Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS029107
Sepulveda, J.
A local business owner, Mary Wika, sued the City of Benicia (City) to challenge the legality of land use approvals and issuance of building permits to developers of a shopping center. The shopping center, as originally conceived and approved, was to consist of restaurants, office buildings, and a service station with gas pumps, car wash, and a convenience market. The developer later modified the site plans to substitute a drug store for the service station, and the City issued building permits allowing the modification.
Wika contends that issuance of the building permits was a discretionary act approving changes in the use and size of the project that required environmental review under state law and that local law and permit conditions precluded the City from issuing building permits for the expanded project without first amending the use permits in public proceedings. The second contention has merit. A City ordinance prescribes the amount of off-street parking that must be provided by new developments. (Benicia Mun. Code § 17.74.010 et seq.) The City issued a conditional use permit allowing the shopping center a reduced number of parking spaces, which was supported by data substantiating reduced parking demand. (Id. at §§ 17.74.040.) The City later applied that permit to the modified shopping center, despite increased parking demand from the replacement of a 3,000 square foot convenience market with a 15,789 square foot drug store. We conclude that the reduced parking permit was founded on the particular uses at the site and cannot fairly be applied to a different use with significantly higher parking demands. We reverse the judgment and direct the trial court to issue a writ of mandate requiring the City to rescind its issuance of building permits unless the City finds that the modified shopping center qualifies for a reduced parking use permit.
I. facts
A. Environmental Impact Report for Land Use Plan
In 1989, the City approved development of a 28-acre area located at the City’s western limits, known as the Western Gateway, and certified a final environmental impact report (EIR) for the planning action. The City designated most of the Western Gateway for commercial use, such as banks, offices, and retail stores. The EIR considered potential adverse impacts of commercial development in the area and incorporated mitigation measures to minimize the impacts. The EIR also established “consistent policies and designations for the entire Western Gateway area” as a basis on which to “approve, modify, or deny future requests for individual parcel development in the Western Gateway area.”
B. Initial approval of the Rose Center project
In 2002, respondents Dirk Fulton and Becky Kukkola (collectively, Fulton) filed an application with the City planning department to develop approximately 3.4 acres within the Western Gateway. Fulton sought use permits and design review for the Rose Center, a mixed-use retail store and office building development. As initially proposed, the Rose Center was to consist of (1) two retail/office buildings; (2) two restaurants with drive-through or take-out windows; and (3) a convenience market with a six-pump gas station and car wash.
City Planning Commission staff concluded that the Western Gateway EIR encompassed the Rose Center project and that “[n]o additional information has been presented to suggest there are significant impacts not covered under that EIR. In fact, information presented in the traffic study submitted for this project indicates that traffic impacts projected by the EIR are less than envisioned. For these reasons Staff concludes that the previous EIR is valid for evaluating the proposed project.” Accordingly, no separate EIR was prepared for the Rose Center.
In July 2003, the commission approved four use permits and a zoning variance for the Rose Center, as follows: (1) a use permit for a convenience market with gas station and car wash; (2) a use permit for a fast-food or quick-serve restaurant with drive-through window; (3) a use permit for a restaurant with a take-out window; (4) a use permit for reduced parking; and (5) a variance to allow an eating establishment with take-out service within 500 feet of a park. The reduced parking use permit was required because, under a City ordinance, 237 off-street parking spaces would be required to support the uses proposed for the site and the Rose Center did not provide that many spaces. Planning commission staff opined that the ordinance’s parking requirement for restaurants with take-out service was unnecessarily high and recommended allowing a lower number of parking spaces for the Rose Center. The City’s zoning ordinance authorizes reduced parking permits for collective off-street parking on a site with multiple uses. (Benicia Mun. Code § 17.74.040, subd. B.) The planning commission approved a reduced number of parking spaces: 144 spaces. The total square footage for all Rose Center structures was stated to be 23,560: 7,580 each for the two retail/office buildings, 3,000 for the convenience market, 2,800 for the quick-serve restaurant with take-out, and 2,600 for the other restaurant with take-out.
The City Planning Commission imposed various conditions when approving the Rose Center, including provisions that (1) “[a]ny alteration of the approved plans that would increase the square footage on any use would require an amendment of this approval of the use permits”; and (2) “the building permit and development and construction shall substantially comply with the submitted [architectural] plans.... Any change from the approved plans, including substitution of materials, shall be requested in writing and approved by the Community Development Director, or designee, prior to changes being made in the field.”
The Rose Center also underwent separate design review with the City that included in-depth architectural review of the proposed structures and site plan. In August 2003, the City Design Review Commission approved the project with specified conditions. Appellant Wika appealed the design approval to the City Planning Commission and, subsequently, to the city council. Both the planning commission and council denied the appeals. Wika did not pursue any legal action after the city council denied her appeal in November 2003.
C. Modification of the Rose Center project
Fulton took no action to develop Rose Center for several years, other than to seek an extension of time on the use permits and variance. The City granted the extension of time through November 2006.
In June 2006, Fulton wrote to the City’s community development director requesting administrative review and approval of a modification to the Rose Center. Fulton asked to replace the previously approved combination convenience market, gas station, and car wash with a drug store. The proposed drug store was about 15,790 square feet of enclosed floor area, which was far greater in size than the floor area for the approved convenience market and car wash buildings. However, Fulton presented a site plan showing that the total site space for the drug store consumed less square footage than the retail establishment it would replace, which had market and car wash buildings set apart from gas pumps. Fulton stated that the drug store “and site utilization footprint is 3,000 square feet smaller than the service station-convenience-car wash site utilization footprint.” Fulton asserted that the modified plan created “no increase in the square footage of any use.” Fulton also presented a traffic study indicating less traffic generated by “the proposed drug store than with the previously approved land uses,” and stated that “[t]he proposed changes are a less intense use than the approved plan.”
The City community development director approved the revised site plan for the Rose Center. The director found the site plan changes to be “insubstantial” and in compliance with all conditions established by the planning commission and design review commission for the project in 2003. The director also noted that drug stores do not require use permit approval, and thus no new use permit was necessary to replace the use permit previously granted for the service station. The City mailed notice of the director’s approval of the revised site plan to appellant Wika on June 20, 2006. Wika protested the director’s approval of the revised site plan to City officials over the next few months, to no avail.
D. Building permits issued
On October 27, 2006, the City issued building permits for the Rose Center, and notified Wika of the issuance. Consistent with revisions approved by the community development director, the permitted buildings’ combined square footage was 33,311, up from the 23,560 approved by the planning commission in 2003. The revised Rose Center had 146 parking spaces. A City ordinance, which establishes parking standards, would have required far more parking spaces based on the square footage of the project, both as originally designed and as revised. It will be recalled that the planning commission relaxed those requirements in 2003, and authorized 144 parking spaces instead of the 237 spaces required under the ordinance. The director determined that the planning commission’s 2003 reduction of the parking requirement minimum to 144 spaces also applied to the revised project.
E. Building permit appeal to the City
On November 27, 2006, Wika appealed the City’s issuance of building permits to the city council. Wika identified the following grounds for her appeal that are pertinent here: (1) the revised Rose Center’s expanded building square footage constituted an increase in the square footage of a use that required amendment of the original use permits; (2) the revised project had too little parking given expanded building square footage; (3) the proposed drug store required a use permit, especially because it might operate 24 hours a day; and (4) the revised Rose Center constituted a substantial change that required CEQA review beyond the community planning EIR prepared for the Western Gateway.
The city council concluded that the building permits were properly issued and denied Wika’s appeal on December 19, 2006. In doing so, the council adopted staff responses to Wika’s contentions. Those responses included the community development director’s answers to Wika’s contentions. The director stated: (1) no uses that require use permits were added or increased in size. A drug store was added to the project, but drug stores do not require use permits; (2) reduced parking was approved for the original project and applied to the revised project; (3) drug stores do not require a use permit, even those that operate 24 hours a day; and (4) approval of the revised Rose Center plan did not require CEQA review because the approval related to an insubstantial amendment to a site plan, which is a ministerial act exempt from CEQA review.
F. Petition for writ of mandate
On February 9, 2007, Wika filed in the trial court a petition for writ of mandate to challenge the legality of land use approvals and issuance of building permits provided by the City to Fulton for development of the Rose Center. Wika alleged that the City failed to comply with City planning and zoning laws and CEQA. The court denied Wika’s request for an injunction that would have stopped construction until the case was resolved.
It appears that construction is now complete. The case is not moot, however, because use modifications or mitigation measures could be imposed on the Rose Center if it were found to be noncompliant with land use laws. (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888-889.)
The court issued its decision on March 13, 2008, and a judgment on May 21, 2008. The court found in Wika’s favor on one point that is not at issue on appeal, concerning the widening of a street. On most issues, and those pertinent on appeal, the court ruled against Wika.
The court divided Wika’s land use challenges into two categories relevant here: the revised project’s substitution of a drug store for a gas station/market/car wash without CEQA review or amended use permits, and building permit approval of 146 parking spaces when a City ordinance would have required more parking. As to the substitution of retail business establishments, the court found Wika’s CEQA challenge on this point to be untimely because Wika learned of the proposed substitution in June 2006 and did not file her petition within 180 days. (Pub. Resources Code, § 21167, subd. (a).) On the merits, the court found that approval of the substitution was within the scope of the community development director’s authority under a local ordinance and was a minor change that did not trigger CEQA review even if the CEQA challenge was timely. On parking, the court found that the project was originally approved with 144 parking spaces and the revised project surpassed that requirement with 146 spaces.
On July 21, 2008, Wika appealed the judgment denying her relief on the drug store and parking issues. The parties completed briefing on appeal in May 2009.
Ii. discussion
Appellant Wika contends as follows: (1) issuance of the building permits was a discretionary act approving changes in the use and size of the project that required CEQA review; and (2) local law and permit conditions required the City to amend the use permits before approving building permits for the expanded project. As a preliminary matter, Wika also disputes the trial court’s finding that her CEQA claim is untimely. For purposes of appeal, we will regard the claim as timely and address the merits of all claims raised on appeal.
A. CEQA
“[T]he legal hook for environmental review of a project [under CEQA] is the need for discretionary approvals by public agencies.” (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2009) § 19.31, p. 901.) When making a discretionary approval of a project, the government agency must publicly evaluate potential adverse effects on the environment. (Pub. Resources Code, §§ 21002, 21002.1, 21080, subds. (a) & (b)(1).) Once an agency has conducted that review and prepared an EIR, no subsequent or supplemental EIR is required unless new information becomes available or there are substantial changes in the project or surrounding circumstances that require major revisions to the EIR. (Pub. Resources Code, § 21166.) But even substantial changes in the project will not reopen the CEQA review process if the agency has completed all discretionary approvals. (Cal. Code Regs., tit. 14, § 15162, subd. (c).) The review process, including subsequent review under Public Resources Code section 21166, “terminates once all discretionary approvals necessary for a project to proceed have been granted. Agency action to implement a project that has been previously approved does not trigger a need for further environmental review.” (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra,§ 19.31, p. 901.)
Appellant Wika contends that issuance of the building permits was a discretionary act approving changes in the use and size of the project that required CEQA review. Respondents City and Fulton maintain that the changes were insubstantial and thus required no supplemental EIR. (Pub. Resources Code, § 21166.) Respondents argue there is “more than enough evidence to support the City’s determination that Fulton’s proposed changes were not substantial and did not impose any significant environmental impacts warranting another round of environmental review.” The argument is misguided because the City never made such a determination. What the City determined was that the issuance of the building permits was a ministerial act, not a discretionary act, and thus outside the scope of CEQA. As appellant Wika rightly notes, the City never made an assessment under Public Resources Code section 21166 comparing the significance of the changes in the revised site plan against environmental impacts identified in the Western Gateway EIR.
When the community development director approved the revised site plan in June 2006, he did so by applying a municipal ordinance and permit conditions. Although he found the changes to be insubstantial, the finding was made under the ordinance, not CEQA. The Western Gateway EIR was never mentioned. The director later explained that approval of the site plan and issuance of building permits was a ministerial act exempt from review under CEQA. The city council adopted this explanation in denying Wika’s administrative appeal. Respondents are thus mistaken in asking us to review the City’s purported finding that the revised site plan presented insubstantial changes requiring no supplemental EIR. That finding was never made. Instead, the City found that its approval of the revised site plan and issuance of building permits were discretionary acts exempt from CEQA. It is this finding that is the proper subject of review. We turn now to a consideration of that issue and ultimately conclude that the City’s acts were discretionary, and thus no CEQA review was required.
CEQA applies only to discretionary projects, not ministerial projects. (Pub. Resources Code, § 21080, subds. (a) & (b)(1).) A discretionary project “means a project which requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity.” (Cal. Code Regs., tit. 14, § 15357.) In contrast, a ministerial project outside the scope of CEQA occurs “where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations.” (Ibid.) Ministerial “describes a governmental decision involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out.” (Cal. Code Regs., tit. 14, § 15369.) The issuance of building permits is generally presumed to be ministerial. (Cal. Code Regs., tit. 14, § 15268, subd. (b)(1).)
Appellant Wika acknowledges that issuance of a building permit is generally a ministerial activity, but argues that the issuance of permits for the Rose Center was discretionary because the permits did not conform to the original site plan and, instead, incorporated discretionary approval of revisions to the use and size of the project. It is true that the line between discretionary and ministerial acts is sometimes indistinct, and “[w]here a project involves an approval that contains elements of both a ministerial action and a discretionary action, the project will be deemed to be discretionary and will be subject to the requirements of CEQA.” (Cal. Code Regs., tit. 14, § 15268, subd. (d).) It is also true that a city employee’s issuance of a building permit may be a discretionary decision within the meaning of CEQA if the employee requires or approves modifications not dictated by fixed, preexisting standards set by an ordinance or other legislative action. (Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 273-278.) In Westwood, city officials retained wide discretion to use their subjective judgment when issuing building permits and were empowered to grant variances from the building code and the city’s general plan. (Id. at pp. 273-276.) Westwood stands in stark contrast to the situation presented here, where no public official used subjective standards for approving the modification of the Rose Center nor granted variances from fixed standards. The official “merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision.” (Cal. Code Regs., tit. 14, § 15369.)
In approving site plan modifications later reflected in the building permits, the community development director asserted that he was applying preexisting fixed standards: the use permit conditions set by the planning commission and a municipal ordinance. Appellant Wika challenges the validity of this assertion, and argues on appeal that the director’s action in allowing substitution of a drug store for the originally planned service station was a discretionary act, as was allowing a low number of parking spaces. The argument fails to convince.
The director’s decision to allow substitution of business establishments was based on the zoning ordinance, which imposes no restrictions on retail sales establishments of 20,000 feet or less (like the Rose Center drug store) and allows such retail sales outlets to operate in a commercial district without requiring a use permit. (Benicia Mun. Code § 17.28.020.) The director found that the City has no discretion to refuse construction of retail sales establishments of 20,000 feet or less in a commercial district. (Id.) The decision to allow larger buildings than originally approved was also based on the ordinance, which requires a new use permit if changed development plans “affect a condition of approval.” (Benicia Mun. Code § 17.104.100, subd. A.) The director found no change in the conditions of approval because the only increase in size related to the drug store, which was not a restricted use subject to any conditions of approval. The director’s decision to allow a certain number of parking spaces was based on the reduced parking use permit issued in compliance with the zoning ordinance. (Benicia Mun. Code § 17.74.040, subd. B.) The director simply applied these preexisting, fixed legislative standards to the revised site plan presented to him. Whether the director misapplied these standards is a separate question, and one we will reach next. But our determination that the director did apply fixed standards, whether or not done correctly, shows that his action was ministerial, and thus not subject to CEQA review.
B. Local law and permit conditions
Appellant Wika contends that the community development director (in actions later endorsed by the city council) misapplied local law and permit conditions. According to Wika, the terms of the zoning ordinance and permit conditions required the City to amend the use permits (after public notice and a hearing) before approving building permits for the expanded Rose Center project. Specifically, Wika contends that (1) a permit condition provides that “[a]ny alteration of the approved plans that would increase the square footage on any use would require an amendment to this approval of the use permits,” which means that the increase in the square footage of the structures on the site required permit amendment; and (2) the zoning ordinance requires a new use permit if changed development plans “affect a condition of approval,” and the substitution of a drug store for a service station affected a condition of the reduced parking permit for 144 spaces because of increased parking demand. (Benicia Mun. Code § 17.104.100, subd. A.)
(1) The City did not violate the conditional use permits by allowing a site plan modification substituting a drug store for the originally planned service station
“A conditional use permit is administrative permission for uses not allowed as a matter of right in a zone, but subject to approval. [Citation.] The issuance of a conditional use permit may be subject to conditions,” that regulate the land. (Sounhein v. City of San Dimas (1996) 47 Cal.App.4th 1181, 1187.) Appellant Wika maintains that the City violated a condition of the use permits by issuing building permits on a revised site plan that increased the square footage of the buildings by replacing the previously approved service station with a drug store. The drug store is a bigger building than the proposed service station buildings but respondents point out that the drug store has a smaller “footprint” than the service station (with buildings and gas pumps set apart). The parties focus on the wrong things.
The parties fail to comprehend that the permit condition restricting increases in “the square footage on any use” means the square footage on any use for which a conditional use permit was issued. No conditional use permit was issued for the drug store, and none was necessary because retail establishments of the drug store’s size are allowed in commercial districts without need of a use permit. (Benicia Mun. Code § 17.28.020.) The revised site plan did not increase the square footage of any use subject to a use permit—it simply withdrew a use requiring a permit (the service station) and replaced it with a use allowed as a matter of right in commercial districts (the drug store). The parties misunderstand this basic principle and so argue at cross purposes: appellant Wika focuses on the size of the structures in arguing there was an increase in square footage, while respondents focus on the footprint of the drug store versus the service station in arguing there was no increase in square footage. But, plainly, the permit conditions were concerned with the permits, and restricted increases in the square footage of the permitted uses. Had the square footage of the service station been increased, an amended use permit would have been necessary. But no amendment was necessary because a new, preauthorized use was added to the Rose Center.
This was the interpretation of the permit condition by the community development director, who found that “[n]o uses that require Use Permit review were added or increased in size.” The director noted that the permit condition “calls for Planning Commission review to increase the square footage only of any use requiring Use Permit review.” “The drug store is a permitted retail use in the General Commercial Zoning District and therefore does not need a Use Permit from the Planning Commission per Benicia Municipal Code Section 17.28.020. It replaces several uses that did require and obtain Use Permit review and approval—a gas station, drive-through car wash, and convenience store.” Accordingly, the director found that the revised site plans did not increase the square footage on any use that had, or needed, a use permit and thus did not require amendment of the use permits. This finding is reasonable, and fully consistent with local law and the permit conditions.
(2) The City violated the conditional use permit for reduced off-street parking by allowing a site plan modification with increased parking demands
On appellant Wika’s second point concerning parking, we conclude that a use permit condition was violated by issuance of the building permits. A City ordinance regulates the amount of off-street parking that must be provided by new developments. (Benicia Mun. Code § 17.74.010 et seq.) The City has formulated a schedule of various use classifications that prescribes the number of parking spaces per square foot of each listed use. (Id. at § 17.74.030.) Generally, the number of off-street parking spaces that must be provided is not reduced for multiple uses on a single site—the total number of parking spaces must “be equal to the sum of the requirements prescribed for each use.” (Id. at § 17.74.020, subd. D.) However, “[a] use permit may be approved for the collective provision of parking serving more than one use of a site,” and “may reduce the total number of spaces” otherwise required by the ordinance. (Id. at §§ 17.74.040, subd. A, 17.74.040, subd. B.) A reduced parking permit must be supported by data substantiating reduced parking demand and the planning commission must find that there is, in fact, less parking demand than established in the ordinance’s standard schedule. (Id. at § 17.74.040, subd. B.)
In July 2003, planning commission staff recommended granting a reduced parking permit for the Rose Center. A memorandum from commission staff noted that the parking required under the ordinance schedule for the proposed uses would be 237 spaces, far more than the number of spaces provided in the project plans. Staff initially recommended reducing the number of required spaces to 156. Staff reached that number by reducing the number of spaces scheduled in the ordinance for the two restaurants in the site plan, based on the view that the standard requirements “for eating and drinking establishments with take out service are too high.” Staff therefore proposed requiring only 15 spaces per 1,000 square feet of the restaurants, instead of the standard 30 spaces per 1,000 square feet. Even with this reduction in the number of required parking spaces, the Rose Center still had too few parking spaces. Staff suggested that the developer should revise the plans to provide at least 156 spaces. Staff later revised its recommendation after obtaining a modified parking study from the developer’s consultant showing that the mix of uses on the site would have shared customers. For example, the study showed that 30 percent of the service station convenience market customers would also be gas customers. Staff ultimately recommended granting a reduced parking use permit for 144 spaces.
The supplemental staff report actually stated the approved number of parking spaces to be 148, but that appears to be a typographical error because staff recommended approving the site plans as constituted, with 144 spaces. In any event, the planning commission did approve 144 spaces.
The planning commission heard from the developer’s consultant on “parking statistics and layout” and approved reduced parking at 144 spaces. The commission found that the parking demand for the project, as evidenced by the consultant’s parking study and other documents, was less than the requirement contained in the ordinance schedule for some of the proposed uses on the project site. The commission issued a reduced parking permit with a stated condition: “The revised parking requirement is 144 spaces, no more than 43 of which may be compact spaces.” Another stated condition was as follows: “The building permit and development and construction shall substantially comply with the submitted [architectural] plans.”
In 2006, the City issued building permits for the revised Rose Center. The Rose Center has 146 parking spaces. Although the number of parking spaces exceeds the minimum imposed by the conditional use permit, appellant Wika contends that the City violated the use permit by allowing reduced parking for a revised Rose Center that substituted a drug store for the previously approved service station complex. Wika argues that the parking requirements differed between the original and the revised site plans. Under the ordinance, the service station’s convenience market required 15 spaces (1 per 200 square feet for food and beverage sales in a building of 3,000 square feet). (Benicia Mun. Code § 17.74.030.) Wika maintains that the drug store required 64 spaces under the ordinance (1 per 250 square feet in a retail sales building of 15,789 square feet). Respondents do not contest Wika’s numerical calculations, but argue that the reduced parking permit conclusively established the minimum parking requirement at 144 spaces regardless of a later revision to the site plan changing the proposed use of the site. The argument is untenable.
The ordinance allows less parking (1 space per 250 square feet) for a service station with convenience store, but the commission staff did not use that classification type when evaluating the number of spaces required for the Rose Center as originally proposed. (Benicia Mun. Code § 17.74.030.)
The planning commission staff report shows that the reduced parking use permit was granted under the authority of an ordinance provision allowing “the collective provision of parking serving more than one use of a site.” (Benicia Mun. Code § 17.74.040.) Under that provision, a developer must “submit data substantiating a request for reduced parking requirements,” and the commission must find that “parking demand will be less than the requirement” set out in the ordinance and that “the probable long-term occupancy of the building or structure, based on its design, will not generate additional parking demand.” (Id. at § 17.74.040, subd. B.) The developer submitted a parking study for the originally proposed Rose Center with a service station, and the commission made the necessary finding based on that site plan. The City community development director then applied that permit to the revised Rose Center, which changed one of the uses at the site to a different use with a higher demand for parking. The application of the reduced parking use permit to the revised project is problematic because there is a difference between the parking demands of a 3,000 square foot service station convenience market and a 15,789 square foot drug store. The difference in those demands is reflected in the ordinance, which prescribes a different number of parking spaces between the two uses. (Id. at § 17.74.030.) Even the parking study submitted by the developer when applying for the use permits acknowledges that parking demand at retail establishments increases with square footage.
Under the ordinance, a reduced parking permit for collective use is founded on the particular uses at the site, and cannot fairly be applied to a different use with a significantly higher parking demand. In granting the reduced parking use permit, the planning commission found that “parking demand will be less than the requirement” set out in the ordinance and that “the probable long-term occupancy of the building or structure, based on its design, will not generate additional parking demand.” (Benicia Mun. Code § 17.74.040, subd. B.) The commission based those findings, in part, on the size of the buildings and on a parking study showing shared customers between the multiple uses at the site. The increased size of the project (from 3,000 square feet to 15,789) and changed use (from convenience market to drug store) alters the basis for the parking study and the commission’s findings.
The administrative record provides little explanation for the community development director’s determination that the reduced parking use permit was equally applicable to the revised project. In defending his determination to the City manager, the director noted that the permit allows 144 spaces and stated that Wika’s objection to the application of the permit to the revised project “relies on analyses of parking demand that preceded Use Permit approval.” But the problem with the director’s determination is that it relies on analyses of parking demand that preceded the modification of the Rose Center, which changed the type and size of one of the uses on the site (from a small convenience market to a large drug store). Are we to hold that a developer with a reduced parking use permit may make changes, of any type and size, to a project without seeking amendment of the permit? Respondents do not take that position in their briefing on appeal but instead argue that no evaluation of parking space requirements was necessary for the revised project because the developer “submitted revisions to the site plan with another traffic study showing that the revisions reduced traffic impacts from the original project.” (Italics omitted.) The argument is meritless. First, the referenced traffic study is just that—a traffic study, not a parking study for the revised project. Second, the record fails to show that the community development director ever used the traffic study, or any method, to evaluate the parking demands of the original and revised projects. The record shows no exercise of subjective judgment but a purely ministerial decision that the permit applied to the project regardless of any site plan revision. Third, studies supporting reduced parking must be evaluated by the planning commission, not the community development director. (Benicia Mun. Code §§ 17.74.040, 17.74.060.) We therefore conclude that the director erred in applying the reduced parking use permit to the revised project, and the City erred in issuing building permits to the revised project.
III. disposition
The judgment is reversed and the matter remanded to the trial court with directions to issue a writ of mandate requiring the City to rescind its issuance of building permits within 120 days (or another reasonable period of time determined by the trial court) if the City Planning Commission does not find, upon application by the developer or current owner, that the currently configured shopping center qualifies for a use permit under Benicia Municipal Code section 17.74.040. Appellant Wika shall recover costs incurred on appeal upon timely application in the trial court. (Cal. Rules of Court, rule 8.278.)
We concur: Reardon, Acting P.J., Rivera, J.