concessionaires, Robert and Christine Gaudenti and RCG Management, Inc. (hereinafter, collectively, the Gaudentis).
We find that the trial court properly determined that since the renovation plan approved for the stable involved only "negligible" expansion of use (Cal.Code Regs., tit. 14 [hereinafter, Guidelines], § 15301) and entailed new structures "on the same site as the structure[s] replaced and [with] substantially the same purpose and capacity" (Guidelines, § 15302), the renovation plan was categorically exempt from the environmental review process otherwise mandated by CEQA. Accordingly, there is no merit to BG's petition for a writ of mandate attacking the City's declaration under CEQA of no substantial evidence that the project will have any significant effect on the environment (i.e., the Negative Declaration), since no environmental review process was required under CEQA in the first place.
The issues arise in a somewhat unusual procedural context. BG's writ petition alleged that the City's Negative Declaration (see § 21091 et seq.) was adopted in violation of CEQA and that the City should have determined that the project would have a significant environmental effect, which would trigger further review under CEQA. The City defended its adoption of the Negative Declaration. In its tentative ruling, the trial court found that the City did not give adequate public notice regarding its preparation of a Negative Declaration. But the trial court also requested further briefing on whether the project was categorically exempt from CEQA.
Thus, the City went from defending its decision to adopt the Negative Declaration to maintaining that it should have declared the project exempt. And BG went from challenging the City's decision to adopt the Negative Declaration to defending the City's decision that the project was not exempt.
As discussed below, we find that based on the administrative record the project indeed was categorically exempt under CEQA. Also, the trial court acted within its jurisdiction in deciding that the project was categorically exempt, since a determination that a project is subject to CEQA is fundamental to a court's authority to issue a writ of mandate.
The City's horse stable was established in 1926 and has been owned by the City since 1939. It is one of a number of recreational facilities for the City's residents. The stable provides horse-boarding facilities, riding programs, riding rings and related amenities. The stable is on a 5.3-acre, triangular- shaped site that is part of a larger area of parklands owned by the City. The site is on a plateau with the northwestern and northeastern boundaries of the triangle descending sharply for approximately 100 feet into a canyon. The southern boundary is essentially level with the adjacent property. The site is accessed from a dead-end street (Via Opata) that feeds into a driveway on a narrow land bridge, with canyons on both sides of the driveway.
Two years after the City's study of the site's "geology, history, neighborhood impact, financial position, activity level and operations" to develop a master plan for the stables, in 1988 the City adopted a specific development plan for the equestrian center. The 1988 development plan found "no known geologic hazards present on the site," and authorized grading of the site supervised by the City's engineer and geologist. The development plan proposed several changes "to enhance the rural ambiance of the City," but specified that "[t]he proposed use of the site will not differ from the existing use," and the "[a]ctivity level will remain the same and no additional area will be incorporated into the construction."
Also in 1988, the City approved a conditional use permit for the site to allow grading for improved drainage and to rehabilitate and replace wooden barns and stalls. The City had previously acknowledged that the county fire department is "anxious to have these old wood building[s] replaced because they are the biggest fire hazard in the city." The 1988 conditional use permit also limited the number of horses that could be boarded to 87. Based on that number of horses, the City determined that "[t]he existing parking area is sufficient to support the maximum number of automobiles present at peak stable hours."
In February of 2000, the Gaudentis approached the City and made an unsolicited proposal to enter into a concession agreement with the City to operate the stable. The City then sought additional proposals, obtained input from boarders at the stable, held public hearings, and thereafter entered into the concession agreement with the Gaudentis. The September 12, 2000, agreement required the concessionaire to complete improvements on the site, which were described by general category (e.g., replace arena footing, repair fencing, remove tack sheds, remove or relocate pipe corrals, install a third arena, etc.) and the estimated cost as to each category. The total cost of all deferred maintenance projects and all capital projects was approximately $109,000.
According to the concession agreement, the maximum number of horses to be boarded at the site was to remain at 87, the same number of horses as in 1988. Since a prior lawsuit and settlement agreement with residents of adjacent Rolling Hills Estates prevented installation of additional lighting, any new lighting would be limited to repairs or replacement of existing fixtures. The concession agreement limits the Gaudentis' proposed "viewing stands" to three 8-foot-long benches. And the agreement limits the equestrian programs that the Gaudentis may conduct to those activities submitted in a management plan subject to approval by the City. Typical equestrian events on the site since well before 1988 have included trail rides, camp programs, birthday parties, and the like.
The Gaudentis' proposed improvement plan involves several physical changes to the equestrian facilities. The tack containers would be moved to the site of the tack and feed storage room and cross-tie area, which are presently outside one of the barns. The existing pipe rail stalls, round pen and manure and shavings storage areas would be replaced by a larger round pen with vinyl rail perimeter fencing and a third oval riding ring. The third riding ring would be similar in construction to the existing riding rings. The existing feed and hay storage area would be the new location for the manure and shavings storage building. One bench would be replaced and three new benches would be installed, adding 12 additional viewing seats. The location, boundaries and total acreage of the stable site would remain precisely the same.
On August 15, 2000, after negotiations were completed regarding the physical changes to be made to the site, the Gaudentis submitted to the City maps of the stable site, comparing the present and the proposed new location of the equestrian features, and a written summary of the proposed physical changes. Allan Rigg, the City's Public Works Director, reviewed the information submitted and determined that the proposed changes were exempt from CEQA. As Rigg later explained at a City Council meeting, "When we initially took a look at this project, [we found] that this project could have been found as exempt from the CEQA process under [Guidelines, § ] 15301, which is regarding existing facilities, [because] the project could be considered only a minor alteration. Due to the citizens' concerns and wanting to make sure that we didn't miss anything and that everybody was properly informed, we [nonetheless] went forward with the [CEQA] process."
Therefore, after the concession agreement was signed, the City drafted an initial environmental study that evaluated the proposed changes at the stable site and concluded that the project would not have a significant effect on the environment and that a Negative Declaration would be prepared. The project was described as follows: "Remove existing container rooms, remove existing tack shed, relocate manure and shavings storage to the west corner of property, construct a new block enclosure with roof and roll up doors, construct new feed storage b[i]n and attached tack room, building to match existing barns, relocate existing round pen, construct new fenced riding arena, relocate existing pipe corals, construct new pipe cross ties and concrete slab."
On August 16, 2000, the City issued a draft Negative Declaration. It declared that the City had analyzed the project and determined that there was "no substantial evidence that this project will have a significant effect on the environment," and that therefore the City proposed no mitigation measures. The next day, the City issued a notice of a public meeting to address certification of the draft Negative Declaration. On August 18, the notice was posted and on August 19, it was published.
At a hearing on September 12, 2000, the City Council had before it (1) the draft Negative Declaration, (2) a memorandum from Rigg explaining the environmental review process and deeming the project "not exempt from CEQA," and (3) information submitted by the Gaudentis describing the project. After discussion on the matter, the City Council unanimously adopted the Negative Declaration, adopted the concession agreement with the Gaudentis, and approved the Gaudentis' plan for improvements at the stable.
On November 9, 2000, the City filed with the county clerk a notice of determination, indicating that the City was in compliance with CEQA (§ 21152) regarding the improvements intended pursuant to the concession agreement for the stables. On December 8, 2000, BG filed its petition for a writ of mandate, attacking the adequacy of the Negative Declaration and asserting that no substantial evidence supports the City's determination that improvements at the stable pursuant to the concession agreement would have no significant adverse environmental impact.
BG also moved to supplement the administrative record to include, inter alia, two letters written in 1996. One letter was from the City's engineer to the stable manager regarding costs and other issues associated with widening to 26 feet (per local fire department standards) the access driveway between Via Opata and the stables. The letter noted the "sensitive geologic conditions that exist in this area of the site," apparently referring to the subject of the letter, i.e., the driveway, which has steep slopes on both sides.
The second letter was from the stable manager to the local fire department and noted the financial hardship to the stables of widening the existing paved driveway because of the extensive grading of this ecologically sensitive area. The stable manager also remarked that fire department's personnel and truck regularly visited the stable, and personnel expressed concern over the fire hazard presented by the old wooden building at the stable site.
The City opposed the motion to supplement the administrative record with the two 1996 letters, asserting that the letters do not address BG's claim of the purportedly "unstable northerly portion" of the stable site. A supporting declaration by Rigg asserted that prior to the present litigation he had spoken with Art Keane, a geologist with the County of Los Angeles, who worked on the 1988 specific development plan and who had advised Rigg that there were no "issues regarding the geology of the stables site." In BG's reply to the City's opposition to the motion, BG supplied a declaration by Keane refuting Rigg's statement of Keane's involvement in the development plan and his assessment of the geology. Keane further declared that in September of 2000 he visited the stable site with a representative of BG and concluded that "the northern area of the site is unstable and subject to soil creep failure."
The City countered with a responsive declaration from Rigg. Rigg was surprised at Keane's declaration and provided a copy of the City's "Geologic/Geotechnical Review Sheet," which was signed by Keane in 1990 and indicated that the preliminary site review plan for the proposed new barn was "geologically approved."
On June 14, 2001, the trial court tentatively ruled that the Negative Declaration had not been processed in accordance with CEQA notice requirements because of a delay in the public availability of a copy of the concession agreement. But the trial court also tentatively ruled that based on the administrative record there was "no aspect of the project that is not categorically exempted from CEQA" under relevant CEQA guidelines, and it requested briefing on that issue.
On August 2, 2001, the trial court found that "[t]he City has produced substantial evidence to support factually the conclusion that the project is categorically exempt from CEQA, either because it involves only minor alterations of an existing facility (Class 1), or because it consists of the replacement or reconstruction of existing structures and facilities where the new structures and facilities will be placed on the same site as the old and will have substantially the same purpose and capacity as those replaced (Class 2)." The trial court thus denied BG's petition for a writ of mandate.
I. The standard of review.
In CEQA litigation, " ' "the trial and appellate courts occupy in essence the identical positions with regard to the administrative record.' " " (Long Beach Sav. & Loan Assn. v. Long Beach Redevelopment Agency (1986) 188 Cal.App.3d 249, 260.) "Our task on this appeal is the same as the trial court's. We too must search the administrative record and determine, in light of the whole record, whether there is substantial evidence supporting the agency's determination, and whether the agency" failed to proceed in the manner required by law. (Fund for Environmental Defense v. County of Orange (1988) 204 Cal.App.3d 1538, 1545.)
The appellate court in a CEQA case thus "review[s] the administrative record de novo to determine if a prejudicial abuse of discretion occurred; we are not bound by the trial court's conclusion." (Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1023.) Regarding the preliminary issue here of whether the trial court had the power to determine as a matter of law based on the administrative record whether the project was categorically exempt from CEQA, that is a question of law over which we also exercise de novo review. (See Sutco Construction Co. v. Modesto High School )
Dist. (1989) 208 Cal.App.3d 1220, 1228; Jongepier v. Lopez (1983) 142 Cal.App.3d 535, 538.)
II. The trial court acted within the scope of its authority in finding the project was categorically exempt.
BG contends that the trial court exceeded its powers in finding the project categorically exempt from CEQA. BG asserts the trial court erred in deciding the issue because neither party had raised it in its pleadings, which had focused on the adoption of the Negative Declaration and whether further environmental review was required. However, the trial court gave the parties an adequate opportunity for further briefing to address the categorical exemption issue, an issue which fundamentally affected the court's ability to issue a writ based on the core allegation that "the City has failed to proceed as required by law" under CEQA. And the categorical exemption issue was fully and fairly litigated at trial.
BG also claims that the trial court exceeded its powers because it could not exercise its own discretion and substitute its judgment for that of the City's in determining whether a categorical exemption applies. "[I]t is well settled that although a court may issue a writ of mandate requiring legislative or executive action to conform to the law, it may not substitute its discretion for that of legislative or executive bodies in matters committed to the discretion of those branches." (Common Cause v. Board of Supervisors (1989) ) 49 Cal.3d 432, 445.)
And "the standard of review under Public Resources Code sections 21168 and 21168.5 does not permit a reviewing court to make its own factual findings." (Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 590.) Judicial review is limited to whether the agency proceeded in the manner required by law in rendering the decision and whether the decision is supported by substantial evidence. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, fn. 5.)
BG complains that here the trial court, rather than the City, made the determination that the project was categorically exempt. But when the City addressed the matter of a Negative Declaration, it of necessity addressed and determined the prerequisite issue of categorical exemptions. A decision to approve a Negative Declaration is by definition a decision that includes a determination that the project is not categorically exempt. Indeed, a Negative Declaration is defined as "a written statement by the lead agency briefly describing the reasons that a proposed project, not exempt from CEQA, will not have a significant effect on the environment." (Guidelines, § 15371, italics added.)
The trial court made no findings of fact as to the categorical exemptions, but simply assessed the facts in the administrative record to determine as a matter of law that the project was categorically exempt from CEQA procedures. All the trial court did was to determine (as we likewise do, as discussed below) that, as a matter of law and based on the administrative record, the City erred in its finding that the project was not categorically exempt. Accordingly, the trial court properly acted within the scope of its authority.
III. The project is exempt from CEQA.
Section 21084, subdivision (a), requires that the Guidelines include "a list of classes of projects which have been determined not to have a significant effect on the environment and which shall be exempt from this division." These categorical exemptions are found in article 19 (§ 15300 et seq.) of the Guidelines. "Where a project is categorically exempt, it is not subject to CEQA requirements and 'may be implemented without any CEQA compliance whatsoever.' " (Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 726.)
Categorical exemptions exist as narrow exceptions to CEQA. Categorical exemptions are strictly construed in order to afford the fullest possible environmental protection within the reasonable scope of statutory language. (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 966; see Dehne v. County of Santa Clara (1981) 115 Cal.App.3d 827, 842 (Dehne ).) Categorical exemptions are also construed in light of the statutory authorization that limits exemptions to projects that have no significant effect on the environment. (§ 21084, subd. (a); Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1191.)
In the present case, we find no substantial evidence exists that the project "may have a significant effect on the environment." (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 124; see Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 656.) Under CEQA guidelines, Class 1 and Class 2 categorical exemptions apply and exempt the project from CEQA review.
The Class 1 Exemption.
Section 15301 of the Guidelines provides, in pertinent part, as follows: "Class 1 [exemption] consists of 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 [i.e., here, the City's] determination.... The key consideration is whether the project involves negligible or no expansion of an existing use." (Italics added.)
In the present case, the proposed physical changes to the site were minor. A few items will be relocated within the site, and nothing dramatically different will be added to the site. On the site now are tack, feed, manure and shavings storage, as well as riding arenas, day pens and cross-ties. The land that will be added to the round pen and the land that will be fenced for the new riding arena are areas within the current boundaries of the site. People on horses currently traverse those two areas.
The amount of grading required for the new improvements is less than 100 cubic yards. This minimal amount does not require a grading permit under applicable City law. Also, a physical change in the environment is not deemed to have a significant effect if, as here, the change complies with a standard of general application (Guidelines, §§ 15064, subd. (h)(1)(A), 15064, subd. (i)(3)), such as the City's municipal code pertaining to grading.
As to the critical determination of "negligible or no expansion of an existing use" at the time the exemption should have been granted (Guidelines, § 15301), BG's effort to portray an expanded use of the stable is unfounded. We acknowledge that the Gaudentis initially envisioned an increased use of the stable. However, the administrative record provides no evidence, much less substantial evidence, of any permitted increased use of the site. Significantly, the number of horses and the number of parking spaces will remain the same as they were under the 1988 development plan. And the concession agreement limits equestrian programs that the Gaudentis may conduct to those submitted in a management plan subject to approval by the City.
Accordingly, the new facilities at the stable involve minor alterations of existing structures (alterations as to the structure itself and/or its location within the site), and entail negligible or no expansion of use, within the meaning of the Class 1 exemption in section 15301.
The Class 2 Exemption.
Section 15302 of the Guidelines provides, in pertinent part, as follows: "Class 2 [exemption] consists of 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."
Dehne, supra, 115 Cal.App.3d 827, which discussed at length the Class 2 exemption, is instructive. In Dehne, the owner of a cement plant and limestone quarry wanted to reconstruct the plant and modernize it. The plant and quarry occupied approximately one-third of a 3,300-acre tract of land. The new plant would be located on two of the six acres of the old plant. The reconstruction of the new plant would remove smokestacks and replace them with air pollution control mechanisms, reduce the amount of water used in the manufacturing process, and reposition the plant to make it less visible from the surrounding area. (Id. at pp. 831-832.)
The county planning commission in Dehne concluded that the reconstruction of the plant was exempt from CEQA under the exemption for replacement or reconstruction of existing structures and facilities. The county board of supervisors affirmed the planning commission's decision. (Dehne, supra, 115 Cal.App.3d at pp. 833-834.) The petitioner unsuccessfully contended in the Court of Appeal that the exemption in question required that the new structures and facilities be constructed on the exact same footprint as the structures and facilities being replaced.
The court in Dehne reasoned that under the Guidelines, which permit replacement structures of substantially the same size, "This implies that, for the exemption to have internal consistency, 'same site' must be construed in a way that includes structures of 'substantially' the same size, not precisely or literally the same size, as old structures. Obviously, the site need not be in exactly the same location if the new structure need not be exactly the same size." (Dehne, supra, 115 Cal.App.3d at p. 837.) The court also noted that the new facilities would remain within the boundaries of the old facility, in an area surrounded by the rest of the cement manufacturer's property. (Id. at p. 838.) The court in Dehne thus viewed the "same site" (Guidelines, § 15302) as not merely the physical footprint of the existing structure, but rather as the entire lot on which the cement plant was built.
In Dehne, the new plant was to be "completely within the actual layout area of the old plant" that was surrounded by unused acreage. (Dehne, supra, 115 Cal.App.3d at p. 837.) Here, however, there is no unused acreage surrounding the working area of the renovated site. The nature of the stable facility is different, as it physically constitutes the entire site with no unused surrounding area. Nonetheless, here, as in Dehne, the concept of the "same site" means more than just the identical footprint of an existing structure.
In the present case, the relevant "site" for the purposes of evaluating a Class 2 exemption is the site as a whole within the boundaries it has occupied for more than 75 years. That entire site of the horse stable is the area depicted in the improvement plan. Some structures and functions will be moved within the site and enlarged or enhanced (e.g., feed bins and structures to hold manure and shavings) but with substantially the same capacity. Fencing patterns will also be altered, adding a new riding area and a larger round pen. However, the size of the site will remain the same, and its overall usage will not be expanded or altered.
Accordingly, the new facilities at the stable constitute the replacement or reconstruction of existing structures within the same site as the existing structures and with substantially the same purpose and capacity as the existing structures, within the meaning of the Class 2 exemption in section 15302.
BG has failed to establish that any exceptions to the exemptions apply.
When substantial evidence exists to support a determination that a categorical exemption exists, the burden shifts to the petitioner challenging the action under CEQA to show that an exception to the exemption applies. (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 115.) BG urges that the exception in section 15300 .2, subdivision (b) of the Guidelines applies because the stable renovation project could have a significant effect on the environment due to, in the language of that guideline, "unusual circumstances." (See Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster, supra, 52 Cal.App.4th at p. 1207.
BG argues that the exception is satisfied by substantial evidence of unstable soil conditions on the property because geologist Keane concluded the site was subject to soil creep failure, rendering the area unsafe for further development. Apart from whether, as previously noted, Keane's declaration is even in the administrative record, the City completely countered Keane's assertions with a prior document signed by Keane in which he had "geologically approved" the plan for a new barn at the stable. It is also significant that absolutely no one who commented on the concession agreement or the Negative Declaration suggested that the stable should be closed or moved to some other location in the City, or that any portion of the stable site be deemed off- limits because of any purported geologic hazard.
BG also urges a possible risk to health and safety due to the movement of people and horses in a confined area. But such a concern is pure speculation and not founded on any evidence. To the extent speculation is appropriate, it appears likely that a new riding arena with the same number of horses at the stable would actually reduce the movements in a confined area and thus be safer.
Accordingly, there is no substantial evidence of an unusual circumstance that would remove the stable renovation project from coming within the scope of a categorical exemption.
The judgment is affirmed.
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