Bottini v. City of San Diego

• Decision Date: 18 September 2018
• Docket Number: D071670
• Citation: 238 Cal.Rptr.3d 260,27 Cal.App.5th 281
• Parties: Francis A. BOTTINI, Jr., et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

27 Cal.App.5th 281

238 Cal.Rptr.3d 260

Francis A. BOTTINI, Jr., et al., Plaintiffs and Appellants,

v.CITY OF SAN DIEGO et al., Defendants and Appellants.

D071670

Court of Appeal, Fourth District, Division 1, California.

Filed September 18, 2018

Bottini & Bottini, Albert Y. Chang and Yury A. Kolesnikov, La Jolla, for Plaintiffs and Appellants.

Office of the City Attorney, Mara W. Elliott, City Attorney, and Carmen A. Brock, Deputy City Attorney, for Defendants and Appellants.

AARON, J.

Francis A. Bottini, Jr., Nina M. Bottini, and the Bernate Ticino Trust dated March 9, 2009, Trust 3 (the Bottinis) applied to the City of San Diego for a coastal development permit (CDP) to construct a single-family home on a vacant lot in La Jolla. City staff determined that the Bottinis' proposed construction project is categorically exempt from environmental review under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq. ),¹ but the City Council of San Diego (City Council; together with the City of San Diego, the City) reversed that determination. In reaching its decision, the City Council found that full environmental review is necessary because the Bottinis had removed a 19th century cottage from the lot on which they planned to build their residence shortly before they applied for a CDP. The City itself had previously voted against designating that cottage as a historical resource, declared that the cottage was a public nuisance, and authorized the Bottinis to demolish the cottage. Nevertheless, the City Council—after the cottage's demolition—declared the cottage "historic," concluded that the cottage's demolition must be considered part of the Bottinis' project for purposes of CEQA, and found that there was a reasonable possibility that CEQA's "historical resources" and "unusual circumstances" exceptions applied to the Bottinis' construction project, thus requiring full environmental review.

In response to the City Council's ruling, the Bottinis filed a petition for a writ of administrative mandamus seeking to compel the City Council to set aside its decision, as well as a complaint for damages against the City, based on alleged violations of the takings, due process, and equal protection clauses of the California Constitution. The City moved for summary judgment on the Bottinis' constitutional causes of action.

The court granted the Bottinis' petition for a writ of administrative mandamus and ordered the City Council to set aside its determination that the Bottinis' proposed construction project requires environmental review. Specifically, the court concluded that the demolition of the cottage is not a component of the Bottinis' construction project and, as a result, the City Council's determination that the project is not categorically exempt from CEQA review lacked substantial evidentiary support. The court also granted the City's motion for summary judgment on the Bottinis' constitutional claims.

We conclude that the trial court properly granted the Bottinis' petition for a writ of administrative mandamus because the demolition of the cottage that previously existed on the Bottinis' property is not a component of the Bottinis' residential construction project for purposes of CEQA. Rather, the cottage was demolished due to the City's determination that the cottage was a public nuisance in need of abatement—an event that occurred before the Bottinis applied for a CDP. We further conclude that the trial court properly granted the City's motion for summary judgment. Accordingly, we affirm the judgment in full.

I.CEQA OVERVIEW

CEQA and its implementing regulations "embody California's strong public policy of protecting the environment." ( Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 285, 142 Cal.Rptr.3d 539, 278 P.3d 803.) " ‘The basic purposes of CEQA are to: [¶] (1) Inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities. [¶] (2) Identify ways that environmental damage can be avoided or significantly reduced. [¶] (3) Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible. [¶] [and] (4) Disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved.’ " ( Id . at pp. 285-286, 142 Cal.Rptr.3d 539, 278 P.3d 803.)

In furtherance of these goals, CEQA establishes a three-tier environmental review process. The first step is jurisdictional and requires a public agency to determine whether a proposed activity is a "project." Under CEQA, a project is defined as "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and ... [¶] ... [¶] ... that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies." (§ 21065.) A project may encompass "several discretionary approvals by governmental agencies" and does not mean "each separate governmental approval." (Guidelines, § 15378, subd. (c).)² Thus, "CEQA's requirements [can]not [be] avoided by chopping a proposed activity into bite-sized pieces which, when taken individually, may have no significant adverse effect on the environment." ( POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 73, 218 Cal.Rptr.3d 681.) If a proposed activity is a project, the agency proceeds to the second step of the CEQA review process.

At the second step, the agency must "decide whether the project is exempt from the CEQA review process under either a statutory exemption [citation] or a categorical exemption set forth in the CEQA Guidelines [citations]." ( California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382, 196 Cal.Rptr.3d 94, 362 P.3d 792 ( Bay Area Air ).) Examples of categorical exemptions include the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing structures (the Class 1 categorical exemption; Guidelines, § 15301); minor alterations in the condition of land, water, or vegetation (the Class 4 categorical exemption; id. , § 15304); and—of particular relevance to this appeal—the construction of a single-family residence (the Class 3 categorical exemption; id ., § 15303).

Unlike statutory exceptions, categorical exemptions are subject to exceptions. For instance, the Class 3 categorical exemption that is at issue in this appeal does not apply—or, stated differently, CEQA review may apply—if a project "may cause a substantial adverse change in the significance of a historical resource." (Guidelines, § 15300.2, subd. (f); Pub. Resources Code, § 21084, subd. (e).) For purposes of this decision, we will refer to this as the "historical resource" exception. The Class 3 categorical exemption also does not apply if "there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." (Guidelines, § 15300.2, subd. (c).) This exception is commonly referred to as the "unusual circumstances" exception.

If a project is categorically exempt and does not fall within an exception, " ‘it is not subject to CEQA requirements and "may be implemented without any CEQA compliance whatsoever." ’ " ( County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 966, 91 Cal.Rptr.2d 66.) But if a project is not exempt, the agency must then "decide whether the project may have a significant environmental effect." ( Bay Area Air, supra , 62 Cal.4th at p. 382, 196 Cal.Rptr.3d 94, 362 P.3d 792.) Under CEQA, a project that causes a substantial adverse change in the significance of an historical resource is considered to be a project that significantly impacts the environment. (§ 21084.1; see § 21060.5 [defining the environment as "the physical conditions which exist within the area which will be affected by a proposed project," including "objects of historic ... significance."].)

Finally, if the project may have a significant effect on the environment, the agency must proceed to the third step of the process and prepare an environmental impact report (EIR). (§§ 21080, subd. (d), 21082.2, subd. (d), 21100, subd. (a), 21151, subd. (a).)

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. ( North County Advocates v. City of Carlsbad (2015) 241 Cal.App.4th 94, 101, 193 Cal.Rptr.3d 360 ( Carlsbad ); CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 504, 184 Cal.Rptr.3d 128 ( CREED-21 ).) " ‘[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 ...." ’ " ( Carlsbad , at p. 101, 193 Cal.Rptr.3d 360 ; see Association of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17 Cal.App.5th 708, 725, 225 Cal.Rptr.3d 463 ["[T]he text of CEQA and the Guidelines identify existing conditions as the starting point (i.e., baseline) for determining and quantifying the proposed project's changes to the environment."].)

II.FACTUAL AND PROCEDURAL BACKGROUND

A. The Windemere and historical designation efforts

The Windemere Cottage (Windemere) was a late Victorian-era beach bungalow in La Jolla designed by architects Joseph Falkenhan and Irving Gill. In 1927, the Windemere was moved from its original beachside location to Virginia Way. The Windemere exhibited features that were representative of early architecture in La Jolla, including a hipped roofline, eaves with exposed rafters, vertical board and batten redwood walls, and leaded,...