Preview
1 RUTAN & TUCKER, LLP
Matthew D. Francois (State Bar No. 181871)
2 mfrancois@rutan.com
David P. Lanferman (State Bar No. 71593)
3 dlanferman@rutan.com
Jayson A. Parsons (SBN 330458)
4 jparsons@rutan.com
455 Market Street, Suite 1870
5 San Francisco, CA 94105
Telephone: 650-263-7900
6 Facsimile: 650-263-7901
7 Attorneys for Respondent,
CITY OF PETALUMA and
8 Real Party In Interest,
SAFEWAY INC.
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF SONOMA
12 SAVE PETALUMA, Case No. SCV-264378
13 Petitioner, ASSIGNED FOR ALL PURPOSES TO
HON. BRADFORD DEMEO COURTROOM 17
14 vs.
OBJECTIONS TO PROPOSED ORDER
15 CITY OF PETALUMA,
Date: November 29, 2023
16 Respondent. Time: 3:00 p.m.
Dept.: 17
17
Petition Filed: May 6, 2019
18 SAFEWAY, INC., and DOES 1-20 Dismissed: July 18, 2023
19 Real Party in Interest.
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2783/031700-0003
19996230.1 a12/05/23 OBJECTIONS TO PROPOSED ORDER
1 Respondent CITY OF PETALUMA (“Respondent”) and Real Party In Interest SAFEWAY
2 INC. (“Real Party”) hereby object to the Proposed Order Granting Petitioner’s Motion for Award
3 of Attorneys’ Fees submitted by Petitioner SAVE PETALUMA (“Petitioner”).
4 1. The fees listed on Page 2 of the Proposed Order for the Administrative Proceedings
5 and Litigation do not appear to accurately reflect the fees incurred by Soluri Meserve according to
6 their supporting declarations. Specifically, in his Declaration in Support of Petitioner’s Motion for
7 Award of Attorneys’ Fees, Patrick Soluri states that he reduced or eliminated hours for multiple
8 time entries. (Soluri Decl., ¶¶ 3, 20.) However, not all of those reductions appear to be reflected in
9 the time entries attached hereto as Exhibit 1. For example, the 12/3/18 and 1/28/19 entries are for
10 13 hours and the 3/1/19 entry is for 8 hours, all of which supposedly include a 2 hour reduction for
11 travel time. Similarly, the hearing on 10/9/19, which lasted less than one hour, is billed by Mr.
12 Soluri as 6.5 hours and Osha Meserve as 5 hours, both of which supposedly include a 2 hour
13 reduction for travel time. Mr. Soluri’s attendance at a January 23, 2020 Case Management
14 Conference is billed as 5.5 hours, which also supposedly includes a 2 hour reduction for travel time.
15 Unless otherwise substantiated, each of the time entries included in Exhibit 1 should be reduced by
16 2 hours to reflect the reduction for travel time Mr. Soluri stated that he applied to those entries, and
17 the total fees shown on page 2 of the Proposed Order should be reduced accordingly.
18 2. The Proposed Order refers to the Order After Hearing dated October 9, 2019 (the
19 “October 2019 Order”) denying the motion to strike and overruling the demurrer as being roughly
20 81 pages long. (Proposed Order, Exhibit 1, pp. 3, 7.) A true and correct copy of the October 2019
21 Order is attached hereto as Exhibit 2. The October 2019 Order addressed three motions (e.g., the
22 motion to strike, demurrer, and stay/preliminary injunction) and is 25 pages long. The portions
23 dealing with the motion to strike and demurrer consisted of approximately 22 pages.
24 Dated: December 5, 2023 RUTAN & TUCKER, LLP
25
26 By:
Matthew D. Francois
27 Attorneys for Respondent CITY OF
PETALUMA and Real Party in Interest
28 SAFEWAY INC.
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2783/031700-0003
19996230.1 a12/05/23 OBJECTIONS TO PROPOSED ORDER
EXHIBIT 1
a. 12/3/18 PMS
b. 1/28/19 PMS:
c. 3/1/19 PMS
d. 4/1/19 PMS
e. 8/1/19 PMS
f. 9/24/19 PMS
g. 10/9/19 PMS
h. 10/9/19 ORM
i. 1/23/20 PMS
EXHIBIT 2
Fl LeD
SUPERIOR COURT Of CALIFORNIA
THE HONORABLE ARTHUR A. WICK COUNTY OF SONOMA
l SUPERIOR COURT OF CALIFORNIA
2
COUNTY OF SONOMA OCT 2 1 2019
3035 Cleveland Avenue
3
Santa Rosa, CA 95403
Telephone: (707) 521-6725 BY A/
Deputy Clerk
4
5
6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
7
8
SAVE PET ALUMA, Case Nos. SCV-264378
9
Petitioner, ORDER AFTER HEARING
10 OCTOBER 9, 2019
vs.
11
CITY OF PETALUMA,
12
Respondent,
13
SAFEWAY, INC., and DOES 1-20
14
Real Parties in Interest.
15
a--------------------1
16
This matter came before the Court on October 9, 2019 in Department 17 before The
17
Honorable Arthur A. Wick for oral argument regarding the Court's previously announced
18
tentative ruling. Counsels Patrick Soluri and Osha Meserve appeared on behalf of Petitioner Save
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Petaluma. Counsel Matthew Francois appeared on behalf of Respondent City of Petaluma and
20
Real Party in Interest Safeway Inc. Counsel Joran Green appeared on behalf of Respondent City
21
of Petaluma.
22
Special Motion to Strike the Second Cause of Action DENIED. Respondent
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("Respondent" or "R") and Real Party in Interest ("RPI") bring a special motion to strike the
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second cause of action for administrative writ of mandate based on the claim that Respondent
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denied Petitioner ("Petitioner" or "P") and the public a fair hearing. They argue that this cause of
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action arises from protected activity because it is based on RPI' s alleged threatening
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communications to Respondent that RPI would sue Respondent for monetary damages if
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1 Respondent did not approve the Project, thereby improperly influencing Respondent's decision.
2 This argument is unpersuasive. Although RPI' s allegedly threatening statements
3 themselves would appear to be protected activity subject to the anti-SLAPP statute, the claim
4 does not arise from that activity and does not attack or address that conduct in any way.
5 Petitioner is not suing RPI and is not attacking the statements RPI made. Instead, Petitioner
6 seeks a petition for writ of mandate on the basis that Respondent improperly and secretly gave in
7 to these alleged threats by preemptively deciding that it would approve the Project regardless of
8 the merits of the proceedings or the opposition's arguments, without regard to the applicable
9 requirements, including the California Environmental Quality Act (4'CEQA"), and without
10 disclosing this to the public. Petition is therefore merely seek a writ of mandate on the basis that
11 Respondent's conduct denied Petitioner and the public due process and the right to a fair hearing.
12 Demurrer OVERRULED.
13 The court finds it appropriate to note that this is a demurrer, not a final hearing on the
14 merits. The burden thus rests with the demurring parties to demonstrate as a matter of law that
15 the causes of action fail for the reasons asserted, in contrast to the final hearing on the merits
16 where the petitioner generally bears the burden of demonstrating its claim. This also means,
17 since the administrative record has not yet been provided, that the court's analysis is limited to
18 the pleadings and what little judicially noticeable material has been provided, documents which
19 at this point are a small, disjointed selection of excerpts from the proceedings below.
20
21 I st Cause of Action (CEQA): Exhaustion of Administrative Remedies
22 R and RPI argue that P failed to exhaust administrative remedies by failing to raise these
23 issues in the proceedings below.
24 According to PRC section 21177, "[a] person shall not maintain an action or proceeding
25 unless that person objected to the approval of the project orally or in writing during the public
26 comment period provided by this division or prior to the close of the public hearing on the
27 project before the filing of the notice of determination." This does not, however, bar an
28 association or organization formed after approval from raising a challenge which one of its
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1 constituent members had raised, directly or by agreeing with or supporting another's comments.
2 PRC section 21177(c). Moreover,someone may file a legal challenge based on an issue as long
3 as "any person" raised that issue during the review process. PRC section 21 l77(a); see Friends
4 of Mammoth v. Board of Supervisors ( 1972) 8 Cal.3d 247, 267-268. It also does not apply to any
5 grounds of which the agency did not give required notice and for which there was no hearing or
6 opportunity to be heard. PRC section 21 l 77(e). A party challenging a decision under CEQA
7 cannot,to exhaust administrative remedies,rely merely on "general objections" or ''unelaborated
8 comments." Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523,535; Coalition for
9 Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197. However, "[l]ess
10 specificity is required to preserve an issue for appeal in an administrative proceeding than in a
11 judicial proceeding ...." Citizens Association for Sensible Development of Bishop Area v. County
12 of Inyo (1985) 172 Cal.App.3d 151, 163.
13 In North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013)
14 216 Cal.App.41h 614,the court stated, at 623, that "' "[R]elatively ... bland and general
15 references to environmental matters" [ ],or "isolated and unelaborated comment[s]"' do not
16 satisfy the exhaustion requirement. [Citation.] Rather," '[t]he "exact issue" must have been
17 presented to the administrative agency...." ' [Citation.]" In North Coast,the court found that P
18 had exhausted administrative remedies on adequacy of mitigation measures because comments
19 include an assertion that there was inadequate discussion of mitigation, mitigation ignored the
20 sought side of the project, and there would be an "unmitigated significant visual impact."
21 P baldly alleges, in conclusory terms,that it "has exhausted administrative remedies"
22 without specifying what these are or how it exhausted them. However, this is not the end of the
23 analysis.
24 The petition expressly demonstrates that CEQA issues were clearly public long before the
25 final hearing. R's Planning Commission ("Commission") had approved both the MND and the
26 Project S PAR on June 26, 2018, leading members of P to appeal the Commission's decision,
27 resulting in the hearings before R's City Council ("Council") which culminated in the Council's
28 challenged final decision in April 2019.
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1 Rand RPI claim that the opponents in appealing the Commission's June2018 decision
2 appealed only the SPARapproval, not the MND approval and that the CEQA determination
3 ended with the Commission's CEQA notice of determination (NOD) of June 28, 2018.
4 As noted, P admits that the Commission approved the MND on June26,2018. Rand
5 RPI show that Rissued an NOD for the MND on June 28, 2018, citing the decision of June 26,
6 2018, posting it June 29, 2018. RJN Ex.A. In RJN Ex.B, Rand RPI show that the subsequent
7 appeal of the Commission's decision set forth a list of issues and impacts which they claim
8 warrant rejecting the Project. Nothing in the appealindicates what part of the Commission's
9 decision they were or were not appealing. It does not say that it is an appeal of only the SPAR; it
10 instead simply seeks an appeal of the Commission's decision. In fact, the issues it does raise
11 seem to be exactly the types of impacts which would be considered in CEQA review, not SPAR
12 review. The petition alleges that Rissued its final NOD for the Project MND on April 5, 2019,
13 after the final hearing. P shows that P did raise the CEQA issues, and Council did consider the
14 CEQA issue, during the hearings after the appeal from the original Commission decision and
15 NOD. They also allege that the Council's original December2018 decision on the project
16 included a decision not to certify the MND, showing that it was on issue in the appeal and that R
17 was clearly aware of that, directly ruling on it.
18 P's RJN seeks judicial notice of R's.final NOD for the Project MND, which was in fact
19 issued on April5, 2019, after the final hearing at issue.
20 Ironically, although the March 2019 e-mail from P's member McEachin, on which Rand
21 RPI rely, is not judicially noticeable, it actually shows that while she had "never heard of an EIR"
22 at the time of the appeal, she specifically raises CEQA-related issues. This e-mail was submitted
23 during the hearing process on the appeal before the Council.
24 In their reply, Respondent and RPI contend that in an agenda for September17,2018, city
25 staff"characterized" the appeal as only to the SPAR, not the CEQA MND approval. However,
26 this is based on an improper RJN submitted with th.e reply, which should have been provided
27 originally. In any case, it is not persuasive at all. First, the mere fact that "city staff' had
28 "characterized" the appeal as only being to the SPAR approval and not MND approval is not
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1 dispositive and in fact it is not even clear what this means. Second, the "characterization" is
2 limited to a crossed out item in the agenda mentioning the appeal, calling at an appeal from the
3 "Approval of Site Plan and Architectural Review for the Safeway Fuel Center Project." It was
4 merely an identification of the appeal resolution, it was crossed out and continued to October
5 2018, and the mere fact that it was called thus on the agenda does not mean that it was correct or
6 that in fact that is all that the appeal was. Third, Respondent and RPI also admit that P claimed
7 in a letter of 1 4Sept.201 8 that an EIR was required, clearly showing that P was raising the
8 CEQA issue in the appeal prior to this agenda which was continued anyway. Fourth, as
9 explained, nothing in the appeal itself limits it to the SPAR approval. It is an appeal of the
10 decision regarding the Project without limitation to what was being appealed. Fifth, that appeal
11 clearly raises CEQA issues, environmental impacts. Sixth, Respondent ultimately did consider
12 the MND on the appeal, so even if some staff had at some point "characterized" it is only an
13 appeal of the SPAR, rightly or wrongly, the city ultimately changed that position and addressed
14 the MND in the appeal. It was not until after the appeal was concluded that, in April 2019, the
15 city issued the final NOD for the MND, based on the appeal decision.
16 R and RPI also argue that under Tahoe Vista Concerned Citizens v. County of Placer
17 (2000) 81 Cal.App.4th 577, P needed to state in the appeal from the Commission decision "we
18 want an EIR" but there is no support for this interpretation.
19 In Tahoe Vista, the petitioners raises their objections to the ND at the original hearing
20 before the planning commission but they clearly failed to raise the issue in their appeal of the
21 planning commission's decision and the record was.absolutely clear on this point. As the court
22 explained, at 592-593, in pertinent part and with emphasis added,
23
Here, plaintiffs' appeal placed only the conditional use permit before the Board ...
24 and only with regard to parking. The appeal form provided a specific notation by
which plaintiffs could have appealed the Planning Commission's approval of the
25 negative declaration, but plaintiffs did not specify they were appealing ... decision
on that point. Such a failure to raise an issue in an administrative appeal after
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raising the issue in the first . .. hearing constitutes a failure to exhaust
27 administrative remedies .... [ Citation.]
28 Furthermore, staffclearly stated at the appeal hearing the only matter before the
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Board. .. was the issue of parking. At no time did plaintiffs ... otherwise disagree
1
with staffs statements. In fact, after County staff presented the appeal as
2 concerning only parking, plaintiffs' representative stated: "In-that's true the
[County staff] accurately characterized the issue, however, I guess what we
3 disagree with is-is the staffs interpretation of adequate parking .... " (Italics added.)
4 Plaintiffs thus agreed before the Board ... that parking was the only concern of
their appeal.
5
6 In this case,it is impossible to find,based on the information presented,that Ps did not
7 appeal the CEQA issues specific to the MND. They did not use specific CEQA terms such as
8 EIR or MND,etc.,but the points which they listed as the bases of their appeal are clearly and
9 inherently CEQA issues of environmental impacts; they are not ministerial,design-review
10 issues. Moreover,unlike Tahoe Vista, R and RPI here have failed to demonstrate that the appeal
11 form included a specific portion expressly asking if the appeal is limited to just design review or
12 if it specifically includes CEQA claims. Although it is not dispositive that R's Council
13 considered and approved the MND during the appeal proceedings,and later issued the April
14 NOD, it at least indicates on its face that the appeal involved the adequacy of the MND. Nothing
15 provided to the court demonstrates that it was not,and that this was included merely as a
16 formality as in Tahoe Vista. In fact, what little which was provided demonstrates that the
17 Council actually initially decided to reject the MND in December,indicating that it at least felt
18 that the sufficiency of the MND was at issue on appeal.
19 In light of the procedural posture ofthis hearing,a demurrer where the burden lies with
20 the demurring parties,the court is particularly hesitant to find as a matter of law that at no time
21 did anyone exhaust administrative remedies,based solely on the exceedingly limited and
22 disjointed excerpts of the underlying proceedings which have been provided to the court.
23 The court finds that it does not yet appear, based on the pleadings and judicially
24 noticeable matters presented,that P failed to exhaust administrative remedies.
25
26 Statute of Limitations
27 R and RPI also argue that the SOL bars the CEQA claim. A 30-day SOL applies to
28 approval of a project with an EIR or ND. PRC section 2 1 167(b),(c),(e); 2 1 152.
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1 P filed this action on May 6, 2019, within 30 days of the NOD, which was issued April 5,
2 2019. R and RPI contend that the 30-day SOL began to run on June 29, 2018, but that is based
3 on the original NOD from the Commission, not the final NOD by the Council, which was
4 published April 5, 2019.
5 The petition appears to be timely based on the material before the court.
6
7 Substantive Issues
8 R and R PI contend that CEQA does not apply because R had no discretion to consider or
9 mitigate the Project's impacts.
10 CEQA of course only applies to "discretionary projects" and not to projects that are
11 purely "ministerial." PRC section 21080, (a), (b); Guidelines 15268, 15357, 15369; Mountain
12 Lion Foundation v. Fish & Game Com. (1997) 16 Cal.41h 105, 112.
13 A "project" is broadly defined as "an activity which may cause either a direct physical
14 change in the environment, or a reasonably foreseeable indirect physical change in the
15 environment" and may include " [a]n activity that involves the issuance to a person of a...
16 permit.. .." PRC section 21065.
17 A "discretionary project" is one that "requires the exercise of judgment or deliberation
18 when the public agency or body decides to approve or disapprove a particular activity, as
19 distinguished from situations where the public agency or body merely has to determine whether
20 there has been conformity with applicable statutes, ordinances, or regulations." Guideline 15357.
21 A "ministerial project" is one involving "little or no personal judgment by the public
22 official as to the wisdom or manner of carrying out the project. The public official merely
23 applies the law to the facts as presented but uses no, special discretion or judgment in reaching a
24 decision. A ministerial decision involves only the use offixed standards or objective
25 measurements, and the public official cannot use personal, subjective judgment in deciding
26 whether or how the project should be carried out." Guideline 15369; see also Mountain Lion
27 Foundation v. Fish & Game Com. ( 1997) 16 Cal.41� I 05, 117. Guideline l 5268(a) adds that
28 "[t]he determination of what is 'ministerial' can most appropriately be made by the particular
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1 agency. . . based upon its analysis ofits own laws, and each public agency should make such
2 determination either as part of its implementing regulations or on a case-by-case basis."
3 Projects that have both ministerial and discretionary qualities are treated as discretionary
4 under CEQA. Guideline 15268(d); Miller v. City ofHermosa Beach ( 1 993) 1 3 Cal.App .4th 1 1 18,
5 1 139.
6 CEQA Guidelines also set forth standard for determining when actions are
7 "presumptively" ministerial or discretionary. Guideline 15268; Friends of Westwood, Inc. v. City
8 ofLos Angeles ( 1 987) 1 9 1 Cal.App.3d 259, 269-27 1 . Guideline 15268(b) states, with emphasis
9 added :
10
"In the absence of any discretionary provision contained in the local ordinance or
11 other law establishing the requirements for the permit, license, or other
entitlement for use, the following actions shall be presumed to be ministerial :
12 "( 1) Issuance ofbuilding permits ...."
13
As the court stated in Friends of Westwood, at 269-270 , this demonstrates that "it is
14
apparent the presumption [that a permit is ministerial] arises only where a precondition exists -
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the public entity must retain no discretion in connection with issuance ofthe building permit. But
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if the ordinances governing building permits contain 'any discretionary provision ' the
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presumption is not just dissolved; it simply fails to come into existence." The Friends of
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Westwood court ultimately concluded at 27 1 that "issuance of a building permit [is]
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'presumptively ministerial' only where the agency has no power to exercise its personal
20
judgment as to the manner any phase of a project is carried out but instead only has the power to
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determine whether zoning allows the structure to be built and whether it satisfies strength
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requirements, and nothing more , and then only when those decisions involve application offixed
23
standards and objective measurements." Emphasis original.
24
The court, at 27 1 , further explained that courts, such as the Supreme Court in the seminal
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case of Friends ofMammoth v. Board ofSupervisors ( 1 972) 8 Cal.3d 247, have consistently
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interpreted this authority to afford the broadest environmental protection and to apply even to
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projects that are mostly, but not wholly, ministerial.
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1 In determining if an approval is discretionary or ministerial, courts do not simply accept
2 the agency's characterization of the approval but instead apply the "functional test" articulated in
3 Friends of Westwood, Inc. v. City ofLos Angeles (1987)191 Cal.App.3 d2 59 and Friends ofthe
4 Juana Briones House v. City ofPalo Alto (2010 )190 Cal.App.4th286, at302 . See Sierra Club
5 v. County ofSonoma (201 7)11 Cal.App.5 th11 ,22 -23. To determine if an action is discretionary
6 or ministerial, courts look at both the language of the applicable ordinance, regulation or statute
7 governing the approval process and the facts regarding the specific approval at issue, the manner
8 in which the agency treated the project approval. See Mountain Lion Foundation v. Fish &
9 Game Com. (1997)16 Cal.4th10 5, 118. In Mountain Lion, at118, the Supreme Court first
10 looked at the language governing the approval process and then at the facts of the actual approval
11 itself, noting there that "[t]he procedural facts of this case provide ample evidence of the
12 Commission's exercise of discretion. " At the same time, '" 'CEQA does not apply to an agency
13 decision simply because the agency may exercise some discretion in approving the project or
14 undertaking. Instead[,] to trigger CEQA compliance, the discretion must be of a certain kind; it
15 must provide the agency with the ability and authority to "mitigate ... environmental damage " to
16 some degree.' " [Citation.] Sierra Clu b v. County ofSonoma, supra,23.
17 In McCorkle Eastside Neighborhood Group v. City ofSt. Helena (2018)31 Cal.App.5 th
18 80 , the court of appeal found that the city did not improperly delegate decision-making authority
19 to the planning commission and discretion limited solely to design review did not implicate
20 environmental effects or CEQA. The court in McCorkle, at92 , noted that it was critical that the
21 city's "discretion was limited to design review, given that no use permit was required for" the
22 project in the applicable zoning because the zoning which applied expressly allowed the project
23 at issue. As the court explained, when a use is consistent with the applicable zoning and a use
24 permit either is not required or has already been obtained, issuance of a building permit is usually
25 ministerial act. See also Friends ofDavis v. City ofDavis (2000 )83 Cal.App.4th1004, 1010 -
26 1011 .
27 As explained in Bowman v. C ity ofBerkeley (2004)122 Cal.App.4th 572 , at 592 ,
28 "we do not believe that our Legislature in enacting CEQA... intended to require an
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EIR where the sole environme ntal impact is the aesthetic merit of a building in a
1
highly developed area. [Citations.] To rule otherwise would mean that an EIR
2 would be required for every urban building project that is not exempt under
CEQA i f enough people could be marshaled to complain about how it will look."
3 At the same time, it also noted that "there may be situations where it is unclear
4 whether an aesthetic impact like the one alleged here arises in a 'particularly
sensitive' context [Citation] where it could be considered environmentally
5 significant. ..." Although local laws cannot preempt CEQA , "aesthetic issues like
the one raised here are ordinarily the province of local design review, not
6 CEQA." Bowman, supra, 593.
7
The court in McCorkle, at 94, similarly noted that C EQA does not apply to review which
8
is limited solely to design review "which cannot be used to i mpose environmental conditions." It
9
noted that
10
11 Appellants argue that because the City had discretion to conduct design review the
entire project was discretionary and subject to CEQA. (See CEQA Guidelines §
12 15268(d) .) They rely on authorities stating that where a project involves both
13 discretionary and ministerial approvals, the entire project will be deemed
discretionary. [ Citations .] But this rule applies only when the discretionary
14 component o f the project gives the agency the authority to mitigate environmental
impacts.
15
16 The decisions in No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, at 74, and
17 Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, at 1371-1372, found that CEQA sets
18 forth a three-stage process for determining if environmental review pursuant to CEQA is
19 necessary and, i f so, what level. The agency first determines if C EQA applies, determining if the
20 activity is a "project" and not "exempt." Only i fit finds that the activity is a project and not
21 exempt from CEQA does it proceed to the second and third steps , determining whether the
22 project may have significant environmental effects, preparing an initial study then potentially
23 determining if a N D or EIR is required.
24 Determining if the project is discretionary or ministerial is part o fthe first step,
25 determining whether C EQA applies a nd requires some level o f environmental review. PRC
26 section 21080 states when C EQA applies and sets forth the exemptions from CEQA. It states
27 that CEQA only applies to "discretionary projects" while subdivision (b) lists exemptions , stating
28 [t]his division does not apply to any of the following activities ." The first listed, subdivision
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(b)( l), states that CEQA does not apply to "[m]inisterial projects proposed to be carried out or
2 approved by public agencies ."
3 P alleges that the Project approval is discretionary and subject to CEQA because it
4 requ ired Site Plan and Architectural Review (SPAR) approval which expressly gave R discretion
5 regarding the specific sit ing of any improvement, the style, materials, harmony with the area and
6 nearby buildings in terms of materials, positioning, size, shape, height, and color . Pet. 1130-32.
7 P points out that R's Implementing Zon ing Ordinance (IZO) governing S PARs expressly states
8 t hat the city may, in conducting S PA R review, approve a project as is, approve with
9 modifications, or disapprove . It also states that the decision to approve or impose modifications,
10 oy deny may be based on the need to "promote the orderly and harmonious development of the
11 C ity"; and may use "any controls" to ensure satisfactory quality in the building and "site"
12 "harmony. . . with its surroundings," involving a list of factors but states that these are "among
13 other things" which the ordinance leaves open. The I ZO section 1 .040, governing the I ZO
14 applicability, also states that the "provisions . . . shall be m inimum requirements for the promotion
15 of the public health, safety, and general welfare" and when it "provides for discretion ... that
16 d iscretion may be exercised to impose more stringent requirements . . . necessary to promote
17 appropriate land use and development, environment resource protection, and other purposes of
18 this Zoning Ordinance ."
19 P notes that in McCorkle, where the site review was found to be m in isterial and not
20 subject to CEQA, not hing showed t hat the controlling ordinance contained such broad language
21 while R's Commission in fact distinguished the McCork/e on this very basis. R's Commission
22 stated that the ordinance in Mccorkle had no provisions equivalent to those governing R's
23 review, determ ining that the Mccorkle ordinance constrained the city's authority to design
24 review grounds but that the Petaluma ordinance included broad language regarding the other
25 considerations noted above . See Pet .,iso, Soluri Ex Parte Dec ., Ex.8, p .5 .
26 Critically, despite that language seem ingly focusing o n the S PAR approval, this Project
27 and lawsuit involve a CEQA document, the MND. An MND was in fact prepared for the Project
28 and R, through both its Comm ission and Council, approved the MND and approved the Project
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1 based on the CEQA analysis in the MND, while P also alleges a challenge to the MND approval.
2 Approval of an MND is by definition a CEQA decision. It necessarily involves discretion and
3 application of CEQA standards. The NOD expressly states that the approval imposed mitigation
4 measures which will reduce impacts t o less than significant, an ND "was prepared for this project
5 pursuant to CEQA. with mitigation [sic]." Mitigation measures were expressly on the face of
6 the determinations made a condition of approval, and findings were "made pursuant to the
7 provisions of CEQA." The Council 's decision denying the appeal and approving the Project
8 does not state that the decision was ministerial and instead states that the basis for the
9 determination was "that there is no substantial evidence that the Project will have a significant
10 effect on the environment ." Thus, in the end, R expressly conducted CEQA review and
11 approved the Project based on apparently discretionary CEQA determinations, findings, and
12 mitigation approvals.
13 R and RPI contend that the ordinance governing design review here is substantially the
14 same as the one found to be ministerial in Mccorkle. It may be that they are largely similar, but
15 that does not defeat P 's claims as a matter of law. One key factor which R and RPI ignore in this
16 part of the analysis is the fact that here R actually performed CEQA review, issuing and
17 approving a negative declaration, which would not have been necessary if R's decision had been
18 ministerial. While a city's interpretation of whether its review in accord with its ordinance is
19 ministerial or discretionary is not conclusive, it is a factor to consider. If R found its ordinance to
20 have discretionary elements and undertook review in a discretionary manner, regardless of
21 similarity to another ordinance found to be ministerial, that at least may raise the potential that
22 this decision involved discretion and the court must allow the matter to move beyond demurrer.
23 Here, R's own Commission clearly felt that the ordinance involved discretion and R approved a
24 CEQA document, the MND, which by definition is discretionary and is only needed for a
25 discretionary decision.
26 With respect t o the design-review ordinance in McCorkle, the court there, at 92-93, listed
27 the specific issues which the ordinance stated could be considered and noted that the city council
28 properly found that these did not allow for consideration of non-design-review matters.
- 12 -
1 By contrast, the ordinances governing SPAR proceedings here included, aside from other
2 general language such as that regarding discretionary conditions, the following specific language
3 in IZO section 1.040, with emphasis added: the "provisions . . . shall be minimum requirements
4 for the promotion of the public health, safety, and general welfare" and when it "provides for
5 discretion . . . that discretion may be exercised to impose more stringent requirements. . . necessary
6 to promote appropriate land use and development, environment resource protection, and other
7 purposes of this Zoning Ordinance." This on its face is more broad and open-ended than the
8 ordinance language set forth in McCorkle. Also unlike the ordinance in McCorkle, it allows
9 determinations on specific issues of "environmental resource protection" as well as "public
10 health, safety, and general welfare," which seem to go beyond simple issues of design review and
11 inherently raise issues considered under CEQA. Health, safety and general welfare may cover a
12 broad range of items, including environmental impacts affecting those issues, and they clearly go
13 beyond normal design review items. "Environmental resources protection" by its very
14 terminology seemingly on its face contemplates issues regarding the environment and even
15 reflects the very title of the code governing CEQA, the Public Resources Code.
16 R and RPI also argue that R later imposed a moratorium on such approvals in order to
17 consider injecting discretion into what was a ministerial process. This is not necessarily so and is
18 hardly dispositive as a matter of law. It does not mean that the law in force governing this
19 Project was ministerial and merely because an agency says that its approval is ministerial does
20 not mean that it actually is according to CEQA. Again, as noted above, R apparently found that
21 this Project approval was discretionary and subject to CEQA since it expressly approved the
22 Project based on findings regarding environmental impacts with an MND imposing mitigation
23 measures. Nothing here shows that the mitigation measures imposed and findings of impacts
24 were ministerial. The allegations and judicially noticeable documents only indicate that these
25 determinations were made. Moreover, an MND is a specifically CEQA document and prepared
26 only for discretionary approvals. If the Project approval was in fact ministerial, or at least ifR
27 found it to be ministerial, then R would never have done CEQA review because, as the parties all
28 agree and as explained above, CEQA does not apply to ministerial approvals.
- 13 -
1 The fact that R conducted CEQA review and approved an MND reflects a determination
2 that CEQA applied . lfR found that C EQA did not apply, then it would never have reached the
3 analysis of the MND.
4 R and RPI more strenuously a sserted at the hearing that merely because an agency has
5 conducted CEQA review does not mean that it needed to and that an agency whose CEQA
6 document has been challenged may rely on a CEQA exempt ion to defeat that challenge even if
7 raised for the first t ime in litigation . This argument is based on Rominger v. County of Colusa
8 (20 14) 229 Cal.App.4th 690, at 700 ; Sierra Club v. County of Sonoma (20 17) 1 1 Cal .App.5 1h 1 1,
9 at 3 1; and Del Cerro Mobile Estates v. City of Placentia (20 1 1) 197 Cal.App.4th 173.
10 R and RPI rely mo st on Del Cerro, where petitioner challenged the adequacy of an EIR
11 and the agency demurred to the petition on the basis that the project was statutorily exempt from
12 CEQA so that it never needed to conduct an EIR. The trial court agreed, sustaining the demurrer,
13 and the court of appeal affirmed.
14 Although Del Cerro was decided on demurrer, that court expressly pointed to reasoning
15 based on several specific factors set forth in detail at 179- 180, not present here . First, the
16 decision was based on factual points set forth in the record which were clear and expressly stated
17 to be not in dispute, including the type of project at issue, it s details, and its scope. Second, the
18 Del Cerro project, a railroad grade separation project, was clearly, by its very definition on the
19 face of the law, exempt from CEQA by a specific CEQA statute expressly applying to that very
20 type of project, PRC section 2 1080. 13, and the fact that the exemption applied to the type of
21 project at issue was not in dispute . The petitioner only disputed the legal application of the
22 statute in light of the scope of the project which, as noted, was clear and not in dispute. Third,
23 the exemption was based on a specific CEQA statute in the Public Resources Code itself.
24 Fourth , the court noted that the exemption reflected the legislature's statement of public policy
25 favoring railroad grade separation project s and that the court could not interfere with that clear
26 statement of public policy.
27 In contrast to the Del Cerro case, each ofthese factors is missing or unclear in the matter
28 before this court . First, many key facts here are unclear, incomplete, and in dispute. The record
- 14 -
1 has not been provided, the allegations show CEQA application on their face, and the judicially
2 noticeable documents which have been provided, in light of the facts and procedural events so far
3 explained to the court, raise only the possibility that the project was exempt or that no
4 discretionary review was required or conducted. Second, no statute expressly exempts this
5 specific type ofproject from CEQA review and this project here only may be exempt from
6 CEQA and only may lack discretionary review based on the specific details ofthe applicable
7 ordinance, project, and proceedings. Third, the determination as to whether this project is
8 discretionary or ministerial rests with analysis of a local agency's ordinance, not a CEQA statute,
9 which does not direct ly address the application of CEQA but which requires legal analysis of that
10 ordinance 's language and potentially the facts of the project and proceedings at issue. Fourth,
11 there is no clear indication on public policy favoring projects such as this.
12 In R ominge r,the matter was decided at the hearing on the merits, not at demurrer stage,
13 and with the full record available. The court again ruled that the agency was able to assert the
14 CEQA exemption even though it had conducted CEQA review. It expressly pointed out,
15 however, that this argument was permissible because the agency had at a ll times expressly stated
16 that the CEQA review was unnecessary since CEQA did not apply and that it was conducting
17 CEQA review for "informational" purposes only. The case before this court is only at demurrer
18 stage, the record is not available, and it is not apparent that R actually made it clear that it was
19 conducting CEQA review even though it felt that CEQA did not apply.
20 In S ie rra Club, the appellate court affirmed this court's decision that a project approval
21 was ministerial even though the governing ordinance governed approvals both ministerial and
22 discretionary. The appellate court noted that given the fact that the approvals at issue were
23 ministerial, the agency did not make the decision discretionary simply by adding additional
24 seemingly discretionary requirements.
25 In short, R and RPI are correct that the mere fact that R conducted CEQA review and
26 approved the MND does not mean that the approval here was discretionary and subject to CEQA
27 and does not bar them from raising that argument. However, at this point, on demurrer, it is
28 impossible to make this determination as a matter of law. Unlike R ominger and Sierra Club ,
- 15 -
1 there is no record yet before the court and the court's analysis is limited to the pleadings in the
2 petition and what little judicially noticeable material has been provided . Also unlike those cases,
3 the burden at this point rests with R and RPI to dempnstrate that CEQA did not apply as a matter
4 of law. When the court reaches the actual hearing on the merits, the burden of showing that
5 CEQA applies will rest with P and this alone may dictate an opposite outcome .
6 In the end, R conducted CEQA review, which on is face raises the application of CEQA.
7 There is insufficient information before this court at this point to allow it to determine, as a
8 matter oflaw, that the CEQA review was not required .
9 The court finds that this petition attacks at least a potentially discretionary CEQA
10 determination.
11
12 2nd COA : Writ of Mandate for Failure to Provide a Fair Hearing
13 In the second COA, P also seeks a of mandate pursuant to C CP section 1094.5 on the
writ
14 ground that R prejudicially abused its discretion and failed to provide a fair hearing one two
15 grounds. The first is that the Council, believing that its decision either way would be the subject
16 of litigation, privately assessed the financial exposure of the different litigation alternatives
17 which would ensure depending on which way R decided, chose to approve the Project. The
18 second basis asserted here is that the Council improperly and incorrectly decided that it had no
19 authority to modify, condition, or deny the Project based on environmental, health, or safety
20 impacts.
21
22 Decision to Avoid RPI's Lawsuit
23 Tumey v. Ohio (1927) 273 U.S. 510 and its progeny establish two main types of
24 challenges for violation of due process based on structural bias . Alpha Epsilon Phi Tau Chapter
25 Housing Ass n' v. City of Ber keley (9 th Cir.1997) 114F .3d 840, 844. Proceedings violate due
26 process where the decisionmaker has a "direct, personal, substantial pecuniary interest" in the
27 proceedings. Tumey , 523; Alpha Epsilon , 844. Eveµ if the decisionmaker lacks a personal
28 interest, due process may also be violated where the decisionmaker 's inst itutional
- 16 -
1 responsibilities, provide "so strong a motive" to rule in a way that would aid the institution.
2 Tumey, 532; Alpha Epsilon, 844.
3 As explained in Today's Fresh Start, Inc. v. Los Angeles County Office ofEducation
4 (2013) 57 Cal.4th 197, at 212, due process standards rooted in both the federal and state
5 constitutions are the bas is of the right to a fair hearing before an impartial adjudicator. It added,
6
Beyond these broad outlines, however, the precise dictates of due process are
7 flex ible and vary according to context . (Mathews v. Eldridge, supra, 424 U.S. at
p. 334, 96 S.Ct. 893 [" ' "[d]ue process," unlike some legal rules, is not a
8 technical conception with a fixed content unrelated to time, place and
circumstances' "]; Oberholzer v. Commission on Judicial Performance (1999) 20
9
Cal.4th 371, 391 & fn. 16, 84 Cal.Rp tr.2d 466, 975 P.2d 663.)
10
11 In Ward v. Village ofMonroeville (1972) 409 U.S. 57, the U. S. Supreme Court found
12 there to be a pecuniary interest such as to v iolate due process where a village mayor as a judge
13 trying traffic and ordinance violations and imposing fines that contributed a " 'substantial
14 portion' " of the village's budget. It concluded that this arrangement offered an impermissible "
15 'possible temptation' " to partisansh ip. "In Ward, the mayor-cum-judge had an impermissible
16 incentive to maximize v illage revenue-for which he was responsible and from which h is own
17 salary was paid-at the expense of p arties for whom he bore no responsibility." Today 's Fresh
18 Start, 217. The fines at issue provided between one third and one half of the v illage revenue.
19 In Today 's Fresh Start, a charter school challenged the d istrict's revocation of its charter
20 on the ground that the board had a pecuniary interest s ince the district has an obl igation to
21 maximize its funding, the charter school competed with the district's own revenue by taking
22 students from the district's own schools,and therefore the d istrict had a financial incentive to
23 revoke the charter . The court found there to be no pecuniary interest that v iolated due process in
24 Today 's Fresh Start, but explained that this was in part due to the lack of evidence in the record,
25 w ith nothing supporting the petitioner's claim that it directly competed w ith the district's own
26 funding , explaining, at 217-218,that "charter schools are public schools for academic and
27 fun
Preview
1 RUTAN & TUCKER, LLP Matthew D. Francois (State Bar No. 181871) 2 mfrancois@rutan.com David P. Lanferman (State Bar No. 71593) 3 dlanferman@rutan.com Jayson A. Parsons (SBN 330458) 4 jparsons@rutan.com 455 Market Street, Suite 1870 5 San Francisco, CA 94105 Telephone: 650-263-7900 6 Facsimile: 650-263-7901 7 Attorneys for Respondent, CITY OF PETALUMA and 8 Real Party In Interest, SAFEWAY INC. 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SONOMA 12 SAVE PETALUMA, Case No. SCV-264378 13 Petitioner, ASSIGNED FOR ALL PURPOSES TO HON. BRADFORD DEMEO COURTROOM 17 14 vs. OBJECTIONS TO PROPOSED ORDER 15 CITY OF PETALUMA, Date: November 29, 2023 16 Respondent. Time: 3:00 p.m. Dept.: 17 17 Petition Filed: May 6, 2019 18 SAFEWAY, INC., and DOES 1-20 Dismissed: July 18, 2023 19 Real Party in Interest. 20 21 22 23 24 25 26 27 28 -1- 2783/031700-0003 19996230.1 a12/05/23 OBJECTIONS TO PROPOSED ORDER 1 Respondent CITY OF PETALUMA (“Respondent”) and Real Party In Interest SAFEWAY 2 INC. (“Real Party”) hereby object to the Proposed Order Granting Petitioner’s Motion for Award 3 of Attorneys’ Fees submitted by Petitioner SAVE PETALUMA (“Petitioner”). 4 1. The fees listed on Page 2 of the Proposed Order for the Administrative Proceedings 5 and Litigation do not appear to accurately reflect the fees incurred by Soluri Meserve according to 6 their supporting declarations. Specifically, in his Declaration in Support of Petitioner’s Motion for 7 Award of Attorneys’ Fees, Patrick Soluri states that he reduced or eliminated hours for multiple 8 time entries. (Soluri Decl., ¶¶ 3, 20.) However, not all of those reductions appear to be reflected in 9 the time entries attached hereto as Exhibit 1. For example, the 12/3/18 and 1/28/19 entries are for 10 13 hours and the 3/1/19 entry is for 8 hours, all of which supposedly include a 2 hour reduction for 11 travel time. Similarly, the hearing on 10/9/19, which lasted less than one hour, is billed by Mr. 12 Soluri as 6.5 hours and Osha Meserve as 5 hours, both of which supposedly include a 2 hour 13 reduction for travel time. Mr. Soluri’s attendance at a January 23, 2020 Case Management 14 Conference is billed as 5.5 hours, which also supposedly includes a 2 hour reduction for travel time. 15 Unless otherwise substantiated, each of the time entries included in Exhibit 1 should be reduced by 16 2 hours to reflect the reduction for travel time Mr. Soluri stated that he applied to those entries, and 17 the total fees shown on page 2 of the Proposed Order should be reduced accordingly. 18 2. The Proposed Order refers to the Order After Hearing dated October 9, 2019 (the 19 “October 2019 Order”) denying the motion to strike and overruling the demurrer as being roughly 20 81 pages long. (Proposed Order, Exhibit 1, pp. 3, 7.) A true and correct copy of the October 2019 21 Order is attached hereto as Exhibit 2. The October 2019 Order addressed three motions (e.g., the 22 motion to strike, demurrer, and stay/preliminary injunction) and is 25 pages long. The portions 23 dealing with the motion to strike and demurrer consisted of approximately 22 pages. 24 Dated: December 5, 2023 RUTAN & TUCKER, LLP 25 26 By: Matthew D. Francois 27 Attorneys for Respondent CITY OF PETALUMA and Real Party in Interest 28 SAFEWAY INC. -2- 2783/031700-0003 19996230.1 a12/05/23 OBJECTIONS TO PROPOSED ORDER EXHIBIT 1 a. 12/3/18 PMS b. 1/28/19 PMS: c. 3/1/19 PMS d. 4/1/19 PMS e. 8/1/19 PMS f. 9/24/19 PMS g. 10/9/19 PMS h. 10/9/19 ORM i. 1/23/20 PMS EXHIBIT 2 Fl LeD SUPERIOR COURT Of CALIFORNIA THE HONORABLE ARTHUR A. WICK COUNTY OF SONOMA l SUPERIOR COURT OF CALIFORNIA 2 COUNTY OF SONOMA OCT 2 1 2019 3035 Cleveland Avenue 3 Santa Rosa, CA 95403 Telephone: (707) 521-6725 BY A/ Deputy Clerk 4 5 6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA 7 8 SAVE PET ALUMA, Case Nos. SCV-264378 9 Petitioner, ORDER AFTER HEARING 10 OCTOBER 9, 2019 vs. 11 CITY OF PETALUMA, 12 Respondent, 13 SAFEWAY, INC., and DOES 1-20 14 Real Parties in Interest. 15 a--------------------1 16 This matter came before the Court on October 9, 2019 in Department 17 before The 17 Honorable Arthur A. Wick for oral argument regarding the Court's previously announced 18 tentative ruling. Counsels Patrick Soluri and Osha Meserve appeared on behalf of Petitioner Save 19 Petaluma. Counsel Matthew Francois appeared on behalf of Respondent City of Petaluma and 20 Real Party in Interest Safeway Inc. Counsel Joran Green appeared on behalf of Respondent City 21 of Petaluma. 22 Special Motion to Strike the Second Cause of Action DENIED. Respondent 23 ("Respondent" or "R") and Real Party in Interest ("RPI") bring a special motion to strike the 24 second cause of action for administrative writ of mandate based on the claim that Respondent 25 denied Petitioner ("Petitioner" or "P") and the public a fair hearing. They argue that this cause of 26 action arises from protected activity because it is based on RPI' s alleged threatening 27 communications to Respondent that RPI would sue Respondent for monetary damages if 28 -I- 1 Respondent did not approve the Project, thereby improperly influencing Respondent's decision. 2 This argument is unpersuasive. Although RPI' s allegedly threatening statements 3 themselves would appear to be protected activity subject to the anti-SLAPP statute, the claim 4 does not arise from that activity and does not attack or address that conduct in any way. 5 Petitioner is not suing RPI and is not attacking the statements RPI made. Instead, Petitioner 6 seeks a petition for writ of mandate on the basis that Respondent improperly and secretly gave in 7 to these alleged threats by preemptively deciding that it would approve the Project regardless of 8 the merits of the proceedings or the opposition's arguments, without regard to the applicable 9 requirements, including the California Environmental Quality Act (4'CEQA"), and without 10 disclosing this to the public. Petition is therefore merely seek a writ of mandate on the basis that 11 Respondent's conduct denied Petitioner and the public due process and the right to a fair hearing. 12 Demurrer OVERRULED. 13 The court finds it appropriate to note that this is a demurrer, not a final hearing on the 14 merits. The burden thus rests with the demurring parties to demonstrate as a matter of law that 15 the causes of action fail for the reasons asserted, in contrast to the final hearing on the merits 16 where the petitioner generally bears the burden of demonstrating its claim. This also means, 17 since the administrative record has not yet been provided, that the court's analysis is limited to 18 the pleadings and what little judicially noticeable material has been provided, documents which 19 at this point are a small, disjointed selection of excerpts from the proceedings below. 20 21 I st Cause of Action (CEQA): Exhaustion of Administrative Remedies 22 R and RPI argue that P failed to exhaust administrative remedies by failing to raise these 23 issues in the proceedings below. 24 According to PRC section 21177, "[a] person shall not maintain an action or proceeding 25 unless that person objected to the approval of the project orally or in writing during the public 26 comment period provided by this division or prior to the close of the public hearing on the 27 project before the filing of the notice of determination." This does not, however, bar an 28 association or organization formed after approval from raising a challenge which one of its -2- 1 constituent members had raised, directly or by agreeing with or supporting another's comments. 2 PRC section 21177(c). Moreover,someone may file a legal challenge based on an issue as long 3 as "any person" raised that issue during the review process. PRC section 21 l77(a); see Friends 4 of Mammoth v. Board of Supervisors ( 1972) 8 Cal.3d 247, 267-268. It also does not apply to any 5 grounds of which the agency did not give required notice and for which there was no hearing or 6 opportunity to be heard. PRC section 21 l 77(e). A party challenging a decision under CEQA 7 cannot,to exhaust administrative remedies,rely merely on "general objections" or ''unelaborated 8 comments." Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523,535; Coalition for 9 Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197. However, "[l]ess 10 specificity is required to preserve an issue for appeal in an administrative proceeding than in a 11 judicial proceeding ...." Citizens Association for Sensible Development of Bishop Area v. County 12 of Inyo (1985) 172 Cal.App.3d 151, 163. 13 In North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 14 216 Cal.App.41h 614,the court stated, at 623, that "' "[R]elatively ... bland and general 15 references to environmental matters" [ ],or "isolated and unelaborated comment[s]"' do not 16 satisfy the exhaustion requirement. [Citation.] Rather," '[t]he "exact issue" must have been 17 presented to the administrative agency...." ' [Citation.]" In North Coast,the court found that P 18 had exhausted administrative remedies on adequacy of mitigation measures because comments 19 include an assertion that there was inadequate discussion of mitigation, mitigation ignored the 20 sought side of the project, and there would be an "unmitigated significant visual impact." 21 P baldly alleges, in conclusory terms,that it "has exhausted administrative remedies" 22 without specifying what these are or how it exhausted them. However, this is not the end of the 23 analysis. 24 The petition expressly demonstrates that CEQA issues were clearly public long before the 25 final hearing. R's Planning Commission ("Commission") had approved both the MND and the 26 Project S PAR on June 26, 2018, leading members of P to appeal the Commission's decision, 27 resulting in the hearings before R's City Council ("Council") which culminated in the Council's 28 challenged final decision in April 2019. -3 - 1 Rand RPI claim that the opponents in appealing the Commission's June2018 decision 2 appealed only the SPARapproval, not the MND approval and that the CEQA determination 3 ended with the Commission's CEQA notice of determination (NOD) of June 28, 2018. 4 As noted, P admits that the Commission approved the MND on June26,2018. Rand 5 RPI show that Rissued an NOD for the MND on June 28, 2018, citing the decision of June 26, 6 2018, posting it June 29, 2018. RJN Ex.A. In RJN Ex.B, Rand RPI show that the subsequent 7 appeal of the Commission's decision set forth a list of issues and impacts which they claim 8 warrant rejecting the Project. Nothing in the appealindicates what part of the Commission's 9 decision they were or were not appealing. It does not say that it is an appeal of only the SPAR; it 10 instead simply seeks an appeal of the Commission's decision. In fact, the issues it does raise 11 seem to be exactly the types of impacts which would be considered in CEQA review, not SPAR 12 review. The petition alleges that Rissued its final NOD for the Project MND on April 5, 2019, 13 after the final hearing. P shows that P did raise the CEQA issues, and Council did consider the 14 CEQA issue, during the hearings after the appeal from the original Commission decision and 15 NOD. They also allege that the Council's original December2018 decision on the project 16 included a decision not to certify the MND, showing that it was on issue in the appeal and that R 17 was clearly aware of that, directly ruling on it. 18 P's RJN seeks judicial notice of R's.final NOD for the Project MND, which was in fact 19 issued on April5, 2019, after the final hearing at issue. 20 Ironically, although the March 2019 e-mail from P's member McEachin, on which Rand 21 RPI rely, is not judicially noticeable, it actually shows that while she had "never heard of an EIR" 22 at the time of the appeal, she specifically raises CEQA-related issues. This e-mail was submitted 23 during the hearing process on the appeal before the Council. 24 In their reply, Respondent and RPI contend that in an agenda for September17,2018, city 25 staff"characterized" the appeal as only to the SPAR, not the CEQA MND approval. However, 26 this is based on an improper RJN submitted with th.e reply, which should have been provided 27 originally. In any case, it is not persuasive at all. First, the mere fact that "city staff' had 28 "characterized" the appeal as only being to the SPAR approval and not MND approval is not - 4- 1 dispositive and in fact it is not even clear what this means. Second, the "characterization" is 2 limited to a crossed out item in the agenda mentioning the appeal, calling at an appeal from the 3 "Approval of Site Plan and Architectural Review for the Safeway Fuel Center Project." It was 4 merely an identification of the appeal resolution, it was crossed out and continued to October 5 2018, and the mere fact that it was called thus on the agenda does not mean that it was correct or 6 that in fact that is all that the appeal was. Third, Respondent and RPI also admit that P claimed 7 in a letter of 1 4Sept.201 8 that an EIR was required, clearly showing that P was raising the 8 CEQA issue in the appeal prior to this agenda which was continued anyway. Fourth, as 9 explained, nothing in the appeal itself limits it to the SPAR approval. It is an appeal of the 10 decision regarding the Project without limitation to what was being appealed. Fifth, that appeal 11 clearly raises CEQA issues, environmental impacts. Sixth, Respondent ultimately did consider 12 the MND on the appeal, so even if some staff had at some point "characterized" it is only an 13 appeal of the SPAR, rightly or wrongly, the city ultimately changed that position and addressed 14 the MND in the appeal. It was not until after the appeal was concluded that, in April 2019, the 15 city issued the final NOD for the MND, based on the appeal decision. 16 R and RPI also argue that under Tahoe Vista Concerned Citizens v. County of Placer 17 (2000) 81 Cal.App.4th 577, P needed to state in the appeal from the Commission decision "we 18 want an EIR" but there is no support for this interpretation. 19 In Tahoe Vista, the petitioners raises their objections to the ND at the original hearing 20 before the planning commission but they clearly failed to raise the issue in their appeal of the 21 planning commission's decision and the record was.absolutely clear on this point. As the court 22 explained, at 592-593, in pertinent part and with emphasis added, 23 Here, plaintiffs' appeal placed only the conditional use permit before the Board ... 24 and only with regard to parking. The appeal form provided a specific notation by which plaintiffs could have appealed the Planning Commission's approval of the 25 negative declaration, but plaintiffs did not specify they were appealing ... decision on that point. Such a failure to raise an issue in an administrative appeal after 26 raising the issue in the first . .. hearing constitutes a failure to exhaust 27 administrative remedies .... [ Citation.] 28 Furthermore, staffclearly stated at the appeal hearing the only matter before the -5- Board. .. was the issue of parking. At no time did plaintiffs ... otherwise disagree 1 with staffs statements. In fact, after County staff presented the appeal as 2 concerning only parking, plaintiffs' representative stated: "In-that's true the [County staff] accurately characterized the issue, however, I guess what we 3 disagree with is-is the staffs interpretation of adequate parking .... " (Italics added.) 4 Plaintiffs thus agreed before the Board ... that parking was the only concern of their appeal. 5 6 In this case,it is impossible to find,based on the information presented,that Ps did not 7 appeal the CEQA issues specific to the MND. They did not use specific CEQA terms such as 8 EIR or MND,etc.,but the points which they listed as the bases of their appeal are clearly and 9 inherently CEQA issues of environmental impacts; they are not ministerial,design-review 10 issues. Moreover,unlike Tahoe Vista, R and RPI here have failed to demonstrate that the appeal 11 form included a specific portion expressly asking if the appeal is limited to just design review or 12 if it specifically includes CEQA claims. Although it is not dispositive that R's Council 13 considered and approved the MND during the appeal proceedings,and later issued the April 14 NOD, it at least indicates on its face that the appeal involved the adequacy of the MND. Nothing 15 provided to the court demonstrates that it was not,and that this was included merely as a 16 formality as in Tahoe Vista. In fact, what little which was provided demonstrates that the 17 Council actually initially decided to reject the MND in December,indicating that it at least felt 18 that the sufficiency of the MND was at issue on appeal. 19 In light of the procedural posture ofthis hearing,a demurrer where the burden lies with 20 the demurring parties,the court is particularly hesitant to find as a matter of law that at no time 21 did anyone exhaust administrative remedies,based solely on the exceedingly limited and 22 disjointed excerpts of the underlying proceedings which have been provided to the court. 23 The court finds that it does not yet appear, based on the pleadings and judicially 24 noticeable matters presented,that P failed to exhaust administrative remedies. 25 26 Statute of Limitations 27 R and RPI also argue that the SOL bars the CEQA claim. A 30-day SOL applies to 28 approval of a project with an EIR or ND. PRC section 2 1 167(b),(c),(e); 2 1 152. -6 - 1 P filed this action on May 6, 2019, within 30 days of the NOD, which was issued April 5, 2 2019. R and RPI contend that the 30-day SOL began to run on June 29, 2018, but that is based 3 on the original NOD from the Commission, not the final NOD by the Council, which was 4 published April 5, 2019. 5 The petition appears to be timely based on the material before the court. 6 7 Substantive Issues 8 R and R PI contend that CEQA does not apply because R had no discretion to consider or 9 mitigate the Project's impacts. 10 CEQA of course only applies to "discretionary projects" and not to projects that are 11 purely "ministerial." PRC section 21080, (a), (b); Guidelines 15268, 15357, 15369; Mountain 12 Lion Foundation v. Fish & Game Com. (1997) 16 Cal.41h 105, 112. 13 A "project" is broadly defined as "an activity which may cause either a direct physical 14 change in the environment, or a reasonably foreseeable indirect physical change in the 15 environment" and may include " [a]n activity that involves the issuance to a person of a... 16 permit.. .." PRC section 21065. 17 A "discretionary project" is one that "requires the exercise of judgment or deliberation 18 when the public agency or body decides to approve or disapprove a particular activity, as 19 distinguished from situations where the public agency or body merely has to determine whether 20 there has been conformity with applicable statutes, ordinances, or regulations." Guideline 15357. 21 A "ministerial project" is one involving "little or no personal judgment by the public 22 official as to the wisdom or manner of carrying out the project. The public official merely 23 applies the law to the facts as presented but uses no, special discretion or judgment in reaching a 24 decision. A ministerial decision involves only the use offixed standards or objective 25 measurements, and the public official cannot use personal, subjective judgment in deciding 26 whether or how the project should be carried out." Guideline 15369; see also Mountain Lion 27 Foundation v. Fish & Game Com. ( 1997) 16 Cal.41� I 05, 117. Guideline l 5268(a) adds that 28 "[t]he determination of what is 'ministerial' can most appropriately be made by the particular •7- 1 agency. . . based upon its analysis ofits own laws, and each public agency should make such 2 determination either as part of its implementing regulations or on a case-by-case basis." 3 Projects that have both ministerial and discretionary qualities are treated as discretionary 4 under CEQA. Guideline 15268(d); Miller v. City ofHermosa Beach ( 1 993) 1 3 Cal.App .4th 1 1 18, 5 1 139. 6 CEQA Guidelines also set forth standard for determining when actions are 7 "presumptively" ministerial or discretionary. Guideline 15268; Friends of Westwood, Inc. v. City 8 ofLos Angeles ( 1 987) 1 9 1 Cal.App.3d 259, 269-27 1 . Guideline 15268(b) states, with emphasis 9 added : 10 "In the absence of any discretionary provision contained in the local ordinance or 11 other law establishing the requirements for the permit, license, or other entitlement for use, the following actions shall be presumed to be ministerial : 12 "( 1) Issuance ofbuilding permits ...." 13 As the court stated in Friends of Westwood, at 269-270 , this demonstrates that "it is 14 apparent the presumption [that a permit is ministerial] arises only where a precondition exists - 15 the public entity must retain no discretion in connection with issuance ofthe building permit. But 16 if the ordinances governing building permits contain 'any discretionary provision ' the 17 presumption is not just dissolved; it simply fails to come into existence." The Friends of 18 Westwood court ultimately concluded at 27 1 that "issuance of a building permit [is] 19 'presumptively ministerial' only where the agency has no power to exercise its personal 20 judgment as to the manner any phase of a project is carried out but instead only has the power to 21 determine whether zoning allows the structure to be built and whether it satisfies strength 22 requirements, and nothing more , and then only when those decisions involve application offixed 23 standards and objective measurements." Emphasis original. 24 The court, at 27 1 , further explained that courts, such as the Supreme Court in the seminal 25 case of Friends ofMammoth v. Board ofSupervisors ( 1 972) 8 Cal.3d 247, have consistently 26 interpreted this authority to afford the broadest environmental protection and to apply even to 27 projects that are mostly, but not wholly, ministerial. 28 -8- 1 In determining if an approval is discretionary or ministerial, courts do not simply accept 2 the agency's characterization of the approval but instead apply the "functional test" articulated in 3 Friends of Westwood, Inc. v. City ofLos Angeles (1987)191 Cal.App.3 d2 59 and Friends ofthe 4 Juana Briones House v. City ofPalo Alto (2010 )190 Cal.App.4th286, at302 . See Sierra Club 5 v. County ofSonoma (201 7)11 Cal.App.5 th11 ,22 -23. To determine if an action is discretionary 6 or ministerial, courts look at both the language of the applicable ordinance, regulation or statute 7 governing the approval process and the facts regarding the specific approval at issue, the manner 8 in which the agency treated the project approval. See Mountain Lion Foundation v. Fish & 9 Game Com. (1997)16 Cal.4th10 5, 118. In Mountain Lion, at118, the Supreme Court first 10 looked at the language governing the approval process and then at the facts of the actual approval 11 itself, noting there that "[t]he procedural facts of this case provide ample evidence of the 12 Commission's exercise of discretion. " At the same time, '" 'CEQA does not apply to an agency 13 decision simply because the agency may exercise some discretion in approving the project or 14 undertaking. Instead[,] to trigger CEQA compliance, the discretion must be of a certain kind; it 15 must provide the agency with the ability and authority to "mitigate ... environmental damage " to 16 some degree.' " [Citation.] Sierra Clu b v. County ofSonoma, supra,23. 17 In McCorkle Eastside Neighborhood Group v. City ofSt. Helena (2018)31 Cal.App.5 th 18 80 , the court of appeal found that the city did not improperly delegate decision-making authority 19 to the planning commission and discretion limited solely to design review did not implicate 20 environmental effects or CEQA. The court in McCorkle, at92 , noted that it was critical that the 21 city's "discretion was limited to design review, given that no use permit was required for" the 22 project in the applicable zoning because the zoning which applied expressly allowed the project 23 at issue. As the court explained, when a use is consistent with the applicable zoning and a use 24 permit either is not required or has already been obtained, issuance of a building permit is usually 25 ministerial act. See also Friends ofDavis v. City ofDavis (2000 )83 Cal.App.4th1004, 1010 - 26 1011 . 27 As explained in Bowman v. C ity ofBerkeley (2004)122 Cal.App.4th 572 , at 592 , 28 "we do not believe that our Legislature in enacting CEQA... intended to require an -9- EIR where the sole environme ntal impact is the aesthetic merit of a building in a 1 highly developed area. [Citations.] To rule otherwise would mean that an EIR 2 would be required for every urban building project that is not exempt under CEQA i f enough people could be marshaled to complain about how it will look." 3 At the same time, it also noted that "there may be situations where it is unclear 4 whether an aesthetic impact like the one alleged here arises in a 'particularly sensitive' context [Citation] where it could be considered environmentally 5 significant. ..." Although local laws cannot preempt CEQA , "aesthetic issues like the one raised here are ordinarily the province of local design review, not 6 CEQA." Bowman, supra, 593. 7 The court in McCorkle, at 94, similarly noted that C EQA does not apply to review which 8 is limited solely to design review "which cannot be used to i mpose environmental conditions." It 9 noted that 10 11 Appellants argue that because the City had discretion to conduct design review the entire project was discretionary and subject to CEQA. (See CEQA Guidelines § 12 15268(d) .) They rely on authorities stating that where a project involves both 13 discretionary and ministerial approvals, the entire project will be deemed discretionary. [ Citations .] But this rule applies only when the discretionary 14 component o f the project gives the agency the authority to mitigate environmental impacts. 15 16 The decisions in No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, at 74, and 17 Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, at 1371-1372, found that CEQA sets 18 forth a three-stage process for determining if environmental review pursuant to CEQA is 19 necessary and, i f so, what level. The agency first determines if C EQA applies, determining if the 20 activity is a "project" and not "exempt." Only i fit finds that the activity is a project and not 21 exempt from CEQA does it proceed to the second and third steps , determining whether the 22 project may have significant environmental effects, preparing an initial study then potentially 23 determining if a N D or EIR is required. 24 Determining if the project is discretionary or ministerial is part o fthe first step, 25 determining whether C EQA applies a nd requires some level o f environmental review. PRC 26 section 21080 states when C EQA applies and sets forth the exemptions from CEQA. It states 27 that CEQA only applies to "discretionary projects" while subdivision (b) lists exemptions , stating 28 [t]his division does not apply to any of the following activities ." The first listed, subdivision - 10 - (b)( l), states that CEQA does not apply to "[m]inisterial projects proposed to be carried out or 2 approved by public agencies ." 3 P alleges that the Project approval is discretionary and subject to CEQA because it 4 requ ired Site Plan and Architectural Review (SPAR) approval which expressly gave R discretion 5 regarding the specific sit ing of any improvement, the style, materials, harmony with the area and 6 nearby buildings in terms of materials, positioning, size, shape, height, and color . Pet. 1130-32. 7 P points out that R's Implementing Zon ing Ordinance (IZO) governing S PARs expressly states 8 t hat the city may, in conducting S PA R review, approve a project as is, approve with 9 modifications, or disapprove . It also states that the decision to approve or impose modifications, 10 oy deny may be based on the need to "promote the orderly and harmonious development of the 11 C ity"; and may use "any controls" to ensure satisfactory quality in the building and "site" 12 "harmony. . . with its surroundings," involving a list of factors but states that these are "among 13 other things" which the ordinance leaves open. The I ZO section 1 .040, governing the I ZO 14 applicability, also states that the "provisions . . . shall be m inimum requirements for the promotion 15 of the public health, safety, and general welfare" and when it "provides for discretion ... that 16 d iscretion may be exercised to impose more stringent requirements . . . necessary to promote 17 appropriate land use and development, environment resource protection, and other purposes of 18 this Zoning Ordinance ." 19 P notes that in McCorkle, where the site review was found to be m in isterial and not 20 subject to CEQA, not hing showed t hat the controlling ordinance contained such broad language 21 while R's Commission in fact distinguished the McCork/e on this very basis. R's Commission 22 stated that the ordinance in Mccorkle had no provisions equivalent to those governing R's 23 review, determ ining that the Mccorkle ordinance constrained the city's authority to design 24 review grounds but that the Petaluma ordinance included broad language regarding the other 25 considerations noted above . See Pet .,iso, Soluri Ex Parte Dec ., Ex.8, p .5 . 26 Critically, despite that language seem ingly focusing o n the S PAR approval, this Project 27 and lawsuit involve a CEQA document, the MND. An MND was in fact prepared for the Project 28 and R, through both its Comm ission and Council, approved the MND and approved the Project - 11 - 1 based on the CEQA analysis in the MND, while P also alleges a challenge to the MND approval. 2 Approval of an MND is by definition a CEQA decision. It necessarily involves discretion and 3 application of CEQA standards. The NOD expressly states that the approval imposed mitigation 4 measures which will reduce impacts t o less than significant, an ND "was prepared for this project 5 pursuant to CEQA. with mitigation [sic]." Mitigation measures were expressly on the face of 6 the determinations made a condition of approval, and findings were "made pursuant to the 7 provisions of CEQA." The Council 's decision denying the appeal and approving the Project 8 does not state that the decision was ministerial and instead states that the basis for the 9 determination was "that there is no substantial evidence that the Project will have a significant 10 effect on the environment ." Thus, in the end, R expressly conducted CEQA review and 11 approved the Project based on apparently discretionary CEQA determinations, findings, and 12 mitigation approvals. 13 R and RPI contend that the ordinance governing design review here is substantially the 14 same as the one found to be ministerial in Mccorkle. It may be that they are largely similar, but 15 that does not defeat P 's claims as a matter of law. One key factor which R and RPI ignore in this 16 part of the analysis is the fact that here R actually performed CEQA review, issuing and 17 approving a negative declaration, which would not have been necessary if R's decision had been 18 ministerial. While a city's interpretation of whether its review in accord with its ordinance is 19 ministerial or discretionary is not conclusive, it is a factor to consider. If R found its ordinance to 20 have discretionary elements and undertook review in a discretionary manner, regardless of 21 similarity to another ordinance found to be ministerial, that at least may raise the potential that 22 this decision involved discretion and the court must allow the matter to move beyond demurrer. 23 Here, R's own Commission clearly felt that the ordinance involved discretion and R approved a 24 CEQA document, the MND, which by definition is discretionary and is only needed for a 25 discretionary decision. 26 With respect t o the design-review ordinance in McCorkle, the court there, at 92-93, listed 27 the specific issues which the ordinance stated could be considered and noted that the city council 28 properly found that these did not allow for consideration of non-design-review matters. - 12 - 1 By contrast, the ordinances governing SPAR proceedings here included, aside from other 2 general language such as that regarding discretionary conditions, the following specific language 3 in IZO section 1.040, with emphasis added: the "provisions . . . shall be minimum requirements 4 for the promotion of the public health, safety, and general welfare" and when it "provides for 5 discretion . . . that discretion may be exercised to impose more stringent requirements. . . necessary 6 to promote appropriate land use and development, environment resource protection, and other 7 purposes of this Zoning Ordinance." This on its face is more broad and open-ended than the 8 ordinance language set forth in McCorkle. Also unlike the ordinance in McCorkle, it allows 9 determinations on specific issues of "environmental resource protection" as well as "public 10 health, safety, and general welfare," which seem to go beyond simple issues of design review and 11 inherently raise issues considered under CEQA. Health, safety and general welfare may cover a 12 broad range of items, including environmental impacts affecting those issues, and they clearly go 13 beyond normal design review items. "Environmental resources protection" by its very 14 terminology seemingly on its face contemplates issues regarding the environment and even 15 reflects the very title of the code governing CEQA, the Public Resources Code. 16 R and RPI also argue that R later imposed a moratorium on such approvals in order to 17 consider injecting discretion into what was a ministerial process. This is not necessarily so and is 18 hardly dispositive as a matter of law. It does not mean that the law in force governing this 19 Project was ministerial and merely because an agency says that its approval is ministerial does 20 not mean that it actually is according to CEQA. Again, as noted above, R apparently found that 21 this Project approval was discretionary and subject to CEQA since it expressly approved the 22 Project based on findings regarding environmental impacts with an MND imposing mitigation 23 measures. Nothing here shows that the mitigation measures imposed and findings of impacts 24 were ministerial. The allegations and judicially noticeable documents only indicate that these 25 determinations were made. Moreover, an MND is a specifically CEQA document and prepared 26 only for discretionary approvals. If the Project approval was in fact ministerial, or at least ifR 27 found it to be ministerial, then R would never have done CEQA review because, as the parties all 28 agree and as explained above, CEQA does not apply to ministerial approvals. - 13 - 1 The fact that R conducted CEQA review and approved an MND reflects a determination 2 that CEQA applied . lfR found that C EQA did not apply, then it would never have reached the 3 analysis of the MND. 4 R and RPI more strenuously a sserted at the hearing that merely because an agency has 5 conducted CEQA review does not mean that it needed to and that an agency whose CEQA 6 document has been challenged may rely on a CEQA exempt ion to defeat that challenge even if 7 raised for the first t ime in litigation . This argument is based on Rominger v. County of Colusa 8 (20 14) 229 Cal.App.4th 690, at 700 ; Sierra Club v. County of Sonoma (20 17) 1 1 Cal .App.5 1h 1 1, 9 at 3 1; and Del Cerro Mobile Estates v. City of Placentia (20 1 1) 197 Cal.App.4th 173. 10 R and RPI rely mo st on Del Cerro, where petitioner challenged the adequacy of an EIR 11 and the agency demurred to the petition on the basis that the project was statutorily exempt from 12 CEQA so that it never needed to conduct an EIR. The trial court agreed, sustaining the demurrer, 13 and the court of appeal affirmed. 14 Although Del Cerro was decided on demurrer, that court expressly pointed to reasoning 15 based on several specific factors set forth in detail at 179- 180, not present here . First, the 16 decision was based on factual points set forth in the record which were clear and expressly stated 17 to be not in dispute, including the type of project at issue, it s details, and its scope. Second, the 18 Del Cerro project, a railroad grade separation project, was clearly, by its very definition on the 19 face of the law, exempt from CEQA by a specific CEQA statute expressly applying to that very 20 type of project, PRC section 2 1080. 13, and the fact that the exemption applied to the type of 21 project at issue was not in dispute . The petitioner only disputed the legal application of the 22 statute in light of the scope of the project which, as noted, was clear and not in dispute. Third, 23 the exemption was based on a specific CEQA statute in the Public Resources Code itself. 24 Fourth , the court noted that the exemption reflected the legislature's statement of public policy 25 favoring railroad grade separation project s and that the court could not interfere with that clear 26 statement of public policy. 27 In contrast to the Del Cerro case, each ofthese factors is missing or unclear in the matter 28 before this court . First, many key facts here are unclear, incomplete, and in dispute. The record - 14 - 1 has not been provided, the allegations show CEQA application on their face, and the judicially 2 noticeable documents which have been provided, in light of the facts and procedural events so far 3 explained to the court, raise only the possibility that the project was exempt or that no 4 discretionary review was required or conducted. Second, no statute expressly exempts this 5 specific type ofproject from CEQA review and this project here only may be exempt from 6 CEQA and only may lack discretionary review based on the specific details ofthe applicable 7 ordinance, project, and proceedings. Third, the determination as to whether this project is 8 discretionary or ministerial rests with analysis of a local agency's ordinance, not a CEQA statute, 9 which does not direct ly address the application of CEQA but which requires legal analysis of that 10 ordinance 's language and potentially the facts of the project and proceedings at issue. Fourth, 11 there is no clear indication on public policy favoring projects such as this. 12 In R ominge r,the matter was decided at the hearing on the merits, not at demurrer stage, 13 and with the full record available. The court again ruled that the agency was able to assert the 14 CEQA exemption even though it had conducted CEQA review. It expressly pointed out, 15 however, that this argument was permissible because the agency had at a ll times expressly stated 16 that the CEQA review was unnecessary since CEQA did not apply and that it was conducting 17 CEQA review for "informational" purposes only. The case before this court is only at demurrer 18 stage, the record is not available, and it is not apparent that R actually made it clear that it was 19 conducting CEQA review even though it felt that CEQA did not apply. 20 In S ie rra Club, the appellate court affirmed this court's decision that a project approval 21 was ministerial even though the governing ordinance governed approvals both ministerial and 22 discretionary. The appellate court noted that given the fact that the approvals at issue were 23 ministerial, the agency did not make the decision discretionary simply by adding additional 24 seemingly discretionary requirements. 25 In short, R and RPI are correct that the mere fact that R conducted CEQA review and 26 approved the MND does not mean that the approval here was discretionary and subject to CEQA 27 and does not bar them from raising that argument. However, at this point, on demurrer, it is 28 impossible to make this determination as a matter of law. Unlike R ominger and Sierra Club , - 15 - 1 there is no record yet before the court and the court's analysis is limited to the pleadings in the 2 petition and what little judicially noticeable material has been provided . Also unlike those cases, 3 the burden at this point rests with R and RPI to dempnstrate that CEQA did not apply as a matter 4 of law. When the court reaches the actual hearing on the merits, the burden of showing that 5 CEQA applies will rest with P and this alone may dictate an opposite outcome . 6 In the end, R conducted CEQA review, which on is face raises the application of CEQA. 7 There is insufficient information before this court at this point to allow it to determine, as a 8 matter oflaw, that the CEQA review was not required . 9 The court finds that this petition attacks at least a potentially discretionary CEQA 10 determination. 11 12 2nd COA : Writ of Mandate for Failure to Provide a Fair Hearing 13 In the second COA, P also seeks a of mandate pursuant to C CP section 1094.5 on the writ 14 ground that R prejudicially abused its discretion and failed to provide a fair hearing one two 15 grounds. The first is that the Council, believing that its decision either way would be the subject 16 of litigation, privately assessed the financial exposure of the different litigation alternatives 17 which would ensure depending on which way R decided, chose to approve the Project. The 18 second basis asserted here is that the Council improperly and incorrectly decided that it had no 19 authority to modify, condition, or deny the Project based on environmental, health, or safety 20 impacts. 21 22 Decision to Avoid RPI's Lawsuit 23 Tumey v. Ohio (1927) 273 U.S. 510 and its progeny establish two main types of 24 challenges for violation of due process based on structural bias . Alpha Epsilon Phi Tau Chapter 25 Housing Ass n' v. City of Ber keley (9 th Cir.1997) 114F .3d 840, 844. Proceedings violate due 26 process where the decisionmaker has a "direct, personal, substantial pecuniary interest" in the 27 proceedings. Tumey , 523; Alpha Epsilon , 844. Eveµ if the decisionmaker lacks a personal 28 interest, due process may also be violated where the decisionmaker 's inst itutional - 16 - 1 responsibilities, provide "so strong a motive" to rule in a way that would aid the institution. 2 Tumey, 532; Alpha Epsilon, 844. 3 As explained in Today's Fresh Start, Inc. v. Los Angeles County Office ofEducation 4 (2013) 57 Cal.4th 197, at 212, due process standards rooted in both the federal and state 5 constitutions are the bas is of the right to a fair hearing before an impartial adjudicator. It added, 6 Beyond these broad outlines, however, the precise dictates of due process are 7 flex ible and vary according to context . (Mathews v. Eldridge, supra, 424 U.S. at p. 334, 96 S.Ct. 893 [" ' "[d]ue process," unlike some legal rules, is not a 8 technical conception with a fixed content unrelated to time, place and circumstances' "]; Oberholzer v. Commission on Judicial Performance (1999) 20 9 Cal.4th 371, 391 & fn. 16, 84 Cal.Rp tr.2d 466, 975 P.2d 663.) 10 11 In Ward v. Village ofMonroeville (1972) 409 U.S. 57, the U. S. Supreme Court found 12 there to be a pecuniary interest such as to v iolate due process where a village mayor as a judge 13 trying traffic and ordinance violations and imposing fines that contributed a " 'substantial 14 portion' " of the village's budget. It concluded that this arrangement offered an impermissible " 15 'possible temptation' " to partisansh ip. "In Ward, the mayor-cum-judge had an impermissible 16 incentive to maximize v illage revenue-for which he was responsible and from which h is own 17 salary was paid-at the expense of p arties for whom he bore no responsibility." Today 's Fresh 18 Start, 217. The fines at issue provided between one third and one half of the v illage revenue. 19 In Today 's Fresh Start, a charter school challenged the d istrict's revocation of its charter 20 on the ground that the board had a pecuniary interest s ince the district has an obl igation to 21 maximize its funding, the charter school competed with the district's own revenue by taking 22 students from the district's own schools,and therefore the d istrict had a financial incentive to 23 revoke the charter . The court found there to be no pecuniary interest that v iolated due process in 24 Today 's Fresh Start, but explained that this was in part due to the lack of evidence in the record, 25 w ith nothing supporting the petitioner's claim that it directly competed w ith the district's own 26 funding , explaining, at 217-218,that "charter schools are public schools for academic and 27 fun