SECOND DISTRICT HOLDS NOISE FROM ROOFTOP DECKS IS NOT A SIGNIFICANT IMPACT PRECLUDING USE OF THE CLASS 32 EXEMPTION FOR MULTIFAMILY RESIDENTIAL PROJECT, BUT CITY ERRED BY FAILING TO EVALUATE THE PROJECT’S CONSISTENCY WITH THE APPLICABLE DEVELOPMENT PLAN

In West Adams Heritage Association v. City of Los Angeles (2024) __ Cal.App.5th __, the Second District Court of Appeal considered challenges to a determination by the City of Los Angeles that a proposed multifamily residential development was categorically exempt from CEQA under the Class 32 exemption for urban in-fill development projects. In the published portion of its opinion, the court held that (1) rooftop noise generated by the Project was not a significant environmental impact precluding the City from relying on the Class 32 exemption, but (2) the City improperly relied on the Class 32 exemption without first finding that the Project was consistent with the applicable redevelopment plan.

Background

Project approval and administrative appeals

The Project applicants proposed to demolish an existing parking lot and two-story building on a 2.8-acre lot and replace them with a seven-building, 102-unit apartment complex with outdoor amenity spaces on the building rooftops. The Project site is less than a mile from the University of Southern California campus and is surrounded by residential, commercial, and educational buildings.

In May 2019, a City zoning administrator approved a conditional use permit and a density bonus for the Project. The zoning administrator also issued a determination letter finding that the Class 32 exemption applied to the Project and that no exceptions to the exemption applied. At the same time, however, the zoning administrator denied a site plan review, concluding that the original Project proposal was not compatible with the surrounding uses due to its size and potential aesthetic, architectural, and noise issues. The Project applicants submitted a revised Project proposal that resolved the zoning administrator’s concerns, and the City Planning Commission overturned the site plan review denial.

Meanwhile, a Project opponent appealed the zoning administrator’s Project approvals and the determination that the Project was categorically exempt from CEQA to the Planning Commission. The Planning Commission denied the appeal in October 2019, and the Project opponent appealed to the City Council.

In November 2019, while that appeal was pending, the City Council passed an ordinance that, among other things, expressly incorporated the land use and development regulations of the local Exposition/University Park Redevelopment Plan (Redevelopment Plan) into the zoning requirements applicable to the Project site (Ordinance 186325). Ordinance 186325 provides that, to the extent the regulations in the Redevelopment Plan (which was adopted in 1966 and last updated in 1989) conflict with the City’s zoning laws, the Redevelopment Plan generally controls.

In December 2019, the Planning Commission issued a corrected letter of determination imposing new conditions of approval on the Project. Among other things, those conditions effectively required a determination that the Project was consistent with the Redevelopment Plan before the City would issue a building permit for the Project.

The City Council denied the Project opponent’s second administrative appeal in February 2020.

Litigation history

Petitioners West Adams Heritage Association and Adams Severance Coalition filed a petition for writ of mandate alleging that the City improperly found the Project to be categorically exempt from CEQA. The trial court denied the petition and Petitioners appealed. In an unpublished opinion filed in August 2023, the Second District reversed, finding that the Project’s potential noise impacts rendered the Class 32 exemption inapplicable.

In September 2023, the Legislature adopted Assembly Bill (AB) 1307. AB 1307 amended CEQA to provide that, for residential projects, “the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.”

The Supreme Court granted review of the Second District’s original decision in November 2023. In July 2024, shortly after issuing its decision in Make UC a Good Neighbor v. Regents of University of California (2024) 16 Cal.5th 43 (MUCAGN II), the Supreme Court transferred the case back to the Second District with instructions to vacate its August 2023 decision and reconsider the matter in light of AB 1307 and MUCAGN II.

Court of Appeal’s Decision

Noise impacts

The Second District held that its original decision could no longer stand after AB 1307 and MUCAGN II. The court explained that under those authorities, any effects of noise from the Project’s rooftop spaces on neighboring uses could not be significant impacts for purposes of CEQA. Relying on the plain language of AB 1307 and MUCAGN II, as well as the legislative history and intent of AB 1307, the court rejected Petitioners’ arguments that the Project was distinguishable from the project at issue in MUCAGN II due to its proposed “rooftop decks that could have amplified music” and the fact that it was proposed by a private developer instead of a university.

The court also rejected Petitioners’ argument that AB 1307 does not apply to CEQA exemptions. The court pointed out that the statutory language expressly applies to CEQA generally and is not limited to any particular subset of CEQA’s provisions. Additionally, while the court acknowledged that AB 1307 did not amend the Class 32 exemption—which requires that covered projects “would not result in any significant effects relating to … noise”—the court explained that AB 1307 conclusively established that certain types of noise could not “result in any significant effects” that would render a residential project ineligible for the Class 32 exemption. Similarly, the court reasoned that noise generated by Project occupants was not a significant impact for purposes of applying the “unusual circumstances” exception to the Class 32 exemption.

Redevelopment Plan consistency

The court nevertheless held that the City improperly relied on the Class 32 exemption—which also requires covered projects to be consistent with the applicable zoning—without first evaluating the Project’s consistency with the Redevelopment Plan. The court explained that under Ordinance 186325, the Redevelopment Plan was part of the applicable zoning with which the Project was required to be consistent to qualify for the Class 32 exemption.

The City and the Project applicants (together, Respondents) argued that Ordinance 186325, which was enacted after the City first approved the Class 32 exemption, did not apply to the Project approvals, but the court disagreed. The court explained that the new law applied retroactively to the Project because (1) MUCAGN II instructed courts to apply current laws in mandamus proceedings, (2) the Project approvals were not final when Ordinance 186325 was passed, as an appeal to the City Council was still pending, (3) the Project applicants had not yet obtained a building permit or other entitlement that might confer a vested right to complete the Project, and (4) Respondents did not cite any local law otherwise precluding the application of new zoning laws to the pending Project approvals.

The court also rejected Respondents’ argument that the City adequately addressed Redevelopment Plan consistency by effectively requiring the Project applicant to obtain a consistency determination before the City would issue a building permit. Respondents cited that requirement as substantial evidence supporting the City’s reliance on the Class 32 exemption; however, the court explained that no such evidence could exist absent an actual determination by the City.

Notably, in response to Petitioners’ argument that the Project’s proposed density was already inconsistent with the Redevelopment Plan, the court clarified that the Redevelopment Plan’s density provisions did not apply to the Project. The court explained that, under the current state density bonus law, density bonuses are calculated using the “greatest number of units allowed under the zoning ordinance, specific plan, or land use element of the general plan” at the time the Project application was submitted. But as the court pointed out, regardless of whether or not the Redevelopment Plan’s density provisions applied when the Project application was submitted, the Redevelopment Plan sets a lower maximum density for the Project site than the City’s generally applicable zoning laws; thus, the court concluded that the City properly calculated the density bonus using the latter. Finally, the court noted that, to the extent the Redevelopment Plan imposes conditions on density bonuses beyond those required under the state density bonus law, state law preempts the Redevelopment Plan.

– Louisa I. Rogers