Judge Curtis A. Kin, Case Number: 22STCP02534, Date: 2023-12-14 Tentative Ruling

Petitioner Responsible Urban Development Initiative petitions for a writ of mandate directing respondents City of Los Angeles and the City of Los Angeles City Planning Commission to (1) reverse their decision declaring a residential and commercial development as statutorily exempt from the California Environmental Quality Act (“CEQA”) and (2) conduct a CEQA review concerning the impact of a decrease in the interior parking of the development to the environment and public safety.

Real party in interest Sunset Twins HH, LLC owns the property located at 3209-3227 West Sunset Boulevard in the Silver Lake neighborhood of respondent City of Los Angeles (“City”). (AR 2279, 2286, 5285-92.) Real party’s proposed project entails the construction of a new 84,662 square-foot, seven-story, mixed-use residential development. (Ibid.) The Project consists of 86 residential units, with ten units reserved for Very Low-Income Households, and 8,353 square feet of commercial space. (AR 2284, 2320.) An existing auto body shop will be demolished as part of the Project. (AR 2285.)

As pertinent to the instant proceeding, the Project will have a total of 69 vehicle parking spaces. (AR 2320.) The LAMC required 109 residential parking spaces and 50 commercial parking spaces, a total of 159 parking spaces, for the Project. (AR 33.) The Project is located within walking distance of multiple bus lines and bus stops. (AR 2348-49, 2527-28.) Sunset Boulevard will also be improved with dedicated bicycle lanes. (AR 3559.) The Project will have 71 bicycle parking spaces. (AR 2320.)

The Project site is located within a Very High Fire Hazard Severity Zone (“VHFHSZ”) in an urban area developed with multi-family residential and commercial uses, including retail, mixed-use developments, and parking. (AR 2285-86.) Behind the Project site is a hillside neighborhood with curvy and discontinuous local streets. (AR 307, 649.) Pedestrians in the hillside neighborhood can access Sunset Boulevard via a stairway connecting Hamilton Way to Sunset Boulevard. (AR 5154.)

On February 25, 2021, real party submitted the Project application seeking Density Bonus Compliance Review for a density bonus, waivers, and incentives under the City’s Density Bonus Ordinance (Los Angeles Municipal Code [“LAMC”] § 12.22.A.25(g)) and the State Density Bonus Law (Gov. Code § 65915), a Conditional Use Permit to allow for a density bonus greater than otherwise permitted by the Density Bonus Ordinance (LAMC § 12.24.U.26), and a Site Plan Review (LAMC § 16.05) (the “Project Entitlements”), as well as a Class 32 “Urban Infill” Categorical Exemption determination under CEQA. (AR 5293-5301, 5393-5416.)

Near the Project are two developments. At 3303 West Sunset Boulevard is a mixed residential/retail project containing 104 residential units with 88 parking spaces, plus 9,048 square feet of retail space with another 62 parking spaces. (AR 157, 295, 3462-63.) At 3304 West Sunset Boulevard is a residential project containing 74 residential units with 64 parking spaces. (AR 157, 295, 3462.) The two related projects contain the required number of parking spaces under the LAMC. (AR 5761-62.) The development at 3304 West Sunset Boulevard will be built on the neighborhood’s only freestanding public parking lot. (AR 3462-63.)

Respondent City Planning Commission (“Planning Commission”) held a hearing on the Project on January 13, 2022. (AR 2279, 4512.) In connection with the hearing, residents submitted comments, arguing that increased traffic resulting from the purported lack of interior parking at the Project will lead to illegal parking in red zones in the hillside neighborhood, blocking access to first responders, as well as increased carbon emissions from drivers searching for parking. (AR 3455, 3484, 4446-47, 4450-53, 4456-59, 4554-55.) In response to the residents’ concerns about fire access, Oliver Netburn of the Department of City Planning stated that the Project would not require any access through the hillside neighborhoods because it is located on Sunset Boulevard and accordingly would not significantly affect fire safety or fire access. (AR 4568-69.) During the hearing, Commissioner Perlman asserted that the Project would not hinder emergency vehicles accessing the hillside because it is located mid-block on Sunset Boulevard. (AR 4580.)

Department of City Planning staff prepared and submitted a Recommendation Report, recommending approval of the Project Entitlements and a determination that the Project is exempt from CEQA as a Class 32 urban infill project. (AR 2281, 2293.) Planning staff also submitted a 926-page “Justification to Support a Categorical Exemption” document (“Exemption Justification”), outlining the bases to support a finding that the Project meets the criteria for a Class 32 exemption (AR 3511-3601) and is not subject to any exceptions to the exemption (AR 3602-18). The Exemption Justification includes technical reports related to historical resources (AR 3621), traffic (AR 3694), noise (AR 3722), air quality (AR 3737), threatened and endangered species (AR 3896), and an Environmental Site Assessment (AR 3907). The Exemption Justification concluded that the Project is consistent with the applicable General Plan designation and all applicable General Plan policies, as well as with the applicable zoning designation and regulations, and that there would be no significant impacts or cumulative impacts to traffic, air quality, or public services. (AR 3565-68, 3581-91, 3604-06, 3610-12.)

At the hearing, the Planning Commission approved the Project, adopted Planning staff’s findings and conditions of approval, as modified, and found the Project categorically exempt from CEQA under the Class 32 exemption. (AR 31-62, 4603-04.) The Planning Commission approved a 100% decrease in required residential and commercial parking for the Project site. (AR 31.) The Planning Commission concluded that “there is no substantial evidence that the project’s proposed incentives will have a specific adverse impact on the physical environment, on public health and safety, or on property listed in the California Register of Historic Resources.” (AR 45.)

A Letter of Determination was issued on February 15, 2022, and a subsequent Corrected Letter of Determination was issued on March 29, 2022, which reflected a correction to the Modified Conditions of Approval. (AR 3-30, 31-62.) A Notice of Exemption was recorded on February 23, 2022. (AR 1-2.) The City’s approval of the Project Entitlements became final on March 29, 2022. (AR 32.)

Two parties, including petitioner, appealed the City’s CEQA determination to the Los Angeles City Council. (AR 5631-54, 5752-67.) The appellants argued that the Project will result in significant traffic, air quality, fire and emergency access, and parking impacts when considered individually and cumulatively. (AR 5797.) Citing the Exemption Justification, the Department of City Planning concluded that the Project would not have significant traffic, air quality, or parking impacts. (AR 5798.)

The Planning and Land Use Management (“PLUM”) Committee considered the appeals on September 6, 2022, and recommended that the City Council deny them and sustain the Planning Commission’s CEQA determination. (AR 4504-05, 4678-79, 5796-99 [Staff report recommending denial of the appeals], AR 6733-37 [consultant’s responses to appeals].) The City Council adopted the PLUM Committee’s recommendation on September 16, 2022, upheld the CEQA exemption determination, and issued its Official Action on September 27, 2022. (AR 63-64, 4706-07.)

On July 6, 2022, petitioner filed a verified Petition for Writ of Mandamus. On September 20, 2022 petitioner filed a verified Amended Petition for Writ of Mandamus and Injunctive relief. On March 7, 2023, pursuant to stipulation and order, petitioner filed the operative verified Second Amended Petition for Writ of Mandamus.

On May 8, 2023, respondents City of Los Angeles and City of Los Angeles City Planning Commission filed an Answer to the Second Amended Petition. On the same date, real party Sunset Twins HH LLC filed an Answer to the Second Amended Petition.

On September 27, 2023, petitioner filed an opening brief. On October 30, 2023, respondents and real party filed a joint opposition. On November 14, 2023, petitioner filed a reply. The Court has received the administrative record, joint appendix, and trial notebook.

Petitioner’s request to take judicial notice of Exhibit A, Los Angeles Municipal Code § 57.4908.1.1 and map of the VHFHSZ map incorporated therein is GRANTED, pursuant to Evidence Code § 452(b). Even though Exhibit A was not a part of the administrative record, judicial notice can be taken of a municipal code provision. (Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, 1305, n. 2 [request for judicial notice of municipal code provision “not contained in the record” granted]; Union of Medical Marijuana Patients, Inc. v. City of Upland (2016) 245 Cal.App.4th 1265, 1269, fn. 2 [“UMMP”] [same].)

Petitioner’s request to take judicial notice of Exhibit B, a map demonstrating which streets surrounding the Project are within the VHFHSZ, is GRANTED, pursuant to Evidence Code§ 452(h). Even though Exhibit B was not part of the administrative record, it is admissible as background information. (UMMP, 245 Cal.App.4th at 1269, fn. 2, quoting Outfitter Properties, LLC v. Wildlife Conservation Bd. (2012) 207 Cal.App.4th 237, 251 [“ ‘Although extra-record evidence is not admissible to contradict evidence upon which the administrative agency relied in making its quasi-legislative decision, or to raise a question regarding the wisdom of that decision [citation], it may be admissible to provide background information regarding the quasi-legislative agency decision, to establish whether the agency fulfilled its duties in making the decision, or to assist the trial court in understanding the agency's decision.’ [Citation]”].)

Petitioner’s request to take judicial notice of Exhibit C, a Notice of Exemption for a project located at 3303 W. Sunset Boulevard, is DENIED as redundant of the evidence in the administrative record. (AR 157, 295, 3462-63 [reflecting existence of project at 3303 W. Sunset Blvd.]; Helene Curtis, Inc. v. Los Angeles County Assessment Appeals Bds. (2004) 121 Cal.App.4th 29, 37 [trial court did not exceed discretion in excluding declarations that summarized proceedings reflected in record]; see also Pet. Response to Opp. to RJN at 3:3:8 [petitioner agrees such information is already found in the administrative record].)

Petitioner’s request to take judicial notice of Exhibit D, a copy of the complaint in German Murillo et al. v. Sunset Junior LLC et al., LASC Case No. 22STCV29232, is DENIED, as irrelevant, as neither real party nor the City were parties in the other case. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [“Although a court may judicially notice a variety of matters [citation], only relevant material may be noticed.”]; see also Pet. Response to Opp. to RJN at 3:12-13 [petitioner does not contest opposition to judicial notice of Exhibit D].)

Petitioner’s request to take judicial notice of four websites is DENIED as irrelevant. Articles concerning a fire in Oakland Hills and the history of Very High Fire Hazard Severity Zones in the City constitute inadmissible extra-record evidence intended to question the wisdom of the City’s approval of the Project. (Outfitter, 207 Cal.App.4th at 251.) The use of the name “Mabery Heights” to describe the neighborhood surrounding the Project provides no assistance in the Court’s review of the approval of the Project.

In an action challenging an agency’s decision under CEQA, the trial court reviews the agency’s decision for a prejudicial abuse of discretion. (Pub. Res. Code § 21168.5.) “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (Ibid.) Challenges to an agency’s failure to proceed in a manner required by CEQA are subject to a less deferential standard than challenges to an agency’s factual conclusions. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.) In reviewing these claims, the Court must “determine de novo whether the agency has employed the correct procedures.” (Ibid.)

“[S]ubstantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact…. Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.” (Pub. Res. Code § 21080(e).) Under the substantial evidence test, the Court “review[s] the administrative record to see if it contains evidence of ponderable legal significance that is reasonable in nature, credible, and of solid value, to support the agency's decision.” (Protect Tustin Ranch, 70 Cal.App.5th at 960.) However, “a court reviewing the evidentiary basis of an agency’s decision must consider all relevant evidence in the administrative record including evidence that fairly detracts from the evidence supporting the agency’s decision.” (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 585.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [its] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317, quoting Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1255.) The petitioner “must lay out the evidence favorable to the other side and show why it is lacking.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) “Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant's failure to carry his burden.” (Ibid.)

Respondents and real party contend that petitioner has not met its burden to establish that it exhausted its administrative remedies.

Public Resources Code § 21177 codifies “without change the judicially created exhaustion doctrine.” (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 591.) “Under the doctrine of exhaustion of administrative remedies, ‘where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ This rule ‘is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis and binding upon all courts.’’” (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447.)

“The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.” (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 909; see Pub. Res. Code § 21177(a) [“An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or before the close of the public hearing on the project before the issuance of the notice of determination”].) The petitioner is not required to have brought the precise legal inadequacy that it raises before the trial court to the administrative agency’s attention to preserve the issue for judicial review so long as the petitioner fairly apprised the agency of the substance of its claim. (Save Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 1745, 1750.)

As stated above, residents presented the grounds for purported noncompliance with CEQA during the comment period and during the hearing. (AR 3455, 3484, 4446-47, 4450-53, 4456-59, 4540-41, 4554-55.) Further, petitioner appealed the City’s CEQA determination to the Los Angeles City Council, asserting that a Class 32 exemption does not apply based on the purported impact to traffic and air quality. (AR 5631, 5636-37, 5759-60.)

The grounds upon which petitioner seeks a writ of mandate were presented to the City. Petitioner exhausted its administrative remedies.

Respondents and real party contend that the Project qualifies for a Class 32 exemption to CEQA, codified in Title 14, Section 15332 of the California Code of Regulations (hereinafter, “Guidelines”). CEQA Guidelines § 15332 exempts “in-fill development” meeting the following requirements:

(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.

(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses.

(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.

(e) The site can be adequately served by all required utilities and public services.

Under CEQA, “[t]he lead agency has the burden to demonstrate that a project falls within a categorical exemption and the agency’s determination must be supported by substantial evidence.” (Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn. (2015) 242 Cal.App.4th 555, 568 [“CER”].) “‘[W]here the record contains evidence bearing on the question whether the project qualifies for the exemption … and the agency makes factual determinations as to whether the project fits within an exemption category … [judicial review is] whether the record contains substantial evidence to support the agency’s decision.”’ (Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 817.) The Court “do[es] not weigh conflicting evidence, as that is the role of the public agency.” (Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951, 960.)

“Since a determination that a project falls within a categorical exemption excuses any further compliance with CEQA whatsoever, we must construe the exemptions narrowly in order to afford the fullest possible environmental protection.” (Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 697.)

The record contains a Justification to Support a Categorical Exemption prepared by Parker Environmental Consultants, LLC for the Department of City Planning. (AR 3511-4437.) The Exemption Justification contains substantial evidence that each of the five subdivisions of Guidelines § 15332 is satisfied.

With respect to subdivision (a), the consultant concluded that the Project “is consistent with the applicable General Plan designation and all applicable General Plan policies as well as with applicable zoning designation and regulations.” (AR 3552; see generally AR 3552-63.) Specifically, the consultant found that “the Project would support the needs of the City’s existing and future residents by providing new residential uses, commercial/retail uses and employment opportunities. In addition, development of the Project in an area with convenient access to public transit and opportunities for walking and biking would promote an improved quality of life by facilitating a reduction of vehicle trips, vehicle miles traveled, and air pollution.” (AR 3553.) The Project site is designated as “General Commercial” in the General Plan and zoned as C2, which allows the proposed residential and commercial uses at the Project. (AR 3554-55, 3561.) The consultant set forth the land use policies and goals of the General Plan, including the accommodation of population and employment growth and encouragement of pedestrian activity and use of public transit, and found no conflicts. (AR 3553-56.)

With respect to subdivision (b), the Project is in the Silver Lake – Echo Park – Elysian Valley Community Plan area of the City of Los Angeles. (AR 3521.) The Project site is 0.52 acres and “entirely surrounded by urban land uses,” specifically “a mix of multi-family residential apartments, commercial/retail buildings, and restaurants.” (AR 3563-64.) The consultant concluded that the Project “occurs within city limits, is of no more than five acres, and is substantially surrounded by urban uses.” (AR 3564.)

With respect to subdivision (c), the Project site does not contain any protected or threatened species. (AR 3564.) One of the existing non-protected street trees at the Project site will be removed during construction. (AR 3564.) Department of City Planning regulations will ensure that nesting birds, which are federally protected, do not occupy the tree at the time of removal. (AR 3564.) Based on the foregoing, the consultant concluded that the Project “has no value for endangered, rare or threatened species.” (AR 3565.)

With respect to subdivision (d), the consultant found that “[a]pproval of the Proposed Project would not result in any significant effects relating to traffic, noise, air quality, or water quality.” (AR 3565.) Concerning traffic, for land use projects, “[v]ehicle miles traveled exceeding an applicable threshold of significance may indicate a significant impact.” (Guidelines § 15064.3(b)(1); see also AR 3565 [Guidelines § 15064.3(b)(1) forms basis of City’s Transportation Assessment Guidelines].) “A lead agency has discretion to choose the most appropriate methodology to evaluate a project’s vehicle miles traveled…. A lead agency may use models to estimate a project’s vehicle miles traveled, and may revise those estimates to reflect professional judgment based on substantial evidence.” (Id. § 15064.3(b)(4).)

The consultant used the Vehicle Miles Travelled (“VMT”) Calculator[1] developed by the Los Angeles Department of Transportation (“LADOT”) to calculate the transportation impact from the Project, measured by the net daily trip generation for the Project. (AR 3566.) The LADOT identified a threshold of 7.2 VMT for the residential component and 12.7 VMT for the commercial component (15% below the existing VMT for the East Los Angeles Area Planning Commission in which the Project is located) of the Project. (AR 3566-67.) Using trip generation rates and trip type percentages for Project land uses, the VMT Calculator estimated that the residential component for the Project would generate 6.7 VMT, and the commercial component of the Project would generate 8.3 VMT. (AR 3567, 3721.) The VMT was calculated based on the 69 parking spaces in the Project. (AR 3712, 3719, 3721 [reduced parking supply accounted for in calculation of home-based VMT as 13% reduction].) Both calculations being below the corresponding threshold, the consultant concluded that the Project would have a less than significant impact on traffic. (AR 3567.)

Concerning noise, the consultant calculated the impact of construction noise from the Project. (AR 3574-78.) Based on the construction equipment expected to be used for the Project and with the use of noise attenuating equipment and practices, each phase of construction at 50 feet from the Project site is expected not to exceed the 75 dBA threshold under the LAMC. (AR 3575-77.) At nearby “sensitive receptors,” where the land use is noise sensitive (e.g., residential buildings), the increase in noise from the construction of the Project is expected not to exceed the 5 dBA threshold under the Los Angeles CEQA Thresholds Guide. (AR 3570-71, 3577-78.) After the Project is built and operational, the heating, venting, and air conditioning systems are expected to be fitted with noise muffling devices to ensure that the noise will not exceed five decibels in compliance with the LAMC. (AR 3579.) Because the parking garage at the Project is enclosed, any noise from the garage would be insulated. (AR 3579.) The Project is expected to increase the daily vehicle trips along Sunset Boulevard by 409, which is not enough to find that the Project will significantly increase the noise from auto-related activities. (AR 3579.) Based on the foregoing, the consultant found that the Project would not result in significant effects relating to noise.

Concerning air quality, using the South Coast Air Quality Management District’s (“SCAQMD”) California Emissions Estimator Model, the consultant calculated the Project’s construction and operational air quality impacts, which are below the thresholds of significance established by the SCAQMD for air quality impacts. (AR 3585, 3587, 3591.) With respect to operational emissions from the Project, the consultant considered “the consumption of electricity and natural gas, landscape maintenance, and vehicles traveling to and from the Project Site.” (AR 3590.) Based on the foregoing, the consultant found that the Project would not result in significant effects relating to air quality.

Concerning water quality, environmental site assessments performed for the Project site revealed that the Project would not detrimentally affect groundwater conditions. (AR 3592-93.) With respect to stormwater, implementation of a Storm Water Pollution Prevention Plan and compliance with a Low Impact Development Ordinance would ensure that the stormwater drains would not be significantly impacted during construction or operation of the Project. (AR 3594.)

With respect to subdivision (e), the consultant found that utilities and public services would be able to accommodate the increase in demand due to the Project. (AR 3594-3601.)

Based on the foregoing, the City, specifically the Department of City Planning, met its burden to demonstrate that the Project qualifies for a Class 32 exemption from CEQA.

Notwithstanding the above-described and undisputed evidence, petitioner argues that the City did not meet its initial burden to demonstrate the applicability of the exemption because respondents purportedly did not consider the effect that the lack of 90 interior parking spaces at the Project, as required by the LAMC, would have on traffic and air quality. Petitioner contends that residents and patrons of the Project who cannot park at the Project will search for parking on Sunset Boulevard and in the adjacent hillside neighborhood, increasing carbon emissions and traffic.

Even if the reduction in parking capacity at the Project would result in an increase in vehicles searching for parking in the hillside neighborhood, this would constitute conflicting evidence that the Court does not weigh in determining whether substantial evidence supports the finding of a categorical exemption. (Protect Tustin Ranch, 70 Cal.App.5th at 960 [“Where, as here, a public agency makes a factual determination that a project falls within a . . . categorical exemption, we apply the substantial evidence standard in reviewing the agency’s finding. [citation omitted] We do not weigh conflicting evidence, as that is the role of the public agency”].) The City’s analysis of traffic impact from the project clearly accounted for the allotted 69 parking spaces (AR 3710-21), which constitutes substantial evidence to support the finding that the project would not significantly affect traffic, even if the analysis did not attempt to account for traffic impacts based on speculation that other persons might search for parking in the hillside. Indeed, there is nothing in the record to suggest that respondents’ reliance on undisputed and unchallenged VMT data and analysis is an unreasonable means by which to assess traffic effects. “Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” (Pub. Res. Code § 21082.2(c).)

With respect to traffic and air quality, the Exemption Justification found that, based on the methodology and modeling set forth in the justification, the Project would not exceed the thresholds for traffic or air quality. The City relied on facts and expert opinion supported by fact to find that the Project was exempt from CEQA. Respondents’ findings for the Class 32 exemption are supported by substantial evidence. Accordingly, to succeed on the instant petition for writ of mandate, petitioner has the burden to demonstrate the Project falls within an exception to the Class 32 exemption.

“Once the agency establishes that the project is exempt, the burden shifts to the party challenging the exemption to show that the project is not exempt because it falls within one of the exceptions listed in Guidelines section 15300.2.” (CER, 242 Cal.App.4th at 568.) Section 15300.2 lists exceptions based on the location for Class 3-6 and 11 exemptions, scenic highways, hazardous waste sites, and historical resources. (Guidelines § 15300.2(a), (d), (e), (f).) These exceptions are not implicated by the Project. The only two possible exceptions under section 15300.2 are discussed below.

“A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (CEQA Guidelines § 15300.2(c).)

The unusual circumstances exception may be established in one of two ways. “A party invoking the exception may establish an unusual circumstance without evidence of an environmental effect, by showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. In such a case, to render the exception applicable, the party need only show a reasonable possibility of a significant effect due to that unusual circumstance. Alternatively…a party may establish an unusual circumstance with evidence that the project will have a significant environmental effect.” (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105.)

As for the first means to establish the exception, petitioner has not shown that unusual circumstances apply to the Project. “‘[T]he presence of comparable facilities in the immediate area adequately supports [an] implied finding that there were no “unusual circumstances” precluding a categorical exemption.’ [Citation.]” (Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 821, quoting Bloom v. McGurk (1994) 26 Cal.App.4th 1307, 1316.) The area surrounding the Project “consists of a variety of medium housing types including multi-story apartment buildings and mixed-use residential buildings.” (AR 2286.) Also located in the surrounding area are “various commercial uses including restaurants, bars, retail uses, mixed-use developments, and multiple surface level parking lots.” (AR 2286.) Because the subject Project is a comparable mixed-use residential/retail building, the Project does not have any distinguishing feature precluding a Class 32 exemption.

With respect to the second means, the Court of Appeal in Walters summarized it as follows:

[A] challenger “may establish an unusual circumstance with evidence that the project will have a significant environmental effect.” “When it is shown ‘that a project otherwise covered by a categorical exemption will have a significant environmental effect, it necessarily follows that the project presents unusual circumstances.’” “But a challenger must establish more than just a fair argument that the project will have a significant environmental effect. A party challenging the exemption, must show that the project will have a significant environmental impact.” “In other words, a showing by substantial evidence that a project will have a significant effect on the environment satisfies both prongs of the unusual circumstances exception under the second method of establishing the exception.”

(Walters, 1 Cal.App.5th 819-20, internal citations omitted, emphasis in original.)

As stated above, petitioner contends that residents and patrons of the Project will search for parking in the adjacent hillside neighborhood, thereby impacting traffic and air quality. In support of this contention, petitioner relies on comments of residents in the neighborhood. (See, e.g., AR 3464 [“Metered street parking on Sunset is limited and highly competitive. By driving throughout the hillside in search of parking, each vehicle’s commute or driving time will be increased by the additional minutes it takes to find a parking spot, as will be the driving/commute time of the hillside resident who, as a result, must find a parking spot farther up the hill, and so on with each spot taken.”], 4456 [“Cars circle around for many blocks in search of parking spots, adding carbon emissions to the atmosphere that wouldn’t occur if parking were available along Sunset”].)

These comments from the residents are entirely speculative with respect to the potential Project traffic and air quality impacts. The residents appear to comment based on unsupported opinions concerning how the reduced parking capacity at the Project will impact traffic and air quality. “[A]lthough local residents may testify to their observations regarding existing traffic conditions, ‘in the absence of specific factual foundation in the record, dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence.’ [Citation.] ‘Unsubstantiated opinions, concerns, and suspicions about a project, though sincere and deeply felt, do not rise to the level of substantial evidence.’” (Banker's Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 274.) The residents assume that residents and patrons who do not park at the Project will resort to parking in the hillside, as opposed to adapting to the reduced parking capacity at the Project by relying on other methods of transportation, such as public transit, bicycle, or rideshare.

While petitioner may characterize the possibility that residents and patrons will not rely on driving themselves to the Project as unrealistic, petitioner has the burden to produce evidence—other than unsubstantiated opinion—that the Project will have a particular adverse effect. (Ibid., quoting Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 736.) Petitioner fails to present any evidence, other than unsubstantiated opinion, that the Project will necessarily result in increased traffic and increased carbon emissions above the thresholds of significance.

Petitioner fails to demonstrate that the “unusual circumstance” exception applies to the Class 32 exemption.

“All exemptions for these classes [including Class 32] are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant.” (CEQA Guidelines § 15300.2(b).)

“Cumulative impacts’ refer to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts. [¶] (a) The individual effects may be changes resulting from a single project or a number of separate projects. [¶] (b) The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.” (CEQA Guidelines § 15355.)

Petitioner refers to two other similar projects at 3303 and 3304 West Sunset Boulevard that will be built or are currently under construction. However, petitioner admits that these other projects will provide the parking required under the LAMC. (AR 5761 [“[W]hile I recognize that the 3004 Development has provided the required number of parking spaces for its residents,” “Like its companion project, the 3003 Development has parking for its residents that satisfies the minimum requirements of the Los Angeles Municipal Code”].) Accordingly, petitioner does not explain how the parking at the other two projects could increase any impact that the subject Project may have on traffic and air quality.

Petitioner fails to demonstrate that the “cumulative impacts” exception applies to the Class 32 exemption.

There is substantial evidence to support the finding that the Class 32 exemption applies, and petitioner fails to present any meaningful evidence that an exception to the Class 32 exemption applies. Accordingly, the petition is DENIED. Pursuant to Local Rule 3.231(n), respondents shall prepare, serve, and ultimately file a proposed judgment.

[1] The VMT Calculator incorporates average daily trip generation rates from the Institute of Transportation Engineers, as well as data from the Environmental Protection Agency’s Mixed-Use Model and the City’s Travel Demand Forecasting Model. (AR 3566.)

RESPONSIBLE URBAN DEVELOPMENT INITIATIVE,	Petitioner,	Case No.	22STCP02534
vs. THE CITY OF LOS ANGELES, et al.,	Respondent.	[TENTATIVE] RULING ON PETITION FOR WRIT OF MANDAMUS Dept. 82 (Hon. Curtis A. Kin)
SUNSET TWINS HH, LLC,	Real Party in Interest.