Ocean St. Extension Neighborhood Ass'n v. City of Santa Cruz

• Decision Date: 16 December 2021
• Docket Number: D079064
• Citation: 73 Cal.App.5th 985,288 Cal.Rptr.3d 840
• Parties: OCEAN STREET EXTENSION NEIGHBORHOOD ASSOCIATION, Plaintiff and Appellant, v. CITY OF SANTA CRUZ et al., Defendants and Appellants; Richard Moe et al., Real Parties in Interest and Appellants.
• Court: California Court of Appeals Court of Appeals

73 Cal.App.5th 985

288 Cal.Rptr.3d 840

OCEAN STREET EXTENSION NEIGHBORHOOD ASSOCIATION, Plaintiff and Appellant,

v. CITY OF SANTA CRUZ et al., Defendants and Appellants;Richard Moe et al., Real Parties in Interest and Appellants.

D079064

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

Filed December 16, 2021

Law Office of Babak Naficy and Babak Naficy for Plaintiff and Appellant.

Atchison, Barisone & Condotti, Anthony P. Condotti, and Barbara H. Choi, Santa Cruz, for Defendants and Appellants.

Remy Moose Manley, Christopher L. Stiles, and Tiffany K. Wright, Sacramento, for Real Parties in Interest and Appellants.

HUFFMAN, Acting P. J.

INTRODUCTION

In 2010, real parties in interest, Richard Moe, Ruth Moe, Craig Rowell, and Corinda Ray,¹ applied to the City of Santa Cruz for design and planned development permits and a tentative map to construct a 40-unit development with 10 four-unit buildings on a parcel of land located at 1930 Ocean Street Extension. Following an initial mitigated negative declaration and years of litigation surrounding the impact of the nearby crematory at Santa Cruz Memorial Park, in 2016, the real parties in interest renewed their interest in moving forward with their project. As required by the California Environmental Quality Act (CEQA) ( Pub. Resources Code,² § 21000 et seq. ), the project applicant and the City of Santa Cruz prepared and circulated the initial study, the draft environmental impact report (EIR), the partially recirculated draft EIR, and the final EIR. Following a public hearing, the city council adopted a resolution to certify the EIR and to adopt Alternative 3, a 32-unit housing project.

The Ocean Street Extension Neighborhood Association (OSENA) filed a petition for writ of mandamus, alleging the City of Santa Cruz and its city council violated CEQA and the Santa Cruz Municipal Code in approving the project.³

The court concluded the City had complied with CEQA, but it determined the City violated the municipal code, and it issued a limited writ prohibiting the City from allowing the project to proceed unless and until it followed the municipal code and the court was satisfied with its compliance.

Following entry of judgment, OSENA appealed, arguing the court erred by concluding the City complied with CEQA's requirements. OSENA contends the City violated CEQA by (1) insufficiently addressing potentially significant biological impacts and mitigation measures in the initial study rather than in the EIR directly, (2) establishing improperly narrow and unreasonable objectives so that alternative options could not be considered meaningfully, and (3) failing to address cumulative impacts adequately. The City cross-appealed, contending the court incorrectly concluded it violated the municipal code by granting a planned development permit (PDP) (Santa Cruz Mun. Code, § 24.08.700) without also requiring the project applicant to comply with the slope modifications regulations (Id. , § 24.08.800). We agree with the City, and we will affirm the portion of the order and judgment concluding it complied with CEQA and reverse the portion of the order and judgment concluding the City violated its municipal code.

BACKGROUND AND PROCEDURAL FACTS

In 2010, the project applicant submitted a PDP to the City. The project is located on a 2.74 acre, irregularly shaped lot on the east side of Ocean Street Extension, adjacent to the northern city limits. It has a frontage on Ocean Street Extension, and the property slopes up from Ocean Street Extension to Graham Hill Road. The portion of the site adjacent to Ocean Street has slopes of less than 15 percent, and the upper portion of the site has slopes greater than 15 percent, with the steepest slopes located along the eastern edge of the property line, where they are greater than 30 percent. On the north side of the property, there is an adjacent vacant parcel. On the south side is the Santa Cruz Memorial Crematory. The surrounding area includes a mix of residential uses, including multifamily apartments and condominiums along Graham Hill Road south of Ocean Street Extension and low-density, single-family homes along Graham Hill Road to the north.

The project proposal consisted of a 40-unit residential complex, with 10 buildings, each containing four units, located at 1930 Ocean Street Extension. There is a mix of one-bedroom/one-bath units and two-bedroom/two bath units, with living areas of 940 square feet and 1,091 square feet respectively. The first-floor units of two of the buildings contain two one-bedroom/one-bath handicapped-accessible units, for a total of four accessible units on the site. The project also includes three detached carports, three refuse areas, and a 375-square foot manager's office with a terrace and garden. The applicants intend to rent the units for the foreseeable future, but they may eventually opt to sell them.

The project required approval of a design permit, a PDP, and a condominium subdivision map, as well as amendments to the General Plan designating the parcel as LM (low medium density residential) and rezoning it to multiple residence-low density. The PDP sought two variations from conventional regulations: tandem parking and development within 10 feet of a 30 percent or greater slope.

The City prepared an initial study and a mitigated negative declaration, which it circulated for public review. Comments in response raised concerns about the nearby crematory and potential health and environmental impacts resulting from its emissions. The City Planning Commission initially heard the request in October 2010 and continued the hearing to collect additional information related to concerns about the crematory. Eventually the crematory owner agreed to relocate the crematory, and the City approved that relocation in 2014. OSENA challenged the relocation of the crematory, and the Santa Cruz Memorial Park eventually agreed to remove dental amalgams from teeth of deceased individuals to resolve the concerns. Subsequent studies revealed the mercury levels on the project site were below established human health screening levels and posed no threat.

In September 2016, the project applicant decided to move forward with the project, and the City prepared an initial study. The City circulated the initial study and the notice of preparation for the EIR for a 30-day comment period. It also held a meeting to solicit comments on the scope of the EIR. The initial study identified two potentially significant biological impacts that would be reduced to less-than-significant impacts with required mitigation measures in place. Public comments included, among other things, questions about potential biological impacts, which the City subsequently addressed.

In May 2017, the City released a draft EIR (DEIR) for public comment. The DEIR included as an appendix the entirety of the initial study. It also included and discussed three project alternatives: a project with nine dwelling units; a project with 19 single family homes; and a 32-unit multi-family alternative, in addition to the "no project" alternative. At the request of commenters, the City revised and recirculated for a 45-day review period a partially recirculated DEIR that updated information about traffic and transportation.

In August 2018, the City released the final EIR (FEIR). The Planning Commission held a public hearing and recommended the city council approve the proposed 40-unit project. The City Council considered the EIR and the project proposal on September 25, 2018. The vice mayor moved to accept Alternative 3, reducing the project from 40 units to 32 units. A majority of council members voted to approve this alternative and certify the EIR. The City filed a Notice of Determination on September 26, 2018. OSENA filed a petition for writ of mandamus on October 25, 2018, alleging the City's certification of the EIR violated CEQA, and it failed to comply with the Santa Cruz Municipal Code.

On November 12, 2018, the City Council adopted Resolution No. NS-29,449, which amended the General Plan to change the land use designation of the project parcel to low medium density, rezoned the parcel to multiple residence-low density, and approved the design permit and PDP applications, as well as the tentative map.

The superior court heard arguments on November 22, 2019 and January 10, 2020. On April 22, 2020, the court entered judgment. It found the City fully complied with CEQA in preparing and certifying the EIR and denied the writ as to those claims. It granted a limited peremptory writ of mandamus remanding the proceedings to the City and directing the City to set aside the PDP granted by Resolution No. NS-29,449 and to take further action in compliance with the judgment. It granted injunctive relief prohibiting the City from proceeding with the project unless and until the City complied with the Santa Cruz Municipal Code regarding the slope regulations.

OSENA timely appealed the court's CEQA decision. The City timely appealed the court's decision regarding the municipal code.

DISCUSSION

I.ADEQUACY OF EIR

A. Additional Facts

1. Initial Study

The October 3, 2016 initial study described the project as a 40-unit apartment/condominium development consisting of 10 residential buildings and three carports. Project access would be provided via a private street, and it would create 95 parking spaces, as well as offsite road improvements.

The environmental impacts table noted potentially significant issues with two air quality factors, three geology and soil factors, one greenhouse gas emissions factor, two hydrology and water quality factors, one land use and planning factor, two transportation/traffic factors, and one utilities factor. It also noted several factors as potentially significant unless mitigation were incorporated: two biological resources impacts, one noise factor, and one cumulative impact. The initial study determined that the proposed project may have a significant impact...