LOS ANGELES BY PRODUCTS CO v. KARL KUNAK (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Neighborhood Legal Services of Los Angeles County, David Pallack, and Joshua Stehlik for Real Parties in Interest.

The Los Angeles City Council (the City Council) reversed the approval of a zoning variance that would have permitted Los Angeles By-Products Co. (the company) to construct and operate a motocross ¹ track on 10 acres of the former Penrose landfill, seven days a week for up to 48 weeks, from 10:00 a.m. to 8:00 p.m., with a daily limit of 90 riders, in an area zoned for light industrial and residential use.   As a conditional use of the property as a landfill, the company signed an agreement with the City of Los Angeles (the City) in which the company agreed to develop the site into recreational facilities once the landfill activities were completed.   The company agreed to construct a nine-hole golf course and, if not feasible, to develop alternative recreational uses for the property in a park-like setting that is attractive and non-offensive to neighboring properties.   The City Council concluded the motocross track did not satisfy the terms of the company's agreement with the City, and the company could not establish the necessary requirements for a zoning variance.   The company's mandamus petition filed against the City was denied.

The company appeals, claiming the City committed legal error in its review, failed to make the appropriate findings, and its findings are not supported by substantial evidence.   We find no legal error.   Because substantial evidence supports the City Council's findings that the motocross track did not meet any of the five requirements for approval of a zoning variance, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Penrose Sanitary Landfill Site

The company operated the Penrose landfill in Sun Valley.   In permitting the use of the property as a landfill, the City imposed certain conditions that governed the development of the site once landfill activities ended.   A condition in the 1979 variance stated that upon completion of the use as a landfill “the property [would] be restricted to a golf course use or other recreational use” (1979 variance).

In partial satisfaction of the land use permission granted for landfill activities, the company and the City signed the Penrose Recreational Facility Agreement (Penrose Agreement).   The Penrose Agreement states that based upon the 1979 variance, upon completion of the landfill activity, the use of the Penrose site is restricted to a “nine-hole tournament-quality regulation golf course ․, or other recreational facility to be designed, developed and constructed by [the company].”   If a golf course is determined to be “infeasible,” the company must submit an alternative recreational facility for the property.  “Any alternative use shall be designed to include a park-like setting and the use shall be attractive and non-offensive to neighboring properties.”

In 1982, the company obtained another zoning variance for the continued use of the Penrose site as a landfill, provided all the conditions in the 1979 variance remained in effect.   As noted, the 1979 variance contemplated the future construction of a golf course, which could be built on the property without any further discretionary action by the City.

By 1997, the company concluded the golf course was infeasible due to increased costs associated with additional regulations imposed by the California Integrated Waste Management Board.   The company submitted a proposed master plan of alternative recreational uses which included:  (1) a professional golf driving range;  (2) miniature golf course;  (3) children electric ride/railroad ride;  (4) game arcade;  (5) batting cages;  (6) barbeque/clubhouse/picnic area;  (7) several reduced size race car areas, BMX bike ride areas;  (8) adventure island-bumper boat ride;  (9) laser tag game and electric bumper car ride areas;  and (10) special events areas for weddings and service organization events.   The associate zoning administrator determined the master plan project was consistent with the 1979 variance.   The proposed master plan achieved the intent of the 1979 variance to have a recreation project that would:  (1) “[p]rovide outdoor recreation for the community”;  (2) “[a]ttractively landscape and cover all signs of the previous landfill site”;  and (3) “[i]nclude golf and other recreational uses to maximize the variety of recreational uses which could be located on the site” (1997 clarification letter).

2. The Company's Application For A Variance To Construct A Motocross Track

In 2004, the company submitted a land use permit application seeking a variance for 10 acres of the former Penrose landfill site to build and operate a motocross track.   The 10-acre site is the subject of the Penrose Agreement, and is not zoned for use as a motocross track.   The project site is surrounded by light industrial use, residential, single family dwellings, a mobile home park, an elementary school across the street from the proposed motocross track, and a concrete manufacturing company and sand-gravel pit.

Before a variance may be approved, all five of the legally mandated findings set forth in the Los Angeles City Charter, article V, section 562(c), and Los Angeles Municipal Code section 12.27, subdivision (D) must be made in the affirmative.²

3. Zoning Administrator's Decision To Approve The Application For A Variance

Members of the public went on record opposing the motocross track during the first public hearing before the zoning administrator on October 4, 2004.   Those opposed were worried about the noise, traffic, air pollution, decrease in property value, and the impact on the elementary school.   Many also believed the motocross track did not honor the terms of the Penrose Agreement.   The Office of the City Attorney later sent a letter to the zoning administrator citing the Penrose Agreement in which any alternative use of the property “ ‘shall be designed to include a park-like setting and the use shall be attractive and non-offensive to the neighboring properties.’ “

The zoning administrator received more than 500 letters in support of the project, but a sampling of these letters revealed many of the supporters were not from the immediate area.   The North Hollywood NorthEast Neighborhood Council opposed the project as inconsistent with the Penrose Agreement.

During a subsequent public hearing on February 24, 2006, there was support and opposition for the project.   Neighborhood Legal Services of Los Angeles County submitted comments on behalf of nearby mobile home residences and real party in interest Trudy Saposhnek, stating the proposed motocross track failed to satisfy the Penrose Agreement, did not adequately address the adverse environmental impact on the community, and failed to meet the legal requirements for approval of a variance.   Additionally, those opposed to the motocross track submitted noise studies and assessments of environmental factors considered under the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq.).   These studies concluded the mitigated negative declaration (MND) submitted by the company to the zoning administrator underestimated the potential adverse environmental impacts of the motocross track in several environmental categories, including air and noise.

Los Angeles Unified School District (LAUSD) opposed the motocross track project, which would have been near one of its elementary schools.   The LAUSD stated the operation of the motocross track “will increase local air pollution and noise which will likely impact the health and safety of our students and staff, and otherwise affect the quality of their learning environment.”

The zoning administrator approved the company's variance application and adopted the MND regarding the project.   The zoning administrator approved use of the property as a motocross track for up to a 10-year period.   The motocross track was approved to operate seven days a week, not to exceed 48 weeks a year, between 10:00 a.m. and 8:00 p.m., daily.   The daily limit of motorcycle riders was 90, and the motorcycles had to comply with acceptable noise levels.

4. Decision By The North Valley Area Planning Commission

Saposhnek and real party in interest Karl E. Kunak appealed from the zoning administrator's decision to the North Valley Area Planning Commission (Planning Commission).   Following a public hearing, the Planning Commission affirmed the approval of the variance, granting the construction, use, and maintenance of a motocross recreational facility and “supplement[ing] the list of uses” cited in the 1997 clarification letter.   The Planning Commission adopted and modified the findings of the zoning administrator and adopted the MND.

5. Decision By The City Council

Real parties in interest Saposhnek, Kunak, and more than 300 other residents appealed from the Planning Commission's decision to the City Council.   The Planning and Land Use Management Committee (PLUM Committee) of the City Council heard public comments regarding the proposed motocross track.   In addition to local residents, the planning deputy for City Councilman Tony Cardenas informed the PLUM Committee that the councilman did not support the project due to the “ambiguity” in the Penrose Agreement.   Following this hearing, the PLUM Committee recommended that the City Council grant the appeal and overturn the Planning Commission's decision.   The PLUM Committee issued a report and stated the mandated findings could not be made in the affirmative to approve the variance for the motocross track.   Following a public hearing, the City Council adopted the recommendation and findings of the PLUM Committee.

6. Petition For Writ Of Mandate

The company initiated this action for administrative mandamus against the City, challenging the decision pursuant to Code of Civil Procedure section 1094.5 and Public Resources Code section 21168.   The trial court denied the petition, finding the company had not satisfied at least four of the legal requirements to approve a variance.   The company timely appealed from the judgment.

DISCUSSION

Our primary focus is on the company's administrative mandamus petition filed under Code of Civil Procedure section 1094.5, subdivision (a).³  The scope of judicial inquiry in such proceedings “extend[s] to the questions whether the respondent has proceeded without, or in excess of jurisdiction;  whether there was a fair trial;  and whether there was any prejudicial abuse of discretion.   Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.”  (Code Civ. Proc., § 1094.5, subd. (b).)

On appeal, the company contends the City Council acted in excess of jurisdiction by conducting a de novo review of the Planning Commission's decision, the City Council erred procedurally by failing to make findings supporting its decision, and the City's findings are not supported by substantial evidence.   Different standards of review apply to these contentions.

1. The City Council Did Not Act In Excess Of Jurisdiction

The company contends the City Council erred because it conducted a de novo review of the Planning Commission's decision, and review is limited to whether the Planning Commission abused its discretion.   Since the question of whether the City Council acted in excess of its jurisdiction involves an interpretation of the Los Angeles Municipal Code, it presents a question of law that we review de novo.  (Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344, 1354-1355.)

“[A]dministrative agencies have only such powers as have been conferred on them, expressly or by implication, by constitution or statute,” and “therefore, must act within the powers conferred ․ by law and may not validly act in excess of such powers.  [Citations.]”  (Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 103-104.)   Here, the agency is the City Council acting on behalf of the City. The City Council has the authority to affirm, modify, or reverse the decision of the Planning Commission.  (LAMC, § 12.27, subds.(O), (P).)  “However, that power must be exercised within the bounds of all applicable city charter, ordinance and code sections, and any action on its part that exceeds those bounds is void.  [Citations.]”  (See City and County of San Francisco v. Board of Permit Appeals (1989) 207 Cal.App.3d 1099, 1105.)

We must determine whether the Los Angeles Municipal Code limits the City Council's review of the Planning Commission's decision.   Whether we are interpreting a state statute or municipal code, we engage in the same analytical process.  (County of Madera v. Superior Court (1974) 39 Cal.App.3d 665, 668.)   Our task is to ascertain the intent of the legislative body so as to effectuate the purpose of the law.  (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.)   We look to the words of the Los Angeles Municipal Code, giving the language its usual and ordinary meaning.  (Ibid.) We find nothing in the language of the Los Angeles Municipal Code to support the company's argument.   The City Council properly exercised its review authority within the bounds of the City Charter and applicable code sections.

Los Angeles Municipal Code section 12.27, subdivision (P)(1) states:  “When considering an appeal from an Area Planning Commission decision granting or affirming the grant of a variance, the Council shall be subject to the same limitations regarding findings and conditions as are placed on the Area Planning Commission by this section.   The Council, by resolution, may affirm, reverse or modify, in whole or in part, the decision of the Area Planning Commission by a majority vote․”  The limitations regarding findings and conditions are set forth in subdivisions (D) and (E).   As noted, subdivision (D) of the Los Angeles Municipal Code refers to the five requirements to approve a variance.  (LAMC, § 12.27, subd.  (D).)  Subdivision (E) refers to “[c]onditions of [a]pproval.” 4

When considering an appeal from the Planning Commission's decision, the scope of the City Council's review is not limited under the Municipal Code. But, if the City Council affirms or modifies the approval of a variance, it must make the appropriate findings, supported by substantial evidence, that all five requirements have been established under subdivision (D) of section 12.27.

The company's argument for a different standard of review arises from the confusion between the substantive findings necessary to approve a variance and “written findings” applicable to the scope of review before the Planning Commission when reversing or modifying an order of the zoning administrator.   (LAMC, § 12.27, subd.  (L).)  Section 12.27, subdivision (L) states the Planning Commission “may reverse or modify the ruling or decision appealed from only upon making written findings setting forth specifically the manner in which the action of the Zoning Administrator was in error or constituted an abuse of discretion.”  (LAMC, § 12.27, subd.  (L).)  There is no similar qualifying language in the Municipal Code addressing the City Council's review when reversing the Planning Commission's decision.  (LAMC, § 12.27, subd.   (P)(1).)   Thus, the City Council had the authority to review the Planning Commission's decision under a de novo standard of review.

2. The City Council's Findings To Support Its Decision

The company contends the City Council did not make the mandated formal findings to support its decision to grant the appeal.   This contention challenges the decision as an abuse of discretion.  (Harris v. Civil Service Com. (1998) 65 Cal.App.4th 1356, 1364.)   We conclude substantial evidence in the record shows this contention lacks merit.

As stated in Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, for purposes of Code of Civil Procedure section 1094.5, the City Council must “render findings sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the board's action.”  (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, at p. 514.)   These findings “bridge the analytic gap between the raw evidence and ultimate decision or order.”  (Id. at p. 515.)   The findings need not be stated with the precision required in judicial proceedings (id. at p. 517, fn. 16) and may properly incorporate matters by reference (Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 884).

The administrative record reflects the City Council voted to follow the PLUM Committee's recommendation and findings.   The findings address all the variance requirements and begin with the following:  “ ‘The [Area Planning] Commission made many other legal errors that require reversal:  it failed to correct the incomplete file circulated for public review, it made a faulty cumulative impact analysis, and it incorrectly concluded that the proposed motocross satisfies all five legally mandated requisites for a variance.’  “ Thereafter, for each of the five requirements, the PLUM Committee's report described the evidence upon which it based this finding.   These findings provide an analytical roadmap (as discussed below) of the City Council's decision to grant the appeal and reverse the Planning Commission's decision.   There was no abuse of discretion.

3. Sufficiency Of The Evidence To Support The City Council's Findings

The company contends the City Council's findings are not supported by substantial evidence.   We disagree.

The granting of a variance is a quasi-judicial administrative function.   (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at p. 517.)   The trial court examined the administrative record to determine whether substantial evidence in the administrative record supports the City Council's decision, and whether the City Council committed any errors of law.  (Code Civ. Proc., § 1094.5, subd. (c);  SP Star Enterprises, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 459, 468, 469;  Smith v. County of Los Angeles (1989) 211 Cal.App.3d 188, 199.)

Our review is identical to that of the trial court.  (SP Star Enterprises, Inc. v. City of Los Angeles, supra, 173 Cal.App.4th at p. 469;  Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334-335.)   The issue is whether the findings of the City Council are based on substantial evidence in light of the administrative record.  (SP Star Enterprises, Inc. v. City of Los Angeles, supra, at p. 469.)   Under the substantial evidence test, the City Council's findings are presumed to be supported by the administrative record, and the company has the burden to show there is no substantial evidence whatsoever to support the findings of the City Council.  (Ibid.;  Desmond v. Contra Costa, supra, at pp. 335-336.)   The company has not met its burden.

In order to approve a variance, all five requirements set forth in section 12.27, subdivision (D) (see fn. 2, ante ) of the Los Angeles Municipal Code must be satisfied.   Among these requirements are the strict application of the zoning ordinance would result in unnecessary hardship, special circumstances apply to the subject property, the variance is necessary for the preservation of a substantial property right, the variance will not be materially detrimental to the public welfare, and the granting of the variance will not adversely affect any element of the general plan.  (LAMC, § 12.27, subd.   (D).)  Failure to meet any one of these requirements must result in denial of the application for the zoning variance.  (Ibid.)

The City Council's findings (which adopted the PLUM Committee's report and findings) stated that not one of the five requirements to approve the company's application for a variance could be established.   Substantial evidence supports this decision.

a.  No Unnecessary Hardship

The City Council found that denying the application for a zoning variance to develop the Penrose site into a motocross track would not cause unnecessary hardship for the company.  (LAMC, § 12.27, subd.  (D)(1).)   An unnecessary hardship may arise when there is an “inability to use [the property] for [the] purposes of its existing zoning caused by the prevailing uses of surrounding property.”  (See Minney v. City of Azusa (1958) 164 Cal.App.2d 12, 31.)   Hardship solely of a financial or economic nature, making it more expensive to develop a proposed structure, does not satisfy the hardship requirement.   (Broadway, Laguna etc.   Assn. v. Board of Permit Appeals (1967) 66 Cal.2d 767, 775.)

The 1979 variance stated, upon completion of landfill activities, “the property [would] be restricted to a golf course use or other recreational use.”   If the golf course proved infeasible, the property was restricted to recreational use in a park-like setting, which was attractive and non-offensive to the neighboring properties.   The intent of the 1979 variance and the Penrose Agreement was to develop recreational facilities for the community that would cover all signs of the previous landfill.   In its 1997 clarification letter, the City (acting through the associate zoning administrator) concluded the 10 options listed in the company's master plan would satisfy the intent and purpose of the Penrose Agreement.   The 1997 clarification letter states:  “[T]his proposed multi-purpose use is clearly superior to the original City requirement which could simply have been met by either a 9-hole golf course which few, if any, of the local residents would have likely used for a few limited recreational uses.”

The planned motocross track and the surrounding neighbors' comments in opposition show the project did not satisfy the conditions in the 1979 variance and Penrose Agreement.   There is nothing in the record to suggest an inability to develop the site based upon the previously submitted master plan and in accordance with the Penrose Agreement.   Thus, denial of the variance would not cause an unnecessary hardship for the company.

b.  No Special Circumstances

The City Council found there were no special circumstances applicable to the property to justify departing from the Penrose Agreement and approving a variance for the motocross track.  (LAMC, § 12.27, subd.  (D)(2).)   The company entered into a voluntary agreement to develop the property and obtained approval of a master plan for recreational use.   There is no evidence in the record of special circumstances applicable to the property (other than the increased cost of developing a golf course) that caused the company to abandon the proposed master plan, which did not include a motocross track.

c. Not Necessary For The Preservation Of A Substantial Property Right

The City Council found approval of the variance was not necessary to preserve a substantial property right.  (LAMC, § 12.27, subd.  (D)(3).)

As the record establishes, the company had no substantial property right to the requested variance.   No other properties in the area with a corresponding zoning designation were granted a variance to operate a motocross facility.   As we have indicated, the unique features of the property and the voluntary agreements the company reached with the City distinguish the property from every other parcel zoned in the vicinity.   Those agreements do not adversely affect the company's property rights.

d. Detriment To The Public Welfare

The City Council found the motocross track was materially detrimental to the public welfare.  (LAMC, § 12.27, subd.  (D)(4).)   The record contains opposition from local residents ⁵ and LAUSD, which operates an elementary school near the proposed motocross track, along with petitions opposing the project.   The record also contains noise and environmental studies that the impact on the environment and health of the community was previously underestimated.

The company does not dispute the existence of this evidence, but points instead to the contrary findings of the zoning administrator, as well as to evidence in the record that supports the zoning administrator's findings.   The City Council, however, has authority to reverse the approval of a zoning variance (LAMC, § 12.27, subd.  (P)(1)), thus the zoning administrator's findings cannot disturb the City Council's decision.  (See City and County of San Francisco v. Board of Permit Appeals, supra, 207 Cal.App.3d at pp. 1104-1105.)

e. Inconsistent With The General Plan And The Penrose Agreement

The City Council found the variance would adversely affect an element of the General Plan. The property was not zoned for use as a motocross track, and any development of the property was subject to conditions in the company's previously granted variances and the Penrose Agreement.   Community concerns and opinions that the motocross track did not comply with the Penrose Agreement constitute substantial evidence to support this finding.

Thus, all five of the City Council's findings were supported by substantial evidence in the administrative record.   Each of these findings established the company did not meet the requirements for approval of a zoning variance;  any one is sufficient to support the City Council's decision on appeal to reverse the Planning Commission and to deny the application for a variance to develop a portion of the Penrose site as a motocross track.

4. CEQA Does Not Apply

The company contends the City Council could not disturb the zoning administrator's and Planning Commission's findings that the MND was sufficient.   Thus, the company argues the Planning Commission's decision constitutes project approval under certain provisions of CEQA. We disagree;  CEQA is not implicated.

CEQA has no application to an agency's decision to disapprove a project.   (Pub. Resources Code, § 21065.) ⁶  The only time the City Council would need to consider whether an environmental impact report or an MND is required, is if the City Council had voted to affirm the decision of the Planning Commission.  (See Pub. Resources Code, §§ 21080, subds. (a), (b)(5), 21065;  see also Main San Gabriel Basin Watermaster v. State Water Resources Control Bd. (1993) 12 Cal.App.4th 1371, 1379-1384.)   The City Council never reached the adequacy of the MND because it did not need to do so, as it granted the appeal and reversed the approval of the variance to construct and operate a motocross track.   The City Council did not violate CEQA by granting the appeal.

DISPOSITION

The judgment is affirmed.   Respondents and Real Parties In Interest are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Motocross is a closed-course motorcycle race over natural or simulated rough terrain.  (Merriam-Webster Dict., [as of October 21, 2010].).  FN1. Motocross is a closed-course motorcycle race over natural or simulated rough terrain.  (Merriam-Webster Dict., [as of October 21, 2010].)

FN2. The following findings must be made:  “1. that the strict application of the provisions of the zoning ordinance would result in practical difficulties or unnecessary hardships inconsistent with the general purposes and intent of the zoning regulations;  [¶] 2. that there are special circumstances applicable to the subject property such as size, shape, topography, location or surroundings that do not apply generally to other property in the same zone and vicinity;  [¶] 3. that the variance is necessary for the preservation and enjoyment of a substantial property right or use generally possessed by other property in the same zone and vicinity but which, because of the special circumstances and practical difficulties or unnecessary hardships, is denied to the property in question;  [¶] 4. that the granting of the variance will not be materially detrimental to the public welfare, or injurious to the property or improvements in the same zone or vicinity in which the property is located;  and [¶] 5. that the granting of the variance will not adversely affect any element of the General Plan.” (L.A.Mun.Code, § 12.27, subd.   (D) (LAMC);  L.A. City Charter, art.   V, § 562(c).)We take judicial notice of the provisions of the Los Angeles Municipal Code cited in this opinion.  (Evid.Code, §§ 452, subd. (b), 459.).  FN2. The following findings must be made:  “1. that the strict application of the provisions of the zoning ordinance would result in practical difficulties or unnecessary hardships inconsistent with the general purposes and intent of the zoning regulations;  [¶] 2. that there are special circumstances applicable to the subject property such as size, shape, topography, location or surroundings that do not apply generally to other property in the same zone and vicinity;  [¶] 3. that the variance is necessary for the preservation and enjoyment of a substantial property right or use generally possessed by other property in the same zone and vicinity but which, because of the special circumstances and practical difficulties or unnecessary hardships, is denied to the property in question;  [¶] 4. that the granting of the variance will not be materially detrimental to the public welfare, or injurious to the property or improvements in the same zone or vicinity in which the property is located;  and [¶] 5. that the granting of the variance will not adversely affect any element of the General Plan.” (L.A.Mun.Code, § 12.27, subd.   (D) (LAMC);  L.A. City Charter, art.   V, § 562(c).)We take judicial notice of the provisions of the Los Angeles Municipal Code cited in this opinion.  (Evid.Code, §§ 452, subd. (b), 459.)

FN3. As we shall discuss, post, CEQA is not applicable because the City denied the variance, thus there was no “project” within the meaning of CEQA. (Pub. Resources Code, §§ 21065, 21080, subds. (a), (b)(5).).  FN3. As we shall discuss, post, CEQA is not applicable because the City denied the variance, thus there was no “project” within the meaning of CEQA. (Pub. Resources Code, §§ 21065, 21080, subds. (a), (b)(5).)

FN4. Subdivision (E) of the Los Angeles Municipal Code section 12.27 states:  “Conditions of Approval.   In approving a variance, the Zoning Administrator may impose those conditions it deems necessary to remedy a disparity of privileges and that the Zoning Administrator finds are necessary to protect the public health, safety or welfare and assure compliance with the objectives of the General Plan and the purpose and intent of the zoning.”.  FN4. Subdivision (E) of the Los Angeles Municipal Code section 12.27 states:  “Conditions of Approval.   In approving a variance, the Zoning Administrator may impose those conditions it deems necessary to remedy a disparity of privileges and that the Zoning Administrator finds are necessary to protect the public health, safety or welfare and assure compliance with the objectives of the General Plan and the purpose and intent of the zoning.”

FN5. We grant real parties' motion to augment the record to include Volume 17 of the administrative record, which was part of the record in the trial court, and omitted from the designation of the clerk's transcript.   This volume of the administrative record contains letters in opposition to the motocross track.   The City previously lodged the entire administrative record..  FN5. We grant real parties' motion to augment the record to include Volume 17 of the administrative record, which was part of the record in the trial court, and omitted from the designation of the clerk's transcript.   This volume of the administrative record contains letters in opposition to the motocross track.   The City previously lodged the entire administrative record.

FN6. A CEQA project falls into three categories.   The categories are:  “(a) An activity directly undertaken by any public agency. [¶] (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [¶] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.”  (Pub. Resources Code, § 21065.).  FN6. A CEQA project falls into three categories.   The categories are:  “(a) An activity directly undertaken by any public agency. [¶] (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [¶] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.”  (Pub. Resources Code, § 21065.)

KLEIN, P. J. CROSKEY, J.