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Academy of Our Lady of Peace v. City of San Diego

December 14, 2011


The opinion of the court was delivered by: Hayes, Judge:


The matter before the Court is Plaintiff's Motion for Partial Summary Judgment on the Writ of Mandate Claim. (ECF No. 112).


On September 2, 2011, Plaintiff Academy of Our Lady of Peace ("OLP") filed a First Amended Complaint against Defendant City of San Diego ("City"). (ECF No. 109). The Complaint alleges that OLP operates an all-girls Catholic high school in the North Park neighborhood of San Diego and has been doing so for 86 years. Id. at 3. The Complaint alleges that OLP's "existing campus facilities are woefully outdated and inadequate to meet OLP's mission" to educate and "inspire its students to grow as committed Christians." Id. at 4. In 2007, OLP proposed a "Modernization Plan... that would add two new facilities to the 86-year old campus: an approximately 20,545 square foot, two-story classroom building on the west side of the campus, and a two-level, 104-space parking structure on the east side of campus." Id. at 5. The Complaint alleges that the Modernization Plan would "require the demolition or removal of three single-family residences that OLP owns, in order to provide sufficient developable area for the classroom building and parking structure." Id.

The Complaint alleges that, on March 3, 2009, the City Council denied the development permits necessary to implement OLP's Modernization Plan. Id. at 9. The Complaint alleges that "[t]he City's action[s] in... rejecting the Modernization Plan have effectively precluded OLP from meeting its classroom space and program needs at its current campus." The Complaint alleges that the City's actions were "arbitrary and capricious" and without "compelling - or even rational - basis" because the City "denied the facilities needed to serve the students... and purported to preserve structures as historic that need not be preserved and are less valuable than other structures which the City has routinely allowed to be demolished." Id. at 10.

The Complaint alleges seven causes of action relating to the decision of the San Diego City Council to deny OLP's development permits. Id. The first, second, third, and sixth causes of action allege violations of OLP's right to free exercise of religion, freedom of speech and assembly, freedom of association, equal protection and due process, as secured by the First and Fourteenth Amendments to the United States Constitution and Article 1 of the California Constitution. Id. at 11-13, 16. The fourth and fifth causes of action allege violations of the Religious Land Use and Institutionalized Persons Act under 42 U.S.C. §2000cc. Id. at 14-15. The seventh cause of action petitions for a writ of mandate under California Code of Civil Procedure § 1094.5, which allows for judicial review "inquiring into the validity of any final administrative order or decision." Id. at 17; Cal. Code Civ. Pro. § 1094.5.

On September 27, 2011, OLP filed a motion for summary judgment on their claim for a writ of mandate. (ECF No. 112). OLP contends that the City Council "abused its discretion in three ways in denying the Academy the permits. First, the City Council did not proceed in the manner required by law.... Second, the City Council did not base its decision on specific findings. Additionally, the City Council abused its discretion by failing to provide any measureable amount of evidence to support its findings." Id. at 3.

On October 21, 2011, the City filed an opposition to OLP's motion for summary judgment. (ECF No. 120).*fn1 The City contends that "the City Council's... action was absolutely required by California law.... The City Council is the final decision-maker on all matters involving environmental impacts created by a proposed development.... [and] is held accountable and is empowered to over-rule, modify, or amend any finding made by a lesser commission or staff member within the City." Id. at 9.

On October 31, 2011, OLP filed a reply in support of its motion. (ECF No. 122). On November 18, 2011, the Court heard oral arguments on the motion.


I. Necessary Permits

In order to implement the Modernization Plan, OLP needs four permits from the City: a Planned Development Permit, a Site Development Permit, a Neighborhood Development Permit, and an amendment to OLP's existing Conditional Use Permit. (ECF No. 112-6). A Planned Development Permit is required for the project's proposed height, setback, and parking space deviations. (ECF No. 91-7 at 3; Administrative Record at AR-1680). A Site Development Permit is required due to the environmentally-sensitive steep slopes on the project site. (Id. at 4; AR-1681). A Neighborhood Development Permit is required for the provision of tandem parking on the site, and an amended Conditional Use Permit is required to increase the maximum student enrollment on the site from 640 students to 750 students. Id.

II. The Environmental Impact Report

In accordance with the California Environmental Quality Act ("CEQA"), the City of San Diego Development Services Department prepared an Environmental Impact Report ("EIR") to assess significant and unmitigable impacts affiliated with the Modernization Plan. ("All local agencies shall prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any project that they intend to carry out or approve which may have a significant effect on the environment." Cal.Pub.Res.Code § 21151).

"An EIR provides the public and responsible government agencies with detailed information on the potential environmental consequences of an agency's proposed decision. [citations omitted]. The EIR describes ways to minimize significant environmental effects, and suggests alternatives to the project, including the option of 'no project.'" Mountain Lion Foundation v. Fish & Game Com., 16 Cal.4th 105, 113 (1997), citing Cal.Pub.Res.Code § 21061.

The Final EIR for OLP's Modernization Project issued in September 2008. The EIR lists as a "major component" of the Modernization Plan, the "[d]emolition of three single-family residences (two of which are considered locally historic)." (ECF No. 112-3 at 2; AR-00366). The two residences at issue are located at 2544 Collier Avenue ("Collier") and 2746 Copley Avenue ("Copley"). Both properties are owned by OLP. (ECF No. 120-3 at 10-12; AR-07016-18).

The EIR distinguishes between a structure that is designated in an official report or register as "historically significant," and a structure that is non-designated but still "significant" for the purposes of CEQA or in the local community for historic reasons. The EIR states that "[a] resource that is not listed in or determined to be ineligible for listing in the California Register of Historic Resources, not included in a local register of historic resources, or not deemed significant in a historical resource survey, may nonetheless be historically significant for the purposes of CEQA." (ECF No. 89-19 at 8; AR-00448).

In describing the Collier house, the EIR states that "[t]he building is considered to be significant as it possesses high artistic values and construction consistent with the characteristics of the type, period, or method of the Spanish Eclectic style of architecture.... The historical report indicates that the building is not considered to be historically significant as the building was not associated with individuals significant at the local, state, or national levels." (ECF No. 89-19 at 3; AR-00443). In describing the Copley house, the EIR states: "Historical research indicates that the building is not considered to be historically significant as the building was not associated with individuals significant at the local, state, or national levels. However, the building is considered to be architecturally significant as an example of the Spanish Eclectic style of architecture...." (Id. at 6; AR-00446).

The EIR states that the Collier and Copley houses "are considered locally historically significant structures as they represent Spanish Eclectic architecture." (ECF No. 120-7 at 39; AR-00133). The EIR states that "[t]he loss of [Collier] is considered a significant impact under CEQA.... [and] the physical demolition or moving of [Copley], a significant historic resource, will result in a significant impact on Cultural Resources under CEQA." (ECF No. 89-19 at 10; AR-00450). "The demolition of these locally significant historic buildings is considered a significant impact." (ECF No. 120-7 at 39; AR-00133). "Relocation of either structure is not considered feasible.... cannot be assured.... [and] would not be considered as mitigating the resource loss to a level less than significant." " (Id. at 40; AR-00134, 450).

III. City Staff Recommendation and Planning Commission Decision

On September 12, 2008, staff at the Development Services Department ("City Staff") recommended that the San Diego Planning Commission approve OLP's permits and certify the EIR, allowing the Modernization Plan to move ...

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