Filed 6/20/13 Venturans for Responsible Growth v. City of San Buenaventura CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

VENTURANS FOR RESPONSIBLE GROWTH,
Plaintiff and Appellant,

v.

CITY OF SAN BUENAVENTURA,
Defendant and Respondent;
WINCO FOODS, LLC,
Real Party in Interest. 2d Civil No. B242008 (Super. Ct. No. 56-2011- 00402390-CU-WM-OXN) (Ventura County)

Venturans for Responsible Growth , an unincorporat ed Association (Venturans) appeal a judgme nt denying its petiti on for peremptory and administrative writ of mandate. (Code Civ. Proc., §§ 1085, 1094.5.) Venturans contend that the City of San Buenaventura's (City) design approval for exterior modifications to an existing building and grant of a sign variance viol ated the California Environmental Quality Act (CEQA; Pub. Resources Co de § 21000 et seq.), and co unty and city codes. We
affirm.2 FACTS WINCO Foods, LLC (WINCO) intends to operate a 24-hour grocery store at the Riviera Shopping Center on Tele phone Road in the City of Ventura (City). The space in which WINCO inte nds to operate was occupied by Mervyn's Department
Store from 1992 to 2008. The Riviera Shopping Center was constructed in the early 1980s. An environmental impact report (E IR) for the shopping center project was certified in
1977. The WINCO property is in the City's commercial planned development (CPD) zone. Grocery stores are a permitte d use in the zone. The City's zoning ordinance does not limit operating hours. The only discretionary approvals WINCO needs from the City are for co smetic improvements to the exterior and a sign variance. The cosmetic improvements are modifications to the exterior of the existing structure, restriping the parking lot, and removal and replacement of the landscaping. Modifications to the exterior include a tower element at the front of the building. The tower element will increase the height of the building by 22 feet. The City's current sign ordinance allows signs of 100 square feet. WINCO sought a variance to allow tw o signs totaling 360.25 square feet. WINCO applied to the City's desi gn review committee (DRC) for design approval and a sign variance. Venturans demanded that the City prep are an EIR to study the impacts of the proposed 24-hour grocery store on air qua lity and traffic. The City conducted an initial study for the project and gave notic e that a negative declaration would be prepared. But the City later rescinded the initial study. Instead, the City determined that the project is categorically exempt fro m CEQA pursuant to Guidelines sections
15301 and 15303. 1

1 All references to "Guidelines" are to Title 14 of the California Code of Regulations.3 DISCUSSION
I Venturans contend CEQA requires a comprehensive review of all environmental impacts. Unless exempt, all "discretionary proj ects" proposed to be carried out or approved by a city require environmental review. (Pub. Resources Code, § 21080, subd. (a).) A discretionary project is a projec t that requires the exercise of judgment or deliberation when a public agency decide s to approve or disapprove a particular activity. (Guidelines, § 15357.) CEQA does not apply to "[m]inisterial projects." (Pub. Resources Code, § 21080, subd. (b)(1).) A ministerial project is a project involving little or no personal judgment by a public official. (Guidelines, § 15369.) CEQA may require an EIR where the City's approval or denial of a project is a matter of the exercise of its di scretion. But even if a project will have significant negative environmental consequences , no EIR is required if the City has no discretion to deny or modify th e project. As the court in Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 27 2, explained: "[F]or truly ministerial permits an EIR is irrelevant. No matter what the EIR might reveal about
the terrible environmental c onsequences of going ahead with a given project the government agency would lack the power (tha t is, the discretion) to stop or modify it in any relevant way. The agency could no t lawfully deny the pe rmit nor condition it in any way which would mitigate th e environmental damage in any significant way. The applicant would be able to legally compel issuance of the permit without change. Thus, to require the preparation of an EI R would constitute a us eless - and indeed wasteful - gesture." Venturans claim the project is discreti onary. It is only discretionary with regard to the exterior design and signs. Bu t Venturans are compla ining about lack of environmental review for impa cts on air quality and traffi c. Those impacts are not4 related to exterior design and signs. Thos e impacts are related to the use of the premises as a 24-hour grocery store. The City has no discretion with regard to WINCO's use of the premises as a 24-ho ur grocery store. Thus, CEQA does not require and EIR to assess impa cts related to such use. Venturans argue that the City's Municipal Code (SBMC) gives the DRC authority to respond to conc erns beyond aesthetics or design. Venturans cite SBMC
section 24.545.110. "The de cision-making authority, in a pproving an application for design review, may impose such conditions th at it deems necessary or desirable to insure that the project author ized by such design review w ill be established, operated,
and maintained in accordance with the findi ngs required by Section 24.545.100 and all other requirements of this zoning ordinance, this Code, and other provisions of law. The decision-making authority may furthe r require reasonable guarantees and evidence that such conditions are being, or will be, complied with. Such conditions imposed by the decision-making authority may involve any factors affecting the colors, materials, design, landscaping, si gns, or other architectural features of a project." Venturans emphasize "all other require ments of this zoning ordinance, this Code, and other provisions of law." (SBMC, § 24.545.110) Venturans fail to include the final sentence, "Such conditions imposed by the decision-making authority may involve any factors affecting the colors, materials, design, landscaping, signs, or other architectural features of a project." ( Ibid. )
It would be unreasonable to inte rpret SBMC section 24.545.110 as giving a design review committee authority to impose conditions involving any and all provisions of the law. Instead, the reasona ble interpretation of the section is that the authority to impose conditions is limited to "f actors affecting colors, materials, design, landscaping, signs or other architectur al features of the project." ( Ibid. ) If there is any doubt ab out the DRC's authority over WINCO's use of the premises as a 24-hour grocery store, it is resolved by SBMC section 24.545.040,5 subdivision A. That subdivision provides: "Neither the design review committee, the historic preservation committee, nor the dir ector shall in the course of the design review process for projects or uses re quiring no other discre tionary permits or approvals, determine the operation or appropri ateness of land uses if such uses of land comply with appli cable zoning district regulations." Because the use of the premises as a 24-hour grocery store complies with applicable zoning district regulations, the DRC has no au thority whatsoever over WINCO's use of the premises, Venturans' co ncerns over air quality and traffic arises from the use of the premises , not its exterior design. Venturans argue that CEQA does not allow partial environmental review. But nothing in CEQA requires the City to do a useless act. That is why Public Resources Code section 21080, subdivision (b)(1) provides that CEQA does not apply to ministerial projects. Because the City has no authority to prevent or modify WINCO's use of the premises as a 24-hour grocery store, environmental review of the impacts of that use would be worthless. A statute should be interpreted to avoid an absurd result. ( Cummings v. Stanley (2009) 177 Cal.App. 4th 493, 507-508.) Venturans' argument was rejected in San Diego Navy Broadway Complex Coalition v. City of san Diego (2010) 185 Cal.App.4th 924 . There, the city's discretion in approving the project was limite d to design review. Opponents of the project argued the EIR should include a study of the project's impacts on global warming. In rejecting the argument, the c ourt noted that the City has no discretion to modify or deny the project ba sed on global warming. The c ourt stated, "[T]here is no basis for requiring the City to conduct an environmental review of an issue as to which it would have no ability to respond." ( Id. at p. 940.)
II. Venturans contend the categorical exemption contained in Guidelines section 15301 does not apply.6 Guidelines section 15301 provides a categorical exemption from CEQA for projects consisting of "min or alteration of existing . . . private structures . . . involving negligible or no expansion of use be yond that existing at the time of the lead agency's determination." It was not necessary for the City to rely on Guidelines section 15301 to exempt the use of the premis es as a 24-hour grocery stor e from CEQA review. Public Resources Code section 21080, subdivisi on (b)(1) contains its own categorical exemption for "ministerial projects." Because any permit WINCO might need to operate a 24-hour grocery store would be mini sterial, CEQA simply does not apply to the use of the premises for that purpose. (See San Diego Navy Broadway Complex Coalition v. City of San Diego
, supra , 185 Cal.App.4th at p. 940.) In any event, the City's relianc e on Guidelines section 15301 is supported by the evidence. The City bears the burden of demonstrating, based on substantial evidence, that the project fa lls within the categorical exemption. ( California Unions for Reliable Energy v. Mojave Desert Ai r Quality Management
Dist. (2009) 178 Cal.App.4th 1225, 1239.) We must determine the scope of the exemption as a matter of la w, and then determine whet her substantial evidence supports the City's finding that the proj ect falls within the exemption's scope. ( Ibid. ) Venturans argue adding a tower th at increases the building height by 22 feet and a variance allowing 360.25 squa re feet of signs does not qualify as a
"minor alteration." But Guidelines se ction 15301 gives examples of qualifying projects. One example allows additions to ex isting structures of up to 10,000 square feet. (Guidelines, § 15301, subd. (e)(2).) If additions of up to 10,000 square feet qualify for the exemption as a "minor a lteration," certainly WINCO's cosmetic alterations to the exterior qualify. Venturans point out the exemption requires a finding that the project involves "negligible or no expansion of use be yond that existing at the time of the lead agency's determination." (Guidelines, § 15301 .) Venturans argue that at the time of7 the lead agency's determination the build ing had been vacant for three years. Venturans claim that the traffic generate d by WINCO's project w ill exceed even the traffic generated by the building's previous use as a Mervyn's Department Store. But the only project before the City was WINCO's application to change the building's façade and for a sign variance. The City's approval of the design for the building façade and signs does not involve an expansion of the building's use. The project is categorically exempt from CEQA review under Guidelines
section 15301. We need not determine wh ether the project is also exempt under
Public Resources Code section 21 166 or Guidelines section 15303. Venturans argue that an exception to the categorical exemption applies. Guidelines section 15300.2, subdivision (c) provides: "A categorical exemption shall not be used for an activity where there is a reasonable po ssibility that the activity will have a significant effect on the enviro nment due to unusual circumstances." But the only "activity" before the City is the modification of the building's façade. There is no fair argum ent that such an activity will have a significant effect on the environment or that modification of the building's exterior constitutes any unus ual circumstances.
III. Venturans contend the City violat ed city and coun ty requirements. (a) Venturans argue the project is incons istent with the general plan. The City found the project is consistent.
Venturans cite Action 7.21 of th e Ventura General Plan, Policy 7D. Action 7.21 provides: "Require analysis of individual development projects in
accordance with the mo st current version of the Vent ura County Air Pollution Control District Air Quality Assessment Guidelin es and, when significant impacts are identified, require implementation of air po llutant mitigation measures determined to
be feasible at the time of project approval." But the only "development project[]"8 before the City is WINCO's a pplication to alter the exteri or of the building and a sign variance. The City's conclusi on that alterations to the ex terior of the building and a sign variance complies with the air quality provi sions of the general plan is supported by the record. There simply will be no "significant impact[]." ( Ibid. ) (b) Venturans contend the project conf licts with the county's air quality guidelines and the City's air quality ordinance. Venturans' contention, like most of its other contentions, is based on the theory that the project includes use of the prem ises as a grocery stor e. It does not. The only project before the City is limited to alterations to the building's exterior. (c) Venturans contend the project vi olates conditions of approval. The conditions of approval for Merv yn's Department Store allowed a maximum of 100 square feet of sign area. WINCO, however, has obtained a variance for 360 square feet of sign. Venturan s argue that while a variance may allow a deviation from the municipal code, it does not change the conditions of approval. Venturans cite no authority for the propos ition that a variance does not affect the conditions of approval. There appe ars no valid reason why it does not. (d) Venturans contend the grant of the sign variance is not supported by
substantial evidence.
SBMC section 24. 535.140 provides: "In order for the design review co mmittee to approve a sign variance, it
must make all of th e following findings: "1. The proposed sign is in conf ormance with the purposes of chapter
24.420; [2]

[2] SBMC chapter 24.420 regulates the use of all signs within the City.9 "2. The proposed sign will enhanc e the unique character and visual appearance of the city; "3. The proposed sign is an in tegral and well-desi gned portion of the overall building or site; "4. Strict compliance with the pr ovisions of chapter 24.420 would be detrimental to the design of the sign, archite ctural characteristics of the building, or design of the site; and "5. The granting of a sign variance would not constitute the granting of a special privilege to the applicant, nor would it grant an undue advantage to the applicant." Venturans argue the finding that gran ting of the sign variance would not constitute the granting of a special privilege or undue advantage to the applicant is not supported by substantial evidence. But the opinions of pl anning staff constitute s ubstantial evidence upon which the City may rely to support its findings. (See City of San Diego v. California
Coastal Commission (1981) 119 Cal.App.3d 228, 232.) Here the DRC staff reported: "In staff's analysis, the propos ed sign is significantly larger than allowed by the Zoning Regulations and the existing Mervyns sign (44 sq. ft.). However, as the sign letter heights are consistent with other stores in other shopping centers in the vicinity and reflects Winco's standard corporate sign format , staff determined the sign is consistent in scale with the proposed changes to the façade and recommends the DRC approve the Sign Variance as submitted." That is sufficient to support the DRC's finding.
Venturans cite Orinda Association v. Board of Supervisors (1986) 182 Cal.App.3d 1145, 1166, for the proposition th at the DRC's finding of consistency with recently approved signs in th e area must be supported by "'comparative data.'"
Venturans' reliance on Orinda is misplaced.
Orinda concerns a variance from a genera l zoning ordinance, not a sign variance. In granting the vari ance, the county found that similar variances have been10 granted on several occasions. In discussing the lack of evidence to support such a finding the court noted that no specific examples are provided, and, in fact, the record indicates that every previous request for a variance had been denied. ( Orinda Assn. v. Bd. of Supervisors
, supra , 182 Cal.App.3d at p. 1166, fn. 11.) The court did not hold that such a finding must be supported by comparative data. The judgment is affirmed. Costs are awarded to respondents.
NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.Glen M. Reiser, Judge
Superior Court County of Ventura

________________ ______________

Johnson & Sedlack, Raymond W. Johnson, Abigail A. Broedling, Kimberly A. Foy for Plaintiff and Appellant. Ariel Pierre Calonne, Ci ty Attorney; Jenkins & Hogi n, Christi Hogin, Gregg
Kovacevich for Defend ant and Respondent. Best Best & Krieger, Sarah E. Owsowitz , Stephanie R. Straka for Real Party in
Interest.