Filed 1/20/00 (sent by court 1/24/00)

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Lawrence J. O'Neill, Judge.

Walter W. Whelan for Defendant and Appellant Garreks, Inc.; Hilda Cantú Montoy, City Attorney (Fresno), Robert D. Gabriele, Assistant City Attorney and Anthony W. Cresap, Deputy City Attorney for Defendant and Appellant City of Fresno.

Robert J. Rosati for Plaintiff and Respondent.

-ooOoo-

A homeowners association challenged in court the approval of a car wash project proposed by a corporation, located in a shopping center bordered by residential neighborhoods. The homeowners association claimed the California Environmental Quality Act (CEQA) required the City of Fresno to prepare an environmental impact report (EIR) before approving the project. The trial court agreed and ordered an EIR prepared. Despite the pending lawsuit and the court’s order, the corporation continued with construction and completed the project—never obtaining an EIR. On appeal, the City of Fresno takes the position that an EIR is no longer required because the project is completed. Although the corporation does not explicitly adopt this position, it does so implicitly by arguing it is absurd to require an EIR because the project is completed.

The corporation apparently made a calculated business decision to go forward with the project in spite of protests by residential neighbors, and pending litigation. Now the corporation must live with the consequences of its financial choice. We affirm the trial court’s decision ordering an EIR be prepared. To the City of Fresno and the corporation we say: It is never too late.

On February 19, 1998, the Woodward Park Homeowners Association, Inc. (WPHA) filed a verified petition for writ of mandate against the City of Fresno (City), Garreks, Inc. (Garreks), and California Investment, Inc. (California Investment). It challenged the City’s approval of two independent car wash projects, one proposed by Garreks and one by California Investment. WPHA sought a writ ordering the City to require Garreks and California Investment to prepare EIRs on their projects. The parties answered and briefed the issues in the petition.

Pursuant to the court’s request, the parties waived oral argument and submitted the matter. On July 30, 1998, the court filed its decision. It denied the petition as to California Investment’s project, but granted with respect to Garreks’ project and ordered the City to prepare an EIR.

Garreks moved to vacate the decision. In the alternative, Garreks moved for a new trial. The court relieved WPHA from submitting opposition papers, and denied the motions without oral argument on the ground they were devoid of merit. Judgment was entered granting the peremptory writ of mandate in part and denying it in part. With respect to Garreks’ project, the City was directed to 1) address the architectural and aesthetic impacts of the project by a focused EIR; 2) void its adoption of the negative declaration; and 3) rescind its action approving the project. The judgment was stayed pending appeal.

Garreks timely filed its notice of appeal, and the City joined.

In August 1996, the Fresno City Council approved a 9.42-acre commercial center on the northeast corner of North Cedar and East Nees Avenues in Fresno, California, with the exception of a proposed service station, mini-mart and automatic car wash. Later, the neighboring homeowners and developers of the property filed suit, and both cases settled. In the developers’ action, the parties stipulated the Fresno City Council’s actions only resulted in the denial of a permit to build the car wash, not the service station or the mini-mart. It was further stipulated that Garreks could resubmit a conditional use permit application for the automatic car wash no sooner than August 27, 1997.

On August 27, 1997, Garreks applied for a conditional use permit to develop an automatic car wash with vacuum islands, on a .9-acre parcel of the commercial center in dispute (the project). The City’s initial study on the conditional use permit, dated September 24, 1997, provided:

"

On October 3, 1997, the City issued a mitigated negative declaration, finding the project would clearly not have a significant adverse effect on the environment. In an October 8, 1997, memorandum, the City’s development department staff stated:

Staff recommended approval of a conditional use permit application for the project, and on October 23, 1997, the director of the development department approved the application, subject to a number of conditions. Later, the City received 14 letters of appeal from the surrounding residential property owners protesting the director’s approval of the application and citing the following concerns: 1) less than 300 feet proximity between the project and their homes; 2) excessive noise generated by the project and its proposed hours of operation; 3)  architectural incompatibility of the service station, mini-mart and car wash with the rest of the shopping center, and its resulting impact on their homes; and 4) feasibility of architectural integration of the commercial center given that the 9.42-acre parcel has been subdivided for purposes of sale, lease or financing of the project.

At the December 3, 1997, Fresno City Planning Commission (planning commission) hearing, development department staff addressed the concerns of the neighboring property owners:

A number of homeowners testified at the hearing regarding their concerns. The planning commission directed Garreks to conduct a noise study of the project, and to submit it to them on January 7, 1998. In addition, the planning commission requested that development department staff provide direction regarding whether vacuum facilities are considered an integral part of an automatic car wash facility. The hearing was continued to January 7, 1998.

On December 29, 1997, Garreks submitted the noise study, conducted by Brooks Ransom Associates (structural and civil engineers), to the development department. Brooks Ransom investigated the actual noise impact of vacuum islands to adjacent residential property using data obtained from an existing site. Brooks Ransom concluded the project would have almost no effect on sound levels at the residential property line during peak and off-peak traffic conditions.

In the development department’s January 7, 1998, report to the planning commission, the development director determined that vacuum facilities are integral to an automatic car wash and should be subject to Fresno Municipal Code requirements. "That is, vacuum islands will have to be placed at least 300 feet from the nearest existing or planned residential district and the noise emitted from the vacuum motors as well as the car wash shall not exceed 60 dB/CNEL at the boundary between the C-1 shopping center and existing or planned residential uses."

At the January 7, 1998, planning commission hearing, development department staff stated:

Neighboring residents were again permitted to express their concerns about the project. The planning commission approved Garreks’ conditional use permit application, subject to a number of conditions. These included the construction of a five-foot masonry wall in the area of the vacuum islands and limited hours of operation (8 a.m. to 8 p.m.) of the vacuums.

The motion to hold a public hearing to review the planning commission’s action failed before the Fresno City Council. According to the City, the project was completed and operating prior to the trial court’s July 30, 1998, decision.

Both Garreks and the City contend the trial court erred in granting the peremptory writ of mandate because there was no substantial evidence the project might cause significant impact to the environment. Garreks also argues the judgment violates its equal protection rights and the court erred in ordering an EIR in lieu of less onerous remedies. The City further claims the case is moot because the project has already been constructed and is operating.

We begin by presenting an overview of the CEQA review process and the appropriate standard governing our review of the contentions made by the City and Garreks.

With CEQA, the Legislature sought to "[d]evelop and maintain a high-quality environment now and in the future, and take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state." (§ 21001, subd. (a).) The basic purposes of CEQA are to: 1) inform government decision-makers and the public about the potential environmental effects of proposed activities; 2) identify ways environmental damage can be avoided or significantly reduced; 3) prevent significant, avoidable environmental damage by requiring changes in projects through the use of alternatives or mitigation measures; and 4) disclose to the public the reasons for a project’s approval if the project has significant environmental effects. (State CEQA Guidelines, § 15002, subd. (a).)

CEQA establishes a three-step process for environmental evaluation. (Guidelines, § 15002, subd. (k).) In the first step, the lead agency determines whether the particular project is subject to CEQA. If the project is exempt, no further review is necessary, and the lead agency may prepare a notice of exemption. (Guidelines, §§ 15002, subd. (k)(1), 15062.) The project may be statutorily or categorically exempt. (Guidelines, § 15061, subd. (b); see also §§ 21080-21080.33, 21084, subd. (a); Guidelines, §§ 15260-15332, 15354.) In addition, the project may also be exempt if it is established with certainty that there is no possibility the project may have a significant effect on the environment. (Guidelines, § 15061, subd. (b)(3).)

If the project is not exempt, the lead agency takes the second step and conducts an initial study to determine whether the project may have a significant effect on the environment. (Guidelines, §§ 15002, subd. (k)(2), 15063.) If the initial study shows there is no substantial evidence the project may have a significant effect, the lead agency prepares a negative declaration to that effect. (§§ 21064, 21080, subd. (c); Guidelines, §§ 5002, subd. (k)(2), 15064, subd. (f)(3), 15070.)

If the initial study shows the project may have a significant effect on the environment, the lead agency takes the third step and prepares an EIR. (§§ 21080, subd. (d), 21100, 21151; Guidelines, §§ 15002, subd. (k)(3), 15064, subd. (f)(1).) The lead agency is required to prepare an EIR if it is presented with a fair argument that a project may have a significant effect on the environment. This is true even though the agency may also be presented with other substantial evidence that the project will not have a significant effect. (Guidelines, § 15064, subd. (f)(1); Laurel II, supra, 6 Cal.4th at p. 1123; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, not followed as dicta in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576.) Under the Guidelines, an EIR is required if there is substantial evidence that "any aspect of the project, either individually or cumulatively, may cause a significant effect on the environment .…" (Guidelines, § 15063, subd. (b)(1), emphasis added; see also Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 309.)

Significant effect on the environment is defined as "a substantial, or potentially substantial, adverse change in the environment." (§ 21068.) There is no set definition for the term "significant," although the significance of an impact varies with the project’s environmental setting. (Guidelines, § 15064, subd. (b)-(e).) The term significant "‘ … covers a spectrum ranging from "not trivial" through "appreciable" to "important" and even "momentous."’ [Citation.]" (No Oil, Inc., supra, 13 Cal. 3d at p. 83, fn. 16.) A project may have a significant effect on the environment if there is a reasonable possibility it will result in a significant effect. (Ibid.)

We discussed at length the standard of review of agency determinations under CEQA in Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, 192-193:

In Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, we further explained the standard when a challenge is brought to an agency’s determination that an EIR is not required:

With these principles in mind, we review the record to determine whether there is substantial evidence in support of a fair argument that the project may have a significant effect on the environment. However, we first dispose of the City’s claim that the case is moot.

The City remarkably takes the position that this case is moot because the project was constructed and operating prior to the court’s July 30, 1998, decision on WPHA’s petition. It contends environmental review now would not serve any purpose under CEQA. The City’s argument is not only against public policy, it is absurd.

A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief. (Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 391.) Courts have applied this rule to CEQA challenges, but not on the basis the City asserts here. (See, e.g., Environmental Coalition of Orange County, Inc. v. Local Agency Formation Com. (1980) 110 Cal.App.3d 164, 171-173 [appeal of denial of petition for writ of mandamus moot where plaintiffs did not name city as defendant and did not enjoin city’s proceeding with proposed project while mandamus action pending, since judgment cannot be rendered against nonparty to action]; Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, 378 [case moot where project involved replacement of trees and trees already cut down].)

This case does not present a situation where a ruling by this court can have no practical impact or not provide the parties relief. To the contrary, our ruling can afford WPHA effective relief. As recognized by WPHA, a decision upholding the court’s order directing the preparation of an EIR could result in modification of the project to mitigate adverse impacts or even removal of the project altogether.

In support of its contention that the case is moot, the City relies principally on Hixon, supra. In Hixon, the petitioners sought mandamus to compel a county to obtain an EIR in connection with street and sidewalk improvements that necessitated the removal and replacement of trees. The court held that because the trees had already been cut down, the trial court correctly determined that preparation of an EIR for that phase of the project would be futile. (Hixon, supra, 38 Cal.App.3d at p. 378.) The distinction between Hixon and this case is obvious. In Hixon, the trees were already cut down; thus the original trees could not be returned. They could only be replaced, which is what the county had already done. (Id. at p. 376.) Here, in contrast, the project can be modified, torn down, or eliminated to restore the property to its original condition.

The City claims "[i]t is pointless to require environmental review for a project which has already been developed, because it would not serve one of the principal purposes of CEQA"--that of informing government decision-makers and the public about the potential significant environmental effects of proposed activities. The City also notes that an EIR is not to be used for approved projects. What the City fails to recognize is that Garreks proceeded with construction and completion of the project after WPHA filed its mandamus petition. How can the City or Garreks now legitimately complain that compliance with the court’s order is unnecessary?

In addition, despite the trial court’s order mandating the preparation of an EIR, the City chose to delay preparation of the EIR and Garreks chose to operate the facility absent the EIR. It would hardly be sound public policy to allow a party to avoid CEQA by continuing with construction of a project in the face of litigation, delaying preparation of a court-ordered EIR pending appeal, and then arguing the case is moot because the project has been completed and is operating.

For the first time during oral argument, the City noted that the Fresno Municipal Code provisions relating to automatic car wash projects have been amended. Citing Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, the City argued that we should apply the new code provisions. With no reference to the record before us, the City then claimed that, under the new provisions, Garreks has achieved architectural integration and a fair argument can no longer be made that the project may cause a significant effect on the environment. We find Fairbank distinguishable and reject the City’s contention.

In Fairbank, the court recognized, as a general matter, amendments to the CEQA Guidelines should apply prospectively only. However, the court held, under the circumstances of that case, fairness and the need for finality militated in favor of retroactive application on appeal of regulations that provided a categorical exemption from the requirements of CEQA. The court noted the well-settled law in the land use context that, where no vested rights will be impaired, it is appropriate for an appellate court to apply the law in existence at the time of its decision rather than at the time an approval was issued. (Fairbank v. City of Mill Valley, supra, 75 Cal.App.4th at pp. 1256-1257, fn. 12.) We find a distinction in the case where a party to an action has amended its own municipal code provisions, which directly affects the party’s interest in the pending lawsuit. Otherwise, we would be laying a foundation for great abuse. We would be permitting a municipality to amend its own ordinances in order to potentially obtain a reversal of a judgment against it.

Garreks chose to continue with the project despite the risk that pending litigation could result in rescission of the City’s action approving it. Apparently the City and Garreks buy into the philosophy of the mythical captain of the Starship Enterprise, James T. Kirk, who said: "May fortune favor the foolish." We do not. Garreks’ decision to complete and operate the project, despite the pending litigation, in no way provides an exemption to CEQA.

Therefore, we find the case is not rendered moot.

Garreks and the City contend the court committed reversible error in finding there was substantial evidence that the project may cause a significant effect, architecturally or aesthetically, on the environment. We disagree.

The court made the following well-reasoned findings in its decision on WPHA’s petition for writ of mandate:

WPHA contends Garreks and the City have waived the substantial evidence issue based on their "defective" factual statements. Specifically, WPHA contends Garreks misstates facts in the record and both Garreks and the City rely on evidence outside the administrative record.

When an appellant asserts the absence of substantial evidence as a basis for reversal on appeal, the appellant is required to set forth fully and fairly all facts supporting the judgment. As a general rule, the failure to summarize evidence supporting the conclusion of the trier of fact in order to show the evidence is not substantial amounts to a waiver. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887-888; see also Cal. Rules of Court, rule 13.)

It is debatable whether Garreks and the City fully complied with this rule. Rather than indulge this debate, based on the importance of the issue to the parties, we decline to find they have waived their rights to challenge the court’s finding of substantial evidence. Instead, we address the merits of whether the project may have a significant effect on the environment.

As recognized by WPHA, "[i]n an administrative mandamus action, judicial review is limited to matters in the administrative record. Additional evidence is admissible only if it was not available at the time of the administrative hearing or was excluded improperly from the record .…" (Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 977; see also Western States Petroleum Assn., supra, 9 Cal.4th at p. 573, fn. 4 ["[I]t would never be proper to take judicial notice of evidence that (1) is absent from the administrative record, and (2) was not before the agency at the time it made its decision."]; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 624-625, fn. 9.)

In applying the substantial evidence standard, all reasonable doubts are resolved in favor of the administrative findings and decision. (Laurel Heights I, supra, 47 Cal.3d at p. 393.) The Guidelines define substantial evidence as "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (Guidelines, § 15384, subd. (a).) The determination of whether a project may have a significant effect on the environment should be based, to the extent possible, upon scientific and factual data. (Guidelines, § 15064, subd. (b).) Mere uncorroborated opinion or rumor does not constitute substantial evidence. (Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1348; Guidelines, § 15384, subd. (a).)

In arguing there is substantial evidence in the administrative record to support a determination the project may have a significant effect on the environment, WPHA relies on three principal contentions. They are: 1) the project is not located in a planned unified shopping center that is at least five acres in size, as required by the Fresno Municipal Code; 2) the project is less than 300 feet from existing residential districts, as required by the Fresno Municipal Code; and 3) the project is not architecturally compatible with the shopping center.

The Guidelines define the phrase significant effect on the environment as "a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance." (Guidelines, § 15382.) Appendix G of the Guidelines enumerated 26 impacts that normally constitute significant effects on the environment. Although Appendix G was repealed, effective October 26, 1998, it was applicable at the time of the City’s decision approving the project. We, therefore, rely on it here. (See, generally, 8 Witkin, Cal. Procedure, supra, Extraordinary Writs, § 317, p. 1122 [hearing on writ based solely on record of proceeding before administrative agency]; see also Woodland Hills Resident Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 931 [application of law in effect at time decision rendered]; Franchise Tax Board v. Superior Court (1985) 168 Cal.App.3d 970, 975 [statute not applied retroactively unless Legislature intended result].)

Appendix G provided: "A project will normally have a significant effect on the environment if it will: [¶] (a) Conflict with adopted environmental plans and goals of the community where it is located[.]" (See also Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 175.) In evaluating the adopted environmental plans and goals of the community, it is necessary to review applicable provisions of the Fresno Municipal Code related to the City’s zoning ordinance.

The purpose of the City’s zoning ordinance is to encourage the most appropriate use of land, conserve and stabilize the value of property, advance other public safety goals, and promote the public health, safety and general welfare. (F.M.C., § 12-101.) The Fresno Municipal Code defines an automatic car wash as "any occupancy that provides for automobile washing through a fully enclosed (when not in operation), low noise, and fully automated car wash facility which is located in, and architecturally integrated with, a planned unified neighboring shopping center." (F.M.C., § 12-105-C.)

A C-1 neighborhood shopping center district "is intended to serve as planned unified shopping centers. The stores are intended to fit into the residential pattern of development and create no architectural or traffic conflicts." (F.M.C., § 12-217.) Regulations adopted for C-1 districts "are intended to protect the residential environment and shall apply to all uses in the ‘C-1’ Neighborhood Shopping Center District." (F.M.C., § 12-217.) To that end, an automatic car wash in a C-1 district must meet the following criteria:

We begin with WPHA’s first contention--that there is substantial evidence in support of a fair argument that the project is not within a planned unified shopping center and, therefore, may have a significant environmental impact. It is undisputed in the administrative record that the entire 9.42-acre commercial center was parceled off into smaller pieces for purposes of sale, lease and financing. The project is clearly not located in a planned unified shopping center that is at least five acres in size as required by Fresno Municipal Code section 12-306-N(39). As is evident from the statements of City staff at the December 3, 1997, hearing, there could be no guarantee the project would fit into the residential pattern of development and create no architectural conflicts. City staff provided only feeble assurances that the shopping center would be integrated and unified:

The discussion on the integrated shopping center concept at the hearing is telling:

It is apparent from these comments that the uniformity of the shopping center, with the addition of Garreks’ project, could not be guaranteed, as the project was not within a planned unified shopping center as required by the Fresno Municipal Code. The weak assurances from City staff that it would do its best to integrate the shopping center cannot serve to defeat a fair argument, supported by testimony, that the project may have a significant environmental impact. (See Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1072 [under substantial evidence test for CEQA, court may not weigh evidence].)

Garreks argues the incremental environmental impact of the project related to architectural and aesthetic concerns is de minimis, given the presence of a presumably already disjointed overall shopping center. Garreks states: "Can anyone legitimately argue a few hundred more square feet of Chevron blue nestled between the gas station and the Jack in the Box restaurant significantly impacts the aesthetics or architectural symmetry of the shopping center?" Although Garreks may not be able to recognize it, WPHA can and does make a legitimate argument. The City violated its own municipal code and allowed the development of a disjointed shopping center incompatible with the surrounding area. This violation fails to establish credible evidence that an additional project will not have a significant environmental impact.

Garreks next argues that "just what constitutes an ‘integrated shopping center,’ as that term is used in [section] 12-306-N(39) of the Municipal Code, is unclear." It is true that the Fresno Municipal Code does not define a "unified shopping center." However, the intent of the Fresno Municipal Code is very clear: architectural integration in the shopping center and compatibility with the residential pattern of the development, with no architectural conflicts. (F.M.C., §§ 12-105-C, 12-217.) Garreks contends the 9.42-acre commercial center is integrated because the approved parcel map agreement and a recorded declaration of covenants, conditions and restrictions for the entire shopping center assures architectural integration. However, Garreks’ evidence is outside the administrative record and therefore not proper for our review.

Relying on Fresno Municipal Code section 12-407.5, Garreks further claims the division of the shopping center into separate parcels does not nullify the unified integrated nature of the overall shopping center. Section 12-407.5 provides, in pertinent part:

However, as recognized by WPHA, the administrative record contains no evidence in the form of a site plan review for the shopping center or the details of any conditional use permit approval that could have potentially guaranteed uniformity and integration. The City similarly argues that a planned shopping center may be unified under the Fresno Municipal Code, even if there are different owners of different legal lots. We do not disagree. Nevertheless, the City fails to cite to any evidence in the record to demonstrate that the shopping center was unified. Absent clear, undisputed evidence, the City’s contention cannot defeat a fair argument that the project may have a significant environmental impact, particularly given the City staff’s comments at the December 3, 1997, hearing.

We therefore find the administrative record presented substantial evidence supporting an argument that the project conflicts with adopted environmental plans and community goals and, as a result, may have a significant adverse environmental impact. We need not address WPHA’s other two contentions of significant environmental impact.

Garreks maintains its equal protection rights under the United States and California Constitutions were violated when the court denied WPHA’s petition with respect to California Investment’s project, but granted with respect to its project. Garreks’ equal protection argument is groundless.

Absolute equality is not required by the equal protection clause. Equal protection requires that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. (In re Antazo (1970) 3 Cal.3d 100, 110; People v. King (1992) 3 Cal.App.4th 882, 885-886.) Thus, in order to prevail on its equal protection claim, Garreks must show it is similarly situated to California Investment.

Here, Garreks has wholly failed to show it is similarly situated to California Investment. The only similarity we find with respect to Garreks and California Investment is that WPHA filed a petition for writ of mandate against both of them, challenging the City’s approval of their car wash projects. Based on the record, it is obvious the two entities have different projects, with different characteristics, features and locations. Garreks makes only a perfunctory argument that its equal protection rights were violated, with no citation to the record to show it is similarly situated to California Investment. Garreks has the burden of showing reversible error, and it has failed to do so. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 626 [court only required to discuss arguments sufficiently developed to be cognizable].)

Garreks implores us, if we conclude the approval of its project violated CEQA, to adopt "a more reasonable remedy," in light of current circumstances. Similarly, the City also urges us to remand to the planning commission to give it the first opportunity to evaluate the project, as constructed. WPHA contends the issue has been waived because it was not raised in the trial court and, in any event, lacks merit. We agree with WPHA on both points.

An appellate court will generally not consider erroneous rulings in connection with relief sought or defenses asserted, where the issue could have been, but was not, raised in the trial court. (See Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143 [to allow issue to be raised on appeal, when not presented in trial court, would undermine orderly procedure on administrative mandamus]; 9 Witkin, Cal. Procedure, supra, Appeal, §§ 394, 399, pp. 444-446, 451-453.)

In addition, the theory of trial principle precludes a party from asserting a new defense for the first time on appeal. "Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can challenge this theory for purposes of review on appeal." (9 Witkin, Cal. Procedure, supra, Appeal, § 399, pp. 451-452; see also Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.) "‘A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing party.’" (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29.) It is, however, appropriate to address new theories "when the issue presented involves purely a legal question, on an uncontroverted record and requires no factual determinations .…" (Mattco Forge, supra, 52 Cal.App.4th at p. 847.)

It is undisputed that the issue of less onerous remedies was not raised in the trial court prior to the July 30, 1998, decision on the petition. Garreks admits the issue was raised after that decision, prior to entry of judgment. In fact, it was raised in Garreks’ points and authorities in support of its motion to vacate the decision or, in the alternative, for a new trial. However, Garreks provides no explanation regarding why the issue was not raised at trial. Moreover, the issue obviously does not involve solely a legal question on an uncontroverted record. Had it been timely raised, WPHA and the court could have properly addressed it.

Accordingly, we conclude Garreks and the City waived the issue.

In any event, we find the argument by Garreks and the City for a less onerous remedy to be without merit. Garreks claims:

Garreks cites to no evidence in the record to support such a bald assertion. WPHA, no doubt, would disagree with the claim. The case relied upon by Garreks, Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, is distinguishable. In Gentry, the trial court denied the plaintiff’s petition for writ of mandate challenging the city’s approval of a residential development. The appellate court reversed with directions to issue a writ of mandate, including a mandate that the city void its adoption of the negative declaration and its approval of the project. The court reminded the trial court that it retained jurisdiction over the public agency’s proceedings pursuant to section 21168.9, subdivision (b). (Gentry, supra, 36 Cal.App.4th at p. 1423.) The court then stated: "Nothing in this opinion should be taken to mean that the City must prepare an EIR for the [p]roject." (Gentry, supra, 36 Cal.App.4th at p. 1424.) Here, by contrast, the trial court already determined an EIR is required for the project under CEQA.

The City argues the planning commission should be given the first opportunity to evaluate the project "as-constructed" in order to preserve judicial and city resources. The City then states as an almost foregone conclusion that it will establish, on the record at a public hearing, that the project "definitely does not operate as architecturally incompatible with its surroundings." The City boldly asserts that the planning commission "believes that its reliance on the photographs, elevations, permit conditions, and other verbal and written testimony at the former public hearings on the [project] was reasonable, and can prove it once again." The City cites no authority for its position, and we reject it outright. (See San Joaquin Raptor, supra, 42 Cal.App.4th at p. 626.)

As a result, Garreks and the City have both failed to show error in the judgment.

The judgment is affirmed with costs awarded to WPHA.

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WE CONCUR: WISEMAN, J.

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DIBIASO, Acting P.J.

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VARTABEDIAN, J.