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Aptos Council v. County of Santa Cruz

California Court of Appeals, Sixth District

March 30, 2017

APTOS COUNCIL, Plaintiff and Appellant,
COUNTY OF SANTA CRUZ et al., Defendants and Respondents.

         Santa Cruz County Superior Court Superior Court No. CV178868 Hon. Paul M. Marigonda Trial Judge

          Counsel for Plaintiff/Appellant: The Aptos Council Wittwer Parkin, William P. Parkin, Jonathan Wittwer, Alison Norton, Natalie Kirkish

          Counsel for Defendants/Respondents: County of Santa Cruz, Board of Supervisors et al. County Counsel, Dana McRae T. Brooke Miller Assistant County Counsel.

          Premo, J.

         Appellant Aptos Council challenges respondent County of Santa Cruz's (County) adoption of three ordinances that (1) extended minor exceptions to zoning site standards, (2) altered certain height, density, and parking requirements for hotels in commercial districts, and (3) established an administrative process for approving minor exceptions to the County's sign ordinance. Aptos Council argues the County engaged in piecemeal environmental review in violation of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)[1] when it considered the ordinances separately. Aptos Council further insists the County failed to act in the manner prescribed by CEQA when it approved a negative declaration for the ordinance altering height, density, and parking requirements for hotels in commercial districts, because the County failed to take into consideration the environmental impacts that may ensue from future hotel developments.

         For the reasons discussed below, we reject Aptos Council's claim that the County engaged in piecemeal environmental review. Although the County is in the process of modernizing some of its zoning regulations, this modernization process does not constitute a single project under CEQA. We also reject Aptos Council's claim that the negative declaration for the hotel ordinance was inadequate. The County should consider the potential environmental impacts resulting from reasonably foreseeable future development resulting from the ordinance. Future hotel developments, however, were wholly speculative at the time the negative declaration was adopted. Thus, we affirm the trial court's order denying Aptos Council's petition for a writ of mandate.


         1. The County's Overhaul of Zoning Regulations

         The County's planning department is in the midst of overhauling various County code sections, including code sections dealing with zoning. The planning department's Web site invites visitors to “[l]earn about new and amended land use regulations resulting from our Regulatory Reform efforts.” On November 20, 2013, the County administrative officer wrote to a County supervisor providing a status update on “completed regulatory reform initiatives.” The memorandum explained that “[m]odernizing, clarifying and streamlining regulations and the regulatory process is a top priority of the Planning Department, accomplished in a way that continues to respect community and environmental values.” The memorandum stated the changes that had been made were “completed in order to modernize, simplify, clarify, streamline and/or provide standards where there were no clear standards previously (such as for vacation rentals).” It then provided a list of completed code amendments, a list of code amendments currently scheduled for public hearings, and a list of amendments presently being worked on by the planning department.

         Title 13 of the County's Code is titled “Planning and Zoning Regulations.” Chapter 13.10 of title 13 is titled “Zoning Regulations.”

         2. Ordinance No. 5181 (The Minor Exceptions Ordinance)

         In 2010, the planning department proposed a series of changes to Chapter 13.10 of the County Code. The proposed changes would allow certain variances to zoning code standards be approved administratively without a public hearing. The following year, the County board of supervisors (Board) adopted Ordinance No. 5087. Ordinance No. 5087 authorized administrative approval of “minor exceptions” to zoning site standards limited to no more than a: 5 percent height increase, 15 percent setback reduction, 7.5 percent increase in the 50 percent floor-to-area ratio (FAR) for lots 4, 000 square feet or less, and 15 percent increase in total allowable lot coverage. Ordinance No. 5087 restricted this authority to properties within the urban services line and certain areas shown within a map attached to the ordinance.

         In March 2013, the planning department recommended extending the minor exceptions ordinance to the entire county. The County prepared Ordinance No. 5181, which extended the minor exceptions set forth under Ordinance No. 5087. Ordinance No. 5181 also extended existing provisions allowing minor exceptions and reduced garage setbacks, extended the existing provisions allowing reduction of front yard setbacks by up to 25 percent with an administrative permit, allowed a 25 percent increase in lot coverage for parcels of less than 6, 000 square feet with a minor exception, and extended existing provisions allowing for up to a 50 percent reduction of side and rear setbacks for garages with a minimum 40-foot setback.

         Prior to adopting Ordinance No. 5181, the Board accepted an addendum to the negative declaration prepared for Ordinance No. 5087, which found the amendments would not have significant environmental impacts. Thereafter, in 2014, the Board adopted Ordinance No. 5181.

         3. Ordinance No. 5171 (The Hotel Ordinance)

         In September 2013, the planning department submitted a letter to the Board recommending it schedule a public hearing to consider amendments to standards for hotel development. The letter stated the hotel standards had come to the planning department's attention as part of its “ongoing regulatory reform and economic development initiatives.” In October 2013, the Board held a public hearing to consider amendments to portions of Chapter 13.10 dealing with visitor accommodations in commercial districts. The County Code had previously mandated that there be 1, 100 square feet of developable area per habitable hotel room and presumed that any room over 400 square feet was composed of two or more rooms. The planning department proposed Ordinance No. 5171, which removed the one room per 1, 100 square foot density limit. The ordinance also removed the existing three-story limit and reduced parking requirements from 1.1 spaces per unit to one space per unit.

         Prior to the adoption of Ordinance No. 5171, the planning department circulated a negative declaration that found the amendments would not have a significant effect on the environment. In 2014, the Board adopted Ordinance No. 5171.

         4. Ordinance No. 5172 (The Sign Ordinance)

         In October 2013, the Board held a public hearing to consider amendments to the County Code that would allow administrative approvals of sign exceptions with a public notice. The proposed amendments also provided for a public hearing before the zoning administrator for exceptions that exceeded certain limits. Prior to the amendments, applications for signs exceeding County regulations required a variance and a public hearing. When proposing the amendments, the planning department characterized them as “part of the ongoing Planning Department program to streamline permit review, modernize the County Code, and facilitate economic development.” The planning department further stated it was “recommending that an effort be undertaken to prepare a more comprehensive amendment of the sign ordinance.”

         The planning department prepared a notice of exemption for Ordinance No. 5172, relying on several exemptions from CEQA review: (1) the statutory exemption for amendment of a local coastal program (CEQA Guidelines, § 15265), (2) class 5 and 11 categorical exemptions for minor alterations in land use limitations (CEQA Guidelines, §§ 15305, 15311) and accessory structures, and (3) the common sense exemption which applies when “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment” (CEQA Guidelines, § 15061, subd. (b)(3)). In 2014, the Board found the proposed amendment to be exempt from CEQA review and approved Ordinance No. 5172.

         5. Other Planned Changes to the County Code

         At or around the same time it was considering the aforementioned ordinances, the planning department was also contemplating revisions to the County's “Wireless Communications Facility and Broadband Ordinance” (County Code, § 13.10.660-668). Other code amendments under development by planning department staff included modernization of the “use charts” of each zoning district within the agricultural, commercial, industrial, residential, and other districts.

         In a letter to the Board in June 2014, the planning department recommended amending the County Code to clarify and streamline permit requirements and application review procedures. The planning department noted that in addition to updating the use charts for agricultural zone districts, “planning staff [was] proposing a more comprehensive update of the agricultural regulations in the County Code.” In a separate letter, the planning department indicated it was contemplating amendments to agricultural fencing regulations, and it was recommending a separate environmental review for the project.

         6. Petition for Writ of Mandate

         On March 19, 2014, Aptos Council filed a petition for a writ of mandate. The petition challenged the County's actions in 2014 approving the three ordinances related to minor exceptions, hotels, and signs. Aptos Council argued the sign ordinance was not exempted from CEQA review, the County's negative declaration prepared for the hotel ordinance should have taken into consideration future developments, and the County had improperly engaged in unlawful piecemeal review of the environmental impacts of the various ordinances.[2]

         On September 4, 2015, the trial court issued an order and judgment denying Aptos Council's petition for a writ of mandate. The trial court concluded the County's “regulatory reform efforts” were not a single project for purposes of CEQA, there was no substantial evidence in the record to support a fair argument the hotel ordinance had a reasonably foreseeable effect on the environment, and the sign ordinance was exempt from CEQA review. Aptos Council appealed.


         1. Piecemeal Review

         Aptos Council argues the County's adoption of Ordinance Nos. 5171, 5172, and 5181 all constitute a single project under CEQA-the County's effort toward reforming and modernizing zoning regulations. Therefore, it claims the County improperly piecemealed review of environmental impacts when it independently and individually considered each ordinance. As we explain below, we disagree with Aptos Council's interpretation and do not find the adoption of the three ordinances in question to be a single project under CEQA.

         a. Overview 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 language.' ” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390 (Laurel Heights).)

         CEQA requires the preparation of an environmental impact report (EIR) whenever a public agency proposes to approve or to carry out a project that may have significant impacts on the environment. (§§ 21100, 21151.) “An EIR is an ‘environmental “alarm bell” whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.' ” (Laurel Heights, supra, 47 Cal.3d at p. 392.)

         “ ‘Project' is a term of art. ‘CEQA broadly defines a “project” as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and... [¶]... [¶]... that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” [Citation] [¶] The statutory definition is augmented by the [CEQA Guidelines], which define a “project” as “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment....” ' ” (Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1220 (Banning Ranch).)

         Of vital import is the timing of the preparation of the EIR. “A basic tenet of CEQA is that an environmental analysis ‘should be prepared as early as feasible in the planning process to enable environmental considerations to influence project program and design and yet late enough to provide meaningful information for environmental assessment.' ” (Laurel Heights, supra, 47 Cal.3d at p. 395.) Early environmental review may be detrimental to public coffers, but late environmental review may cause projects to clash with bureaucratic processes that are already in play, creating incentives to ignore potential environmental impacts. (Ibid.) Therefore, “ ‘ ...

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