for Intervener and Cross-Appellant One Park Boulevard, LLC.
INTRODUCTION
This appeal involves the proposed expansion of the San Diego Convention Center
(Convention Center) by the City of San Diego and of the adjacent Hilton San Diego
Bayfront hotel by One Park Boulevard, LLC (One Park, and collectively, the Project).
The San Diego Unified Port District (Port) approved a port master plan amendment
authorizing the Project (Amendment). The California Coastal Commission
(Commission) certified the Amendment as consistent with the California Coastal Act
(Pub. Resources Code, § 30000 et seq.), 1 which also required certain findings under the
California Environment Quality Act (CEQA) (§ 21000 et seq.).
1 Subsequent statutory references are to the Public Resources Code, unless noted. We continue to refer to the code by name as appropriate for clarity.
2
San Diego Navy Broadway Complex Coalition (Navy Broadway) filed a petition
for writ of administrative mandamus against the Commission and the Port to challenge
the certification, later adding the City and One Park (collectively, Defendants). 2
Defendants asserted a statute of limitations defense, which the trial court rejected after a
bench trial. The court then held a hearing on the merits, denied Navy Broadway's
petition, and entered judgment for Defendants.
Navy Broadway appealed from the judgment, and Defendants filed a cross-appeal
challenging the statute of limitations ruling. We conclude the trial court erred in rejecting
Defendants' statute of limitations defense, the action should have been dismissed, and the
judgment for Defendants should be affirmed. We also elect to address Navy Broadway's
appeal and further conclude we could affirm based on the merits of its petition as well.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background Facts
The Convention Center is situated in downtown San Diego next to San Diego Bay.
Following a Phase II expansion, the Convention Center occupied a contiguous 13-acre
site, bounded by Harbor Drive (next to the Gaslamp Quarter district), Park Boulevard,
and Convention Way on the southwest (bay) side. The Hilton is across Park Boulevard,
along the bay.
2 The Port, City, and One Park filed joint briefs, and the Commission filed its own briefs. Unless specificity is necessary for context, we use "Defendants" when addressing arguments by any defendant.
3
The Port began considering a Phase III expansion of the Convention Center and a
related expansion of nearby hotel facilities. In May 2012, the Port circulated the
Amendment and a Draft Environmental Impact Report (Draft EIR) for public review and
comment. In September 2012, the Port adopted resolutions certifying the Final
Environmental Impact Report (Final EIR), approving the Amendment, and directing
filing with the Commission for certification. 3 Port staff communicated with Commission
staff and revised the Amendment based on their input. In October 2013, the Commission
held a hearing on the Amendment and, after the Port agreed to additional changes,
unanimously certified it as consistent with the Coastal Act. In February 2014, the
Commission adopted revised findings supporting its October 2013 approval. The Port
adopted the certified Amendment, and the Commission accepted the Port's adoption in
June 2015.
As certified by the Commission, the Amendment provided for issuance of coastal
development permits for the Convention Center and hotel expansions. The Convention
Center expansion would be approximately 740,000 square feet, with around 15,000
square feet of visitor-serving uses along the southwestern façade. 4 Existing truck
3 Unless otherwise indicated, subsequent references to the EIR are to the Final EIR, "which is understood to include and incorporate the [Draft EIR] . . . ." (Naraghi Lakes Neighborhood Preservation Assoc. v. City of Modesto (2016) 1 Cal.App.5th 9, 15 fn. 3, citing Cal. Code Regs., tit. 14, § 15132.) We refer to the Draft EIR or Final EIR separately as needed.
4 The size of the expansion is not entirely clear. Many documents, including the EIR and Commission findings, refer to 740,000 square feet. But the Amendment states
4
operations on that side would be relocated. A pedestrian accessway would be constructed
inland of Convention Way, which itself would be shifted next to the Embarcadero
Promenade along the waterfront. An approximately five-acre rooftop park would be
constructed, with a corresponding substantial reduction in ground level park areas. The
Hilton would also be expanded, adding a second tower and up to 500 new rooms. Other
changes included relocation of a water transit center; construction of a 1,900 square foot
plaza; and opening an existing pier at the foot of Park Boulevard for recreational use. An
amended public access program would incorporate a plan for public realm design
principles and programming and, among other things, provide for improved wayfinding,
pedestrian amenities, and reports on rooftop utilization.
B. Procedural History
In November 2013, Navy Broadway filed its petition for administrative mandamus
against the Commission, the Port District, and Doe defendants. It subsequently filed the
operative first amended petition, alleging the Commission's approval of the Amendment
violated the Coastal Act by, inter alia, certifying it as consistent with the Coastal Act and
CEQA. In 2014, Navy Broadway filed another petition, contesting the Commission's
adoption of revised findings, which was consolidated with the first lawsuit. Navy
the expansion will "add approximately 400,000 square feet of exhibit area, meeting rooms, and ballrooms, and approximately 560,000 square feet of support spaces." Other sources (including a description elsewhere in the Commission findings) suggest that the expansion will exceed one million square feet. In any event, there is no dispute the expansion would be at least 740,000 square feet.
5
Broadway later filed a third action after the Commission accepted the Port's approval of
the certified Amendment, but this final petition was not consolidated with the first two.
In 2015, the City and One Park intervened, and Navy Broadway amended its
petition to add them as defendants. Defendants contended the City and One Park were
indispensable parties and Navy Broadway had failed to timely sue them. The trial court
agreed they were indispensable, but found after a bench trial that Navy Broadway had
been genuinely ignorant of them. Accordingly, it determined that the amendment related
back, and that equitable tolling also applied.
In December 2016, the trial court held a hearing on the merits, after which it
issued a statement of intended decision denying Navy Broadway's petition. The court
decided that (i) the Amendment was not improperly modified after submission; (ii) the
Commission did not err in finding the Convention Center expansion was not an
appealable development under the Coastal Act; (iii) substantial evidence supported the
Commission's findings under the Coastal Act; and (iv) the Commission did not err in
making its CEQA findings. It overruled Navy Broadway's objections, adopted the
statement of decision, and entered judgment for Defendants. After unsuccessful motions
for new trial and to vacate the judgment, Navy Broadway appealed. Defendants cross-
appealed based on the statute of limitations ruling.
6
DISCUSSION
A. Relevant Statutes and Standard of Review
1. The Coastal Act
The Coastal Act is a " ' "comprehensive scheme to govern land use planning for
the entire coastal zone of California." ' " (San Diego Unified Port District v. California
Coastal Commission (2018) 27 Cal.App.5th 1111, 1129 (SDUPD).) "Chapter 3 of the
Act sets out coastal resources planning and management policies," which constitute
standards for proposed development subject to the Coastal Act. (Id. at p. 1130, citing
§ 30200.) Chapter 8 "governs California ports and port district master plans." (Id. at
p. 1132, citing §§ 30700, 30711.) The Commission has " 'primary responsibility for
implementation' of the [Coastal] Act's provisions," and the " 'ultimate authority to ensure
that coastal development conforms to the policies embodied in the . . . Coastal Act.' "
(SDUPD, at p. 1130.)
As we later discuss in more detail, the Coastal Act requires that the Port "prepare
and adopt a port master plan with public participation and submit it for certification by
the Commission." (SDUPD, supra, 27 Cal.App.5th at p. 1132.) After a public hearing,
the Commission must certify the plan if it conforms with Chapter 8 and, where the plan
provides for an appealable development, Chapter 3. (§ 30714, subds. (a) and (b).) Port
master plan amendments are processed in the same manner. (§ 30716, subd. (a).)
2. CEQA
In approving a port master plan or port master plan amendment, the Commission
"shall make any findings required pursuant to the California Environmental Quality Act."
7
(Cal. Code Regs., tit. 14, § 13632, subd. (d).) 5 "CEQA is a comprehensive scheme
designed to provide long-term protection to the environment." (Mountain Lion
Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112; see generally Pub.
Resources Code, § 21000 et seq. [CEQA].) Agencies are required to make certain
findings, including regarding mitigation, in deciding whether to approve projects. (See
Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316,
"Section 1094.5 of the Code of Civil Procedure governs judicial review by
administrative mandate of any final decision or order rendered by an administrative
agency." (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313.) Review is
for, among other things, whether "there was any prejudicial abuse of discretion." (Code
Civ. Proc., § 1094.5, subd. (b).) An abuse of discretion is established if Commission "has
not proceeded in a manner required by law, the . . . decision is not supported by the
findings, or the findings are not supported by the evidence." (Ibid.)
"Our scope of review is identical to that of the trial court. [Citations.] We, like
the trial court, examine all relevant materials in the entire administrative record to
determine whether the agency's decision is supported by substantial evidence." (Ross v.
California Coastal Com. (2011) 199 Cal.App.4th 900, 921 (Ross).) " 'Although this task
5 Further citations to regulations are to the Coastal Commission's regulations, unless otherwise noted. (Cal. Code Regs., tit. 14, § 13001 et seq.) CEQA regulations are referred to as the CEQA Guidelines. (Cal. Code Regs., tit. 14, § 15000 et seq.)
8
involves some weighing to fairly estimate the worth of the evidence, that limited
weighing does not constitute independent review where the court substitutes its own
findings and inferences for that of the Commission. Rather, it is for the [agency] to
weigh the preponderance of conflicting evidence, as [the court] may reverse its decision
only if, based on the evidence before it, a reasonable person could not have reached the
conclusion reached by it.' " (McAllister v. California Coastal Com. (2008) 169
Cal.App.4th 912, 921 (McAllister).) The Commission's "findings and actions are
presumed to be supported by substantial evidence," and Navy Broadway "bears the
burden" to show otherwise. (Ross, at p. 921.)
B. Statute of Limitations
Defendants contend the trial court erred in concluding the action was not time-
barred based on a finding that Navy Broadway was genuinely ignorant of the City and
One Park. Navy Broadway argues its claim did not accrue until the Amendment became
effective, which was after it added the City and One Park. It maintains that previously it
was genuinely ignorant of their involvement, and that its claims were equitably tolled.
We conclude that the claim accrued when the Commission certified the Amendment,
there is no substantial evidence of genuine ignorance (precluding equitable tolling as
well), and the action should have been dismissed.
1. Additional Facts
During the Amendment adoption and certification process, multiple documents
identified the City and One Park as Project applicants. The Draft EIR indicated that the
City proposed to expand the Convention Center, and that One Park proposed to build an
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expansion hotel. The Final EIR identified the City and One Park as the Convention
Center and hotel expansion applicants, respectively. Port Resolution 2012-135 (No.
135), which certified the EIR, stated that the Port was in discussions with One Park "to
pursue entitlements to develop" the hotel expansion. The resolution also adopted the
Port's Findings and Statement of Overriding Considerations and directed filing of the
CEQA Notice of Determination; each of these documents identified the City and One
Park as the project applicants. Port Resolution 2012-136 (No. 136), which approved the
Amendment and directed it be filed for certification, did so as well. The agenda for the
September 2012 Port hearing at which the resolutions were adopted reflected that the
City was pursuing entitlements for the Convention Center and One Park was discussing
them for the expansion hotel. Finally, the Amendment itself provided for issuance of
coastal development permits, and specifically mentioned issuance of a permit to the City.
In advance of the October 2013 certification hearing, Navy Broadway's attorney
Corey Briggs submitted a letter opposing the Project on the organization's behalf. The
letter contained a "List of Problems," which referenced exhibits on an enclosed list. The
exhibit list named the Draft EIR, Final EIR, Port Resolution No. 135, and the Port
agenda. The exhibits themselves included these materials, as well as the Notice of
Determination and Statement of Overriding Considerations. 6
6 The trial court identified still other documents in the administrative record that identified the City, such as Port Resolution No. 2014-56 (adopting the Amendment as certified).
10
As previously noted, Navy Broadway filed its petition commencing this action in
November 2013. In Paragraph 3, Navy Broadway alleged that the Port was a public
agency created by the state legislature, and that "[i]n general, the Port was the proponent
of the project that is the subject of this lawsuit when the project was presented to the
Coastal Commission for approval." In Paragraph 5, Navy Broadway alleged that the Port
adopted Resolution No. 135 certifying the EIR and Resolution No. 136 approving the
Amendment, noting the Amendment allowed for issuance of coastal development permits
for the Convention Center and hotel expansions. The petition referenced the EIR
elsewhere as well. It sought, among other things, injunctive relief barring issuance of any
coastal development permit under the Amendment.
In the Commission's answer, it admitted the allegations of Paragraph 3. The Port
denied Paragraph 3, except for the fact that it was a public agency created by the
legislature.
In February 2015, the City and One Park filed complaints in intervention. Navy
Broadway amended its petition to identify them as the Doe defendants. Defendants
demurred and moved to dismiss on statute-of-limitations grounds based on Navy
Broadway's delay in naming them. The trial court determined that (1) the City and One
Park were indispensable parties; (2) the "action must be dismissed if they cannot be
joined"; and (3) whether Navy Broadway had been genuinely ignorant of them was a
factual question for an evidentiary hearing.
To address issue (3), the trial court conducted a bench trial. Testifying witnesses
included Don Wood and Diane Coombs of Navy Broadway and Darren Greenhalgh from
11
the City. The court also heard portions of the March 2016 deposition testimony by Todd
Hersperger of One Park. 7
Coombs and Wood were Navy Broadway board members. Both attended Port
hearings at which City efforts to fund the Convention Center expansion were addressed,
and Wood provided input on the Project (including comments to the EIR that criticized
City actions). According to Coombs, Navy Broadway authorized Briggs to file the
opposition letter, but she did not contribute to it and relied on Briggs to review the
exhibits. Wood consulted on the letter's "List of Problems," and had looked at and
provided some of the exhibits. Coombs and Wood reviewed the agendas for the October
2013 and February 2014 Commission hearings, and there was no reference to the City or
One Park. Wood indicated that Navy Broadway initiated the lawsuit, he was involved in
preparing the petition, and Briggs managed the litigation.
Darren Greenhalgh was a City employee, and his office participated in preparing
the Port's application to certify the Amendment. He considered the City to be a joint
proponent of the application, but acknowledged it only identified the Port as the
proponent. He did not know of any City communication identifying the City as a
proponent, or recall City materials in support besides a letter from the mayor. He learned
7 Navy Broadway seeks to lodge the Hersperger deposition transcript. Defendants oppose lodging because the deposition was not admitted into evidence, but they provide a redacted transcript of the parts read at trial. We consider the redacted transcript. We also note the trial court indicated in its statement of decision that it questioned the witnesses' bias and memory, and that it "accepted the part it perceive[d] to be true," but did not make express credibility determinations.
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about the lawsuit shortly after the certification hearing, and had not heard of Navy
Broadway before then.
Todd Hersperger worked for Sunstone Hotel Investors, which was a majority
owner of One Park, the entity that owned the bayfront Hilton (with Hilton owning the
rest). He was not involved in the Amendment process. He indicated One Park found out
about the lawsuit in late November 2013, and did not know when it learned about the
2014 action. Hersperger was not aware of Navy Broadway until a week or two before his
deposition.
The parties made stipulations pertinent to equitable tolling. The City stipulated it
was aware of Navy Broadway's lawsuits when they were filed. The City and One Park
agreed to waive the issue of unreasonable delay, meaning they would not be addressing
prejudice.
The trial court provided a statement of decision in which it concluded that Navy
Broadway's action was timely. First, the court found that Navy Broadway was genuinely
ignorant of the City and One Park, and that its amendments naming them related back to
its original petition. The court listed documents identifying the City and One Park, and
acknowledged the evidence was "impressive." It stated that "[i]f this were the full extent
of the evidence," it "would be inclined to find that Plaintiff was not 'genuinely ignorant' .
. . . " It continued, "[H]owever, the question, on which the Court has reflected most, is
whether Defendants' theory is undermined by [the Commission]'s admission that [the
Port] was . . . 'the proponent of the project . . . .' " The court cited authority holding
parties should not be relieved from the effect of judicial admissions. It elaborated:
13
"If [the Commission], which was in a superior position to review and certify the 'project,' considered [the Port] to be the 'proponent' of the 'project,' why should Plaintiff have thought differently? [¶] The Court cannot reconcile [the Commission's] judicial admission with Defendants' theory that Plaintiff was not 'genuinely ignorant' . . . ."
The court also noted that the Commission's admission was "consistent with Greenhalgh's
testimony" that the certification application "only identified [the Port] as the project's
proponent."
Next, the court found that the statute of limitations was also equitably tolled. As
we later discuss, equitable tolling requires timely notice to the defendant; lack of
prejudice; and good faith and reasonable conduct by the plaintiff. The court noted that
Defendants did not contest the first two elements. Citing Defendants' position that the
third element " 'overlap[ped], in great part if not completely' " with the genuine ignorance
issue, the court stated: "Once again, Defendants' arguments . . . that [Navy Broadway's]
failure to name City and One Park was not precipitated by 'good faith and reasonable
conduct,' are impressive; however, like above, the Court cannot reconcile [the
Commission's] admission with Defendants' theory."
Finally, the court denied the City's request for judicial notice of briefs filed by
Briggs for a different client in another action. Defendants filed objections to the
statement of decision, which the court overruled.
2. Accrual of Navy Broadway's Claim
Navy Broadway disagrees that its claim accrued when the Commission certified
the Amendment in October 2013. Rather, it contends, the statute of limitation began to
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run in June 2015 when the Amendment became effective; that is, when the Commission
accepted the Port District's resolution adopting the certified Amendment. We disagree.
Section 30801 provides the applicable statute of limitations. Under that section,
any "aggrieved person shall have a right to judicial review of any decision or action by
filing a petition for writ of mandate in accordance with section 1094.5 of the Code of
Civil Procedure, within 60 days after the decision or action has become final." (§ 30801.)
Where, as here, "the underlying facts are not in dispute . . . , the question of when a cause
of action accrues is a question of law, subject to independent review." (Pacific Shores
Property Owners Assn. v. Department of Fish & Wildlife (2016) 244 Cal.App.4th 12, 34.)
As we shall explain, the certification decision is final once made.
"In cases involving statutory interpretation, our ' " 'fundamental task . . . is to
determine the Legislature's intent so as to effectuate the law's purpose.' " [Citation.] " 'If
the statute's text evinces an unmistakable plain meaning, we need go no further.' "
[Citation.]' [Citation.] 'We construe statutory language in the context of the statutory
framework, seeking to discern the statute's underlying purpose and to harmonize its
different components.' " (Connor v. First Student, Inc. (2018) 5 Cal.5th 1026, 1035; see
Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103 ["[W]hen the
statute's language is ambiguous or susceptible of more than one reasonable interpretation,
[the court may] turn to extrinsic aids to assist in interpretation."].)
Section 30801 does not define "final." However, its definition of "aggrieved
person" reflects a focus on particular Commission decisions, not events that may follow
such decisions. (Ibid. ["[A]n 'aggrieved person' means any person who . . . appeared at a
15
public hearing . . . in connection with the decision or action appealed, or who, by other
appropriate means . . . , informed the commission, local government, or port governing
body of the nature of his concerns"]; see ibid. [" 'Aggrieved person' includes the applicant
for a permit and, in the case of an approval of a local coastal program, the local
government involved.' "].) Thus, focusing on the certification decision is consistent with
the statutory text. Authority from the port context is sparse, but other Coastal Act case
law reflects this focus on Commission rulings, and not subsequent events. (See Strother
v. California Coastal Com. (2009) 173 Cal.App.4th 873, 878 [§ 30801's 60-day period
"generally bars untimely efforts to challenge coastal commission rulings." (Italics
added.)]; cf. Ojavan Investors, Inc. v. California Coastal Com. (1994) 26 Cal.App.4th
516, 525 [time "to challenge coastal development permits . . . is within the statutory 60-
day period after issuance of the permits . . . , not when a party . . . elects to violate
Declarations of Restrictions imposed pursuant to the permits, and a cease and desist order
ensues"].)
Viewing the certification decision as final when made is also consistent with the
larger statutory scheme, which provides no mechanism for the Commission to change its
certification decision. (See Oxnard Shores v. California Coastal Com. (1986) 179
Cal.App.3d 140, 149 [acknowledging principle that agency "may not change a
determination made on the facts presented at a full hearing once its decision has become
final" absent statutory authority, while concluding Commission could comply with
alternative writ].) The Commission may provide revised findings, as it did here, but the
findings do not change the certification. Indeed, the Commission's notice for its February
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2014 hearing to approve its revised findings stated, "Adoption of these findings will not
change the previous action." 8
Finally, requiring parties to promptly contest certification decisions ensures timely
and final resolution of such challenges, consistent with other proceedings under the
Coastal Act and involving land use. (See Sierra Club, Inc. v. California Coastal
with the Coastal Act and obtained a permit, it "should not be required to postpone
construction for prolonged periods of time while awaiting the commencement of
litigation"]; Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th
481, 499 ["To ensure finality and predictability in public land use planning decisions,
statutes of limitations governing challenges to such decisions are typically short.
[Citations.] The limitations periods set forth in CEQA adhere to this pattern . . . ."].)
Navy Broadway urges us to focus on the Amendment's effective date. It explains
that certification is not effective until additional steps are taken. (Cal. Code Regs., tit. 14,
§ 13632, subd. (e) [plan certification "shall not become effective until the port governing
8 Guidance in other Coastal Act settings is again instructive, and illustrates revised findings are meant to capture actions, not change them. (See, e.g., Cal. Code Regs., tit. 14, § 13096, subd. (b) [if Commission action on coastal development permit substantially differs from staff report, staff prepares "revised staff report with proposed revised findings that reflect the action"], id., subd. (c) [hearing "shall solely address whether the proposed revised findings reflect the action"]; La Costa Beach Homeowners' Assn. v. California Coastal Commission (2002) 101 Cal.App.4th 804, 819 [disagreeing with the contention that revised findings on mitigation parcel were "post hoc rationalizations"; they "did nothing more than reflect in writing the rationale that the Commissioners and staff articulated on the record at the . . . public hearing"].)
17
body takes formal action adopting such plan as certified by the commission . . . and the
commission has accepted the formal action as consistent with its certification"]; § 13636
[accord; amendment certification].) It contends the Amendment "was not fully certified –
nor was it 'final' " until the Commission accepted the Port District's adoption, citing a Port
agenda referencing the Amendment being "fully certified" in this manner. And it argues
that the Amendment "could not have been fully certified" in October 2013, because "the
Port had not even made the necessary findings on the modified [Amendment]" and
certain changes required an addendum to the EIR.
All of these arguments are misguided. This lawsuit challenges the Commission's
certification decision, not the subsequent implementation of that decision, by the Port or
otherwise. 9 And the Port's use of the phrase "fully certified" does not support the
existence of some later, truly final decision. The term is not in the statute or regulations;
the context suggests the Port was using it to mean "effective"; and there is nothing to
suggest the Port—or, more importantly, the Commission—viewed the certification
decision as subject to change.
Navy Broadway also seeks to rely on Save Our NTC, Inc. v. City of San Diego
(2003) 105 Cal.App.4th 285, but the case is inapposite. A petitioner challenged the City's
adoption of zoning ordinances that implicated Commission approval. (Id. at p. 290.) The
Commission had given its approval subject to modifications, which the City adopted. (Id.
9 The lawsuit encompassing the Commission's acceptance of the Port's approval -- Navy Broadway's third petition -- was not consolidated with this one.
18
at pp. 290–291.) We determined that the action was timely under Government Code
section 65009, subdivision (c)(1)(B)'s 90-day statute of limitations for zoning ordinance
decisions. (Save Our NTC, at p. 291.) Citing case law holding that such challenges run
from ordinance effective date, we explained the ordinances did not take effect, and the
statute of limitations did not begin to run, until the City adopted the Commission's
modifications. (Id. at p. 293.) Navy Broadway is challenging a Commission certification
decision, not a zoning ordinance subject to Commission approval. 10
3. Genuine Ignorance
We now turn to the central issue here: whether the trial court erred in finding
Navy Broadway was genuinely ignorant of the City and One Park? We believe it did.
Code of Civil Procedure section 474 provides that "[w]hen the plaintiff is ignorant
of the name of a defendant, he must state that fact in the complaint, . . . and such
defendant may be designated in any pleading or proceeding by any name, and when his
true name is discovered, the pleading or proceeding must be amended accordingly . . . ."
"The phrase 'ignorant of the name of a defendant' is broadly interpreted to mean not only
ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of
action against that defendant." (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170
10 We note there is conflicting authority, even in the zoning context. (Compare, e.g., Howard Jarvis Taxpayers Assn. v. City of Los Angeles (2000) 79 Cal.App.4th 242, 247 [zoning ordinance; action to be brought within 90 days of effective date], disapproved on other grounds in Ardon v. City of Los Angeles (2011) 52 Cal.4th 241, 250, with Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1187 (Beresford) [zoning amendment decision occurred when ordinance was adopted].)
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(Fuller); see McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th
368, 371–372 [accord].) " '[T]he relevant inquiry when the plaintiff seeks to substitute a
real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time
the original complaint was filed.' " (Fuller, at p. 1170.)
The trial court's conclusion that Defendants did not establish their statute-of-
limitations defense rests upon its factual finding that Navy Broadway was genuinely
ignorant of the City's and One Park's involvement. We review this finding for substantial
evidence. (Fuller, supra, 84 Cal.App.4th at p. 1170 [factual findings under Code Civ.
Proc., § 474 are reviewed for substantial evidence].)
As a preliminary matter, we address the trial court's apparent reliance on the
admission of one defendant. If the trial court relied on the Commission's admission to
effectively find that all defendants waived the genuine ignorance issue, this could be
problematic. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 48 ["A
judicial admission is a party's unequivocal concession" (italics added)]; Valerio v.
Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271 [" 'a pleader is
bound by . . . failure to deny well pleaded material allegations' " (italics added)].) But it
is not clear it did so. The court did refer to the Commission's admission as a judicial
admission, "reflected most" on whether it undermined Defendants' theory, and cited
authority holding that parties should not be relieved of judicial admissions. However, it
also treated the admission as evidence, by explaining its significance (i.e., the
Commission was in a superior position to review the Project) and stating it was consistent
with Greenhalgh's testimony. Ultimately, we need not decide if the trial court erred here,
20
because even under substantial evidence review we would conclude that there is no
support for its genuine ignorance finding.
In general, a developer is an indispensable party to a lawsuit challenging a
decision regarding whether its project can proceed. (See Sierra Club, supra, 95
Cal.App.3d at p. 502 [developer was indispensable for challenge to Commission decision
regarding condominium project].) The trial court found that the City and One Park were
indispensable parties. Navy Broadway does not dispute that finding; rather, its position is
that it was unaware of the City's role and of One Park altogether. The record, however, is
to the contrary.
At the time Navy Broadway filed suit, it possessed information reflecting that the
City and One Park were the developers for the Project. The Amendment indicated that
coastal development permits would be issued and the City would be receiving one.
Coombs and Wood participated in the planning process and witnessed and/or commented
on the City's involvement. Multiple documents identified the City and One Park, and/or
their anticipated roles as the project developers, including the EIR and the 2012 Port
resolutions. Navy Broadway attached some of those documents to its opposition letter,
which Coombs testified Navy Broadway authorized and to which Wood contributed.
Navy Broadway's petition (which Wood testified he was involved in preparing)
referenced the EIR and Port resolutions, and expressly sought to block issuance of the
coastal development permits. Finally, the Port denied the allegation that it was the
Project proponent, raising questions about the Commission's admission and warranting
further inquiry.
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On this record, no reasonable trier of fact could find Navy Broadway was
genuinely ignorant of the City and One Park and their roles here. (Kuhn v. Department of
General Services (1994) 22 Cal.App.4th 1627, 1633 ["ultimate determination" in
substantial evidence review is "whether a reasonable trier of fact could have found for
the respondent based on the whole record"].) The trial court acknowledged Defendants'
evidence of Navy Broadway's awareness was "impressive," before citing the
Commission's admission in ruling against them. Even if the Commission could be
viewed as admitting the Port was the only proponent for the Project (not simply a Project
proponent or, as Defendants characterize it here, the Amendment proponent), that does
not establish that Navy Broadway was genuinely ignorant of the City and One Park and
their roles as developers here.
Beresford, which involved a challenge to a housing development, is instructive.
The operative complaint included city council minutes that disclosed the developer, but
named only the city and fictitious defendants. (Beresford, supra, 207 Cal.App.3d at
p. 1185.) The trial court sustained the city's demurrer. (Ibid.) The Court of Appeal
affirmed and held it was too late to amend, explaining that "[s]ince appellants were not
ignorant of the developer's true name, they cannot take advantage of Code of Civil
Procedure section 474." (Id. at pp. 1185, 1190.)
Navy Broadway argues that Beresford is distinguishable because the minutes were
attached to the complaint. But the complaint in this case similarly cites documents
identifying the developers (e.g., the EIR). Beresford was also decided on demurrer, so
the court only had the complaint. Here, there was a bench trial at which the court
22
received other evidence regarding Navy Broadway's knowledge. Navy Broadway also
notes that the Beresford plaintiff signed the complaint there, while its counsel signed the
petition here. We agree with Defendants that this is irrelevant (see Knapp v. Doherty
(2004) 123 Cal.App.4th 76, 95 [plaintiff in foreclosure matter had imputed knowledge
through counsel]), and, again, there was other evidence of knowledge.
Navy Broadway maintains that it was ignorant of the City's role, and knew only
that it was providing financial assistance, and that it was unaware of One Park. It cites
the witness testimony and lack of references in the Commission agendas (contending
"[t]here was no reason for [Coombs] to probe further"). We recognize that Coombs and
Wood stated they did not see the City or One Park's names in the Commission agendas,
and that Greenhalgh testified he was unaware of communications identifying the City as
an applicant. But this does not undermine the relevance of the documents that did
identify the City and One Park. Navy Broadway also emphasizes that Greenhalgh and
Hersperger were ignorant of Navy Broadway prior to the lawsuit, but we fail to see the
significance. Navy Broadway could be aware of the City and One Park, without those
entities being aware of it. Finally, given the absence of substantial evidence of
ignorance, we reject Navy Broadway's reliance on Hollister Canning Company v.
Superior Court (1972) 26 Cal. App. 3d 186 (Hollister). (See id. at p. 198 [plaintiff was
unaware of defendant's role in installing allegedly defective equipment].) 11
11 Navy Broadway also suggests Hollister permits relation back where the defendant is aware of the lawsuit, "but stays silent to avoid liability." Hollister noted the
23
4. Equitable Tolling
Defendants also contend the trial court erred in ruling that equitable tolling barred
their statute of limitations defense. This ruling turned on the unsupported genuine
ignorance finding, and is deficient for the same reasons.
The doctrine of equitable tolling is used to " 'suspend or extend a statute of
limitations as necessary to ensure fundamental practicality and fairness.' " (McDonald v.
Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.) The "three core
elements are: (1) timely notice to the defendant in filing the first claim; (2) lack of
prejudice to defendant in gathering evidence to defend against the second claim; and, (3)
good faith and reasonable conduct by the plaintiff in filing the second claim." (Collier v.
City of Pasadena (1983) 142 Cal.App.3d 917, 924.)
The trial court concluded that equitable tolling should apply because the parties
stipulated on notice and prejudice, the good faith issue overlapped with the genuine
ignorance issue, and it already determined Navy Broadway was not genuinely ignorant.
As already discussed, there is insufficient evidence that Navy Broadway was genuinely
defendant's awareness only after finding the plaintiff lacked knowledge. (Hollister, supra, 26 Cal.App.3d at p. 198; see Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177 [if ignorance requirement is not met, a new defendant may not be added "even if [it] cannot establish prejudice resulting from the delay"].)
24
ignorant. Thus, there is a lack of evidence to support the good faith finding, and the
equitable tolling ruling was in error. We need not address the other two elements. 12
In conclusion, Defendants' statute of limitations defense was meritorious, and
required dismissal. 13 We affirm the judgment in favor of Defendants on these grounds.
C. Certification of the Amendment
Although we do not need to reach Navy Broadway's appeal from the judgment,
having already concluded it should be affirmed, we elect to do so in the interests of
completeness and finality. Navy Broadway argues that the Commission committed a
number of errors including: (1) improperly negotiating changes to the Amendment; (2)
determining that the Convention Center expansion was not appealable (meaning it would
not have to conform to Chapter 3 of the Coastal Act); (3) failing to make certain Coastal
Act findings and lacking evidence for others; and (4) providing deficient findings
regarding CEQA. In our view, Navy Broadway does not establish reversible error on any
of these grounds.
12 We recognize that Defendants dispute there was a stipulation on notice, and that the notice element for equitable tolling could even be satisfied here. Because we do not need to reach the notice issue, we do not address these matters.
13 In light of our conclusion, we need not address Defendants' additional argument that the trial court erred in excluding briefs from another action involving the Project's financing in which Briggs represented a different client, introduced to show that Briggs (and thus Navy Broadway) knew the City was a project applicant. That action eventually culminated here in City of San Diego v. Shapiro (2014) 228 Cal.App.4th 756 (Shapiro). Given we do not reach this argument, we deny Navy Broadway's request for judicial notice of the trial court's ruling and our decision in Shapiro. We do address Shapiro in connection with Navy Broadway's CEQA arguments.
25
1. Changes to the Amendment
Navy Broadway argues that the Commission violated Public Resources Code
section 30714's bar on conditional approval by negotiating changes to the Amendment
after its submission. It further contends that regulation section 13634, which addresses
postsubmission changes, is inconsistent with the Coastal Act and was not, in any event,
satisfied here. We reject each contention.
a. Additional Facts
In May 2012, the Port circulated the Amendment for public review and comment.
The Port's board of commissioners adopted the Amendment in September 2012.
In December 2012, Port staff member Lesley Nishihira, as Manager of Land Use
Planning for the Port, submitted the Amendment to Commission staff member Sherilyn
Sarb. 14 Another member of Commission staff, Deborah Lee, communicated that the
Amendment did not reflect the current port master plan (which had been amended in
November 2012) and that the exhibits included a new pedestrian bridge that was no
longer part of the project. Nishihira transmitted the corrected Amendment and exhibits.
The Port later withdrew the Amendment in February 2013 and resubmitted it the
following month.
In March 2013, Lee sent a letter to Nishihira identifying issues on which
Commission staff needed additional information. Nishihira provided responses in July
2013. Additional communications followed between Nishihira; Commission staff;
14 We omit certain staff member titles for clarity, and intend no disrespect.
26
Stephen Cushman, a special assistant to the mayor and former Port commissioner; and
Charles Lester, executive director of the Commission. On September 26, 2013, Cushman
e-mailed Sarb and Lester, copying Port Commissioner Ann Moore, with the subject line,
"Final." He indicated that as an alternative to a pedestrian bridge, the Port could require
the City to allocate $500,000 for measures to activate the rooftop. Sarb responded,
stating:
"Attached is the latest proposal from CCC staff with your language . . . incorporated. We believe if this language, along with the revision to the bldg. (the notch) and all the other changes . . . that have been agreed to by Port staff are incorporated into the . . . amendment request, CCC staff could recommend approval. . . . Can you pls let us know asap . . . if the Port will modify its request and incorporate all of the above?"
The notch appeared to refer to the pulling back and angling of a corner of the Convention
Center expansion. 15 It is not clear if there was a response.
The next day, Commission staff issued its report and recommended denial of
certification. It explained: "Commission staff and Port staff have worked to make
revisions to the project . . . . Unfortunately, there are two key elements—construction of
a pedestrian bridge at 4th Avenue, and revisions to the . . . corner of the Convention
Center expansion, where Port and Commission staff were unable to reach agreement
. . . ." The Commission's notice for the upcoming certification hearing included
information on how to request a copy of the staff report.
15 Various documents, including the Commission findings, state this is the southwest corner, but others (including an addendum to the Final EIR) indicate it is the southeast corner. The relevance is that the size was reduced, and we simply refer to it as a corner.
27
There were further communications over the next two weeks. On September 29,
Cushman e-mailed Lester, Sarb, and Moore, indicating Moore was going back to the Port
board. On October 6, Cushman e-mailed the same group using the subject line "Final
Document," agreeing to the notch and providing language for the Amendment that would
require future reports to the Commission on rooftop utilization and related matters
(hereafter, "rooftop utilization reports"). On October 7, Nishihira transmitted a revised
Amendment to Commission staff member Diana Lilly, with a cover page indicating it
"includes [the] 'notch.' " In a separate letter, Nishihira indicated they were unable to
reach resolution on the pedestrian bridge, but the Port would agree to the proposed
language on rooftop utilization reports.
On the following day, Commission staff issued an addendum to their staff report,
indicating the Port's amendments were noteworthy, but insufficient. The addendum
included as exhibits the October 7 version of the Amendment and Nishihira's letter with
the rooftop utilization reports language. The Amendment referenced the Convention
Center and South Embarcadero public access programs, and those documents similarly
reflected postsubmission revision dates.
As discussed, Navy Broadway provided an opposition letter. Dated October 10,
this letter challenged various aspects of the Project and objected to the modification of
the Amendment.
The certification hearing also took place on October 10. Numerous people spoke,
including elected officials, organization leaders, union representatives, employees, and
residents. Briggs opposed the project on behalf of Navy Broadway and noted the
28
postsubmission modifications. Nishihira addressed the issue, stating the changes were
"clearly documented in the public record" and "[t]he public has had a chance to review
and consider those changes and some have commented today." At the end of the hearing,
Sarb requested clarification on the proposed rooftop utilization reports language and the
$500,000 for public access improvements. Nishihira and Cushman expressed agreement,
and Nishihira stated, "We amend our proposal." Briggs stated, "[M]ay I make an
objection since you're changing things?" The chair stated no, indicating it did not fit with
their procedures. The Commission then voted unanimously to certify the Amendment.
In November 2013, Nishihira transmitted a final revised Amendment, dated
October 10, to Lilly. The Convention Center public access program was also revised
effective October 10. Commission staff prepared revised findings, and the Commission
adopted them at a hearing in February 2014. The Commission summarized the revisions,
including those at the hearing. It found they "either were not material, in that they further
enhanced the [Amendment]'s consistency with Coastal Act policies, or were made
available for public review through the published addendum in advance of the hearing
and were the subject of adequate public comment at the public hearing."
b. Applicable Law
In order to amend the port master plan, the Port's governing body must hold a
public hearing, adopt the amendment, and submit it to the Commission for certification.
13636 [accord].) A regulation addresses postsubmission modification:
29
"If the governing body of a port amends its master plan [or amendment] after submission . . . and prior to the . . . calling of the roll for a vote . . . , the executive director [of the Commission] shall determine if such amendment is material and includes changes that have not been the subject of public review and comment before the Commission. If the executive director finds that both of these factors exist, the amendment shall not be considered by the Commission unless a new public hearing is scheduled with a view toward allowing full public participation and attendance at the hearing on the amendment . . . . If the executive director finds the amendment is not material or has been the subject of adequate public comment at the public hearing, the Commission, unless it disagrees with the findings of the executive director, shall consider and take action on the amendment rather than the master plan [or amendment] as initially submitted." (Cal. Code Regs., tit. 14, § 13634.)
Section 30714 provides that the Commission, "after public hearing, shall certify
the plan or portion of a plan and reject any portion of a plan which is not certified. The
commission may not modify the plan as submitted as a condition of certification." (Ibid.)
c. Analysis
Navy Broadway first contends that the Commission improperly obtained changes
to the Amendment in violation of section 30714, arguing that it could vote only on the
"original" version of the Amendment and that "negotiations at the Commission" are
prohibited. Navy Broadway does not establish the Commission's actions were in error.
On its face, section 30714 only bars the Commission from requiring a
modification in order to grant approval. It imposes no limitation on other Commission
action, or on Port action at all. Thus, in SDUPD, supra, 27 Cal.App.5th 1111, the trial
court concluded that the Commission violated section 30714 by finding the Port had to
provide lower cost accommodations and identifying suitable developments. We reversed,
observing that this conclusion was "based on an impermissibly broad reading of the limit
30
placed on [the] Commission in section 30714." (Id. at p. 1140.) Explaining that the
statutory limitation must be "[s]trictly construed," we held that "section 30714 prohibits
Commission only from conditionally approving a master plan, that is, granting
certification subject to a specified modification." (Ibid.) Here, Commission and Port
staff communicated about changes, and the Port modified the Amendment prior to the
certification vote (while still declining to incorporate the new bridge). The Commission
did not conditionally certify the Amendment, and thus did not violate section 30714. 16
Second, Navy Broadway does not establish that regulation section 13634 conflicts
with Public Resources Code section 30714, or that the Commission exceeded its
authority in adopting it. Public Resources Code section 30333 "authorizes the
Commission to adopt 'rules and regulations' to 'carry out the purposes' of the Coastal Act
. . . ." (Trancas Property Owners Ass'n v. City of Malibu (1998) 61 Cal.App.4th 1058,
1061–1062, fn. 2.) Section 30714 prohibits only conditional approval. Regulation
section 13634 addresses review of postsubmission changes prior to the Commission's
decision (requiring further review for material, nonpublic changes). It thus presents no
conflict and actually fills a gap. (See Wollmer v. City of Berkeley (2011) 193
16 We note the Commission certified the Amendment following changes recommended by Commission staff, impliedly determining it could do so. Its brief contends that the regulations "allow a port to amend its proposed plan after submission . . . ." This view is entitled to deference. (See Ross, supra, 199 Cal.App.4th at p. 922 ["Although the courts have final responsibility for interpreting a statute, an agency's interpretation of its governing statutes is entitled to great weight"]; id. at p. 938 ["Courts must defer to an administrative agency's interpretation of a statute or regulation involving its area of expertise unless the challenged construction contradicts the clear language and purpose of the interpreted provision."].)
31
Cal.App.4th 1329, 1349 [courts must "construe the language of statutes and regulation in
context, and must harmonize our laws" to extent possible]; Barnhart v. Cabrillo
Community College (1999) 76 Cal.App.4th 818, 827 [rejecting assumption that statute
and regulation were inconsistent, where they could "easily be harmonized"]; cf. Save Our
Heritage Organisation v. City of San Diego (2018) 28 Cal.App.5th 656, 667 [although
CEQA did "not expressly authorize" addendum process in the guideline, it "fill[ed] a gap
in CEQA"].)
In arguing for a different result, Navy Broadway makes two related arguments. It
first contends the regulation "cannot be squared" with public participation requirements
in the statute. But by focusing on both materiality and opportunity for public comment,
and requiring further review only for significant nonpublic changes, the regulation
ensures meaningful participation. (See e.g., Pub. Resources Code, § 30006 [the public
"has a right to fully participate in decisions affecting coastal planning, conservation, and
development"]; cf. Laurel Heights Improvement Assn. v. Regents of University of
California (1993) 6 Cal.4th 1112, 1132 [codification of CEQA requirement that
"significant new information" required EIR recirculation reflected legislative intent to
"reaffirm the goal of meaningful public participation," not "to promote endless rounds of
revision and recirculation of EIR's"].) Navy Broadway also alleges a conflict between
the regulation and Public Resources Code section 30712's requirement that amendments
be adopted by the Port's governing body. The Port board did adopt the Amendment. If
Navy Broadway believes section 30712 also requires the board to approve
postsubmission modifications, it provides no support for this view.
32
Third, Navy Broadway does not establish that the Commission violated regulation
section 13634. It argues the executive director was required to make findings on
materiality and public review before the Commission voted at the hearing, and failed to
do so. But Navy Broadway identifies nothing in the regulation requiring formal or
particular formality" was needed for required recommendation by executive director].)
The director, Lester, participated in the hearing and expressed no concerns when the
matter proceeded to a vote. His acquiescence amounts to an implied finding that the
changes to the Amendment were not material, were subject to public review, or both.
This implied finding is consistent with the Commission's subsequent finding that the
changes were not material and/or public.
Although Navy Broadway contends generally that the Amendment changes were
significant (and that Commission staff and Port board member Moore viewed them as
such), it does not argue there was an absence of substantial evidence for the findings on
nonmateriality and public review. It likewise fails to set forth all pertinent evidence on
these matters. It thus waives any such argument. (Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784–785 ["When an appellant fails to raise a point, or asserts it but fails
to support it with reasoned argument and citations to authority, we treat the point as
waived."]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman)
33
[appellant arguing a lack of substantial evidence is "required to set forth in their brief all
the material evidence . . . . Unless this is done the error is deemed to be waived."].) We
note that the only changes even potentially at issue were those agreed to at the hearing,
namely the rooftop utilization reports language and $500,000 allocation by the City.
Regardless of how the revisions were negotiated, there was opportunity for public
participation up until that point. The Commission staff reports addressed the Amendment
and the changes to it. Members of the public provided input, as Navy Broadway and
numerous others did. Even assuming the public should have been able to respond after
the Port agreed to the changes at the hearing, Navy Broadway would still have to
establish that those changes were material. It does not do so.
Finally, to the extent the Commission made procedural errors, they do not require
reversal because Navy Broadway did not establish prejudice. (Cassim v. Allstate Ins. Co.
(2004) 33 Cal.4th 780, 801–802 [civil error requires prejudice for reversal]; see North
Pacifica LLC v. California Coastal Com. (2008) 166 Cal.App.4th 1416, 1435–1436
[showing of prejudice required for regulation notice requirements]; Benson, supra,139
Cal.App.4th at pp. 355–356 [accord].)
On reply, Navy Broadway argues it "claimed throughout this proceeding that
amendments to the port master plan injured [it] and the public by failing to provide
adequate public review." 17 This untimely argument also lacks merit. Navy Broadway
17 Navy Broadway raises a number of points only on reply, which we could deem waived. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 (Stroh)
34
does not dispute that it was able to address the Amendment and revisions up until the
hearing. It is true that Navy Broadway could not respond to the changes made at the
hearing. But it does not explain its objection to those particular changes (if any), or how
presenting those objections could have impacted the Commission's decision. (See
Benson, supra, 139 Cal.App.4th at pp. 355–356 [allegedly inadequate written notice not
due process violation; appellant could not "show prejudice on the assumption" that he
"would have been able to convince" the Commission of his position]; cf. Rominger v.
County of Colusa (2014) 229 Cal.App.4th 690, 711–712 [prejudice not presumed under
CEQA; plaintiffs failed to show how notice defects "deprived any affected persons the
realistic opportunity to protect their interests" or "precluded informed decisionmaking
and informed public participation"].) 18
2. Appealability of the Convention Center Expansion
Navy Broadway contends the Commission erred by concluding the Convention
Center expansion was not appealable, and not subject to Chapter 3. We disagree.
["[p]oints raised for the first time in a reply brief will ordinarily not be considered"].) We exercise our discretion to discuss certain of them.
18 Defendants also contend the changes were not material for other reasons, including that Navy Broadway forfeited its regulation section 13634 arguments by not raising them before the Commission (and they were untimely, given the regulation's adoption date), and that the Port conducted public, postcertification proceedings under section 13632, subdivision (e). Because we conclude that Navy Broadway did not establish reversible error based on regulation section 13634, we do not address these issues.
35
a. Additional Facts
The Commission addressed the Coastal Act chapters applicable to its review. It
correctly stated that it must certify an amendment that is consistent with Chapter 8 and,
for a development that is appealable under section 30715, Chapter 3 as well. It
determined the Hotel expansion was appealable, and thus had to be consistent with both
Chapters 3 and 8. As for the Convention Center, it found the expansion nonappealable,
explaining in part:
"While the Convention Center Expansion contains visitor serving uses, such as a minor retail component, art galleries or museum use, this is an ancillary and incidental use to convention operations. Thus, Chapter 8 is the standard of review for this portion of the project."
The Commission elsewhere stated that the expansion would be 740,000 square feet, and
that there would be 15,000 square feet of visitor-serving uses, including retail.
b. Applicable Law
Appealability is governed by section 30715. After a port master plan or
amendment is certified, permit authority over new development is delegated to the port
governing body, "except that approvals of any of the following categories of development
. . . may be appealed to the commission." (§ 30715.) Identified categories include:
"Office and residential buildings not principally devoted to the administration of
activities within the port; hotels, motels, and shopping facilities not principally devoted to
the sale of commercial goods utilized for water-oriented purposes; commercial fishing
36
facilities; and recreational small craft marina related facilities." (§ 30715, subd.
(a)(4).) 19
c. Analysis
Navy Broadway relies on the fact that the Convention Center expansion
concededly included some retail "shopping facilities" and argues that "nothing in the
Coastal Act exempts 'ancillary and incidental' uses from being appealed . . . ."
Defendants maintain the Commission properly interpreted section 30715, subdivision
(a)(4) as "not applying to small-scale uses that are ancillary and incidental to a non-
appealable development such as the Convention Center," and urge us to defer to its
interpretation. They explain that the Amendment "designates the land to be occupied by
the Convention Center expansion as 'Commercial Recreation' " and argue that only
15,000 square feet, or "1.5 percent," of the expansion "might include some retail use."
We conclude that the Commission's interpretation is consistent with section 30715
and warrants deference. (See Ross, supra, 199 Cal.App.4th at p. 922.) Section 30715
addresses developments that fall into particular categories, not portions of such
developments. The Commission could reasonably determine that the development
consisting of the Convention Center expansion was not appealable, notwithstanding its
incorporation of ancillary retail facilities that might be appealable in isolation. Although
19 Other categories are developments for storing gas and oil; waste water treatment facilities; roads or highways "not principally for internal circulation within the port boundaries"; oil refineries; and petrochemical production plants. (§ 30715, subd. (a).)
37
there could arguably be close questions (e.g., where it is unclear whether a component is
ancillary), this record did not present one. At most, the retail component would be a very
small part of the large Convention Center expansion. 20
Navy Broadway appears to assume that section 30715 requires the Commission to
focus on portions of developments in assessing appealability. It is this assumption that
permits Navy Broadway to contend that an ancillary component can render an entire
development appealable. But it identifies nothing in the statute to support this approach.
None of Navy Broadway's other contentions compel a different result. First, it
offers other arguments for why the Convention Center expansion is appealable. It
contends the expansion is in an area designated by the Port for commercial recreation,
where developments include hotels, shopping and the convention center. If Navy
Broadway is suggesting that a development in a commercial recreation area is necessarily
appealable, we disagree. Section 30715 identifies categories of appealable developments
by function, not location. Navy Broadway also contends "[t]here is nothing water-
oriented about a convention center or its 'ancillary and incidental' retail operations." The
phrase "water-oriented" is in the shopping facilities provision. A development would
have to be a shopping facility—which the Convention Center expansion is not—before
its relatedness to water is relevant.
20 Although the precise square footage of the expansion is unclear (as discussed ante), there can be no real dispute that the planned 15,000 square feet in retail facilities is minimal by comparison.
38
Second, Navy Broadway questions the Commission's findings. For example, it
mistakenly contends the retail facilities were 45,000—not 15,000—square feet. But the
45,000 figure was in the original Amendment, and it was 15,000 in the certified version
(with both referring to all visitor-serving uses, not just retail). Either way, retail would
only be a minor part.
Navy Broadway also contends the Commission did not consider that retail was 1.5
percent of the Convention Center expansion. Yet the Commission addressed both the
size of the total expansion and of the visitor-serving uses, so we can reasonably infer it
was aware the latter was very small in relation to the former. Navy Broadway
additionally emphasizes the significance of the retail facilities, arguing that they "are the
primary means to activate what little of the waterfront will remain after expansion . . . ."
The issue is whether the retail facilities were incidental to the Convention Center
expansion, not their relationship to the waterfront. And the EIR states that "it is
reasonable to assume most of the [retail] patrons would be [Convention Center]
attendees."
In a related argument raised on reply, Navy Broadway contends that we should not
defer to the Commission because Commission staff argued in a 2013 matter involving
restaurant permits that "shopping" includes "restaurants." A staff report is not
dispositive. (See Benson, supra, 139 Cal.App.4th at p. 354 [staff recommendation "was
not binding on the Commission"].) We also do not see how the cited report would
contradict the Commission's position here. If a development is limited to a restaurant or
39
retail store, the Commission could reasonably conclude it is appealable. But the
development here was the Convention Center expansion. 21
3. Findings Under The Coastal Act
In various ways Navy Broadway attacks the Commission's findings on consistency
with the Coastal Act. We conclude, however, that it has not established the Commission
failed to make any required findings, or that there is insufficient evidence for the findings
it did make.
a. Additional facts
The Commission's findings provided its reasoning for certifying the Amendment.
The Commission concluded:
"As a result of the various revisions to the proposed [Amendment], the impacts to public access and recreation will be significantly reduced. Although the proposed expansion will substantially alter the nature of public views and public access, the new project features, including the roof-top public park, the pedestrian-oriented improvements to Park Boulevard and Convention Way, and the 500 new hotel rooms, will create additional opportunities for the public to access and enjoy the shoreline. As proposed, the [Amendment] would authorize development that has been located, designed, and constructed so as to provide for beneficial uses to public recreation, public access, and visual quality, and to minimize environmental impacts, including protecting views to and along the bayfront. Therefore, the amendment is consistent with the Chapter 3 and Chapter 8 policies of the Coastal Act."
21 Navy Broadway raises other points on reply, including criticizing the Port for identifying the Convention Center expansion as nonappealable in materials accompanying the Amendment and contending the Commission did not raise its arguments below. Even if we reached these points, they lack merit. It is the Commission's decision that is at issue, not the Port's. And the Commission did take the same position in the trial court, without citing the 1.5 percent figure.
40
b. Chapter 3 Findings
i. Overview
Navy Broadway contends the Commission failed to mention certain Chapter 3
policies (i.e., as set forth in particular statutory sections); quoted but did not make
findings under others; and lacked substantial evidence for findings it did make or
supposedly failed to make. 22 In our view, however, Navy Broadway does not establish
any deficiency in the Commission's findings under Chapter 3.
First, Navy Broadway focuses in large part on the Convention Center expansion.
As we have already discussed, the Commission reasonably concluded that the
Convention Center expansion was not an appealable development—meaning it was not
covered by Chapter 3—and the Commission accordingly could not have erred by failing
to make Chapter 3 findings regarding it.
Second, to the extent the Commission did address Chapter 3, its findings were
adequate. Administrative findings "need not be as precise or formal as would be required
of a court." (McMillan v. American General Finance Corp. (1976) 60 Cal.App.3d 175,
183.) In particular, the Commission was not required to provide an explicit written
finding on each statutory section. Its findings had to—and did—"bridge the analytic gap
22 Specifically, Navy Broadway contends the Commission omitted sections 30212.5, 30250, and 30252; quoted but did not make findings under sections 30212, 30221, and 30251; and lacked substantial evidence for its findings under section 30220 and findings it failed to make under other sections. We organize our discussion by issue (e.g. parking), and address multiple statutory sections together when appropriate. We do not address compliance with section 30253, which Navy Broadway references only in its factual summary.
41
between the raw evidence and ultimate decision or order." (Topanga Assn. for a Scenic
Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515; Sierra Club v. County of
Fresno (2018) 6 Cal.5th 502, 513 [findings must disclose " ' "analytic route" ' "]; City of
Carmel-By-The-Sea v. Board of Supervisors (1977) 71 Cal.App.3d 84, 91 [no merit in
"contention that only written findings of fact, labeled as such" comply with Topanga];
McMillan, at p. 183 [available references can sometimes fill omissions].) We thus reject
Navy Broadway's argument that the findings were deficient under Topanga. 23
In the sections that follow, we address Navy Broadway's challenges regarding
Commission findings under Chapter 3 (or the purported lack thereof), as well as
substantial evidence arguments. Some issues overlap with matters we would otherwise
reach under Chapter 8, and we elect to address the others.
ii. Proximity to Existing Development
Section 30250 provides in pertinent part that "[n]ew . . . commercial . . .
development . . . shall be located within, contiguous with, or in close proximity to,
existing developed areas able to accommodate it or, where such areas are not able to
accommodate it, in other areas with adequate public services and where it will not have
significant adverse effects, either individually or cumulatively, on coastal resources . . . ."
(§ 30250, subd. (a).)
23 Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal.App.4th 91, which Navy Broadway cites only on reply, is also inapposite. (Id. at pp. 95, 105–106 [city was required to make affirmative findings in approving project's parcel map, citing case law and an Attorney General opinion that such findings were necessary under Gov. Code, § 66474].)
42
Navy Broadway initially argued that the Commission failed to address section
30250. Defendants responded that because the Project involved an expansion of existing
facilities, no further discussion was necessary. Navy Broadway argued on reply that
section 30250 requires development to be located where it will not have significant
adverse effects, suggesting a finding on the issue is needed, and that substantial evidence
could not support such a finding due to air quality impacts. Even if we considered this
argument, it does not compel reversal.
As an initial matter, Defendants and Navy Broadway interpret section 30250
differently. For Defendants, the statute seems to require either location within existing
development or location in another area with adequate public services and no significant
adverse effects. Navy Broadway appears to believe section 30250 requires location in an
existing development or other area with adequate services and no significant adverse
effects. Neither party offers any statutory analysis or case law, and there are cases
reaching differing conclusions. (Compare, e.g., Billings v. California Coastal Com.
(1980) 103 Cal.App.3d 729, 740–741 [§ 30250 "requires that a new development shall
not be located in a previously undeveloped area unless there are adequate public services
and the development 'will not have significant adverse effects' " (italics omitted)], with
Sierra Club v. Superior Court (1985) 168 Cal.App.3d 1138, 1141 ["New development
must not have significant adverse effects on coastal resources," citing § 30250.].) But the
burden is on Navy Broadway to show error. It has not established that any failure by the
Commission to address significant adverse effects under section 30250 would render its
findings insufficient.
43
The findings the Commission did make, regarding existing development, are
adequate. The Commission indicated that "[t]he site and the area surrounding the site are
entirely developed with urban uses." It described the area, including the location of the
Convention Center, and relative locations of the Hilton and Marriott hotels, other
landmarks, access roads, and shoreline. These findings sufficiently explain that the
Project was located within or near "existing developed areas." (§ 30250, subd. (a).) They
are also supported by the EIR, which states that "there would only be changes to
accommodate more of the same types of existing land uses . . . . " 24
Finally, even if we were to reach significant adverse effects, Navy Broadway's
substantial evidence argument here turns on air quality impacts. As we later discuss in
connection with Chapter 8, the Commission did address air quality, and its findings are
supported by the record.
iii. Public Access
Navy Broadway challenges the adequacy of the Commission's public access
findings under section 30212, contending as well that there is insufficient evidence for a
consistency finding. Section 30212 requires that new development projects provide
"[p]ublic access from the nearest public roadway to the shoreline and along the coast,"
unless, among other things, "adequate access exists nearby." (§ 30212, subd. (a).) We
24 Navy Broadway argues the Project was "unequivocally a new development," and Defendants waived their argument regarding existing facilities by relying on a different theory below. The issue is not if the Project was new, but whether it was situated within a developed area, and Defendants did argue below that the Project was an expansion of the existing Convention Center.
44
believe the Commission adequately addressed public access, and that the record supports
its findings.
Specifically citing section 30212, the Commission found that while the
Amendment would change the nature of public access, it would not adversely impact it.
The findings described existing routes to the Convention Center and bayfront; these
included (1) vehicular access along Park Boulevard (becoming Convention Way/Marina
Park Way behind the Convention Center), (2) pedestrian access via a bridge over Harbor
Drive to Park Boulevard, and (3) a stairs and funicular at Harbor Drive to the top of the
Convention Center stairs, with an elevator down to the ground level park and bayfront
promenade. The Commission also explained how the Project would maintain or improve
access. For example, a continuous public accessway would be created along the
waterfront and connect to the Embarcadero Marina Park South; a public walkway would
be constructed from the overpass at Harbor Drive through the hotel entry area and down a
new stairway to the promenade ("greatly enhanc[ing]" direct public access to the
waterfront); and crosswalks would connect the promenade to the visitor-serving uses on
the Convention Center bayside façade. The Commission also noted the relocation of
truck operations and pedestrian-focused improvements.
Navy Broadway criticizes the Commission for not addressing the adequacy of
access and focusing on routes to the Convention Center and promenade (rather than from
the public roadway to shoreline). Even if the statute requires new development to
provide adequate access on site (and not simply nearby), there is nothing to suggest the
Commission found public access less than adequate. As for the routes, the promenade is
45
next to the water, and the Commission adequately addressed routes from and between
downtown, the Convention Center, and the shoreline.
There is substantial evidence to support the Commission's findings. The
Amendment itself describes the changes. The record contains a Port briefing booklet
with renderings illustrating access routes and areas, as well as other materials containing
site plans and graphics. The public access program materials describe the access routes
in detail. At the hearing, the Port also noted the pedestrian experience would be
improved by the relocation of truck operations.
Navy Broadway cites current and historical Commission staff findings regarding a
" 'walling off' " of the bay and Commission findings regarding access challenges in the
area (such as the link between the Convention Center and the Gaslamp District). But our
review is for substantial evidence. Neither staff comments, nor the Commission's
acknowledgment of access challenges, establish a lack of support for a finding of
consistency with public access requirements.
iv. Recreation
Navy Broadway argues there is no substantial evidence for the Commission's
findings regarding recreation under sections 30220 and 30221. Section 30220 requires
protection of "[c]oastal areas suited for water-oriented recreational activities that cannot
readily be provided at inland water areas . . . ." Section 30221 affords similar protection
to "[o]ceanfront land suitable for recreational use," unless recreational demand is "already
adequately provided" in the area. The Commission addressed coastal recreation at
length, and Navy Broadway does not establish a lack of support for its findings.
46
We begin with two threshold issues. Defendants argue Navy Broadway waived its
arguments by failing to raise sections 30220 and 30221 before the Commission, citing
CEQA authority. (Citizens for Responsible Equitable Environmental Development v.
City of San Diego (2011) 196 Cal.App.4th 515, 527.) CEQA contains a statutory waiver
provision (§ 21177, subd. (a)), Defendants do not identify a waiver provision under the
Coastal Act, and Navy Broadway did object to the factual matters at issue (e.g., the
rooftop park). The parties also dispute whether section 30221, which protects oceanfront
land, is inapplicable because the Project is on the bay. Neither side provides authority,
but we need not resolve the issue today. For even if section 30221 applies, which we
assume for purposes of discussion, Navy Broadway would not prevail.
We turn to the Commission's findings regarding sections 30220 and 30221. While
acknowledging the Amendment would have "some impacts" on coastal recreation, it
determined that the "new project features . . . will create additional opportunities for the
public to access and enjoy the shoreline." It also found the public access program would
ensure that "recreational opportunities to replace the existing park and recreational uses
between the Convention Center and the bay are provided."
The Commission provided additional and specific findings on these matters. It
explained that although the Project would reduce the size of the landscaped area on
Harbor Drive and the current waterfront park, the new rooftop park would result in
47
additional open space. 25 It noted that the rooftop would also "add new recreational
opportunities, similar to the High Line in New York and the Moscone Center and gardens
in San Francisco." The Commission identified improvements for pedestrians, including
the bayside visitor-serving amenities. It also identified new public spaces, including the
1,900 square foot public plaza and opened recreational pier at the foot of Park Boulevard
(which would "creat[e] a waterfront destination"). Finally, the Commission described
various measures to enhance public access, including the rooftop utilization reports.
Purporting to challenge the Commission's consistency determinations regarding
recreation on substantial evidence grounds, Navy Broadway fails to address many of its
findings or set forth all material evidence on recreation, and to that extent forfeits this
argument. (Foreman, supra, 3 Cal.3d 875, 881.) 26 The arguments it does make do not
support reversal.
First, Navy Broadway argues that the Project would eliminate, not reduce, ground
level park space. It also faults the Commission for failing to acknowledge the
25 The Commission's calculations are somewhat confusing, but the changes result in increased open space in any event. The Commission indicated that open space on Harbor Drive would go from 1.6 acres to one acre, the waterfront park would go from 4.7 acres to 1.8 acres, and the rooftop park would add 5.2 acres, resulting in an increase of 1.7 acres. But the Commission elsewhere states, and the record appears to reflect, the existing waterfront park was 5.4 acres. Assuming that the reduction was still to 1.8 acres, this would mean an additional one acre of open space, not 1.7 acres.
26 On reply, Navy Broadway addresses its failure to set forth the evidence supporting the Commission's findings, generally, and states that "[i]n [its] view, no evidence - let alone substantial evidence" supports them. Suffice it to say, this assertion does not establish a lack of substantial evidence.
48
"waterfront recreational opportunities . . . that will be lost," and notes "saltwater fishing
cannot be done inland . . . ." And it cites input from Commission staff, including a Port
e-mail indicating Commission staff expressed concern that adding to the Convention
Center was a " 'lower priority visitor-serving use' along the bayfront." None of this
establishes a lack of support for the Commission's findings. The Commission correctly
found that existing park space would be reduced, not removed. The record reflects that
ground level park space would remain, including in the site plans incorporated into the
Amendment and the Port agenda for the September 2012 approval hearing. As for
fishing, Navy Broadway identifies no evidence of any impact on this activity. Even if the
reduction in waterfront park space somehow affected fishing (notwithstanding that the
promenade separates that space from the bay), there is a public fishing pier on the nearby
Embarcadero Marina Park South. The Commission could determine that adequate
fishing opportunities would remain. With respect to the purported Commission staff
comments, they do not call into question the actual Commission findings. (Benson,
supra, 139 Cal.App.4th at p. 354.)
Second, Navy Broadway also appears to assume that utilizing rooftop park space
is necessarily harmful to public recreation (going so far as to say that calling it a benefit
is "Orwellian"). But the Commission found it would provide recreational opportunities,
and Navy Broadway identifies nothing to establish it will not be used for this purpose.
Navy Broadway also cites nothing in the Coastal Act, or any other authority, prohibiting
consideration of an elevated recreational development.
49
Third, Navy Broadway contends (primarily with respect to views, but also park
space) that replacing or changing resources does not constitute "protection" under the
Coastal Act. It elsewhere makes the related claim that section 30220 does not permit
harms to be offset, in contrast to certain other Chapter 3 policies. The Commission did
not find that recreation would be harmed. Rather, it found it would be impacted, but
nonetheless remain adequate and, on balance, would be enhanced. Further, Navy
Broadway provides no statutory analysis or authority for its interpretation of "protection,"
and sections 30220 and 30221 contemplate that recreational activities may be provided
elsewhere. (See § 30220 [protecting "activities that cannot readily be provided at inland
water areas"]; § 30221 [protection not required where demand is "already adequately
provided for in the area"]; cf. La Costa Beach Homeowners' Assn. v. California Coastal
Com. (2002) 101 Cal.App.4th 804, 815–816 ["Although the provisions of the Coastal Act
establish the objective of maximizing public access to the beach, neither the act nor its
associated administrative regulations specify how this objective is to be achieved."].)
The Commission could reasonably conclude the coastal and waterfront protection
policies were satisfied given that equivalent or enhanced recreational opportunities
remained.
v. Parking
Navy Broadway next contests the findings on parking and public transportation
under sections 30252 and 30212.5. Subdivision (a) of section 30252 specifies that new
development "must maintain and enhance public access to the coast" by, among other
things, "providing adequate parking facilities or . . . substitute means of serving the
50
development with public transportation . . . ." Section 30212.5 requires that when
"appropriate and feasible," parking facilities "shall be distributed throughout an area" to
mitigate the impacts of overcrowding and overuse. The Commission's findings on these
issues were adequate and supported by the record.
Although the Commission did not specifically cite sections 30252 and 30212.5, it
still addressed parking capacity, parking distribution, and public transportation, and
concluded the Project would "not adversely impact public access." The findings note
existing parking facilities for the Convention Center and Hilton, and the planned addition
of 12 parking spots at the relocated water transit center. It found the Parking
Management Plan would distribute parking throughout the area, and the Convention
Center and Hilton operators would be required to implement it. 27 It also noted that the
site was also well-served by the trolley, ferry, and the Port's summer bayfront shuttle
program. These findings were sufficient to address the statutory requirements, and reflect
a determination that parking capacity and distribution were adequate.
Substantial evidence supports the Commission's findings. The EIR described
existing parking capacity in the Convention Center and hotel parking facilities, and noted
the Convention Center structure had generally been sufficient. It addressed the
anticipated spaces needed for the Project based on the Port's Tidelands Parking
Guidelines; explained that parking needs fluctuate throughout the day; and indicated that
27 The Commission refers to both a "Parking Management Plan" and "Parking Management Program." The EIR primarily uses "Parking Management Plan," and we do the same. Whatever its name, there was a parking plan.
51
events with projected demand exceeding the facilities' capacity (i.e. 13,800 attendees)
could experience parking deficits. In such cases, the Parking Management Plan would
need to be implemented. As summarized in the EIR, the plan would provide strategies
that include coordinating with adjacent hotels, subsidizing transit fees, and using a
"[j]oint event/transit ticketing program with MTS [(the Metropolitan Transit System)]."
In responding to comments, the EIR noted that a new parking structure could lead to
more congestion and greater environmental impacts. The EIR also described alternative
transportation, including public transit, private hotel shuttles and taxis, the ferry, and a
planned summer bayside shuttle.
The Port's Coastal Consistency analysis noted parking spaces would not meet the
Tidelines Parking Guidelines, but also indicated that the "two [parking] locations are
spread over the Project site" and that the Parking Management Plan (and a related Event
Transportation Plan) would designate parking arrangements to mitigate overcrowding
and overuse. Port staff also addressed transportation alternatives in a June 2013 letter to
Commission staff. At the October 2013 certification hearing, a speaker noted the large
number of parking spaces in downtown San Diego, generally.
Navy Broadway points to the EIR, among other things, to contend there is no
evidence of consistency. The EIR did ultimately determine that significant and
unavoidable impacts would remain after mitigation. The Statement of Overriding
Considerations indicated that "events with significant attendance over 13,800 attendees
would encounter insufficient parking spaces." The Coastal analysis also suggested
inconsistency could remain after mitigation.
52
However, the Commission "has discretion to determine adequacy of parking for
development in the coastal zone." (Reddell v. California Coastal Com. (2009) 180
Cal.App.4th 956, 969.) The evidence in the record includes the two existing parking
facilities, the Parking Management Plan, and public transportation alternatives, and could
also support a consistency finding. We will not reweigh the evidence. (See Reddell, at
p. 968 [declining to reweigh evidence considered by Commission]; Jeffery v. Salinas
(1965) 232 Cal.App.2d 29, 37–38 [city council determination that hotel parking was
adequate was a binding factual determination].)
Finally, we reject Navy Broadway's claim that the Commission was "cherry-
picking" from the EIR and Port analysis, and its suggestion that there was no plan for
smaller, parking-dependent events. Reaching a different conclusion does not mean the
Commission failed to fully consider the documents, and the EIR reflects parking is
generally adequate for smaller events.
vi. Views
Navy Broadway contends there is no substantial evidence to support the
Commission's findings on views under section 30251. That section provides that "[t]he
scenic and visual qualities of coastal areas shall be considered and protected as a resource
of public importance." It further states that development shall be "be sited and designed
to protect views to and along the ocean and scenic coastal areas." Navy Broadway does
not establish a lack of record support for the Commission's consistency finding.
The Commission acknowledged several effects of the Project: the view corridor
between the Convention Center and Hilton would be reduced; that corridor was "one of
53
few meaningful windows to the water"; and that moving the Convention Center so close
to the water could result in it dominating the corridor. 28 However, it also found
mitigation was provided by the Amendment revisions, including the "slight[] pulling
back and angling [of] the . . . corner of the proposed expansion" to preserve water views
and reconfiguration of park space and removal of landscape mounds to open up such
views. It also found the rooftop park would "create new expansive views of the water,"
and the public access walkway and stairs in the Hilton expansion would aid views as
well. The Commission concluded that "while the distance between the Hilton and the
Convention Center will be reduced, overall, the enhancements . . . will preserve and
enhance visual and public access to and along the waterfront, consistent with the Coastal
Act." The Project features and revisions discussed by the Commission are in the
Amendment, and other documents provided renderings of anticipated views.
Navy Broadway's arguments do not persuade us. First, it attempts to characterize
certain Commission statements as admissions of inconsistency. It contends that even
after the Amendment revisions, only " 'some views' were protected," citing the corner
finding. But the Commission found that the corner revision would protect "some views,"
not that these were the only ones protected; others were preserved or enhanced in
different ways. Navy Broadway also contends that the Commission admitted "there is
currently almost no relationship between upland areas and the coast." (Italics omitted.)
28 The view corridor would contract from a range of between 370 and 550 feet, to a range of between 270 and 410 feet.
54
In making this statement the Commission was addressing the Fourth Avenue pedestrian
bridge (see discussion post), not views; in any event, this would not undermine the other
view findings.
Second, Navy Broadway disagrees that the revisions and rooftop park mitigate
impacts to views. It argues that "at best it shows that scenic and visual qualities are being
replaced," and that "[e]liminating existing coastal views and replacing them with
manufactured views" is not protection. In so contending, Navy Broadway again assumes
that the rooftop park is necessarily inferior to the ground level space and that providing
equivalent resources cannot constitute protection. We again reject these contentions.
Finally, on reply, Navy Broadway disputes that removal of the corner and
landscape mounds will preserve and open up views, citing the renderings. In this sense,
however, Navy Broadway is not contesting there is evidence that the Project will in some
respects improve views; it just disagrees with the Commission's finding that these
mitigation measures are adequate. This is not grounds for reversal.
c. Chapter 8 Finding
The parties agree that Chapter 8 applies to the entire Project. Section 30708, part
of Chapter 8, provides in part that "[a]ll port-related developments shall be located,
designed, and constructed so as to: [¶] (a) Minimize substantial adverse environmental
impacts." (§ 30708, subd. (a).) Navy Broadway contends there is no evidence to support
55
a finding of consistency with section 30708, focusing on parking, views, and air
quality. 29
We addressed parking and views in connection with Chapter 3, explaining that (1)
the Commission found the Amendment would provide for adequate, distributed parking
and protect and enhance views; and (2) Navy Broadway did not establish a lack of
substantial evidence for these findings. For similar reasons, Navy Broadway does not
establish a lack of substantial evidence that parking and views were consistent with
section 30708. 30
We now turn to air quality. The Commission found that the Amendment would
"ensure consistency with San Diego Air Pollution Control District's [(Air District)]
requirements upon amendment of the Air District's growth projections to reflect the
29 On reply, Navy Broadway indicates that the Commission findings list numerous other significant adverse environmental impacts, but does not elaborate on this point. To the extent it seeks to establish a lack of evidence as to section 30708 based on other issues, the argument comes too late and without support.
30 Defendants argue that parking is not even an impact here; Navy Broadway disagrees. (Compare San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 697 ["social inconvenience" of parking not an environmental impact], with Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1051 [parking should be studied for impact].) Defendants contend section 21099, which became effective in 2014, supports their view. (Stats. 2013, ch. 386, § 5; § 21099, subd. (d)(1) [parking not an impact for "residential, mixed-use residential, or employment center project on an infill site within a transit priority area"]; Covina Residents for Responsible Development v. City of Covina (2018) 21 Cal.App.5th 712, 728 [through § 21099, Legislature endorsed San Franciscans approach].) Because there is substantial evidence for the Commission's findings on parking, we need not at this juncture resolve the scope of section 21099.
56
increased growth anticipated in the Port Master Plan area." Substantial evidence supports
this finding.
The EIR described the role of the Air District and its air quality plans. The Air
District has "primary responsibility" for "rules and regulations designed to attain" state
and national air quality standards. The Regional Air Quality Strategy (RAQS) and the
San Diego portion of the State Implementation Plan (SIP) "provide the region's
documentation for improving air quality . . . ." Both are updated on a triennial basis.
(Ibid.) Emission and growth projections are based in part on land use plans, and
development consistent with the growth anticipated in such plans is also consistent with
the RAQS and SIP. 31 The EIR explained that, because the Project would result in
greater density than the Port Master Plan, it would be inconsistent with the RAQS and
SIP until they were updated. The proposed mitigation required the Port and City to
request that the Air District amend growth assumptions to incorporate the Project prior to
the next triennial review.
The EIR found that effects would still be significant and unavoidable after
mitigation. The Statement of Overriding Considerations suggested that air quality could
31 We note this description appears consistent with applicable law. (See Health & Saf. Code, § 40925, subd. (a) [every three years, district shall revise plans to attain state air quality standards to, among other things, incorporate projected emissions growth]; Assoc. of Irritated Residents v. United States EPA (2012) 686 F.3d 668, 676 [federal Clean Air Act "requires states with nonattainment areas to update their SIPs every three years"]; cf. Pub. Resources Code, § 30253 [Chapter 3 provision addressing minimization of adverse impacts]; id., subd. (c) [new development shall "[b]e consistent with requirements imposed by an [air district] or the State Air Resources Board as to each particular development"].)
57
be mitigated to a level below significance if the Project was incorporated into growth
assumptions before the next triennial review—but that the review "may not occur" prior
to Project construction. The Port's Coastal Consistency analysis found that the Project
would be inconsistent with the RAQS and SIP until they were revised in the next review.
As reflected in the EIR and Port analysis, there was a plan to ensure air quality
consistent with the Air District's existing review obligations, notwithstanding questions
about when it would occur. The Commission could reasonably find that the Air District
would comply with its duties and account for Project impacts in its next review cycle,
thus minimizing any substantial adverse environmental impact. (McAllister, supra, 169
Cal.App.4th at p. 931 [absent contrary evidence, "we presume that an agency carries out
its official obligations," citing Evid. Code, § 664].)
Navy Broadway argues that "nothing in the Coastal Act authorizes the
Commission to approve polluting development and uses just because another regulatory
agency has jurisdiction over pollution." The Commission neither allowed polluting
development, nor let the Air District decide whether to do so. Rather, it determined that
the Air District's review process would account for emissions increases from the Project.
Navy Broadway also focuses on the inconsistency findings in the EIR and Port analysis.
But, again, there is no dispute there was mitigation in place for air quality. Doubts about
58
timing amount to a difference of opinion, not a lack of evidence for the Commission's
findings. 32
4. Findings Regarding CEQA
Finally, Navy Broadway argues that the Commission's certification violated
CEQA because it made insufficient findings on mitigation and no substantial evidence
supported its finding that the new pedestrian bridge was infeasible.
a. Additional facts
The Commission addressed both CEQA generally, and the pedestrian bridge
specifically. With respect to CEQA, it found in pertinent part:
"The Port of San Diego is the lead agency and the Commission is a responsible agency for purposes of CEQA. In the final EIR the Port identified that even after adopting all feasible mitigation measures, there would be significant unavoidable environmental impacts . . . . The Port determined that specific economic, social, and other benefits of the proposed project outweigh the project's unavoidable adverse environmental effects. . . . [¶] As described above, the Commission has found that the [Amendment] can be found in conformance with Chapter 3 and Chapter 8 policies of the Coastal Act. The amendment as modified by the Port will not cause significant adverse impacts to the environment of the coastal zone . . . . The Port incorporated feasible mitigation measures to minimize adverse impacts on recreation and visual quality. There are no other feasible alternatives or feasible mitigation measures available as described above which would substantially lessen any significant adverse effect which the amendment may have on the
32 On reply, Navy Broadway argues that a lead agency may disclaim responsibility to mitigate environmental impacts "only when the other agency . . . has exclusive responsibility," quoting City of Marina v. Board of Trustees of the Cal. State Univ. (2006) 39 Cal.4th 341, 366, italics omitted. Even if we considered this argument, the Commission was not the lead agency (see post) and, regardless, did address how mitigation would occur (i.e., through Air District review).
59
environment. Therefore, the Commission finds that the [Amendment] is consistent with [CEQA]."
The findings regarding the bridge were as follows:
"[T]here is currently almost no relationship between upland areas and the coast. A pedestrian bridge at 4th Avenue could potentially improve the connection between the busy downtown area and the shoreline that was essentially eliminated by the first [Convention Center] expansion. . . . [¶] However, the Port has indicated that there are currently no funds available to construct a bridge at 4th Avenue. Preliminary estimates from the Port suggested that the cost . . . would be in the vicinity of $42 million dollars. This initial estimate may not ultimately be accurate; the cost of the existing pedestrian bridge . . . was originally projected to be $12.8 million dollars, and was ultimately constructed for $26.8 million dollars. That bridge design is unusual . . . , and it's unclear why a second pedestrian bridge would necessarily be so much more costly. Nevertheless, the Port maintains that construction . . . is financially infeasible at this time. The Port also maintains that the bridge is infeasible because portions of the bridge would be outside of both the Port's jurisdiction and the coastal zone and in the City of San Diego's jurisdiction . . . . As such, the Port could not guarantee that the portion outside its jurisdiction would be constructed."
The Commission confirmed that sufficient access would still exist: "[W]hile
construction of a bridge at 4th Avenue would have provided an additional access point to
the rooftop park, with the multiple other access points provided and the improved
wayfinding measures required in the [Amendment], the Commission can be assured that
sufficient access to the shoreline will be provided."
b. Adequacy of Findings
Navy Broadway contends that the Commission was required to find that
60
there were "no more feasible mitigation measures to reduce the expansion's
environmental impacts to a level of insignificance," and failed to do so. To the contrary,
we believe the Commission's findings were sufficient.
The Coastal Act regulations required the Commission to "make any findings
required pursuant" to CEQA, in approving the Amendment. (Cal. Code Regs., tit. 14,
§ 13632, subd. (d).) CEQA section 21081 provides that no agency "shall approve . . . a
project for which an [EIR] . . . identifies one or more significant effects on the
environment" unless it makes certain findings. (Pub. Resources Code, § 21081.)
Possible findings include that required project changes "mitigate or avoid the significant
effects on the environment"; the changes are within another agency's jurisdiction; or that
economic or other considerations "make infeasible the mitigation measures . . . in the
[EIR]" and that benefits outweigh the effects. (Id., subds. (a)(1), (3), (b); CEQA
Guidelines, § 15091, subd. (a)(1), (3) [accord].) "CEQA does not require the responsible
agency to consider the feasibility of environmentally superior project alternatives
identified in the EIR if described mitigation measures will reduce environmental impacts
to acceptable levels." (Rio Vista Farm Bureau Center v. County of Solano (1992)
5 Cal.App.4th 351, 379 (Rio Vista).) The adequacy of the EIR itself is not at issue here,
as Navy Broadway filed no timely action challenging it. (§ 21167.3, subd. (a).) 33
33 All parties besides the Commission cite regulation section 13632, subdivision (d), and CEQA section 21081. The Commission takes a different approach, describing its duties as a CEQA responsible agency (while also noting regulation § 13632, subd. (d).) The responsible agency duties regarding mitigation do not differ materially from those
61
Although the Commission found that the Amendment would not cause significant
adverse impacts, it acknowledged that the EIR indicated there would be significant and
unavoidable impacts. It proceeded to address mitigation, explaining that the Port
"incorporated feasible mitigation measures to minimize adverse impacts" and there were
"no other . . . feasible mitigation measures . . . which would substantially lessen any
significant adverse effect." It also addressed measures to protect resources and limit
impacts in its Coastal Act findings. The Commission's findings were sufficient for
purposes of CEQA section 21081, and thus for regulation section 13632.
We reject Navy Broadway's contention that the Commission's findings were
deficient because it failed to address whether "no more feasible mitigation measures"
existed. Navy Broadway does not provide a statutory or other source for this language,
and regardless, the Commission did find there were no other feasible mitigation
measures.
Nor is Navy Broadway correct in arguing that findings on mitigation to a "level of
insignificance" are required. CEQA focuses on substantial reduction, not insignificance,
and contemplates that projects with significant effects can sometimes be approved. (See
San Franciscans for Reasonable Growth v. City and County of San Francisco (1989) 209
under CEQA section 21081 and do not require separate analysis. (See CEQA Guidelines, § 15096, subd. (g)(2) [when EIR has been prepared, responsible agency shall not approve if it "finds any . . . feasible mitigation measures within its powers that would substantially lessen or avoid any significant effect the project would have on the environment"].) Navy Broadway also suggests the Commission was required to make separate findings under CEQA Guidelines section 15093, subdivision (b). This provision addresses when the lead agency is required to prepare a statement of overriding considerations.
62
Cal.App.3d 1502, 1519 ["[T]he Commission's duty to condition project approval on
incorporation of feasible mitigation measures only exists when such measures would
'substantially lessen' a significant environmental effect."]; Gilroy Citizens for Responsible
Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 935 [air pollution was significant
and unavoidable, and project was approved with Statement of Overriding Considerations;
"[n]o feasible mitigation measures that would substantially lessen or avoid environmental
impacts had been proposed beyond those recommended in the EIR, all of which were
adopted"].) The regulation cited by Navy Broadway here applies to mitigation findings
in the EIR itself, and is inapposite. (See CEQA Guidelines, § 15126.4(a)(3).) 34
c. Pedestrian Bridge
Finally, Navy Broadway challenges the Commission's finding that the proposed
Fourth Avenue pedestrian bridge was not feasible as a mitigation measure to enhance
access. We conclude, to the contrary, that the finding is supported by substantial
evidence.
As an initial matter, Navy Broadway does not establish this particular finding was
required. An agency is not required to explain why a specific measure is infeasible when,
34 An additional point warrants brief mention. Navy Broadway suggests in its CEQA discussion that the contiguous nature of the expansion led to the impacts that required mitigation findings, and elsewhere indicates the Commission staff questioned the need for a contiguous expansion. But staff findings are not binding (Benson, supra, 139 Cal.App.4th at p. 354), and Navy Broadway does not argue that the contiguous expansion itself supports error under CEQA. According to the Commission, the Port maintained that contiguity was needed and that noncontiguous sites had been found to be infeasible.
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as here, it has found other measures effective. (See Rio Vista, supra, 5 Cal.App.4th at
p. 379; cf. Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 244–
245 ["Nothing in CEQA requires an EIR to explain why certain mitigation measures are
infeasible."].) We also reject Navy Broadway's contention that "the Commission
continued to believe that such a bridge was necessary to mitigate the serious harm to
public access and recreational opportunities . . . ." The Commission acknowledged the
bridge would have provided an "additional access point," but concluded there was
sufficient public access without it. As we have already explained (ante, at pp. 44-46),
there is substantial evidence of adequate public access.
To the extent a feasibility finding was required, the record supports a conclusion
that the proposed pedestrian bridge was both economically and jurisdictionally infeasible.
We start by addressing the cost issue. The Commission credited the Port's explanation
that the bridge would cost approximately $42 million dollars and no such funds were
available. A report on the Project indicated the construction estimate for the bridge was
approximately $41.9 million as of July 2009, based on certain component costs. In an e-
mail to Commission staff member Lilly, Port staff member Nishihira included the
estimate and explained why the number was not feasible:
"It is important to note that a new bridge over Harbor Drive would involve a completely different design and would be longer and higher than the existing pedestrian bridge. Also, my understanding of the $41.9 million figure, is that it is a prudent estimate which assumes the high-end of a range. This is to account for increasing construction costs and inflation. Regardless of what a refined estimate may conclude if/when one is done, any cost for the bridge - whether it ranges from $30 million to 550 million - exceeds the
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maximum project budget of $550 million dollars and presents a serious funding and construction challenge."
Finding the Port's representations credible, the Commission could reasonably conclude
that the pedestrian bridge was economically infeasible.
Navy Broadway's arguments to the contrary are not persuasive. First, it questions
the cost of the bridge, describing the Port's e-mail as "cursory" in "providing a terse five-
line estimate that was more than four years old." It contends the "Commission was
skeptical" of the estimate, citing the Commission's comment that it was unclear why a
second pedestrian bridge would be more costly. And it contends "there was no reason to
believe that the 4th Avenue bridge would cost much more, if at all more, than the unique
bridge that had recently cost just $26.8 million." All of this amounts to a request that we
reweigh the evidence, which is not our function. Questions about cost estimates are not a
proper basis to overturn Commission findings otherwise supported by substantial
evidence.
Navy Broadway also accuses the Port of "falsely stat[ing] [that] the budget for the
Phase III expansion was only $550 million," explaining the "City had authorized bonds
up to $575 million" and "had $25 million more to spend . . . than the Port had represented
. . . ." To support this contention it relies on Shapiro, supra, 228 Cal.App.4th 756, but its
reliance is misplaced. In Shapiro, this court addressed a challenge to a 2012 voter-
approved special tax, the proceeds from which would be used to repay $575 million in
municipal bonds issued to finance the Convention Center expansion and related
expenditures. (Id. at p. 764.) The opinion did not address the expansion budget; we
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ultimately concluded that the special tax was invalid. (Id. at p. 793.) Further, Navy
Broadway does not explain why the total amount of bonds issued would have been
synonymous with the project budget—much less cite anything in the record reflecting
that the budget increased, or was anticipated to increase, because of it. 35
Second, Navy Broadway contends that the Commission made "no effort" to
ascertain the bridge's actual cost or the Convention Center expansion budget. It explains
that the record lacks evidence "about how a reasonably prudent developer . . . would view
the additional costs of a bridge," citing Uphold Our Heritage v. Town of Woodside (2007)
147 Cal.App.4th 587, 598 and Save Round Valley Alliance v. County of Inyo (2007) 157
Cal.App.4th 1437, 1461. But these authorities concern the feasibility of project
alternatives, not mitigation, and are inapposite. (See Cherry Valley, supra, 190
Cal.App.4th at p. 352 [rejecting plaintiffs' reliance on Round Valley in the mitigation
context, because "the case considered the feasibility of a specific project alternative, not
an assortment of mitigation measures"].) And even in the context of project alternatives,
no particular evidence is required. (See Sustainability, Parks, Recycling & Wildlife Legal
Defense Fund v. San Francisco Bay Conservation & Development Com. (2014) 226
Cal.App.4th 905, 918 ["Woodside does not require any particular economic analysis or
35 Based on its belief that the bridge should have cost $26 million, and the budget was really $575 million, Navy Broadway argues there is "nothing in the record . . . . substantiating . . . that a $16.9 million shortfall . . . renders the development infeasible." There is nothing in the record on a $16.9 million shortfall, because that number is the product of Navy Broadway's speculation.
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any particular kind of economic data, but requires generally 'some context' that allows for
economic comparison."].)
The issue here, in contrast, is the economic feasibility of a mitigation measure.
Navy Broadway provides no authority that any particular analysis or evidence is required.
(Cf. Cherry Valley, supra, 190 Cal.App.4th at p. 352 ["[T]he relevant inquiry concerning
the economic feasibility of mitigation measures is not, as plaintiffs argue, whether the
anticipated net profits from the project were sufficient to fund them. Rather, the relevant
inquiry is whether such measures were themselves feasible."].)
Finally, we turn to the jurisdiction issue. The Commission found that the bridge
was infeasible not merely because it cost too much, but also because the Port could not
guarantee that portions outside of its jurisdiction would be constructed. Navy Broadway
does not disagree that part of the bridge would lie outside Port jurisdiction. Rather, it
asserts without elaboration that "the Port admitted that those portions were within the
City's jurisdiction." To the extent Navy Broadway is suggesting the City would agree to
build the bridge, thus obviating jurisdictional issues, it declines to provide any evidence
to support this contention, and we decline to consider it. Navy Broadway does not
establish a lack of support for the Commission's finding that the jurisdiction issue
contributed to infeasibility.
Thus, even if Navy Broadway's challenge were not untimely, we conclude it
would fail on the merits, and we would affirm the judgment on this basis as well.
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DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
DATO, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court erred in rejecting the defendants' statute of limitations defense because the plaintiff's cause of action accrued upon the Commission's certification of the amendment, and the plaintiff failed to demonstrate genuine ignorance of the indispensable parties. Consequently, the action should have been dismissed as time-barred.
Issues
Whether the trial court erred in rejecting the defendants' statute of limitations defense based on a finding of genuine ignorance of indispensable parties.
Whether the plaintiff's cause of action accrued upon the Commission's certification of the port master plan amendment or upon the amendment's effective date.
Whether the trial court erred in applying equitable tolling to the plaintiff's claims.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude the trial court erred in rejecting Defendants' statute of limitations defense, the action should have been dismissed, and the judgment for Defendants should be affirmed.”
“We conclude that the claim accrued when the Commission certified the Amendment, there is no substantial evidence of genuine ignorance (precluding equitable tolling as well), and the action should have been dismissed.”