A grading permit for a nursery in Huntington Beach did not violate a six-year-old conditional use permit and was not subject to environmental review, the Fourth District Court of Appeal has ruled.

When it approved the conditional use permit (CUP) in 1998, the City of Huntington Beach found the nursery exempt from California Environmental Quality Act (CEQA) review because the project involved minor grading and no permanent structures. Environmentalists argued that the 2004 grading permit went beyond the CUP and the exemption because the permit referenced 4,046 cubic yards of fill. A 1998 grading permit contemplated no fill.

In a terse opinion, the Fourth District, Division Three, said environmentalists did not prove that the amount of fill mattered.

"The 1998 grading permit and the 2004 grading permit issued by the city are not separate projects," Justice Richard Fybel wrote for the unanimous three-judge panel. "They are separate steps in the completion of the nursery development project. As long as the 1998 grading permit and the 2004 grading permit authorized the work contemplated by the grading plans, and the grading plans were consistent with the CUP, there is nothing to challenge under CEQA at this time."

In 1996, the city granted a conditional use permit to Landscape by Hiro, Inc., for a wholesale nursery on an approximately 10-acre site under Southern California Edison power lines. The city required subsequent grading plans and found that such grading would "improve ponding and flooding conditions" on the site. The city filed a notice of exemption from environmental review — a notice that was not challenged. Two years later, the city approved owner Hiro Kawachi's grading plan and issued a permit. Construction commenced but then stopped in 1999. Kawachi resumed in 2003. Acting on a complaint, the city investigated and found that the grading did not comply with the 1998 plan. Kawachi submitted new grading plans, the city found those plans in compliance with the CUP, and the city issued a new grading permit.

The Santa Ana River Watershed Coalition, the HB River Park Foundation and resident Merrilee Madrigal sued, contending the latest grading permit did not comply with the CUP and was not exempt from CEQA. Orange County Superior Court Judge Stephen Sundvold ruled for the city and was upheld on appeal.

The Fourth District first ruled that environmentalists had failed to establish the city abused its discretion in issuing the 2004 grading permit. A grading permit that contemplated no fill and a permit that contemplated 4,046 cubic yards of fill could both be consistent with the CUP, the court determined. A conclusion otherwise, the court said, "is completely unsupportable."

The court next determined that the grading permit was a ministerial act, even though the city did not make a specific finding. A grading permit is not necessarily ministerial nor discretionary, the court said. But in this case, the permit contains no conditions.

"As [Southern California Edison] argues, the city could issue a grading permit only if the grading plan conformed to the detailed standards of the CUP," Justice Fybel wrote. The environmentalists failed "to establish the city exercised any discretion in issuing the 2004 grading permit. Therefore, we cannot conclude the issuance of the grading permit was a discretionary act by the city."

The court did not rule specifically that the project was categorically exempt from CEQA as a minor alteration to land. Rather, the court found that environmentalists did not prove the project was not exempt. The court rejected the argument that an exemption could not apply because the site is a floodplain or wetlands.

"[W]hen the city issued the CUP and concluded the project was exempt under title 15, § 15304, subdivision (a), it impliedly found the property was neither a wetland nor a floodplain," the court ruled. "The time to challenge this implied finding has long since expired."

The Case:
Madrigal v. City of Huntington Beach, No. G036991, 07 C.D.O.S. 2104, 2007 DJDAR 2655. Filed January 31, 2007. Ordered published February 27, 2007.

The Lawyers:
For Madrigal: Rose Zoia, (707) 526-5894.
For the city: Scott Field, city attorney's office, (714) 536-5555.
For Southern California Edison: Paul Singarella, Latham & Watkins, (714) 540-1235.
For Landscape by Hiro: Lois Bobak, Woodruff, Spradlin & Smart, (714) 564-2653.