Friends of Davis v. City of Davis

• Decision Date: 25 August 2000
• Docket Number: No. C029236.,C029236.
• Citation: 100 Cal.Rptr.2d 413,83 Cal.App.4th 1004
• Court: California Court of Appeals Court of Appeals
• Parties: FRIENDS OF DAVIS, Plaintiff and Appellant, v. CITY OF DAVIS, Defendant and Respondent; Fulcrum Davis, Real Party in Interest and Respondent.

100 Cal.Rptr.2d 413

83 Cal.App.4th 1004

FRIENDS OF DAVIS, Plaintiff and Appellant, v. CITY OF DAVIS, Defendant and Respondent Fulcrum Davis, Real Party in Interest and Respondent.

No. C029236.

Court of Appeal, Third District.

August 25, 2000.

Certified for Partial Publication.^*

Law Offices of John C. Gabrielli and John C. Gabrielli, Davis, for Plaintiff and Appellant.

McDonough, Holland & Allen, Harriet A. Steiner and Douglas A. Potts, Sacramento, for Defendant and Respondent.

Remy, Thomas and Moose, Whitman F. Manley, Sacramento, and Kathrine C. Pittard

for Real Party in Interest and Respondent.

SCOTLAND, P.J.

Following a lengthy joint planning process between the University of California, Davis (the University) and the defendant City of Davis (the City), the University issued a request for bids for a private concern to assume responsibility for commercial development of a small parcel of real property contiguous to the City's downtown area. Real party in interest Fulcrum Davis, a business entity, was the successful applicant and obtained an option to purchase the property. At that point in time, the only discretionary approval which remained was site plan and architectural approval pursuant to the City's design review ordinance. (Davis City Code, § 29-231 et seq.) When it was learned that Fulcrum Davis was negotiating with the Borders bookstore chain to open a bookstore in the proposed development, a number of persons objected. Taking the position that its design review ordinance does not encompass tenant approval, the City approved the design review application.

After unsuccessfully seeking relief in the trial court, plaintiff Friends of Davis (plaintiff) appeals, contending: (1) the City's interpretation of its design review ordinance is incorrect and unconstitutional; (2) the City misstated the law and engaged in bad faith conduct in order to curtail environmental review under the California Environmental Quality Act (CEQA) (see Pub. Resources Code, § 21000 et seq.); (3) the City failed to complete a threshold analysis, and such an analysis would compel further review under CEQA; (4) other CEQA violations require setting aside approval under the design review ordinance; and (5) the City's interpretation of the design review ordinance and approval of the project are inconsistent with its general and specific plans. We shall reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation concerns a parcel of property of approximately three and one-half acres, located immediately adjacent to downtown Davis, which is regarded by the City as its "core area." The parcel originally was part of a larger parcel referred to as Aggie Village or the Aggie Village Project. Aggie Village had been owned by the University. In the course of events, part of Aggie Village was developed for residential use, part of it was maintained as open space, and Fulcrum Davis acquired an option to purchase the portion involved here for the purpose of constructing improvements to house retail businesses.

In 1987, when the City adopted its general plan, Aggie Village was outside the city limits. However, it was included in the general plan because it bore a relationship to city planning. The general plan called for annexation and use of the Aggie Village property for the purposes of a shopping center and conference hotel. At that time, it was anticipated the use of the Aggie Village property would include, on about 10 acres, a 150-room conference hotel and up to 100,000 square feet of retail space. Adoption of the general plan was preceded by preparation and certification of an Environmental Impact Report (EIR).

In 1993, the City revised the transportation and circulation element of its general plan, and adopted a mitigation monitoring plan. These actions were preceded by preparation and certification of an EIR.

In 1994, the University adopted a longrange development plan. Adoption of the plan was preceded by the preparation and certification of an EIR. The plan designated part of Aggie Village for residential development and another part for commercial development compatible with neighboring uses on campus and in the City.

In 1995, with respect to the specific project for development of Aggie Village, the University conducted a tiered initial study relying on the program EIR certified in connection with the long-range development plan. At that time, the proposed Aggie Village Project included three elements: (1) residential development of 4.5 acres; (2) open space elements; and (3) commercial development of 3.5 acres consisting of up to 50,000 square feet of office and retail space and a parking lot with 180 spaces. As the result of the tiered initial study, the University adopted a CEQA negative declaration.

In 1995, the University applied to the City for prezoning of Aggie Village.¹ The University requested that the portion of the property slated for commercial use be prezoned as central commercial, which would permit retail and office use. Following public hearings, the City amended its general plan to reflect the development of Aggie Village as residential/retail rather than as a conference hotel and shopping center, and to anticipate 30,000 to 50,000 square feet of new retail use rather than 100,000 square feet. The commercial portion of the project was prezoned to central commercial. An application for annexation was filed with the Local Agency Formation Commission. In taking these actions, the City treated the University as lead agency for purposes of CEQA. The City relied upon the University's long-range development plan EIR and Aggie Village negative declaration. The Local Agency Formation Commission subsequently approved annexation, and annexation became effective on February 16, 1996.

In 1996, the City adopted its Gateway/Olive Drive Specific Plan. That plan encompassed Aggie Village but did not modify the previously approved zoning and general plan provisions applicable to Aggie Village. Adoption of the plan was preceded by preparation and certification of an EIR. The EIR noted the Aggie Village Project had been subjected to CEQA review by the University, and included it in the Gateway/Olive Drive review for cumulative impact and environmental setting purposes only.

In 1996, the City also adopted its Core Area Specific Plan. That plan reflects the designation of the subject property for use as core retail with offices. Adoption of the plan was preceded by preparation and certification of an EIR.

The subject property is located at the intersection of Richards Boulevard and First Street. Richards Boulevard traverses the area between Interstate 80 and First Street and, in that distance, includes a two-lane railroad undercrossing. The City's general plan included a proposal for widening Richards Boulevard and the undercrossing to four lanes. In 1996, the City prepared and certified an EIR with respect to widening Richards Boulevard. Three alternatives, including an alternative incorporating transportation demand management (TDM) measures, were analyzed in the EIR, at a level of detail given that of the proposed project. The EIR states that, while this was not a CEQA requirement, it was determined to be necessary by the City Council.

The City Council approved the Richards Boulevard widening project. However, the voters then rejected it by referendum. Thereafter, the City Council recertified the EIR, disapproved the project to widen Richards Boulevard, adopted the TDM alternative, and amended the general plan to delete widening of the road as a policy.

As a result of these actions, which are final and beyond judicial review at this time, the subject property was annexed to the City, zoned as central commercial, and slated in the City's general and applicable specific plans for commercial use as retail and/or office space.

Fulcrum Davis eventually acquired an option to purchase the commercial property from the University, and began negotiating a lease with Borders to locate a bookstore in the proposed project. This generated public controversy and debate. The City Council received a petition opposing the location of a Borders bookstore in Davis. The City Council addressed the issue on two occasions, but declined to take action, such as imposing a development moratorium, on the property.

Cities are required to have a comprehensive, long-term general plan for the physical development of the city. (Gov.Code, § 65300.) A city may adopt specific plans for the systematic implementation of the general plan for all or part of the area covered by the general plan. (Gov.Code, §§ 65450, 65453.) The development of particular parcels of property is governed by a city's zoning laws, ordinances, rules, and regulations. (Gov. Code, §§ 65800, 65804.) Generally the uses permitted on particular properties are governed by the zoning applicable to the properties. However, where there is the possibility that a permitted use may be incompatible in some respects with applicable zoning, the city may require that a special or conditional use permit be acquired. (County of Imperial v. McDougal (1977) 19 Cal.3d 505, 510, 138 Cal.Rptr. 472, 564 P.2d 14.) Where a use is consistent with applicable zoning, and a conditional use permit is either not required or has been obtained, then the next step generally would be to obtain a building permit, the issuance of which is presumptively a ministerial rather than discretionary act. (Day v. City of Glendale (1975) 51 Cal. App.3d 817 820-821, 124 Cal.Rptr. 569; see Cal.Code Regs., tit. 14, § 15268 (Guidelines).)²

In Davis, the City imposes one additional requirement upon landowners in the form of site plan and architectural approval. (Davis City Code, art. XXVIII, commencing with § 29-231.)³ In order to better define the criteria for review and approval, the City's Design Review Commission adopted, and the City Council approved, a document entitled the ...