Walters v. City of Redondo Beach

         Superior Court of Los Angeles County, No. BS144965 Allan J. Goodman, Judge

          Buchalter Nemer PC, and Robert M. Dato, for Plaintiffs and Appellants.

          The Sohagi Law Group, PLC, Margaret M. Sohagi, and R. Tyson Sohagi, for Defendants and Respondents City of Redondo Beach et al.

          Tucker Ellis LLP, Carmen A. Trutanich, Matthew I. Kaplan, and Rebecca A. Lefler, for Real Parties in Interest and Respondents Redondo Auto Spa et al.

          Brian P. Barrow, for Amicus Curiae Building a Better Redondo, Inc.

          PERREN, J.

         Respondent City of Redondo Beach (City) approved a conditional use permit (CUP) for construction of a combination car wash and coffee shop on a vacant lot adjacent to homes owned by appellants Steven Walters, Mark Kleiman, Rick Son, Krishna Gorripati and John Moore. In issuing the permit, the City found the project was categorically exempt from the requirements of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA)^[1] because it involves the development of “new, small facilities or structures [and] installation of small new equipment and facilities in small structures.” (Guidelines, § 15303.)

         Appellants filed a petition for writ of mandate challenging the City’s decision. The trial court denied the petition, agreeing with the City that the project is categorically exempt from CEQA under Guidelines section 15303, subdivision (c) and that no exception to the exemption applies. We affirm.

         FACTS AND PROCEDURAL BACKGROUND

         Respondents and real parties in interest Redondo Auto Spa and Chris McKenna (collectively “Auto Spa”) propose to build a full-service car wash and small coffee shop on a 25, 000 square-foot lot at the northwest corner of Torrance Boulevard and South Irena Avenue in Redondo Beach. The property is located within a commercial (C-3) zone. The structure will consist of a 90-foot car wash tunnel and attached coffee shop that together will total 4, 080 square feet. The remainder of the site will include 17 parking spaces for employees and coffee shop patrons, an area for drying cars, landscaping and a water feature. Entry to the car wash is from the residential street, just beyond the corner of the major street.

         In 1965, the City approved a CUP for a car wash and snack bar at the same location. That car wash, which occupied 5, 138 square feet of the parcel, operated until approximately June 2001. The property fell into disrepair. About five years later, appellants’ homes on the abutting property lines were constructed. In 2012, the property was found to be a blight on the area and the City prosecuted the owner for nuisance and other charges. Auto Spa responded by demolishing the remaining structure and proposing to rebuild the car wash as an “express wash” model, in which patrons would vacuum their own cars and drive through the car wash tunnel. The City’s Planning Commission (Commission) did not approve the plan. Among other things, it determined that the proposed use would have an adverse impact on abutting properties and that the site was not adequate in size and shape to accommodate the express wash project. Rather than appeal that decision, Auto Spa proposed a self-described “high end, ” full-service car wash and coffee shop.

         The Commission granted a CUP for the full-service car wash and found that it was categorically exempt from CEQA under Guidelines section 15303, subdivision (c). The notice of exemption states that “[t]he project consists of the construction of a new car wash facility and coffee shop of 4, 080-square feet in size on commercially zoned property. As such, it is consistent with the classes of projects described in CEQA Guidelines Section 15303(c) that states, in part, that commercial buildings not exceeding 10, 000 square feet in floor area on sites zoned for such use if not involving the use of significant amounts of hazardous substances where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive are considered exempt from further CEQA review. No potentially significant environmental impacts will result from the project.”

         The Commission added certain restrictions to the project, requiring that the equipment not exceed the Redondo Beach Municipal Code (Municipal Code) noise limit, that no detailing equipment be used that is audible or discernable at the property line from the other on-site equipment, and that operating hours be limited. The Commission further required that the number of vehicles washed be limited to 20 vehicles per hour and to no more than 200 vehicles per day (referred to as Condition 24). Coffee shop hours were set at 7:00 a.m. to 8:00 p.m. seven days a week. Walters and Kleiman appealed the decision to the City Council.

         Auto Spa provided a traffic study, conducted by Gibson Transportation Consulting (Gibson), which concluded that the proposed car wash would not change the level of service at the intersection from its present “A” status, even at peak operating times. It also commissioned a noise study by Davy & Associates (Davy), which determined that the only significant noise source would be the blower/dryer systems inside the car wash tunnel. Davy concluded that noise would largely be contained by the design and materials to be used in constructing the facility.

         Before the hearing on the appeal, Auto Spa requested removal of Condition 24. It claimed that 200 cars per day would not be profitable for the car wash. The City Council approved the project subject to certain conditions, including compliance with the City’s noise ordinance (Condition 20), a vehicle limit of 10, 000 cars per month and limitations on the car wash’s operating hours.^[2] Condition 20 requires that compliance with the noise standards be tested and documented prior to the final inspection and opening of the car wash.

         With these and other conditions in place, the City Council determined (1) the building site is adequate in size to accommodate the proposed use; (2) the proposed use has adequate street access and will not have a significant impact on traffic; (3) the proposed use will have no adverse effect on abutting properties; (4) the noise that will be generated by the car wash blowers and vacuum drops does not exceed the permitted interior and exterior limits; (5) the project is exempt from CEQA under Guidelines section 15303, subdivision (c); and (6) the project will not have a significant effect on the environment.

         Appellants filed a petition for writ of mandate challenging the CEQA exemption and the City’s issuance of a CUP. After briefing and a hearing, the trial court denied the writ petition, concluding that the project is categorically exempt under Guidelines section 15303, subdivision (c), and that the CUP was properly issued. This appeal followed.^[3]

         DISCUSSION

         A. CEQA Overview

         “CEQA and its implementing administrative regulations [Guidelines]... establish a three-tier process to ensure that public agencies inform their decisions with environmental considerations. [Citation.] The first tier is jurisdictional, requiring that an agency conduct a preliminary review to determine whether an activity is subject to CEQA.” (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 379-380, fn. omitted (Muzzy Ranch).) “CEQA applies if the activity is a ‘project’ under the statutory definition, unless the project is exempt. [Citations.]” (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1373.)

         “The second tier concerns exemptions from CEQA review, ” which include “categorical exemptions or ‘classes of projects’ that the... agency has determined to be exempt per se because they do not have a significant effect on the environment. [¶]... [¶] If a public agency properly finds that a project is exempt from CEQA, no further environmental review is necessary. [Citation.] The agency need only prepare and file a notice of exemption [citations], citing the relevant statute or section of the CEQA Guidelines and including a brief statement of reasons to support the finding of exemption [citation].” (Muzzy Ranch, supra, 41 Cal.4th at p. 380.) The “third tier applies if the agency determines substantial evidence exists that an aspect of the project may cause a significant effect on the environment.” (Id. at p. 381.)

         Here, it is undisputed that the proposed car wash qualifies as a “project” under CEQA. The issues on appeal concern the second tier of the CEQA analysis, i.e., whether the City erred in finding that the car wash project is categorically exempt from CEQA and that there are no unusual circumstances creating a reasonable possibility the activity will have a significant effect on the environment. (See Guidelines, §§ 15303, subd. (c), 15300.2, subd. (c).)

         “In considering a petition for writ of mandate in a CEQA case, ‘[o]ur task on appeal is “the same as the trial court’s.” [Citation.] Thus, we conduct our review independent of the trial court’s findings.’ [Citation.] Accordingly, we examine the City’s decision, not the trial court’s.” (Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 257.)

         B. Application of ...