Filed 9/2/14 Friends of Aviara v. City of Carlsbad CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



FRIENDS OF AVIARA,                                                  D064069

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2012-00050757-
                                                                    CU-WM-NC)
CITY OF CARLSBAD,

         Defendant and Respondent;

WEST LIVING, LLC et al.,

      Real Parties in Interest and
Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County,

Earl H. Maas III, Judge. Affirmed.

         DeLano & Delano, Everett L. DeLano III and M. Dare DeLano for Plaintiff and

Appellant.

         Celia A. Brewer, City Attorney, and Jane Mobaldi, Assistant City Attorney, for

Defendant and Respondent.
       Sheppard, Mullin, Richter & Hampton, Dana J. Dunwoody and Karin Dougan

Vogel for Real Parties in Interest and Respondents.



       Friends of Aviara (Aviara) appeals a judgment denying its petition for writ of

mandate challenging the City of Carlsbad's (the City) decision to approve West Senior

Living R/E, LLC's application for development of the Dos Colinas project (the Project), a

continuing care retirement community. Aviara contends the City failed to comply with

Proposition E, which limited the number of dwelling units in the City, and the City's

General Plan by designating the Project as commercial rather than residential. Aviara

also argues the City violated its Habitat Management Plan (HMP) because the Project

would fill floodplain and did not comply with setback requirements. We affirm the

judgment denying the writ.

                  FACTUAL AND PROCEDURAL BACKGROUND

Proposition E and General Plan

       In 1986, the City's voters passed Proposition E, which amended the City's General

Plan and established its Growth Management Plan, which included placing limits on the

number of residential dwelling units within each quadrant of the City. Proposition E

amended the General Plan to provide the following: "To ensure that all necessary public

facilities will be available concurrent with the need to serve new development it was

necessary to set a limit on the number of future residential dwelling units which can be

constructed in the City . . . . The maximum number of future dwelling units which may

be constructed or approved in [the City's northeast] quadrant after November 4, 1986,

                                            2
is . . . 6,166." The Project site is located in that quadrant. Proposition E further stated

that "[t]he City shall not approve any General Plan amendment, zone change, tentative

subdivision map or other discretionary approval for a development which could result in

development above the limit in any quadrant." Moreover, the cap on residential dwelling

units in each quadrant "shall not be increased without an affirmative vote of the people."

       The Land Use Element of the City's General Plan "establish[ed] the proper

relationship between living areas and nonresidential uses" and recognized the residential

dwelling unit caps mandated by Proposition E. The Land Use Element also described

various land use classifications, including residential and commercial, to "represent

existing and expected land uses in the City at some future period of time." However, the

Land Use Element recognized "[w]ithin each land use designation, there exists the

potential for certain unique land uses for which there are no specific designations. Such

uses may include, but are not limited to churches or hospitals. These and other unique

types of uses cannot be automatically placed within any particular land use classification

and must be reviewed on an individual site basis through the conditional use permit

process."

The City's Municipal Code

       The Carlsbad Municipal Code (CMC) implemented the residential dwelling unit

caps mandated by Proposition E. (CMC, § 21.90.185.) It also differentiated between

commercial and residential dwelling units. (CMC, §§ 21.04.093, 21.04.115, 21.04.120.)

A " '[c]ommercial living unit' means a unit that may be within but is not limited to a

professional care facility, hotel, motel, time-share or bed and breakfast that provides the

                                              3
basic amenities for everyday living and may include but is not limited to a sleeping area

or bedroom(s), closet space, restroom, sitting/entertainment area and kitchen facilities.

Commercial living units are distinguished from dwelling units due to the

assistance/services provided in conjunction with the living unit and/or the use of the

living unit for temporary lodging." (CMC, § 21.04.093.) In contrast, a " '[d]welling'

means a building or portion thereof designed exclusively for residential purposes,

including one-family, two-family and multiple-family dwellings, but does not include

commercial living units" (CMC, § 21.04.115) and a " '[d]welling unit' means one or more

rooms in a dwelling or apartment house and designed for occupancy by one family for

living or sleeping purposes, and having only one kitchen" (CMC, § 21.04.120).

       The CMC also defined a "professional care facility" as a "facility in which food,

shelter, and some form of professional service is provided such as nursing, medical,

dietary, exercising or other medically recommended programs. Not included in this

definition are hospitals and mental hospitals." (CMC, § 21.04.295.) Professional care

facilities were permitted in the City with the approval of a conditional use permit in a

"residential density-multiple" (RD-M) zone, which included residential medium density,

residential medium-high density and residential high density land use designations as

specified in the General Plan.

The Project

       West Senior Living R/E, LLC applied to the City to develop the Project, a 305-

unit continuing care retirement community for elderly residents, and to relocate

recreational vehicle storage and a garden area on the subject property. The Project site

                                             4
consisted of 46 acres of undeveloped land within the City's northeast quadrant, which had

historically been used for agricultural purposes. The Project site was not located within

the coastal zone and was "characterized by two large hills . . . and low-lying terrain

located in the floodplain along the southern and northwestern boundaries."

       The Project proposed dividing the 46-acre site into three parcels. Parcel 1, the

largest of the three parcels, consisted of the continuing care retirement community. That

community included "58 detached single-story cottages, 166 apartment-style independent

living (IL) units, and a[n] 81-room/95-bed assisted living/Alzheimer facility." According

to a staff report to the City's Planning Commission, "[p]ursuant to [the CMC], the units

are classified as a professional care facility (CMC Section 21.04.295) as well as

commercial living units (CMC Section 21.04.093). In general, a [continuing care

retirement community] offers a continuum of care which includes housing and a wide

range of medical, social and recreational services for seniors. . . . [T]he [continuing care

retirement community] does not include a transfer of any real property or interest to the

residents. Because there is no transfer of title in the form of real estate, there are no

residential lots; instead, the residents enter into a contractual agreement which guarantees

a certain level of service and health care for an extended period of time."

       Each Project resident would be classified into five levels and charged monthly

dues according to their level of care. The five levels included "active," "slightly frail,"

"frail," "medically frail," and "memory impaired." The lowest level or "active" members

received services for things such as wellness and medication monitoring. On the other

end of the spectrum, "memory impaired" members received nursing and close

                                               5
supervision. Additionally, the community would be licensed by the California State

Department of Social Services as a "Continuing Care Retirement Community."

       The Project proposed developing Parcel 2 as a 2.1-acre recreational vehicle

storage area and a 2.8-acre garden area. Parcel 3 would be 1.21 acres of open space "to

preserve existing native upland habitat and to provide an area for on-site habitat-based

mitigation for the . . . [P]roject."

       The City's Planning Commission considered the Project and Environmental

Impact Report (EIR). The Planning Commission found that changing the General Plan

land use designations to residential medium for Parcels 1 and 2 (continuing care

retirement community and recreational vehicle/garden area) and open space for Parcel 3

was consistent with those land use designations. Further, the Planning Commission

determined that an associated zone change to RD-M, residential mobile home park and

open space was consistent with the General Plan to implement the new land use

designations. The Planning Commission stated, "the Zone Change is consistent with the

public convenience, necessity, and general welfare, and is consistent with sound planning

principles in that the residential and open space uses allowed by the proposed zone

change are compatible with the adjacent and future residential and open space uses."

       The Planning Commission concluded "[t]hat the requested use is necessary or

desirable for the development of the community, and is in harmony with the various

elements and objectives of the general plan . . . in that the proposed professional care

facility provides an alternative to the long-term residential, social, and health care needs

of elderly residents. The facility, which includes a combination of detached cottages,

                                              6
independent apartment-style independent living units as well as assisted living, offers a

continuum of care to minimize trauma associated with a transfer and allows for the

provision of social and health care services in a licensed setting. . . . [T]he professional

care facility is consistent with the Residential Medium Density (RM) General Plan Land

Use designation in that it will provide the elderly with a sense of community. In addition,

the [P]roject is consistent with the various elements and objectives of the General Plan in

that the [P]roject permanently preserves sensitive upland habitat and includes the

development of the core and frontage improvements for the extension of . . . a prime

arterial road . . . . [T]he General Plan recognizes the need and benefit for a variety of

housing, including uses such as the proposed professional care facility for seniors as well

as affordable housing."

       The Planning Commission voted to approve certain aspects of the Project and

recommended the City Council approve other aspects of the Project and Environmental

Impact Report (EIR). The approvals considered included a General Plan amendment,

zone change, residential mobile home park permit amendment, hillside development

permit, EIR, local facilities management plan amendment, HMP permit, site development

plan, special use permit and conditional use permit. The City Council incorporated the

Planning Commission's findings and approved the Project and EIR.

       Aviara filed a petition for writ of mandate in the trial court challenging the City's

decision. The trial court denied the petition in its entirety. In considering Aviara's

arguments concerning the residential dwelling unit caps mandated by Proposition E, the

trial court concluded that the Project consisted of "commercial living units, as

                                              7
distinguished from dwellings/dwelling units [citation], based upon the assistance/services

provided in conjunction with the living unit. . . . Since the [P]roject does not include

residential dwelling units it is not subject to the residential dwelling unit caps established

by Proposition E and the [P]roject approval was therefore not inconsistent with

Proposition E." Further, Aviara failed to show that the RD-M zone excluded uses other

than residential or that the residential medium General Plan designation precluded

"unique non-residential uses through the conditional use permit process."

                                        DISCUSSION

                             I. Proposition E and General Plan

       Aviara argues the City violated its Growth Management Plan because the City did

not comply with (1) Proposition E's cap on the construction or approval of dwelling units,

and (2) its General Plan by designating the Project as commercial rather than residential.

Because Proposition E by its terms amended the City's General Plan, both of Aviara's

arguments are essentially claims that the Project is inconsistent with the General Plan.

       A city's land use decisions must be consistent with its general plan. (Pfeiffer v.

City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1563 (Pfeiffer).) " ' " 'An

action, program, or project is consistent with the general plan if, considering all its

aspects, it will further the objectives and policies of the general plan and not obstruct

their attainment.' [Citation.]" [Citation.] State law does not require perfect conformity

between a proposed project and the applicable general plan . . . . [Citations.]' [Citation.]

In other words, 'it is nearly, if not absolutely, impossible for a project to be in perfect

conformity with each and every policy set forth in the applicable plan. . . . It is enough

                                               8
that the proposed project will be compatible with the objectives, policies, general land

uses and programs specified in the applicable plan. [Citations.]' " (Ibid.)

       "We review the agency's decision regarding consistency with the general plan

'directly and are not bound by the trial court's conclusions. [Citations.]' [Citation.] 'A

city's findings that the project is consistent with its general plan can be reversed only if it

is based on evidence from which no reasonable person could have reached the same

conclusion. [Citation.]' [Citation.] Thus, the party challenging a city's determination of

general plan consistency has the burden to show why, based on all of the evidence in the

record, the determination was unreasonable. [Citation.]" (Pfeiffer, supra, 200

Cal.App.4th at p. 1563.)

       Here, Aviara concedes that the Project's approval did not result in dwelling units in

excess of the cap mandated by Proposition E and the City's General Plan. Instead, Aviara

contends that by characterizing the Project as commercial, the City "violated Proposition

E and its own General Plan, essentially and illegally amending the voter-mandated caps."

Specifically, Aviara claims "[t]he failure to treat the . . . Project as a project for which the

cap is relevant results in a de facto amendment to the cap — the Project's 305 units have

the effect of pushing the total number of dwelling units located in the City's northeast

quadrant to 6,471 units [without the required voter approval]." Thus, Aviara's objections

in essence pertain to the City's classification of the Project as commercial rather than

residential and we center our analysis on that point.

       The General Plan limited the number of "residential dwelling units" in each

quadrant of the City. Although the General Plan did not define that term, the CMC

                                               9
differentiated between commercial and residential dwelling units. (CMC, §§ 21.04.093,

21.04.115, 21.04.120.) Of importance here, the CMC's definition of "commercial living

units" included professional care facilities. (CMC, § 21.04.093.) As "commercial living

units," professional care facilities fall outside the CMC's definition of a "dwelling."

(CMC, § 21.04.115.) Pursuant to the General Plan, professional care facilities are

permitted in RD-M zones with the approval of a conditional use permit.

       Aviara urges us to ignore the CMC because the distinction between "commercial

living units" and "dwelling units" is not found in Proposition E. However, where the

voters have passed an initiative, the City may enact ordinances that clarify and implement

the intent of the electorate. (Creighton v. City of Santa Monica (1984) 160 Cal.App.3d

1011, 1021.) This is precisely what the CMC does in this case. Contrary to Aviara's

suggestion, the City did not rewrite Proposition E through the CMC. Further, Aviara has

not shown that the CMC is contrary to the intent of the electorate. In our view, the CMC

is consistent with Proposition E's purpose to limit the number of residential dwelling

units in the City and the provisions differentiating between commercial and residential

dwelling units do not run afoul of this purpose.

       Although Aviara does not contest designation of the Project as a professional care

facility, it contends the Project should have been classified as residential rather than

commercial because the Project's residents will "dwell" there for more than a temporary

period. Whether a resident will "reside" or "dwell" in a unit is not the only consideration.

Rather, the CMC distinguishes "commercial living units" from "dwelling units" "due to



                                             10
the assistance/services provided in conjunction with the living unit and/or the use of the

living unit for temporary lodging." (CMC, § 21.04.093.)

       The record establishes the Project's facilities would provide residents with a range

of assistance including, medical, dietary, recreational and support services. Those

residents would enter into contractual agreements in which they received a continuum of

care depending on the level of their needs. The Project's medical and resident care

directors would periodically review each resident to assess and respond to changes in the

resident's functioning. Even the lowest level of care for "active" members included

wellness services and medication monitoring. Based on the continuum of assistance and

services provided, the City properly classified the Project as commercial as it fit the

CMC's definition of a "professional care facility" by providing "nursing, medical, dietary,

exercising or other medically recommended programs." (CMC, § 21.04.295.) As a

professional care facility, the Project's classification as "commercial living units" was not

inconsistent with Proposition E and the General Plan's limit on residential dwelling units.

       The City changed the General Plan land use designation for the parcel containing

the continuing care retirement community to residential medium density and, to

implement that new designation, it changed the zone to RD-M. Aviara contends these

amendments were inconsistent with the City's classification of the Project as commercial

rather than residential. We disagree.

       The City did not apply a "commercial" land use designation to the Project as set

forth in the Land Use Element of the General Plan. Instead, it changed the land use

designation to residential medium density and the zone to RD-M. There is nothing in the

                                             11
General Plan prohibiting "commercial living units" in a residential designation. Rather,

the General Plan recognized that "[w]ithin each land use designation, there exists the

potential for certain unique land uses for which there are no specific designations. Such

uses may include, but are not limited to churches or hospitals. These and other unique

types of uses cannot be automatically placed within any particular land use classification

and must be reviewed on an individual site basis through the conditional use permit

process." Professional care facilities are one of these unique uses permitted with the

approval of a conditional use permit in a RD-M zone, which includes the residential

medium land use designation.

       To support its argument that the City classified the Project as commercial merely

to avoid voter mandated caps on residential dwelling units, Aviara cites to the City's use

of the terms "dwelling units" and "residential" when the City discussed the Project. We

are not convinced by Aviara's argument as it cites to a reference to "dwelling units" in the

traffic impact portion of the City's environmental impact analysis and to the City's use of

the term "residential" in the Planning Commission's findings regarding the zone change

to RD-M. These references do not convince us that the City improperly approved the

Project within a residential medium density land use designation and RD-M zone.

       Aviara failed to meet its burden to show the City's determination that the Project

was consistent with the General Plan was unreasonable. (Pfeiffer, supra, 200

Cal.App.4th at p. 1563.)




                                            12
                                          II. HMP

A. Additional Background

       The City's HMP "is a long-range plan for conserving wildlife habitat while still

allowing for additional development to occur in the City. The plan establishes a wildlife

preserve system consisting of approximately 5,750 acres of existing and proposed open

space." Section 21.210.030 of the CMC requires "[a]ll development projects . . . in the

[C]ity [to] comply with the habitat preservation and conservation standards contained in

the [C]ity's [HMP]."

       The Project site is located in Zone 15 of the HMP. The planning standards for that

zone include "conserv[ing] all riparian habitats onsite, and prohibit[ing] fill or

development within the existing flood plain except where required for Circulation

Element roads, Drainage Master Plan facilities, or other essential infrastructure. . . .

When conversion of agricultural lands to other uses is proposed, set back all development

impacts at least 100 feet from existing wetland habitats and require habitat restoration or

enhancement in the riparian buffer areas."

       The HMP provided that "[w]hen impacts and measures have been identified, the

project proponent will submit the documentation to City's Planning Department for

review. . . . If the Planning Director determines that the measures are consistent with the

HMP and the conservation standards, the City will consult with the wildlife agencies and

begin CEQA review. If the measures are determined to be inconsistent with the HMP

and the standards, a revised proposal will be required. If wildlife agencies concur that the

measures are consistent, the project shall be considered consistent with the HMP."

                                              13
       The Project in this case would result in filling 5.09 acres of upland floodplain,

including 1.05 acres that was not for essential infrastructure. According to the EIR,

although the "Project [was] not independently consistent with the HMP relative to

prohibitions on floodplain filling," there was no net loss of floodplain because of

offsetting measures. As a result of the offsetting measures, the Project "would result in

an overall superior floodplain function and value than that being lost."

       The Project also did not strictly comply with the 100-foot buffer requirement in

three areas. The first and second areas were for sewer facilities and a storm drain,

respectively. The EIR explained that deviations for these items were allowed under the

City's Guidelines for Wetland and Riparian Buffers. The remaining area was for

realignment of an access road that would not significantly change the existing conditions

of the site.

       The U.S. Fish and Wildlife Service and California Department of Fish and Game

(the Wildlife Agencies) reviewed the Project. In regard to the three deviations from the

100-foot buffer requirement, the Wildlife Agencies determined that "[i]n each of these

situations, existing conditions preclude[d] the provision of a 100-foot buffer." The

Wildlife Agencies also considered floodplain fill associated with the Project and

determined that "1.05-acre[s] of Agua Hacienda Creek floodplain fill proposed for the

[continuing care retirement community] (non-essential infrastructure) is, strictly

speaking, non-compliant with the HMP's prohibition of fill or development within the

existing floodplain in Zone[ 15] . . . except where required for essential infrastructure."

They nevertheless concurred that the Project was consistent with the City's HMP. The

                                             14
Wildlife Agencies also noted that "the floodplain areas to be filled for non-essential

infrastructure (i.e., [continuing care retirement community]) contain low corridor values,

and (whether filled or restored) provide limited benefit to wildlife movement."

       The trial court found Aviara failed to show the Project did not meet HMP

guidelines for riparian buffers because the HMP "acknowledges that 100 foot buffers are

not always feasible and allows for reductions in buffer widths if sufficient information is

provided to determine that a buffer of lesser width will protect identified resources. The

record reflects that an exception is allowed for sewer facilities and that here it was

necessary to place a road serving only sewer maintenance within the 100 foot buffer, and

that a buffer of lesser width would protect the identified resources."

       Similarly, the trial court concluded Aviara failed to meet its burden to establish the

Project violated the HMP's prohibition of development of non-essential infrastructure in

the floodplain, reasoning the following: "The EIR explains that the overall floodplain

modifications proposed result in no net loss of floodplain and the proposed [P]roject

would result in an overall superior floodplain function in value than that being lost as

documented by the Wildlife Agencies."

B. The City's Request for Judicial Notice of the HMP Implementing Agreement

       In its respondent's brief, the City requests that we take judicial notice of an

Implementing Agreement between the City and the Wildlife Agencies. The trial court

declined to take judicial notice of the Implementing Agreement because it was not part of

the administrative record. The City concedes that the Implementing Agreement was not

part of the record, but argues we should take judicial notice of it because the HMP, which

                                             15
was a part of the administrative record, states the Implementing Agreement was part of

that document.

       To obtain judicial notice by a reviewing court, the requesting party must file a

separate motion stating (1) why the matter to be noticed is relevant to the appeal,

(2) whether the matter was presented to the trial court and, if so, whether the trial court

took judicial notice of the matter, (3) if judicial notice was not taken by the trial court,

why the matter is subject to judicial notice under Evidence Code sections 451, 452, or

453, and (4) whether the matter relates to proceedings occurring after the judgment or

order subject to appeal. (Cal. Rules of Court, rule 8.252(a).)

       The City made its request as part of its respondent's brief in this appeal. We

decline to consider the request because the City has not complied with the California

Rules of Court, rule 8.252, governing requests for judicial notice in this court. (Canal

Ins. Co. v. Tackett (2004) 117 Cal.App.4th 239, 243.) Even if the City had complied with

the California Rules of Court, we would deny its request for judicial notice because we

may not consider evidence outside the administrative record. (Western States Petroleum

Assn. v. Superior Court (1995) 9 Cal.4th 559, 565 [quasi-legislative actions]; Fort

Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574,

1594-1596 [quasi-judicial actions].)

C. Floodplain Fill

       Aviara argues substantial evidence did not support the EIR's findings pertaining to

floodplain fill. Specifically, Aviara contends the HMP prohibited 1.05 acres of the



                                              16
Project's 5.09 acres of floodplain fill because it was not for essential infrastructure and

the HMP did not allow for offsetting measures. We reject these arguments.

        In reviewing an agency's actions under California Environmental Quality Act, we

consider only whether the agency prejudicially abused its discretion, either by failing to

proceed in a manner required by law or by making a decision unsupported by substantial

evidence. (Laurel Heights Improvement Assn. v. Regents of University of California

(1988) 47 Cal.3d 376, 392.)

       Here, the EIR adequately mitigated and analyzed the Project's impact on the

floodplain. The EIR noted that as a result of the offsetting measures, the Project "would

result in an overall superior floodplain function and value than that being lost."

Moreover, there was no net loss of floodplain. Aviara contends any offset was irrelevant

because the HMP required strict compliance with its prohibition on floodplain fill.

Although the HMP prohibits fill in existing floodplain except in circumstances not

relevant to the challenged 1.05 acres in this case, it also provides that "[i]f [W]ildlife

[A]gencies concur that [conservation] measures are consistent [with the HMP and

conservation standards], the [P]roject shall be considered consistent with the HMP."

       The Wildlife Agencies reviewed the Project and recognized that the 1.05 acres of

floodplain fill to accommodate the Project's continuing care retirement community was

not strictly compliant with the HMP's prohibition on floodplain fill. Yet, the Wildlife

Agencies concurred that the Project was consistent with the City's HMP, finding the

floodplain area to be filled had low corridor values and provided limited benefit to



                                              17
wildlife movement. Accordingly, we conclude the City did not violate the HMP by

approving the Project's EIR which allowed floodplain fill with offsetting measures.

D. 100-Foot Buffer Requirement

      Aviara argues the Project violates the HMP's requirement to set back all

development impacts at least 100 feet from existing wetland habitats. We reject this

argument.

      "From time to time, the city planner may, upon review by the city attorney,

prepare guidelines to assist in the implementation of [Habitat Preservation and

Management Requirements] or the HMP, including but not limited to, wetland

preservation and mitigation. The city planner shall have the authority to approve and

publish any guidelines." (CMC, § 21.210.90.) The City's Guidelines for Wetland and

Riparian Buffers permitted alternative buffer configurations where the buffers were

reduced minimally below the 100-foot buffer requirement but preserved the resource for

which buffers are required.

      Here, the Project did not comply with the 100-foot buffer requirement in three

areas. Two of those areas were for sewer facilities and a storm drain. As the EIR

explained, the City's Guidelines for Wetland and Riparian Buffers permitted deviances

from the buffer requirements for these uses. The remaining buffer deviance was for

realignment of an access road that would not significantly change the existing conditions

of the site. The Wildlife Agencies considered the three exceptions to the HMP's buffer

requirements but nevertheless concurred that the Project was consistent with the HMP.



                                            18
       Aviara does not cite to any authority prohibiting the City from adopting guidelines

to assist in the implementation of the HMP or explain how those guidelines are contrary

to the HMP's purpose. Instead, Aviara merely argues the " 'guidelines' are not part of the

HMP and it is the HMP with which the Project must comply." This is not a sufficient

argument to persuade us. Aviara also fails to explain how each of the three areas of

deviation are inconsistent the with City's Guidelines for Wetland and Riparian Buffers.

Accordingly, we reject Aviara's argument pertaining to the HMP's buffer requirements.

                                     DISPOSITION

       The judgment is affirmed. Respondents are entitled to their costs on appeal.



                                                                      MCINTYRE, J.

WE CONCUR:

HALLER, Acting P. J.

MCDONALD, J.




                                            19
