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                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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                                                      2d Civil No. B242008
GROWTH,                                                                       (Super. Ct. No. 56-2011-
                                                                             00402390-CU-WM-OXN)
     Plaintiff and Appellant,                                                    (Ventura County)

v.

CITY OF SAN BUENAVENTURA,

     Defendant and Respondent;

WINCO FOODS, LLC,

     Real Party in Interest.



                   Venturans for Responsible Growth, an unincorporated Association
(Venturans) appeal a judgment denying its petition 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 violated the California Environmental Quality
Act (CEQA; Pub. Resources Code § 21000 et seq.), and county and city codes. We
affirm.
                                            FACTS
               WINCO Foods, LLC (WINCO) intends to operate a 24-hour grocery
store at the Riviera Shopping Center on Telephone Road in the City of Ventura (City).
The space in which WINCO intends 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 (EIR) 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 permitted 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 cosmetic 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 two signs totaling 360.25 square feet.
               WINCO applied to the City's design review committee (DRC) for design
approval and a sign variance.
               Venturans demanded that the City prepare an EIR to study the impacts of
the proposed 24-hour grocery store on air quality and traffic. The City conducted an
initial study for the project and gave notice 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 from CEQA pursuant to Guidelines sections
15301 and 15303.1

               1
                   All references to "Guidelines" are to Title 14 of the California Code of
Regulations.


                                               2
                                      DISCUSSION
                                             I
              Venturans contend CEQA requires a comprehensive review of all
environmental impacts.
              Unless exempt, all "discretionary projects" proposed to be carried out or
approved by a city require environmental review. (Pub. Resources Code, § 21080,
subd. (a).) A discretionary project is a project that requires the exercise of judgment or
deliberation when a public agency decides 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 discretion. 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 the project. As the court in Friends of Westwood, Inc. v.
City of Los Angeles (1987) 191 Cal.App.3d 259, 272, explained: "[F]or truly
ministerial permits an EIR is irrelevant. No matter what the EIR might reveal about
the terrible environmental consequences of going ahead with a given project the
government agency would lack the power (that is, the discretion) to stop or modify it
in any relevant way. The agency could not lawfully deny the permit nor condition it in
any way which would mitigate the 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 EIR would constitute a useless - and indeed
wasteful - gesture."
              Venturans claim the project is discretionary. It is only discretionary with
regard to the exterior design and signs. But Venturans are complaining about lack of
environmental review for impacts on air quality and traffic. Those impacts are not



                                             3
related to exterior design and signs. Those 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-hour grocery store. Thus, CEQA does not
require and EIR to assess impacts related to such use.
              Venturans argue that the City's Municipal Code (SBMC) gives the DRC
authority to respond to concerns beyond aesthetics or design. Venturans cite SBMC
section 24.545.110. "The decision-making authority, in approving an application for
design review, may impose such conditions that it deems necessary or desirable to
insure that the project authorized by such design review will be established, operated,
and maintained in accordance with the findings 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 further 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, signs, or other architectural features of a
project."
              Venturans emphasize "all other requirements 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 interpret 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 reasonable interpretation of the section is that the
authority to impose conditions is limited to "factors affecting colors, materials, design,
landscaping, signs or other architectural features of the project." (Ibid.)
              If there is any doubt about 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,



                                             4
subdivision A. That subdivision provides: "Neither the design review committee, the
historic preservation committee, nor the director shall in the course of the design
review process for projects or uses requiring no other discretionary permits or
approvals, determine the operation or appropriateness of land uses if such uses of land
comply with applicable 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 authority whatsoever over
WINCO's use of the premises, Venturans' concerns 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 limited 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 court noted that the City has no discretion to
modify or deny the project based on global warming. The court 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.




                                            5
               Guidelines section 15301 provides a categorical exemption from CEQA
for projects consisting of "minor alteration of existing . . . private structures . . .
involving negligible or no expansion of use beyond 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 premises as a 24-hour grocery store from CEQA review. Public
Resources Code section 21080, subdivision (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 ministerial, 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 reliance on Guidelines section 15301 is
supported by the evidence. The City bears the burden of demonstrating, based on
substantial evidence, that the project falls within the categorical exemption.
(California Unions for Reliable Energy v. Mojave Desert Air Quality Management
Dist. (2009) 178 Cal.App.4th 1225, 1239.) We must determine the scope of the
exemption as a matter of law, and then determine whether substantial evidence
supports the City's finding that the project falls within the exemption's scope. (Ibid.)
               Venturans argue adding a tower that increases the building height by
22 feet and a variance allowing 360.25 square feet of signs does not qualify as a
"minor alteration." But Guidelines section 15301 gives examples of qualifying
projects. One example allows additions to existing 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 alteration," 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 beyond that existing at the time of the lead
agency's determination." (Guidelines, § 15301.) Venturans argue that at the time of



                                               6
the lead agency's determination the building had been vacant for three years.
Venturans claim that the traffic generated by WINCO's project will 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 whether the project is also exempt under
Public Resources Code section 21166 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 possibility that the activity will
have a significant effect on the environment due to unusual circumstances."
              But the only "activity" before the City is the modification of the
building's façade. There is no fair argument that such an activity will have a
significant effect on the environment or that modification of the building's exterior
constitutes any unusual circumstances.
                                            III.
              Venturans contend the City violated city and county requirements.
                                            (a)
              Venturans argue the project is inconsistent with the general plan. The
City found the project is consistent.
              Venturans cite Action 7.21 of the Ventura General Plan, Policy 7D.
Action 7.21 provides: "Require analysis of individual development projects in
accordance with the most current version of the Ventura County Air Pollution Control
District Air Quality Assessment Guidelines and, when significant impacts are
identified, require implementation of air pollutant mitigation measures determined to
be feasible at the time of project approval." But the only "development project[]"



                                             7
before the City is WINCO's application to alter the exterior of the building and a sign
variance. The City's conclusion that alterations to the exterior of the building and a
sign variance complies with the air quality provisions of the general plan is supported
by the record. There simply will be no "significant impact[]." (Ibid.)
                                             (b)
              Venturans contend the project conflicts 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 premises as a grocery store. It does not. The
only project before the City is limited to alterations to the building's exterior.
                                             (c)
              Venturans contend the project violates conditions of approval.
              The conditions of approval for Mervyn'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. Venturans 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 proposition that a variance does not affect the
conditions of approval. There appears 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 committee to approve a sign variance, it
must make all of the following findings:
              "1. The proposed sign is in conformance with the purposes of chapter
        [2]
24.420;

              [2]
                    SBMC chapter 24.420 regulates the use of all signs within the City.



                                              8
              "2. The proposed sign will enhance the unique character and visual
appearance of the city;
              "3. The proposed sign is an integral and well-designed portion of the
overall building or site;
              "4. Strict compliance with the provisions of chapter 24.420 would be
detrimental to the design of the sign, architectural 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 granting 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 planning staff constitute substantial 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 proposed 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 that the DRC's finding of consistency with
recently approved signs in the area must be supported by "'comparative data.'"
Venturans' reliance on Orinda is misplaced.
              Orinda concerns a variance from a general zoning ordinance, not a sign
variance. In granting the variance, the county found that similar variances have been



                                             9
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.




                                           10
                                   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, City Attorney; Jenkins & Hogin, Christi Hogin, Gregg
Kovacevich for Defendant and Respondent.
              Best Best & Krieger, Sarah E. Owsowitz, Stephanie R. Straka for Real Party in
Interest.
