Judge: Curtis A. Kin, Case: 23STCP00195, Date: 2024-07-18 Tentative Ruling

Case Number: 23STCP00195    Hearing Date: July 18, 2024    Dept: 86

          Petitioner Supporters Alliance for Environmental Responsibility (“SAFER”) petitions for a writ of mandate directing respondents City of Inglewood and City Council of the City of Inglewood (collectively “City”) to vacate and set aside their approval of the Prairie Station Apartments Project (“Project”) until respondent complies with the California Environmental Quality Act (“CEQA”).

I.       Factual Background

A.           Project Site

The approximately 5.07 acre project site is located on the southeast corner of the intersection of Prairie Avenue and 113th Street along the southern border of the City of Inglewood (APNs 4035-018-015, 4035-018-016, 4035-018-900, 4035-018-901, 4035-018-902 & 4035-018-903). (AR 368.) Five structures have been previously developed on the project site, including two commercial buildings, two single-family dwellings, an equipment building, and an antenna. All structures have been demolished, except for a parking lot and a one-story, 2,000 square foot building on the northeast corner of the project site, which is currently unoccupied and closed off to public access. The remainder of the project site is currently covered with common grasses and fencing bordering the perimeter of the landscaping areas. Presently, 113th Street provides a driveway approach from Prairie Avenue that traverses through the center of the project site and then continues along the western border of the project site adjacent to Interstate 105 (“I-105”). Several mature trees, including palm trees, grow along Prairie Avenue and the western boundary of the project site. (AR 368.)

According to the City’s General Plan, the project site is designated Commercial and has a zoning designation of Airport Commercial (C-2A). (AR 368). The project site’s current zoning designation does not allow for any newly constructed residential uses; therefore, the proposed project would require discretionary actions such as a General Plan amendment and a zone change prior to implementation. (AR 374.)

The adjacent properties along northern and eastern boundaries of the project site are designated for Commercial land uses according to the City’s General Plan. The properties adjacent to the eastern boundary of the project site are designated for Commercial (C) uses and include the Palace Surplus grocery store and La Quinta Inn and Suites. Properties north of the project site are designated for Commercial (C) land use and include an auto dealership. The closest residential land uses are located adjacent to, or within 15 feet of, the northeast corner boundaries of the project site. The I-105 borders the project site to the southwest, and an I-105 off-ramp borders the project site to the north. (AR 368.)

B.           Proposed Project

The proposed Project consists of the construction of three podium-style apartment buildings that would provide 440 units, including up to 105 with mezzanines. Each building would have one to two floors of parking at grade or partially subterranean and include six stories of residential units and mezzanines located within the units on the top floor. Many units would include private balconies. The overall building height of each residential building would be no higher than 85 feet. (AR 368.)

The Building A development would consist of the construction of approximately 215 market rate rental housing units. (AR 745.) Building A would be located on the northwestern portion of the project site. Building A would include up to 8,500 square feet of courtyard open space on the second floor. The courtyard open space would include a pool. (AR 374.)

The Building B development would consist of the construction of approximately 95 rental housing units on the Participating Parcel, of which 10 of those units will be exclusively reserved for and leased at “Affordable Rents” to Lower Income Households, as defined in Health and Safety Code section 50079.5(a), plus an additional 10 of the residential units exclusively reserved for and leased at “Affordable Rents” to Moderate Income Households, as defined in California Health and Safety Code section 50053(b)(5). The remaining 75 residential units would be rented at market rate rents. (AR 745.) Building B would be in the northeast corner of the project site. The building would include up to 2,500 square feet of courtyard open space on the second floor. (AR 374.)

The Building C development would consist of the construction of approximately 130 rental housing units, of which 10 of those units will be reserved exclusively for and leased at “Affordable Rents” to Lower Income Households, plus an additional 10 of the residential units reserved exclusively for and leased at “Affordable Rents” to Moderate Income Households. (AR 745.) Building C would be in the southeast corner of the project. The building would include up to 3,000 square feet of courtyard open space on the second floor. (AR 374.)

A total of up to 670 parking spaces would be provided, including approximately 100 surface parking spaces in addition to the balance of parking spaces in each building’s ground floor and/or subterranean concrete parking levels. Vehicles would access the project site from the main entry at 113th Street along Prairie Avenue. The main entry would provide for 36 feet wide vehicular use with 15 feet pedestrian walkways on either side. The project site would also be accessible to pedestrians from the sidewalk on Prairie Avenue. (AR 374.)

C.           Construction Activities and Timeline

Construction of the proposed project would last for approximately 27 months in total and was scheduled to begin in January 2024 and be completed by Spring 2026. The proposed project of  three podium building structures with underlying parking garages would be constructed in two stages, with construction of the first building scheduled to begin in March 2024 following clearing and grading of the site, and construction of the second and third buildings scheduled to begin in May 2024. (AR 374.)

Each construction phase assumes a five-day week work schedule, Monday through Friday, eight hours per day, between the hours of 7:00 a.m. through 8:00 p.m., pursuant to the Inglewood Municipal Code (IMC). Demolition, excavation, leveling, paving, and finishing would each require 20 workers per day, and the building construction phases would require 200 workers per day. Over the course of the demolition activities, a total of 400 truck haul trips would haul demolition debris off-site to the nearest applicable landfill facility. Excavation activities would require 4,500 truck hauling trips to haul 33,705 cubic yards of material off-site to the nearest applicable landfill facilities. Each Construction Phase would require 80 vendor trips per day. The Paving and Finishing, Landscaping, and Coating Phases would each require 40 vendor trips per day. Operation of the proposed project was expected to commence in March 2026. (AR 374.)

D.           Project Review

Between 1994 and 2000, the former Inglewood Redevelopment Agency had purchased approximately 2.63 acres comprising the City Parcel and transferred the land to the City pursuant to the Long-Range Property Management Plan prepared by the successor agency and the Redevelopment Dissolution Law (Health & Saf. Code §§ 34170, et seq.) (AR 733.) In September 2018, the City entered into an Exclusive Negotiating Agreement (“ENA”) with respondent Prairie Station, LLC to sell the City Parcel for the purpose of building an apartment building complex. (AR 733.) The ENA was subsequently extended and assigned to Prairie Station Holdings, LLC (“Developer”). (AR 733-34.) The City and Developer entered into the Disposition and Development Agreement (“DDA”) that provided for the acquisition of the City Parcel by the Developer and its development. (AR 734, 741-864.)

On or about August 5, 2021, the City announced the availability of the Mitigated Negative Declaration (“2021 MND”) for public review and comment concerning the Project. (AR 1610, 1612.) The discretionary actions necessary to implement the Project include the approval of the DDA, a Planned Assembly Development, an amendment to the General Plan, and a proposed zoning change. (AR 366.) Under the DDA, Prairie Station Holdings, LLC would purchase the City Parcel for $3,750,000. (AR 751.)

On or about October 20, 2022, the City announced the availability of a Revised Draft Initial Study and Mitigated Negative Declaration (“MND”). (AR 1619.) The Notice states: “The IS/MND assesses the proposed project’s impact on the environment. All impacts identified are mitigated to Less Than Significant level.” (AR 1619, 1621.). The Notice states: “Comments on the IS/MND must be received by November 8, 2022, at 5:30 PM. Written comments should be submitted via email or mail delivery service.…” (AR 1619, 1621, emphasis added.)

On or about October 21, 2022, Molly Greene of Lozeau Drury, LLP, a law firm based in Oakland, California, on behalf of SAFER emailed a letter to City Planner Marissa Fewell and others requesting notices pertaining to the Project. (AR 1666.) Greene provided no description of the organizational nature or purpose of SAFER or its geographical nexus to the proposed Project in Inglewood.

On or about October 27, 2022, Adam Frankel of Lozeau Drury submitted Comment Letter No. 2. (AR 1233, 1676.) In Comment Letter No. 2, Frankel wrote: “I am writing on behalf of Supporters Alliance for Environmental Responsibility (‘SAFER’) regarding the Revised Draft Initial Study and Mitigated Negative Declaration (‘IS/MND’) prepared for the [Project] ….” (AR 1233.) In Comment Letter No. 2, Frankel provided no description of the organizational nature or purpose of SAFER or its geographical nexus to the proposed Project in Inglewood, California. Frankel made no specific request for an extension of time to raise substantive environmental responses.

In response to Comment Letter No. 2, the City wrote:

This comment states that the letter is being written on behalf of the Supporters Alliance for Environmental Responsibility (SAFER) and that the IS/MND fails as an informational document. The comment further states that there is a fair argument that the proposed project may have adverse environmental impacts and requests that the City of Inglewood prepare an Environmental Impact Report (EIR) for the proposed project.

This comment does not address the contents of the IS/MND or raise any environmental issues. This comment letter will be forwarded to the decision makers for their consideration. Comment Letter No. 3 was also submitted by this commenter and is responded to below.

(AR 1234.)

On or about November 1, 2022, Frankel submitted Comment Letter No. 3. (AR 1235, 1678.) In Comment Letter No. 3, Frankel wrote: “I am writing on behalf of Supporters Alliance for Environmental Responsibility (‘SAFER’) regarding the City of Inglewood’s (‘City’) review of the Initial Study and Mitigated Negative Declaration (‘MND’), prepared for the [Project]….” (AR 1235.) In Comment Letter No. 3, Frankel provided no description of the organizational nature or purpose of SAFER or its geographical nexus to the proposed Project in Inglewood, California. Comment Letter No. 3 raised no specific and substantive environmental issues. Instead, Frankel indicated concern about the adoption of a Planned Assembly Development project and the City’s alleged plan to bypass the Planning Commission and bring the Project approvals directly to the City Council. (AR 1235-36.) Frankel made no specific request for an extension of time to raise substantive responses.

In response to Comment Letter No. 3, the City wrote:

This comment states that it is being written on behalf of the Supporters Alliance for Environmental Responsibility (SAFER) and that they have reviewed the IS/MND. The comment further states that the IS/MND should be presented to the Planning Commission and receive a public hearing because the proposed project requires approval of a Planned Assembly Development (PAD). The comment states that Inglewood Municipal Code Section 12-39.3 requires a Special Use Permit (SUP) for approval of PADs and Section 12-39.5 of the code requires a public hearing for a SUP before the Planning Commission. The comment concludes that without prior approval by the Planning Commission any request for approval by the City Council would violate the City's Municipal Code. Lastly, the comment states that a presentation of the proposed project before the Planning Commission would be in the best interest of the public.

The comment does not address the contents of the IS/MND or raise any new significant environmental issues. Consideration of the Disposition and Development Agreement (DDA) is the first action the City will take for this project. As such, the IS/MND would need to be certified at that time along with approval of the DDA. Subsequent discretionary applications for the project will require public hearings before the Planning Commission and City Council. At the time, those reviewing bodies will need to confirm that the scope of the applications are within the scope of the previously certified IS/MND.

(AR 1237.)

On December 1 and 8, 2022, the City posted Notice of a December 20, 2022, Public Hearing on the DDA and the MND for the Project. (AR 1626-30.)

On November 8, 2022, the South Coast Air Quality Management District (“SCAQMD”) submitted Comment Letter No. 4 on the revised MND for the Project. (AR 1238-40.) SCAQMD made “recommended health risk reduction strategies that the Lead Agency should include in the Final MND” and requested that the City consider “the impacts of air pollutants on people who will live in a new project and provide mitigation where necessary.” (AR 1238-39.) In response, the City stated that this comment does not address the contents of the IS/MND or raise any new significant environmental issues. (AR 1241.) The City further stated that CEQA case law does not require the City to assess the potential for off-site sources of emissions, such as the freeway, to impact future residents. (AR 1241.)

On or about December 19, 2022, one day prior to the public hearing and after expiration of the public review period, Frankel emailed a 106-page letter to various city officials. (AR 1691-1796.) Frankel wrote: “I am writing on behalf of Supporters Alliance for Environmental Responsibility (‘SAFER’) regarding the City of Inglewood’s (‘City’) review of the Initial Study and Mitigated Negative Declaration (‘MND’), prepared for the Prairie Station Multi-Family Residential Project (EA-MND-2020-061)….” (AR 1691.) In that letter, Frankel did not provide any description of the organizational nature or purpose of SAFER or its geographical nexus to the proposed Project in Inglewood, California.

In Part III of the December 19, 2022 Letter, Frankel for the first time raised substantive environmental concerns as follows:

The MND prepared for the Project is legally inadequate and fails as an informational document. SAFER has reviewed the MND with the assistance of numerous independent experts, including wildlife biologist Dr. Shawn Smallwood, Ph.D; environmental engineers Patrick Sutton, P.E., and Yilin Tian, Ph.D., of Baseline Environmental Consulting; indoor air quality expert and Certified Industrial Hygienist, Francis "Bud" Offermann, PE, CIH; and air quality experts Matt Hagemann, P.G., C.Hg. and Paul E. Rosenfeld, Ph.D., of the environmental consulting firm, Soil Water Air Protection Enterprise (“SWAPE”). The expert comments and CVs of these experts are attached, respectively in the order which they are named here, as Exhibits B, C, D, and E.

These independent experts’ findings regarding the MND's inadequacies constitute substantial evidence of a fair argument that the Project will have significant, unmitigated environmental impacts which the MND has failed to adequately address. These impacts include, but are not limited to: cumulatively significant health risks to future Project residents that would result from exposure to indoor formaldehyde emissions and diesel particulate matter emissions from the immediately adjacent I-105 freeway; insufficient mitigation of health risks to future Project residents and area residents resulting from the proposed Project's future construction and operational emissions; significant impacts to at least three special-status species living on or near the Project site; and insufficient mitigation of the Project's significant greenhouse gas and energy impacts. The full extent of these impacts is detailed in the attached exhibits, which are incorporated herein by reference in their entirety.

These expert findings make clear that the MND has failed to adequately disclose or mitigate the Project's environmental impacts. Therefore, the City must deny the proposed MND and direct Planning Staff to undertake the necessary efforts to prepare an EIR.”

(AR 1698-99.)

E.           Public Hearings

            On December 20, 2022, the City held a public hearing on the MND and DDA for the Project. (AR 1528-40.) The minutes show that Frankel made the following statements:

Adam Frankel stated that he was speaking on behalf of the Supporters Alliance For Environmental Responsibility (SAFER). He noted that SAFER had serious concerns regarding how the project was being reviewed and felt it violated the California Environmental Quality Act (CEQA). Additionally, Mr. Frankel discussed CEQA’s requirements regarding review procedures, project alternatives, the project’s environmental impact that had not been adequately mitigated, and provisions. Furthermore, he stated that SAFER believed the project was supposed to be brought before the Planning Commission and felt it was improper for the City Council to approve the Mitigated Negative Declaration (MND) under state and local laws and the provisions under the Inglewood Municipal Code. Finally, Mr. Frankel discussed SAFER’s professional review determinations, violations of state and local laws, the preparation of the MND, and the need for [the] planning department to prepare an Environmental Impact Report (EIR).

(AR 1542.)

            The minutes do not show that Frankel gave a description of the organizational nature or purpose of SAFER or its geographical nexus to the proposed Project in Inglewood, California. There is no mention of any appearance by any members of SAFER or by any of the experts identified in Frankel’s December 19, 2022 letter. The minutes do not show that Frankel discussed the December 19, 2022 letter and its particulars with the City Council or presented that letter, with exhibits, during the public hearing.

            By a vote of 5 to 0, the City Council voted to adopt the MND and to adopt Resolution No. 23-36 approving the DDA. (AR 1543.) On December 22, 2022, a Notice of Determination was filed with the County Recorder’s Office. (AR 1.)

On January 3, 2023, Richard Toshiyuki Drury of Lozeau Drury LLP sent to the City a notice of SAFER’s intent to file suit under CEQA. (AR 2095.) There is no mention of the organizational nature or purpose of SAFER or its geographical nexus to the proposed Project in Inglewood, California.

On January 5, 2023, Frankel sent to the City a Public Records Act Request on behalf of SAFER. (AR 2098.) It did not mention the organizational nature or purpose of SAFER or its geographical nexus to the proposed Project in Inglewood, California.

II.      Procedural History

On January 20, 2023, petitioner filed a Verified Petition for Writ of Mandate. On May 25, 2023, petitioner filed a First Amended Verified Petition for Writ of Mandate. On September 8, 2023, respondents City of Inglewood and City Council for the City of Inglewood filed an Answer. Real parties in interest K.I.G. Properties, LLC and Prairie Station, LLC also filed an Answer that same day.

            On November 30, 2023, petitioner filed an opening brief. On May 17, 2024, 2024, respondents filed an opposition, and real parties filed a joinder in that opposition. On June 14, 2024, petitioner filed a reply. On June 21, 2024, respondents filed evidentiary objections. On June 26, 2024, petitioner filed a response to the evidentiary objections.

The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

III.     Standard of Review

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.)

A city may issue a mitigated negative declaration when an initial study identifies potentially significant effects on the environment if the effects are mitigated to a less than significant level and “there is no substantial evidence in light of the whole record ... that the project [as mitigated] may have a significant effect on the environment.” (Pub. Res. Code § 21064.5; Guidelines § 15064(f)(2)[1]; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74.) To prevail on its challenge to the MND, a petitioner must “demonstrate by citation to the record the existence of substantial evidence in the record that supports a fair argument that the project may a have a significant effect on the environment.” (Joshua Tree Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 688.) “If the project is one ‘which may have a significant effect on the environment,’ an [environmental impact report] is required.” (No Oil, 13 Cal.3d 68, 74; see also Pub. Res. Code § 21151 [“All local agencies shall prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any project that they intend to carry out or approve which may have a significant effect on the environment”].)

Substantial evidence is defined as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (Guidelines § 15384(a).) “Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence.” (Ibid.)

          The CEQA Guidelines define “significant effect on the environment” as “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. An economic or social change by itself shall not be considered a significant effect on the environment. A social or economic change related to a physical change may be considered in determining whether the physical change is significant.” (Guidelines § 15382.)

IV.     Analysis

A.           Evidentiary Matters

Petitioner’s request to take judicial notice of the notification of review issued by the United States Fish & Wildlife Service entitled “Endangered and Threatened Wildlife and Plants; Review of Species That Are Candidates for Listing as Endangered or Threatened; Annual Notification of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions” is GRANTED, pursuant to Evidence Code § 452(c).

Respondents’ requests to take judicial notice of the First Amended Verified Petition (Exhibit A), respondents’ Answer to First Amended Petition (Exhibit B), real parties’ Answer to First Amended Petition (Exhibit C), and petitioner’s Statement of Issues are GRANTED, but only for the existence of the documents and not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)

            Petitioner’s request to take judicial notice of the agenda of the Inglewood City Council meeting on December 20, 2021 (Exhibit A) is DENIED. Respondents’ objection regarding the agenda is SUSTAINED. On August 2, 2023, respondents filed a Certification of Administrative Record. According to the Court’s August 8, 2023 scheduling order, “[a]ny objections to the contents of the administrative record shall be addressed consistent with Local Rule § 3.232(f).” (8/8/23 Order ¶ 1.) Local Rule § 3.232(f) states: “Any dispute over the contents of the record must be resolved by noticed motion.” No noticed motion was filed to dispute or augment the record.

            Petitioner’s request to take judicial notice of its Articles of Incorporation is GRANTED. (Evid. Code § 452(c); Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156, fn. 2.)

Respondents’ objections regarding the Articles of Incorporation and the declaration of Jon P. Preciado are OVERRULED. Extra-record evidence may be admitted to negate an affirmative defense of standing. (See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 575, fn. 5; Running Fence Corp. v. Superior Court (1975) 51 Cal.App.3d 400, 424, fn. 14.) New evidence may be submitted in reply to address “points ‘strictly responsive’ to arguments made for the first time in the opposition.” (Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 774.) Standing was only raised for the first time in any meaningful in opposition. Respondents are not prejudiced, as they have been able to substantively address the evidence in their evidentiary objections. (Obj. to Pet. Second RJN at 5:13-7:17; Obj. to Preciado Decl. at 5:1-7:5.)

B.           Substantial Evidence that Project May Have a Significant Effect on Environment

It is undisputed that no environmental impact report (“EIR”) was prepared for the Project. The essential issue is whether the record contains substantial evidence of a fair argument that the Project as mitigated may have a significant effect on the environment.

1.            Biological Impacts

An EIR is required when a project has the potential to “substantially reduce the habitat of a fish or wildlife species,” cause a “wildlife population to drop below self-sustaining levels,” “threaten to eliminate” an animal community, or “substantially reduce the number or restrict the range of an endangered, rare or threatened species.” (Guidelines § 15065(a)(1).)

            During the project review, petitioner presented the expert opinion of Dr. Shawn Smallwood, researcher of animal density and distribution, habitat selection, and conservation of rare and endangered species. (AR 1704-42.) Dr. Smallwood presented the results of a site visit conducted by Noriko Smallwood, a wildlife biologist, on November 14, 2022. (AR 1704-06.) Having walked around the perimeter of the Site with binoculars for 2 hours and 19 minutes, Ms. Smallwood detected 17 species of vertebrate wildlife, three of which were special-status bird species: Cooper’s hawk, red-tailed hawk, and western gull. (AR 1706-08.) Ms. Smallwood also saw a monarch butterfly, which is a federal candidate endangered species. (AR 1706-07.)

Dr. Smallwood applied a model to Ms. Smallwood’s results to estimate that, with repeated surveys, Ms. Smallwood would detect 91 species of vertebrate wildlife at the Site, 16 of which would be special-status species. (AR 1713-14.) The model was based on a survey across 167 square kilometers of annual grasslands of the Altamont Pass Wind Resource Area, where Dr. Smallwood performed 721 hours of surveys at 46 stations from 2015 through 2019. (AR 1713.)

Dr. Smallwood opined that the Project would impact habitat loss, wildlife movement, traffic impacts to wildlife, and bird-window collisions. (AR 1720-27.) With respect to habitat loss, Dr. Smallwood opines that the Project would increase habitat fragmentation, a process whereby available parcels for habitats diminish in size and become increasingly isolated. (AR 1720.) Habitat fragmentation and habitat loss have caused a 29% decline in overall bird abundance across North America over the last half century. (AR 1720.) Dr. Smallwood remarked: “The project site is one of the very last patches of open space that remains in the region; its loss to wildlife would likely cause much greater harm to wildlife than would the loss of the same-sized area in another less-urbanized setting.” (AR 1720.) Dr. Smallwood applied studies concerning bird nesting densities and loss of availability of the Project site for bird reproduction to estimate an annual loss of 287 birds. (AR 1720-21.)

            With respect to wildlife movement, Dr. Smallwood opined: “A site such as the

proposed project site is critically important for wildlife movement because it composes an increasingly diminishing area of open space within a growing expanse of anthropogenic uses, forcing more species of volant wildlife to use the site for stopover and staging during migration, dispersal, and home range patrol.” (AR 1721.) The Project would decrease the amount of open space for stopover and staging during migration, requiring volant wildlife to travel farther between remaining stopover sites and increasing the risks of exhaustion, disorientation, and starvation. (AR 1721.) 

To calculate traffic impacts to wildlife, Dr. Smallwood started with the MND’s prediction that “[t]he proposed land uses would generate 1,754 daily trips and approximately 16,355 vehicle miles traveled (VMT).” (AR 546, 546, 1723.) He then applied the findings of a study concerning roadside wildlife fatalities to predict that the Project’s vehicle trips would cause 327 annual wildlife fatalities. (AR 1723-24.)

            With respect to bird-window collisions, Dr. Smallwood observed that “[w]indow collisions are often characterized as either the second or third largest source or

human-caused bird mortality.” (AR 1724.) He then averaged the annual bird fatality rate per square meter of glass from various studies. (AR 1726.) Based on an estimated 4,000 square meters of glass in three 85-foot-tall buildings, Dr. Smallwood predicted that the Project would result in 292 annual bird deaths, including some special-status species. (AR 1726-27.)

            In contrast, the MND contained a finding that the Project would “not have an effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the [California Department of Fish and Wildlife] or the U.S. Fish and Wildlife Service (USFWS), and no impact would occur.” (AR 387.) The MND reasoned that the Project site “is currently vacant land located in an urbanized area and surrounded primarily by commercial and residential uses.” (AR  387.) The MND also explained that, based on a “search of the California Department of Fish and

Wildlife’s (CDFW) California Natural Diversity Database (CNDDB), the project site is not located in an area where has been recent siting of any endangered, rare, or threatened species.” (AR 387.) However, as explained by Dr. Smallwood, the CNDDB warns its users that it is only a “positive sighting database” and that it “does not predict where something may be found.” (AR 1716.) Indeed, the CNDBB itself notes that just because there is nothing on its map does not mean that there are no special status species present. (AR 1716.)

            Dr. Smallwood’s opinion constitutes substantial evidence of a fair argument that the Project has the potential to substantially reduce the habitat of wildlife species, cause a wildlife population to drop below self-sustaining levels, threaten to eliminate an animal community, and substantially reduce the number or restrict the range of an endangered, rare, or threatened species. (Guidelines § 15065(a)(1).) An EIR was required.

2.            Greenhouse Gas Impacts

An EIR is required when a project has the potential to “substantially degrade the quality of the environment.” (Guidelines § 15065(a)(1).) An EIR is also required when the project “has possible environmental effects that are individually limited but cumulatively considerable,” meaning “the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (Guidelines § 15065(a)(3).)

In the MND, in response to the question “Would the project…[g]enerate greenhouse gas emissions [“GHG”], either directly or indirectly, that may have a significant impact on the environment?”, the City indicated that the Project would have a “Less-Than-Significant-Impact.” (AR 398.)

The City calculated that the Project would emit 2,761.3 metric tons of carbon dioxide equivalent (“MTCO2e”) per year. (AR 399.) The City determined that this amount did not exceed the threshold of 3,000 MTCO2e that the South Coast Air Quality Management District published in draft interim guidance. (AR 398-99.)

Prior to the public hearing, petitioner presented the opinion of expert environmental engineers Patrick Sutton, P.E., and Dr. Yilin Tian. (AR 1744-51.) They explained that the 3,000 MTCO2e threshold was never adopted by the SCAQMD Governing Board. (AR 1745.) Consistent with that explanation, the MND also confirms that “[n]either the City nor SCAQMD has officially adopted a quantitative threshold value for determining the significance of GHG emissions that will be generated by projects under CEQA.” (AR 398.)

As noted by petitioner: “Thresholds of significance to be adopted for general use as part of the lead agency's environmental review process must be adopted by ordinance, resolution, rule, or regulation, and developed through a public review process and be supported by substantial evidence.” (Guidelines § 15064.7(b).) However, “Lead agencies may also use thresholds on a case-by-case basis as provided in [Guidelines] Section 15064(b)(2).” (Ibid.) “When using a threshold, the lead agency should briefly explain how compliance with the threshold means that the project's impacts are less than significant.” (Guidelines § 15064(b(2).)

In the MND, the City explained that a “Working Group” proposed a “tiered screening methodology for assessing the potential significance of GHG emissions generated by CEQA projects,” which was outlined in minutes dated September 28, 2010. (AR 398-99.) “[B]ased on the commercial elements comprising the proposed project,” the City determined that the 3,000 MTCO2e was the appropriate threshold. (AR 399.)

It is undisputed that the September 28, 2010 minutes are not included in the administrative record. “A lead agency enjoys substantial discretion in its choice of methodology. But when the agency chooses to rely completely on a single quantitative method to justify a no-significance finding, CEQA demands the agency research and document the quantitative parameters essential to that method. Otherwise, decision makers and the public are left with only an unsubstantiated assertion that the impacts…will not be significant.” (Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 228.) Here, the documentary basis upon which the City elected to use the 3,000 MTCO2e threshold is missing from the record. As a result, the public is uninformed as to reasons why any emissions below this selected threshold would not be significant.

Even if the minutes were contained in the administrative record, “[c]ompliance with the threshold does not relieve a lead agency of the obligation to consider substantial evidence indicating that the project’s environmental effects may still be significant.” (Guidelines § 15064(b)(2).) “A threshold of significance is not conclusive…and does not relieve a public agency of the duty to consider the evidence under the fair argument standard.” (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 342.)

The opinion of the environmental engineers presented by petitioner indicates that other air pollution control districts have adopted thresholds lower than 3,000 MTCO2e, including: (1) 1,100 MTCO2e (adopted by both the Sacramento Metropolitan Air Quality Management District and the Bay Area Air Quality Management District); (2) 1,150 MTCO2e (adopted by the San Luis Obispo County Air Pollution Control District); and (3) 2,500 MTCO2e (adopted by the County of San Diego). (AR 1745-46.) The 2,761.3 MTCO2e that the City calculates the Project would emit exceed these other formally adopted thresholds.

Based on the unsubstantiated 3,000 MTCO2e threshold selected by the City and the fact that the GHG emissions from the Project may exceed other formally adopted thresholds, there is a fair argument that the Project may have a significant cumulative effect on the environment. An EIR was required.

3.            Indoor Emissions

An EIR is required when the “environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.” (Guidelines § 15065(a)(4).) CEQA requires an analysis of “impacts on a project's users or residents that arise from the project's effects on the environment.” (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 387.) CEQA addresses human health and safety. (Id.at 386.)

Petitioner presented the expert opinion of Certified Industrial Hygienist and Professional Engineer Francis J. Offermann. (AR 1753-70.) Offerman noted that formaldehyde is an indoor air contaminant, a human carcinogen, and a potent eye and respiratory irritant. (AR 1754.) “The primary source of formaldehyde indoors is composite wood products manufactured with urea-formaldehyde resins, such as plywood, medium density fiberboard, and particleboard. These materials are commonly used in building construction for flooring, cabinetry, baseboards, window shades, interior doors, and window and door trims.” (AR 1754.)

            Even if the Project were compliant with a California Air Resources Board regulation meant to reduce formaldehyde composite wood products, Offermann opined that the median lifetime cancer risk to residents from the formaldehyde in the Project is still 120 per million. (AR 1755.) This is 12 times the cancer risk significance threshold of 10 per million established by the SCAQMD. (AR 1754, 1756.)

            Offermann further identified an existing cancer risk of 988 per million identified by SCAQMD due to the proximity of the I-105 freeway to the Project site. (AR 1756.) Offermann opined that the indoor air contaminants that would result from the Project would exacerbate this existing cancer risk. (AR 1756.)

Based on the toxic indoor formaldehyde emissions that may result from the Project, as well as the cumulative impact with the emissions from the I-105 freeway, a fair argument can be made that the Project may cause substantial adverse impacts on human beings. An EIR was required.                    

C.           Standing

Respondents do not address any of the above-discussed contentions by petitioner that an EIR was required because the record contains substantial evidence of a fair argument that the Project may have a significant effect on the environment. Instead, respondents argue that petitioner lacks standing to pursue the instant CEQA action.

As a preliminary matter, even though petitioner did not address the issue of standing in the opening brief, petitioner has not forfeited the issue of standing. Respondents are correct that “the burden to allege and establish standing lies with the plaintiff.” (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 810.) However, petitioner had no obligation to anticipate respondents’ standing defense in its opening brief. (See Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 775 [plaintiffs had no obligation in motion to anticipate and negate defense, plaintiffs could present evidence negating defense in reply].) Although respondents raised standing as their seventeenth affirmative defense (Resp. RJN Ex. B) and real parties denied petitioner’s allegations regarding standing (Resp. RJN Ex. C at ¶¶ 18, 19), “[a]n answer which by means of an indiscriminate general denial denies virtually indisputable matters—such as matters of public record—is highly suspect and may leave a plaintiff wondering whether other allegations which he honestly regards as beyond dispute, but which are not inherently indisputable, are really disputed by the defendant.” (Burke v. Superior Court (1969) 71 Cal.2d 276, 282-83.) Petitioner’s Articles of Incorporation were filed with the Secretary of State and are accordingly a matter of public record. (Pet. Second RJN, Ex. B.) Further, respondents asserted a total of 21 affirmative defenses and real parties largely denies the First Amended Petition. Given such boilerplate defenses and general denials, petitioner could not have been expected to address standing in its opening brief and may accordingly address respondents’ and real parties’ challenges to standing in the reply.

            With respect to standing, petitioner must show either that it has a beneficial interest in enforcement of respondents’ duties or that the exception for public interest standing applies. “A petitioner who is not beneficially interested in a writ may nevertheless have ‘citizen standing’ or ‘public interest standing’ to bring the writ petition under the ‘public interest exception’ to the beneficial interest requirement. The public interest exception ‘applies where the question is one of public right and the object of the action is to enforce a public duty—in which case it is sufficient that the plaintiff be interested as a citizen in having the laws executed and the public duty enforced.’” (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 913-14.)

In a citizen standing analysis, “[t]he courts balance the applicant’s need for relief (i.e., his beneficial interest) against the public need for enforcement of the official duty. When the duty is sharp and the public need weighty, the courts will grant a mandamus at the behest of an applicant who shows no greater personal interest than that of a citizen who wants the law enforced.” (Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th 1159, 1174.) “Judicial recognition of citizen standing is an exception to, rather than repudiation of, the usual requirement of a beneficial interest.” (Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 873.)

            Petitioner has alleged and proven public interest standing to pursue the instant action. Petitioner seeks to enforce a public duty—enforcement of CEQA. (FAP ¶¶ 4, 5; Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 272-73.) CEQA and its implementing regulations “embody California's strong public policy of protecting the environment,” “[i]nform governmental decision makers and the public about the potential, significant environmental effects of proposed activities,” and “[d]isclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved.” (Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 285; Guidelines § 15002(a)(1), (a)(4).)

Petitioner is also a California nonprofit corporation whose primary objective is, among other things, “to contribute to the preservation and enhancement of the environment; to advocate for…development projects that promote not only good jobs but also a healthy natural environment and working environment, including but not limited to advocating for changes to proposed projects…that, if adopted, would reduce air, soil and water pollution, minimize harm to wildlife…reduce traffic congestion, reduce global warming impacts, and assure compliance with applicable land use ordinances….” (FAP ¶ 7; Pet. Second RJN, Ex. B at Art. II, ¶ B.) Corporations may assert public interest standing. (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 168.)

In the objection to petitioner’s Second Request for Judicial Notice, respondents argue that petitioner was formed to evade anti-trust and RICO claims and challenge development projects on behalf of labor unions. “[W]here the claim of ‘citizen’ or ‘public interest’ standing is driven by personal objectives rather than ‘broader public concerns,’ a court may find the litigant to lack such standing…. For example…it would be improper for a petitioner—whether corporation or individual—to ‘attempt to use CEQA to impose regulatory burdens on a business competitor, with no demonstrable concern for protecting the environment.’” (SJJC Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.5th 1043, 1057-58.) Even if the instant petition were to benefit labor unions, respondents fail to show that petitioner has no demonstrable concern for environmental protection and therefore lacks standing. Even crediting respondents’ assertion that petitioner is a “front” for labor unions (Obj. to Pet. Second RJN at 6:15-18), “unions have standing to litigate environmental claims.” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1198.)

            Because petitioner has public interest standing, petitioner need not show any beneficial interest in the enforcement of CEQA.[2] (Save the Plastic Bag Coalition, 52 Cal.4th at 166, quoting Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98, 100-01 [“‘[W]here the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the [petitioner] need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced.’ ”].)

            Accordingly, petitioner has standing to bring the instant petition.

D.           Exhaustion of Administrative Remedies

Respondents and real parties also contend that petitioner has failed to prove exhaustion of administrative remedies.

Public Resources Code § 21177 codifies “without change the judicially created exhaustion doctrine.”[3] (See 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.” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536.) 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; see Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 909.) The exhaustion doctrine is “not satisfied here by a relatively few bland and general references to environmental matters.” (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198.)

Although the burden is on petitioner to show its CEQA claims were raised at the administrative level, for the same reason with respect to standing, petitioner was not required to directly address exhaustion of administrative remedies in the opening brief. (Golden Door, 53 Cal.App.5th at 775.)

Respondents argue that petitioner failed to exhaust administrative remedies by not submitting evidence during the public comment period. On or about October 20, 2022, the City provided notice that comments regarding the MND must be received by November 8, 2022. (AR 1619, 1621.) Petitioner did not submit evidence supporting its assertion that the Project would have a significant effect on the environment until December 19, 2022, after the public comment period but the day before the public hearing. (AR 1528-40, 1691-1796.) The minutes from the public hearing also reflect that petitioner raised “professional review determinations” and the need for an EIR during the hearing. (AR 1542.)

“CEQA does not require an agency to respond to comments that are received after close of the designated public review period.” (Chico Advocates for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839, 852, fn. 9; see also Guidelines § 15207 [“If any public agency or person who is consulted with regard to an EIR or negative declaration fails to comment within a reasonable time as specified by the lead agency, it shall be assumed, absent a request for a specific extension of time, that such agency or person has no comment to make. Although the lead agency need not respond to late comments, the lead agency may choose to respond to them”].)

            However, Public Resources Code § 21177(a) also allows for the presentation of evidence indicating noncompliance with CEQA “before the close of the public hearing on the project before the issuance of the notice of determination.” Petitioner indisputably presented its evidence before the close of the public hearing. “If the decision making body elects to certify the EIR without considering comments made at this public hearing, it does so at its own risk. If a CEQA action is subsequently brought, the EIR may be found to be deficient on grounds that were raised at any point prior to close of the hearing on project approval.” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1201.)

            Here, given the substantial evidence of a fair argument of a potential significant effect to the environment presented by petitioner prior to the notice of determination, the Court finds that petitioner exhausted its administrative remedies. Petitioner did not bury its evidence in a mass of documents, as real parties suggest in their joinder. Rather, petitioner asserted that the same expert opinions analyzed above constitute “substantial evidence of a fair argument that the Project will have significant, unmitigated environmental impacts which the MND has failed to adequately address.” (AR 1698.) Petitioner included the expert opinion in its comments to the City and referenced the opinions during the public hearing. (AR 1542, 1700-70.) The City had the opportunity to consider and respond to the evidence. Even though the evidence was presented on the eve of the public hearing, “‘expediency should play no part in an agency’s efforts to comply with CEQA.’ [Citation.]” (Bakersfield Citizens, 124 Cal.App.4th at 1201 [“As was cogently noted by the trial court, ‘the public agency decides when they are going to certify the EIR.... [¶] ... [¶] ... They didn't have to do it that night.’].)

While comments submitted after the close of the public comment period may delay certification, the CEQA process allows for such resulting delay. (See Bakersfield Citizens, 124 Cal.App.4th at 1201 [developer’s “complaint that allowing project opponents to raise objections after close of the public comment period for the draft EIR allows them to ‘sandbag’ project proponents and delay certification ‘ad infinitum’ should be presented to the Legislature, for it is a complaint about the design of the CEQA process”].) The CEQA process is concerned with providing decision-makers with information about potential significant effects to the public, having received such information, the City’s decision to proceed with certification of the Project without delay was done at its peril.

Petitioner exhausted its administrative remedies, and, as discussed above, the issues it raised required an EIR.

VI.     Conclusion

The petition is GRANTED. Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate.