Nassiri v. City of Lafayette

323 Cal.Rptr.3d 168

Nahid NASSIRI, Plaintiff and Appellant,

v.CITY OF LAFAYETTE, et al., Defendants and Respondents;

3721 Land LLC, Real Party in Interest and Respondent.

A165324

Court of Appeal, First District, Division 2.

Filed June 27, 2024

As Modified July 18, 2024

Court: Contra Costa County Superior Court, Trial Judge: Hon. Edward G. Weil (Contra Costa County Super. Ct. No. MSN201971)

Lozeau Drury, Richard Drury, Brian B. Flynn, 1939 Harrison Street, Suite 150, Oakland, CA 94612-3507, for Plaintiff and Appellant.

Best Best & Krieger, Sarah E. Owsowitz, Hannah S. Park, 1333 N. California Blvd, Ste. 220, Walnut Creek, CA 94596-7274, for Defendants and Respondents City of Lafayette, Lafayette City Council, Lafayette Planning Department.

3721 Land LLC, Pro Per.

Miller, J.

This appeal concerns a proposal by a developer to construct a 12-unit residential condominium building in downtown Lafayette, California on a parcel that is mostly occupied by a vacant convalescent hospital, now in disrepair. After a lengthy planning process, the City of Lafayette, the Lafayette City Council, and the Lafayette Planning Department (collectively City) determined that the proposed condominium project was exempt from review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq., CEQA) because it qualified as infill development under the CEQA Guidelines. (Cal. Code Regs., tit. 14, § 15332.¹)

Nahid Nassiri, who owns an office building adjacent to the project site, filed a petition for writ of mandate challenging the approval of the project, which the trial court denied. In this appeal, Nassiri argues that the project does not qualify for the infill development exemption because the project site has value as habitat for rare species and because approval of the project would result in significant effects related to air quality. (Guidelines, § 15332, subds. (c) & (d).) Nassiri also makes an argument she did not make in the trial court that the "unusual circumstances" exception applies to the project, so the project does not qualify for the infill development exemption. (Id., § 15300.2, subd. (c).) We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. CEQA Overview

"CEQA is a comprehensive scheme designed to provide long-term protection to the environment." (Mountain Lion Foundation v. Fish & Game Commission (1997) 16 Cal.4th 105, 112, 65 Cal.Rptr.2d 580, 939 P.2d 1280.) CEQA generally applies to "discretionary projects proposed to be carried out or approved by public agencies." (§ 21080, subd. (a).)

In the first step of the CEQA process, a public agency determines whether a proposed activity is a "project," defined as including any activity that may cause a physical change in the environment and that involves the agency’s issuance of a permit, license, or certificate. (§ 21065, subd. (c); Guidelines, § 15378, subd. (a)(3); see Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951, 959, 285 Cal. Rptr.3d 775 (Tustin Ranch) [outlining the multi-step CEQA process].)

But not every project is subject to CEQA review. If the agency determines that the activity is a "project," it then determines whether the project is exempt from the CEQA review process under a statutory or categorical exemption, such as the categorical exemption in Guideline section 15332 for "infill" development. (Tustin Ranch, supra, 70 Cal.App.5th at p. 959, 285 Cal.Rptr.3d 775.) A project qualifying for the infill development exemption must meet these five conditions: "(a) The project is consistent with the applicable general plan designation and … policies as well as with applicable zoning designations and regulations. [¶] (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. [¶] (c) The project site has no value as habitat for endangered, rare or threatened species. [¶] (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. [¶] (e) The site can be adequately serviced by all required utilities and public services." (Guidelines, § 15332.)

Categorical exemptions themselves are subject to exceptions, including the so-called "unusual circumstances" exception set forth in Guidelines section 15300.2, subdivision (c). A project that is categorically exempt and does not fall within an exception "is not subject to CEQA requirements and ‘may be implemented without any CEQA compliance whatsoever.’ " (Association for Protection of Environmental Values v. City of Ukiah (1991) 2 Cal. App.4th 720, 3 Cal.Rptr.2d 488.)

B. Project Application and Review

In May 2018, 3721 Land LLC (who we will refer to as the developer) applied to the City to demolish a vacant building on Mt. Diablo Boulevard, and construct a new 4-story, 13-unit condominium building (the project). The property on which the vacant building stands is about 0.3 of an acre and relatively flat, with a creek along the southern property line. The existing building takes up most of the site. There are no trees within the proposed building footprint, and the trees adjacent to the creek would remain standing. Commercial buildings flank the property on either side and across Mt. Diablo Boulevard; single-family residences lie beyond the creek to the south.

The developer’s application was subjected to an extensive public review process, including two hearings before the Planning Commission and two hearings before the Design Review Commission, at which public comment was received.

By the time of the Planning Commission’s second meeting, in April 2020, the project had been modified in several respects, including eliminating one of the fourth-floor units, which reduced the project to 12 units.² At the April 2020 meeting, the Planning Commission found that the project is exempt from CEQA review as an infill development project under Guidelines section 15332 based on the record before it, which included an August 2010 biological resources report by Mosaic Associates and a February 2020 CEQA exemption memo, both submitted by the developer. The Planning Commission forwarded the project to the City Council with a recommendation to approve the application subject to conditions.

Review of the project continued at a hearing before the City Council on May 11, at which further public comments were received. The City Council continued the matter to June 22 to allow staff to respond to the comments, including written comments submitted by Nassiri, who owns an office building adjacent to the site of the proposed project. Through her attorney, Nassiri had retained consultants to opine on the applicability of the infill development exemption, and the consultants’ comments were included in her written submission.

The City reviewed the public comments, including further submissions by Nassiri’s attorney, and also reviewed further submissions by the developer that included responses to Nassiri’s consultants. The City Attorney’s Office prepared a memorandum dated June 18, concluding that Nassiri had not provided substantial evidence to support her claim that the project was not exempt under the infill development exemption, and further concluding that substantial evidence supported the City’s application of the exemption to the project.

On June 22, Nassiri submitted additional comments, including more reports from her consultants. After a public hearing that day, the City Council adopted a resolution finding the project exempt from CEQA and approved the project, subject to conditions.

On July 2, the City filed a Notice of Exemption from CEQA review under Guidelines section 15882. The stated reasons for the exemption include that the proposal is consistent with the general plan, zoning and density bonus regulations; the site "is currently developed with structures and is not known to have any values as habitat for endangered, rare or threatened species"; and "the proposal will not significantly impact … air quality." In other words, in the City’s view, the conditions for the infill development exemption had been met.

C. Proceedings in the Superior Court

Nassiri first petitioned the Contra Costa Superior Court to stop the project in December 2020. In June 2021, Nassiri filed a First Amended Verified Petition for Writ of Mandate against the City and the developer, alleging that the City’s approval of the project violated CEQA.³

After the parties briefed the merits and the trial court held a hearing, the court granted the petition as to Nassiri’s CEQA cause of action based on its finding that substantial evidence did not support the City’s determination that "[t]he project site has no value, as habitat for endangered, rare or threatened species." The court rejected Nassiri’s other CEQA claims, specifically, that the project was inconsistent with the City’s general plan and zoning code, that the City’s finding that the project would not result in significant effects relating to air quality was not supported by substantial evidence, and that the City’s requirement for a pre-construction survey for nesting birds was a mitigation measure that prevented the City from finding the project exempt from CEQA.

The developer filed a motion for new trial, in which the City joined, arguing that in light of Tustin Ranch, supra, 70 Cal. App.5th at pp. 959-961, 285 Cal.Rptr.3d 775, which addressed the meaning of "project site" in Guidelines section 15332, subdivision (b), that same term in Guidelines section 15332, subdivision (c), should be properly understood as including only part of the 0.3 acre on which the project would be located. The developer argued that the only potential habitat for rare birds on the parcel was an area that was not part of the "project site" under Tustin Ranch, because no demolition or construction activities would occur in that area. Therefore, according to the developer, substantial evidence supported the City’s determination that "[t]...