Archives: March 2023

SECOND DISTRICT UPHOLDS CITY OF LOS ANGELES’ RELIANCE ON INFILL CEQA EXEMPTION FOR APPROVAL OF ELDERCARE FACILITY, REJECTS LOCAL ZONING AND COASTAL ACT CLAIMS

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In Pacific Palisades Residents Association, Inc. v. City of Los Angeles (2023) 88 Cal.App.5th 1338, the Second District Court of Appeal denied a neighborhood group’s challenge to a proposed eldercare facility under local zoning laws, the California Environmental Quality Act (CEQA), and the California Coastal Act.

Background

The project applicant proposed constructing an eldercare facility on a vacant one-acre lot surrounded by both residential and commercial uses in Pacific Palisades. The lot, located about two and a half miles from the coast, within the coastal zone, had been zoned for commercial use since 1978 and, at the time of the lawsuit, consisted of bare flat dirt behind a chain link fence. The proposed facility included 82 residential rooms and a public bistro housed in a building that would be one story higher than the tallest nearby structure.

The City of Los Angeles undertook an extensive review process, which consisted of multiple public hearings and opportunities for public comment. The City’s Zoning Administrator, Planning Commission, Planning and Land Use Management Committee, and City Council all concluded that the project complied with the zoning code and was exempt from CEQA pursuant to the Class 32 exemption for infill development. The City Council issued a Coastal Development Permit and approved the project.

A group of neighbors acting as the Pacific Palisades Residents Association filed a petition for writ of mandate against the City and the Coastal Commission, challenging the project approval under the City’s zoning code, the Coastal Act, and CEQA.

The trial court denied the petition. Petitioner appealed.

Court of Appeal

Los Angeles Zoning Code

The court denied Petitioner’s claims under the City’s zoning code. Petitioner argued that the facility was larger than what was permitted under the code, but the court explained that the “plain English interpretation of the zoning code” foreclosed any argument that the facility was not permitted on the lot.

Request for Judicial Notice

In its arguments arising under the zoning code, Petitioner relied, in part, on extra-record evidence that was not presented to the trial court. Petitioner sought judicial notice of the additional evidence on two grounds, both of which were rejected by the court. First, Petitioner argued that the evidence was admissible because the City had raised an “incorrect” interpretation of its zoning code at trial, requiring additional research by appellant. The court disagreed, because “the neighbors’ time to research this trial issue was before or during trial”; Petitioner could not introduce the evidence for the first time on appeal. Second, Petitioner argued that extra-record evidence was admissible to resolve a future issue to avoid the need for a separate appeal of post-judgment matters. The court, however, declined this “unprecedented invitation to attempt to moot a future appeal in the name of judicial economy.”

CEQA

With respect to CEQA, Petitioner argued that the Class 32 exemption did not apply because the proposed project was not architecturally compatible with the neighborhood and would impact views. The court explained that these “aesthetic judgments” are subjective findings that are appropriately reviewed for substantial evidence. As a result, the court was required to defer to the City’s aesthetic determinations so long as a reasonable person could have reached the same conclusions. Here, the court held, the City’s decision that the project was compatible with local plans was “eminently reasonable” because the neighborhood had been a subdivision of Los Angeles for decades and the area was not undeveloped seashores or wilderness. The court therefore upheld the City’s application of the Class 32 CEQA exemption.

Coastal Act

The City issued a Coastal Development Permit pursuant to section 30600, subdivision (b) of the Coastal Act. Petitioner filed an appeal with the Coastal Commission, which determined that the appeal did not raise a “substantial issue.” Again applying a deferential standard of review, the court explained that it is for the Commission, not the court, to weigh conflicting evidence. Petitioner offered evidence in support of its complaints about the project, but it failed to show that the Commission’s decision was unsupported by substantial evidence. Thus, the court rejected Petitioner’s challenge.

– Elizabeth Pollock

SECOND DISTRICT UPHOLDS CLASS 1 EXEMPTION FOR PROJECT TO EXPAND SINGLE-FAMILY HOME

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In Arcadians for Environmental Preservation v. City of Arcadia (2023) 88 Cal.App.5th 418, the Second District Court of Appeal upheld a finding by the City of Arcadia that a project to expand and add a second story to a single-family home was categorically exempt from CEQA. In doing so, the court concluded that petitioner failed to exhaust its administrative remedies regarding the scope of the exemption and failed to demonstrate that the city improperly relied on the exemption.

Background

Over a nearly two-year period beginning in June 2018, project applicant submitted, revised, and re-submitted an application to her homeowners’ association (HOA), seeking to expand the first floor of her single-family home and add a second floor. In April 2020, after the HOA’s architectural review board twice rejected her project, the applicant appealed the rejection to the city’s planning commission.

In May 2020, after a noticed hearing, the planning commission voted to conditionally approve the project, so long as various proposed changes were incorporated. The planning commission found that the project qualified for a Class 1 categorical exemption for modifications to existing structures.

The applicant’s neighbor appealed the planning commission’s approval to the city council. The city council upheld the planning commission’s decision.

The neighbor then formed the petitioner organization and filed a petition for writ of mandate challenging the city’s compliance with CEQA. Shortly thereafter, the city filed a Notice of Exemption for the project. The trial court denied the petition. Petitioner appealed.

Court of Appeal’s Decision

The court held that (1) petitioner failed to exhaust its administrative remedies on the issue of whether the project was within the scope of the Class 1 exemption, (2) the city did not abuse its discretion by impliedly determining that no exceptions to the categorical exemption applied, and (3) petitioner failed to demonstrate that the cumulative impacts exception precluded the city’s reliance on the Class 1 exemption.

Failure to Adequately Exhaust

Petitioner argued that the city erred in determining the Class 1 exemption applied and cited the neighbor’s comments during his administrative appeal as support that petitioner had adequately exhausted on this issue. The court disagreed, reasoning that the neighbor (or anyone else) failed to articulate why the Class 1 exemption was inapplicable. Instead, the court noted that the neighbor made only “general references to potential environmental impacts” that did not fairly apprise the city of petitioner’s specific objection that the exemption did not apply.

The court rejected petitioner’s argument that its member had impliedly objected to the city’s exemption finding by requesting an EIR. The court conceded that a request for an EIR suggests a belief that no exemption applies but explained that such a request nevertheless does not adequately notify the agency about the substance of the challenge.

The court acknowledged that CEQA’s exhaustion requirement may be excused if the agency provides no opportunity for public comment or fails to give notice; however, it concluded that petitioner’s failure to exhaust was not excused in this case. Although the city did not consistently identify the specific subdivision of the Class 1 exemption that it relied on, the court concluded that this discrepancy was immaterial.

Exceptions to the Exemption

The court next rejected petitioner’s argument that the city failed to proceed in a manner required by law by failing to expressly consider whether an exception precluded the application of the Class 1 exemption. The court explained that the city’s determination that the Class 1 exemption applied necessarily included an implied finding that no exception precluded its application. The court reasoned that, while the city could not ignore contrary record evidence when making its finding, the finding did not need to be express.

After noting that there was “some question” whether petitioner’s comments during the administrative appeal preserved an argument that the cumulative impacts exception precluded the application of the Class 1 exemption, the court concluded that, regardless, that the argument failed on its merits.

The court concluded that petitioner’s general reference to “cumulative environmental effects caused by multiple large-scale projects,” along with identification of various nearby projects, did not amount to evidence of actual impacts that would result from the project and other nearby projects. The court rejected petitioner’s evidence that the cumulative impacts exception applied as “pure speculation” that could not, without more, preclude application of the Class 1 exemption.

Louisa Rogers

FIRST DISTRICT HOLDS EIR FOR UC BERKELEY’S LONG RANGE DEVELOPMENT PLAN AND STUDENT HOUSING PROJECT INADEQUATE

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In Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, the First District Court of Appeal found the EIR for the UC Berkeley long range development plan (LRDP) and a student housing project inadequate. While the court rejected most of the petitioners’ claims, it held that the EIR failed to consider alternative locations for the housing project, and it did not analyze potential noise impacts caused by students in residential neighborhoods near campus.

Background

In 2021, UC Berkeley adopted the LRDP to guide the university’s development decisions through the 2036-2037 academic year. The LRDP estimated future enrollment levels for planning purposes, but did not establish any enrollment levels. In part, the LRDP provides a strategy to increase housing in response to both a decades-long housing crisis in the region and a projected future increase in the campus population.

Consistent with the LRDP, the UC Regents began planning two student housing projects. One of those projects is located at People’s Park, a historically significant landmark associated with social and political activism in Berkeley. People’s Park is now occasionally used as a venue for special events, but is predominantly used “by transient and unhoused people in multiple encampments” and “is afflicted with crime.”

The Regents certified a hybrid EIR including a program-level review of the approval and implementation of the LRDP as well as a project-level review of the two housing projects.

Petitioners Make UC a Good Neighbor and The People’s Park Historic District Advocacy Group filed a petition for writ of mandate alleging the EIR violated CEQA. The trial court denied the petition. Petitioners appealed.

Court of Appeal’s Decision

The court rejected petitioners’ arguments that (1) the EIR’s analysis of alternatives to the LRDP was insufficient, (2) the EIR improperly restricted the LRDP’s geographical scope to the campus, and (3) the EIR’s treatment of impacts related to population growth and displacement of existing residents was flawed. However, the court agreed with petitioners that the EIR’s failure to consider alternative locations for the People’s Park housing project was not adequately justified. Additionally, the court concluded that the EIR did not adequately consider potential noise impacts from student parties on nearby residential neighborhoods.

LRDP Alternatives

The court concluded that the Regents did not violate CEQA by omitting an alternative to the LRDP that would limit student enrollment. The court explained that, because the complicated process for determining enrollment levels is separate from the LRDP process, any alternative requiring a cap in future enrollment levels would change the nature and scope of the plan. Given the constrained purpose of the LRDP to “guide future development regardless of the actual amount of future enrollment,” the EIR did not need to include a capped enrollment alternative.

Scope of LRDP

The court also rejected petitioners’ argument that the Regents improperly segmented the LRDP by focusing only on the campus and neighboring properties and excluding more distant locations. While petitioners argued that the LRDP arbitrarily omitted more remote properties, the court reasoned that it was “perfectly rational” for the Regents to focus primarily on the campus and adjacent properties in the LRDP and develop separate plans for more distant locations.

Population Growth and Displacement

Rejecting a third argument by petitioners, the court concluded that the EIR sufficiently addressed impacts from population growth and displacement of existing residents. The EIR found that the LRDP would induce unplanned population growth, but concluded that this impact could be mitigated to a less-than-significant level by ensuring that the Regents provide local and regional planning entities with annual information about university-driven population growth. Despite petitioners’ assertion otherwise, the court declined to assume that these planning entities would fail to plan for the population growth projected in the LRDP.

Additionally, the court rejected petitioners’ argument that the EIR’s treatment of displacement impacts was inadequate. The court concluded that the EIR properly analyzed these impacts and that petitioners failed to produce sufficient evidence to demonstrate that displacement caused by the project would exacerbate homelessness and in turn lead to environmental impacts.

Site Alternatives to People’s Park

While the court found that the EIR sufficiently analyzed alternatives to the LRDP, it agreed with petitioners that the EIR failed to consider a reasonable range of alternative locations for the housing development at People’s Park. The EIR determined that the housing project would have a significant impact on historical resources, due to the demolition of People’s Park and construction of new housing that would be incompatible with other nearby historical resources. Nevertheless, the EIR did not contain an in-depth analysis of any alternative locations for the housing project.

The court concluded that the EIR’s reasons for declining to consider alternatives were insufficient. The EIR explained that an alternative location might reduce the amount of new housing or require the university to acquire new properties, and that many potential alternative sites were smaller than People’s Park or were close to historical resources. According to the court, these reasons were vague and unequivocal, and did not demonstrate that no feasible alternatives existed.

The Regents argued that developing another site would fail to meet one of the project’s primary objectives—to revitalize the People’s Park site—and the record demonstrated that this was one of the project’s main purposes. The court, however, noted that the cited objective referred generally to “a UC Berkeley property” and not to People’s Park, specifically. The court also determined that the Regent’s arguments for rejecting other locations, even if potentially valid, were not reflected in the EIR.  Similarly, the court concluded that the EIR did not support the Regents’ argument that all of the proposed housing sites would need to be developed to achieve the EIR’s objectives. Moreover, observing that these explanations differed from those in the EIR, the court concluded that the Regents “hid the ball” and failed to adequately inform the public about the project.

Noise impacts

Finally, the court held that the EIR was deficient because it did not analyze potential noise impacts from student parties. In doing so, it determined that substantial evidence in the record supported a fair argument that the LRDP and the housing projects might result in a significant noise impact.

The court acknowledged that “stereotypes, prejudice, and biased assumptions about people served by a CEQA project” cannot constitute substantial evidence for a CEQA claim; however, it rejected the Regents’ argument that concerns about noise impacts from student parties relied merely on improper stereotypes about “loud and unruly drunk college students.”

The court explained that the record revealed noise from student parties to be “a longstanding problem” in the residential neighborhoods near UC Berkeley’s campus. Among other things, the City of Berkeley had previously declared such parties to be a public nuisance and restricted high-density student housing in private homes, neighborhood groups pointed to hundreds of noise citations related to student parties, and the university itself had collaborated with various community groups to address complaints about noisy parties. Given the evidence demonstrating that student party noise was already a problem, the court concluded that there was a reasonable possibility that “adding thousands more students to these same residential neighborhoods would make the problem worse.”

Louisa Rogers