A state appellate court has upheld an exemption from environmental review for a 14-story residential building proposed in San Diego. The court ruled that the city correctly applied an urban infill exemption contained in the 1998 update to the California Environmental Quality Act Guidelines.
The case provides the first published interpretation of the urban infill exemption in CEQA Guidelines § 15332 for projects that meet five criteria. The court rejected project opponents’ contention that unusual circumstances should have prevented application of the CEQA exemption.
The project that spurred the lawsuit is a 14-story, 14-unit residential tower proposed for a 10,000-square-foot vacant lot at Sixth Avenue and Upas Street, across the street from the northwestern corner of Balboa Park. Developers Mi Arbolito, LLC, and 1700 Investors, LLC, and architect Martinez + Cutri proposed the project in early 2003. Later that year, the city issued a shoring and grading permit, and soon thereafter approved a building permit for pad footings and an underground parking garage.
The Banker’s Hill, Hillcrest, Park West Community Preservation Group sued the city, arguing that the city had violated CEQA by not conducting environmental review. After the lawsuit was filed, the Development Services Department issued a notice of exemption from environmental review because the project required only ministerial approval and because it qualified for the urban infill exemption.
The preservation group appealed to the City Council, which upheld the exception based solely on the project’s urban infill aspects. The opponents then amended their lawsuit, arguing that the project was not eligible for the urban infill exemption and that the city had impermissibly piecemealed review of the project by approving some permits before making an environmental determination.
San Diego County Superior Court Judge Ronald Prager ruled for the city, and a three-judge panel of the Fourth District, Division One, upheld the lower court.
The Fourth District dealt at length with the standard that should have governed the city’s decision, and the court’s review of that decision. The court ended up with a split: It decided the city’s determination regarding the urban infill exemption was governed by the substantial evidence standard, which favored the city because the existence of conflicting evidence would not necessarily matter. But the court decided that the question of whether unusual circumstances called for an exception to the exemption was guided by the fair argument standard, which favored the opponents because conflicting evidence could be enough to force additional review.
After deciding the standards, the court considered whether the project qualified for the urban infill exemption. The exemption is available to projects that are consistent with general plan and zoning designations, are on sites of 5 acres or less that are “substantially surrounded by urban uses,” are on sites containing no rare species habitat, “would not result in any significant effects relating to traffic, noise, air quality or water quality,” and can be adequately served by utilities and public services. The preservation group argued that the San Diego project did not qualify because it was not surrounded by urban uses, was inconsistent with the general plan and would impact traffic.
The court rejected all of the arguments, including the contention that Balboa Park was not an “urban use.” “Balboa Park,” Justice Joan Irion wrote for the court, “is a quintessential urban park, heavily landscaped, surrounded by a densely populated area, and containing urban amenities such as museums, theaters and restaurants.”
As for general plan and zoning consistency, the opponents said the project’s setbacks were substandard and the project would block views of the park protected by a 1989 community plan. The court, however, found that the project would have greater setbacks than required by the zoning, and site lines from the street to the park would not change much.
Traffic was a trickier question, partly because the adjacent intersection is offset. Opponents said the project would make the offset intersection more hazardous. But the court concluded, “[A]lthough 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.” The court also ruled that the loss of three on-street parking spaces for an alley to serve the project “cannot be described as ‘significant.’”
The court then turned to the question of whether “unusual circumstances” would provide an exception to the CEQA exemption. Here, the opponents needed only to present a fair argument. They contended that the project’s proximity to Balboa Park, historic houses, an existing condominium tower and an offset intersection created unusual circumstances.
The court rejected the arguments because the preservation group did not provide enough evidence to pass even the fair argument standard. The court noted that community character and view impacts had already been established by a condominium tower next door to the project site.
As for piecemealing, the court declined to consider the preservation group’s arguments because the group had not presented them to the city and, thus, failed to exhaust administrative remedies.
The Case:
Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego, No. D046360, 06 C.D.O.S. 3823, 2006 DJDAR 5657. Filed May 8, 2006.
The Lawyers:
For the preservation group: Kevin K. Johnson, Johnson & Hanson, (619) 696-6211.
For the city: Joe Cordileone, city attorney’s office, (619) 533-5854.
For the developers: Monty McIntyre, Seltzer, Caplan, McMahon & Vitek, (619) 685-3003.
