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HILL, HILLCREST, PARK WEST COMMUNITY PRESERVATION GROUP, Plaintiff and
Appellant, v. CITY OF D046360 COURT OF APPEAL OF 139 May 8, 2006, Filed PRIOR HISTORY: [***1] DISPOSITION: Affirmed. COUNSEL: Johnson & Hanson, Kevin K. Johnson
and Jared Phil Hanson for Plaintiff and Appellant. Michael J. Aguirre, City Attorney, and Joe B. Cordileone,
Deputy City Attorney, for Defendant and Respondent. Seltzer Caplan McMahon Vitek, Monty A. McIntyre and G. Scott
Williams for Real Parties in Interest and Respondents. JUDGES: Irion, J., with McConnell, P. J., and
McIntyre, J., concurring. OPINION: [**540]
IRION, J.--In this appeal we are asked to decide whether
respondent City of San Diego (the City) properly determined that the proposed
development of a 14-story residential building is exempt from the California
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) n1 under a categorical
exemption for urban in-fill development projects set forth in the Guidelines
for Implementation of CEQA (Guidelines) adopted by the Secretary of the
California Resources Agency (the Secretary). n2 (Guidelines, § 15332.) n1 All further statutory references are to the Public
Resources Code unless otherwise indicated. [***2] n2 The Guidelines
adopted by the Secretary appear at For convenience, we will refer to both CEQA and Guidelines
sections/ subdivisions in a shortened form, i.e., "CEQA section
21080(b)(1)" and "Guidelines section 15002(k)." For the reasons set forth below, we affirm the
judgment. [*255] I. FACTUAL AND PROCEDURAL BACKGROUND Real parties in interest and respondents, developers Mi
Arbolito, LLC, and 1700 Investors, LLC, and architect Martinez + Cutri
Corporation (collectively, the Developer) propose to construct a 14-unit,
14-story multi-family residential building at 3415 Sixth Avenue in San Diego,
with underground parking (the Project). The site of the Project is a
10,247-square-foot vacant lot located on [***3]
the northeast corner of The Developer first proposed the Project to the City in
March 2003. n3 In November 2003, the City approved a shoring and grading
permit, authorizing the Developer to begin site preparation work, including
excavation for the parking garage. Approximately two months later, in January
2004, the City issued a building permit for pad footings for the building's
underground parking garage. n3 The Developer twice submitted and withdrew tentative maps
indicating that the Project would be marketed as a condominium project. It is
uncertain from the record, and the parties dispute, whether the Project will be
an apartment project or a condominium project. [***4] Appellant Banker's Hill, Hillcrest, Park West Community
Preservation Group (the Preservation Group) filed a petition for a writ of
mandate, alleging that the City had violated CEQA by approving the Project
without conducting an environmental review under CEQA. n4 In March 2004, the
trial court denied the Preservation Group's application for preliminary
injunctive relief on the basis, among others, that the City was in the process
of considering what kind of environmental review to undertake for the Project. n4 The original petition was filed on January 6, 2004. A
first amended petition was filed on February 13, 2004. After preliminary discussions between the Developer and the
City staff regarding CEQA's application to the Project, the Developer submitted
a formal request to the City on March 26, 2004, for a determination of [*256]
exemption from CEQA. On March 29, 2004, the City's Development Services
Department issued a notice of exemption pursuant to CEQA section 21152(b).
The notice of exemption stated that the [***5]
Project is exempt from CEQA for two separate reasons. First, the Project
requires only ministerial approval by the City, and thus is exempt under CEQA
section 21080(b)(1) and Guidelines section 15268, which exempt
ministerial approvals from CEQA. n5 Second, the Project is an urban in-fill
development project, and thus is exempt from CEQA under Guidelines section
15332. n5 At the time that the City's Development Services
Department made this determination, there was no tentative subdivision map pending
before it that would have indicated that the Project was intended to be a condominium
project. As the parties explain, the construction of a condominium project
would require discretionary approval by the City, while the construction of an
apartment building would normally only require ministerial approvals. (See CEQA,
§ 21080(a) [including approval of a
tentative subdivision map as a discretionary project]; Gov. Code, § 66424 [defining " '[s]ubdivision'
" to include condominium projects].) The City's Development Services
Department apparently concluded the Project required only ministerial approvals
under the assumption that it would be an apartment building rather than a
condominium. [***6] The Preservation Group appealed the notice of exemption to
the City Council. (See CEQA, §
21151(c).) n6 Based on further
[**542] investigation, the City
Manager submitted a report to the City Council, which recommended that the City
Council deny the appeal. Because of evidence that the Project may end up being
constructed as a condominium project, the City Manager did not recommend that
the City Council find the Project to be exempt on the ground that it would
require only ministerial approvals. Instead, the City Manager recommended that
the City Council rely solely on the exemption for urban in-fill development
under Guidelines section 15332. n6 CEQA section 21151(c) states: "If a
nonelected decisionmaking body of a local lead agency certifies an
environmental impact report, approves a negative declaration or mitigated
negative declaration, or determines that a project is not subject to this
division, that certification, approval, or determination may be appealed to the
agency's elected decisionmaking body, if any." [***7] Following a public hearing, the City Council denied the
appeal and enacted a resolution stating that "the Project meets the
conditions described in State Guidelines section 15332 and therefore
qualifies for a categorical exemption and ... no exceptions as described in
[Guidelines] section 15300.2 apply to the Project." The resolution
makes specific findings regarding zoning traffic, noise, air quality, and water
quality, among other things. It states that "[a]pproval of the Project
would not result in any significant effects relating to traffic, noise, air
quality, or water quality," and that "[t]here is no reasonable
possibility that the activity will have a significant effect on the environment
due to unusual circumstances." Based on the resolution, the City filed a
notice of exemption on October 8, 2004, citing the exemption for urban in-fill
development in Guidelines section 15332. [*257] Following the City Council's determination, the Preservation
Group filed a second amended petition for writ of mandate on November 14, 2004.
The trial court denied the petition, agreeing with the City that the Project is
exempt from CEQA under Guidelines section 15332. On the basis, among
others, [***8] that the issue had not been raised during the
administrative proceedings, the trial court also rejected the Preservation
Group's contention that the City impermissibly reviewed the Project in a
piecemeal manner by approving the grading, shoring and pad footings permits
before conducting a preliminary review of whether to approve the entire
Project. The Preservation Group appeals, contending that the City
incorrectly determined the Project was exempt from CEQA and that the City
impermissibly reviewed the Project in a piecemeal manner. II DISCUSSION In considering a petition for a writ of mandate in a CEQA
case, "[o] An important threshold question in this case is the standard
by which we review the City's decision. To better define our inquiry, we first
turn to an overview of the CEQA process. A Overview [***9]
of the CEQA Process (1) CEQA
establishes "a three-tiered process to ensure that public agencies inform
their decisions with environmental considerations." We explain these three
steps in detail below. ( Davidon Homes v. City of San Jose (1997) 54
Cal.App.4th 106, 112 [**543] [62
Cal. Rptr. 2d 612] (Davidon); see also Guidelines, § 15002(k) [describing three-step
process].) 1. First Step in the CEQA Process The first step "is jurisdictional, requiring that an
agency conduct a preliminary review in order to determine whether CEQA applies
to a proposed [*258] activity." ( Davidon, supra, 54
Cal.App.4th at p. 112; see also Guidelines, § 15060.) The Guidelines give the agency 30
days to conduct this preliminary review. (Guidelines, § 15060.) As part of the preliminary
review, the public agency must determine the application of any statutory
exemptions or categorical exemptions that would exempt the proposed project
from further review under CEQA. (See Guidelines, § 15282 [listing statutory exemptions];
Guidelines, § § 15300-15333
[listing 33 classes of categorical exemptions].) n7 The categorical exemptions
are contained in the Guidelines and are formulated by the Secretary [***10] under authority conferred by CEQA section
21084(a). n8 If, as a result of preliminary review, "the agency finds
the project is exempt from CEQA under any of the stated exemptions, no further
environmental review is necessary. The agency may prepare and file a notice of
exemption, citing the relevant section of the Guidelines and including a brief
'statement of reasons to support the finding.' " ( Davidon, supra, 54
Cal.App.4th at p. 113, citing Guidelines, § § 15061(d), 15062(a)(3).) n7 Relevant to the City's Development Services Department's
decision that the Project was exempt because it required only ministerial
approvals, "the Legislature has determined that ministerial projects are
exempt from CEQA review" as a statutory exemption. ( Davidon, supra, 54
Cal.App.4th at p. 112, citing CEQA, §
21080(b)(1) & (2); Guidelines, § § 15061(b)(2), 15260.) n8 CEQA section 21084(a) states that the Guidelines
should 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." [***11] 2. Second Step in the CEQA Process (2) If the project does not fall within an exemption, the agency
proceeds to the second step of the process and conducts an initial study to
determine if the project may
[*259] have a significant effect
on the environment. (Guidelines, §
15063.) If, based on the initial study, the public agency determines
that "there is substantial evidence, in light of the whole record ... that
the project may have a significant effect on the environment, an environmental
impact report [(EIR)] shall be prepared." (CEQA, § 21080(d).) On the other hand, if the
initial study demonstrates that the project "would not have a significant
effect on the environment," either because "[t]here is no substantial
evidence, in light of whole record" to that effect or the revisions to the
project would avoid such an effect, the agency makes a "negative
declaration," briefly describing the basis for its conclusion. (CEQA,
§ 21080(c)(1); see Guidelines, § 15063(b)(2); Davidon, supra, 54 Cal.App.4th at p. 113.)
The Guidelines and case law further define the standard that
an agency uses to determine whether to issue a negative declaration. "[I]f
a lead [***12] agency is presented with
a fair argument that a project may have a significant effect on the
environment, the lead agency shall prepare an EIR even though it may also be presented
with other substantial evidence that the project will not have a significant
effect." (Guidelines, §
15064(f)(1), italics added.) This formulation of the standard for
determining whether to issue a negative declaration [**544]
is often referred to as the "fair argument" standard. (See Laurel Heights Improvement Assn. v. Regents of
University of California (1993) 6 Cal.4th 1112, 1134-1135 [26 Cal. Rptr. 2d
231, 864 P.2d 502] (Laurel Heights II).) 3. Third Step in the CEQA Process (3) If no negative declaration is issued, the preparation of an
EIR is the third and final step in the CEQA process. ( Davidon, supra, 54
Cal.App.4th at p. 113; Guidelines, § §
15063(b)(1), 15080; CEQA, § § 21100, 21151.) B The Issue Presented Here Concerns the
First Step in the CEQA Process At issue in this case is only the first step in the
CEQA process: whether the Project is exempt from further CEQA review because it
falls under a categorical exemption. Here, the City concluded that the Project
was exempt [***13] because it satisfied
each of the elements of the categorical exception for urban in-fill development
set forth in Guidelines section 15332. (See Communities for a Better Enviroment v.
California Resources Agency (2002) 103 Cal.App.4th 98, 126-130 [126 "(a) The project is consistent with the applicable
general plan designation and all applicable general plan policies as well as
with applicable zoning designation and regulations. "(b) The proposed development occurs within city limits
on a project site of no more than five acres substantially surrounded by urban
uses. "(c) The project site has no value as habitat for endangered,
rare or threatened species. "(d) Approval of the project would not result in any
significant effects relating to traffic, noise, air quality, or water quality. "(e) The site can be adequately served by all required
utilities and public services." [*260] The first issue in this appeal is whether the urban in-fill
exemption [***14] fails to apply by its
own terms, either because (1) the Project is inconsistent with the applicable
general plan; (2) the Project is not "substantially surrounded by urban
uses"; or (3) approval of the Project would result in significant effects
relating to traffic. n9 n9 The Preservation Group does not challenge the City's
findings with respect to the elements of the urban in-fill exemption that
"[t]he project site has no value ... as habitat for endangered, rare or
threatened species" and "[t]he site can be adequately served by all
required utilities and public services." (Guidelines, § 15332(c) & (e).) It also does
not challenge the City's finding on the portion of the "significant
effects" element of the urban in-fill exemption relating to "noise,
air quality, or water quality." (Guidelines, § 15332(d).) Because the Preservation Group
does not raise challenges on those issues, we do not address them. An exemption may also be inapplicable because of a blanket exception
to the categorical exemptions, as [***15]
set forth in Guidelines section 15300.2. According to this
exception, "[a] categorical exemption shall not be used for an activity
where there is a reasonable possibility that the activity will have a
significant [**545] effect on the environment due to unusual
circumstances." (Guidelines, §
15300.2(c).) As the second main issue in this appeal, the Preservation
Group contends there is a reasonable possibility that the Project will create a
significant effect on the environment due to unusual circumstances, and thus
the urban in-fill exemption does not apply. Based on the above, the two main issues in this appeal are
(1) whether the urban in-fill exemption applies according to its own terms; and
(2) whether the exception to the exemption set forth in Guidelines section
15300.2(c) applies because there is a reasonable possibility of a
significant effect on the environment due to unusual circumstances. Keeping in
mind the two main issues in this appeal, we next examine the standards that
apply to our review of the City's decision. C Applicable Legal Standards CEQA establishes the basic standard of review in a mandamus
proceeding. "The standard of review in an action to [***16] set aside an agency determination under CEQA
is governed by [CEQA] section 21168 in administrative mandamus
proceedings, and [CEQA] section 21168.5 in traditional mandamus actions.
The distinction between these two provisions 'is rarely significant. In either
case, the issue before the ... court is whether the agency abused its
discretion. Abuse of discretion is shown if (1) the agency has not proceeded in
a manner required by law, or (2) the determination is not supported by [*261]
substantial evidence.' " ( County of Amador v. El Dorado County
Water Agency (1999) 76 Cal.App.4th 931, 945 [91 Cal. Rptr. 2d 66] (County
of Amador).) n10 n10 Case law defines "substantial evidence"
supporting an agency's decision as " 'relevant evidence that a reasonable
mind might accept as adequate support for a conclusion' " ( Bhatt v.
Depart. of Health Services (2005) 133 Cal.App.4th 923, 928 [35 [***17] 1. The Standard Governing the City's Determination That
No Exception to the Urban In-fill Exemption Applied We first address the standard that applies to the City's
determination that the exception set forth in Guidelines section
15300.2(c) was inapplicable, i.e., that there was no reasonable possibility
of a significant effect to the environment due to unusual circumstances. (4) The Preservation
Group had the burden on that issue at the administrative level. "In
categorical exemption cases, where the agency establishes that the project is
within an exempt class, the burden shifts to the party challenging the
exemption to show that the project is not exempt because it falls within one of
the exceptions listed in Guidelines section 15300.2." ( Davidon,
supra, 54 Cal.App.4th at p. 115.) The challenger has the burden "to '
"produce substantial evidence that the project has the potential for a
substantial adverse environmental impact" ' [citations]; in other words,
that one of the exceptions to categorical exemption applies." ( a. Divergence in the Case Law Between the Fair Argument
Standard and the Traditional Substantial Evidence Standard The authorities have purported to describe a
"split" in the case law on the issue of how a court should review an
agency's decision that there is no reasonable [**546] possibility of a significant effect on the
environment under Guidelines section 15300.2(c). n11 ( Fairbank
v. City of Mill Valley (1999) 75 [*262] Cal.App.4th 1243, 1259-1260 [89 Cal. Rptr. 2d
233] (Fairbank); Santa
Monica Chamber, supra, 101 Cal.App.4th at pp. 795-797.) One approach would
apply a fair argument standard to the question of whether substantial evidence
supports the City's decision, similar to the standard applied in reviewing an
agency's decision to issue a negative declaration. (See, e.g., Guidelines, § 15064(f)(1) [setting forth the fair
argument standard in a negative declaration context].) Under that standard, the
court would review the record to determine whether it contained evidence of a
fair argument that the project may have a significant effect on the
environment. The other approach would apply what is referred to as the
"traditional" substantial evidence [***19] review. (See, e.g., Association for Protection etc. Values v. City
of n11 The dispute in the case law focuses on how a court
should review an agency's finding that there is no "reasonable
possibility" of a "significant effect." It does not concern how
a court should review whether "unusual circumstances" exist. On that
issue, case law establishes that any factual determination relating to the
existence of a certain circumstance is reviewed as a question of fact under the
substantial evidence standard, but "the question whether that circumstance
is 'unusual' within the meaning of the significant effect exception would
normally be an issue of law that this court would review de novo." (
Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52
Cal.App.4th 1165, 1207 [61 Cal. Rptr. 2d 447] (Azusa).) Throughout
our discussion we will sometimes refer to whether there is a reasonable
possibility of a "significant effect," without stating "due to
unusual circumstances." Our use of this shorthand terminology is in no way
intended to negate the "due to unusual circumstances" portion of the
exception. [***20] n12 Among the cases that might be interpreted as supporting
the application of a traditional approach are: Ukiah, supra, 2 Cal.App.4th 720, 728-729, fn.
7 (which observed that the traditional substantial evidence standard may be
more appropriate than the fair argument standard); Centinela Hospital Assn. v. City of Inglewood
(1990) 225 Cal. App. 3d 1586, 1601 [275 Cal. Rptr. 901] and Dehne v. County of Santa Clara (1981) 115 Cal.
App. 3d 827, 842, 844 [171 Cal. Rptr. 753] (both of which state that courts
should not independently reweigh the evidence in reviewing an agency's
findings made under Guidelines section 15300.2(c)) and City of Pasadena v. State of California (1993)
14 Cal.App.4th 810, 824-825 [17 Cal. Rptr. 2d 766] which cites Dehne
and Ukiah). Among the cases that might be interpreted as supporting the
application of the fair argument approach are Azusa, supra, 52 Cal.App.4th 1165, and Dunn-Edwards Corp. v. Bay Area Air Quality
Management Dist. (1992) 9 Cal.App.4th 644 [11 Cal. Rptr. 2d 850] Azusa
appears to have applied a fair argument standard when it concluded that there
was a "fair argument as a matter of law that there was a reasonable
possibility" that the activity at issue in that case would have a
significant effect on the environment. ( Azusa, at p. 1198.) Similarly, Dunn-Edwards
cited case law applying the fair argument standard in the context of a negative
declaration and stated that in reviewing an agency's rejection of the exception
set forth in Guidelines section 15300.2(c), "if the court perceives
there was substantial evidence that the project might have an adverse impact,
... the agency's action must be set aside." ( Dunn-Edwards, at p. 656.)
Describing this disparate case law, Fairbank explained:
"There 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. 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 significant effect exception, deferring to the express or implied findings
of the local agency that has found a categorical exemption applicable." (
Fairbank, supra, 75 Cal.App.4th at pp. 1259-1260.) [***21] [*263] [**547] As we will explain, the type of analysis
conducted by a reviewing court will depend on the type of inquiry the agency
has conducted, i.e., whether the agency itself has applied a fair argument or a
traditional approach. Under one type of inquiry by an agency, the agency will weigh
evidence and make a finding as to whether there will be a significant
effect. This is the traditional approach. Under another type of inquiry by an
agency, it will simply inquire whether, as a matter of law, the record contains
credible evidence to support an argument that there may be a significant
effect, but the agency would not weigh the evidence or resolve any
conflict. This is the fair argument approach. To better illustrate the two approaches, we provide the
following example. Suppose that an agency is faced with two credible expert
reports reaching different conclusions about whether a project will create a
significant effect on the environment. The first approach (the traditional
approach) would have the agency decide between the credible expert
reports and make a finding, after weighing the reports, as to whether a
project will cause a significant effect. The second [***22] approach (the fair argument approach) would
have the agency take note of the fact that credible expert reports disagree,
and without weighing the reports or making any further findings, conclude that
there is necessarily a reasonable possibility of a significant effect,
since at least one credible expert report reached that conclusion. (5) In the context of an agency's decision not to issue a
negative declaration, our Supreme Court and the Guidelines have directed that
agencies follow the fair argument approach: an agency is merely supposed to
look to see if the record shows substantial evidence of a fair argument
that there may be a significant effect. (Guidelines, § 15064(f)(1) ["if a lead agency is
presented with a fair argument that a project may have a significant effect on
the environment, the lead agency shall prepare an EIR even though it may also
be presented with other substantial evidence that the project will not have a
significant effect"]; No Oil,
Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75 [118 Cal. Rptr. 34, 529
P.2d 66] (No Oil) [adopting fair argument standard].) In other
words, the agency is not to weigh the evidence to come to its own conclusion
[***23] about whether there will be a
significant effect. It is merely supposed to inquire, as a matter of law,
whether the record reveals a fair argument. As one court has explained, "
'[t]he lead agency's determination is ... largely legal rather than factual; it
does not resolve conflicts in the evidence but determines only whether
substantial evidence exists in the record to support the prescribed fair
argument.' " ( Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359,
1400 [43 Cal. Rptr. 2d 170] (Gentry), italics added.) [*264] The application of the fair argument approach by an agency
necessarily impacts a reviewing court's analysis. Because the fair argument
approach ultimately presents a question of law about the presence of certain evidence
in the record, not a question about whether evidence supports an agency's factual
finding, "[i]n effect ... the determination before the court raise[s]
only a question of law, namely, the sufficiency [**548]
of the evidence to support a fair argument. Such a question, under that
decision, may be independently analyzed by the courts regardless of the scope
of judicial review." ( Bowman v. City of Petaluma (1986) 185 Cal. App.
3d 1065, 1073 [230 Cal. Rptr. 413], [***24]
italics added.) "[T]he reviewing court's 'function is to determine
whether substantial evidence supported the agency's conclusion as to whether
the prescribed "fair argument" could be made.' " ( Quail
Botanical Gardens, supra, 29 Cal.App.4th at p. 1602, fn. omitted, italics
added.) Thus, the reviewing court effectively conducts an independent review,
also applying the fair argument standard, to determine whether the record
contains evidence of a fair argument that a proposed project will have a
significant effect on the environment. In contrast, when a reviewing court examines an agency's
finding under the traditional approach, the reviewing court is presented with
an uncomplicated question of whether the agency's factual finding is supported
by substantial evidence. (See CEQA, § §
21168, 21168.5; County of Amador, supra, 76 Cal.App.4th at p.
945.) Because the agency has made a factual finding of whether a proposed
project will have a significant effect on the environment rather than a
determination as a matter of law of whether the record contains evidence
supporting a fair argument of such effects, the reviewing court need not
conduct the independent [***25] review
required by the fair argument approach. Instead, the court will affirm the
agency's finding if the record contains " 'relevant evidence that a
reasonable mind might accept as adequate support for a conclusion' " (
Bhatt, supra, 133 Cal.App.4th at p. 928), on the issue of whether a
proposed project will create a significant effect on the environment. As we will explain, we conclude that an agency must apply a
fair argument approach in determining whether, under Guidelines section
15300.2(c), there is no reasonable possibility of a significant effect on
the environment due to unusual circumstances. Accordingly, as a reviewing court
we 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. b. The Fair Argument Standard Applies Our conclusion that the fair argument standard applies to an
agency's determination under Guidelines section 15300.2(c) is based on
two considerations: (1) the close textual similarities between Guidelines section
15300.2(c) [*265] and CEQA section 21151, from which the
fair argument standard was [***26]
originally derived; and (2) the applicability of the policy reasons
behind the original adoption of the fair argument standard. First, we explain the close textual similarities.
"[T]he 'fair argument' test was derived from an interpretation of the language
of, and policies underlying, [CEQA] section 21151 itself." (
Laurel Heights II, supra, 6 Cal.4th at p. 1135.) That provision states that
an EIR is required "on any project ... which may have a significant
effect on the environment." (CEQA, §
21151(a), italics added.) Based on this language, and on the policy
of interpreting CEQA " 'to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language,' " our
Supreme Court decided that CEQA requires preparation of an EIR "whenever
it can be fairly argued on the basis of substantial evidence that the project may [**549]
have significant environmental impact." ( No Oil, supra, 13
Cal.3d at pp. 75, 83, italics added.) Similar to the focus in CEQA section 21151(a) on
whether a project "may have a significant effect on the environment"
(italics added), the application of Guidelines
[***27] section 15300.2(c)
turns on whether there is "a reasonable possibility that the
activity will have a significant effect on the environment" (ibid.,
italics added). Our Supreme Court has explained that "the word 'may'
connotes a 'reasonable possibility.' " ( No Oil, supra, 13 Cal.3d at p.
83, fn. 16.) Thus, the phrases "may have a significant effect"
and "a reasonable possibility" of a significant effect are
substantively identical. Because the fair argument standard was derived from a
phrase in CEQA section 21151(a), which is substantively identical to the
phrase in Guidelines section 15300.2(c), it is logical to apply the fair
argument standard to both of them. Both provisions reasonably can be read, as No
Oil read CEQA section 21151, as calling on the agency to determine
whether the record reflects a reasonable possibility of a significant
effect rather than to make findings and weigh evidence to determine if there will
be a significant effect. Indeed, precedent favors applying a fair argument
standard when the inquiry at issue is substantially similar to the inquiry made
in CEQA section 21151. ( Sierra Club v. County of Sonoma (1992) 6
Cal.App.4th 1307, 1317 [8 Cal. Rptr. 2d 473] [***28] [concluding that the fair argument standard
applied to an agency's decision whether to prepare a tiered EIR for a later
project because the relevant provision required the agency to determine whether
the later project may cause significant effects on the environment,
which was similar to the provision in CEQA section 21151 that gave rise
to the fair argument standard].) n13 n13 Our Supreme Court has observed that the " 'fair
argument' test has been applied only to the decision whether to prepare
an original EIR or a negative declaration," and has rejected the
application of the fair argument standard to an agency's decision of whether it
is required to recirculate an EIR when " 'significant new information'
" has been added. ( Laurel Heights II, supra, 6 Cal.4th at pp. 1135,
1136.) We do not believe our Supreme Court's rejection of the fair argument
standard in Laurel Heights II precludes the decision we reach here--that
the fair argument standard applies to an agency's decision whether there is a
reasonable possibility of a significant effect on the environment under
Guidelines section 15300.2(c). As the Supreme Court pointed out in Laurel
Heights II, the genesis of the fair argument standard in No Oil, supra, 13 Cal.3d 68, 75, 83-85,
was "[CEQA] section 21151[, which] commands that an EIR must be
prepared whenever a project 'may have a significant effect on the
environment.' " ( Laurel Heights II, at p. 1134.) The recirculation
of an EIR, on the other hand, is required only if the agency finds "
'significant new information.' " ( Ibid.) Because the decision
whether to recirculate an EIR is not based on an inquiry into whether a
project may have a significant effect on the environment, the inquiry at
issue in Laurel Heights II is not analogous to the inquiry here: whether
there is a reasonable possibility of a significant effect on the
environment. [***29] [*266] Next, we analyze whether the policy behind the adoption of
the fair argument standard for CEQA section 21151 is applicable here as
well. As our Supreme Court has stated in adopting the fair argument standard,
CEQA should be interpreted to " 'afford the fullest possible protection to
the environment within the reasonable scope of the statutory language.' "
( No Oil, supra, 13 Cal.3d at p. 84.) Application of the fair argument
standard to Guidelines section 15300.2(c) is consistent with that
policy, as the language of the provision reasonably [**550]
can be interpreted to call for the agency to determine whether there is
a fair argument for a significant effect. Applying that standard would afford
more protection to the environment than an interpretation that allowed us to
uphold an agency's determination whenever the record contained any
substantial evidence supporting a finding that a project would not have
a significant effect on the environment. We further conclude that it is consistent with the policy
behind CEQA to preclude an agency from relying on a categorical exemption when
there is a fair argument that a project will have a significant effect on the
environment, [***30] because, as our Supreme Court has noted, the
Secretary "is empowered to exempt only those activities which do
not have a significant effect on the environment. [Citation.] It follows that
where there is any reasonable possibility that a project or activity may
have a significant effect on the environment, an exemption would be
improper." ( Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 205-206
[132 Cal. Rptr. 377, 553 P.2d 537] (Chickering), italics added.) n14
This important limitation on the Secretary's authority, as established by CEQA,
is best upheld by disallowing an exemption for any [*267]
project where the record reflects a fair argument that there may be a
significant effect on the environment due to unusual circumstances. n15 n14 "To implement the rule laid out in Chickering,
Guidelines section 15300.2, subdivision (c) was adopted" (
Fairbank, supra, 75 Cal.App.4th at pp. 1251-1252), excepting from the
operation of the categorical exemptions, any project that posed a reasonable
possibility of a significant effect on the environment due to unusual
circumstances. [***31] n15 The Developer
contended at oral argument that because the categorical exemptions have been expressly
determined by the Secretary "to not have environmental impacts" and
"the analysis has already been done," we should not apply "a low
threshold rule" such as the fair argument standard "when we are
dealing with categorical exemptions." We do not agree. Because the
Secretary is only authorized to formulate exemptions that do not have a
significant effect on the environment ( Chickering, supra, 18 Cal.3d at pp.
205-206), no statutory policy exists in favor of applying categorical
exemptions where a fair argument can be made that a project will create a
significant effect on the environment. Thus, we conclude that the City was required to apply the
fair argument approach with respect to the issue raised by Guidelines section
15300.2(c), and accordingly, we will independently review the record using
that standard. 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, [***32] we
will conclude that the City abused its discretion because its decision to the
contrary is not supported by substantial evidence. 2. The Standard Governing the City's Determination That
the Urban In-fill Exemption Applied by Its Own Terms Next we examine how the standard of review should be applied
to the question of whether the urban in-fill exemption applies, by its own
terms, to the Project. Except for one issue, which we discuss below, the application
of the substantial evidence standard of review as set forth in CEQA sections
21168 and 21168.5 in this context is relatively straightforward. 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, supra, 75 Cal.App.4th at p. 1251;
see also Davidon, supra, 54
Cal.App.4th [**551] at p. 115 ["On review, an agency's
categorical exemption determination will be affirmed if supported by
substantial evidence that the project fell within the exempt category of
projects"]; Magan v. County of
Kings (2002) 105 Cal.App.4th 468, 475 [129 Cal. Rptr. 2d 344] (Magan)
[an [***33] agency "only has the
burden to demonstrate substantial evidence that the ordinance fell within the
exempt category of projects"]; McQueen v. Board of Directors (1988) 202 Cal.
App. 3d 1136, 1148 [249 Cal. Rptr. 439] Our concern is whether there is
substantial evidence supporting the [agency's] assertion of exemption"].)
Although " 'there is no statutory requirement of a preliminary study
attending an agency decision to use [an] exemption[,] ... [P] ... the administrati[ve]
record must disclose substantial evidence of every element of the contended
exemption.' " ( CalBeach Advocates v. City of n16 Of course, as to either of these elements, if we
perceive a need to interpret the terms used in the exemption, we independently
interpret the exemption using a de novo standard of review in our
interpretation. ( Fairbank, supra, 75 Cal.App.4th at p. 1251.) However, as the Preservation Group points out, the urban
in-fill exemption contains one unique element that arguably complicates the
application of the standard of review. The urban in-fill exemption states that
it applies only if "[a]pproval of the project would not result in any
significant effects relating to traffic, noise, air quality, or water quality."
(Guidelines, § 15332(d), italics
added.) Because this provision requires the City's finding as to significant
effects, it is in some respects similar to the Guidelines section
15300.2(c), discussed above, which requires a determination that there is
no "reasonable possibility that the activity will have a significant
effect on the environment due to unusual circumstances." [***35] (Italics added.) The Preservation Group
advocates that we approach the "significant effect" aspect of the
urban in-fill exemption in the same way that we approach the exception set
forth in Guidelines section 15300.2(c), namely, by asking if the record
shows substantial evidence of a fair argument that there could be a
significant effect on the environment. As we explain, because of the
differences between Guidelines section 15300.2(c) and the significant
effect element of the urban in-fill exemption, we reject the Preservation
Group's argument that the same standard of review should apply to both. Although there are several important differences between the
language of Guidelines section 15300.2(c) and the significant effect
element of the urban in-fill exemption, n17 the dispositive difference for
the [**552] purpose of our analysis is that the urban
in-fill exemption does not refer to a reasonable possibility of a significant
effect. Instead, the urban in-fill exemption requires the agency to determine
that "[a]pproval of the project would not result" in a
significant effect to traffic, noise, air quality, or water quality. n18
(Guidelines, § 15332(d), italics
added.) Thus, the urban [***36] in-fill
exemption calls for the agency to make
[*269] a definitive finding,
at the preliminary review stage, as to whether or not there will be a
significant environmental effect. We note that the Secretary could have elected
to use the term "may" or "reasonable possibility" in the
significant effect element of the urban in-fill exemption, thus invoking the
fair argument standard, but did not. Instead, the urban in-fill exemption
simply directs the agency to determine if a project "would not"
have a significant effect. (Guidelines, §
15332(d), italics added.) The use of this language leads us to conclude
that the fair argument standard does not apply. n17 For one thing, the "significant effect"
language in the urban in-fill exemption refers only to certain types of
environmental effects, namely, "traffic, noise, air quality, or water
quality." (Guidelines, §
15332(d).) In contrast, Guidelines section 15300.2(c) applies
to all types of significant environmental effects. In addition, unlike
Guidelines section 15300.2(c), the significant effect element of the
urban in-fill exemption, does not require unusual circumstances, but
instead, by its terms, applies to a significant effect on traffic, noise, air
quality, or water quality caused by any circumstance. [***37] n18 Similarly, comparing the language of the urban in-fill
exemption to the language of CEQA section 21151(a), which, as we have
explained, first gave rise to the fair argument standard, we see that the fair
argument standard originated with a provision requiring an agency to determine
whether a project may have a significant effect. Consistent with this analysis, a leading commentator has
suggested that the fair argument standard does not apply to the significant
effect element of the urban in-fill exemption because the urban in-fill
exemption does not depend on whether a project may have a significant
effect, but instead depends on if it will have a significant effect.
"Had the Resources Agency intended that a reviewing court use the more
stringent 'fair argument' standard of review, then it would have instead used
terms echoing that standard as it appears in other contexts (e.g., 'there is no
substantial evidence that approval of the project may have significant
effects relating to traffic, noise, air quality, or water quality'). This view
is consistent with the general rule that [***38] the courts, in reviewing an agency's decision
to rely on a categorical exemption, employ the 'substantial evidence' standard
of review." (Remy et al., Guide to the Cal. Environmental Quality Act
(10th ed. 1999) p. 117.) We agree with this reasoning. Having concluded that the fair argument standard does not
apply to the City's finding regarding the significant effect element of the
urban in-fill exemption, we apply the traditional substantial evidence standard
of review. We inquire whether the record contains substantial evidence to
support the City's finding that the Project will not have a significant effect.
If we locate substantial evidence in the record to support that conclusion, we
will uphold the City's determination, even if other evidence arguably supports
a different conclusion. n19 n19 We recognize that because " 'the administrati[ve]
record must disclose substantial evidence of every element of the contended
exemption' " ( CalBeach Advocates, supra, 103 Cal.App.4th at p. 536),
and an agency "has the burden to demonstrate substantial evidence that the
ordinance fell within the [exemption]" ( Magan, supra, 105 Cal.App.4th
at p. 475), an agency will often have to conduct a fairly extensive
preliminary review to develop substantial evidence that there will be no
significant effect on traffic, noise, air quality or water quality for a
project that appears to fall under the urban in-fill exemption. Although there
may be some theoretical objection to the performance of such a study at the
preliminary review stage, the need to perform a thorough analysis "simply
to determine whether an activity is subject to CEQA in the first instance ...
is not absurd when we consider the principles that a[n] ... exemption ...
should be strictly construed ... , and that such strict construction allows
CEQA to be interpreted ' "in such manner as to afford the fullest possible
protection to the environment within the reasonable scope of the statutory
language." ' ... [I]t is not unreasonable to require a consideration of
the issue of significant environmental effects at the preliminary review stage
... when the agency assesses the applicability of a categorical
exemption." ( East Peninsula Ed. Council, Inc. v. Palos Verdes
Penninsula Unified School Dist. (1989) 210 Cal. App. 3d 155, 171 [258 Cal.
Rptr. 147], citations omitted.) [***39] [*270] [**553]
D Substantial Evidence Supports the City's
Determination That the Urban In-fill Exemption Applied According to Its Terms We now turn to an analysis of the City's determination that
the urban in-fill exemption applies by its own terms. In concluding that the elements of the urban in-fill
exemption were present in this case, the City made a number of subsidiary
findings. At issue here are three of those findings: (a) the Project is
substantially surrounded by urban uses, (b) the Project is consistent with the
applicable general plan, and (c) the Project would not result in any
significant effects relating to traffic. We examine each of these findings in
turn. 1. Substantially Surrounded by Urban Uses The first finding that the Preservation Group challenges is
that the Project will be developed on a site "substantially surrounded
by urban uses." (Guidelines, §
15332(b), italics added.) The Preservation Group points out that
although the Project will be surrounded by urban buildings to the east, north
and west, the corner of (6) We have not located or been directed by the parties to any
authority interpreting the phrase "substantially surrounded by urban
uses" as it appears in the urban in-fill exemption. n20 Thus, to inform
our analysis we turn to case law that has defined the term "urban
uses" in the Community Redevelopment Law (Health & Saf. Code,
§ 33000 et seq.). n21 According to
case law there defining the term "urban uses," "[t]he term
'urban' is 'not fixed, objective, or
[*271] easily ascertainable,'
" but it has been " 'defined as "of, relating to, characteristic
of, or taking place in a city ... constituting or including and centered on a
city ... of, relating to, or concerned with an urban and [specifically] a
densely populated area ... belonging or having relation to buildings that are
characteristic of cities ... ." ' " ( Friends of Mammoth v. Town
of n20 As we have explained ante, the interpretation of
the terms used in a categorical exemption is a question of law, to which we
apply a de novo standard of review. ( Fairbank, supra, 75 Cal.App.4th at p.
1251.) n21 The Community Redevelopment Law contains the phrase
"urban uses" because it covers "blighted area[s]" that are
" 'predominantly urbanized,' " which is defined to mean that
"not less than 80 percent of the land in the project area: (1) Has been or
is developed for urban uses; [P] ... [P] or (3) Is an integral part of
one or more areas developed for urban uses which are surrounded or
substantially surrounded by parcels which have been or are developed for
urban uses." (Health & Saf. Code, § 33320.1, italics added.) [***42] We apply the Friends of Mammoth approach to determine
whether Balboa Park should be considered an urban use. Doing so, we focus on
the fact that Balboa Park is a quintessential urban park, heavily landscaped,
surrounded by a densely populated area, and containing urban amenities such as
museums, theaters and restaurants. Accordingly, it is "characteristic of a
city or a densely populated area," and we conclude that it constitutes an
urban use. Having determined that Balboa Park is an urban use, we reject the
Preservation Group's argument that, due to its frontage on Balboa Park, the
Project is not "substantially surrounded by urban uses." n22 n22 We need not and do not reach the issue of whether
development that is admittedly surrounded on three sides by urban uses
would nevertheless not be "substantially surrounded" by urban
uses if it is fronted by a nonurban use on the fourth side. 2. Consistency with the General Plan We next examine whether substantial evidence supports the
City's [***43] finding that the Project
"is consistent with the applicable general plan designation and all
applicable general plan policies as well as with applicable zoning designation
and regulations." (Guidelines, §
15332(a).) The Preservation
[*272] Group does not challenge
the Project's compliance with zoning requirements, but argues that the Project
does not comply with the Uptown Community Plan adopted by the City Council in
1988 and amended in 1989 (the Plan). The Preservation Group makes two arguments centering on the
setback of the building and its effect on views of Balboa Park. It first points
to a statement in the Plan dealing with general urban design guidelines, which
states that "[d]evelopments on corner lots of existing streets which serve
as public view corridors for vistas and open space need special design
considerations such as being required to setback from the corner or terrace
away from the street." Based on this language, the Preservation Group
argues that the Project is inconsistent with the Plan because "it has been
unnecessarily crammed into the southern end of the lot with a minimized setback
from the corner and the park." Similarly, the Preservation Group points to
the [***44] Plan's stated objective in the
Park West area of San Diego (in which the Project is located) to
"[m]aintain and enhance pedestrian and auto views of Balboa Park."
The Preservation Group argues that the Project is inconsistent with this
objective because it is insufficiently set back to maintain views of Balboa
Park from southbound Sixth Avenue. As we will explain, we reject these
arguments and determine that substantial evidence supports the City's finding
that the Project is consistent with the applicable planning documents, which, as
quoted above, express a general policy in favor of using setbacks to maintain
view corridors. Our conclusion is based in large part on the fact that the
record contains evidence that the Project's setbacks more than comply
with the specific applicable setback
[**555] zoning provisions.
Specifically relevant to the views of Balboa Park from Sixth Avenue, the
Project provides a 12.5-foot setback from the property line along Upas Street
where only a five-foot setback is required. Further, there will be a 20-foot
setback from the face of the easterly curb on Sixth Avenue. A diagram in the
record shows that because of these setbacks, drivers proceeding south
[***45] on Sixth Avenue will have a view
across Upas Street and to the east toward Balboa Park from at least 68 feet
from the intersection with Upas Street. The use of setbacks that exceed the
applicable requirements, along with evidence in the record showing that there
will be sight lines of Balboa Park for southbound drivers, lead us to conclude
that substantial evidence supports the City's conclusion that the Project is
consistent with the Plan's policy in favor of using setbacks to maintain view
corridors. The Preservation Group also contends that the Project is
inconsistent with the Plan's statement that "development adjacent to the
north side of Balboa Park should be low density, residential uses."
However, the record shows that this policy does not apply to the northeast
corner of Upas Street and Sixth
[*273] Avenue, where the Project
is located. A map in the Plan shows that the low density area is located
adjacent to the north end of Balboa Park east of Seventh Avenue and on
the other side of the highway that cuts through Balboa Park. Further, other
maps in the Plan show that the corner of Upas Street and Sixth Avenue is contained
in a "very high density" area. n23 We accordingly conclude
[***46] that the Plan does not place the
Project in a low density area, and the Project is thus not inconsistent with
the Plan due to its density. n23 We note that the maps we rely on show that the Project
is on the border of the very high density area. One map draws the border
slightly differently and shows the Project as being just outside of the
very high density area (but not in a low density area, in any event). To the
extent that the Plan contains any ambiguity, we defer to the City's interpretation
of its own Plan. ( Save Our Peninsula Committee v. Monterey County Bd. of Supervisors
(2001) 87 Cal.App.4th 99, 142 [104 Cal. Rptr. 2d 326] [in reviewing
"an agency's decision for consistency with its own general plan, we accord
great deference to the agency's determination. This is because the body which
adopted the general plan policies in its legislative capacity has unique
competence to interpret those polices when applying them in its adjudicatory
capacity"].) 3. No Significant Effects on Traffic (7) Turning [***47] to
the next element of the urban in-fill exemption, we analyze whether substantial
evidence supports the City's finding that "[a]pproval of the project would
not result in any significant effects relating to traffic ... ."
(Guidelines, § 15332(d).) As we
have discussed ante, in reviewing the City's finding we apply a
traditional substantial evidence standard of review rather than the fair argument
standard. (See part II.C.2, ante.) Thus, we will affirm the City's
findings if the record contains substantial evidence that the Project will
cause no significant effect relating to traffic, even if other evidence
arguably supports a different conclusion. The Preservation Group presents several arguments concerning
the Project's impact on traffic--all of which we reject based on the following
analysis. a. The Offset Intersection First, the Preservation Group argues that the Project would
have a significant effect on traffic because it will be located at a dangerous
intersection. Specifically, the Preservation Group argues that the intersection
of Sixth Avenue and Upas Street is an "offset" intersection: (1)
Sixth [**556] Avenue does not line up to the north and
south of Upas [***48] Street, with Sixth
Avenue jogging to the west as it continues in front of the Project; and (2)
Upas Street does not [*274] line up on either side of Sixth Avenue, with
a third street--Balboa Drive, being directly across Sixth Avenue from the
western portion of Upas Street. The Preservation Group also cites testimony
from several residents attesting to the dangerous nature this offset
intersection. For example, residents explained that drivers use excessive
speeds, that the signage is confusing and that accidents occur at the
intersection when traffic northbound on Sixth Avenue fails to veer west at the
offset intersection and runs into the lot on which the Project will be located.
In contrast, police department accident records show only two reported
accidents near the intersection in a one-year period, and only two accidents in
the previous five years. None of the reported accidents involved drivers
running into the lot where the Project will be located. (8) The observation of local residents that accidents (even if
unreported) have occurred at the intersection may be properly considered here.
" 'In the context of an administrative hearing, "relevant personal
observations are evidence. For [***49]
example, an adjacent property owner may testify to traffic conditions
based upon personal knowledge." ' " ( Leonoff v. Monterey County
Bd. of Supervisors (1990) 222 Cal. App. 3d 1337, 1351-1352 [272 Cal. Rptr. 372];
see also Pocket Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903, 928 [21 Cal. Rptr. 3d 791]
["Relevant personal observations of area residents on nontechnical
subjects may qualify as substantial evidence" (italics added)].)
However, although local residents may testify to their observations
regarding existing traffic conditions, "in the absence of a specific
factual foundation in the record, dire predictions by nonexperts regarding
the consequences of a project do not constitute substantial evidence."
( Gentry, supra, 36 Cal.App.4th at p. 1417, italics added.)
"Unsubstantiated opinions, concerns, and suspicions about a project,
though sincere and deeply felt, do not rise to the level of substantial evidence
... ." ( Leonoff, at p. 1352.) Thus, "project opponents must
produce ... evidence, other than their unsubstantiated opinions, that a project
will produce a particular adverse effect." ( Ukiah, supra, 2
Cal.App.4th at pp. 735-736, [***50]
italics added.) Here, although the testimony of the local residents arguably
provides some evidence of the dangerous nature of the intersection, the record
contains no factual foundation for the claim that the Project would exacerbate
that condition for pedestrians and drivers. To the contrary, a study by a
traffic engineer concluded that "the [P]roject does not create a
significant impact at the intersection of Sixth Avenue and Upas Street and
there are no 'safety' or sight distance problems at the intersection."
Diagrams in the record show that sight lines for drivers will not be
substantially impacted by the Project, with
[*275] drivers proceeding south
on Sixth Avenue and turning east onto Upas Street and drivers proceeding west
on Upas Street and turning north onto Sixth Avenue able to see across the
intersection from 68 feet back. Pedestrian sight lines of the intersection will
also not be obstructed. Further, the intersection is controlled with traffic
lights, minimizing the risk that an accident, involving either pedestrians or
only vehicles, will be caused by any diminished ability to see cross-traffic.
Because the Project's design calls for the placement of a series of
36-inch-tall [***51] planters along the
southern and western perimeter of the site, it also takes account of the
possibility that drivers northbound on Sixth Avenue will cause [**557]
substantial damage if they drive onto the property. The Preservation
Group presented no evidence to counter any of these points. Instead, the Preservation Group argues that the Project will
have a significant effect on traffic because it will foreclose the City from
taking certain future steps to address problems at the intersection,
such as constructing a traffic circle, widening the sidewalks or other
measures. This argument suffers from the same flaws as the Preservation Group's
argument about the exacerbation of the dangerous conditions at the
intersection: It is based solely on unsubstantiated lay opinion. Except for the
nontechnical and unsupported lay opinion of one local resident, the record
contains no evidence that the Project will foreclose the City from taking meaningful
steps in the future to address any dangerous conditions that it perceives at
the intersection. The record also contains the report from the City Manager,
which states that it is not reasonably foreseeable that the Project would
impact any plans to adjust the intersection, because no plans have been
[***52] adopted. This report provided a
further basis for the City to reject the Preservation Group's argument. Based on the above, we conclude that substantial evidence
supports a finding that the Project will not have a significant effect on
traffic relating to the offset intersection. b. Traffic Concerns Relating to the Alley The Preservation Group makes several points related to the
alley located behind the Project. The alley is located to the north of the
Project and connects Sixth Avenue and Seventh Avenue. It provides access to
parking spaces for nearby apartment buildings and is where the entrance and
exit to the underground parking garage for the Project will be located. [*276] The Preservation Group argues that it will be dangerous for
drivers to turn onto Sixth Avenue when exiting from the alley because the
Project will block a driver's view of cars driving north on Sixth Avenue.
However, as the record indicates, the City Manager explained that the Project
fully complies with the City's requirements for visibility areas at the street
and alley intersections. Next, the Preservation Group argues that it is dangerous for
drivers to enter the alley when driving southbound on [***53] Sixth Avenue if they illegally cross a double
yellow line or make a dangerous U-turn at Upas Street to do so. However, the
difficulty of turning left into the alley from Sixth Avenue is not a condition
caused by the Project and exists whether or not the Project is built. Moreover,
as the Preservation Group recognizes, the safest way to enter the alley from
southbound Sixth Avenue is to make a left turn at the traffic signal on Upas
Street and enter the alley from Seventh Avenue. The Project does not preclude
that approach. Finally, the Preservation Group also suggests that
congestion in the alley will "interfere with the residents of the apartments
on the other side of the alley who must park in stalls along the mid-block
alley." However, as the City Manager explained, while the Project would be
expected to generate some additional traffic in the alley, it would not be a
significant addition, because the Project would be expected to generate an
average of only seven trips in the morning peak hours and eight trips in the
afternoon peak hours. Further, the Project would improve congestion problems in
the alley by dedicating an additional five feet of property to widen and
improve the [***54] existing
15-foot-wide alley. [**558] Based on this evidence, we conclude that
substantial evidence supports the City's finding that the Project would not
cause any significant effects on traffic as related to the alley to the north
of the Project. c. Effects on Parking The Preservation Group argues the Project will have a
significant adverse impact on the availability of parking spaces in the
neighborhood, which are already limited because of the proximity of Balboa Park
and parking congestion caused by events held at the Marston House. The records shows that the Project will provide 28 parking
spaces (two for each of the 14 units), which is more than the required 25
spaces mandated by applicable requirements. The Preservation Group nevertheless
argues that the Project will negatively impact the availability of neighborhood
parking [*277] (1) because it does not designate any additional
space for visitor parking, and (2) it will cause the elimination of three
on-street parking spaces. n24 n24 The loss of three on-street parking spaces on Sixth
Avenue is due to the widening of the alley, the creation of a red-painted curb
area for fire truck access, and designating a space for postal service parking.
[***55] (9) We
conclude that there may be some small effect on the availability of on-street
parking because of the loss of three on-street parking spaces and the parking
needs of visitors to the 14 single-family residences in the Project. However,
the effect cannot be described as "significant." A significant effect
is a "substantial, or potentially substantial, adverse change." (CEQA,
§ 21068; Guidelines, § 15382.) 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.' (Guidelines,
appen. G, § XV, subd. (a), italics
added.) The slight increase in parking congestion that may result from the
Project will not be "substantial" in relation to the preexisting
parking congestion in the area as described in the record. ( Fairbank,
supra, 75 Cal.App.4th at p. 1260 ["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' [***56] without a showing of some feature of the
project that distinguishes it from any other small, run-of-the-mill commercial
building or use"]; City of
Orange v. Valenti (1974) 37 Cal. App. 3d 240, 249 [112 Cal. Rptr. 379] [if
a project concerns "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 then be said
that the [project] would have no significant effect on the environment of that
particular area"].) E Substantial Evidence Supports the City's
Determination That There Is No Reasonable Probability of a Significant Effect
on the Environment Due to Unusual Circumstances We next examine the City's finding 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(c). As we have explained ante, the fair argument standard applies to our analysis. (See |