Save Our Heritage Organisation v. City of San Diego

Filed 5/28/15

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAVE OUR HERITAGE ORGANISATION, D063992

Plaintiff and Appellant,

v. (Super. Ct. No.
37-2012-00102270-CU-TT-CTL)
CITY OF SAN DIEGO et al.,

Defendants and Respondents;

THE PLAZA DE PANAMA COMMITTEE,

Real Party in Interest and Appellant.

APPEALS from a judgment of the Superior Court of San Diego County, Timothy

B. Taylor, Judge. Affirmed in part and reversed in part.

Brandt-Hawley Law Group and Susan Brandt-Hawley for Plaintiff and Appellant.

Seltzer Caplan McMahon Vitek and G. Scott Williams for Real Party in Interest

and Appellant.

Jan I. Goldsmith, City Attorney, Daniel F. Bamberg, Assistant City Attorney, and

Jana Mickova Will, Deputy City Attorney, for Defendants and Respondents.
 Balboa Park, a large urban park created on pueblo lands almost 150 years ago

(Stats. 1870, ch. XLII, § 1, p. 49), includes within its confines and as its central core the

buildings and plazas designed and constructed for the 1915 Panama-California

Exposition and the adjoining buildings and improvements subsequently constructed for

the 1935 California Pacific International Exposition (the Complex). When visitors

approach from the west to enter the Complex, they traverse a canyon via the Cabrillo

Bridge (the Bridge), a significant part of the original 1915 design and construction. The

Bridge and the Complex were declared a National Historic Landmark and a National

Historic Landmark District nearly 40 years ago. The proposed alterations to the Bridge,

an integral element of a revitalization project (the Project) spearheaded by the Committee

but opposed by the Save Our Heritage Organisation (SOHO), has become the focal point

of the present appeal.

The Project seeks to eliminate vehicles from the plazas within the Complex, and to

return the plazas to purely pedestrian zones, simultaneously preserving (for the

convenience of those vehicles coming to Balboa Park from the west) the ability of those

vehicles to access the southeastern area of the Park across the Bridge. The solution

proffered by the Project to this dilemma is to construct the proposed "Centennial Bridge,"

which would be joined to the Bridge toward the eastern edge of the Bridge to create a

detour around the southwestern corner of the Complex. The Centennial Bridge, together

with the reconfigured roadways as proposed by the Project, would provide vehicle

ingress and egress to a new pay-parking structure (as well as to the existing parking lots

and roadways serving the southeastern portions of the Park), and allowing the plazas

2
within the Complex (currently burdened with roads providing access to the southeastern

portions of the Park) to be sealed off from vehicles and become the desired pedestrian-

only zones.

The City of San Diego (City), after a thorough review of the project, approved it.

SOHO filed a petition for writ of mandate alleging, among other things, that City

erroneously approved the required site development permit because there was no

substantial evidence to support the finding the Project would not adversely affect the

applicable land use plan (as required by San Diego Mun. Code, § 126.0504, subd. (a)),1

or to support the supplemental finding (as required by § 126.0504, subd. (i)) that there

would be no reasonable beneficial use of the property were the Project denied. The trial

court agreed there was no substantial evidence to support the supplemental finding there

would be no reasonable beneficial use of the property were the Project denied, and

therefore granted SOHO's petition. Committee appeals that ruling.2

1 All further statutory references are to the San Diego Municipal Code unless
otherwise specified.

2 SOHO's petition also alleged City abused its discretion in certifying the
Environmental Impact Report (EIR) because the EIR was inadequate (count one), and
one component of the Project (a paid parking garage) violated an 1870 statute requiring
City hold Balboa Park as a "free and public park." The trial court's judgment rejected
both of those claims, and SOHO has cross-appealed from those aspects of the judgment.

3
 I

FACTUAL AND PROCEDURAL BACKGROUND

A. The Project Area and Goals: Pedestrianizing the Complex

In 1915, the Park hosted the Panama-California Exposition. For that event, City

built a series of exhibit halls in the Spanish Colonial Revival style along El Prado and, as

access to El Prado from the west, also built the Bridge. Twenty years later, the Park

hosted the 1935 California Pacific International Exposition, for which additional

buildings, paths and gardens were constructed. In 1977, the Bridge and the Complex

were declared a National Historic Landmark and a National Historic Landmark District.

In anticipation of the centennial celebration of the Panama California Exposition,

City asked a local philanthropist, Dr. Irwin Jacobs, to undertake the effort to shepherd

through the design and review process a project to revitalize the Complex by, among

other things, restoring the Complex to a vehicle-free zone as it existed during the 1915

Panama California Exposition and, later, during the 1935 California Pacific International

Exposition. Dr. Jacobs founded the Committee, which began an arduous process that

ultimately resulted in the proposed Project approved by City.3 The Project proposed to

close El Prado—along with the Plaza de Panama, the Mall and the Pan America

Promenade—to vehicular traffic and restrict those spaces to pedestrian uses; and to

3 The process involved several years during which hundreds of meetings were held
with various groups to discuss designs, impacts, potential alternatives and improvements.
The EIR for the Project contained over 3300 pages, which included detailed
consideration of numerous alternatives (including the so-called "no project" alternative)
and included a detailed analysis of the Project's impacts.

4
resurface and landscape those areas with pedestrian-friendly materials in a manner

reminiscent of the space as it existed at the time of the 1915 and 1935 Expositions.4 The

Project proposed increasing the supply of parking close to the Complex (adding 260

spaces) by building an underground pay-parking structure on top of which would be sited

a 2.2 acre rooftop park, including re-creating the California Gardens, which had

previously been on the site. To preserve the goal of traffic access to the Complex from

the west (across the Bridge), the Project proposed to construct a bypass bridge (the

Centennial Bridge) starting at the eastern abutment of the Bridge (just before the archway

entrance to the Plaza de California), which would curve south around the Museum of

Man and then connect into a reconfigured Alcazar parking lot. From there, the Project

proposed that traffic would continue through, via a new bypass road denominated the

4 The goal of removing private vehicular traffic and parking from the Complex and
returning it to pedestrian uses has been a long-standing goal of Balboa Park planners.
Following the removal of vehicles from East El Prado in the 1970s, the 1989 Balboa Park
master plan recommended making Pershing Drive the primary vehicular access point to
Balboa Park and, as part of the plan, the Laurel Street/Cabrillo Bridge corridor would be
de-emphasized as vehicular access point in favor of enhanced pedestrian and transit
access including the provision of intra-park tram service and eventually the construction
of a light rail line on Park Boulevard. The plan called for the eventual reclamation of the
Prado and Pan American plaza areas as pedestrian plazas and (to accommodate the
continued need for parking) the Balboa Park master plan also recommended construction
of parking structure on the site of the Organ Pavilion parking lot. The 1992 Central Mesa
precise plan superseded the Balboa Park master plan, although its recommendations are
largely the same with regard to vehicular and pedestrian circulation. The precise plan
called for long-term improvements to pedestrian access by removing parking from Plaza
de Panama and by replacing the lost parking spaces in a new parking structure to be built
on the site of the Organ Pavilion parking lot, and recommended providing tram service
when the park is open and restricting private vehicle use in the El Prado area to one lane
of eastbound traffic when the tram is in operation, and two-way traffic occurring only
after-hours when the tram would not be in operation.
5
Centennial Road, by exiting the reconfigured Alcazar parking lot and following the

northern and eastern rims of Palm Canyon to Pan American Road East, where it would go

underground behind the Spreckels Organ Pavilion to provide access to a new

underground pay-parking structure to be built on the site of the Organ Pavilion parking

lot. Centennial Road would also continue beyond the parking structure to connect to

Presidents Way.

B. The Flashpoint: The Centennial Bridge

Public opposition to the Project expressed concerns over the negative impacts of

the Centennial Bridge to the Bridge.5 The EIR concluded the Centennial Bridge would

have a significant impact on historical resources and, due to that impact, would have

significant visual and land use consequences. Despite the impact the Centennial Bridge

would have on the Bridge,6 the EIR's historical resources technical report concluded the

Project as a whole would have "mainly beneficial" impacts on historical resources. City's

historical resources expert agreed that, although there were impacts to the Bridge, the

historical benefits resulting from the Project (by restoring several historic elements within

5 Public opposition to the Project also expressed concerns over the loss of free
parking caused by the proposed removal of an existing parking lot and its replacement
with the underground pay-parking structure.

6 The EIR's historical resources technical report stated the Project would result in
"several adverse physical and visual impacts to Cabrillo Bridge and the California
Quadrangle as well as limited number of impacts to the historic district as whole," and
concluded that although the Project "appears to comply with Secretary of the Interior's
Standards for Rehabilitation . . . 1, 3-8, and 10 . . . [i]t does not appear to comply with
Standards 2 and 9."

6
the Complex and removing nonhistoric elements) outweighed any negative impacts on

the historical district from the Project.7

After the proposed final EIR was prepared, the Project was formally reviewed by

numerous City boards, including the Balboa Park Committee, the Parks and Recreation

design review committee, the historical resources board, and the planning commission.

The matter was then submitted to the City council, which—after holding a marathon

hearing at which countless speakers expressed their views—voted to approve the Project.

City certified the EIR, and approved the site development permit for the Project.

C. The Lawsuit and Ruling

SOHO filed the instant action alleging three broad claims. It asserted City

violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et

seq.) (CEQA) in count one (the CEQA challenge), by approving an EIR that was

deficient or inadequate in numerous ways, including its statement of the Project's

objectives, its assessment of Project alternatives and impacts, and in its responses to

public comments. In count three (the free and public park challenge), it asserted the

Project as approved violated the California Statutes of 1870, which requires Balboa Park

be held "for the use and purposes of a free and public park," because the Project's

component of a paid parking garage violated that stricture. Finally, in count two (the

7 The same expert concluded the Project as proposed would not result in the
property ceasing to meet the criteria for listing in the National Register or designation as
National Historic Landmark because "[t]he qualities which caused it to be originally
listed would not have been lost or destroyed as result of the project," and the process to
remove or withdraw the listing from the National Register was neither underway nor
anticipated.
7
Municipal Code challenge), SOHO asserted City's Municipal Code mandated that two

key findings be made before the Project could be approved and, although City made the

requisite findings, those findings did not have substantial evidentiary support.

The court rejected SOHO's CEQA challenge and also rejected SOHO's "free and

public park" challenge. However, the court agreed with SOHO's Municipal Code

challenge, concluding City's approval of the Project violated section 126.0504,

subdivision (i)(3), which requires (for projects with impacts on historical resources) that

City find there be "no reasonable beneficial use" of the property without the Project. The

trial court found there was no substantial evidence the Complex would have "no

reasonable beneficial use" without the Project.8 The court granted SOHO's petition and

directed City to rescind the site development permit issued for the Project.

II

APPLICABLE LEGAL PRINCIPLES

A. Standards of Review

The parties agree that, when evaluating an action to set aside an agency's decision

approving a project, a court is limited to determining whether or not the agency

prejudicially abused its discretion. (San Franciscans Upholding the Downtown Plan v.

City and County of San Francisco (2002) 102 Cal.App.4th 656, 673 (San Franciscans).)

8 Because the court ruled in SOHO's favor under San Diego Municipal Code section
126.0504, subdivision (i)(3), the court found it was unnecessary to rule on SOHO's claim
that there was no substantial evidence to support the finding under Municipal Code
section 126.0504, subdivision (a)) that the Project would not adversely affect the
applicable land use plan.
8
Abuse of discretion is established if the agency has not proceeded in a manner required

by law or if the determination or decision is not supported by substantial evidence. (In re

Bay–Delta etc. (2008) 43 Cal.4th 1143, 1161.) Because SOHO's contention rests on the

allegation the critical findings were not supported by substantial evidence, we note our

review of that issue requires we "must resolve reasonable doubts in favor of the

administrative finding and decision." (Topanga Assn. for a Scenic Community v. County

of Los Angeles (1974) 11 Cal.3d 506, 514.) As relevant here, the term " 'substantial

evidence' means 'enough relevant information and reasonable inferences from this

information that a fair argument can be made to support a conclusion, even though other

conclusions might also be reached.' [Quoting CEQA regulations; citation.] [S]ubstantial

evidence may include facts, reasonable assumptions predicated upon facts, and expert

opinion supported by facts, but not argument, speculation, unsubstantiated opinion, or

clearly erroneous evidence." (San Franciscans, supra, 102 Cal.App.4th at p. 675.) A

reviewing court may not substitute its views for those of the agency whose determination

is being reviewed or reweigh conflicting evidence presented to that body (id at p. 674),

because it is not the court's task " 'to determine who has the better argument.' " (Vineyard

Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th

412, 435 (Vineyard Area Citizens).) Instead, "[t]he decisions of the agency are given

substantial deference and are presumed correct. The parties seeking mandamus bear the

burden of proving otherwise, and the reviewing court must resolve reasonable doubts in

favor of the administrative findings and determination." (Sierra Club v. County of Napa

(2004) 121 Cal.App.4th 1490, 1497 (Sierra Club).)

9
 When reviewing agency determinations, including whether the agency's findings

are supported by substantial evidence, "the trial court and the appellate courts essentially

perform identical roles. We review the record de novo and are not bound by the trial

court's conclusions." (Environmental Protection Information Center v. California Dept.

of Forestry & Fire Protection (2008) 44 Cal.4th 459, 479.)

B. Principles of Statutory Construction

The pivotal issue here is the proper interpretation of what is required by section

126.0504, subdivision (i)(3), before City may approve a project that involves a

substantial alteration of a designated historical resource or within a historical district.

The parties have cited no case law construing section 126.0504, subdivision (i)(3), or any

case law construing ordinances containing analogous language. The proper interpretation

of section 126.0504, subdivision (i)(3)'s requirements appears to be a question of first

impression.

As in any case involving statutory interpretation, "[o]ur first step is to scrutinize

the actual words of the statute, giving them a plain and commonsense meaning." (People

v. Valladoli (1996) 13 Cal.4th 590, 597.) We should strive to give effect and significance

to every word and phrase of a statute (Steinberg v. Amplica, Inc. (1986) 42 Cal.3d 1198,

1205) because we presume the enacting body intended "every word, phrase and provision

. . . in a statute . . . to have meaning and to perform a useful function." (Clements v. T. R.

Bechtel Co. (1954) 43 Cal.2d 227, 233.) Courts interpret ordinances in the same way

they construe statutes (Anderson v. San Francisco Rent Stabilization & Arbitration Bd.

(1987) 192 Cal.App.3d 1336, 1343), and because questions of law—including

10
interpretation of a statute—are subject to de novo review, we accord no deference to the

trial court's ruling on this issue. (MacIsaac v. Waste Management Collection &

Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1081-1082.)

III

ANALYSIS OF COMMITTEE'S APPEAL

A. The Relevant Municipal Code Provisions and City Findings

The Applicable Ordinance

City's Municipal Code provides that "[t]he purpose of the Site Development

Permit procedures is to establish a review process for proposed development that, because

of its site, location, size, or some other characteristic, may have significant impacts on

resources or on the surrounding area, even if developed in conformance with all

regulations. The intent of these procedures is to apply site-specific conditions as

necessary to assure that the development does not adversely affect the applicable land use

plan and to help ensure that all regulations are met." (§ 126.0501.) Section 126.0504

provides a site development permit may be approved or conditionally approved "only if

the decision maker makes all of the findings in Section 126.0504(a) and the supplemental

findings in Section 126.0504(b) through (o) that are applicable to the proposed

development as specified in this section."

The findings required under subdivision (a) for all site development permits

require the determination that the proposed development "will not adversely affect the

applicable land use plan." In addition, subdivision (i) of section 126.0504 provides:

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 "(i) Supplemental Findings--Historical Resources Deviation for
Substantial Alteration of a Designated Historical Resource or Within
a Historical District

"A Site Development Permit required in accordance with Section
143.0210 because of potential impacts to designated historical
resources where a deviation is requested in accordance with Section
143.0260 for substantial alteration of a designated historical
resource or within a historical district or new construction of a
structure located within a historical district may be approved or
conditionally approved only if the decision maker makes the
following supplemental findings in addition to the findings in
Section 126.0504(a):

"(1) There are no feasible measures, including a less
environmentally damaging alternative, that can further minimize the
potential adverse effects on the designated historical resource or
historical district;

"(2) The deviation is the minimum necessary to afford relief and
accommodate the development and all feasible measures to mitigate
for the loss of any portion of the historical resource have been
provided by the applicant; and

"(3) The denial of the proposed development would result in
economic hardship to the owner. For purposes of this finding,
'economic hardship' means there is no reasonable beneficial use of a
property and it is not feasible to derive a reasonable economic return
from the property."

City's Findings Pursuant to the Ordinance's Requirements

City, after noting the Project was intended to restore pedestrian and park uses to

the core of the central mesa area (Central Mesa) of Balboa Park and to alleviate

pedestrian/vehicular conflicts, made several findings to satisfy the requirements of

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section 126.0504, subdivision (i)(3)'s requirement for "no reasonable beneficial use" of

the property absent the Project.9 City found:

(1) Denial of the Project would not allow City to take advantage of
donations offered to design and construct the project, as well as to
fund a substantial portion of the development;

(2) Denial of the Project would "prevent the City from fulfilling a
stated plan goal of providing 'new and redeveloped facilities on the
Central Mesa that will be designed to accommodate multiple uses,
including special events and maximum public access,' due to the
continued loss of the Plaza de Panama area to pedestrian use and the
lost opportunity for additional park land in the location of the Organ
Pavilion parking lot." City noted there is a movement throughout
the nation toward improving the pedestrian experience within
prominent public spaces, and that such improvements can "increase
the economic success of the region . . . [and] revitalize
neighborhoods."

(3) Denial of the Project would "also prevent the City from being
able to return El Prado, Plaza de Panama, Plaza de California, and
the Mall to pedestrian use without conflicts with vehicles, while still
providing vehicular access and parking to the Central Mesa, thereby
preventing beneficial use of the property. By restoring these areas to
pedestrian uses and recreating a grand ceremonial plaza for
recreation and civic activities, the project creates additional park
acreage, and ensures the continuing vitality of Balboa Park . . . . As
discussed within the Environmental Impact Report prepared for the
project (Item 4.4.1.7), the Plaza de Panama experiences significant

9 City, apparently recognizing that same subdivision indicated economic hardship
was also defined to mean the infeasibility of deriving a reasonable economic return from
the property absent the project, specifically noted that, although "reasonable economic
returns are typical considerations for private properties and variety of publicly-owned
properties, the desire and assumption of a reasonable economic return is generally not
contemplated when considering uses of public park land, which typically contain few
profit-making ventures. Therefore a reasonable economic return in these circumstances,
a public improvement in Balboa Park, is a very minimal consideration. The adopted plan
goals for Balboa Park do not specify the desirability of deriving reasonable economic
return for uses within the park. Rather, the goals are essentially to preserve, enhance,
restore, improve and create park features for the citizens of San Diego."
13
 pedestrian/vehicle conflicts. In addition, members of the public have
commented on seeing frequent pedestrian and car near-miss
accidents almost daily in the park. Without the development, the
current pedestrian/vehicle conflicts would continue, resulting in an
undesirable park experience."

(4) Denial of the Project would make it unlikely there would be
"public funds available for improvements to resolve Balboa Park's
long-standing traffic circulation and pedestrian conflicts." City
noted various studies, including studies in 2004 and 2006, have
"identif[ied] the existing traffic circulation and parking issues within
the core of the park and have had no available funding to implement
proposed solutions," and the Central Mesa precise plan "has been in
place for 20 years and no funding has been available to pay for the
implementation of this component of the Plan," and the Project
would solve these issues by serving as a "catalyst for private
investment in the park, enabling the newly created Balboa Park
Conservancy to continue such efforts."

Thus, City's findings identified the factual basis of, and its core rationale for, its

conclusion that denial of the Project would "result in . . . there [being] no reasonable

beneficial use of" the Complex: denial of the Project would mean traffic congestion and

conflicts between pedestrians and vehicles would continue to burden the users of the

Complex, and denial of the Project would prevent City from recapturing those areas

currently being claimed and used by vehicles as thoroughfares and parking lots and

reclaiming those lands for parklands and pedestrian spaces.

B. Analysis of SOHO's Challenge under Section 126.0504, Subdivision (i)(3)

Proper Interpretation of "No Reasonable Beneficial Use" of the Property

The resolution of the competing claims turns on the meaning of the phrase "no

reasonable beneficial use of a property" as employed by section 126.0504, subdivision

(i)(3). SOHO contends, and the trial court found below, that as long as a project

14
opponent introduces evidence the property is being put to some "beneficial use" by the

owner without the proposed project, there can be no substantial evidentiary support for

the supplemental findings by the decision-maker required under section 126.0504,

subdivision (i)(3). Committee notes, however, that section 126.0504, subdivision (i)(3),

does not simply state a project must be rejected if the property is being put to any

"beneficial use" by the owner without the proposed project, but instead states a project

can be approved if denial of the proposed project "means there is no reasonable

beneficial use of [the] property." (§ 126.0504, subd. (i)(3), italics added.) Committee

contends that, by employing the term "reasonable" to qualify the term "beneficial use,"

the decision-maker is vested with the discretion to make a qualitative determination of

whether an existing use of the property, even if deemed beneficial, is also a reasonable

use of that property under all of the facts and circumstances applicable to the particular

property in question.

We agree with Committee that, to give effect and significance to every word and

phrase in the ordinance and insure each word performs a useful function (Steinberg v.

Amplica, Inc., supra, 42 Cal.3d at p. 1205; Clements v. T. R. Bechtel Co., supra, 43

Cal.2d at p. 233), we must construe the term "reasonable" to have a meaning independent

of the phrase "beneficial use." (San Diego Police Officers Assn. v. City of San Diego

Civil Service Com. (2002) 104 Cal.App.4th 275, 284 ["In construing a statute we are

required to give independent meaning and significance to each word, phrase, and

sentence in a statute and to avoid an interpretation that makes any part of a statute

meaningless."].) Under that construction, it is not enough for an opponent to preclude a

15
finding under section 126.0504, subdivision (i)(3), by introducing evidence the property

has a beneficial use without the Project. Instead, an opponent must demonstrate, to the

satisfaction of the decision-maker, that the property's current beneficial use without the

Project is a reasonable beneficial use.

Our construction of section 126.0504, subdivision (i)(3), also accords with the

admonition that courts should endeavor to give statutes a commonsense interpretation.

(People v. Valladoli, supra, 13 Cal.4th at p. 597.) Under our construction, section

126.0504, subdivision (i)(3), permits the decision-maker to decide whether an existing

use of a property is unreasonable, even though that existing use may be beneficial in

some manner to someone. The contrary interpretation—that a project must be rejected if

there is anyone who could posit a conceivable beneficial use of the property without the

project—would set a nearly insurmountable bar to a project that proposes to alter the

historical resource, because it is difficult to perceive (except in the most extreme

circumstances) how a property could be deemed to have no beneficial use whatsoever.

Indeed, our interpretation—that the decision-maker must decide whether the property's

unmodified condition nevertheless permits uses that are reasonable for that particular

property—has the salutary value of preserving to administrative agencies the discretion in

land use determinations that courts have historically accorded to those determinations.

(See, e.g., Building Industry Assn. of Central California v. County of Stanislaus (2010)

190 Cal.App.4th 582, 592 [land use determinations are entitled to deference by courts];

Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91

Cal.App.4th 342, 386 [same].) Under our interpretation, the question for the courts is not

16
whether there was evidence from which a reasonable person could have concluded the

property had some beneficial use in its unmodified condition, but instead whether

substantial evidence supports the decision-maker's determination that the property's uses

in its unmodified condition were not reasonable under all of the circumstances. (Cf.

Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121

Cal.App.4th 1578, 1593-1595 [rejecting challenge to FEHA decision finding that

condominium association's blanket ban on dogs violated obligation to permit

"reasonable" accommodation necessary for owner's use and enjoyment of her home;

court reasoned that an administrative agency's determination, based on a necessarily fact-

specific inquiry, is entitled to deference and does not require proof that individual was

incapable of any use or enjoyment of her home].)

We construe section 126.0504, subdivision (i)(3), as vesting in the decision-maker

the discretion to determine two issues: whether the owner's ability to use the property

without the project can be deemed a "beneficial" use, and whether the beneficial uses to

which the property can be put without the project can be deemed "reasonable" uses. This

is a determination vested in the decision-maker, and it is not our role " 'to determine who

has the better argument.' " (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435.) Instead,

we must give the decision substantial deference, presume it to be correct, and resolve

reasonable doubts in favor of the administrative findings. (Sierra Club, supra, 121

Cal.App.4th at p. 1497.)

17
 Substantial Evidence Supports the Finding of "No Reasonable Beneficial Use" of

the Complex Without the Project

Under our construction, there is substantial evidence to support City's findings

that, without the Project, the current use of the Complex is not a reasonable use. City

noted there were "long-standing traffic circulation and pedestrian conflicts" within the

complex and found, without the Project, City would be unable to return the complex "to

pedestrian use without conflicts with vehicles, while still providing vehicular access and

parking to the Central Mesa, thereby preventing beneficial use of the property." City

specifically found that the Complex, in its unmodified condition, "experiences significant

pedestrian/vehicle conflicts. In addition, members of the public have commented on

seeing frequent pedestrian and car near-miss accidents almost daily in the park. Without

the development, the current pedestrian/vehicle conflicts would continue, resulting in an

undesirable park experience." Thus, City clearly concluded that traffic congestion—and

the concomitant endangerment of pedestrians who wished to use the Complex—rendered

the existing use of the Complex an unreasonable one, and that without the Project's

proposed reconfiguration of the traffic flow, the reasonable beneficial use of a property

would be prevented. Certainly, ample evidence supported the underlying factual basis for

City's conclusions. City had evidence that existing traffic problems, as well as projected

deterioration of those traffic conditions,10 would plague the Complex without the

10 SOHO argued below, and the trial court agreed, that section 126.0504, subdivision
(i)(3), requires a finding there "is" no reasonable beneficial use of the property as of the
date the Project is approved, and cannot be premised on evidence there "will be" no
18
Project: the EIR's traffic analysis showed current traffic levels failed (defined to mean

level of service E or F) in the Plaza de Panama on weekends and a traffic study showed

that, without the Project, Saturday morning queues leading to Plaza de Panama would

extend 374 feet eastbound along West El Prado and 231 feet northbound along the

Esplanade. Indeed, City had evidence that, without the Project, failing traffic levels

would spread to include traffic on Presidents Way by 2015 and that, by 2030, virtually all

of the intersections in the Complex would fail on weekends. However, because the

evidence permitted City to conclude these problems would be ameliorated by the Project,

there was evidence supporting the conclusion the Complex would have no reasonable

beneficial use without the Project.

Moreover, there was evidence that, without the Project, there was no reasonable

beneficial use of the Complex because the users of the Complex itself are the pedestrians

who frequent its numerous attractions or wish to enjoy its open spaces, but the existing

configuration created substantial conflicts between pedestrians and vehicles, creating

safety hazards to the very persons seeking to beneficially use and enjoy the Complex.

Because the evidence permitted City to conclude these problems would be ameliorated by

the Project, and indeed would be entirely eliminated within the newly created pedestrian-

reasonable beneficial use of the property without the Project, and therefore evidence of
projected problems cannot support a finding under section 126.0504, subdivision (i)(3).
We decline to give section 126.0504, subdivision (i)(3), such a narrow interpretation,
because that construction would limit City planners to approving projects under section
126.0504, subdivision (i)(3), only in reaction to existing problems (and then only in such
increments as are necessary to solve existing problems) rather than permitting them to
approve projects under section 126.0504, subdivision (i)(3), proactively and in a scope to
accommodate future conditions.
19
only areas, there was additional evidence to support the conclusion that, without the

Project, the Complex would have no reasonable beneficial use for those persons seeking

to use and enjoy the Complex.

SOHO argues we must affirm the trial court's ruling because City's finding that the

Complex had "no" reasonable beneficial use without the Project cannot be squared with

the undisputed evidence that, even without the Project, the complex is "swarmed with

admiring, enthralled visitors on a daily basis." However, whether the Complex cannot

reasonably be beneficially used without the Project—that is, whether it is a "reasonably

beneficial use" of the Complex to force the patrons who use the Complex to encounter

the dangers and endure the degraded experience within the Complex caused by the

continued use of the land as a roadway for ever-increasing numbers of vehicles—is not a

matter of law but instead requires a weighing of the competing interests laying claim on

the Complex. As such, a reviewing court may not substitute its views for those of the

agency whose determination is being reviewed, or reweigh conflicting evidence

presented to that body (San Franciscans, supra, 102 Cal.App.4th at p. 674), because it is

not the court's task " 'to determine who has the better argument.' " (Vineyard Area

Citizens, supra, 40 Cal.4th at p. 435.) The fact millions of visitors to the Complex

choose to visit, notwithstanding the hardships to them posed by continued vehicular use

of the Complex, does not automatically require City to find continued vehicular use of

the Complex is a "reasonably beneficial use" of the Complex or, stated differently,

preclude City from finding the Project is appropriate because continued automobile use

of the Complex is not a "reasonably beneficial use" of the Complex.

20
 The "Reasonable Economic Return" Claim

SOHO alternatively asserts there was no substantial evidence to support the

additional finding under section 126.0504, subdivision (i)(3), ordinarily required when a

proposed project would make a substantial alteration of a designated historical resource

or within a historical district, that denial of Project would make it "not feasible to derive a

reasonable economic return from the property."

We reject SOHO's argument because it was not preserved below. SOHO cites

nothing in the administrative record to suggest that, during the administrative

proceedings, anyone challenged approval of the Project based on the assertion it would be

feasible to derive a reasonable economic return from the property even without the

Project within the contemplation of section 126.0504, subdivision (i)(3). Under such

circumstances, the issue may not be raised for the first time in a judicial challenge to the

administrative decision. (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34

Cal.3d 412, 417-419 [doctrine of exhaustion of administrative remedies generally

precludes judicial review of issues, legal and factual, not first presented at the

administrative agency level]; Running Fence Corp. v. Superior Court (1975) 51

Cal.App.3d 400, 429 [alleged violations of CEQA not raised at the administrative level

"cannot be raised for the first time on seeking court review"].) Although SOHO and

others did challenge that the evidence could support the finding under section 126.0504,

subdivision (i)(3), as to "no reasonable beneficial use," we are cited nothing to suggest

the feasibility of deriving a reasonable economic return was interposed at the

administrative proceedings, and generalized objections will not suffice to preserve the

21
issue. For example, in City of Walnut Creek v. County of Contra Costa (1980) 101

Cal.App.3d 1012, petitioner opposed the county's approval of a land use permit for

construction of an apartment complex and argued the issue of density restrictions, but

only in the most general terms. The subsequent petition for writ of mandate, however,

alleged the project would violate specific density limitations in the county's general plan.

Rejecting that challenge, the Court of Appeal explained at pages 1019 to 1020: " 'It was

never contemplated that a party to an administrative hearing should withhold any defense

. . . or make only a perfunctory or "skeleton" showing in the hearing and thereafter obtain

an unlimited trial de novo, on expanded issues, in the reviewing court. [Citation.] . . .

"Having failed to raise the [issue] before the commission, the appellant waived his right

to that . . . defense." ' [Quoting Bohn v. Watson (1954) 130 Cal.App.2d 24, 37.]"

Even assuming the issue was preserved, we would reject SOHO's claim on its

merits. First, the administrative decision is presumed correct, and it is the challenger's

burden to demonstrate otherwise (Sierra Club, supra, 121 Cal.App.4th at p. 1497), and

SOHO cites nothing to suggest that aspect of section 126.0504, subdivision (i)(3) has any

relevance to the Project approved by City. Specifically, SOHO cites nothing suggesting

the feasibility of deriving a reasonable economic return from the property without the

Project has any application when the principal goals of and purposes for the Project under

consideration are unrelated to deriving increased profits from the property, and City

found it did not apply to this project, stating:

"While reasonable economic returns are typical considerations for
private properties and a variety of publicly-owned properties, the
desire and assumption of a reasonable economic return is generally

22
 not contemplated when considering uses of public park land, which
typically contain few profit-making ventures. Therefore, a
reasonable economic return in these circumstances, a public
improvement in Balboa Park, is a very minimal consideration. The
adopted plan goals for Balboa Park do not specify the desirability of
deriving a reasonable economic return for uses within the park.
Rather, the goals are essentially to preserve, enhance, restore,
improve and create park features for the citizens of San Diego."

SOHO makes no claim that City's principal findings—i.e., that reasonable

economic return is generally not contemplated when considering uses of public park land,

and the adopted plan goals for Balboa Park do not specify the desirability of deriving

reasonable economic return for uses within the park—lack evidentiary support. We are

not persuaded by SOHO's claim that City's finding as to this aspect of section 126.0504,

subdivision (i)(3), was inadequate or lacking in evidentiary support.

B. Analysis of SOHO's Challenge under Section 126.0504, Subdivision (a)

SOHO also alleges there was no substantial evidence to support City's findings,

required by section 126.0504, subdivision (a), that approval of the Project would not

adversely affect City's applicable land use plans.11 SOHO specifically notes the EIR

acknowledged the alterations associated with the construction of the Centennial Bridge

would not comply with certain policies of the City's general plan (e.g. the historic

preservation element, the urban design element, and the recreation element) because the

11 SOHO raised this claim in the proceedings below but the trial court found it was
unnecessary to reach this claim because of its conclusion there was no substantial
evidence to support City's findings under section 126.0504, subdivision (i)(3). Because
we reverse that aspect of the trial court's ruling, it is necessary to reach SOHO's claim
that no substantial evidence supported City's finding that approval of the Project did not
adversely affect City's applicable land use plans.

23
Project involved a significant and unmitigatable impact on a historical resource: the

Cabrillo Bridge.12 SOHO argues that because the significant impact to the Cabrillo

Bridge offended the Secretary of the Interior's Standards 2 and 9 for the rehabilitation of

historic buildings,13 the Project necessarily violated the policies expressed in the historic

preservation element, the urban design element, and the recreation element of City's

policies, and therefore there was no substantial evidence to support City's global finding

that the Project would not adversely affect City's applicable land use plans.

City, in support of its finding the Project would not adversely affect the applicable

land use plan, noted:

"[The Project] is intended to restore pedestrian and park uses to the
core of the Central Mesa area of Balboa Park and alleviate

12 For the same reason, the EIR concluded the Project would not be consistent with
the policies expressed in the Balboa Park master plan and the Central Mesa precise plan.
Specifically, the EIR noted that "primarily because the construction of the Centennial
Bridge would not be consistent with the historical visual and spatial relationships of the
Cabrillo Bridge and the California Quadrangle complex," that aspect of the Project would
be inconsistent with the expressed goals of avoiding disruption of significant views, of
preserving and respecting the historical architectural character of the historic structures
and site features in Balboa Park that contributed to the designation of the park as a
historic landmark, and of adhering to standards promulgated by the Secretary of the
Interior for rehabilitation.

13 As noted in the EIR, "[t]he U.S Department of Interior National Park Service
Cultural Resources, Preservation Assistance Division, SOI Standards for Rehabilitation
and Illustrated Guidelines for Rehabilitating Historic Buildings . . . provide guidance for
reviewing proposed work to historic properties." Standard 2 states the "historic character
of a property will be retained and preserved. The removal of distinctive materials or
alteration of features, spaces, and spatial relationships that characterize the property will
be avoided." Standard 9 states that "[n]ew additions, exterior alterations, or related new
construction will not destroy historic materials, features, and spatial relationships that
characterize the property." The EIR concluded the alterations to the Cabrillo Bridge
would offend these strictures.
24
pedestrian/vehicular conflicts. . . . The applicable land use
documents are the Balboa Park Master Plan, . . . the Central Mesa
Precise Plan, . . . and the City of San Diego General Plan . . . .

"Collectively, the General Plan, Balboa Park Master Plan and
Central Mesa Precise Plan establish goals and policies of creating a
more pedestrian oriented environment within the park, reducing
automobile and pedestrian conflicts, improving public access,
increasing free and open parkland, restoring landscape areas and
restoring the Prado and Palisades to a center for cultural activities
and special events. The proposed development would implement
these goals and policies by removing parking and through traffic
within the Prado and restoring the area to pedestrian use, which
would open up opportunities for cultural activities, special events
and general public enjoyment of the park without interfacing with
vehicles. [¶] . . . [¶]

"Although the proposed Centennial Bridge component would be
inconsistent with several policies found in the Urban Design,
Recreation, and Historic Preservation Elements of the General Plan,
it would not adversely affect the General Plan and the project as
whole would be consistent with several of the goals and policies of
San Diego General Plan, as described below.

"The development's proposal to remove cars from [the Complex] to
create a more pedestrian oriented environment would implement
goals in the Mobility Element of the General Plan for creating a safe
and comfortable environment, and a complete, functional, and an
interconnected pedestrian network that is accessible to pedestrians of
all abilities. The development would also implement the
recommendation in the Urban Design Element for designing and
retrofitting streets to improve walkability, bicycling, and transit
integration; to strengthen connectivity; and to enhance community
identity. [¶] . . . [¶]

"The development's proposal for the rehabilitation of the Plaza de
California and Plaza de Panama and the removal of cars from the
Plaza de California, El Prado, the Plaza de Panama, the Mall and Pan
American Road East would restore the historic design of these areas
and meet the Historic Preservation Element goal of preserving the
City's important historical resources by returning these areas to
pedestrian only use consistent with the 1915 and 1935 Expositions.
Further, reactivating these areas for pedestrian use is consistent with

25
 specific recommendations of the Central Mesa Precise Plan . . . and
will reclaim approximately 6.3 acres of free and open parkland that
will enhance the cultural and recreational uses within the core of the
park while preserving the historic character of the Central Mesa.

"The proposed development would meet the goal in the Recreation
Element for having park and recreation facilities that are sited to
optimize access by foot, bicycle, public transit, automobile, and
alternative modes of travel by proposing to restore pedestrian uses in
locations presently dominated by vehicular traffic with the Central
Mesa of Balboa Park and the implementation of an expanded tram
system through the Central Mesa that would connect parking
facilities and institutions, and enhancing overall access and
circulation.

"Despite the conflicts related to the proposal of the Centennial
Bridge component, the proposed development would be consistent
with a majority of the goals and policies of the General Plan, the
Balboa Park Master Plan and the Central Mesa Precise Plan and
overall would restore pedestrian and park uses to the core of the
Central Mesa area of Balboa Park and alleviate
pedestrian/vehicular conflicts. Therefore, the proposed development
would not adversely affect the applicable land use plans." (Italics
added.)

SOHO does not contest that substantial evidence supported the findings that,

collectively, the general plan, Balboa Park master plan, and Central Mesa precise plan

establish goals and policies of creating a more pedestrian-oriented environment within

the park, reducing vehicular and pedestrian conflicts, improving public access, increasing

free and open parkland, restoring landscape areas, and restoring the Prado and Palisades

to being a center for cultural activities and special events. SOHO does not assert there

was no substantial evidence from which City could have concluded the Project would

implement these overarching goals and policies by removing parking and through traffic

within the Prado and restoring the area to pedestrian use. Instead, SOHO appears to

26
assert that, as long as a project opponent can identify any stated goal or policy within an

applicable land use plan that would be adversely affected by a project, the decision-maker

is precluded from finding approval of a project would not adversely affect the applicable

land use plans even if the decision maker finds, based on substantial evidence, the

proposed project would be consistent with vast majority of the goals and policies of the

applicable land use plans.

SOHO cites no authority for this argument, and the case law is to the contrary.

First, the courts have repeatedly recognized that, when reviewing a challenge to a project

based on the project's alleged inconsistency with the relevant land use documents, a court

must

"accord great deference to a local governmental agency's
determination of consistency with its own general plan, recognizing
that 'the body which adopted the general plan policies in its
legislative capacity has unique competence to interpret those policies
when applying them in its adjudicatory capacity. [Citation.]
Because policies in a general plan reflect a range of competing
interests, the governmental agency must be allowed to weigh and
balance the plan's policies when applying them, and it has broad
discretion to construe its policies in light of the plan's purposes.
[Citations.] A reviewing court's role "is simply to decide whether
the city officials considered the applicable policies and the extent to
which the proposed project conforms with those policies." ' " (San
Franciscans, supra, 102 Cal.App.4th at pp. 677-678, quoting Save
our Peninsula Committee v. Monterey County Bd. of Supervisors
(2001) 87 Cal.App.4th 99, 142.)

Importantly, the courts have also recognized that "state law does not require

precise conformity of a proposed project with the land use designation for a site, or an

exact match between the project and the applicable general plan. [Citations.] Instead, a

finding of consistency requires only that the proposed project be 'compatible with the

27
objectives, policies, general land uses, and programs specified in' the applicable plan.

(Gov. Code, § 66473.5, italics added.) The courts have interpreted this provision as

requiring that a project be ' " in agreement or harmony with" ' the terms of the applicable

plan, not in rigid conformity with every detail thereof. [Quoting Sequoyah Hills

Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 718 (Sequoyah

Hills).]" (San Franciscans, supra, 102 Cal.App.4th at p. 678.) As the Sequoyah Hills

court recognized, "it is beyond cavil that no project could completely satisfy every policy

stated in the [general plan], and that state law does not impose such a requirement.

[Citations.] A general plan must try to accommodate a wide range of competing

interests—including those of developers, neighboring homeowners, prospective

homebuyers, environmentalists, current and prospective business owners, jobseekers,

taxpayers, and providers and recipients of all types of city-provided services—and to

present a clear and comprehensive set of principles to guide development decisions.

Once a general plan is in place, it is the province of elected city officials to examine the

specifics of a proposed project to determine whether it would be 'in harmony' with the

policies stated in the plan. [Citation.] It is, emphatically, not the role of the courts to

micromanage these development decisions. Our function is simply to decide whether the

city officials considered the applicable policies and the extent to which the proposed

project conforms with those policies, whether the city officials made appropriate findings

on this issue, and whether those findings are supported by substantial evidence."

(Sequoyah Hills at pp. 719-720; accord, Sierra Club, supra, 121 Cal.App.4th at pp. 1510-

1511 ["[I]t is nearly, if not absolutely, impossible for a project to be in perfect conformity

28
with each and every policy set forth in the applicable plan. An agency, therefore, has the

discretion to approve a plan even though the plan is not consistent with all of a specific

plan's policies. It is enough that the proposed project will be compatible with the

objectives, policies, general land uses and programs specified in the applicable plan."].)

Here, SOHO does not contend City failed to consider "the applicable policies and

the extent to which the proposed project conforms with those policies . . . ." (Sequoyah

Hills, supra, 23 Cal.App.4th at p. 720.) We examine only "whether the city officials

made appropriate findings on this issue, and whether those findings are supported by

substantial evidence." (Ibid.) Here, City found the applicable land use plans (e.g. the

general plan, Balboa Park master plan, and Central Mesa precise plan) collectively

established "goals and policies of creating a more pedestrian oriented environment within

the park, reducing automobile and pedestrian conflicts, improving public access,

increasing free and open parkland, restoring landscape areas and restoring the Prado and

Palisades to a center for cultural activities and special events," and SOHO does not claim

there was no evidence to support this finding. City also found the Project "would

implement these goals and policies by removing parking and through traffic within the

Prado and restoring the area to pedestrian use, which would open up opportunities for

cultural activities, special events and general public enjoyment of the park without

interfacing with vehicles," and SOHO likewise does not assert there was no evidence to

support this finding.

Finally, City found that, although the proposed alterations to the Cabrillo Bridge

transgressed certain aspects of some articulated goals and policies of the applicable land

29
use plans, "the proposed development would be consistent with a majority of the goals

and policies of the General Plan, the Balboa Park Master Plan and the Central Mesa

Precise Plan and overall would restore pedestrian and park uses to the core of the Central

Mesa area of Balboa Park and alleviate pedestrian/vehicular conflicts." There is

substantial evidence to support that finding. Nearly 50 pages of the EIR was devoted to

describing the numerous ways in which the Project was consistent with (and how the

Project promoted) the various goals, policies and objectives of the land use policies.14

The mere fact the Project had some elements that conflicted with a few of the policies

embodied in the applicable land use plans does not preclude City from finding the Project

as a whole was consistent with the objectives, policies, general land uses, and programs

specified in the applicable plans. For example, in Sequoyah Hills, supra, 23 Cal.App.4th

704, the project opponent asserted it was an abuse of discretion to approve a project that

conflicted with three policy statements in the land use plans, but ignored that the project

was fully consistent with at least 14 of the 17 relevant policies, and was consistent in part

even with the three policies on which the project opponent relied. The court, rejecting

the project opponent's claim, explained that a "project need not be in perfect conformity

14 Even as to the historical preservations policies embodied in the applicable land
documents, City recognized modifications to the Cabrillo Bridge were inconsistent with
some aspects of those policies but found that "[d]espite the conflicts related to the
proposal of the Centennial Bridge component, . . . the proposed development would not
adversely affect the applicable land use plans" because it concluded the proposed
development would be "consistent with majority of the goals and policies" of the
applicable land use plans. As to the historic preservation elements, there was evidence
that the Project would further some historic preservation policies because, by
"remov[ing] cars from El Prado, the Plaza de Panama, Plaza de California, the Mall and
Pan American Road, the project would restore the historical condition of these areas."
30
with each and every . . . policy. . . . Indeed, it is beyond cavil that no project could

completely satisfy every policy . . . and state law does not impose such a requirement.

[Citations.] . . . Once a general plan is in place, it is the province of elected city officials

to examine the specifics of a proposed project to determine whether it would be 'in

harmony' with the policies stated in the plan. [Citation.] It is, emphatically, not the role

of the courts to micromanage these development decisions. Our function is simply to

decide whether" substantial evidence supports the conclusion that the project is consistent

with those policies. (Id. at pp. 719-720.)

There is substantial evidence to support City's conclusion that, despite some

inconsistencies engendered by the Bridge, the Project as a whole will not adversely affect

the applicable land use plans. We therefore reject SOHO's argument that inconsistencies

with some aspects of the polices embodied in the applicable land use plans necessarily

precluded City from approving the Project.

III

ANALYSIS OF SOHO'S CROSS-APPEAL

SOHO's petition for writ of mandate alleged City, by approving a project that

contemplated building a new pay-parking lot, violated the California Statutes of 1870

(the 1870 Statute) under which City held the lands that became Balboa Park. The 1870

Statute, by which the California Legislature "approved, confirmed and ratified" an 1868

resolution setting aside certain pueblo lands as a park, stated "said lands, and none others,

are by this statute declared to be held in trust forever, by the municipal authorities of said

city, for the use and purposes of a free and public park . . . and for no other or different

31
purpose . . . ." (Stats. 1870, ch. XLII, §1, p. 49.) SOHO claimed approval of a Project

that included building a pay-parking structure violated the "free and public park"

limitation under which the land was held by City.

The trial court concluded any limitations imposed by the 1870 Statute had been

effectively annulled by subsequent events and enactments, and therefore ruled the Project

did not violate the 1870 Statute under which City held the lands that became Balboa

Park.15 SOHO argues this ruling was error because (1) the 1870 Statute was not

annulled, and (2) "free" must mean without cost and therefore all necessary adjuncts to

public access to the "free and public park," including automobile parking, must always be

provided without cost.

A. Historical Background

In Olmstead v. City of San Diego (1932) 124 Cal.App. 14 (Olmstead), the court

(addressing a dispute over City's ability to construct a road through Torrey Pines Park)

explained the historical genesis of City's ownership of, and powers over, Pueblo Lands:

"The City of San Diego was originally a Spanish, and then a
Mexican[,] pueblo. The lands in question were a portion of the
'Pueblo Lands' of the original town. Under the Spanish and Mexican
law these 'Pueblo Lands' were held in trust by the pueblo for the
benefit of the community and could only be used and disposed of in

15 SOHO's petition for writ of mandate alleged City violated CEQA, and SOHO's
notice of cross-appeal (as well as Committee's opening brief) purports to appeal from the
trial court's judgment insofar as it denied the cause of action alleging City failed to
comply with CEQA. However, SOHO provides neither argument nor authority in its
cross-appellant's opening brief demonstrating that the trial court erred when it denied
SOHO's CEQA claim, and we therefore deem that claim abandoned. (Paulus v. Bob
Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 684-685; Brown v. Professional
Community Management, Inc. (2005) 127 Cal.App.4th 532, 537.)
32
 accordance with the order and direction of the king or sovereign
power. [Citations.] The pueblo of San Diego was incorporated as
the City of San Diego in 1850, the pueblo lands here involved being
recognized as owned by the city . . . . Thereafter they were held by
the city under the trusts attaching to them as pueblo lands, their use
and disposition being subject to the control of the legislature as
successor to the sovereign power of the king [citations], except the
power of 'rent, sale or lease', which was expressly given to the city.
In 1872 the legislature passed an act . . . authorizing the city to
'provide for the use, care, custody and regulation of all the commons,
parks, cemeteries and property, both real and personal, belonging to
the city,' restricting its power only as to the manner of sale and
disposition. (Stats. 1871-72, p. 285.) [¶] It will thus be seen that as
early as 1872 the legislature had delegated to the city the unrestricted
power of determining how its real property should be used."
(Olmstead, at p. 16.)

Thus, when City was incorporated in 1850, it became the owner of pueblo lands.

However, City went bankrupt in 1852, and the California Legislature repealed the then-

existing City charter and created a board of trustees, with the California Legislature

retaining the power to approve and ratify decisions made by the board of trustees. In

1868, the board of trustees adopted a resolution to set aside certain pueblo lands as a

park, and in 1870, the California Legislature approved and ratified that resolution with

the 1870 Statute.

Two years later, however, the California Legislature adopted a statute

reincorporating San Diego as a city. (Stats. 1871-1872, ch. CCXXI, pp. 285-295.) As

part of that incorporation, the California Legislature conferred on City numerous

municipal powers, including the right to "provide for the use, care, custody, and

regulation of all the commons, parks, cemeteries, and property, both real and personal,

belonging to the city." (Id. at § 3, p. 286.) These broad powers were reaffirmed in 1889,

33
when the California Legislature approved the charter for City. (Stats. 1889, Chapt. XX,

p. 643.) The new charter, which "also vested the city with 'all the property rights'

belonging to the city under the act of 1872 [and] would seem to be sufficient to include

by reference the power to 'provide for the use' of city property as granted in the act of

1872" (Olmstead, supra, 124 Cal.App. at p. 17), provided City with the powers to

"regulate and control the use of . . . public places for any and all purposes" (Stats. 1889,

Chapt. XX, Art. II, ch. II, § 1.2, p. 651), to "provide for . . . inclosing, improving, and

regulating public grounds" (id. at § 1.13, p. 652), and to "provide for the security,

custody, and administration of all property of said city" (id. at § 1.37, p. 654). The new

charter also provided that "[a]ll parks . . . or other public grounds now open and dedicated

to the public use . . . shall be under the control and management of the Board of Public

Works, with power to layout, regulate, and improve same, subject to ordinance passed by

the Common Council." (Stats. 1889, Chapt. XX, Art. V, ch. VII, § 1, p. 695.)

B. Analysis

We are persuaded, as was the Olmstead court, that any purported limitations

placed by the 1870 Statute on City's power to manage its parklands was annulled by the

later enactments of the California Legislature. In Olmstead, the court was first presented

with the issue of whether the subject lands could be deemed a park. (Olmstead, supra,

124 Cal.App. at p. 16.) The appellant argued that, although a city ordinarily has the

power to set aside lands for parks, the 1870 Statute showed the California Legislature

intended to divest City of that power because the 1870 Statute provided that the pueblo

lands were to be set aside as a park, "and none others," would be set aside for park

34
purposes. (Id. at p. 18.) Olmstead rejected that argument, stating that even "[c]onceding

such effect at the date of the statute, [the 1870 Statute] could not in any way limit the

authority given to the city by a later act of the Legislature, and any such attempted

limitation implied from the statute of 1869 was annulled by the charter of 1889." (Ibid.)

We agree that, even assuming the 1870 Statute placed some limits on City's powers over

its parklands before City's charter was approved, the California Legislature's approval of

City's charter superseded those limitations to the extent the 1870 Statute was inconsistent

with the powers granted to City by the California Legislature's approval of City's charter.

Those powers granted to City by the charter, including the power to "regulate and

control the use of public places for any and all purposes," and to "improv[e] and

regulat[e] public grounds," and to "administ[er] all property" owned by City, along with

the more specific power (as to all parks) to "layout, regulate, and improve same," grant

ample authority to City to approve construction of a parking structure within the Park for

which a fee may be levied. A charter city "has inherent authority to control, govern and

supervise its own parks" (Simons v. City of Los Angeles (1976) 63 Cal.App.3d 455, 468),

and " 'has plenary powers with respect to municipal affairs not expressly forbidden to it

by the state Constitution or the terms of the charter.' " (Hiller v. City of Los Angeles

(1961) 197 Cal.App.2d 685, 689.) Thus, a City may construct a parking garage within a

dedicated park because that use is not inconsistent with the enjoyment of the public of the

land for park purposes. (City and County of San Francisco v. Linares (1940) 16 Cal.2d

441, 446.) Indeed, in Spires v. City of Los Angeles (1906) 150 Cal. 64, the City of Los

Angeles, as successor to the pueblo of Los Angeles, held "Central Park" under a

35
dedication by the public " 'as a public place forever for the enjoyment of the community

in general.' " (Id. at pp. 65-66.) In approving the use of the land for library purposes and

with reference to the words of the dedication, the court stated:

"This was comprehensive language, and in construing the grant, or
rather the extent of the terms of the dedication, no narrow and strict
construction should be applied to limit the city in the uses to which
the property dedicated may be devoted, as long as they are such as
tend to further and promote the enjoyment of the people under the
general dedication of the land for their benefit. And that the
establishment of a public library, to which the visitors to the park
have access, is consistent with such public enjoyment . . . . [¶] As
matter of public knowledge, we are aware that the erection of hotels,
restaurants, museums, art-galleries, zoological and botanical
gardens, conservatories, and the like in public parks is common, and
we are not pointed to any authority where it has been regarded as a
diversion of the legitimate uses of the park to establish them, but, on
the contrary, their establishment has been generally recognized as
ancillary to the complete enjoyment by the public of the property set
apart for their benefit." (Spires, at p. 66.)

SOHO, citing the statement in Mulvey v. Wangenheim (1913) 23 Cal.App. 268 that

"where a grant is made for a specified, limited, and definite purpose, the subject of the

grant cannot be used for another and a different purpose" (id. at p. 271), asserts that the

dedicating language necessarily delimits the uses to which the lands may be used, and

therefore any use inconsistent with a "free" park is a violation of the dedicating language.

We are unpersuaded by Mulvey, for several reasons. First, Mulvey did not consider

whether the 1870 Statute had been superseded by subsequent acts of the Legislature, and

therefore is of limited persuasiveness. Second, it appears the cases relied on by Mulvey,

for the proposition that analyzing the propriety of a proposed use starts by strictly

construing the dedicating language, all involved privately held land conveyed to the

36
municipality in trust for limited purposes. (See Price v. Thompson (1871) 48 Mo. 361

[1871 WL 7747 at * 2] ["the original owner of the land . . . recorded a plat . . . and

particularly set forth, marked and designated thereon four acres of land as a 'park;' . . .

said park, by virtue of said plat, was vested in the town, in trust for the free use of all the

inhabitants of the town as a common or public ground, and for no other purpose

whatever"]; Village of Riverside v. Maclean (1904) 210 Ill. 308, 319-320; Seward v. City

of Orange (1896) 59 N.J.L. 331, 332.) However, as the court recognized in Slavich v.

Hamilton (1927) 201 Cal. 299, 303, "[t]he uses to which park property may be devoted

depend, to some extent, upon the manner of its acquisition, that is, whether dedicated by

the donor, or purchased or condemned by the municipality. A different construction is

placed upon dedications made by individuals from those made by the public. The former

are construed strictly according to the terms of the grant, while in the latter cases a less

strict construction is adopted." Thus, when (as here) the land was owned by a city (as

successor to its pueblo) and is held by that city under a dedication by the public as a

public place, "no narrow and strict construction should be applied to limit the city in the

uses to which the property dedicated may be devoted, as long as they are such as tend to

further and promote the enjoyment of the people under the general dedication of the land

for their benefit." (Spires v. City of Los Angeles, supra, 150 Cal. at p. 66.) We are

therefore convinced that Mulvey does not aid SOHO's argument that a strict construction

of the term "free" must be superimposed when assessing the propriety of City's decision

to approve a pay-parking lot.

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 For the foregoing reasons, we conclude the trial court correctly held that the 1870

Statute did not bar City from approving the Project merely because it contemplated

construction of a pay-parking lot.

DISPOSITION

The judgment granting SOHO's petition for a writ of mandate based on City's

alleged violation of Municipal Code section 126.0504 is reversed. In all other respects,

the judgment is affirmed. Committee is entitled to its costs on appeal.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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