In a published opinion filed September 18, 2018, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ setting aside the City of San Diego’s (City) decision to subject a coastal development permit (CDP) application for construction of a single family home on a vacant La Jolla lot to CEQA review. Francis A. Bottini, Jr. v. City of San Diego (2018) ___ Cal.App.5th ___.
The City’s basis for finding the CEQA Guidelines Class 3 categorical exemption for construction of a single-family residence (14 Cal. Code Regs., § 15303) inapplicable was that CEQA review was required to address the potential impacts of the landowners’ (Bottinis) project on an allegedly “historic” cottage (the Windemere). Which at first blush seems pretty reasonable – that is, until you consider the undisputed fact that at the time of the Bottinis’ CDP application, the Windemere didn’t exist anymore. While the cottage formerly known as Windermere once occupied their lot, the Bottinis had demolished it before applying for the CDP pursuant to a separate and never-challenged demolition permit issued by the City. Moreover, the City issued the demo permit after it had declared the dilapidated and unsafe cottage (1) not to be historic, and (2) to constitute a public nuisance requiring abatement.
Wait … what? No, folks, you read that correctly. (You can’t make this stuff up.) And the Court of Appeal wrote a 51-page published opinion, roughly half of which – in the judicial equivalent of “shooting fish in a barrel” – painstakingly explained why the City erred in finding the nonexistent structure was neither part of the Bottinis’ CDP project nor the “existing conditions” environmental baseline for CEQA purposes. (The other half of the opinion upheld the summary judgment rejecting the Bottinis’ claims for inverse condemnation compensation and damages brought under the California Constitution, holding the City’s actions did not constitute a temporary regulatory taking under the mushy Penn Central factors, that the Bottinis had identified no protected property interest in issuance of the CDP triggering substantive due process protections, and that the City’s “mere misinterpretation of CEQA” did not give rise to a “class of one” equal protection claim. You can check out my partner Bryan Wenter’s post on that part of the case here.)
Focusing on the CEQA aspects of the Court’s opinion, it correctly applies numerous basic principles in affirming the trial court’s judgment:
- Baseline: “At each stage of the CEQA review process, the public agency must evaluate the environmental impact of a project against a measure commonly referred to as the baseline, i.e., the environment’s state in the absence of the project. [Citations.] “‘[T]he baseline “normally” consists of “the physical environmental conditions in the vicinity of the project, as they exist at the time … environmental analysis is commenced …”’” [citations]” Here, the already-demolished and non-existent Windemere was obviously not part of the existing conditions that would be affected by the Bottinis’ proposed project of building a new home on their vacant lot. Moreover, CEQA doesn’t care how the baseline came to be, anyway, leaving the problem of past illegalities to be remedied by the enforcement of other land use laws. The “existing conditions” baseline rule thus applies “even when a project applicant’s past conduct may have violated the law or escaped environmental review.”
- Project: While the “project” for CEQA purposes is the “whole of an action,” and may not be segmented to avoid CEQA review, the demolition permit here was a separate project because it served a different purpose than the CDP for the Bottinis’ residence – the unrelated goal of protection and safety of the City’s citizens. The City’s public nuisance determination did not reference, authorize or depend on the subsequent issuance of a CDP, served a distinct and independent purpose, and was thus not part of the CDP project for CEQA review purposes.
- Ministerial: All parties conceded the demolition permit authorized by City’s Code Compliance Division was ministerial in nature, and it is fundamental that CEQA applies only to discretionary projects and excludes ministerial acts from its scope. (Pub. Resources Code, § 21080(b).)
- Improper procedure: Per the Court: “[T]his CEQA action is not the appropriate forum to launch a retroactive, collateral attack on the validity of Code Compliance’s public nuisance determination. That public nuisance decision is final and is not the subject of this CEQA appeal. [citations].” (And, the Court added for good measure, even if the challenge were procedurally proper, the City failed to adduce any evidence or even articulate why it believed the Windemere wasn’t a bona fide public nuisance.)
- No exception to Class 3 categorical exemption: With a properly defined project and baseline, as compelled by the CEQA rules discussed above, it was clear that substantial evidence did not support the City Council’s conclusion that an exception to the Class 3 categorical exemption for construction of a single-family residence applied. The exception for projects that may cause a substantial adverse change in the significance of a historical resource (CEQA Guidelines, § 15300.2) did not apply because, even assuming arguendo that the Windemere was a historic resource, the project couldn’t cause a change in it – since it no longer existed, having already been demolished with the blessing of City’s Code Compliance Division. Nor did substantial evidence support the City’s determination that the “unusual circumstances” exception applied because the asserted unusual circumstance – demolition of the Windemere – was not part of the project.
Summing Up The City’s CEQA Errors
The Court of Appeal politely and succinctly summarized how the City Council’s multiple CEQA errors added up to an abuse of discretion which resulted in the (affirmed-in-full) judgment invalidating its action:
“Reasonable minds may differ as to whether the Board should have granted historical designation to the Windemere. But the Board did not do so. Reasonable minds might also differ as to whether the Bottinis should have attempted to repair the Windemere, rather than asking Code Compliance to declare it a public nuisance. But they did not. And Code Compliance did in fact authorize the Bottinis to obtain a ministerial demolition permit for the Windemere. While the City may wish to turn back the clock and undo these decisions, that goal cannot be accomplished in this case by simply redefining the Bottinis’ project and setting a CEQA baseline in the past, to a time when the Windemere still existed. The fact is that the Bottinis’ project for purposes of CEQA consists solely of the construction of a single-family residence and the proper baseline for that project is the physical environmental condition of the lot as it existed at the time the Bottinis filed their request for a CDP. In concluding otherwise, the City Council abused its discretion.”
As Forrest Gump would say: “And that’s all I have to say about that.”
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.