Preview
FILED
JAN 2 3 gp~5
Clerk of )or Court
By
DEPUTY cigar
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
COMPLEX CIVILLITIGATION
SAVE LAUREL WAY,
Civil No. 526753
Petitioner, CEQA
vs. Assigned for All Purposes to
Hon. Marie S. Weiner, Dept. 2
CITY OF REDWOOD CITY; CITY
COUNCIL OF THE CITY OF PROPOSED STATEMENT OF
REDWOOD CITY; and DOES 1-20, DECISION AFTER COURT TRIAL
Respondents,
LAUREL WAY JOINT VENTURE,
ODED HANER, LAUREL WAY
JOINT VENTURE C/0 ODED
HANER, and DOES 21-60,
Real Parties in Interest.
/
On October 24, 2014, a Court Trial was held in Department 2 of this Court before
the Honorable Marie S. Weiner. Winter King and Peter Broderick of Shute Mihaly k,
Weinberger LLP appeared on behalf of Petitioner, Rick Jarvis of Jarvis Fay Doporto k,
Gibson LLP appeared on behalf of Respondents, and William Warhurst of Hannig Law
Firm LLP appeared on behalf of Real Parties in. Interest.
Upon due consideration of the briefs and evidence presented, including the
Administrative Record and matters subject to judicial notice, and the oral argument of
counsel for the parties, and having taken the matter under submission,0
IT IS TENTATlVELYDECIDED, ORDERED AND ADJUDGED, as the
Proposed Statement of Decision, as follows:
1. The Petition for Writ is GRANTED, and the approval of the Planned
Development Permit by Respondents of the Laurel Way Planned Development Project
must be set aside, as well as vacating the related Resolution No. 13-05 and Resolution
No. 15311.
2. The Petition for Writ is GRANTED, and the Respondents'ertification of
the Revised Final Environmental Impact Report regarding the Laurel Way Planned
Development Project must be set aside, as well as vacating the related Resolution
No. 13-04.
3. The Complaint for Injunctive Relief is DENIED AS MOOT given the
Court's granting of the Petition for Writ.
Pursuant to CRC Rule 3.1590(g), any party may file and serve any objections
(permitted under C.C.P. Section 634) to this proposed statement of decision within
15 days.
THE COURT TENTATIVELYFINDS, as its Proposed Statement of Decision,
that Petitioner has demonstrated an abuse of discretion by Respondents as to the Laurel
Way Planned Development Project by Real Parties in Interest, as follows:
Overview
The cornerstone of this entire Project is approval of the ability to build 16
residential homes on the real property which is the subject of the Laurel Way Planned
Development. In making its decisions on this Project, Respondents were advised by their
staff and told by Real Parties in Interest that the undeveloped real property subject to the
Project contains 16 "legal lots" upon which 16 residential homes can be built, and that the
property owners of these lots have a vested absolute right to develop these lots. The
Administrative Record reflects that the reality of these assertions was not substantively
probed by Respondents, but rather accepted at face value. These assertions of law and
fact are the very foundation of the decisions made herein, and within the definition of the
Project subject to the EIR.
The facts and law do not support a finding that there are 16 legal lots upon which
16 homes can be built, and do not support a finding that the property owners have a
vested right to develop each of the 16 alleged lots. This factual and legal error infects the
entirety of the decision-making process leading to the granting of a Planned Development
Permit, the entry of Resolutions, and the certification of the Revised Final EIR. Indeed,
one of the Project "alternatives" addressed in the EIR is whether less than the total
amount of homes could be built, and that alternative was rejected on the basis that the
number of homes could not be reduced.
Standard ofReview
Petitioner has brought a Petition for Writ of Administrative Mandate pursuant to
Code of Civil Procedure Section 1094.5, on the grounds that actions taken by
Respondents were "prejudicial abuse of discretion". (C.C.P. $ 1094.5(b).) In regard to
the abuse of discretion, Petitioner asserts that the findings by Respondents are not
supported by the evidence. (C.C.P. $ 1094.5(c).)
The decision of Respondent contested by this Petition for Writ is quasi-judicial in
nature, and thus subject to administrative mandate review under Code of Civil Procedure
Section 1094.5. See also McGill v. Resents of Universitv of California (1996) 44
Cal.App.4 1776, 1785. It is not disputed that a hearing was required, a hearing was
held, evidence was taken, and discretion to grant the Planned Development Permit and
certification of the CEQA Environmental Impact Report were placed in the hands of
Respondent City.
"Abuse of discretion is established ifthe respondent has not proceeded in the
manner required by law, the order or decision is not supported by the findings, or the
findings are not supported by the evidence." C.C.P. $ 1094.5(b).
The determination of whether there was a failure to proceed as required by law or
that the decision is not supported by the findings is subject to de novo review by the
Court, as these pertain to issues of law, not fact. This is to be distinguished &om the
determination of whether the findings themselves are supported by sufficient evidence,
which is an issue of fact subject to the "substantial evidence" test. C.C.P. $ 1094.5(c);
Guinnane v. San Francisco Citv Plannine Comm. (1989) 209 Cal.App.3d 732, 742-743.
In writ review of a decision by a public agency under CEQA, the trial court "shall
not exercise its independent judgment on the evidence but shall only determine whether
the act or decision is supported by substantial evidence in light of the whole record."
Public Resources Code $ 21168. "The inquiry in such a case shall extend to... whether
there was any prejudicial abuse of discretion. Abuse of discretion is established ifthe
respondent has not proceeded in the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by the evidence." C.C.P.
$ 1094.4(b). "Where it is claimed that the findings are not supported by the evidence...
abuse of discretion is established ifthe court determines that the findings are not
supported by substantial evidence in light of the whole record." C.C.P. $ 1094.4(c).
As stated by the Court of Appeal in Bakersfield Citizens for Local Control v. Citv
of Bakersfield (2004) 124 Cal.App.4th 1184, 1197, 1198:
"Substantial evidence is defined as 'enough relevant information and
reasonable inferences &om this information that a fair argument can be
made to support a conclusion, even though other conclusions might also
be reached.'" [Citations.] Substantial evidence is not "argument,
speculation, unsubstantiated opinion or narrative, evidence which is
clearly inaccurate or erroneous, or evidence of social or economic impacts
which do not contribute to, or are not caused by, physical impacts on the
environment, is not substantial evidence.
"CEQA requires an EIR to reflect a good faith effort at full disclosure; it
does not mandate perfection, nor does it require an analysis to be
exhaustive." [Citation.] Therefore, "noncompliance with CEQA's
information disclosure requirements is not per se reversible; prejudice
must be shown." [Citations.] Failure to comply with the information
disclosure requirements constitutes a prejudicial abuse of discretion when
the omission of relevant information has precluded informed
decisionmaking and informed public participation, regardless whether
a different outcome would have resulted ifthe public agency had complied
with the disclosure requirements. [Citations.] (Bold added.)
See also, Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4 587, 596.
Summary ofthe Project
Real Parties in Interest, on behalf of various property owners, is seeking to
develop undeveloped land in an area which is hilly and heavily sloped. Under municipal
zoning laws, the minimum lot size required for any residential building at all is 10,000
square feet. Only six of the parcels are over 10,000 square feet. Under local zoning
ordinances, specifically Redwood City Zoning Ordinance $ 32.2, the amount of
mandatory square footage of the lot increases based upon the slope of the land. Given the
extensive slope of the land for this entire Project, ranging from 22/0 to 45'/o for the
average slope of each lot, none of the subject parcels can be developed unless and until a
PDP is granted.
Connecting these parcels is a private dirt road. As a precondition to any
development whatsoever, Respondents required the various landowners to prepare an
EIR (even though an EIR might not otherwise be required under law) for the cumulative
effect of developing the property in that area, and required that they jointly apply for a
Planned Development Permit.
As a condition for approval, Respondent required that the Project proceed in two
phases: Phase One is the construction of a paved road of greater width and sufficient
turning radius in cul-de-sac for emergency vehicles, as well as the installation of utilities
and other civic improvements to support each of the anticipated houses. Phase Two is the
construction of 16 houses, which the owner can choose to live in or sell to others. The
ability to build a home is part of the approval of the Project, as well as setting the height
and square footage of each structure on each lot. Thereafter, a separate building permit
will be required for each piece of property to bless the particular details of each
residence.
Under this scenario, the various unrelated property owners are being required by
Redwood City to personally pay to build a paved road and install all utilities and other
civic improvements to the neighborhood before any ofthem can build any houses
whatsoever. It would be unfair to require such expenditures, ifat the end of the day, the
property owner is no able to build the number of houses contemplated because there is no
truly 16 "legal lots".
The Project originally petitioned for the building of 18 houses. The Project was
opposed, and it was revealed that two parcels were included in the Project without the
consent and authority of that property owner. Indeed, it appears that the owner of those
two parcels opposes this Project. Accordingly, the Project was revised to apply to build
16 houses, not 18 houses, and reduced the number of parcels involved to remove the two
unauthorized parcels.
The very heart of the Project, and the basis of the PDP and the EIR, is that there
are 16 legal lots upon which 16 houses can be built. Under "project description", the
Draft EIR indicates: "Specific elements of the project are as follows:... Approval of
the construction of single-family residences on 18 of the 20 parcels that comprise the
approximately 5.1 acre property, with the remaining parcel (Lot 6 to be held as an open
space easement." (1 AR 118-119; see also 1 AR 159.) This was then amended in the
Final EIR because the two parcels were removed from the Project, and the merger of
three parcels into Lot 5 would now provide open space by easement rather than
separately subdividing the property into a new parcel: "The project revisions included:
Eliminating two lots from the project area and reducing the total project area to 4.75
acres; reducing the number of proposed residences from 18 to 16; changing the originally
proposed open-space lot to an open space easement, with the same acreage and
dimensions as the originally proposed open space lot." (1 AR 30.) The Project
approval included approval for each property owner to build a house on their lot for a
total of 16 houses (and either live in the house or sell it): "Owners of the lots could, ifthe
project is approved: ... construct a residence for purposes of sale; build a home as a
personal residence; sell the lot with rights to develop as granted with the project approval
and/or with plans for a proposed house design." (1 AR 119.)
The Project "alternative" to build less than 16 houses and/or the forced merging
of adjacent lots was explicitly rejected in the Final EIR. (1 AR 335.) The "no project"
alternative was specifically rejected on the basis that these are all "legal non-conforming
lots" and that the owners have a vested right to build homes on the lots: "Since the
existing lots are considered legal lots of record, the individual owners have a right to
reasonably develop each property.... The properties are considered 'legal, non-
conforming lots'refer to City code section 33.2), meaning that they are legally created
lots, but do not conform to current City code requirements for minimum lot area or
minimum lot dimensions." (1 AR 336.)
The basis of granting the PDP is staff reports prepared and presented to
Respondents as part of their decision-making process. These reports baldly stated that
these are all legal lots and that all of the owners have the right to development by
building a house: The Staff Report from the City manager to the City Council dated
September 23, 2014 states: "This project does not involve City approval of any
subdivision or other creation of new lots. The lots wree lawfully created through a
subdivision map filed in 1926... The lots are legal nonconforming, and, under section
33.2 of the City's Zoning Code, the owners are entitled to develop the lots so long as the
development complies with all other code requirements. Such development requires City
approval of one or more Planned Development Permits." (4 AR 1827.) No facts or law
are provided in support of these assertions. The City Manager's report refers
Respondents to the March 26, 2013 Report to the Redwood City Planning Commission
from the Planning Staff for all details. (4 AR 1828.) Yet, a review of that March 26,
2013 staff report also reflects no facts or legal supporting these conclusions either. (4 AR
2035-2043.)
The attorney for Respondents provided a letter to Real Parties dated April 15,
2011, indicating that the lot legality was challenged by Petitioner, but that
Respondents'taff
rejected the argument. (5 AR 2261.) The attorney does not actually opine that these
are legal lots, and gives no factual or legal analysis. At best, it simply states: "However,
it appears that the lots were lawfully created through a subdivision map filed in 1926,
before the Project area was annexed to the City. (While LWANAhas arged to the effect
that the lots were not lawfully created, City staff has not been persuaded by these
arguments.)" (5 AR 221.)
Subdivision and Oivnership of the Undeveloped Lots
Back in 1926, a map of "Highlands of Emerald Lake, Subdivision One" was
accepted and approved by the San Mateo County Board of Supervisors (although the
County did not accept dedication of the roads as public use, and thus Laurel Way was not
a public street). (13 AR 6913-6918.) The land was located in unincorporated San Mateo
County at that time. The subdivision map reflected a survey, platting into lots, and
creation of hundreds of numbered parcels, for purposes of division of land for sale. (13
AR 6917-6918.) These subdivided parcels include the real property located at the end of
Laurel Way, which are the subject of the present Project.
In 1969, this small portion of the Highlands of Emerald Lake subdivision, and
specifically the property along the end of Laurel Way, was annexed into the City of
Redwood City. (3 AR 1188; see also 13 AR 6912.)
The subject Laurel Way Planned Development Project only includes parcels
which are undeveloped, along the unpaved end of Laurel Way. The lots on 3765 Laurel
Way and 3769 Laurel Way have houses built on them already, and are not part of the
Project. Three other parcels further down Laurel Way (after 83769) are also no longer
part of the Project. As it presently stands, as approved by Respondents, the Project would
include 16 "lots", referenced as Lots 1-5, 7-11, and 14-19 (as revisions to the Project now
exclude the lots referenced as numbers 6, 12, and 13.) For easy of reference, Figure
2.3-3 gives the outline and reference numbers of the subject lots, and is attached hereto.
In regard to "Lot 5", it was actually three parcels with a common owner. As part
of the Project it was agreed that the three parcels would be merged. According to
Petitioner during oral argument, this has already occurred. The merger of these parcels
does not require any PDP or other formal approval. Under the original Project
10
application, these three parcels were to be merged into one and then subdivided into two
—with one portion being used for a residence and the other portion being dedicated as
public open space (as new Lot ¹6). Under the revised Project application approved by
Respondents, the three parcels are merged into one (Lot ¹5), and a portion of that lot will
be subject to an easement for open space —thus avoiding the need for a formal
subdivision.
According to the Administrative Record, as of 1985, (a) Lots 14 and 15 were one
single lot with a single owner, (b) Lots 16 and 17 were one single lot with a single owner,
and (c) Lots 5 (and the subparts thereof), 8, 9, 10 and 11 were physically contiguous
parcels and all had the same owner. (13 AR 6675-6679.)
According to the Administration Record (12 AR 6524), as of 1996, (a) Lots 14
and 15 were treated as two parcels and assigned the addresses 3757 and 3761 Laurel
Way, and still had a single owner "Dobrasinovic"; (b) Lots 16 and 17 were treated as two
parcels and assigned the addresses 3749 and 3753 Laurel Way, and still had a single
owner "Beverly"; (c) the three parcels (now comprising Lot ¹5) had common ownership
by "Johnson"; (d) Lots 8 and 9 had been sold to "Bruce" and were in common ownership;
and (e) Lots 10 and 11 continued common ownership by Chapralis. Allremained
undeveloped property. Thus, as of 1996, there were five sets of contiguous undeveloped
parcels with common ownership in the Project area.
According to the Administrative Record and the assertions of Petitioner (4 AR
2009), as of 2012, (a) Lots 14 and 15 continue to have the same owner; (b) Lots 16 and
17 no longer have a common owner; (c) the three parcels of Lot 5 still have a common
owner (who agreed to merge the parcels into one lot); (d) Lots 8 and 9 still have a
common owners "Bruce"; and (e) Lots 10 and 11 no longer have a common owner.
11
Thus, as of 2012, there were three sets of contiguous undeveloped parcels with common
ownership in the Project, one of whom had already agreed to merger of their parcels.
Alleged Vesting of the Right to Develop the Lots
All of the parcels which are the subject of this Project have never been developed.
There is presently no residence on any of the lots and no evidence that any development
permits, such as building permits, have ever been issued for any of these lots. It would
seem that under California law, there is no "vested" "right" to develop any of these
particular lots. There is no factual or legal foundation for the conclusion by Respondents
that there was a vested right to develop each and every one of the parcels by building a
house.
The only legal reference cited is a local regulation. But application of that
regulation is dependent upon the existence of a legally subdivided lot in the first place.
More specifically, Respondents made various "findings" in granting the PDP and
approval of this Project, which findings conclude that each and all of the parcels in the
Project are legal lots, were legally and properly subdivided, and that the property owners
of each parcel are legally entitled to develop each parcel with a residence:
... [T]he City Council makes the following additional findings:
~ Each of the lots in the Project area are non-conforming lots which do not
comply with the current minimum lot size requirements set forth in the
City's Zoning Ordinance for such steeply sloped lots, most of which have
slopes of 30/0 or more.
~ Had the Applicant proposed a new subdivision map for the Project area,
the City's current code would not have allowed the creation of more than
12
4 or 5 lots on the subject property. However, the lots have already been
created by a 1926 subdivision map (the same map which created hundreds
of the surrounding neighboring lots which have already been developed)
and have since been individually sold to numerous different individuals.
~ No credible evidence has been presented to demonstrate that these lots are
unlawful. Under Section 33.2 of the City's Zoning Ordinance, the owners
are entitled to develop the lots so long as they comply with all other code
requirements. Those requirements include section 32.2's requirement of a
planned development permit for lots having a slope greater than 30'/o.
~ Alternative B presents the best compromise between the owners'ights to
develop their individual lost and the neighbors'oncerns regarding the
overall density and intensity of the development as originally proposed by
the Applicant....
(1 AR 6-7.)
Section 33.2 states: "Development ofNonconforming Lots. A nonconforming lot
may be used for development subject to compliance with all other provisions of this
article and other applicable codes. A nonconforming lot may not be further reduced in
area or dimension, except by variance." These lots are all undersized for the building of
any houses because they are under 10,000 square feet in the first place or are over 10,000
square feet but have such great slope that they are required to be even larger lots before
any house can be build. Thus NONE of the lots are able to "comply" with the other
provisions of the Code. The only way that they can be developed isifa PDP is issued.
The argument of the Respondents is circular: they cannot be developed unless there is a
PDP, but there is a "right" to development and therefore a PDP must be issued!?
13
Yet, the Respondents and the Real Parties iIn Interest fail to undertake the
underlying interpretive step of determining whether or not these are indeed
"nonconforming lots". Otherwise Section 33.2 does not apply in the first place, and there
is no "right" to development in the first instance (as assumed by Respondents).
The term "nonconforming lot" is defined in the Zoning Ordinance section 2.2 as
follows: "Any lot having less area or dimensions than are required in the district in
which the lot is located, and that was lawfully created prior to the adoption of the
current zoning requirements for lot area or dimensions. Lots not legally established
shall be deemed to be illegal lots." (Bold added.)
These lots are in the "Residential Hillside" district of Redwood City, and pursuant
to Section 4.6 of the Zoning Ordinance and Section 4.7, are subject to certain minimum
lot area and lot width. These "current zoning requirements for lot area or dimensions"
were originally enacted in 1964 (with Section 4.6 further amended in 1971). Thus each
parcel in this Project must be a "legal lot", i.e. legally created and subdivided, as of 1964,
for there to even be any argument that it is subject to development under Section 33.2.
But there is an added complication: None of these lots were part of the City of
Redwood City until annexed in 1969. The County of San Mateo, established back in
1856, became a chartered entity in 1933,1 and only sometime thereafter did the County
enact ordinances and regulations including zoning, building, and subdivision
requirements. The Court does not have the information as to when.
San Mateo County is a Chartered entity. Authority to adopt charters is
conferred upon counties by Article XI, Section 7 1/2 of the California Constitution. The
Charter of San Mateo County was duly ratified by the qualified electors of the County at
an election held November 8, 1932, and was approved by the State legislature and the
Secretary of state on January 28, 1933.
14
There was no consideration by Respondents as to whether they were legal lots
under applicable regulations and ordinances, and no analysis as to whether these fall
within the definition of non-conforming lots because they were not legal in the first
place. The findings by Respondents simply jump to the conclusion that these are all
"legal non-conforming lots."
The Issue ofLot Legality 8'as Raised Below
The issue of whether there are actually 16 legal lots upon which 16 houses can be
built has been contested by Petitioner (and its members) throughout this PDP and EIR
process. Petitioner has questioned lot legality, and has asserted that commonly owned
lots must be merged. (See 4 AR 2009.)
In the April 13, 2013 letter of counsel for Petitioner to Respondents, it is
contested that the ability of Real Parties to rely upon the 1926 subdivision map as
creating legal subdivision for purposes of development in the modern day; and explicitly
disputes that these are legal non-conforming lots, i.e.,legally subdivided lots. (S AR
3962-3963.) It states:
The Citv Must Conduct Its Own Research to Determine Whether
All of the Substandard Lots are Trulv Legal Non-Conforming Lots. The
only reason the City is even considering allowing the construction of
5,000 square foot residences on 7,000 square foot lots with 30-45'Jo slopes
is because it accepted as fact the applicant's assertion that the substandard
lots are legal non-conforming. Under the City's zoning ordinance, a
developer would need at least 30,000 quare feet to develop any residence
on such steeply sloped lots. Redwood City zoning Code $ 32.2(A). This
15
increased minimum lot size reqirement for steeply sloped lots reflects
what each Planning Commissioner plainly saw as a fundamental problem
with the proposed Project: it attempts to cram too many large residences
on too small lots
Given this obvious incongruity, the city must make every effort to
verify that the proposed lots are, in fact, legal non-conforming. SLW
submitted evidence and recent caselaw to the Planning Commission
demonstrating that courts willnot recognize a 1926 subdivision map as
creating legal lots in compliance with the modern Map Act. Ifthe 1926
map did not create legal, non-conforming lots,it is the burden of the
applicant to demonstrate that each of the lots within the Project is legal
The applicant has done no such thing. Moreover, SLW submitted
evidence to the Planning Commission suggesting that some continugous
lots have been conveyed together over the years and only recently
subdivided by conveyance without a parcel map. Such lots are clearly not
"legal, non-conforming" lots, as the Planning Commission assumed.
Finally, members of the public also submitted evidence and testimony,
based on research at the County Recorder's office, indicating that at least
two lots appear to have been modified through merger and re-subdivision
so that they are not [sic] longer identical to the lots shown on the 1926
map.
At the very least, before considering approval of this dense
residential development, the City must require the applicant to obtain
certificates or conditional certificates of compliance for each of these lots.
16
In addition, since there are a number of contiguous lots with common
owners, the City must consider requiring the owners to merge these lots to
reduce the project's significant impacts.
(8 AR 3962-3963.)
Respondents took the position that is up to the Petitioner to prove the opposition,
i.e.,that Petitioner must prove they are illegal lots. That is contrary to law, as the
Government Code provides that one must demonstrate lot legality in order to obtain a
development permit.
The "finding" by Respondents that there is no evidence that each and every one of
the lots are not illegal is not supported by law or facts. Respondents simply make this
bald conclusion without any factual or legal support. Indeed, in the Court's review of the
Administrative Record, the Court was unable to find any factual discussion, legal
analysis, or other substantive consideration and support for the Respondent's "finding".
Further, Respondents make the "finding" that each and all of the lots have been
conveyed to multiple owners over time, and thus would be established as legally
subdivided lots. A review of the Administrative Record reflects evidence to the contrary.
For example, at 8 AR 3968-3972, it reflects that Lots 1 and 2 on Block 16 —which is
Project lots designated as Lots 14 and 15 — have always been conveyed together and
have been in common ownership throughout time. The Court does not have full
information on other contigous lots (except for the three parcel which would be merged
into Lot 5 for the Project have also been shown to have continued to be transferred as a
group and never separately conveyed.
17
California LaivRegarding Lot Legality of Undeveloped Real Property
under Antique Subdivision Maps
The Court must consider case law specifically dealing with the issue of
subdivision of undeveloped adjoining lots in common ownership. Respondents failed to
do so, and failed to consider and follow the law in making its decisions about this Project.
It appears that Respondents believed, and government entities proceeded, on the
assumption that old division maps continue to be viable and establish the division of lots
even ifthose lots are not developed until decades later. Starting in at least the past
decade, there was a fundamental shift in the law, and particularly in the interpretation and
application of the Subdivision Map Act, by the California appellate courts. This was
ignored by Respondents.
In Gardner v. Countv of Sonoma (2003) 29 Cal.4th 990, 994, the California
Supreme Court held that the owner of 158 acres of land, originating from 1000 acres of
undeveloped land which was subject to a subdivision map recorded in 1865, prior to
enactment of any Subdivision Map Act, showing subdivision of his property into 12
parcels, where the 158 acres has always been in common ownership, did not have 12
legally cognizable subdivided lots for purposes of the
Preview
FILED JAN 2 3 gp~5 Clerk of )or Court By DEPUTY cigar SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO COMPLEX CIVILLITIGATION SAVE LAUREL WAY, Civil No. 526753 Petitioner, CEQA vs. Assigned for All Purposes to Hon. Marie S. Weiner, Dept. 2 CITY OF REDWOOD CITY; CITY COUNCIL OF THE CITY OF PROPOSED STATEMENT OF REDWOOD CITY; and DOES 1-20, DECISION AFTER COURT TRIAL Respondents, LAUREL WAY JOINT VENTURE, ODED HANER, LAUREL WAY JOINT VENTURE C/0 ODED HANER, and DOES 21-60, Real Parties in Interest. / On October 24, 2014, a Court Trial was held in Department 2 of this Court before the Honorable Marie S. Weiner. Winter King and Peter Broderick of Shute Mihaly k, Weinberger LLP appeared on behalf of Petitioner, Rick Jarvis of Jarvis Fay Doporto k, Gibson LLP appeared on behalf of Respondents, and William Warhurst of Hannig Law Firm LLP appeared on behalf of Real Parties in. Interest. Upon due consideration of the briefs and evidence presented, including the Administrative Record and matters subject to judicial notice, and the oral argument of counsel for the parties, and having taken the matter under submission,0 IT IS TENTATlVELYDECIDED, ORDERED AND ADJUDGED, as the Proposed Statement of Decision, as follows: 1. The Petition for Writ is GRANTED, and the approval of the Planned Development Permit by Respondents of the Laurel Way Planned Development Project must be set aside, as well as vacating the related Resolution No. 13-05 and Resolution No. 15311. 2. The Petition for Writ is GRANTED, and the Respondents'ertification of the Revised Final Environmental Impact Report regarding the Laurel Way Planned Development Project must be set aside, as well as vacating the related Resolution No. 13-04. 3. The Complaint for Injunctive Relief is DENIED AS MOOT given the Court's granting of the Petition for Writ. Pursuant to CRC Rule 3.1590(g), any party may file and serve any objections (permitted under C.C.P. Section 634) to this proposed statement of decision within 15 days. THE COURT TENTATIVELYFINDS, as its Proposed Statement of Decision, that Petitioner has demonstrated an abuse of discretion by Respondents as to the Laurel Way Planned Development Project by Real Parties in Interest, as follows: Overview The cornerstone of this entire Project is approval of the ability to build 16 residential homes on the real property which is the subject of the Laurel Way Planned Development. In making its decisions on this Project, Respondents were advised by their staff and told by Real Parties in Interest that the undeveloped real property subject to the Project contains 16 "legal lots" upon which 16 residential homes can be built, and that the property owners of these lots have a vested absolute right to develop these lots. The Administrative Record reflects that the reality of these assertions was not substantively probed by Respondents, but rather accepted at face value. These assertions of law and fact are the very foundation of the decisions made herein, and within the definition of the Project subject to the EIR. The facts and law do not support a finding that there are 16 legal lots upon which 16 homes can be built, and do not support a finding that the property owners have a vested right to develop each of the 16 alleged lots. This factual and legal error infects the entirety of the decision-making process leading to the granting of a Planned Development Permit, the entry of Resolutions, and the certification of the Revised Final EIR. Indeed, one of the Project "alternatives" addressed in the EIR is whether less than the total amount of homes could be built, and that alternative was rejected on the basis that the number of homes could not be reduced. Standard ofReview Petitioner has brought a Petition for Writ of Administrative Mandate pursuant to Code of Civil Procedure Section 1094.5, on the grounds that actions taken by Respondents were "prejudicial abuse of discretion". (C.C.P. $ 1094.5(b).) In regard to the abuse of discretion, Petitioner asserts that the findings by Respondents are not supported by the evidence. (C.C.P. $ 1094.5(c).) The decision of Respondent contested by this Petition for Writ is quasi-judicial in nature, and thus subject to administrative mandate review under Code of Civil Procedure Section 1094.5. See also McGill v. Resents of Universitv of California (1996) 44 Cal.App.4 1776, 1785. It is not disputed that a hearing was required, a hearing was held, evidence was taken, and discretion to grant the Planned Development Permit and certification of the CEQA Environmental Impact Report were placed in the hands of Respondent City. "Abuse of discretion is established ifthe respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." C.C.P. $ 1094.5(b). The determination of whether there was a failure to proceed as required by law or that the decision is not supported by the findings is subject to de novo review by the Court, as these pertain to issues of law, not fact. This is to be distinguished &om the determination of whether the findings themselves are supported by sufficient evidence, which is an issue of fact subject to the "substantial evidence" test. C.C.P. $ 1094.5(c); Guinnane v. San Francisco Citv Plannine Comm. (1989) 209 Cal.App.3d 732, 742-743. In writ review of a decision by a public agency under CEQA, the trial court "shall not exercise its independent judgment on the evidence but shall only determine whether the act or decision is supported by substantial evidence in light of the whole record." Public Resources Code $ 21168. "The inquiry in such a case shall extend to... whether there was any prejudicial abuse of discretion. Abuse of discretion is established ifthe respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." C.C.P. $ 1094.4(b). "Where it is claimed that the findings are not supported by the evidence... abuse of discretion is established ifthe court determines that the findings are not supported by substantial evidence in light of the whole record." C.C.P. $ 1094.4(c). As stated by the Court of Appeal in Bakersfield Citizens for Local Control v. Citv of Bakersfield (2004) 124 Cal.App.4th 1184, 1197, 1198: "Substantial evidence is defined as 'enough relevant information and reasonable inferences &om this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.'" [Citations.] Substantial evidence is not "argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous, or evidence of social or economic impacts which do not contribute to, or are not caused by, physical impacts on the environment, is not substantial evidence. "CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive." [Citation.] Therefore, "noncompliance with CEQA's information disclosure requirements is not per se reversible; prejudice must be shown." [Citations.] Failure to comply with the information disclosure requirements constitutes a prejudicial abuse of discretion when the omission of relevant information has precluded informed decisionmaking and informed public participation, regardless whether a different outcome would have resulted ifthe public agency had complied with the disclosure requirements. [Citations.] (Bold added.) See also, Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4 587, 596. Summary ofthe Project Real Parties in Interest, on behalf of various property owners, is seeking to develop undeveloped land in an area which is hilly and heavily sloped. Under municipal zoning laws, the minimum lot size required for any residential building at all is 10,000 square feet. Only six of the parcels are over 10,000 square feet. Under local zoning ordinances, specifically Redwood City Zoning Ordinance $ 32.2, the amount of mandatory square footage of the lot increases based upon the slope of the land. Given the extensive slope of the land for this entire Project, ranging from 22/0 to 45'/o for the average slope of each lot, none of the subject parcels can be developed unless and until a PDP is granted. Connecting these parcels is a private dirt road. As a precondition to any development whatsoever, Respondents required the various landowners to prepare an EIR (even though an EIR might not otherwise be required under law) for the cumulative effect of developing the property in that area, and required that they jointly apply for a Planned Development Permit. As a condition for approval, Respondent required that the Project proceed in two phases: Phase One is the construction of a paved road of greater width and sufficient turning radius in cul-de-sac for emergency vehicles, as well as the installation of utilities and other civic improvements to support each of the anticipated houses. Phase Two is the construction of 16 houses, which the owner can choose to live in or sell to others. The ability to build a home is part of the approval of the Project, as well as setting the height and square footage of each structure on each lot. Thereafter, a separate building permit will be required for each piece of property to bless the particular details of each residence. Under this scenario, the various unrelated property owners are being required by Redwood City to personally pay to build a paved road and install all utilities and other civic improvements to the neighborhood before any ofthem can build any houses whatsoever. It would be unfair to require such expenditures, ifat the end of the day, the property owner is no able to build the number of houses contemplated because there is no truly 16 "legal lots". The Project originally petitioned for the building of 18 houses. The Project was opposed, and it was revealed that two parcels were included in the Project without the consent and authority of that property owner. Indeed, it appears that the owner of those two parcels opposes this Project. Accordingly, the Project was revised to apply to build 16 houses, not 18 houses, and reduced the number of parcels involved to remove the two unauthorized parcels. The very heart of the Project, and the basis of the PDP and the EIR, is that there are 16 legal lots upon which 16 houses can be built. Under "project description", the Draft EIR indicates: "Specific elements of the project are as follows:... Approval of the construction of single-family residences on 18 of the 20 parcels that comprise the approximately 5.1 acre property, with the remaining parcel (Lot 6 to be held as an open space easement." (1 AR 118-119; see also 1 AR 159.) This was then amended in the Final EIR because the two parcels were removed from the Project, and the merger of three parcels into Lot 5 would now provide open space by easement rather than separately subdividing the property into a new parcel: "The project revisions included: Eliminating two lots from the project area and reducing the total project area to 4.75 acres; reducing the number of proposed residences from 18 to 16; changing the originally proposed open-space lot to an open space easement, with the same acreage and dimensions as the originally proposed open space lot." (1 AR 30.) The Project approval included approval for each property owner to build a house on their lot for a total of 16 houses (and either live in the house or sell it): "Owners of the lots could, ifthe project is approved: ... construct a residence for purposes of sale; build a home as a personal residence; sell the lot with rights to develop as granted with the project approval and/or with plans for a proposed house design." (1 AR 119.) The Project "alternative" to build less than 16 houses and/or the forced merging of adjacent lots was explicitly rejected in the Final EIR. (1 AR 335.) The "no project" alternative was specifically rejected on the basis that these are all "legal non-conforming lots" and that the owners have a vested right to build homes on the lots: "Since the existing lots are considered legal lots of record, the individual owners have a right to reasonably develop each property.... The properties are considered 'legal, non- conforming lots'refer to City code section 33.2), meaning that they are legally created lots, but do not conform to current City code requirements for minimum lot area or minimum lot dimensions." (1 AR 336.) The basis of granting the PDP is staff reports prepared and presented to Respondents as part of their decision-making process. These reports baldly stated that these are all legal lots and that all of the owners have the right to development by building a house: The Staff Report from the City manager to the City Council dated September 23, 2014 states: "This project does not involve City approval of any subdivision or other creation of new lots. The lots wree lawfully created through a subdivision map filed in 1926... The lots are legal nonconforming, and, under section 33.2 of the City's Zoning Code, the owners are entitled to develop the lots so long as the development complies with all other code requirements. Such development requires City approval of one or more Planned Development Permits." (4 AR 1827.) No facts or law are provided in support of these assertions. The City Manager's report refers Respondents to the March 26, 2013 Report to the Redwood City Planning Commission from the Planning Staff for all details. (4 AR 1828.) Yet, a review of that March 26, 2013 staff report also reflects no facts or legal supporting these conclusions either. (4 AR 2035-2043.) The attorney for Respondents provided a letter to Real Parties dated April 15, 2011, indicating that the lot legality was challenged by Petitioner, but that Respondents'taff rejected the argument. (5 AR 2261.) The attorney does not actually opine that these are legal lots, and gives no factual or legal analysis. At best, it simply states: "However, it appears that the lots were lawfully created through a subdivision map filed in 1926, before the Project area was annexed to the City. (While LWANAhas arged to the effect that the lots were not lawfully created, City staff has not been persuaded by these arguments.)" (5 AR 221.) Subdivision and Oivnership of the Undeveloped Lots Back in 1926, a map of "Highlands of Emerald Lake, Subdivision One" was accepted and approved by the San Mateo County Board of Supervisors (although the County did not accept dedication of the roads as public use, and thus Laurel Way was not a public street). (13 AR 6913-6918.) The land was located in unincorporated San Mateo County at that time. The subdivision map reflected a survey, platting into lots, and creation of hundreds of numbered parcels, for purposes of division of land for sale. (13 AR 6917-6918.) These subdivided parcels include the real property located at the end of Laurel Way, which are the subject of the present Project. In 1969, this small portion of the Highlands of Emerald Lake subdivision, and specifically the property along the end of Laurel Way, was annexed into the City of Redwood City. (3 AR 1188; see also 13 AR 6912.) The subject Laurel Way Planned Development Project only includes parcels which are undeveloped, along the unpaved end of Laurel Way. The lots on 3765 Laurel Way and 3769 Laurel Way have houses built on them already, and are not part of the Project. Three other parcels further down Laurel Way (after 83769) are also no longer part of the Project. As it presently stands, as approved by Respondents, the Project would include 16 "lots", referenced as Lots 1-5, 7-11, and 14-19 (as revisions to the Project now exclude the lots referenced as numbers 6, 12, and 13.) For easy of reference, Figure 2.3-3 gives the outline and reference numbers of the subject lots, and is attached hereto. In regard to "Lot 5", it was actually three parcels with a common owner. As part of the Project it was agreed that the three parcels would be merged. According to Petitioner during oral argument, this has already occurred. The merger of these parcels does not require any PDP or other formal approval. Under the original Project 10 application, these three parcels were to be merged into one and then subdivided into two —with one portion being used for a residence and the other portion being dedicated as public open space (as new Lot ¹6). Under the revised Project application approved by Respondents, the three parcels are merged into one (Lot ¹5), and a portion of that lot will be subject to an easement for open space —thus avoiding the need for a formal subdivision. According to the Administrative Record, as of 1985, (a) Lots 14 and 15 were one single lot with a single owner, (b) Lots 16 and 17 were one single lot with a single owner, and (c) Lots 5 (and the subparts thereof), 8, 9, 10 and 11 were physically contiguous parcels and all had the same owner. (13 AR 6675-6679.) According to the Administration Record (12 AR 6524), as of 1996, (a) Lots 14 and 15 were treated as two parcels and assigned the addresses 3757 and 3761 Laurel Way, and still had a single owner "Dobrasinovic"; (b) Lots 16 and 17 were treated as two parcels and assigned the addresses 3749 and 3753 Laurel Way, and still had a single owner "Beverly"; (c) the three parcels (now comprising Lot ¹5) had common ownership by "Johnson"; (d) Lots 8 and 9 had been sold to "Bruce" and were in common ownership; and (e) Lots 10 and 11 continued common ownership by Chapralis. Allremained undeveloped property. Thus, as of 1996, there were five sets of contiguous undeveloped parcels with common ownership in the Project area. According to the Administrative Record and the assertions of Petitioner (4 AR 2009), as of 2012, (a) Lots 14 and 15 continue to have the same owner; (b) Lots 16 and 17 no longer have a common owner; (c) the three parcels of Lot 5 still have a common owner (who agreed to merge the parcels into one lot); (d) Lots 8 and 9 still have a common owners "Bruce"; and (e) Lots 10 and 11 no longer have a common owner. 11 Thus, as of 2012, there were three sets of contiguous undeveloped parcels with common ownership in the Project, one of whom had already agreed to merger of their parcels. Alleged Vesting of the Right to Develop the Lots All of the parcels which are the subject of this Project have never been developed. There is presently no residence on any of the lots and no evidence that any development permits, such as building permits, have ever been issued for any of these lots. It would seem that under California law, there is no "vested" "right" to develop any of these particular lots. There is no factual or legal foundation for the conclusion by Respondents that there was a vested right to develop each and every one of the parcels by building a house. The only legal reference cited is a local regulation. But application of that regulation is dependent upon the existence of a legally subdivided lot in the first place. More specifically, Respondents made various "findings" in granting the PDP and approval of this Project, which findings conclude that each and all of the parcels in the Project are legal lots, were legally and properly subdivided, and that the property owners of each parcel are legally entitled to develop each parcel with a residence: ... [T]he City Council makes the following additional findings: ~ Each of the lots in the Project area are non-conforming lots which do not comply with the current minimum lot size requirements set forth in the City's Zoning Ordinance for such steeply sloped lots, most of which have slopes of 30/0 or more. ~ Had the Applicant proposed a new subdivision map for the Project area, the City's current code would not have allowed the creation of more than 12 4 or 5 lots on the subject property. However, the lots have already been created by a 1926 subdivision map (the same map which created hundreds of the surrounding neighboring lots which have already been developed) and have since been individually sold to numerous different individuals. ~ No credible evidence has been presented to demonstrate that these lots are unlawful. Under Section 33.2 of the City's Zoning Ordinance, the owners are entitled to develop the lots so long as they comply with all other code requirements. Those requirements include section 32.2's requirement of a planned development permit for lots having a slope greater than 30'/o. ~ Alternative B presents the best compromise between the owners'ights to develop their individual lost and the neighbors'oncerns regarding the overall density and intensity of the development as originally proposed by the Applicant.... (1 AR 6-7.) Section 33.2 states: "Development ofNonconforming Lots. A nonconforming lot may be used for development subject to compliance with all other provisions of this article and other applicable codes. A nonconforming lot may not be further reduced in area or dimension, except by variance." These lots are all undersized for the building of any houses because they are under 10,000 square feet in the first place or are over 10,000 square feet but have such great slope that they are required to be even larger lots before any house can be build. Thus NONE of the lots are able to "comply" with the other provisions of the Code. The only way that they can be developed isifa PDP is issued. The argument of the Respondents is circular: they cannot be developed unless there is a PDP, but there is a "right" to development and therefore a PDP must be issued!? 13 Yet, the Respondents and the Real Parties iIn Interest fail to undertake the underlying interpretive step of determining whether or not these are indeed "nonconforming lots". Otherwise Section 33.2 does not apply in the first place, and there is no "right" to development in the first instance (as assumed by Respondents). The term "nonconforming lot" is defined in the Zoning Ordinance section 2.2 as follows: "Any lot having less area or dimensions than are required in the district in which the lot is located, and that was lawfully created prior to the adoption of the current zoning requirements for lot area or dimensions. Lots not legally established shall be deemed to be illegal lots." (Bold added.) These lots are in the "Residential Hillside" district of Redwood City, and pursuant to Section 4.6 of the Zoning Ordinance and Section 4.7, are subject to certain minimum lot area and lot width. These "current zoning requirements for lot area or dimensions" were originally enacted in 1964 (with Section 4.6 further amended in 1971). Thus each parcel in this Project must be a "legal lot", i.e. legally created and subdivided, as of 1964, for there to even be any argument that it is subject to development under Section 33.2. But there is an added complication: None of these lots were part of the City of Redwood City until annexed in 1969. The County of San Mateo, established back in 1856, became a chartered entity in 1933,1 and only sometime thereafter did the County enact ordinances and regulations including zoning, building, and subdivision requirements. The Court does not have the information as to when. San Mateo County is a Chartered entity. Authority to adopt charters is conferred upon counties by Article XI, Section 7 1/2 of the California Constitution. The Charter of San Mateo County was duly ratified by the qualified electors of the County at an election held November 8, 1932, and was approved by the State legislature and the Secretary of state on January 28, 1933. 14 There was no consideration by Respondents as to whether they were legal lots under applicable regulations and ordinances, and no analysis as to whether these fall within the definition of non-conforming lots because they were not legal in the first place. The findings by Respondents simply jump to the conclusion that these are all "legal non-conforming lots." The Issue ofLot Legality 8'as Raised Below The issue of whether there are actually 16 legal lots upon which 16 houses can be built has been contested by Petitioner (and its members) throughout this PDP and EIR process. Petitioner has questioned lot legality, and has asserted that commonly owned lots must be merged. (See 4 AR 2009.) In the April 13, 2013 letter of counsel for Petitioner to Respondents, it is contested that the ability of Real Parties to rely upon the 1926 subdivision map as creating legal subdivision for purposes of development in the modern day; and explicitly disputes that these are legal non-conforming lots, i.e.,legally subdivided lots. (S AR 3962-3963.) It states: The Citv Must Conduct Its Own Research to Determine Whether All of the Substandard Lots are Trulv Legal Non-Conforming Lots. The only reason the City is even considering allowing the construction of 5,000 square foot residences on 7,000 square foot lots with 30-45'Jo slopes is because it accepted as fact the applicant's assertion that the substandard lots are legal non-conforming. Under the City's zoning ordinance, a developer would need at least 30,000 quare feet to develop any residence on such steeply sloped lots. Redwood City zoning Code $ 32.2(A). This 15 increased minimum lot size reqirement for steeply sloped lots reflects what each Planning Commissioner plainly saw as a fundamental problem with the proposed Project: it attempts to cram too many large residences on too small lots Given this obvious incongruity, the city must make every effort to verify that the proposed lots are, in fact, legal non-conforming. SLW submitted evidence and recent caselaw to the Planning Commission demonstrating that courts willnot recognize a 1926 subdivision map as creating legal lots in compliance with the modern Map Act. Ifthe 1926 map did not create legal, non-conforming lots,it is the burden of the applicant to demonstrate that each of the lots within the Project is legal The applicant has done no such thing. Moreover, SLW submitted evidence to the Planning Commission suggesting that some continugous lots have been conveyed together over the years and only recently subdivided by conveyance without a parcel map. Such lots are clearly not "legal, non-conforming" lots, as the Planning Commission assumed. Finally, members of the public also submitted evidence and testimony, based on research at the County Recorder's office, indicating that at least two lots appear to have been modified through merger and re-subdivision so that they are not [sic] longer identical to the lots shown on the 1926 map. At the very least, before considering approval of this dense residential development, the City must require the applicant to obtain certificates or conditional certificates of compliance for each of these lots. 16 In addition, since there are a number of contiguous lots with common owners, the City must consider requiring the owners to merge these lots to reduce the project's significant impacts. (8 AR 3962-3963.) Respondents took the position that is up to the Petitioner to prove the opposition, i.e.,that Petitioner must prove they are illegal lots. That is contrary to law, as the Government Code provides that one must demonstrate lot legality in order to obtain a development permit. The "finding" by Respondents that there is no evidence that each and every one of the lots are not illegal is not supported by law or facts. Respondents simply make this bald conclusion without any factual or legal support. Indeed, in the Court's review of the Administrative Record, the Court was unable to find any factual discussion, legal analysis, or other substantive consideration and support for the Respondent's "finding". Further, Respondents make the "finding" that each and all of the lots have been conveyed to multiple owners over time, and thus would be established as legally subdivided lots. A review of the Administrative Record reflects evidence to the contrary. For example, at 8 AR 3968-3972, it reflects that Lots 1 and 2 on Block 16 —which is Project lots designated as Lots 14 and 15 — have always been conveyed together and have been in common ownership throughout time. The Court does not have full information on other contigous lots (except for the three parcel which would be merged into Lot 5 for the Project have also been shown to have continued to be transferred as a group and never separately conveyed. 17 California LaivRegarding Lot Legality of Undeveloped Real Property under Antique Subdivision Maps The Court must consider case law specifically dealing with the issue of subdivision of undeveloped adjoining lots in common ownership. Respondents failed to do so, and failed to consider and follow the law in making its decisions about this Project. It appears that Respondents believed, and government entities proceeded, on the assumption that old division maps continue to be viable and establish the division of lots even ifthose lots are not developed until decades later. Starting in at least the past decade, there was a fundamental shift in the law, and particularly in the interpretation and application of the Subdivision Map Act, by the California appellate courts. This was ignored by Respondents. In Gardner v. Countv of Sonoma (2003) 29 Cal.4th 990, 994, the California Supreme Court held that the owner of 158 acres of land, originating from 1000 acres of undeveloped land which was subject to a subdivision map recorded in 1865, prior to enactment of any Subdivision Map Act, showing subdivision of his property into 12 parcels, where the 158 acres has always been in common ownership, did not have 12 legally cognizable subdivided lots for purposes of the