Tag: Extra-Record Evidence

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

FIRST DISTRICT HOLDS CITY’S CURTAILMENT OF WATER DELIVERY TO LEASED PROPERTIES WAS NOT A NEW PROJECT SUBJECT TO CEQA REVIEW

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In County of Mono v. City of Los Angeles (2022) 81 Cal.App.5th 657, the First District Court of Appeal held that the city’s 2018 water allocation to lessees was not a change in water use policy, but merely an exercise of the city’s discretion to curtail water deliveries for the purposes of increasing water deliveries to city residents, which was allowed subject to the terms of a lease agreement approved in 2010.

Background

In 2010, the city approved leases (2010 Leases) governing approximately 6,100 acres of city-owned land to petitioner and others. Relevant here, the 2010 Leases provide for the delivery of no more than 5 acre-feet of water per acre (AF/acre) per irrigation season subject to certain conditions. These conditions made clear that the city’s water use was paramount to rights under the 2010 Leases and that the actual amount of water delivered in any given year is to be determined solely by the city and may be reduced in dry years based on water availability. The 2010 Leases further provided that the supply of water could be discontinued at any time and that lessee has no claim against the city should the city exercise its right to withhold water for its own residents. The initial lease term ran from January 2009 to the end of 2013 after which the leases allow the lessees to holdover as tenant at will. Accordingly, the city and the lessees have proceeded under the 2010 Leases in holdover status since 2013.

In March 2018, the city sent copies of a new form of leases (Proposed Dry Leases), which provided that the city would no longer provide irrigation water to the lessee, but rather from time to time the city may spread water on the leased properties. The Proposed Dry Leases included similar provisions reserving the city’s rights to discontinue water delivery. The city issued a Notice of Preparation (NOP) that it would prepare an environmental impact report for the Proposed Dry Leases in August 2018.

In May 2018 correspondence between the city and petitioner, the city indicated that it was evaluating the impacts of reducing water on the leased ranch land, but that based on the snowpack and anticipated runoff it determined that the city could provide lessees 0.71 AF/acre of water, which was consistent with what it had provided two years earlier when the runoff was 82 percent of normal.

Petitioner challenged the city’s decision to curtail water deliveries in 2018 alleging it violated CEQA in that it committed to the Proposed Dry Leases without environmental review.

Court of Appeal’s Decision

The appellate court initially discussed the propriety of considering a declaration filed by the city which asserted that in 2019 and 2020 the city had delivered 6.6 AF/acre and 3 AF/acre of water, respectively. The trial court denied the city’s request to augment the record with the declaration because it was untimely (filed after the court had issued its tentative order granting the writ petition) yet the trial court relied on the 2019 and 2020 water allocations for purposes of setting the historical baseline and fashioning the remedy. The appellate court found that while the declaration was admissible extra-record evidence under Western States Petroleum Assn. v. Super. Ct. (29915) 9 Cal.4th 559, 576 because the 2018 water allocation is an informal or ministerial administrative action, it agreed with the trial court that the declaration was untimely. Nevertheless, the appellate court held that the trial court’s reliance on the contents of the declaration for purposes of the scope of the remedy was inappropriate given that the trial court had not considered the declaration for purposes of the merits.  Accordingly, the appellate court held that it would consider the declaration.

Next the court considered whether the 2018 water allocation was a new reduced water project or part of either the 2010 leases or the Proposed Dry Leases. In doing so, the court noted that the definition of a CEQA “project” involves three distinct components: “agency involvement, physical change to the environment, and whole of an action including multiple discretionary approvals.” Based on the terms of the 2010 Leases, the history of water allocations under them, and the city’s post-2018 water allocations set forth in the declaration, the court found that the 2018 water allocation was merely a “string of water allocations that the 2010 Leases” allowed the city to make. It was therefore not a new project subject to CEQA.

The court rejected petitioner’s contention that the terms of the 2010 Leases did not allow it to curtail water deliveries. Rather, based on the discussion of water supplies in the 2010 Leases, which expressly provided that lessee understood and acknowledged that any water supplied to leased land was “subject to the paramount rights” of the city and that the city could discontinue water deliveries in whole or in part at any time, the court held that the 2010 Leases reserve the city’s right to curtail water deliveries.

Petitioner argued that the court’s interpretation would allow the city to end all water deliveries under the 2010 Leases. However, the city agreed that eliminating water deliveries would require environmental review. Based on this concession, the court of appeal concluded that the 2010 Leases reserved the city’s rights to reduce water allocations subject to changing water availability so long as such reductions did not convert the 2010 Leases into dry leases.

The court further rejected petitioner’s reliance on Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310. While that case establishes that the city would need to consider the actual amounts of irrigation water provided in the past, rather than a hypothetical right to eliminate water deliveries, it further establishes that doing so does not prevent the city from exercising its right under the 2010 Leases to curtail or reduce water deliveries.

The court also found that the city’s past practices did not support petitioner’s claim that the 2018 allocation was an implementation of a new low- or zero-water delivery policy. While petitioner claimed that the city historically provided up to 5 AF/acre of water reduced proportionally based on deviations in snowpack and anticipated runoff, the court found that the actual water deliveries under the 2010 Leases did not have a linear relationship with runoff. In considering the declaration previously excluded by the trial court as evidence, the court also found that the higher allocations in 2019 and 2020 demonstrate that the 2018 water allocation was an implementation of the 2010 Leases, not a new project.

Finally, the court held that without some evidence beyond the simply the timing of correspondence between the city and petitioner and the city’s issuance of an NOP for the Proposed Dry Leases, it could not find that the NOP meant that the city’s reliance on the 2010 Leases for the 2018 allocation was a pretext for implementing that project.

Because the court found that the 2018 water allocation was within the scope of the 2010 Leases, it held that petitioner’s lawsuit effectively challenged the 2018 implementation of a project approved in 2010 and was therefore barred by CEQA’s statute of limitations.

By Christina L. Berglund