It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency’s determination. Review is de novo, with a preference for resolving doubts in favor of environmental review. (Architectural Heritage Assn., supra, 122 Cal.App.4th at p. 1110; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 617-618 (San Joaquin Raptor); Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 151 (Stanislaus Audubon Society); Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602-1603 (Quail).)
Although, it's a question of fact, not fantasy, whether a 650 square foot convenience store exists in a parallel dimension adjacent to the Emerald Gas Station site, as the City Traffic Engineer seems to think. Does this look like a 7-Eleven to you?
It's also a question of whether City Planning Commission Chairman Barry Schultz was suffering from a post-lunch slump when he seemed to forget that the reason for the hearing and the vote he was about to make was that the Kensington Terrace project was in a Process 4 due to the request for a height variance in the CN-1-3 zone. How he can say that the project is consistent with the zoning, we'll never know:
“Let me make a few comments. This has been, and is, as I continue to talk, a difficult decision for me to make and I’ll tell you why, You know, I spend a significant part of my time here in San Diego in the Mid-City area, City Heights, I spend a lot of time in Kensington. I spend a lot of time now in our urban neighborhoods and just recently spent time traveling through North Park, Kensington, all of these things and really taking a look and saying you, you know, there is the issue of neighborhood character and what do you like and what makes these neighborhoods different, and that’s what’s troubling to me because when I look at Kensington and specifically this portion of Adams Avenue, what I like about it is the small scale. It seems to be pedestrian friendly. It seems to be small scale. It’s almost kind of a little backyard if you will.
“And if I think about it from that standpoint this project doesn’t fit. It just does not fit that sense that I have about that part of the neighborhood. I tried to figure out, well, okay, I can’t just have a feeling. I have got to try to articulate what it is that really bothers me. At first it was three stories. And I think quite frankly it is three stories. It’s the mass of the three stories begins to change that character. Then I started to think about what are the impacts of that and the impact – I’m having a hard time believing that the project won’t bring in a tremendous amount of traffic. That will change the character of that community. It’s just will. … Having said that, I have to respect the process here. I mean, this developer has done everything right… I mean, everything you have laid out there is the exactly the right thing to do. Clearly you have done everything. You’ve stepped back and done all these things.
“Now, my heart tells me that it would be a great project on El Cajon Boulevard. That’s where we want to create our village. That’s where we want to have our transit corridor, all of that thing. Everything that you’re doing would be a perfect fit there.
“So, where do the scales tip for me? Well, the scale tips back to the big issue which is, you’re building a project consistent with the development regulations and the zoning that apply to that corridor and the way the zoning is today allows you to do what you want to do. And it allows everybody along there to do exactly what you’re doing and why we did that, I don’t know. It was done before my time.“The reality is, that’s the play book. And, based on the FAR, based on the density, this is the kind of project that that zoning encourages… I think I have to somewhat reluctantly support the motion because I think all the work, all of the things that you have done have been the right thing and the development regulations which are supposed to implement our vision for neighborhoods, this is the vision for it. This is what those regulations say. That’s what the community plan says. At the end of the day, I think the scales tip in that favor.” - Barry Schultz, Chairman, City of San Diego Planning Commission, November 15, 2007