Friends of the San Dieguito etc. v. City of San Diego CA4/1 ( 2021 )

Filed 1/29/21 Friends of the San Dieguito etc. v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FRIENDS OF THE SAN DIEGUITO D075654
RIVER VALLEY,
(San Diego County
Plaintiff and Appellant, Super. Ct. No. 37-2016-00030312-
v. CU-TT-CTL)
CITY OF SAN DIEGO,
Defendant and Respondent;
SURF CUP SPORTS, LLC,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Affirmed.
The Law Office of Julie M. Hamilton and Julie M. Hamilton, for
Plaintiff and Appellant.
Office of the City Attorney, Mara W. Elliott, City Attorney, George F.
Schaefer, Assistant City Attorney and Jenny K. Goodman, Deputy City
Attorney, for Defendant and Respondent.
Seltzer Caplan McMahon Vitek and G. Scott Williams for Real Party in
Interest and Respondent.
INTRODUCTION
Respondent City of San Diego (City) owns a 114-acre parcel of land,
about 80 acres of which have been developed into and are known as the Polo
Fields, near the corner of El Camino Real and Via de la Valle. The property
has long been used for public recreation. It includes a portion of the public
Coast to Crest Trail, an equestrian and pedestrian trail along the San
Dieguito River. In 2016, the City approved a long-term lease (“2016 Lease” or
“Lease”) for the land with real party in interest Surf Cup Sports, LLC (Surf
Cup). The City determined that approval of the Lease was a project within
the meaning of the California Environmental Quality Act (CEQA). (Pub.
Resources1 Code, § 21000 et seq.) It found the project was categorically
exempt from CEQA review, and no exceptions applied. The City recorded a
Notice of Exemption (NOE) for the Lease.
Friends of San Dieguito River Valley (Friends) filed a petition for writ
of mandate challenging that determination by the City. The trial court
rejected the Friends’ position and ruled in favor of the City and Surf Cup.
Friends appeal that decision.
1 Further statutory references are to the Public Resources Code unless
stated otherwise.
2
BACKGROUND
Watt Industries issued a grant deed to the property to the City in 1983,
to be preserved and maintained as open space.2 The deed contained a
restriction, operative until the end of 2044, that the property could be used
for passive noncommercial recreational uses, including reasonable support
facilities such as parking; and active noncommercial recreational uses “not
involving large assemblages of people or automobiles.” The deed permitted
parking lots to serve the facilities on the property, however.
The City approved a 26-year lease with the Fairbanks Polo Club (Polo
Club3) in 1986 to construct and operate polo facilities, an equestrian center,
polo games and tournaments, horse training and boarding, and affiliated
uses. The lease provided that the Polo Club would not allow “large
assemblages of people or automobiles.” The City conducted an initial study
for CEQA review. The 1986 initial study stated the purpose and main
features of the lease were to provide a private polo club, which would develop
the following facilities: “one 200 X 300 yard polo field, two portable trailers
serving as office space and housing for the caretaker, portable corrals and
pastures for 140–200 horses, a portable tack room, and two portable
restrooms.” Future plans for the site include the construction of a club
house, an additional polo field, pasture land and additional portable corrals.”
2 We start with the grant deed because, as shown post, the allowed uses
under the 2016 Lease are those uses that have been allowed by the grant
deed and its amendments. We do not opine on the legal validity of the grant
deed and its amendments, or on any possible violations of the deed and its
amendments. We refer to the deed and its amendments only to define and
describe the allowed uses of the property under the current Lease.
3 References to the Polo Club include the Rancho Santa Fe Polo Club,
successor to the Fairbanks Ranch Polo Club.
3
The uses also included an unpaved parking area for 50 cars, fencing, and
construction of an offsite pipe to provide water from the Santa Fe Irrigation
District. Grading of the site would be limited to the clearing of brush. The
Environmental Quality Division of the City determined there would be no
significant land-use impacts from the lease. Most of the site would be
preserved as “natural open space and the proposed low-intensity activity
would be in keeping with the outdoor recreational uses intended for this
area.” The City issued a Negative Declaration for the lease. The Negative
Declaration stated that, “The development of future facilities on the site
would be subject to subsequent environmental review.”
The Polo Club contracted with Surf Cup in 1992 to hold soccer games
and tournaments on the property. In 1992, Surf Cup held soccer
tournaments on two weekends per year, for three days each, with about 4,400
cars in total for each three-day event. Additional tournaments and other
events were added, for generally fewer than 25 days per year in total, with
over 25,000 cars each year and upward of 80,000 in attendance, each year,
from 1992 through 2016. The Polo Club continued to present polo matches
and other events, with estimated average attendance of about 800 people per
day. In 2015, 27 days of special events and 13 polo matches were held on the
property.
The grant deed was amended in 2002 to permit these increased uses
that had been occurring for a decade. The successor to the deed grantor
provided written consent to expand the allowed uses on the property to
include: dog shows, lacrosse tournaments, soccer tournaments, Christmas
tree sales, golf equipment testing; youth soccer practices; and up to, but not
more than, six livestock superintendents/groundskeepers living on the site.
4
The grantor specified that these events could occur on no more than 25 days,
cumulatively, per year.
The City issued a notice of violation to the Polo Club in 2005 because it
had graded a horse exercise track over the existing public Coast to Crest
Trail without authorization. The Polo Club obtained a Site Development
Permit (SDP) to repair the damage it had caused. The City issued a
Mitigated Negative Declaration (MND) in connection with the SDP. The Polo
Club moved the exercise track but did not complete the rest of the required
repairs. The 2016 Lease states that the SDP is a covenant running with the
land and remains to be completed.
The Polo Club’s lease term expired in March 2012. The Polo Club
continued to possess the land due to holdover provisions in its lease. Before
issuing a request for proposals for a long-term lease for the property, the City
asked the successor grantor of the deed, Ocean Industries (OI), to expand the
permissible use of the property.4 The City asked OI to approve practice,
play, and tournaments for soccer, polo, lacrosse, and other sports; parking;
and other ancillary facilities such as restrooms. The City also asked OI to
permit up to 25 events per year, with events being defined as consecutive-day
sporting/athletic tournaments, in lieu of the previous consent for up to 25
days of events. OI agreed to these uses on November 3, 2014, as requested.
OI later retracted its permission for 25 events per year, and returned to
the limitation of 25 days of events per year. The City agreed to “proceed with
its use of [the property] pursuant to the terms of the Grant Deed.” The 2016
Lease states that the property may be used as permitted by the grant deed
4 Fairbanks questioned OI’s ability to amend the lease, stating that it
was no longer the successor grantor. Without opining on that issue, we treat
the 2014 amendment and its later modification as defining the scope of the
allowed uses of the property.
5
and its amendments. We therefore assume the Lease permits the activities
contained in the 2002 and 2014 amendments, with the limitation of 25 days
of events per year, and not 25 multiday events.
On April 28, 2015, the City issued a Request for Proposals to lease and
operate the property after the Polo Club’s lease term expired. There were
three responses. The City reviewed the three proposals and recommended
approval of a long-term lease with Surf Cup.
The project, approval of the 2016 Lease with Surf Cup, was described
as follows in an environmental review memorandum prepared by Myra
Herrmann, a senior planner with the City Planning Department. (Herrmann
memo). Herrmann described the existing condition of the property as: “open
grassy fields used for recreational activities, existing dirt trails, roads, and
parking areas, and dilapidated or aged accessory or appurtenant facilities.”
She said that the property “has been used for polo, soccer, lacrosse, rugby,
and other recreational and special uses since 1986 by [the Polo Club]. . . .
[S]ince 1992, the Surf Cup Sports has contracted with [the Polo Club] for
ongoing use of the property. [¶] . . . In addition to the continued use for daily
youth sports, youth polo instruction and occasional polo matches, the horse
drop-off facilities for equestrian users of the Coast to Crest Trail will also be
maintained. The Surf Cup proposal also includes partnering with other
sports organizations for sports-related special events and other ancillary uses
including corporate events and other uses allowable under the deed . . ..” The
lease proposal contained several actions to be performed by Surf Cup,
including: improvement of existing irrigation system and equipment;
installation of fencing, gates and signage; replace the turf with new turfgrass
and “make improvements to landscaping throughout the property;” improve
all existing roads and parking areas; take down barns, stables, temporary
6
storage areas, other structures; replace trailers; remove and replace
clubhouse and offices; remove and relocate the maintenance yard and
associated structures; remove the equestrian arena; install temporary
housing for caretakers; and remove an existing polo scoreboard and
billboards. Existing roads and parking areas would be improved with
decomposed granite to reduce dust and improve safety, and “[p]arking
associated with ongoing and/or continued use of the site would be provided
on-site and maintained within existing improved parking areas.” Existing or
temporary sports storage facilities would be removed and/or replaced with
structures that complied with the current municipal code.
Herrmann found that “[a]lthough the property is within the San
Dieguito River Valley and in close proximity to adjacent open space, none of
the areas where renovations and improvements are proposed support
sensitive biological resources that could be affected by the proposal.”
Herrmann concluded that multiple categorical exemptions applied to the
Lease, and the exceptions to the exemptions did not apply. She concluded
that neither a Negative Declaration nor an Environmental Impact Report
were required by the CEQA Guidelines. (Cal. Code Regs., tit. 14,5
§§ 15060–15065).
The Smart Growth and Land Use Subcommittee of the City Council
reviewed the Surf Cup proposal on June 29, 2016, with a lengthy public
discussion of the issue. The committee members forwarded to City Council a
recommendation to approve the Surf Cup Lease. City Council members
considered the Lease in an open, public meeting on July 25, 2016. The City
Council voted eight to one to adopt a resolution authorizing the mayor to
5 Further references to the Guidelines are from Title 14 of the California
Code of Regulations.
7
execute the Lease between the City and Surf Cup. The mayor approved the
resolution, and approved an amended resolution on August 3, 2016, after the
required statement of market value was added. Also, on July 25, 2016, the
City Council adopted a resolution determining that the approval of the Lease
was categorically exempt from CEQA and that no exceptions to the
exemptions applied. An amended resolution was approved by the Council
and the mayor on August 3, 2016.
The City prepared and recorded a Notice of Exemption (NOE). The
City signed the Lease on July 25, 2016.
PROCEDURAL BACKGROUND
Friends filed a petition for writ of mandate on August 29, 2016,
naming the City as respondent and Surf Cup as a real party in interest.
After further proceedings, Friends filed a Second Amended Petition for Writ
of Mandate (SAP). The SAP stated four causes of action alleging violations of
CEQA, and a fifth cause of action for the City’s failure to enforce municipal
code requirements. The court sustained a demurrer by City and Surf Cup to
the fifth cause of action on August 10, 2018, without leave to amend. That
ruling is not being challenged in this appeal.
The court issued a final ruling on the remaining CEQA causes of action
on January 30, 2019, denying the SAP in its entirety. Judgment in favor of
City and Surf Cup was entered on February 20, 2019.
Friends have timely appealed.
DISCUSSION
A. CEQA and Standard of Review
“The foremost principle under CEQA is that the Legislature intended
the act ‘to be interpreted in such manner as to afford the fullest possible
protection to the environment within the reasonable scope of the statutory
8
language.’ . . . . The Legislature has emphasized that ‘It is the intent of the
Legislature that all agencies of the state government which regulate
activities . . . which are found to affect the quality of the environment, shall
regulate such activities so that major consideration is given to preventing
environmental damage. . . .’ (§ 21000, subd. (g).)” (Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d
376, 390 (Laurel Heights).)
“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.’ . . . If a proposed activity is a project, the
agency proceeds to the second step of the CEQA 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 . . . Guidelines [citations].’ . . . [¶] Unlike
statutory exceptions, categorical exemptions are subject to exceptions. . . . [¶]
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.’ ” ’ ” (Bottini v. City of San Diego (2018) 27
Cal.App.5th 281, 291–292.) “[I]f a project is not exempt, the agency must
then ‘decide whether the project may have a significant environmental
effect.’ ” (Id. at p. 292.) “[I]f 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).” (Ibid.)
On an appeal challenging a trial court’s denial of a petition for a writ of
mandate in a CEQA case, we independently review the agency’s action.
(Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of
San Diego (2006) 139 Cal.App.4th 249, 257.) We review an agency’s CEQA
9
determination for abuse of discretion, as provided in section 21168.5.
(Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086,
1110–1111 (Berkeley Hillside).) Under that provision, a court’s inquiry is
“whether there was a prejudicial abuse of discretion. Abuse of discretion is
established if the agency has not proceeded in a manner required by law or if
the determination or decision is not supported by substantial evidence.”
(§ 21168.5.) We review the administrative record for substantial evidence
supporting an agency’s factual determination that a project falls within a
categorical exemption or an exception. (Banker’s Hill, at p. 267.) “In
applying the substantial evidence standard of review, all conflicts in the
evidence are resolved in favor of the prevailing party and all legitimate and
reasonable inferences are made to support the agency’s decision. [Citations.]
When two or more inferences reasonably can be deduced from the evidence,
we cannot substitute our deductions for those of the agency. [Citations.]”
(Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 410 (Holden).)
B. Environmental Review of Project
Approval of the Lease was a project, in accordance with section 21065.6
(See also Guidelines § 15378, subd. (a)(3); see San Diegans for an Open
Government v. The City of San Diego (2018) 31 Cal.App.5th 349, 369–371
(SDOG) [restated lease was a project that was exempt from CEQA]). The
impacts of the project were compared to the existing environmental
conditions at the time of the CEQA analysis, including the existing level and
intensity of ongoing operations and uses of the property. (Communities for a
6 A project is “an activity which may cause either a direct physical
change in the environment, or a reasonably foreseeable indirect physical
change in the environment, and which is any of the following: [¶] . . . [¶] (c)
An activity that involves the issuance . . . of a lease . . . by one or more public
agencies.” (§ 21065.)
10
Better Environment v. South Coast Air Quality Management Dist. (2010) 48
Cal.4th 310, 321 (Communities for a Better Environment); North Coast Rivers
Alliance v. Westlands Water District (2014) 227 Cal.App.4th 832, 872 (North
Coast Rivers).) We compare the project with its existing conditions even if
the existing conditions do not conform with codes, regulations or law.
(Communities for a Better Environment, at pp. 321–323, 326–328 [impacts of
project to be compared to actual existing environmental conditions, rather
than to conditions allowed by a plan or regulatory framework]; Citizens for
East Shore Parks v. State Lands Comm. (2011) 202 Cal.App.4th 549, 559–560
(East Shore Parks); Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270,
1277 (Fat); Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428,
1433-1434 (Riverwatch).)
In Fat, for example, the appellate court upheld the agency’s evaluation
using the current conditions of an airport, even though “the Airport
developed over a period of nearly 30 years without County authorization,
there was evidence of environmental damage during that period, and the
Airport had been the subject of at least two zoning enforcement actions.”
(Fat, supra, 97 Cal.App.4th at pp. 1280–1281.) “How present conditions come
to exist may interest enforcement agencies, but that is irrelevant to CEQA
baseline determinations—even if it means preexisting development will
escape environmental review under CEQA.” (East Shore Park, supra, 202
Cal.App.4th at p. 559.)
Thus, we do not compare the impacts of the project to those conditions
that existed in 1986 when the City issued a Negative Declaration for the
lease to the Polo Club. There was a significant increase in the intensity of
uses from 1986 to 2016 without environmental review. Nonetheless, we
compare approval of the 2016 Lease to the uses that existed in 2016, even if
11
that significant increase of use was never reviewed for its environmental
impact. (East Shore Park, supra, 202 Cal.App.4th at p. 559.)
A project includes “the whole of an action.” (Guidelines, § 15378.) We
review the agency’s reasonable expectations of the use of the property
through the entirety of the 28-year Lease to the extent possible. We are not
required to review all actions that may occur over that length of time. Only
those actions that are reasonably anticipated or a reasonably foreseeable
consequence of the project must be considered when defining the project.
(Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th
372, 383 (Muzzy Ranch); Laurel Heights, supra, 47 Cal.3d at p. 396.) The
City’s preliminary review of the project appropriately included actions that
Surf Cup intended to undertake to improve the property.
Friends contend that the City should have considered all changes and
improvements that were included in Surf Cup’s October 2015 response to the
request for proposals and its February 2016 letter of intent. Future actions
that are only contemplated need not be considered. (Laurel Heights, supra,
47 Cal.3d at p. 396.) Friends argue that the City is “piecemealing” the
environmental review by failing to consider all the improvements proposed by
Surf Cup. Additional improvements beyond those identified in the NOE,
however, have not been sufficiently developed to be included in the review.
(Ibid.)
Further, the letter of intent and response to request for proposals
predated a significant change in the uses allowed under the Lease. At the
center of this appeal is the claim of Friends that Surf Cup will significantly
expand its use of property, specifically by expanding 25 days of events to 25
events per year, of five days each, for up to 125 days of events. Surf Cup sent
to the City a letter of intent on February 4, 2016, that anticipated up to 25
12
events of five days each, which would certainly be a significant expansion of
use. Twenty-five events in total would have been allowed under the
amendment to the grant deed that was in effect at the time of the letter of
intent, but permission for that greater use was rescinded by the grantor and
the City agreed to this limitation. The intensity of use will not increase
under the Lease. Additional projects are also included within the Surf Cup’s
Capital Improvements included in its response to the request for proposals.
Plans for these additional actions are insufficiently developed to be
reasonably foreseeable as part of the Lease. Only those acts that were
included in the NOE are sufficiently definite to be included as part of the
project as described in the NOE. Future actions that are merely
contemplated as a possibility need not be included within the project. (Laurel
Heights, supra, 47 Cal.3d at p. 396.) Additional changes to the property and
its uses would be subject to future environmental review.
The Lease, therefore, did not significantly expand the intensity of use of
the property. It allowed the uses that had been ongoing, including up to 25
days of events throughout the year. The Herrmann memo accurately
included those actions that were reasonably anticipated under the Lease, and
concluded that the Lease would continue activities at the same level of
intensity as in prior years. (See North Coast Rivers, supra, 227 Cal.App.4th
at p. 872 [“Where a project involves ongoing operations or a continuation of
past activity, the established levels of a particular use and the physical
impacts thereof are considered to be part of the existing environmental
baseline”].)
Friends criticize the Herrmann memo as having insufficient detail of
the conditions existing at the time of the review. This review, however, was
the preliminary review for exemptions. An NOE requires only a brief
13
description of a project, its location, the finding and identification of
applicable exemptions, and a brief statement of reasons in support.
(Guidelines, § 15062, subd. (a).) Detailed factfinding and explanations are
not required. (Muzzy Ranch, supra, 41 Cal.4th at p. 387.) The more
extensive description of the environmental setting that is required for an EIR
baseline (Guidelines, § 15125) is not required for the preliminary review for
exemptions. (See Lighthouse Field Beach Rescue v. City of Santa Cruz (2005)
131 Cal.App.4th 1170, 1192 [much less detail in description of environmental
setting for initial study of environmental impact (Guidelines, § 15063) than
in determination of the baseline environmental setting for an EIR
(Guidelines, § 15125)].) Friends acknowledge that the record contains ample
evidence of the existing conditions and level of use for the property.
C. Categorical Exemptions
The City identified four categorical exemptions in the Guidelines that
are applicable to the project: (1) section 15323, for normal operations of
facilities for public gatherings; (2) section 15301, for existing facilities; (3)
section 15304, for minor alterations to land; and (4) section 15311, for
accessory structures. It also determined that the exception for unusual
circumstances did not apply. The City further concluded that the exceptions
to the categorical exemptions (Guidelines, § 15300.2) did not apply.
Substantial evidence supports the City’s factual findings that approval of the
Lease, with its current and historical uses of the property, are categorically
exempt under CEQA, in accordance with the Guidelines.
Categorical exemptions are applied to classes of projects that typically
do not have significant effects on the environment because they do not
involve adverse changes in the existing environmental conditions. (North
Coast Rivers, supra, 227 Cal.App.4th at p. 851; Fat, supra, 97 Cal.App.4th at
14
p. 1279.) The categories applicable here reflect the exemption for projects
that continue historic uses: normal operations of facilities for public
gatherings, existing facilities, minor alterations to land, and accessory
structures. Because a project is compared to the existing conditions, a project
that continues those existing conditions reflects no adverse changes to the
environment. (See North Coast Rivers, at p. 851.) Substantial evidence
supports the City’s determination of categorical exemptions because the
sports activities and improvements anticipated under the Lease were
consistent with the historic uses of the property and thus created no
significant change.
Categorical exemptions are subject to exceptions, identified in the
Guidelines. Friends contend that an exception for unusual circumstances
applies here. (Guidelines, § 15300.2, subd. (c).) “The lead agency has the
burden to demonstrate that a project falls within a categorical exemption and
the agency’s determination must be supported by substantial evidence.”
(Citizens for Environmental Responsibility v. State ex. rel. 14th District
Agricultural Assn. (2015) 242 Cal.App.4th 555, 568 [Citizens for
Environmental Responsibility].) A determination that a categorical
exemption applies must include a finding that none of the exceptions
identified in the Guidelines are applicable. After an agency finds a
categorical exemption, the burden then shifts to the challenging party to
produce evidence showing that one of the exceptions applies to take the
project out of the exempt category. (Ibid.) We review the City’s finding of
categorical exemptions before determining whether any of the exceptions
apply. (Id. at pp. 572–573.)
We apply the substantial evidence standard in reviewing an agency’s
factual determination that a project falls within a categorical exemption,
15
resolving all conflicts in favor of the agency and drawing all reasonable
inferences that support the agency’s decision. (Holden, supra, 43 Cal.App.5th
at p. 410.)
1. Normal Operations of Facilities for Public Gatherings—
Guideline Section 15323
Guideline section 15323 provides an exemption that extends to normal
operations of facilities designed for public gatherings, for which the facility
was designed, where there is a history of the facility having been used for the
same or similar kind of purpose for at least three years, with a reasonable
expectation that the future occurrences at the facility would not represent a
change in the operation of the facility.
The categorical exemption for “normal operations” of public gathering
facilities thus has several elements: (1) normal operations of existing
facilities for public gatherings for which the facilities were designed, (2) with
a past history of being used for the same or similar purpose for at least three
years, and (3) where there is a reasonable expectation of no change in the
future. (Guidelines, § 15323; see Citizens for Environmental Responsibility,
supra, 242 Cal.App.4th at p. 573.) “Normal operations” are the events and
activities that were put on and the internal operations used to facilitate those
events. (Citizens for Environmental Responsibility, at p. 573.) In Citizens for
Environmental Responsibility, the agency found a rodeo was exempt under
this category and issued an NOE because the rodeo was “indistinguishable
from other livestock and equestrian events held at the Fairground for many,
many years.” (Id. at p. 573.) There were no more horses and cattle than had
been present at prior events. (Id. at pp. 561, 564–565.) The operations were
similar in type and scope to other events at the fairgrounds over the years.
(Ibid.)
16
Substantial evidence shows that the existing facilities here have been
used for soccer and lacrosse tournaments, polo matches, and assorted other
events, primarily sports events, for much longer than three years. A chart
summarizing the events other than polo that have occurred on the property
from 1992 through 2016 showed consistent historic usage of the property.
City staff presented a graph to City Council showing consistent levels of
people and cars on the property for that time period. The allowable uses
under the Lease were indistinguishable from the past uses. The grant deed
and its amendments, incorporated into the Lease, permit the same uses on
the property and do not permit the multi-day events to increase beyond 25
days per year. Future operations would not represent a change in the
operation of the facility.
Friends argue that this exemption does not apply because the property
was not originally designed for the amount of use that existed in 2016.
Friends compare the uses allowed under the Lease to the uses originally
allowed in the grant deed and the conditions existing at the time of the Polo
Club lease in 1986. Friends rely on a concurring opinion in Lewis v. 17th
District Agricultural Association (1985) 165 Cal.App.3d 823, 829 (Lewis) to
contend that this normal-operations category “exempts [only] uses which
have already been evaluated in the review of the permit for the facility.”
(Lewis, at p. 836 [Blease, J., concurring] [use of “for which the facilities were
designed” in normal-operations exemption implies purpose of preventing
duplication of evaluation when facility was first designed].) Subsequent
cases, however, have made clear that a project must be compared to the
conditions existing at the time of the environmental review, even if those
conditions were never reviewed under CEQA and even if the current
conditions were never permitted. (East Shore Parks, supra, 202 Cal.App.4th
17at pp. 559–560; Fat, supra, 97 Cal.App.4th at p. 1277; Riverwatch, supra, 76
Cal.App.4th at pp. 1433–1434; see also Bloom v. McGurk (1994) 26
Cal.App.4th 1307, 1315 [disagreeing with Lewis and calling its ruling into
question].) In any event, the Lewis case did not conscribe the normal-
operations exemption, because its finding of administrative discretionary
error was based on the “unusual circumstances” exception to categorical
exemptions. (See Lewis, at p. 829; see also Citizens for Environmental
Responsibility, supra, 242 Cal.App.4th at p. 585 [explaining and
distinguishing Lewis].)
In light of the requirement to compare the project with the existing
conditions, we consider the design of the facilities at the time the City made
its environmental determination in 2016. (Communities for a Better
Environment, supra, 48 Cal.4th at pp. 320–323, 326–328; Fat, supra, 97
Cal.App.4th at p. 1277.) The property was designed and used for multiple
sports games and tournaments at the time that the City found the normal-
operations categorical exemption to be applicable.
Friends assert there is not a history of the property being used in the
same or similar way, based on its faulty premise that 25 multiday events, or
up to 125 days of events, are permitted under the 2016 Lease. As explained
above, that expanded use of the property was retracted and the City agreed
to limit use of the property under the Lease to its historical uses. The staff
report for the project, and the staff description of the Lease to the City
Council stated that the Lease was limited to historical purposes. Substantial
evidence supports the City’s finding that the Lease was categorically exempt
because it permitted the continued normal operations of the property, which
was designed for sports play, practice and competitions, with a history of
having been used for the same or similar activities and a reasonable
18
expectation that increase in intensity of use was not permitted under the
Lease.
2. Existing Facilities—Guidelines § 15301
Guidelines section 15301 provides an exemption from environmental
review for the “operation, repair, maintenance, permitting, leasing, licensing,
or minor alteration of existing public or private structures, facilities,
mechanical equipment, or topographical features, involving negligible or no
expansion of existing or former use. . . . The key consideration is whether the
project involves negligible or no expansion of use.” (Guidelines, § 15301.)
The “existing facilities” are those that exist at the time the agency makes its
CEQA determination. (SDOG, supra, 31 Cal.App.5th at p. 371.) Some
examples of the operations, repairs and maintenance that are permitted by
this guideline include: “(c) Existing highways or streets [and] trails and
similar facilities (this includes road grading for the purpose of public safety,
and . . . other similar alterations that do not create additional automobile
lanes. [¶] (d) Restoration or rehabilitation of deteriorated or damaged
structures, facilities, or mechanical equipment to meet current standards of
public health and safety . . . . [¶] . . . [¶] (h) Maintenance of existing
landscaping [and] native growth. . . . [¶] . . . [¶] (l) Demolition and removal
of individual small structures listed in this subdivision: [¶] . . . [¶] (3) . . .
small commercial structure if designed for an occupant load of 30 persons or
less; (4) Accessory (appurtenant) structures. . . .” (Guidelines, § 15301.)
Many of the actions listed in the NOE fall into this category:
demolition and removal of accessory structures and small commercial
structures, i.e. the barns, stables, temporary storage areas, trailers,
clubhouse, offices and other structures; removal of the equestrian arena, polo
scoreboard and billboards; replace turf with turfgrass and improvements to
19
landscaping; and maintenance of the existing roads and parking areas.
Continuing refurbishment, renovation and repair to existing roads, buildings
and landscape are included within this guideline. (SDOG, supra, 31
Cal.App.5th at p. 371.) The small structures that were being replaced—
trailers, clubhouse, offices, and installation of temporary housing—were
exempt under Guidelines section 15303, new construction or conversion of
small structures, although neither the environmental review nor the NOE
specifically identify that exemption.7
3. Minor Alterations to Land—Guidelines § 15304:
This category exempts “minor public or private alterations in the
condition of land, water, and/or vegetation which do not involve the removal
of healthy, mature, scenic trees.”8 (Guidelines, § 15304.) Examples of the
sorts of activities covered by this exemption include but are not limited to:
“(a) Grading on land with a slope of less than 10 percent, except that grading
shall not be exempt in a waterway, [or] in any wetland . . . . [¶] (b) New
gardening or landscaping . . . [¶] . . . [¶] (e) Minor temporary use of land
having negligible or no permanent effects on the environment, including
carnivals, sales of Christmas trees, etc.” (Ibid.)
7 Failure to include a specific exemption in the NOE does not preclude
later reliance on that exemption, as the only purpose of the NOE is to start
the running of the statute of limitations. (California Farm Bureau
Federation v. California Wildlife Conservation Board (2006) 143 Cal.App.4th
173, 190–191 (Farm Bureau Federation).)
8 We exclude from this discussion the improvement work on the Coast to
Crest Trail, because the City has already issued an MND and an SDP to
repair the trail and restore wetland habitat. The City determined that the
MND adequately covered the portion of the Trail that was included in the
2016 Lease property, and no additional environmental review was necessary.
20
Surf Cup proposes to replace existing turf with new turfgrass and make
“improvements to existing landscaping throughout the property,” to “remove
any unsafe non-native trees and foliage.” Parking will be “maintained within
existing improved parking areas.” These acts are all confined to the area
already developed and existing, which does not include any of the sensitive
habitat that exists on the undeveloped portions of the property. The
Herrmann memo states that “none of the areas where renovations or
improvements are proposed support sensitive biological resources that could
be affected by the proposal.”
Friends claim that sports tournaments are not comparable to the
carnivals and Christmas tree lots that are included in this exemption.
(Guidelines, § 15304, subd. (e).) The existing sports tournaments are part of
the existing environment and uses at the time of the CEQA review.
(Communities for a Better Environment, supra, 48 Cal.4th at pp. 321–322;
North Coast Rivers, supra, 227 Cal.App.4th at p. 872.) The history shows
that thousands of cars have traveled to the site each year and parked, and
the Lease allows only the same intensity of usage as has historically
occurred. Expanded tournaments are not permitted under the Lease, which
continues the existing use of 25 days of events only.
Any grading that occurs with the improvement of existing roads and
parking areas is exempt under this category. The minor-alterations-to-land
category includes grading, even when fill is imported, unless the challenger
can show that the environmental impact of the grading and fill “is so
significant that it is not a minor alteration.” (Madrigal v. City of Huntington
Beach (2007) 147 Cal.App.4th 1375, 1386.) In Madrigal, the agency found
that a grading permit for an entire parcel, including elimination of areas of
21
flooding by scraping and filling, was exempt from CEQA review under this
exemption. (Id. at pp. 1379, 1385–1386.)
Grading the roads and parking lots will occur within the parts of the
property that have already been developed, and is exempt under this
category. The City stated that parking would be “maintained within existing
improved parking areicas.” The record shows that thousands of cars have
traveled to the property on a fairly consistent basis from 1992 through 2016.
The record is not clear where all those cars parked or about the amount of
parking on the property that existed in 2016. Friends have not identified
evidence in the record that contravenes the City’s factual finding about
parking on the property. The intensity of use will not be increased under the
Lease. We accept the agency’s
decision when the evidence conflicts and draw all reasonable inferences in
support of the agency’s decision. (Holden, supra, 43 Cal.App.5th at p. 410.)
Friends contend that because the property is in a floodplain it is
“wetlands or a waterway” as used in Guidelines, section 15304, subdivision
(a) [“grading shall not be exempt in a waterway, [or] in any wetland”].) A
waterway is a course of flowing water. The area used for playing fields is not
in the wetlands of the San Dieguito River. There is a 100-foot buffer that
starts at the edge of the wetlands. Parts of that buffer have been developed
and used in the past, and that historic use will continue. Some grading will
occur within the 100-foot buffer for the wetlands, but the City determined
that these historic uses did not create any adverse environmental impacts on
the biological resources in the adjacent wetland habitat. Friends also argue
that replacement of all the turf on the property “will be a major alteration to
the land,” but do not show how that would have a significant adverse effect
on the property.
22
Activities that have been found not exempt under this minor-land-
alterations category involved dramatic changes to the topography of the land.
The exemption was not applicable to a project improving wetlands that
involved landscape changes over multiple acres, including changing the
height and slope of existing levees, construction of new levees, swales,
channels, the creation of semi-permanent ponds on 15 acres of land, and
other changes to the land, in Farm Bureau Federation, supra, 143
Cal.App.4th at page 192. Improvements to existing, developed landscape are
not comparable to the changes in topography at issue in Farm Bureau
Federation. Substantial evidence supports the finding that the foreseeable
activities under the lease are exempt under the minor-alteration-of-land
exemption, and Friends have not rebutted that factual finding.
4. Accessory Structures—Guidelines, Section 15311
The accessory-structures exemption applies to “construction, or
placement of minor structures accessory to (appurtenant to) existing
commercial, industrial, or institutional facilities, including but not limited to”
signs, small parking lots, and temporary-use items such as mobile food units,
portable restrooms “or similar items in generally the same locations from
time to time in publicly owned parks, stadiums, or other facilities designed
for public use.” (Guidelines, § 15311.) This guideline does not cover all the
foreseeable actions under the Lease, but does create an exemption for the
placement of office trailers, mobile food units, restrooms for the public, and
other accessory structures, as for storage of equipment for landscape
maintenance, sports and events. Maintenance and improvement of the roads
and parking lots are covered under the other exemptions.
The 2016 Lease permits incidental support facilities for the soccer, polo,
lacrosse, and other sports practice, play, competition and tournaments that
23
were historically permitted for the property. Substantial evidence supports
the City’s finding that construction, improvement and placement of these
structures accessory to the existing facilities are minor, and exempt under
this category.
Combined with the other exemptions, substantial evidence supports the
City’s factual determination that the reasonably foreseeable activities
permitted on the property under the 2016 Lease did not involve a significant
change in the existing environmental conditions or uses of the property.
D. Exception for Unusual Circumstances
Friends contend that the “unusual circumstances” exception to the
categorical exemptions applies here. Guidelines section 15300.2, subdivision
(c), provides: “A categorical exemption shall not be used for an activity where
there is a reasonable possibility that the activity will have a significant effect
on the environment due to unusual circumstances.” (Italics added.) The City
determined that this exception did not apply.
“In assessing whether the unusual circumstances exception applies, we
engage in two alternative analyses, as delineated by our Supreme Court in
[Berkeley Hillside, supra, 60 Cal.4th at page 1105]. ‘In the first
alternative, . . . a challenger must prove both unusual circumstances and a
significant environmental effect that is due to those circumstances. In this
method of proof, the unusual circumstances relate to some feature of the
project that distinguishes the project from other features in the exempt class.’
[Citation.]” (Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 819.)
“Whether the project presents unusual circumstances under this alternative
is a factual inquiry subject to the traditional substantial evidence standard of
review,” accepting all inferences that support the agency’s determination.
(Id. at p. 820.) If the agency finds an unusual circumstance exists, then it
24
determines if there is a reasonable possibility of a significant effect, due to
that circumstance. (Berkeley Hillside, at p. 1105.)
“In the second alternative under Berkeley Hillside, a challenger ‘may
establish an unusual circumstance with evidence that the project will have a
significant environmental effect.’ ” (Walters, supra, 1 Cal.App.5th at p. 820,
quoting Berkeley Hillside, supra, 60 Cal.4th at p. 1105.) To meet this
standard, the challenger must establish a significant environmental effect to
a certainty. A possibility or fair argument that the project would have a
significant environmental effect is not sufficient. (Walters, at p. 820; Citizens
for Environmental Responsibility, supra, 242 Cal.App.4th at p. 576.)
The Guidelines do not define what constitutes an unusual
circumstance. The Supreme Court in Berkeley Hillside said that a party can
show an unusual circumstance by demonstrating that the project has some
characteristic or feature that distinguishes it from others in the exempt class,
such as its size or location. (Berkeley Hillside, supra, 60 Cal.4th at p. 1105;
accord, Voices for Rural Living v. El Dorado Irrigation Dist. (2012) 209
Cal.App.4th 1096, 1109 [“ ‘whether a circumstance is “unusual” is judged
relative to the typical circumstances related to an otherwise typically exempt
project’ ”].) Friends have not compared approval of the Lease to other
projects in the four exempt categories relied on by the City. Failure to
compare the project to others in the exempt classes was one of the reasons for
finding no unusual circumstances in Citizens for Environmental
Responsibility, supra, 242 Cal.App.4th at pages 577–578 [no comparison to
other projects in class of normal operations of public gatherings, Guidelines,
§ 15323].)
The agency’s finding whether an unusual circumstance exists or not is
a factual determination subject to the substantial evidence rule. (Walters,
25
supra, 1 Cal.App.5th at p. 820.) The challenger bears the burden of
demonstrating that the agency’s determination was not supported by
substantial evidence in the record. (North Coast Rivers, supra, 227
Cal.App.4th at p. 851.)
1. Zoning and Planning
Friends contend that the zoning and surrounding land uses are an
unusual circumstance that creates an exception to the categorical
exemptions. Consistency with surrounding zoning and land use tends to
show that unusual circumstances do not exist. (Citizens for Environmental
Responsibility, supra, 242 Cal.App.4th at p. 586.) Friends claim that the
allowed uses under the Lease do not comply with the Agricultural and Open
Space zoning for the property, creating an unusual circumstance for this
Lease. At the City Council hearing, however, a supervisor from the City’s
Real Estate Asset Department said that the site’s Agricultural and Open
Space zoning permitted the recreational uses of the property that had been
ongoing to date. Further, the request for proposals called for activities,
programs and operations consistent with the property’s historical uses, grant
deed, and zoning.
Friends do not dispute that the uses are permitted under the zoning
regulations, but contend that Surf Cup had to obtain conditional use permits
for its activities within those zones. The trial court earlier ruled that Friends
could not compel the City to require conditional use permits for Surf Cup’s
actions in this proceeding. Friends did not appeal that decision. (See also
East Shore, supra, 202 Cal.App.4th at p. 559 [land use regulation violations
are not relevant to CEQA review].) We do not consider the necessity of
conditional use permits but accept the representation of the City supervisor
that the property’s zoning permitted the activities allowed under the Lease.
26
Friends have not established that the property’s zoning was an unusual
circumstance.
2. Surrounding Land Uses
Relying exclusively on Lewis, supra, 165 Cal.App.3d 823, Friends
contend that “the proximity of the residences to a major sporting facility is an
unusual circumstance.”9 Friends provide no support for this claim other
than its reference to Lewis. Friends have provided no comparison of this
characteristic—proximity of residences to a major sporting facility—to other
projects in the same exempt classes. (Berkeley Hillside, supra, 60 Cal.4th at
p. 1105.) Reference to that single case is not sufficient to rebut the factual
finding of the City that the proximity of residences to the project was not an
unusual circumstance here.
3. Proximity to Environmentally Sensitive Habitat
Friends also contend that an unusual circumstance exists because the
property contains sensitive habitat. Proximity to environmentally sensitive
habitat, alone, does not constitute an unusual circumstance. (See Citizens for
Environmental Responsibility, supra, 242 Cal.App.4th at pp. 581–584
[examples].) The agency must determine if the proximity is likely to cause a
significant environmental effect. Friends have shown that environmentally
sensitive habitat exists on the property, outside the developed and used
9 Friends provided no citation to the record that shows the proximity of
residences to the property. We could deem this argument waived and strike
this portion of the brief because Friends failed to provide citations to the
record supporting the assertion of proximity of residences to the property.
(Sky River LLC v. County of Kern (2013) 214 Cal.App.4th 720, 740–741.)
Assertions of fact set forth in an appellate brief must be supported by a
citation to the part of the record where that fact appears. (Cal. Rules of
Court, rule 8.204(a)(1)(C); Sky River, at pp. 740–741.)
We address the argument, however, for completeness. Photographs in
the record show residences near the property.
27
areas, but they have not shown that this proximity is likely to cause a
significant negative effect on the project. (Berkeley Hillside, supra, 60
Cal.4th at p. 1105.) The Berkeley court held that a potentially significant
adverse effect is not alone sufficient to trigger the unusual circumstance
exception, as that would “give no meaning to the phrase, ‘due to unusual
circumstances.’ ” (Id. at pp. 1097–1098, italics added, quoting Guidelines, §
15300.2, subd. (c).) “Due to” requires a causal effect between the unusual
circumstance and the significant environmental effect. Friends must show
the proximity to sensitive habitat by itself somehow causes an adverse
environmental effect. The possibility of future land use violations, such as
those caused by careless grading, are not sufficient to trigger environmental
review. (See Friends of Riverside’s Hills v. City of Riverside (2018) 26
Cal.App.5th 1137, 1153 (Friends of Riverside’s Hills) [possible future
violations are not a basis for environmental review].)
The City’s environmental review acknowledged that the property is
close to open space and within the San Dieguito River Valley, but found that
the areas where renovations or improvements were proposed did not support
sensitive biological resources that could be affected by the proposal.
Substantial evidence supports this finding. In 1986, the City declared that
the lease to the Polo Club would “not have a significant environmental
effect.” The initial study for the negative declaration in 1986 said that the
site was “covered with low-growing non-native and naturalized vegetation
characteristic of disturbed agricultural land,” and that “no sensitive habitats
would be affected” by the 1986 lease. The property has been used in the same
or similar way, with increased intensity, since the initial development of the
grass fields and polo facilities. The alterations and improvements anticipated
as part of the Lease are in the areas that have already been developed.
28
Despite the increased intensity of usage from 1986 through 2016, the
normal operations of the property did not disrupt sensitive biological
resources. Endangered species, the least Bell’s vireo and the light-footed
clapper rail, nested in the wetlands at the time of the 2011 MND and SDP to
repair the Coast to Crest Trail.
The City agreed to implement a buffer of 100 feet from the edge of the
wetlands as mitigation. The buffer included the public trail, some parts of
the grass fields and parking. The U.S. Fish and Wildlife Service expressed
concern about the effect of noise from the tournaments on endangered
species, but the City noted that although the existing sports uses within the
buffer and the property as a whole had increased since 1986, the increased
use in 2011 had “not had detrimental effects on the nesting or foraging
quality habitat in the [San Dieguito] river system to the south” for the least
Bell’s vireo and light-footed clapper rail. Thus, the continuation of historic
uses within the buffer would not create any new edge effects to the species of
the adjacent wetland habitat. Restoration of the trail pursuant to the SDP
would have beneficial effects for these species.
A City biologist issued a memorandum on July 19, 2016, just days
before the City approved the Lease,10 describing a disturbance that occurred
while an existing road was being graded. Vegetation was cleared and fill was
placed on other vegetation. This area was “dominated by non-native,
invasive species,” but was between coastal sage habitat and wetlands. The
biologist also stated the construction occurred during the breeding season for
endangered species, and the noise “could be considered an indirect impact” to
10 Surf Cup’s response that the violation was caused by the Polo Club is
disingenuous, as Surf Cup entered into a joint management agreement with
the Polo Club in 2015.
29
protected species. She concluded that “[t]he work performed on the property
has resulted in impacts to sensitive biological resources that are considered
to be Environmentally Sensitive Lands,” because dirt had been pushed onto a
slope where the Coast to Crest Trail MND required seeding with coastal sage
scrub to replace the non-native plants. Also, the loose dirt could result in the
erosion of excess sediment into the adjacent wetlands. Removing the loose
fill would remediate the problem.
Friends have shown that there are sensitive biological resources within
the property, but they have not shown that the proximity of those resources
are reasonably likely to cause significant adverse environmental effects with
the approval of the 2016 Lease. The Lease continues the uses that have
occurred on the property for more than a decade, with no significant increase
of use. The environmentally sensitive habitat will remain undisturbed with
the continuation of historic uses allowed under the Lease.
Because there were no unusual circumstances when compared to other
projects in the same classes of categorical exemptions, we need not continue
to the second step of reviewing whether there was a reasonable possibility of
a significant adverse effect caused by the unusual circumstance. (See
Berkeley Hillside, supra, 60 Cal.4th at p. 1115.)
Friends compare this case to the circumstances in Azusa Land
Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52
Cal.App.4th 1165, 1199.) The project in Azusa was the reopening of an 80-
acre unlined municipal solid waste landfill that was on top of a large
underground water reservoir. (Id. at pp. 1175–1176, 1178.) The plan was to
deposit 3.2 million tons of municipal solid waste into the pit over a seven-year
period. (Id. at p. 1176.) The court concluded that numerous circumstances
were unusual in comparison with “existing facilities in general” (id. at
30
p. 1207), including the circumstance that large-scale disposal of municipal
waste was not entitled to any exemption; waste disposal landfills differ from
other types of existing facilities; the landfill did not have the safeguards
needed to protect the environment; and landfills in general and this landfill
in particular posed substantial environmental hazards (id. at pp. 1207–1208).
Rather than helping Friends, Azusa shows the types of circumstances that
are truly unusual. There are no such unusual circumstances here.
Friends argue in their reply brief, but not in their opening brief, that
the second alternative under Berkeley applies: that there will be, to a
certainty, significant adverse effects on the environment as a result of the
Lease. (Berkeley Hillside, supra, 60 Cal.4th at p. 1105; Walters, supra, 1
Cal.App.5th at p. 820.) We need not consider arguments raised for the first
time in a reply brief on appeal, absent good cause for failure to bring them
earlier. (Nordstrom Commission Cases (2010) 186 Cal.App.4th 576, 583.) In
any event, Friends claim that road and parking grading in the wetland buffer
are anticipated in the NOE, and rely on the City biologist’s opinion that loose
fill from the grading “could result in the erosion of excess sediment into the
adjacent wetlands.” This potential problem does not create a significant
adverse effect because it can be corrected by clearing out the loose fill. An
error in the grading is not evidence that there will be, to a certainty,
significant adverse environmental effects. (See Friends of Riverside’s Hills,
supra, 26 Cal.App.5th at p. 1152.) As discussed ante, continuing historic uses
in the 100-foot buffer would not change the environmental effects of those
historic uses on the existing biological resources.
Friends have not rebutted the City’s finding that the unusual
circumstance exception was not applicable.
31
DISPOSITION
The judgment is affirmed. Costs on appeal awarded to respondents
City and Surf Cup.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
GUERRERO, J.
32