Filed 11/15/19 Fudge v. City of Laguna Beach CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

MARK FUDGE,

Plaintiff, Respondent and Cross-

Appellant,

v.

CITY OF LAGUNA BEACH et al.,

Defendants, Appellants and Cross-

Respondents,

LAGUNA BEACH GOLF AND

BUNGALOW VILLAGE, LLC,

Real Party in Interest, Appellant

and Cross-Respondent.

G056403

(Super. Ct. No. 30-2016-00884488)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, William D. Claster, Judge. Affirmed in part, and reversed in part.

Rutan & Tucker, and Philip D. Kohn for Appellants and Cross-Respondents the City of Laguna Beach, the Laguna Beach City Council, the Laguna Beach Planning Commission and Sue Kempf.

Nossaman, Steven H. Kaufmann, and Elizabeth Klebaner for Appellant and Cross-Respondent Laguna Beach Golf and Bungalow Village, LLC.

King & Spaulding, Peter Hsiao, and Matthew L. Hofer for Respondent and Cross-Appellant Mark Fudge.

* * *

This case involves a challenge to the redevelopment of an 84-acre portion of Aliso Canyon, known as The Ranch at Laguna Beach (the Ranch), and a separate, adjacent two-acre parcel formerly used as a Girl Scout campground (the Scout Camp). Laguna Beach Golf and Bungalow Village, LLC (the Village) owns both properties. In 2014, the City of Laguna Beach, the Laguna Beach City Council, the Laguna Beach Planning Commission and Sue Kempf, former chair of the Planning Commission (collectively the City), approved land use and coastal development permits for a project to renovate and expand the Ranch (the Ranch project). The Ranch project did not include redevelopment of the Scout Camp. After Mark Fudge administratively appealed the approval of the coastal development permit to the Coastal Commission, the Coastal Commission approved a coastal permit conditioned on redevelopment of the Scout Camp (the Scout Camp project). The Village then sought land use permits from the City for the Scout Camp project. The City approved the Scout Camp permits in reliance on the Coastal Commission’s environmental review and approval of the Scout Camp project. Separately, the City approved a site lighting plan for the Ranch project, which was a condition of a prior permit. In both cases, the City did not prepare or certify an Environmental Impact Review (EIR).

Fudge challenged the City’s approval of the site lighting plan and the Scout Camp permits under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.; all further statutory references are to the Public Resources Code unless otherwise stated). The trial court found the Ranch project consisted of redevelopment of the two properties in four phases, with the Scout Camp project being part of Phase 3. It concluded Fudge was barred from challenging the approval of the site lighting plan because he previously had lost on his challenge to the related conditional use permit. It granted his petition contesting the redevelopment of the Scout Camp, finding insufficient evidence supported the City’s determination the Scout Camp project was categorically exempted from CEQA review. The court also determined the City improperly segmented or piecemealed the Scout Camp project by failing to consider Phase 4 – the future construction of a new entry road and remodeling of a hotel building – and that the City’s approval of the Scout Camp permits violated various provisions of the City’s Municipal Code.

The City and the Village appeal from the trial court’s findings and conclusions on the Scout Camp project. After independently reviewing the record, we conclude the City properly applied the existing facilities categorical exemption to the Scout Camp project. In addition, the City’s approval of the Scout Camp permits did not violate its Municipal Code. We reverse the judgement as it relates to the Scout Camp project. Mark Fudge appeals from the trial court’s findings and conclusions on the site lighting plan. We conclude Fudge cannot challenge the City’s approval of the site lighting plan under CEQA and, in any event, the City properly determined the lighting plan was categorically exempt. We therefore affirm the judgment on the site lighting plan.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. The Ranch Project

In May 2014, the City approved a conditional use permit (CUP No. 14-574) and a coastal development permit (CDP No. 14-573) on the Village’s proposal to renovate, remodel, and expand the Ranch. The City also determined the Ranch project was categorically exempt from CEQA review. Fudge administratively appealed the City’s approval of the coastal development permit to the Coastal Commission.

In January 2015, the Coastal Commission approved a coastal development permit (CDP A-5-LGB-14-0034) for the Ranch project, and in October 2015, it issued the permit with Standard and Special Conditions, including several conditions relating to the Scout Camp. According to the Coastal Commission staff’s report, the Scout Camp is a two-acre landlocked parcel located at the northeast corner of the Ranch’s golf course. After being granted the property in 1935, the Laguna Beach Girl Scouts used the property as a camp and event space into the 1960’s. The property changed owners several times before it “fell into disrepair in the 1970[’]s and for decades was used as a dumping ground and as a maintenance yard for the adjacent golf course. The Athens Group acquired the Scout Camp parcel in 2007, but it continued to be used as a dump and maintenance yard until acquired by [the Village] in 2013.” The Village then developed the parcel without a permit. “The unpermitted development included [the] removal of debris and trash, Eucalyptus tree trimming and removal, removal of other vegetation, and installation of a 7,000 square foot concrete pad, walkways, a vegetable garden, and fruit orchard. The [Village] also removed an existing chain link fence and replaced it with a wooden fence. After this unpermitted development, the [Village] used the space for events including weddings and fundraisers.” The Coastal Commission noted a member of the public had complained the Village had hosted “weddings [with] up to 1500” guests and had added “event lighting . . . to the grove.”

To remediate the Ranch project’s adverse impact on affordable or lower cost overnight accommodations and recreational facilities, the Village proposed – and the Coastal Commission incorporated as Special Conditions – several remediation measures, including that the Village (1) remove unpermitted development and revegetate the Scout Camp; (2) host a minimum of 12 overnight, small group (40-person maximum) camping experiences annually at the Scout Camp, especially for under-privileged youths and scouting organizations; and (3) host limited special events, such as banquets.

According to the Coastal Commission staff’s finding, the Village “propose[d] to continue to use the Scout Camp parcel for events including wedding ceremonies, group banquets, team building activities, primitive overnight camping, educational tours, yoga and other fitness activities, and organic gardening instruction.” (Italics added.) The coastal development permit imposed restrictions on camping and special events, including limiting special events to daytime, with no more than 150 people, no more than 12 events per month (including overnight camping), sound levels at 65 decibel levels or lower and no glare or light intrusion into surrounding native areas. The event restrictions included some, but not all, of the recommendations Coastal Commission staff ecologist Dr. John Dixon had proposed “to avoid impacts to [the] surrounding native habitats.” The Coastal Commission found that as conditioned, the proposed overnight camping and daytime events “will not result in significant degradation of [the] adjacent habitat, recreation areas, or parks and is compatible with the continuance of those habitat, recreation, and park areas.” It required the Village to submit to the Coastal Commission Executive Director for review and approval the related noise management plan, lighting plan, landscaping plan, and group camping management plan and to obtain approval from the City for the proposed uses.

In March 2015, Fudge filed an action in Los Angeles County Superior Court challenging the City’s approval of the Ranch project permits and the Coastal Commission’s approval of the coastal development permit. The trial court found the claims against the City were time-barred, and its ruling was affirmed on appeal. (Fudge v. California Coastal Commission (Dec. 7, 2016, B268824) [nonpub. opn.].) The trial court also dismissed all claims against the Coastal Commission, finding some claims time-barred and the remaining claims without merit. These rulings also were affirmed on appeal. (Fudge v. California Coastal Commission (Oct. 3, 2018, B281700) [nonpub. opn.].)

In November 2015, to satisfy the Coastal Commission’s Special Conditions, the Village applied to the City for a land use permit to allow overnight camping and special event use on the Scout Camp. The Planning Commission approved the Scout Camp permit application after its staff concluded that “the proposed events and development of the Scout Camp have been extensively reviewed and approved by the Coastal Commission, are similar to and no more obnoxious or detrimental to the welfare of the neighborhood than other uses that are permitted in the Recreation Zone . . . , and will not result in an environmental impact pursuant to CEQA.”

Per CUP No. 14-574, the Village also submitted for approval a revised outdoor lighting plan for the Ranch. The Planning Commission approved the site lighting plan after its staff found the plan constituted “a minor facility alteration, without any environmental impact and would not result in any expansion of use” because the “revised lighting plan would result in an overall reduction in site lighting and . . . [in] remov[al of] many of the existing facility outdoor lighting fixtures that are not in compliance with the Good Neighbor Outdoor Lighting Ordinance.”

Fudge appealed the Planning Commission’s decisions to the City Council. Fudge argued the City was the lead agency on the Scout Camp project and therefore could not rely on the Coastal Commission’s environmental review and approval. He also argued no substantial evidence supported the application of the existing facilities categorical exemption because the proposed permits would result in an “expansion of use.” Fudge also claimed the City could not approve the land use permits because the Scout Camp is not a “legal building site,” based on its Real Property Report (RPR), and the City’s approval was inconsistent with the City’s Municipal Code and its general plan.

In October 2016, the City Council unanimously voted to deny Fudge’s appeal, and adopted a resolution memorializing its findings and determinations. The City Council’s resolution stated that the Coastal Commission had reviewed and approved a coastal development permit for the Scout Camp project, including the uses of the Scout Camp area, and its review and approval is a substitute for and functionally equivalent to CEQA review. The resolution declared the proposed uses of the Scout Camp are categorically exempt under section 15301 of the CEQA Guidelines because they “would result in only a negligible expansion of use.” (Cal. Code Regs., tit. 14, § 15301.) The City Council also approved the site lighting plan for the Ranch project.

Fudge filed a petition for writ of mandate challenging the City’s approval of the Scout Camp permits and the site lighting plan for the Ranch. In his opening brief, Fudge claimed the Ranch project consisted of four phases: “Phase 1 included remodeling and demolition of existing structures and removal of vegetation and habitat to facilitate further work.” “Phases 2 and 3 (later combined into one application) included expansion and remodeling of the hotel, restaurant, banquet and golf course facility, outdoor dining space, assembly space, retail space, and the pro shop.” “Phase 4 will include remodel of a hotel building and alterations to the entry road.” After describing his prior litigation, Fudge stated that the Coastal Commission’s Coastal development permit “authorized the illegal Scout Camp development and use of the parcel ‘after the fact,’ even though the [Village] had not sought a City permit. [Citation] The CDP also required the [Village] to submit a lighting plan for the Scout Camp, but it did not address lighting for the Project as a whole.”

Fudge argued the City improperly segmented the Ranch project when it granted separate permits for the different phases “to avoid environmental review for the Project as a whole.” Fudge claimed “the City separately considered and issued permits for the Project on four occasions: building permits for Phase 1 in December 2013; coastal development, conditional use and design review permits for Phases 2 and 3 in May 2014; the lighting plan in October 2016; and the conditional use and design review permits for the Scout Camp in October 2016. The fifth will come if and when the [Village] applies for permits covering Phase 4.” (Italics added.)

Fudge challenged the City’s approval of the site lighting plan without CEQA review, arguing that the City’s finding of CEQA exemption illegally relied on mitigation measures.

As to the City’s approval of the Scout Camp permits, Fudge challenged it on several grounds. First, he argued the City was the lead agency on the Scout Camp project and therefore could not rely on another agency’s purported CEQA-equivalent determination. Second, he argued substantial evidence supported a fair argument that the approved Scout Camp uses will have a significant environmental impact. Third, he asserted the City’s finding of a CEQA exemption illegally relied on mitigation measures, which were the restrictions imposed by the Coastal Commission. Fourth, the City’s application of an existing facilities exemption was not supported by substantial evidence because the Coastal Commission’s development permit authorized new vegetation and new uses, not existing facilities and uses.

Finally, Fudge argued the approval of the Scout Camp permits violated the City’s Municipal Code. Specifically, he claimed the City could not approve the permits because the Scout Camp is not a legal building site, as stated in the parcel’s RPR. He also argued that because the Scout Camp is in a floodplain, the Village was required to obtain a floodplain development building permit before any construction or other development could proceed. Because the Village never sought a floodplain building permit, Fudge asserted the City could not issue the use permits.

The City opposed the petition. It argued it properly applied the categorical exemptions. On the Village’s site lighting plan, its staff had determined the “plan would result in an overall reduction in site lighting” and include removing “many of the existing facility outdoor lighting fixtures that are not in compliance.” Thus, the site lighting plan involved “negligible or no expansion of use beyond that existing at the time of the lead agency’s determination.” As to the Scout Camp, the Coastal Commission had found the parcel was “an already-disturbed area used as a dump and maintenance yard . . . as well as for camping purposes” and determined “the proposed overnight camping and special event uses would not have any impact on surrounding native habitats.”

The City also argued its approval of categorical exemptions was not based on mitigation measures because the Coastal Commission’s special conditions are not mitigation measures, but rather, features that are “incorporated into the design or operation of a proposed project.”

As to the purported violations of the City Municipal Code, the City argued the “legal building site” status of the parcel is “inconsequential because the overnight camping and special events uses previously approved by the Coastal Commission are directly related to the other uses approved for the Real Party’s property.” In any event, its staff had found the property is “a building site and has been used for many years prior to the current ownership by both the previous owner . . . and many years prior to that as a camping area for scouting activities. . . . The language in the June 11, 2013 Real Property Report (RPR) cited by the appellant was intended simply to reflect that portions of the property cannot be developed ‘individually’ (that is separate from common joint use with other portions of the property).”

Finally, the City argued Fudge forfeited his argument the City could not approve the Scout Camp permits in the absence of a floodplain building permit because he failed to raise this issue when he appealed the Planning Commission’s decision to the City Council. It also noted that its 2014 Ranch project approval recognized the property was in a designated “special flood hazard area” and required new structures to comply with the floodplain design standard. The City urged the trial court to reject Fudge’s floodplain permit argument because it recently approved a floodplain building permit for the Ranch project.

In separately opposing Fudge’s petition, the Village argued that Fudge’s piecemealing or segmentation claim was time-barred. As to the City’s application of the existing facilities exemption to the Scout Camp, the Village argued the City could rely on the Coastal Commission’s review because the Coastal Commission was the first agency to address the Scout Camp uses. It also argued the City could apply the existing facilities exemption even if the existing facilities or use consisted of unpermitted development.

The trial court granted in part and denied in part Fudge’s petition. It concluded the approval of uses of the Scout Camp was not exempt from further CEQA review either (1) on the basis of the categorical exemptions in section 15301 of the CEQA Guidelines or (2) on the basis of the environmental review supporting the Coastal Commission’s decision to approve a coastal development permit. In rejecting the City’s determination of a categorical exemption, the court explained that “[a]lthough there is evidence that events were occurring at the Scout Camp, albeit unpermitted, neither the City nor [the Village] point to any evidence in the administrative record that sets forth the number or size of events that were being held at the Scout Camp before the application process. Without this information, there is not substantial evidence to support the City’s determination that the proposed use will result in negligible expansion of the existing use.” As to reliance on the Coastal Commission’s findings as an EIR substitute, the court determined the City was the lead agency on the project and noted that section 15253, subdivision (c), of the CEQA Guidelines provide the “substitute document prepared by the [certified] agency [here, the Coastal Commission,] shall not be used by other permitting agencies in place of an EIR or negative declaration.”

The court also determined the City improperly segmented its environmental review of the Scout Camp by ignoring Phase 4 of the Ranch project, the Scout Camp area was not a legal building site under the City’s Municipal Code, and the City did not comply with its floodplain building permit requirements. The court found Fudge’s challenge to the site lighting plan barred under the doctrine of res judicata because the related conditional use permit was the subject of the prior March 2015 Los Angeles litigation.

II

DISCUSSION

“The basic purposes of CEQA are to: [¶] (1) Inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities. [¶] (2) Identify ways that environmental damage can be avoided or significantly reduced. [¶] (3) Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible. [¶] (4) Disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved.” (CEQA Guidelines, Cal. Code Regs., tit. 14 (“Guidelines”), § 15002.)

“To achieve these goals, CEQA and the implementing regulations provide for a three-step process. In the first step, the public agency must determine whether the proposed development is a ‘project,’ that is, ‘an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment’ undertaken, supported, or approved by a public agency.” (Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 286 (Tomlinson), quoting § 21065.) If the proposed activity is a project, the public agency must decide “whether it is exempt from compliance with CEQA under either a statutory exemption (§ 21080) or a categorical exemption set forth in the regulations (§ 21084, subd. (a); [Guidelines], § 15300). A categorically exempt project is not subject to CEQA, and no further environmental review is required. [Citations.] If the project is not exempt, the agency must determine whether the project may have a significant effect on the environment. If the agency decides the project will not have such an effect, it must ‘adopt a negative declaration to that effect.’ (§ 21080, subd. (c); see [Guidelines], § 15070; [citations].) Otherwise, the agency must proceed to the third step, which entails preparation of an environmental impact report before approval of the project. (§§ 21100, subd. (a), 21151, subd. (a).)” (Tomlinson, supra, 54 Cal.4th at p. 286.)

“Under CEQA, a ‘lead agency’ is responsible for determining whether an EIR is required for a project and, if so, for preparing the EIR and including it in any report on the project.” (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 903 (Planning).) CEQA defines a “‘[l]ead agency’” as “the public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment,” whereas a “‘[r]esponsible agency’ means a public agency, other than the lead agency, which has responsibility for carrying out or approving a project.” (§§ 21067, 21069.) “The lead agency’s function in the environmental review process is so important that it cannot be delegated to another body.” (Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, 712-713.)

A. The Scout Camp Project

The parties dispute whether the Scout Camp project is part of the Ranch project and whether the City is the lead agency for the Scout Camp project. Fudge argues the Scout Camp is not a separate project and the City is the lead agency. He further claims – and the trial court determined – the City improperly piecemealed CEQA review of the whole project when it approved the Scout Camp project without considering Phase 4 of the Ranch project. (See Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283-284 [CEQA mandates that “environmental considerations do not become submerged by chopping a large project into many little ones—each with a minimal potential impact on the environment—which cumulatively may have disastrous consequences”].) The City and the Village assert the Scout Camp project is a separate project and the Coastal Commission is the lead agency for the project because it acted first in approving the Scout Camp uses. Under their interpretation, no basis exists for a piecemealing claim. (See Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1223 (Banning Ranch) [“project definition is the starting point of a piecemealing challenge”].)

“‘Project’ is a term of art.” (Banning Ranch, supra, 211 Cal.App.4th at p. 1220.) “CEQA broadly defines a ‘project’ as ‘an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and . . . [¶] . . . [¶] . . . that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.’ [Citation.] [¶] The statutory definition is augmented by the Guidelines [Cal. Code Regs., tit. 14, § 15000 et seq.], which define a ‘project’ as ‘the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. . . .’” (Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1222.) “[W]hen the purpose of the reviewed project is to be the first step toward future development” or “when the reviewed project legally compels or practically presumes completion of another action,” the lead agency generally must review the project in conjunction with the other project. (Banning Ranch, supra, 211 Cal.App.4th at p. 1223, citing cases.)

“On the other hand, two projects may properly undergo separate environmental review (i.e., no piecemealing) when the projects have different proponents, serve different purposes, or can be implemented independently.” (Banning Ranch, supra, 211 Cal.App.4th at p. 1223.) As the Supreme Court has explained, “an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396 (Laurel Heights).) “[T]he facts of each case will determine whether and to what extent an EIR must analyze future expansion or other action.” (Ibid.) We review de novo whether two purported projects constitute, in essence, one project for the purposes of CEQA. (Banning Ranch, supra, 211 Cal.App.4th at p. 1224.)

As the foregoing indicates, a piecemealing challenge cannot be premised on the public agency’s failure to consider a project in conjunction with a previously approved project. The reason is that a previously approved project is not a “future expansion or action” or “a reasonably foreseeable consequence” of a currently reviewed project. (Laurel Heights, supra, 47 Cal.3d at p. 396, italics added.) Thus, the City’s failure to consider the previously approved phases of the Ranch project when approving the Scout Camp project cannot sustain a piecemealing challenge.

To the extent Fudge is claiming the City should have considered the Scout Camp project when it approved the Ranch project, Fudge is seeking to relitigate the City’s approval of the Ranch project permits. As detailed above, Fudge lost his challenge to those permits. In any event, when the City approved the Ranch project, nothing suggested the Ranch project was “the first step toward” the Scout Camp project or that the Ranch project “legally compels or practically presumes completion of” the Scout Camp project. (Banning Ranch, supra, 211 Cal.App.4th at p. 1223, citing cases.) Nor does the record support a finding that the Scout Camp project was “a reasonably foreseeable consequence” of the Ranch project. (Laurel Heights, supra, 47 Cal.3d at p. 396.) There is no evidence the Village was contemplating the Scout Camp project when it applied to the City for approval of the Ranch project. Rather, the Scout Camp project was proposed to remedy problems the Coastal Commission had identified with the Ranch project. The proposal was “a positive effort” between the Village and the Coastal Commission “to improve the project for the benefit of the community and address existing . . . concerns,” not an attempted “evasion of CEQA.” (Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1352 (Wollmer).) In short, the Scout Camp project is separate from the Ranch project.

The trial court concluded the City improperly piecemealed environmental review of the Scout Camp project when it failed to consider the Scout Camp project in conjunction with Phase 4 of the Ranch project. We conclude Fudge failed to exhaust his administrative remedies on this piecemealing claim. (See Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536 [“‘The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level. [Citation.]’ [Citation.] An appellate court employs a de novo standard of review when determining whether the exhaustion of administrative remedies doctrine applies.”].) An action may not be brought to challenge an agency’s decision “unless the alleged grounds for noncompliance with [CEQA] were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing.” (§ 21177, subdivision (a); accord, Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 282 [rejecting piecemealing claim because petitioner “failed to object to the City about the alleged piecemeal treatment of the Project and thus failed to exhaust its administrative remedies”].) Here, Fudge’s appeal of the Planning Commission’s approval of the Scout Camp permits did not assert a piecemealing claim. Although Fudge raised piecemealing in his prior challenge to the City’s approval of the Ranch project, there was no proposed development of the Scout Camp when the City approved the Ranch project. Thus, the prior piecemealing claim did not fairly raise the specific piecemealing argument at issue here.

Even if not forfeited, we would reject the instant piecemealing claim.

The record does not support a finding that Phase 4 is necessary for the completion of either the Ranch project, as approved, or the Scout Camp project. Stated differently, nothing indicates the Scout Camp project “legally compels or practically presumes completion of” Phase 4 (Banning Ranch, supra, 211 Cal.App.4th at p. 1223), or that Phase 4 is “a reasonably foreseeable consequence” of the Scout Camp project (Laurel Heights, supra, 47 Cal.3d at p. 396). In short, the Scout Camp project is a separate project from Phase 4.

Having concluded the Scout Camp project is a separate project from the Ranch project, we nevertheless conclude the lead agency for the Scout Camp project is the City, not the Coastal Commission. Section 15051 of the Guidelines provides the criteria for identifying the lead agency on a project. It provides in pertinent part:

“(b) If the project is to be carried out by a nongovernmental person or entity, the lead agency shall be the public agency with the greatest responsibility for supervising or approving the project as a whole.

“(1) The lead agency will normally be the agency with general governmental powers, such as a city or county, rather than an agency with a single or limited purpose such as an air pollution control district or a district which will provide a public service or public utility to the project.

. . .

“(c) Where more than one public agency equally meet the criteria in subdivision (b), the agency which will act first on the project in question will normally be the lead agency.”

Thus, under section 15051, subdivision (c), of the Guidelines, the public agency that acts first will be the lead agency only if two or more public agencies equally satisfy section 15051, subdivision (b). But under section 15051, subdivision (b)(1), of the Guidelines, a city or county has precedence over the Coastal Commission, which has the single or limited purpose of protecting and developing coastal areas under the Coastal Act. Therefore, the City is the lead agency for the Scout Camp project even though it was not the first party to act on the project.

The City, however, argues “the lead agency concept is one that has relevance only when a project is not exempt from CEQA and will necessitate the preparation of an environmental report or negative declaration.” We disagree, as the lead agency also determines whether a project is categorically exempt from CEQA review. (See Planning, supra, 83 Cal.App.4th at p. 903 [“‘lead agency’ is responsible for determining whether an EIR is required for a project”].)

B. Substantial Evidence Supported the City’s Application of a Categorical Exemption to the Scout Camp Project

As the lead agency, the City determined the proposed Scout Camp uses were categorically exempt under the “Class 1” exemption for existing facilities under section 15301 of the Guidelines, which provides an exemption from CEQA review for “minor alteration of existing public or private structures, facilities, . . . or topographical features, involving negligible or no expansion of existing or former use.” We review de novo whether substantial evidence supports the City’s factual determination that a project falls within a categorical exemption. (California Unions for Reliable Energy v. Mojave Desert Air Quality Management Dist. (2009) 178 Cal.App.4th 1225, 1239-1240; see also Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 113-114 [“The trial court’s conclusions are not binding on us. We review the administrative record independently.”].) Similarly, “[t]o the extent the question presented turns on an interpretation of CEQA, the Guidelines, or the scope of a particular exemption, it is one of law that we review de novo. [Citation.]” (World Business Academy v. California State Lands Com. (2018) 24 Cal.App.5th 476, 492 (World Business Academy).)

“Applying the substantial evidence test in the context of a court reviewing an agency’s . . . [exemption] decision . . . means determining whether the record contains relevant information that a reasonable mind might accept as sufficient to support the conclusion reached. Although the agency bears the burden to demonstrate with substantial evidence that its action fell within the exemption, all conflicts in the evidence are resolved in its favor and all legitimate and reasonable inferences are indulged in to uphold findings, if possible. [Citations.]” (Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170 Cal.App.4th 956, 968.)

Here, in determining that the existing facilities exemption applied, the City relied on its Planning Commission staff’s findings, and its staff, in turn, relied on the findings of the Coastal Commission staff. (See Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 901 [“An agency may rely on the expertise of its planning staff in determining whether a project will not have a significant impact on the environment.”].)

As noted, the Coastal Commission staff found the Scout Camp had been used for camping purposes and later as “a dump and maintenance yard” before the Village acquired it in 2013. The Village then developed the property without a permit, and used the space for events such as weddings with up to 1500 guests. The Coastal Commission approved the overnight camping and special event uses of the Scout Camp with restrictions, concluding the approved uses “will not result in significant degradation of the adjacent habitat, recreation areas, or parks and is compatible with the continuance of those habitat, recreation, and park areas.” (Italics added.)

The trial court concluded that although the Coastal Commission staff’s finding would support the City’s factual determination the Scout Camp was being used for social events, no evidence showed the intensity of the prior and existing usage. The court noted that “neither the City nor [the Village] point to any evidence in the administrative record that sets forth the number or size of events that were being held at the Scout Camp before the application process.” But when the Village proposed the overnight camping and special events uses, including the frequency and amount of participants, the Village claimed those events merely continued the prior usage of the Scout Camp. The Coastal Commission referenced a complaint that weddings with up to 1500 guests were being held on the Scout Camp and event lighting had been added. It imposed additional restrictions on the intensity of the usage – including site lighting requirements and approval of management plans – to maintain the “continuance” of the habitat, recreation and park areas.

In addition, the existing facilities exemption is based on the Resources Agency’s finding that the “classes of projects listed . . . do not have a significant effect on the environment,” (Guidelines, § 15300), and the Coastal Commission determined the approved Scout Camp uses “will not result in significant degradation of [the] adjacent habitat, recreation areas, or parks.” Given that the Coastal Commission’s environmental review is functionally equivalent to the CEQA EIR process, it can reasonably be inferred that the approved Scout Camp uses constitute “negligible or no expansion of existing or former use.” (See Santa Barbara County Flower & Nursery Growers Assn. v. County of Santa Barbara (2004) 121 Cal.App.4th 864, 872 [“CEQA authorizes state agencies with environmental responsibilities, including the [Coastal] Commission, to operate under their own regulatory programs that replace the EIR process with a comparable form of environmental review. [Citations.]” ].) Thus, substantial evidence supports the City’s determination that the existing facilities exemption applied.

Categorical exemptions, such as the existing facilities exemption, are subject to exceptions enumerated in the relevant regulation. (World Business Academy, supra, 24 Cal.App.5th at p. 492.) As the party challenging the applicability of a categorical exemption, Fudge had the burden to produce evidence supporting an exception to the exemption. (Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943, 955-956 (Berkeley Hillside).)

The most commonly raised exception is the “unusual circumstances” exception. (Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1259.) Fudge contends the whole project presents unusual circumstances because the Ranch project involves extensive remodeling and expansion and the “Scout Camp permit authorizes the use of a new 7,000 square foot concrete pad and allows up to 1,800 persons to use the Scout camp each month and 21,600 per year for special events.” He further contends unusual circumstances exist because of the project’s location in an environmentally sensitive area. Although couched as “unusual circumstances,” Fudge’s arguments involve the first three exceptions enumerated in section 15300.2 of the Guidelines, specifically, the location exception, the cumulative impact exception, and the significant effect exception.

Under the location exception, “Classes 3, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located -a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant.” (Guidelines, § 15300.2, subd. (a).) However, the existing facilities categorical exemption is a Class 1 exemption. Thus, the location exception does not apply. In addition, although the Scout Camp is located in an environmentally sensitive area, the Scout Camp itself is not a particularly environmentally sensitive area. It has been used as a dump for decades before being redeveloped and used for special events.

The cumulative impact exception applies to all categorical exemptions “when the cumulative impact of successive projects of the same type in the same place, over time is significant.” (Guidelines, § 15300.2, subd. (b).) The record does not show the Ranch project and the Scout Camp project are “successive projects of the same type in the same place.” The Ranch project renovates and expands the hotel and associated hospitality amenities on the Ranch parcel. The Scout Camp project clean ups the Scout Camp, a separate adjacent land parcel, and provides limited special events onsite. In addition, the City concluded both the Ranch project and the Scout Camp project are categorically exempt under the existing facilities exemption. As noted, the categorical exemption is a conclusion that the project did not have a significant effect on the environment. “Just as zero when added to any other sum results in no change to the final amount, so, too, when no environmental impacts cognizable under CEQA are added to the alleged environmental impacts of past projects, there is no cumulative increased impact” (Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 Cal.App.4th 786, 799.) Fudge has not shown otherwise.

Finally, under the significant effect exception, “[a] categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (Guidelines, § 15300.2, subd. (c).) Fudge has not shown that permitting “up to 1,800 persons to use the Scout camp each month and 21,600 per year for special events” is unusual for similarly exempted projects. Nor has he shown “a reasonable possibility that the [Scout Camp project] will have a significant effect on the environment.” (Guidelines, § 15300.2, subd. (c).) “Where a project involves ongoing operations or a continuation of past activity, the established levels of a particular use and the physical impacts thereof are considered to be part of the existing environmental baseline.” (North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 872.) “This baseline principle means that a proposal to continue existing operations without change would generally have no cognizable impact under CEQA.” (Id. at pp. 872-873.) We note the record suggests up to 1500 people were attending single events at the Scout Camp, but the permitted use reduced the number of persons onsite. As to the 7,000 square foot concrete pad, it already existed on the Scout Camp before the City approved the permits. How present conditions came to exist may interest enforcement agencies, but “that is irrelevant to CEQA baseline determinations—even if it means preexisting development will escape environmental review under CEQA.” (Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 559.) In sum, Fudge has not shown an exception to the existing facilities exemption applies.

Finally, Fudge argues the City’s approval of the Scout Camp permits impermissibly relied on mitigation measures, such as the timing, occupancy, sound and lighting restrictions. Fudge, however, conflates project conditions or features with mitigation measures. Berkeley Hillside, supra, 241 Cal.App.4th 943, is instructive. There, two individuals sought to build a large house on a lot they owned. (Id. at p. 947.) The City approved the related use permit and found the project categorically exempt under the single-family residence and the in-fill development exemptions. (Ibid.) In approving the permit, the City imposed various conditions, including a “construction traffic management plan.” (Id. at p. 959.) The trial court rejected a writ of mandate challenging the City’s decision. (Id. at p. 951.)

On appeal, the petitioners argued “imposition of traffic mitigation measures was ‘fatal’ to the categorical exemptions, because the fact the project ‘requires mitigation’ means it cannot be subject to such an exemption.” (Berkeley Hillside, supra, 241 Cal.App.4th at p. 958.) The appellate court rejected the argument, concluding that the traffic plan “is not proposed subsequent action taken to mitigate any significant effect of the project, and therefore is not a mitigation measure that precludes the application of a categorical exemption.” (Id. at p. 961.) Here, the Coastal Commission imposed various conditions on the Scout Camp camping and special event use, including timing and occupancy restrictions. Those conditions were part of the approved Scout Camp project and not subsequent mitigation measures. (See Wollmer, supra, 193 Cal.App.4th at p.1352 [developer’s agreement during permitting process to dedicate “a five-foot right-of-way, enabling the City to improve the San Pablo and Ashby Avenues intersection, was not a CEQA mitigation measure for project impacts, but a component of the project that assisted the City with an existing traffic issue”].)

C. The City’s Approval of the Scout Camp Permits Did Not Violate Its Municipal Code

Fudge contends the City’s approval of the Scout Camp permits violated various zoning provisions of the Laguna Beach Municipal Code (LMBC). We disagree based on our independent construction of the pertinent municipal ordinances. (Welshans v. City of Santa Barbara (1962) 205 Cal.App.2d 304, 308 [“The construction to be given a statute or a municipal ordinance generally is a question of law.”].)

1. Legal Building Site

Section 25.08.004 of the LBMC provides: “No building permit and no certificate of use and occupancy shall be issued for a building or use of land until the director of community development has verified that the parcel of land upon which such building or use of land is to be established is a building site which may be used for the uses permitted in the zone in which it is located.” Relying on a statement in the property’s Real Property Report (RPR), Fudge contends the Scout Camp parcel is not a legal building site. However, he has not shown that the City is bound by the RPR’s statement that the Scout Camp is not a legal building site. As the City notes, its staff found the Scout Camp is “a building site and has been used for many years prior to the current ownership by both the previous owner . . . and many years prior to that as a camping area for scouting activities. The language in the June 11, 2013 Real Property Report (RPR) cited by the appellant was intended simply to reflect that portions of the property cannot be developed ‘individually’ (that is separate from common joint use with other portions of the property).”

Fudge contends the City staff’s finding is inconsistent with the LMBC’s requirements for a legal building site. Specifically, he contends the Scout Camp is not a legal building site because it is landlocked and does not abut a street or access road. However, the Municipal Code also provides that “[a] parcel of land that does not meet the foregoing requirements is not a building site unless otherwise validated in accordance with Section 25.56.020 of this code.” (LMBC, § 25.08.004.) Section 25.56.020 provides that “any parcel of land or lot which has been lawfully created and has received a building permit for the establishment and use of any building or structure, but which does not comply with the current access standards of this code, shall nevertheless be conclusively presumed to be a building site to the extent that any nonconformity arises solely out of a lack of compliance with current access standards.” (LMBC, § 25.56.020.) Thus, the mere fact that the Scout Camp parcel is landlocked does not preclude it from being a legal building site. Moreover, when the Scout Camp and the Ranch properties are viewed as a single property, the Scout Camp would meet the access requirements. Accordingly, the City could issue the use permits for the Scout Camp.

2. Floodplain Building Permit

Section 25.38.042 of LBMC provides: “A floodplain development building permit shall be obtained before any construction or other development, including manufactured homes, within any area of special flood hazard established in Section 25.38.031. Application for a floodplain development building permit shall be made on forms furnished by the city of Laguna Beach. The floodplain development building permit is additional to any other required permit, including a coastal development permit.” Fudge contends the City could not approve the Scout Camp permits because the Village never obtained a floodplain building permit. Fudge cannot raise this claim on appeal because he failed to exhaust his administrative remedies. His administrative appeal to the City never raised the claim that the City could not approve the Scout Camp permits because the Village never obtained a floodplain building permit. The generic references to the fact that Scout Camp is prone to flooding, and references to floodplain building permits in prior litigation, including the proceeding before the Coastal Commission, did not fairly notify the City of the floodplain permit claim as it relates to the Scout Camp project.

In any event, the Village’s failure to obtain a floodplain building permit did not deprive the City of its authority to approve the Scout Camp permits. Although a flood plain building permit must be obtained before “any construction or other development,” section 25.38.042 does not provide that a floodplain building permit must be obtained before applying for another permit. Rather, it provides that the “floodplain development building permit is additional to any other required permit, including a coastal development permit.” (LMBC, § 25.38.042, italics added.) Thus, the floodplain building permit is not a prerequisite for application or approval of other permits, such as the permits at issue here.

D. The City Was Not Required to Prepare and Certify an EIR Before Approving the Site Lighting Plan

Fudge challenged the City’s approval of the site lighting plan and its related determination that the lighting plan was categorically exempt from CEQA under the existing facilities exemption. The trial court concluded he was precluded from making this claim because he previously challenged the related conditional use permit and lost. Fudge contends the trial court erred in concluding he was barred from raising the claim under the doctrine of res judicata, as his prior claims were not resolved on the merits. We conclude his challenge to the City’s approval of the site lighting plan lacks merit.

The City’s approval of the site lighting plan was a condition of a prior conditional use permit. As this court has observed, once a conditional use permit has been approved under CEQA, subsequent approvals were not separate projects subject to CEQA review but “separate steps in the completion of the [project].” (Madrigal v. City of Huntington Beach (2007) 147 Cal.App.4th 1375, 1382.)

In any event, substantial evidence supported the City’s determination that the existing facilities categorical exemption applied. As noted, the Planning Commission staff found the “revised lighting plan would result in an overall reduction in site lighting and . . . [in] remov[al of] many of the existing facility outdoor lighting fixtures that are not in compliance with the Good Neighbor Outdoor Lighting Ordinance.” Fudge contends the site lighting plan presented unusual circumstances because the project as a whole is unusual in size and scope. However, both the Coastal Commission and the City determined that the Ranch project, which was proposed with a site lighting plan, did not have a significant impact on the environment. The Ranch already had preexisting outdoor lights and the revised site lighting plan would reduce the existing impact of the outdoor lights. On this record, Fudge failed to show an exception to the categorical exemption.

Fudge also contends the revised lighting plan included mitigation measures, such as additional shielding on pole lights. For the same reasons discussed above, the purported “mitigation measures” were part of the proposed lighting project and not subsequent actions to mitigate the impact of the lights. (Wollmer, supra, 193 Cal.App.4th at p. 1352.) Thus, the City did not impermissibly rely on mitigation measures to find a categorical exemption.

III

DISPOSITION

The denial of Fudge’s petition challenging the City’s approval of the site lighting plan is affirmed, and the grant of Fudge’s challenge to the City’s approval of the Scout Camp permits is reversed. Appellants are entitled to recover their costs on appeal.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.