Author Archives: Louisa Rogers

First District Court of Appeal Upholds University of California’s EIR for Development at UC San Francisco’s Parnassus Heights Campus

In Yerba Buena Neighborhood Consortium, LLC v. Regents of the University of California (2023) 95 Cal.App.5th 779, the First District Court of Appeal affirmed the trial court’s judgment upholding the University of California Regents’ EIR for the Comprehensive Parnassus Heights Plan (Plan) against multiple CEQA challenges.

The Plan sparked neighborhood opposition because it calls for substantially more intensive development at the Parnassus Heights campus than what was previously envisioned in the Regents’ recent long-range development plan. Central to the Plan is the construction of two new facilities—a new large hospital and an eight-story research and academic building. To make room for these buildings, the Plan would require demolition of historic structures, including a historic hospital building. The extensive redevelopment aims to maintain UC San Francisco’s reputation as a top-tier medical, research, and educational institution.

In the published portion of the Opinion, the Court of Appeal held: (i) CEQA did not require the EIR to include an alternative off-campus location for the proposed new hospital; (ii) although the Regents’ EIR violated CEQA by not analyzing impacts on public transit, this error was not prejudicial;  (iii) substantial evidence supported the Regents’ conclusion that avoiding demolition of several historic structures is infeasible; (iv) the Regents were not required to treat visual impacts as environmental impacts under CEQA; and (v) the EIR’s mitigation measures for wind impacts were not improperly deferred.

Alternatives Analysis

The petitioners argued that the EIR failed to include a reasonable range of alternatives to the project because it did not include an alternative that would locate the new hospital off campus. The court rejected this contention, explaining that the range of alternatives already included in the EIR represented a reasonable range. The Regents properly rejected an off-campus location for the new hospital because substantial evidence supported the Regents’ conclusion that maintaining the new hospital in close proximity to the Parnassus campus was crucial to meeting the project’s basic objectives to promote clinical, research, and educational collaboration.

Impacts on Public Transit

The EIR did not evaluate impacts on transit ridership, capacity, and delays based on the Regents’ mistaken belief that such impacts are outside the scope of CEQA. The EIR did, however, include an appendix that provided information on transit “for informational purposes.” The court held that the Regents were legally mistaken in concluding that impacts on transit need not be evaluated in the EIR. The court declined to overturn the EIR, however, because the EIR, including the transportation appendix, provided sufficient information on the topic of public transit impacts to allow for informed public participation and informed decision-making. In support of this conclusion, the court emphasized that the project is an infill development near major transit stops and the Regents had agreed to donate $30 million to the local public transit provider.

Demolition of Historic Buildings

The Plan necessitates the demolition of several historic buildings, an impact the EIR identified as significant but unavoidable. The petitioners contended that it is feasible to preserve these buildings, citing the recent long-range development plan, which had proposed their retention, suggesting the buildings were repairable. The court determined that the petitioners’ argument took too narrow a view on the concept of “feasibility.” The petitioners overlooked the fact that the demolition of the historic structures was integral to the Plan’s aim to create space for new developments. The Plan represents a distinct initiative from the long-range development plan, with distinct goals and components. Maintaining the historic buildings would mean scrapping essential parts of the Plan that involve their removal. It was within the Regents’ discretion to deem alternatives infeasible if they are impractical or misaligned with policy objectives.

Aesthetic Impacts

The petitioners claimed that the EIR inadequately assessed visual impacts, neglecting perspectives from nearby residential areas and incorrectly deeming the visual impacts of the new hospital insignificant. The court concluded, however, that these issues did not require consideration because, under section 21099 of the Public Resources Code, the aesthetic effects of the Plan are not recognized as environmental impacts, as the Plan calls for infill development of an employment center in a transit priority area.

The petitioners contended that section 21099 was inapplicable, arguing that the Plan does not fit the definition of a “residential, mixed-use residential, or employment-center project,” as the campus site is not zoned commercial. The court rejected this argument, explaining that the campus is not governed by standard zoning regulations and is designated as “P-Public” in the City’s zoning code. This classification gives the university discretion over land use decisions on the site. Consequently, the university has sanctioned commercial development in the areas targeted by the Plan, effectively aligning the property with zoning that permits “commercial use.” Therefore, section 21099 applied and the EIR was not required to address aesthetic impacts.

Wind Mitigation

The EIR’s significance thresholds for wind impacts were based on the City of San Francisco’s wind ordinances, which define a “wind hazard criterion” as winds reaching 26 miles per hour sustained over an hour. The EIR concluded that, in certain locations, the new hospital might generate winds surpassing this limit. To mitigate this, the Regents adopted mitigation measures requiring wind-tunnel testing for new buildings over 80 feet tall, under conditions mirroring those expected after the Plan’s implementation. If testing reveals an increase in either the duration of hazardous wind conditions or the number of locations affected compared to current conditions, the university is required to collaborate with wind consultants to identify viable mitigation strategies. These may include design modifications such as building setbacks, rounded or chamfered corners, or stepped facades, aimed at minimizing wind hazards as much as possible. Should the university find these strategies infeasible because “‘they would unduly restrict the proposed building’s space program, result in operational deficiencies, and/or [impose] substantially higher costs, the building(s) may nonetheless be approved provided that the project incorporates wind-speed reduction strategies to the maximum feasible extent, as determined by [the university] in consultation with the wind consultant. Wind speed reduction strategies could also include features such as landscaping, localized installation of porous/solid screens, installation of canopies along building frontages, and the like.’”

The petitioners contended that wind-tunnel testing should have been completed before the final EIR. The court rejected this argument because the EIR made it clear that the new hospital’s design was still evolving and would necessitate a subsequent, more detailed project-level EIR. Given the ongoing development of the hospital’s specific design at the time of the final EIR, the petitioners’ argument was baseless.

The petitioners also argued that the wind mitigation lacked sufficiently specific performance standards. The court disagreed, finding the requirement to “reduce wind hazards to the maximum feasible extent” as sufficiently specific, particularly given the EIR’s acknowledgement that wind impacts may be significant and unavoidable. Further, the measure’s definition of feasibility took into account factors like the proposed building’s functionality, potential operational inefficiencies, or significant cost increases, which provided sufficiently specific direction on when the university may properly reject wind minimization strategies.

In upholding the wind mitigation measures, the court distinguished East Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal.App.5th 1226, in which the court invalidated a wind mitigation measure that required the project sponsor to work with a wind consultant to identify feasible mitigation strategies, including design changes, to reduce wind hazards as to the extent feasible “without unduly restricting development potential.” The East Oakland court found this standard insufficient as it provided too much discretion to the overseeing agency in determining what constituted “undue” development potential, and the EIR failed to clarify the concept of “development potential.” In contrast, in the present case, while reducing the building size is the primary method to mitigate wind impacts, such a reduction could potentially compromise the project’s objectives as outlined in the EIR. Therefore, the mitigation measure provided adequate direction.

– Laura Harris Middleton


In Snowball West Investments L.P. v. City of Los Angeles (2023) 96 Cal.App.5th 1054, the Second District Court of Appeal held that the City of Los Angeles did not violate the Housing Accountability Act (HAA) or the Los Angeles Municipal Code (LAMC) when it denied a rezone required for a proposed 215-home development project.


Petitioner, Snowball West Investments, L.P., first submitted the project application in 2007. The project underwent various changes and proceeded through the approval process for more than a decade. In June 2019, the City Planning Commission approved much of the project, conditioned on a future zoning change from A1 and RA (“Agricultural” and “Suburban” zones, respectively) to RD5 and R1 (“Restricted Density Multiple Dwelling” and “One-family” zones, respectively).The Planning Commission recommended that the City Council approve the rezone and determined that the project would be consistent with the General Plan land use designations of “Low Medium I” and “Low Residential.”

In December 2019, the City Council’s Planning and Land Use Management Committee (PLUM) considered the zoning change request. PLUM received a number of public comments, many of which opposed the project. Additionally, City Council member Monica Rodriguez submitted a letter to PLUM opposing the zoning change. The Rodriguez Letter asserted that the requested change was not consistent with good zoning practice for several reasons. First, it explained that the existing zoning permitted only 19 units on the project site and argued that allowing 215 units would be incompatible with the surrounding area. Second, it raised fire safety concerns due to the site’s topography, location, and limited access. Finally, it pointed out that the City’s Regional Housing Needs Assessment did not identify the project site as a suitable area for allocating new housing.

PLUM adopted the Rodriguez Letter as its findings regarding the proposed rezone and recommended that the City Council deny the rezone. Shortly after, the City Council adopted PLUM’s recommendation and unanimously denied the zoning change.

In January 2020, Snowball requested that the City proceed with the project approvals, arguing that under the HAA, the project did not require a rezone. The City denied Snowball’s request and Snowball filed a petition for writ of mandate, arguing that the City abused its discretion and violated both the HAA and the LAMC when it denied the rezone. The trial court denied the petition.  Snowball appealed.

Court of Appeal’s Decision

The court affirmed the trial court’s decision, holding that the project was not exempt from a rezone under the HAA and rejecting Snowball’s argument that the City failed to make required findings under the HAA and the LAMC.

Rezoning Exemption

Under the HAA, “a proposed housing development project is not inconsistent with the applicable zoning standards and criteria, and shall not require a rezoning, if the housing development project is consistent with the objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan.” Snowball argued that a rezone was not required for the project because the zoning for the project site was not consistent with the general plan. Specifically, Snowball pointed out that the existing zoning permitted only 19 homes on the project site, while the general plan allowed up to 244 homes.

The court rejected Snowball’s argument, however, explaining that while the general plan expressly allowed higher-density zones in the applicable land use designation, it also allowed “those zones which are more restrictive, as referenced in [the LAMC].” Because the existing zoning was one of those “more restrictive” zones, the court concluded that there was no conflict between the existing zoning and the general plan, despite their differences in allowable densities.

Additionally, the court rejected the contention that a limitation on density below the maximum density allowed under the general plan necessarily results in an inconsistency between the zoning and the general plan. Citing the HAA, the court explained that the zoning is consistent so long as the “various land uses authorized by the ordinance are compatible with the objectives, policies, general land uses, and programs specified in the plan.”

Finally, the court rejected the argument that the City’s general plan was designed to allowed more restrictive zones in higher-density areas “in order to skirt the requirements of the HAA.” While acknowledging that the HAA “should be ‘interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing,’” the court nevertheless concluded that it was within the City’s legislative authority to adopt a general plan that allows multiple zones of variable restrictiveness within a given land use designation.

Required Findings

The court rejected Snowball’s argument that the City failed to make required findings under the HAA and LAMC when it denied the zone change.

With respect to the HAA, the court explained that findings are only required when a local agency disapproves a housing project that “complies with applicable, objective general plan, zoning, and subdivision standards and criteria.” The court concluded that, because the project was not consistent with the existing zoning, no findings were required.

With respect to the LAMC, the court noted that the City had adopted the Rodriguez letter as findings when it denied the rezone. Pointing to the large number of public comments on the project, the court concluded that those findings were supported by substantial evidence. Accordingly, the court concluded that the City did not fail to make required findings under the LAMC when it denied the rezone.


In Yes In My Back Yard v. City of Culver City (2023) 96 Cal.App.5th 1103, the Second District Court of Appeal held that an ordinance reducing the allowable square footage for new homes in single-family residential zones violated the Housing Crisis Act of 2019 (SB 330).


In response to California’s widespread housing shortages, the Legislature passed SB 330, which generally restricts the authority of affected cities to re-designate or rezone parcels to a “less intensive use” or reduce “the intensity of land use” allowed within an existing land use designation or zoning district.

Shortly after, in July 2020, the City of Culver City adopted an ordinance to reduce the allowable floor area ratio (FAR) (i.e., the ratio of a building’s square footage to the square footage of the lot) for primary residences in single-family residential zones. The City adopted the ordinance in response to residents’ concerns about “mansionization” in their residential neighborhoods, for the express purpose of reducing the overall square footage of new residences.

Petitioner, Yes In My Back Yard (YIMBY), filed a petition for writ of mandate seeking to repeal the ordinance. YIMBY argued that the ordinance reduced the intensity of use allowed in single-family residential zones, in violation of SB 330. The trial court agreed with YIMBY, granted the petition, and awarded attorneys’ fees to YIMBY. The City appealed.

Court of Appeal’s Decision

After independently reviewing the plain meaning of SB 330, the court concluded that the unambiguous statutory language prohibited the City from reducing the allowed FAR for new residences in single-family residential zones. Specifically, the court explained that SB 330’s prohibition on “reducing the intensity of land use” expressly includes “reductions to height, density, or floor area ratio.” Given the lack of ambiguity in SB 330, the court rejected the City’s argument that the Legislature intended to convey a different meaning. Nevertheless, the court reviewed the legislative history and determined that it was consistent with the court’s interpretation of SB 330.

The court also rejected the City’s argument that the ordinance was exempt from SB 330. By its own terms, SB 330 does not prohibit actions “intended to preserve or facilitate the production of housing for lower income households … or housing types that traditionally serve lower income households,” nor does it prohibit actions intended to increase density, facilitate housing development, or reduce the cost of housing development projects. The court, however, concluded that the City failed to establish that the ordinance would have served any of these purposes.

Finally, the court held that the trial court did not abuse its discretion by granting $131,813.58 in attorneys’ fees to YIMBY. The court explained that, by enforcing important housing rights, YIMBY’s lawsuit conferred a significant benefit on the public that justified a fee award under the private attorney general statute. Additionally, the court found that the trial court’s application of a fee multiplier of 1.25 was properly based on several non-punitive factors, including the novel questions presented by the litigation, the future transfer of the expense to the taxpayers (where elected City representatives refused to remedy the violation to avoid the litigation), the relatively low hourly rates requested by YIMBY’s counsel, and the favorable results obtained by YIMBY.


In Historic Architecture Alliance v. City of Laguna Beach (2023) 96 Cal.App.5th 186, the City of Laguna Beach approved a project to renovate and expand a historic single-family home. In doing so, the City determined that the project was categorically exempt from CEQA under the Class 31 historical resource exemption. Petitioners, the Historic Architecture Alliance and the Laguna Beach Historic Preservation Coalition (collectively, “Alliance”), alleged that the City improperly relied on the Class 31 exemption and that the historical resource exception to the categorical CEQA exemptions applied. Affirming the trial court’s denial of the petition, the Fourth District Court of Appeal held that the application of both the Class 31 exemption and the historical resources exception presented the City with the same factual issue, and that the City’s finding on this issue was supported by substantial evidence.


In 2017, the owners of a historic single-family residence submitted their initial application and plans to the City to renovate and add on to the house. The City’s historical resources consultant reviewed the initial plans for compliance with the Secretary of the Interior’s Standards for the Treatment of Historic Properties (“Standards”), which provide guidance for achieving long-term preservation of historical features and materials.

When the consultant concluded that the initial plans did not fully comply with the Standards, the homeowners and their architect revised the plans and worked with the City to incorporate recommendations made by both the consultant and the City’s Heritage Committee and to ensure the project’s conformance to the Standards.

In 2020, the City approved the project. The City determined that the project satisfied the Standards and thus qualified for the Class 31 categorical CEQA exemption, which applies to historical resource renovation projects that are consistent with the Standards.

In 2021, Alliance filed a writ petition. The trial court denied the petition, finding that the City’s decision was supported by substantial evidence and that Alliance had not met its burden of demonstrating that an exception precluded reliance on the Class 31 exemption. Alliance appealed.

Court of Appeal’s Decision

Class 31 exemption

The court upheld the City’s reliance on the Class 31 exemption. The court explained that the determination that a categorical CEQA exemption applies is a factual one that is subject to review under the deferential substantial evidence standard. Pointing to the numerous rounds of review and revisions to bring the plans into compliance with the Standards and the City’s recommendations, the court concluded that the administrative record contained substantial evidence supporting the City’s determination that the project complied with the Standards, and therefore fell within the Class 31 exemption.

The court rejected Alliance’s argument that, by requiring various revisions to the project, the City was imposing mitigation measures to “shoehorn” the project into the Class 31 exemption. While the court acknowledged the general legal principle that mitigation measures may not be used to support categorical exemption, the court concluded that the plan revisions to bring the project into compliance with the Standards were not mitigation measures.

Historical resources exception

The court also rejected Alliance’s argument that the historical resources exception—which precludes reliance on a categorical CEQA exemption for projects “which may cause a substantial adverse change in the significance of a historical resource”—applied to the project. The court held that when applying the historical resource exception to the Class 31 exemption, the fair argument standard does not apply. Citing CEQA Guidelines section 15064.5(b)(3), which provides that projects that comply with the Standards “shall be considered as mitigated to a level of less than significant impact on the historical resources,” the court explained that “the decisive factor for the historical resource exception is the same as that for the [Class 31] exemption—whether the project complies with the [Standards].” Because an agency’s determination that the Class 31 exemption applies is reviewed for substantial evidence, the court reasoned that the exemption would be rendered “meaningless” if its underlying factual determination was then subject to the fair argument standard when applying the historical resources exception.

Thus, because the City’s determination that the Project satisfied the Standards was supported by substantial evidence, so too were the City’s reliance on the Class 31 exemption and the City’s finding that the historical resources exception did not apply.



On June 2, 2023, the Second District Court of Appeal vacated their prior opinion and issued a revised opinion in Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 92 Cal.App.5th 230, following a request for modification from the State Water Resources Control Board and the Los Angeles Regional Water Quality Control Board (collectively, the Boards). The Boards sought clarification about the Regional Board’s authority to regulate the unreasonable use of water under article X section 2 of the California Constitution and Water Code sections 100 and 275, and the scope of the CEQA exemption in Water Code section 13389. The court’s revised opinion maintains the original holdings but clarifies their scope.

The revised opinion makes clear that nothing in the holding was meant to limit a regional water quality control board’s authority to regulate the unreasonable use of water. According to the court, its decision expresses “no opinion as to whether the State Board may direct or authorize the regional water quality control boards to take actions related to preventing the waste or unreasonable use of water in coordination with the State Board’s efforts in this regard.” As noted by the court, this clarification is important to ensure that coordination between the regional water quality control boards and the State Board regarding issues of waste and unreasonable use of water can continue and is not undermined by language in the opinion.

The revised opinion also clarifies that, because the instant case only deals with NPDES-equivalent permits that are subject to the Water Code section 13389 CEQA exemption, the court did not decide whether the exemption applies to other types of waste discharge permits not at issue in this case.

– Alina Werth


In Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 88 Cal.App.5th 874, rehearing granted March 27, 2023, the Second District Court of Appeal held that the Regional Water Quality Control Board does not have a duty to evaluate whether discharges of treated wastewater are an unreasonable use of water under article X, section 2 of the California Constitution and Water Code sections 100 and 275. The court also held that under CEQA, Regional Water Quality Control Boards are not required make findings of significance under Public Resources Code section 21002 when issuing wastewater discharge permits, which are exempt from CEQA pursuant to Water Code section 13389.


The Regional Board renewed permits allowing four publicly owned treatment works (POTWs) to discharge millions of gallons of treated wastewater daily into the Los Angeles River and Pacific Ocean.

Petitioner requested review of the permits to the State Water Resources Control Board, which declined review. Petitioner then filed petitions for writs of mandate against the State Board and the Regional Board (collectively, the Boards), claiming violations of the Water Code and CEQA.

The Boards demurred to the petitions. The trial court sustained the demurrer as to the Regional Board, but overruled the demurrer as to the State Board, finding that the State Board had a constitutional and statutory duty to prevent the waste of water. The trial court also ruled that the Regional Board did not have to comply with CEQA when issuing wastewater discharge permits, pursuant to an exemption under the Water Code.

The trial court held that the State Board failed to fulfill its duty with regard to the four POTWs and accordingly issued four judgments and four writs of mandate against the State Board. The State Board appealed the four judgments. Real Party in Interest appealed the judgment against the State Board pertaining to its POTW. Petitioner appealed the trial court’s decision to sustain the demurrer in favor of the Regional Board. The appellate court consolidated the appeals.

The Court of Appeal’s Decision

California Constitution & Water Code

The Court of Appeal held that the Regional Board does not have a duty to evaluate whether discharges of treated wastewater are an unreasonable use of water under article X, section 2 of the California Constitution and Water Code sections 100 and 275. The court determined that the Legislature did not design or empower the Regional Board to enforce the mandates of article X, section 2 when issuing wastewater discharge permits. Moreover, it explained that the Regional Board’s role in state water law is to regulate water quality by ensuring the state’s waters are sufficiently free of pollutants to be safe for their intended uses—a role which does not include regulation of wasteful or unreasonable use of water. The court stated that nothing in the Water Code delegates the Regional Board powers to adjudicate and regulate functions of the state in the field of water resources or to take all appropriate proceedings or actions to prevent waste and unreasonable use of water, as it delegates to the State Board.

The court rejected petitioner’s argument that article X, section 2 applies to all government actors, including the Regional Board. It explained that while an action could be brought against anybody for wasting water, petitioner’s claims did not allege that the Regional Board was wasting water, but rather, failed to prevent the POTWs from wasting water, and nothing in article X, section 2 or the Water Code empowers the Regional Board to prevent unreasonable use of water.

The Court of Appeal did not need to reach the issue of whether the State Board has a duty to prevent unreasonable use of water because it concluded that petitioner failed to adequately plead a cause of action against the State Board. It nonetheless explained that the provisions in the California Constitution and the Water Code requiring the State Board to prevent the waste of water are highly discretionary and do not require the State Board to prevent all waste, nor do they dictate how to prevent waste. Therefore, these provisions cannot be read to restrict the State Board’s discretion as to whether to direct its resources towards one method of conservation in its portfolio over another.


The Court of Appeal held that Public Resources Code section 21002 does not apply to wastewater discharge permits and, accordingly, the Regional Board is not required to make findings as to whether a project has significant and unavoidable impacts, and whether there are feasible alternatives or mitigation measures that would substantially lessen those impacts.

The appellate court rejected petitioner’s argument that section 21002 imposes environmental review requirements independent of CEQA’s environmental impact report (EIR) procedures from which the wastewater discharge permits are exempt under Water Code section 13389. The court explained that section 21002 does not impose requirements separate from the EIR process; it only has force to the extent an entity is otherwise obligated to prepare an EIR. The court based its reasoning in the language of sections 21002, 21002.1, and 21082, all of which confirm that the EIR is the means by which the agency satisfies the policies articulated in 21002.

The appellate court also rejected petitioner’s argument that an agency can comply with section 21002 by means other than an EIR, and that the Regional Board can comply with this section by using the information and analysis it collects and performs in the normal course of permit approvals. The court explained that it will not read section 21002 to impose such requirements when the Legislature has not specified any means to carry out those requirements apart from an EIR, as there would be no way for a court to evaluate whether the Regional Board’s efforts were sufficient. The court concluded that the Legislature has opted to govern environmental review in this context through the wastewater discharging process by exempting the Regional Board from an EIR requirement.

The court accordingly did not need to reach the broader question of whether Water Code section 13389 provides a complete exemption from CEQA.

– Veronika S. Morrison


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.


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.”


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