Filed 7/21/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
STEVEN WALTERS et al., 2d Civil No. B258638
(Super. Ct. No. BS144965)
Plaintiffs and Appellants, (Los Angeles County)
v.
CITY OF REDONDO BEACH et al.,
Defendants and Respondents;
REDONDO AUTO SPA et al.,
Real Parties in Interest and Respondents.
Respondent City of Redondo Beach (City) approved a conditional use
permit (CUP) for construction of a combination car wash and coffee shop on a vacant lot
adjacent to homes owned by appellants Steven Walters, Mark Kleiman, Rick Son,
Krishna Gorripati and John Moore. In issuing the permit, the City found the project was
categorically exempt from the requirements of the California Environmental Quality Act
(Pub. Resources Code, § 21000 et seq.; CEQA)1 because it involves the development of
“new, small facilities or structures [and] installation of small new equipment and
facilities in small structures.” (Guidelines, § 15303.)
1
All further statutory references are to the Public Resources Code, unless
otherwise indicated. The CEQA implementing guidelines appear at California Code of
Regulations, title 14, section 15000 et seq., and will be referred to as the “Guidelines.”
Appellants filed a petition for writ of mandate challenging the City’s
decision. The trial court denied the petition, agreeing with the City that the project is
categorically exempt from CEQA under Guidelines section 15303, subdivision (c) and
that no exception to the exemption applies. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Respondents and real parties in interest Redondo Auto Spa and Chris
McKenna (collectively “Auto Spa”) propose to build a full-service car wash and small
coffee shop on a 25,000 square-foot lot at the northwest corner of Torrance Boulevard
and South Irena Avenue in Redondo Beach. The property is located within a commercial
(C-3) zone. The structure will consist of a 90-foot car wash tunnel and attached coffee
shop that together will total 4,080 square feet. The remainder of the site will include 17
parking spaces for employees and coffee shop patrons, an area for drying cars,
landscaping and a water feature. Entry to the car wash is from the residential street, just
beyond the corner of the major street.
In 1965, the City approved a CUP for a car wash and snack bar at the same
location. That car wash, which occupied 5,138 square feet of the parcel, operated until
approximately June 2001. The property fell into disrepair. About five years later,
appellants’ homes on the abutting property lines were constructed. In 2012, the property
was found to be a blight on the area and the City prosecuted the owner for nuisance and
other charges. Auto Spa responded by demolishing the remaining structure and
proposing to rebuild the car wash as an “express wash” model, in which patrons would
vacuum their own cars and drive through the car wash tunnel. The City’s Planning
Commission (Commission) did not approve the plan. Among other things, it determined
that the proposed use would have an adverse impact on abutting properties and that the
site was not adequate in size and shape to accommodate the express wash project. Rather
than appeal that decision, Auto Spa proposed a self-described “high end,” full-service car
wash and coffee shop.
2
The Commission granted a CUP for the full-service car wash and found
that it was categorically exempt from CEQA under Guidelines section 15303, subdivision
(c). The notice of exemption states that “[t]he project consists of the construction of a
new car wash facility and coffee shop of 4,080-square feet in size on commercially zoned
property. As such, it is consistent with the classes of projects described in CEQA
Guidelines Section 15303(c) that states, in part, that commercial buildings not exceeding
10,000 square feet in floor area on sites zoned for such use if not involving the use of
significant amounts of hazardous substances where all necessary public services and
facilities are available and the surrounding area is not environmentally sensitive are
considered exempt from further CEQA review. No potentially significant environmental
impacts will result from the project.”
The Commission added certain restrictions to the project, requiring that the
equipment not exceed the Redondo Beach Municipal Code (Municipal Code) noise limit,
that no detailing equipment be used that is audible or discernable at the property line
from the other on-site equipment, and that operating hours be limited. The Commission
further required that the number of vehicles washed be limited to 20 vehicles per hour
and to no more than 200 vehicles per day (referred to as Condition 24). Coffee shop
hours were set at 7:00 a.m. to 8:00 p.m. seven days a week. Walters and Kleiman
appealed the decision to the City Council.
Auto Spa provided a traffic study, conducted by Gibson Transportation
Consulting (Gibson), which concluded that the proposed car wash would not change the
level of service at the intersection from its present “A” status, even at peak operating
times. It also commissioned a noise study by Davy & Associates (Davy), which
determined that the only significant noise source would be the blower/dryer systems
inside the car wash tunnel. Davy concluded that noise would largely be contained by the
design and materials to be used in constructing the facility.
Before the hearing on the appeal, Auto Spa requested removal of Condition
24. It claimed that 200 cars per day would not be profitable for the car wash. The City
3
Council approved the project subject to certain conditions, including compliance with the
City’s noise ordinance (Condition 20), a vehicle limit of 10,000 cars per month and
limitations on the car wash’s operating hours.2 Condition 20 requires that compliance
with the noise standards be tested and documented prior to the final inspection and
opening of the car wash.
With these and other conditions in place, the City Council determined
(1) the building site is adequate in size to accommodate the proposed use; (2) the
proposed use has adequate street access and will not have a significant impact on traffic;
(3) the proposed use will have no adverse effect on abutting properties; (4) the noise that
will be generated by the car wash blowers and vacuum drops does not exceed the
permitted interior and exterior limits; (5) the project is exempt from CEQA under
Guidelines section 15303, subdivision (c); and (6) the project will not have a significant
effect on the environment.
Appellants filed a petition for writ of mandate challenging the CEQA
exemption and the City’s issuance of a CUP. After briefing and a hearing, the trial court
denied the writ petition, concluding that the project is categorically exempt under
Guidelines section 15303, subdivision (c), and that the CUP was properly issued. This
appeal followed.3
DISCUSSION
A. CEQA Overview
“CEQA and its implementing administrative regulations [Guidelines] . . .
establish a three-tier process to ensure that public agencies inform their decisions with
environmental considerations. [Citation.] The first tier is jurisdictional, requiring that an
2
The permitted hours of operation for the car wash are from 8:00 a.m. to 6:00 p.m.
during daylight savings time and 8:00 a.m. to 5:00 p.m. during standard time, except on
Sundays, where the hours are from 9:00 a.m. to 4:00 p.m.
3
With our permission, Building Better Redondo, Inc. (BBR) filed an amicus curiae
brief supporting appellants’ position. We have considered its arguments in addition to
those raised by the parties.
4
agency conduct a preliminary review to determine whether an activity is subject to
CEQA.” (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007)
41 Cal.4th 372, 379-380, fn. omitted (Muzzy Ranch).) “CEQA applies if the activity is a
‘project’ under the statutory definition, unless the project is exempt. [Citations.]”
(San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo
Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1373.)
“The second tier concerns exemptions from CEQA review,” which include
“categorical exemptions or ‘classes of projects’ that the . . . agency has determined to be
exempt per se because they do not have a significant effect on the environment. [¶] . . .
[¶] If a public agency properly finds that a project is exempt from CEQA, no further
environmental review is necessary. [Citation.] The agency need only prepare and file a
notice of exemption [citations], citing the relevant statute or section of the CEQA
Guidelines and including a brief statement of reasons to support the finding of exemption
[citation].” (Muzzy Ranch, supra, 41 Cal.4th at p. 380.) The “third tier applies if the
agency determines substantial evidence exists that an aspect of the project may cause a
significant effect on the environment.” (Id. at p. 381.)
Here, it is undisputed that the proposed car wash qualifies as a “project”
under CEQA. The issues on appeal concern the second tier of the CEQA analysis, i.e.,
whether the City erred in finding that the car wash project is categorically exempt from
CEQA and that there are no unusual circumstances creating a reasonable possibility the
activity will have a significant effect on the environment. (See Guidelines, §§ 15303,
subd. (c), 15300.2, subd. (c).)
“In considering a petition for writ of mandate in a CEQA case, ‘[o]ur task
on appeal is “the same as the trial court’s.” [Citation.] Thus, we conduct our review
independent of the trial court’s findings.’ [Citation.] Accordingly, we examine the
City’s decision, not the trial court’s.” (Banker’s Hill, Hillcrest, Park West Community
Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 257.)
5
B. Application of Categorical Exemption
The City determined that the car wash project fell within Class 3 of the
CEQA categorical exemptions. Appellants argue this determination was incorrect as a
matter of law. To the extent this argument “turns only on an interpretation of the
language of the Guidelines or the scope of a particular CEQA exemption, this presents
‘a question of law subject to de novo review by this court.’” (Save Our Carmel River v.
Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 693.) But
“[w]here the record contains evidence bearing on the question whether the project
qualifies for the exemption, such as reports or other information submitted in connection
with the project, and the agency makes factual determinations as to whether the project
fits within an exemption category, we determine whether the record contains substantial
evidence to support the agency’s decision.” (Id. at p. 694.)
The relevant Class 3 exemption involves “[1] construction and location of
limited numbers of new, small facilities or structures” and “[2] installation of small new
equipment and facilities in small structures.” (Guidelines, § 15303.) This exemption
typically applies “when the project consists of a small construction project and the utility
and electrical work necessary to service that project.” (Voices for Rural Living v.
El Dorado Irrigation Dist. (2012) 209 Cal.App.4th 1096, 1109 (Voices).) “Examples of
this exemption include but are not limited to: . . . [¶] (c) A store, motel, office, restaurant
or similar structure not involving the use of significant amounts of hazardous substances,
and not exceeding 2500 square feet in floor area. In urbanized areas, the exemption also
applies to up to four such commercial buildings not exceeding 10,000 square feet in floor
area on sites zoned for such use if not involving the use of significant amounts of
hazardous substances where all public services and facilities are available and the
surrounding area is not environmentally sensitive.” (Guidelines, § 15303, subd. (c),
italics added.)
The parties do not dispute that the proposed car wash project is located in
an urbanized area. Their dispute centers on whether a car wash generally fits within the
6
definition of commercial buildings in Guidelines section 15303, subdivision (c), and
whether the car wash at issue here, at 4,080 square feet, is within that section’s size
restrictions. Appellants acknowledge this Guideline exempts a “store, motel, office,
restaurant or similar structure,” but contend there is nothing in the exemption that would
indicate it was intended to cover the installation of industrial equipment. They argue that
the types of equipment installed at a car wash, such as blowers, vacuums, air nozzles and
waste treatment, are not anticipated by Guidelines section 15303, subdivision (c). We
disagree.
First, the Guideline itself says it is not limited to the listed examples of a
store, motel, office or restaurant. It also includes “similar structure[s].” (Guidelines,
§ 15303, subd. (c).) Car washes are similar to stores, motels, offices and restaurants in
that they are commercial businesses that serve consumers, require the parking of
consumers’ vehicles, contain equipment and often are located in or near residential areas.
Moreover, the proposed car wash includes a coffee shop, which qualifies as a restaurant.
Appellants cite no case authority suggesting that a car wash and coffee shop combination
cannot qualify for the exemption under section 15303, subdivision (c).
In addition, we reject appellants’ contention that the equipment intended to
be used at a car wash is substantially different from the types of equipment associated
with a store, motel, office or restaurant that is up to 10,000 square feet in size. As Auto
Spa points out, these types of buildings typically have centralized heating, ventilation and
air conditioning plants with chillers, cooling towers, commercial laundry facilities and
commercial kitchens with ventilation systems.
Nor are we persuaded by appellants’ argument that Guidelines section
15303, subdivision (c) does not apply to a single commercial building in excess of 2,500
square feet. This argument was rejected by Fairbank v. City of Mill Valley (1999)
75 Cal.App.4th 1243 (Fairbank), which held “[t]he most plausible reading of Guidelines
section 15303(c), as amended in October 1998, is that a commercial project to be built in
an urbanized area may be found to be exempt if it involves the construction of one, two,
7
three, or four commercial buildings on a parcel zoned for such use, so long as the total
floor area of the building(s) does not exceed 10,000 square feet. [I]t does not make sense
to interpret the exemption as applicable to the construction of four 2,500-square-foot
buildings on a given parcel, but not to one building of 10,000 square feet or less on the
same parcel.” (Id. at p. 1258.)
There is no dispute that the proposed car wash and coffee shop is a
commercial structure of less than 10,000 square feet that is to be built in an urbanized
area zoned for commercial use. There also is no dispute that “all necessary public
services and facilities are available” and that the surrounding area is not considered
“environmentally sensitive.” (Guidelines, § 15303, subd. (c).) The City properly
determined, therefore, that the car wash and coffee shop project satisfies the categorical
exemption requirements of Guidelines section 15303, subdivision (c).
Appellants argue that even if the exemption could apply to a car wash and
coffee shop in some instances, it does not apply here because the proposed project will be
utilizing hazardous chemicals. While it is true that the exemption in Guidelines section
15303, subdivision (c) applies only to commercial buildings that do “not involv[e] the use
of significant amounts of hazardous substances,” appellants have not offered any
evidence suggesting that the soaps or detergents to be used at the proposed car wash are
hazardous, or that any significant amount of hazardous substances will be used. To the
contrary, they offer documents that state that the soaps are biodegradable and are
“verified nonhazardous per [the Occupational Safety and Health Administration].”
Appellants’ speculation that the car wash operation might include hazardous substances
is not supported by the administrative record.
C. Unusual Circumstances Exception to Categorical Exemption
Appellants contend that even if Guidelines section 15303, subdivision (c)
does apply to the proposed car wash and coffee shop, several factors inherent in the
project preclude the use of a categorical exemption because “there is a reasonable
possibility that the activity will have a significant effect on the environment due to
8
unusual circumstances.” (Guidelines, § 15300.2, subd. (c).) As we shall explain, the
record does not support application of this “unusual circumstances” exception to the
exemption.
1. Analytical Framework and Standards of Review
In assessing whether the unusual circumstances exception applies, we
engage in two alternative analyses, as delineated by our Supreme Court in Berkeley
Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105 (Berkeley
Hillside). “In the first alternative, . . . a challenger must prove both unusual
circumstances and a significant environmental effect that is due to those circumstances.
In this method of proof, the unusual circumstances relate to some feature of the project
that distinguishes the project from other features in the exempt class.” (Ibid.) “Once an
unusual circumstance is proved under this method, then the ‘party need only show a
reasonable possibility of a significant effect due to that unusual circumstance.’”
(Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn. (2015)
242 Cal.App.4th 555, 574 (Citizens).)4
Whether the project presents unusual circumstances under this alternative is
a factual inquiry subject to the traditional substantial evidence standard of review.
(Berkeley Hillside, supra, 60 Cal.4th at p. 1114.) This standard requires that we
“resolv[e] all evidentiary conflicts in the agency’s favor and indulg[e] in all legitimate
and reasonable inferences to uphold the agency’s finding.” (Citizens, supra, 242
Cal.App.4th at p. 575.)
If unusual circumstances are found under this first alternative, “agencies
. . . apply the fair argument standard in determining whether ‘there is a reasonable
possibility of a significant effect on the environment due to unusual circumstances.’”
(Berkeley Hillside, supra, 60 Cal.4th at p. 1115, citing Guidelines, § 153002, subd. (c).)
4
At the time of briefing in this appeal, Citizens had not been decided. At our
request, the parties provided supplemental briefing discussing the impact of that case on
the standard of review and other issues pending before us.
9
Under this standard, “‘an agency is merely supposed to look to see if the record shows
substantial evidence of a fair argument that there may be a significant effect. [Citations.]
In other words, the agency is not to weigh the evidence to come to its own conclusion
about whether there will be a significant effect. It is merely supposed to inquire, as a
matter of law, whether the record reveals a fair argument. . . .’” (Id. at p. 1104, italics
omitted.)
In the second alternative under Berkeley Hillside, a challenger “may
establish an unusual circumstance with evidence that the project will have a significant
environmental effect.” (Berkeley Hillside, supra, 60 Cal.4th at p. 1105, italics added.)
“When it is shown ‘that a project otherwise covered by a categorical exemption will have
a significant environmental effect, it necessarily follows that the project presents unusual
circumstances.’” (Id. at pp. 1105-1106, italics omitted.) “But a challenger must establish
more than just a fair argument that the project will have a significant environmental
effect. [Citation.] A party challenging the exemption, must show that the project will
have a significant environmental impact.” (Citizens, supra, 242 Cal.App.4th at p. 576.)
“In other words, a showing by substantial evidence that a project will have a significant
effect on the environment satisfies both prongs of the unusual circumstances exception
under the second method of establishing the exception.” (Ibid.)
2. First Alternative --
Features of the Project as Unusual Circumstances
The Guidelines do not define “unusual circumstances.” (Voices, supra,
209 Cal.App.4th at p. 1109; San Francisco Beautiful v. City and County of San Francisco
(2014) 226 Cal.App.4th 1012, 1023.) Berkeley Hillside clarified that a party can show an
unusual circumstance by demonstrating that the project has some characteristic or feature
that distinguishes it from others in the exempt class, such as its size or location.
(Berkeley Hillside, supra, 60 Cal.4th at p. 1105; Citizens, supra, 242 Cal.App.4th at
p. 576.) But “[t]he presence of comparable facilities in the immediate area adequately
supports [an] implied finding that there were no ‘unusual circumstances’ precluding a
10
categorical exemption.” (Bloom v. McGurk (1994) 26 Cal.App.4th 1307, 1316 (Bloom);
see San Francisco Beautiful, at p. 1025 [“There is no basis to conclude the addition of
726 additional utility cabinets would be ‘unusual’ in the context of the City’s urban
environment, which is already replete with facilities mounted on the public rights-of-
way”]; City of Pasadena v. State of California (1993) 14 Cal.App.4th 810, 826-827 [“We
conclude that the lease of the Walnut Street site for use as a parole office does not
constitute an ‘unusual circumstance’ within the meaning of CEQA in light of the
presence of the other custodial and criminal justice facilities in the immediate area”],
disapproved on other grounds as stated in Western States Petroleum Assn. v. Superior
Court (1995) 9 Cal.4th 559, 570, fn. 2.)
As previously discussed, there is nothing particularly unusual about the
proposed car wash and coffee shop. The evidence establishes that there are many other
car washes in the surrounding area, including a car wash within a minute’s drive from the
project site, five car washes within two miles and 12 car washes within a 10-minute
drive. Indeed, the site itself was a car wash and snack bar for nearly 40 years, strongly
suggesting that the circumstances are not the least bit unusual.
Appellants contend that the presence of “large air blowers and other
outdoor activities that are conducted outside of the ‘structures’ seven days a week” makes
the car wash “unusual.” As Auto Spa observes, however, the examples in the Guidelines
are not qualitatively different from a car wash. Restaurants and stores generally are open
seven days a week; indeed, fast food restaurants and convenience stores are often open 24
hours a day. Restaurants and stores routinely have outside activities such as sidewalk
displays, outdoor seating for customers or drive-through windows. Motels are
necessarily 24-hour operations with parking lots and perhaps pools or other outdoor
recreation areas and related equipment.
The general effects of an operating business, such as noise, parking and
traffic, cannot serve as unusual circumstances in and of themselves. In Fairbank, supra,
75 Cal.App.4th 1243, the trial court concluded there was nothing unusual about traffic
11
and parking problems relating to a 5,855 square-foot commercial retail/office building.
The court explained that challengers to the project had to show some feature “that
distinguishes it from any other small, run-of-the-mill commercial building or use.
Otherwise, no project that satisfies the criteria set forth in Guidelines section 15303(c)
could ever be found to be exempt. There is nothing about the proposed 5,855 square-foot
retail/office building that sets it apart from any other small commercial structure to be
built in an urbanized area, without the use of hazardous substances and without any
showing of environmental sensitivity.” (Id. at p. 1260; see also Bloom, supra, 26
Cal.App.4th at p. 1316 [area zoned for facility precluded finding use was unusual];
Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 734-
736 [objections to a single family home based on height, view, privacy and water runoff
are “normal and common considerations in the construction of a single family residence
and are in no way due to ‘unusual circumstances’”].)
Appellants cite Lewis v. Seventeenth Dist. Agricultural Assn. (1985)
165 Cal.App.3d 823, for the proposition that the proximity to residences is itself an
unusual circumstance, arguing that the noise and dust generated by the stock-car racing
track at issue there is similar to the issues presented by the car wash project here. But the
unusual circumstances prong of the exception was neither disputed nor analyzed in
Lewis. (Citizens, supra, 242 Cal.App.4th at p. 585 [“It does not appear that the unusual
circumstances prong of the exception was a matter of active dispute in Lewis as there was
substantive analysis only on the significant effect prong”].) “[C]ases are not authority for
propositions not considered.” (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)
Moreover, it is axiomatic that a car race track is far more unusual next to a residential
neighborhood than the continuation of a long-standing car wash on the corner of a busy
intersection near residential properties. (See Citizens, at pp. 584-585.)
We conclude appellants have not identified substantial evidence supporting
a finding of unusual circumstances based on the features of the car wash and coffee shop
12
project. To the contrary, we conclude the City’s findings on this issue are supported by
substantial evidence.5 (Berkeley Hillside, supra, 60 Cal.4th at p. 1114.)
3. Second Alternative --
Significant Effect on the Environment as an Unusual Circumstance
The next question is whether appellants have established unusual
circumstances under the alternative method of showing that the project will have a
significant environmental effect. As discussed above, the reason for this alternative
method is that “evidence that the project will have a significant effect does tend to prove
that some circumstance of the project is unusual.” (Berkeley Hillside, supra, 60 Cal.4th
at p. 1105.) “Thus, a challenger seeking to prove unusual circumstances based on an
environmental effect must provide or identify substantial evidence indicating (1) the
project will actually have an effect on the environment and (2) that effect will be
significant.” (Citizens, supra, 242 Cal.App.4th at p. 589.) “A significant effect on the
environment” is “a substantial adverse change in the physical conditions which exist in
the area affected by the proposed project.” (Guidelines, § 15002, subd. (g).)
As in Citizens, appellants’ focus before the City and the trial court was not
on whether the project actually will have a significant effect on the environment, but
rather on whether there is a reasonable possibility that the project may have a significant
environmental impact. (See Citizens, supra, 242 Cal.App.4th at p. 589.) Appellants
claimed there is a fair argument that the car wash and coffee shop may have significant
adverse noise and traffic effects in the area. “However, the evidence they rely upon and
their arguments fall well short of establishing that the . . . project will have a significant
environmental effect on the [area].” (Ibid.)
5
Because we conclude appellants have not met their burden of showing unusual
circumstances based on the features of the project, we need not address whether there is a
reasonable possibility of a significant environmental impact as a result of unusual
circumstances. (Citizens, supra, 242 Cal.App.4th at p. 588, fn. 24 [“A negative answer as
to the question of whether there are unusual circumstances means the exception [under
the first alternative] does not apply”].)
13
a. Noise
Appellants contend their noise expert, Evro Wee Sit, demonstrated that the
operation of the car wash would violate the City’s interior and exterior noise limits at the
abutting property line. This is not possible, however, because approval of the project is
conditioned upon Auto Spa’s adherence to the City’s interior and exterior noise limits.
Condition 20 states “the owner/operator shall be responsible to install and maintain all
equipment on the property so as ‘to reduce noise levels’ to meet the standards stated in
the City’s Noise Ordinance, specifically that there shall be no noise that exceeds 65 dBA
as measured at the north property line for a period of thirty (30) minutes or more per
hour, and that there shall also be compliance with the interior noise standards as stated in
Section 4-24.401 as measured for 5 minutes, unless the residents of the adjacent
residences deny access to their units for the purpose of measuring the interior noise
standards. Compliance with these requirements shall be tested and documented prior to
the final inspection and opening of the car wash operation.” (Italics added.)
Appellants and BBR argue Condition 20 violates CEQA’s fundamental rule
that environmental impacts, if any, must be reviewed and mitigated before approval of
the land use project. We are not persuaded. After considering the parties’ expert
evidence, the City found that “the noise generated by the car wash blowers and vacuum
drops does not exceed the permitted interior and exterior limits,” and that “the project
will not have a significant effect on the environment, subject to the modifications of the
design review and conditions of approval.” Hence, the City concluded that the project, as
approved, complies with the noise ordinance requirements, but took a “belt and
suspenders” approach by requiring Auto Spa to prove that those requirements are
satisfied. If Auto Spa fails to do so, it will not be permitted to operate until needed
modifications are made. As the trial court observed, appellants’ “argument that the City
does not have the necessary measuring equipment at present to test compliance with its
noise standards is interesting but remediable in any number of ways -- and not a reason to
deny the CUP.”
14
Furthermore, Berkeley Hillside clarified that “a finding of environmental
impacts must be based on the proposed project as actually approved . . . .” (Berkeley
Hillside, supra, 60 Cal.4th at p. 1119.) If the project cannot be built as approved, the
applicant must apply for approval of a different project. (Ibid.) Auto Spa concedes,
therefore, that if it cannot construct a car wash that complies with the interior and exterior
noise ordinance, it will have to apply for and obtain approval for a different project.
Auto Spa further concedes that Condition 20 contains a typographical error
in that it states “there shall be no noise that exceeds 65 dBA as measured at the north
property line for a period of thirty (30) minutes or more per hour . . . .” The actual
ordinance specifies a maximum limit of 60 dBA. Auto Spa judicially admits that it must
satisfy the 60 dBA exterior noise limit reflected in the ordinance.
In sum, the City found that the project will operate within the noise
limitations but, by imposing Condition 20, the City has ensured that any violation of the
noise ordinance will be corrected before the car wash and coffee shop are permitted to
operate. Condition 20 also requires AutoSpa to continue to “maintain all equipment on
the property so as ‘to reduce noise levels’ to meet the standards stated in the City’s Noise
Ordinance.” Given these assurances, appellants have not met their burden of showing
that the noise generated by the project actually will have a significant environmental
effect. (See Citizens, supra, 242 Cal.App.4th at p. 589.)
b. Traffic
Appellants assert that their traffic expert, Arthur Kassan, demonstrated that
the proposed car wash and coffee shop would adversely impact local traffic and pose
public safety concerns around the immediate area due to the small lot size, site
congestion, traffic bottlenecks and other issues. This assertion is contradicted by
appellants’ expert (Gibson), which provided significant evidence that the intersection
currently operates at level A, the highest level of service, and would continue to operate
at that level even at peak operating times for the car wash and coffee shop. According to
15
the standards of the City’s circulation element,6 the car wash and coffee shop will not
“significant[ly] impact” traffic in the area, will not require a new traffic signal at the
intersection and will generate less traffic than alternate land uses. Indeed, Auto Spa’s
expert testified that “the City of Redondo Beach’s criteria for a significant impact says
that a project can’t have a significant impact until the intersections are up and running at
level [of] service C or worse. So we’re at A, and we have no impact.”
Appellants concede the project will not result in any significant impacts
under the City’s circulation element traffic significance thresholds. They focus instead
on the internal efficiency of the project. They argue that the design of the car wash and
coffee shop is inefficient and will cause backups within the project property. This
argument not only is speculative, but it also is contradicted by Gibson’s report and by the
City’s finding that any such backups could be avoided by managing the flow of cars
through the car wash.
Appellants also cite no authority suggesting that parking issues or the
movement of cars on the property may be considered “traffic” as defined by CEQA. The
Guidelines and case law clarify that traffic impacts for CEQA purposes relate to the flow
of vehicles in public spaces. (See Parker Shattuck Neighbors v. Berkeley City Counsel
(2013) 222 Cal.App.4th 768, 782 [“In general, CEQA does not regulate environmental
changes that do not affect the public at large”].) The movement of cars on the property
affects only those persons on the property, not the general public.
At best, appellants point to evidence suggesting that the project possibly
could have a periodic negative effect on traffic. This is insufficient to meet their burden
of identifying evidence that the project actually will have a significant impact on the
environment by causing “a substantial adverse change in the physical conditions which
6
Trip generation rates for the project were created using rates derived from the
Institute of Transportation Engineers Trip Generation manual (9th Edition), which
contains an industry-standard methodology for calculating trip generation based upon the
square footage of the proposed structure and its use. (See City of Long Beach v. Los
Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 910.)
16
exist in the area.” (Guidelines, § 15002, subd. (g); see Citizens, supra, 242 Cal.App.4th
at p. 589.) As the trial court aptly summarized, “Gibson prepared a video that pictorially
illustrated [its] conclusion that various traffic loads do not reduce the ‘level of service’
below [level of service] A, the highest level of service. It is clear that approval by the
City Council of the change to a higher, monthly limit in August 2013 was motivated in
significant part by the content of that video which was played at that meeting and which
illustrated the capacity of the intersection, etc., to absorb at least the traffic level
ultimately approved -- and still have a ‘level of service’ of the highest rating, ‘A.’ [¶] . . .
Level of Service ‘A’ is the highest traffic category possible and there is not a fair
argument that the traffic level will fall below that with the change adopted by the Council
. . . .”
4. Conclusion
Since appellants have failed to establish unusual circumstances under either
Berkeley Hillside alternative, the exception does not preclude application of the Class 3
categorical exemption for “new, small facilities or structures [and] installation of small
new equipment and facilities in small structures.” (Guidelines, § 15303.) We conclude
the City properly determined the car wash and coffee shop project is categorically exempt
under the CEQA Guidelines.
D. Compliance with Municipal Code
Appellants argue that the City erred in issuing the CUP. They contend the
City violated the Municipal Code in three respects. First, they argue that the lot has an
inadequate size and shape to accommodate the car wash. This argument lacks merit
given that the lot successfully accommodated a car wash and snack bar for decades.
Indeed, the record reflects that the old car wash tunnel was in a similar location to the
new tunnel.
Second, appellants argue that the noise will disrupt health, safety and
welfare, particularly with respect to noise and traffic. As discussed above, the project, as
17
approved, requires strict compliance with the City’s noise ordinance, and substantial
evidence establishes that it will not significantly impact traffic flow in the area.
Finally, appellants contend that “all potential adverse impacts that may be
created by a proposed project must be addressed, which may include additional light,
glare, noise, vibrations, odors, air or water pollution, traffic, parking, and other
potentially undesirable impacts.” The record reflects that the City did address these
impacts. It expressly found that “[t]he design of the project considers the impact and
needs of the user in respect to circulation, parking, traffic, utilities, public services, noise
and odor, privacy, private and common open spaces, trash collection, security and crime
deterrence, energy consumption, physical barriers, and other design concerns.”
Appellants offer no reliable authority or legal support demonstrating that the City’s
findings were not supported by substantial evidence or that they should be reversed. (See
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd.
(2002) 100 Cal.App.4th 1066, 1078.)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Allan J. Goodman, Judge
Superior Court County of Los Angeles
______________________________
Buchalter Nemer PC, and Robert M. Dato, for Plaintiffs and Appellants.
The Sohagi Law Group, PLC, Margaret M. Sohagi, and R. Tyson Sohagi,
for Defendants and Respondents City of Redondo Beach et al.
Tucker Ellis LLP, Carmen A. Trutanich, Matthew I. Kaplan, and Rebecca
A. Lefler, for Real Parties in Interest and Respondents Redondo Auto Spa et al.
Brian P. Barrow, for Amicus Curiae Building a Better Redondo, Inc.