under the California Environmental Quality Act (CEQA, Pub. Resources Code, § 21000
et seq.), Friends of Riverside’s Hills (FRH) filed a petition for a writ of mandate
challenging that decision. FRH’s petition alleges the City was required to conduct a
CEQA Environmental Impact Review (EIR) of the development because it violates
certain land use provisions in the City’s municipal code. FRH’s petition also alleges the
City abused its discretion by approving a project that violates its own land use provisions.
The trial court denied FRH’s petition, and FRH now argues that ruling was error.
Because we find no evidence of the alleged land use violations, we will affirm the
judgment.
2
I
FACTUAL BACKGROUND
A. The Relevant Land Use Provisions
The project site is a parcel of undeveloped land off the north side of Arlington
Avenue, between Royale Place and Hawarden Drive, near Victoria Avenue. The parcel
falls within the City’s “Residential Conservation Zone” (RC Zone), an area established
by voter initiatives to protect “prominent ridges, hilltops and hillsides, slopes, arroyos,
ravines and canyons, and other areas with high visibility or topographic conditions that
warrant sensitive development from adverse development practices.” (Riverside Mun.
Code (RMC), § 19.100.010.B.) The City’s municipal code contains unique standards for
residential developments located in the RC Zone. In addition, different standards apply
within the RC Zone depending on whether the development is a standard or
“conventional” development versus a “Planned Residential Development” (PRD). In this
case, the Lofgrens have proposed to build a PRD, not a conventional development.
Relevant here are the conventional and PRD standards for lot size (the required minimum
acreage for each lot within a subdivision), “dwelling density” (the number of lots/homes
permitted within a subdivision, measured per gross acre), and lot coverage (the
percentage of the lot each home is allowed to occupy). (RMC, § 19.100.040.A.)
3
For conventional subdivisions in the RC Zone, minimum lot size depends on the
“average natural slope” of the lot.1 Lots with an average natural slope of 15 to 30% must
be at least two acres, whereas lots with an average natural slope over 30% must be at
least five acres. (RMC, § 19.100.050.A.3.b-c.) The idea being, the steeper the land, the
larger the lot.
The maximum dwelling density for a conventional subdivision is half a home per
gross acre of the entire parcel—or one home per two acres. (RMC, § 19.100.040.A.) To
illustrate, a 40-acre residential subdivision in the RC Zone could have up to 20 homes (or
lots), whereas a 10-acre subdivision would be limited to five homes.2 Comparatively, the
RC Zone is one of the less dense zones in the City. For example, the dwelling density of
zone R-4 (also called the Multiple-Family Residential Zone) is 40 homes (or lots) per
gross acre. (RMC, § 19.100.040.B.) Finally, as for lot coverage, there is no coverage
limit for conventional RC Zone subdivisions, meaning homes and yards may occupy the
entire lot, leaving no natural terrain preserved in open space. (RMC, § 19.100.040.A.)
1 “Average natural slope” is the “average natural inclination of the ground surface of a lot or parcel expressed as a percent,” and “shall be computed from photogrametric maps, grading permit plans and other data or evidence approved by the [City’s] Public Works Department.” (RMC, § 19.100.050.C.) 2 The municipal code expresses the RC Zone’s dwelling density as 0.5 du/ac, where “du” stands for “dwelling unit.” The code defines a single-family dwelling unit as a “dwelling designed for occupancy by one family and located on one lot delineated by front, side and rear lot lines”—in other words, a home. (RMC, § 19.910.020.A.) The code defines “gross acreage” as the “total land area in acres within a defined boundary including any area for public rights-of-way, public streets and dedications of land for public use.” (RMC, § 19.910.020.A.)
4
If a subdivision qualifies as a PRD, however, the municipal code allows for
deviation from these conventional standards. (RMC, § 19.780.010.) A PRD permit gives
a developer the “flexibility” to create “small-lot infill subdivisions in existing single-
family neighborhoods, thereby allowing a more efficient and creative use of often
difficult to develop properties.” (RMC, § 19.780.010.A.1.c.) Unlike conventional
subdivisions, PRDs “promote clustering of lots on less sensitive portions of the property
to preserve valuable open space and wildlife habitat” and “promote the preservation of
viewscapes and low impact development.” (RMC, § 19.780.010.A.2.a, c.) A PRD
permit allows a developer to deviate from conventional standards in two main ways:
(1) smaller minimum lot sizes (in a PRD, the minimum lot size, regardless of average
natural slope, is half an acre) and (2) higher density subdivisions (more homes per parcel
than in a conventional subdivision).
To qualify for a PRD permit in the RC Zone, an applicant must satisfy eight
criteria, two of which are relevant to this case—(1) retain the unique natural features of
the site, including arroyos, hillsides, and rock outcroppings, in natural open space areas
consistent with the grading ordinance; and (2) remain sensitive to the natural topographic
and habitat features of the site when placing buildings, “including [by] clustering []
homes in less sensitive and less steep locations in order to preserve such natural features
and valuable natural open space, both for wildlife habitat and visual aesthetic purposes.”
(RMC, § 19.780.050.A.2.a-h.)
5
If the applicant satisfies the eight criteria and obtains a PRD permit, the lot size
standards for conventional developments discussed above no longer apply. Instead, “lots
shall be a minimum of one half (1/2) acre in size and clustered in the less steep portions
of the site.” (RMC, § 19.780.060.C.1.) The applicant may choose to stop there, after
obtaining the ability to develop smaller lots. If so, then the PRD “benchmark density”
applies to the subdivision. The PRD benchmark density is the same density as the
maximum density for conventional subdivisions—0.5 du/ac (or, one home for every two
acres in the subdivision). (RMC, § 19.780.050.B.) If using the benchmark density, the
applicant must prepare a “conventional subdivision map,” which determines the “actual
number of lots that could be achieved” in the PRD “based on the average natural slope.”
(RMC, § 19.780.050.B, fn. 3.) Thus, the average natural slope dictates the benchmark
density for a PRD. Take for example a proposed PRD of a 10-acre parcel in the RC
Zone. If the average natural slopes of the lots are between 15 and 30%, each lot must be
at least two acres, meaning a maximum of five lots could fit in the 10-acre subdivision.
But if all of the slopes are, say, over 30% the lots must be at least five acres, meaning
only two lots could fit in the 10-acre subdivision. This process of determining
benchmark density establishes the allowable number of lots only, it does not dictate lot
size. Thus, in the example of the 10-acre parcel with lot slopes greater than 30%, while
the benchmark density limits the subdivision to two lots, those lots may be as small as
half an acre (they need not be a minimum of five acres) because the developer has
obtained a PRD permit.
6
If, however, the applicant does not wish to be constrained by the benchmark
density and desires flexibility to build additional lots, they may choose to take the
additional step of obtaining a “density bonus,” which increases the density from 0.5 to
0.63 du/ac. To qualify for the density bonus, the proposed development must: (1)
preserve in open space the unique natural features and steeper portions of the property
and cluster the lots in the less steep portions of the site; (2) appoint a recognized
conservation group to manage and maintain all designated open space areas; and (3)
achieve at least six of the 11 “Superior Design” elements listed in RMC section
19.780.050.E.1.b, which seek to promote environmentally conscious design aspects like
solar energy, solar reflection, natural shading, permeable paving, and drought-tolerant
landscaping. (RMC, § 19.780.050.E.2.) Taking again the example of the 10-acre
subdivision with an average natural slope between 15 and 30%, if the applicant obtained
the density bonus they could add a sixth lot to the development, and each lot could be as
small as half an acre.
B. The City Approves the Lofgrens’ PRD Permit Application
1. The application
In November 2013, the Lofgrens submitted an application to the City’s planning
commission for a PRD permit to subdivide 12.41 acres into seven lots. The Lofgrens
hired Christiansen & Company, a professional engineering firm, to survey the site and
prepare the application. The initial tentative tract map submitted with the application (the
“first tract map”) depicts a 12.41-acre parcel consisting of 4.85 acres of dedicated open
7
space, plus seven lots (each over half an acre) clustered around a street ending in a cul-
de-sac. This map did not contain any slope data.
2. Planning commission’s review and recommendations
The City’s planning commission reviews PRD permit applications and submits a
recommendation to the City. (RMC, § 19.650.020.) In May 2015, after reviewing a
memo prepared by staff, the planning commission unanimously voted to recommend the
City approve the Lofgrens’ PRD permit application (subject to various conditions of
approval) and issue a CEQA negative declaration for the project. In support of its
recommendation, the planning commission submitted to the City its staff memo, which
included as attachments a tentative tract map, various aerial photographs of the site, and
recommended conditions for permit approval. The tract map (the “second tract map”)
was identical to the first tract map, except that the total site area was revised to reflect
11.61 acres instead of 12.41 acres and this map contained average natural slope data for
each individual lot, with the lowest slope being 10.3% (Lot 7) and the highest being
22.4% (Lot 5). The tentative tract map also listed seven items as “Mandatory Project
Requirements,” which, if implemented, would satisfy the PRD density bonus
requirements. (RMC, § 19.780.050.E.2.) Six of the requirements related to the “Superior
Design” elements listed in RMC section 19.780.050.E.1 and the seventh requirement was
to “[a]ppoint a recognized conservation group to manage and maintain all designated
open space areas.” Every map the Lofgrens submitted during the approval process
contained these seven requirements.
8
The staff memo described the project site as “undeveloped” and “covered with
scattered brush, rock outcroppings, boulders and natural ground covers.” “The site has
frontage on Arlington Avenue, a major arterial street, and is surrounded by existing
residential development and vacant land.” Staff wrote, “The project is designed to
preserve the natural terrain of the property as overall site disturbance is minimized,
thereby reducing grading impacts and meeting the Hillside/Arroyo Grading requirements
found in Section 17.28.020 of the Riverside Municipal Code. The project has been
reviewed for compliance with all applicable development and subdivision standards and
was found to be compliant. No variances are required in conjunction with this project.
[¶] The subdivision proposes a clustering of lots on less sensitive portions of the property
to preserve valuable open space and wildlife habitat clustered in the less steep portions of
the site, and to promote the preservation of viewscapes and low impact development.
Additionally, each lot will be provided private open space in addition to the substantial
portion of the site dedicated toward natural open space.”
Staff recommended conditions for permit approval built in compliance with PRD
standards for residential developments in the RC Zone. First, and in general, staff
recommended requiring that “[a]ny future development” on the project site “shall comply
with all development standards of the RC-Residential Conservation Zone . . . at the time
such development is submitted for permitting.” Second, as a condition to obtaining a
grading permit, staff recommended requiring the Lofgrens to: (1) record a final tract
map and (2) “provide evidence that unique natural features and steeper portions of the
9
property are being preserved in open space, with lots clustered in the less steep portions
of the site.” Third, as a condition to obtaining a building permit, staff recommended
requiring the Lofgrens to “provide in writing which six of the standards listed in [RMC]
Section 19.780.050.D.1.b (Density Bonus for Superior Design) the project will comply
with in order to receive a Density Bonus.” The condition went on to require, “Evidence
of compliance with the selected standards shall be submitted to Planning Division Staff
for review and acceptance. Should the applicant not be able to fulfill the minimum
number of standards, the project shall return to the Planning Commission for revision and
the maximum density possible for the project shall be limited to 0.5 dwelling units per
acre.” Finally, the recommended conditions included the requirement that “a
Homeowners Association” maintain the “trail and open space as designated on the map.”
However, this appears to be boilerplate language staff inadvertently left in the conditions
because the memo—to which the conditions were attached—recommends requiring that
“the proposed 4.85 acre open space . . . be managed by a recognized conservation group”
as a condition to obtaining the density bonus.
Staff also attached to its memo an Environmental Initial Study for the
development to support its recommendation to issue a CEQA negative declaration—a
document indicating the project does not require an EIR because it poses no potentially
are proposed in the project which will require major revisions of the . . . negative
declaration due to the involvement of new significant environmental effects”].) As it
stands now, the development is required to comply with the land use provisions and there
is no evidence it has violated or will violate them.
Next, FRH’s petition alleges the Lofgrens violated the RC Zone standards by
failing to obtain variances for each proposed lot, as they are all less than the two-acre
minimum set forth in RMC section 19.100.050. But that provision applies to
23
conventional residential developments. The provision applying to PRDs states, “In order
to promote clustering, lots [in a PRD] shall be a minimum of one half (1/2) acre in size
and clustered in the less steep portions of the site. Lot sizes not in compliance with the
RC Zone standards will require a variance.” (RMC, § 19.780.060.C.1, italics added.)
Plainly, the code applies different lot size standards to PRDs than conventional
developments. And we decline FRH’s invitation to interpret the phrase “not in
compliance with the RC Zone standards” to refer to the conventional RC Zone standards
instead of the PRD RC Zone standards. The phrase appears in a provision applicable to
PRDs only and clearly refers to the immediately preceding minimum lot size standard of
half an acre. We will not import the conventional minimum lot size standard into PRDs
when the entire purpose of a PRD permit is to give developers the flexibility to create
“small-lot infill subdivisions in existing single-family neighborhoods.” (RMC,
§ 19.780.010.A.1.c, italics added.)
Finally, FRH’s reliance on Pocket Protectors to support its CEQA claim is
misplaced. In that case, unlike here, the record actually contained evidence—indeed
ample evidence—that the proposed development violated the city’s land use provisions.
(Pocket Protectors, supra, 124 Cal.App.4th at pp. 931-932 [the city approved the
development despite the fact the planning commission had concluded it violated various
land use provisions and recommended denial].) Thus, even were we to conclude that
violations of the code provisions at issue here could constitute a significant
environmental impact for CEQA’s purposes, the record establishes the project has not
24
violated those provisions and therefore FRH cannot make a “fair argument” that
environmental review is necessary. (Architectural Heritage Assn. v. County of Monterey,
supra, 122 Cal.App.4th at p. 1109.) We therefore affirm the trial court’s denial of FRH’s
CEQA claim.3
B. FRH’s Abuse of Discretion Claim Fails
FRH also alleges the City abused its discretion by approving a project that violates
the municipal code. In addition to the alleged violations we analyzed in the previous
section, FRH claims the project violated the municipal code by (1) failing to provide
substantial evidence the average natural slopes of the lots were between 15 and 30% and,
(2) deferring the selection of superior design elements to the grading permit stage.
“‘An abuse of discretion is established only if the [City] has not proceeded in a
manner required by law, its decision is not supported by findings, or the findings are not
supported by substantial evidence.’” (Friends of Lagoon Valley v. City of Vacaville
(2007) 154 Cal.App.4th 807, 816.) “The [City] is the finder of fact and we must indulge
all reasonable inferences from the evidence that would support [its] determinations and
resolve all conflicts in the evidence in favor of [its] decision.” (Save Our Peninsula
Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117.) This
review is highly deferential, “[w]e may neither substitute our view for that of the [City’s],
3 We note FRH also alleged in its petition that the project posed “aesthetic” and “biological resource” impacts requiring an EIR. Those allegations fail because they are premised on FRH’s meritless claims of municipal code violations.
25
nor reweigh conflicting evidence presented to [it].” (Friends of Lagoon Valley, at
p. 816.)
FRH argues the record contains insufficient evidence the average natural slopes of
the lots were between 15 and 30% in order to support the benchmark density of five lots.
FRH contends that because the average natural slope figures in the various parcel maps
vary widely, it is possible some of the lots have average natural slopes above 30%. If
that were the case, FRH argues, then those lots would have to be a minimum of five acres
for benchmark density calculation, and as a result five lots would not fit within the parcel.
This argument borders on frivolous. The Lofgrens’ professional engineer submitted
several versions of maps to the City and in none of those maps does a single lot’s average
natural slope exceed 30%. The data in the revised conventional map—on which the
benchmark density is determined (RMC, § 19.780.050.B, fn. 3)—depicts five lots with
average natural slopes between 15.2 and 27.3%. That map, on its own, constitutes
substantial evidence to support the benchmark density of five lots. In other words, even
if FRH had surveyed the parcel and presented independent slope data that conflicted with
the Lofgrens’ data, the City was entitled to find the Lofgrens’ data more credible and
approve a five-lot benchmark density based on their conventional map.
Finally, we reject FRH’s claim the City improperly allowed the Lofgrens to defer
selecting which six of the superior design elements listed in RMC section
19.780.050.E.1.b they would implement to obtain the density bonus. FRH has the facts
and the law wrong. First of all, the Lofgrens have selected their design elements—they
26
listed them under a section entitled “Mandatory Project Requirements,” which appears on
each map they submitted to the City and planning commission. More importantly,
however, the municipal code does not require PRD permit applicants to select their
superior design elements prior to permit approval—probably because it is difficult if not
impossible to know which building or landscaping elements are feasible until later phases
of the project like grading or construction.
The trial court correctly denied FRH’s abuse of discretion claim.
III
DISPOSITION
We affirm the judgment. FRH shall bear costs on appeal.
SLOUGH J.
We concur:
McKINSTER Acting P. J.
MILLER J.
27
Filed 9/7/18 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
FRIENDS OF RIVERSIDE'S HILLS, E068350 Plaintiff and Appellant, v. (Super.Ct.No. RIC1600523) CITY OF RIVERSIDE, Defendant and Respondent; ORDER CERTIFYING OPINION FOR PUBLICATION CARLTON R. LOFGREN as Trustee, etc. et al., Real Parties in Interest and Respondents. _______________________________________
THE COURT
The request for publication of the opinion filed on August 10, 2018 is GRANTED. The opinion meets the standard for publication as specified in California Rules of Court, rule 8.1105(c). It is ORDERED that the opinion filed in this matter on August 10, 2018, be certified for publication.
SLOUGH J.
We concur:
McKINSTER Acting P. J.
MILLER J.
28
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the petition for writ of mandate, finding no evidence that the City's approval of the residential development project violated municipal land use provisions or required an Environmental Impact Report under CEQA.
Issues
Whether the City's approval of the residential development project violated municipal land use provisions regarding lot clustering, grading, and density.
Whether the City abused its discretion by approving the project without an Environmental Impact Report (EIR) under CEQA.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Because we find no evidence of the alleged land use violations, we will affirm the judgment.”
“The trial court denied FRH’s petition, and FRH now argues that ruling was error. Because we find no evidence of the alleged land use violations, we will affirm the judgment.”