Citizens for S. Bay Coastal Access v. City of San Diego

45 Cal.App.5th 295

259 Cal.Rptr.3d 754

CITIZENS FOR SOUTH BAY COASTAL ACCESS, Plaintiff and Respondent,

v.CITY OF SAN DIEGO, Defendant and Appellant.

D075387

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

Filed February 18, 2020

As Modified March 16, 2020

Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Jenny K. Goodman, Deputy City Attorney, for Defendant and Appellant.

Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim, San Diego, for Plaintiff and Respondent.

IRION, J.

The City of San Diego (the City) appeals from a judgment in a lawsuit filed by Citizens for South Bay Coastal Access (Plaintiff), which challenged the City's issuance of a conditional use permit allowing it to convert a motel that it recently purchased into a transitional housing facility for homeless misdemeanor offenders. Specifically, the City contends that the trial court erred by ruling that the City was required to obtain a coastal development permit for the project because the motel is located in the Coastal Overlay Zone as defined in the City's municipal code. We conclude that the trial court erred in concluding that a coastal development permit was required under state law regulations promulgated by the California Coastal Commission (the Commission). Because the Commission has certified the City's local coastal program, which includes specific exemptions that are applicable to this case, those provisions apply here rather than the Commission's regulations. Under the City's local coastal program, the project is exempt from the requirement to obtain a coastal development permit because it involves an improvement to an existing structure, and no exceptions to the existing-structure exemption are applicable. We accordingly reverse the judgment.

I.FACTUAL AND PROCEDURAL BACKGROUND

The City participates in the San Diego Misdemeanants At-Risk Track program (SMART), which provides homeless misdemeanor offenders with housing, case management, job training, and other supportive services required to end the cycle of homelessness. To expand the transitional housing capacity of the SMART program, the City located a suitable property in the South Bay area of the City which was operated as a Super 8 motel (the Property). The City planned to rehabilitate the existing building on the Property with interior and exterior improvements including new office space, computer rooms, client community space, kitchens, storage, roofing, low water landscaping, ADA accessibility, safety and security upgrades, interior and exterior cameras, electrical vehicular and pedestrian gates, new sidewalks, and a new fire suppression system.

The City's plan also reduced the existing 53 parking spaces in the parking lot to a total of 25 parking spaces and added passive open green spaces.

The Property is located near the southern end of San Diego Bay, and is in the Coastal Overlay Zone as defined by the City. (San Diego Mun. Code, § 132.0402) The City's municipal code provides that "[a] Coastal Development Permit [CDP] issued by the City is required for all coastal development of a premises within the Coastal Overlay Zone" unless an exemption applies. (San Diego Mun. Code, § 126.0702, subd. (a), italics omitted.)

On July 24, 2017, the City Council passed a resolution approving the acquisition of the Property for the SMART program. Prior to the adoption of the resolution, the City filed a notice of exemption stating that the acquisition of the Property was exempt from the California Environmental Quality Act ( Pub. Resources Code, § 21000 et seq. ) (CEQA) under several categorical exemptions. The same notice stated that "[t]he project is located within the Coastal Overlay Zone, but does not require a [CDP]."

After acquiring the Property, the City Council passed a resolution approving a conditional use permit for the project on December 11, 2017, which permitted the City to rehabilitate the existing structure by transforming it into a transitional housing facility for the SMART program, with 42 transitional housing rooms. In connection with the approval of the conditional use permit, the City Council passed a resolution determining that the project was exempt from CEQA. A PowerPoint presentation from City staff for the hearing on the conditional use permit stated that "[t]he facility is exempt from the requirement to obtain a [CDP], pursuant to [San Diego Municipal Code] [s]ection 126.0704." On December 13, 2017, the City issued the conditional use permit approved by the City Council.

The next day, on December 14, 2017, Plaintiff filed a "Complaint for Declaratory and Injunctive Relief and Petition for Writ of Mandate" against the City (the Petition). Plaintiff alleged that it "opposes the Project based on environmental- and economic-justice grounds. The Project is located in the South Bay portion of [the City], in the coastal zone, and involves the conversion of the community's only commercial lodging facility into a transitional-housing facility. That leaves nowhere for tourists to lodge when they visit the South Bay's coastal resources. The Project thus violates [the City]'s [Local Coastal Program] and/or effectively amends it (without approval from the California Coastal Commission) by substantially curtailing public access to coastal resources in the South Bay." The Petition contained a single cause of action titled "Illegal Approval of Project," which alleged that the approval of the project violated CEQA, the California Coastal Act of 1976 ( Pub. Resources Code, § 30000, et seq. ) (the Coastal Act), and the Planning and Zoning Law ( Gov. Code, § 65000, et seq. ). As relevant here, with respect to the Coastal Act, the Petition alleged, among other things, that "[t]he Project requires the issuance of a [CDP], which [the] City has not approved for the Project."

After the City filed an answer, the parties submitted briefing on the Petition. Plaintiff presented various arguments with respect to CEQA, the Coastal Act, and conformity to the City's planning documents.

As relevant to the issue presented in this appeal, Plaintiff argued that "[t]he Project violates the Coastal Act" because "the City failed to obtain the requisite CDP before moving forward with the Project, and no exemption applies." Plaintiff did not dispute that the portion of the City's municipal code governing the requirement to obtain a CDP for development in the Coastal Overlay Zone contained an exemption for improvements to existing structures. (San Diego Mun. Code, § 126.0702, subd. (a).) Further, Plaintiff did not dispute that none of the municipal code's exceptions to the existing-structure exemption for certain types of improvements were applicable in this case. (San Diego Mun. Code, § 126.0702, subd. (a).) As relevant here, San Diego Municipal Code section 126.0704, subdivision (a)(3) sets forth an exception to the existing structure exemption for "[i]mprovements that result in an intensification of use," which it defines as "a change in the use of a lot or premises which, based upon the provisions of the applicable zone, requires more off-street parking than the most recent legal use on the property." (Italics omitted.) The City apparently identified this exception to the existing-structure exemption as the most relevant during its analysis of whether a CDP was required, but the City determined that the exception does not apply because the City's planned use of the Property will require less parking, and the City therefore plans to significantly reduce the number of parking spaces on the Property.¹

Instead of arguing that the City's municipal code provisions required the City to obtain a CDP for the project, Plaintiff argued that the Coastal Act and the regulations promulgated thereunder by the Commission had the effect of preempting the City's municipal code and required the City to obtain a CDP. Specifically, Plaintiff argued, "the [San Diego Municipal Code's] exemptions are pre-empted by state law to the extent they have any applicability at all. Every improvement to a structure other than a single-family home is presumptively exempt from the CDP requirement unless the Commission prescribes otherwise by formal regulation; the adoption of a regulation takes the improvement out of the exempt category and puts it into the non-exempt category. ... [ (]§ 30610[, subd.] (b).[) ] As it turns out, the Commission has adopted at least two regulations that separately trigger the CDP-requirement for the Project. [¶] First, there is a regulation that requires a CDP for ‘[a]ny improvement to a structure which changes the intensity of use of the structure.’ [ (Cal. Code. Regs.) ], tit. 14, § 13253 [, subd.] (b)(7)[) ].... [¶] Second, there is a regulation that requires a CDP for ‘[a]ny improvement made pursuant to a conversion of an existing structure from a ... visitor-serving commercial use to a use involving a fee ownership ....’ [Cal. Code. Regs.], tit. 14, § 13253 [,subd.] (b)(8)." As Plaintiff summarized the argument in its reply briefing to the trial court, the state-law provisions it identified "forbid (1) development involving a decrease in intensity of use and (2) development pursuant to a conversion of an existing structure from a visitor-serving commercial use to a use involving fee ownership. Yet, that is precisely the type of development [San Diego Municipal Code] [s]ection 126.0704[, subdivision] (a)(3) purports to allow. That [San Diego Municipal Code] provision is therefore invalid."

The trial court issued a tentative ruling granting in part and denying in part Plaintiff's petition for writ of mandate. The trial court found no merit to Plaintiff's argument under CEQA. It also determined that the project was consistent with the applicable community plan.

However, the trial court then determined that there was merit to Plaintiff's argument that the City improperly failed to obtain a CDP. As a preliminary matter, the trial court noted that under the...