Judge James C. Chalfant, Case 21STCP01969 2022-09-15 Tentative Ruling

NASA Services, Inc., et al. vs. City of Montebello, et al., 21STCP01969

Tentative decision on motion for leave to intervene: granted

Proposed Intervenors Gage Avenue Investment, LLC (“Gage Ave.”), Mater Montebello (“Mater”), 1717 Gage Road, LLC (“1717 Gage Rd.”), Hermark 25, LLC (“Hermark 25”), Hermark Investment Company (“Hermark Investment”), 901 Union Street, LLC (“901 Union”), R/G/G/L Corp. (“RGGL”), Peter Bacci, in Trust as Trustee of the Bacci Living Trust (“Bacci”), P.B. Industrial Holdings, LLC (“P.B. Industrial”) and Greenwood Ave Properties, LLC (“Greenwood Ave.”) move to intervene in this action with respect to the first and fourth causes of action for writ of mandate and declaratory relief, respectively, of the Petition of Petitioners NASA Services, Inc. (“NASA Services”) and 1701 Gage Road, LLC (“1701 Gage Rd.”).

The court has read and considered the moving papers, oppositions, and replies and renders the following tentative decision.

Petitioners NASA Services and 1701 Gage Road, LLC (“1701 Gage Rd. commenced this action against Respondents City of Montebello (“City”) and City Council of the City of Montebello (“City Council”) (collectively, “City”) on June 21, 2021, alleging causes of action for (1) traditional and administrative mandamus, (2) denial of substantive due process, (3) denial of equal protection, and (4) declaratory relief. The verified Petition alleges in pertinent part as follows.

On October 26, 2020, Petitioner NASA Services applied to the City for a conditional use permit (“CUP”) to allow for the operation of a solid waste transfer station on a site previously occupied by a glass recycling facility (“Project”). The Project entails obtaining a CUP to allow processing and transfer of up to 750 tons per day of municipal solid waste. A glass recycling facility formerly occupied the site, operating under CUP No. 2-94, which was approved in 1994.

NASA Services’ operation is located at 1701 Gage Road, Montebello, California (“Project Site”). The Project Site is located in the City’s M-2 (Heavy Manufacturing) Zone with a General Plan land use designation of Industrial. The Project Site is comprised of approximately 1.07 acres or 45,746 square feet (“SF”). The property is currently improved with an 1,856 SF wood-frame and stucco office building, a 3,500 SF metal building, 240 SF of paved parking/drive aisles, and approximately 6,000 SF of landscaping. The Project Site is currently utilized as a collection truck and roll-off container storage yard for NASA Services. Approximately 30 collection trucks and 60 roll-off bins can be stored on the site at any time. The facility currently operates between 3:00 a.m. – 5:00 p.m., Monday through Sunday, and is typically staffed by one to two employees.

Pursuant to the Project, the existing structures will be demolished, and a 26,940 SF building will be erected in its place. The building will consist of three elements: (1) a 25,250 SF transfer station building; (2) offices totaling 1,530 SF; and (3) a 160 SF scale house. The transfer station building will be approximately 40 feet tall and will incorporate a variety of building materials including decorative blocks along the lower portion of the walls as well as metal and translucent panels on the upper portions of the building. The building will be set back from the front (Union Street) property line by 10 feet, and 15 feet from the side (Gage Road) property line. The facility will accommodate 27 parking spaces, including one accessible parking space for employees and visitors along the west side of the property. On-site truck traffic will be directed only one-way to simplify traffic control and enhance the safety of the site. The driveway along Union Street will provide ingress and the driveway along Gage Road will provide egress. An additional driveway will be constructed along Union Street to provide employee and visitor access separate from the truck circulation. The facility will operate 3:00 a.m. – 8:00 p.m., Monday through Sunday.

The facility will operate as a 750 tons per day solid waste transfer station. Collection vehicles carrying municipal solid waste will enter the facility at the Union Street entrance, enter the building, weigh-in on the truck scale, tip their loads, then depart out the Gage Road exit. Larger trucks (transfer trucks) will enter the facility empty and will be loaded inside the building using an excavator or front-end wheel loader. Once a transfer truck is loaded, it will weigh out and departs to a landfill or off-site processing facility. All tipping, sorting, processing, and loading activities will occur entirely inside the enclosed building.

On May 9, 1994, the City’s Planning Commission (“Planning Commission”) approved CUP 2-94 to allow for the establishment of a recycling plant at the Project Site, in the M-2 (Heavy Manufacturing) Zone.

On October 26, 2020, NASA Services applied to the Planning Commission (case number CUP 02-94-M1) for a CUP to allow for the operation of a solid waste transfer station at the Project Site. NASA Services’ CUP application is considered a project under CEQA. City staff recommended a CEQA initial study to consider the Project’s potential impacts to the environment. The initial study was completed, which concluded that the project would have less than significant effects on the environment. Therefore, a negative declaration was prepared which analyzed the potential environmental impacts and found that the Project does not have the potential to, and will not, result in any significant environmental impacts.

At the January 5, 2021 Planning Commission public hearing on NASA Services’ application and the negative declaration, City staff presented the staff report with a recommendation of approval and included a draft resolution to approve CUP 02-94-M1 and adopt the negative declaration. The staff report provided a thorough review of the Project’s impacts, and the Project’s compliance with the applicable provisions of the City’s code and general plan. The Planning Commission disregarded the evidence presented by the staff and voted to deny NASA Services’ application.

On January 13, 2021, NASA Services timely filed an appeal pursuant to Montebello Municipal Code (“MMC”) section 17.78.070. The appeal sought review by the City Council to overturn the Planning Commission’s denial. On February 24, 2021, the City Council conducted a public hearing and received oral and written presentations from NASA Services and others in support of NASA Services’ appeal, and from parties opposed to the proposed Project. The City’s staff recommended approval of the Project, citing once again the lack of any significant environmental impacts and the Project’s compliance with the applicable provisions of the MMC.

After conclusion of the public hearing, the City Council directed City staff and the City Attorney to prepare a resolution denying NASA Services’ request and upholding the Planning Commission’s decision.

The City Council adopted the Resolution denying NASA Services’ appeal. The Resolution includes the following unsupported determinations: the proposed Project (1) is not consistent with the City’s general plan; (2) fails to meet the findings required by MMC sections 17.70.070 and 17.70.130; and (3) the initial study failed to properly and adequately study, analyze, and address the Project’s significant environmental impacts. In adopting the Resolution, the City Council disregarded the evidence and the incontestable determination of MMC compliance provided by the City staff.

On August 31, 2021, Respondents filed an Answer. On September 28, 2021, the court ordered all damages claims stayed. The trial setting conference was continued to November 18, 2021.

Mandatory intervention is required if the application is timely and the person seeking intervention (a) either has a statutory right to intervene or claims an interest relating to the property or transaction that is the subject of the action, and (b) is so situated that the disposition of the action may as a practical matter impair or impede the person’s ability to protect that interest, unless (c) that person’s interest is adequately protected by existing parties. CCP §387(b).

Permissive intervention is available so that “any person, who has an interest in the matter in litigation...may intervene in the action or proceeding.” CCP section 387(a). This section is to be construed liberally in favor of intervention. Simpson Redwood Co. v. State of California, (1987) 196 Cal. App. 3d 1192, 1201. The court has discretion to permit intervention when a party has a direct, not consequential, interest in the matter in litigation. Kobernick v. Shaw, (1977) 70 Cal. App. 3d 914, 919. In addition to a direct interest, intervention must not enlarge the issues raised by original parties, and not tread on the rights of the original parties to conduct their own lawsuit. See Kuperstein v. Superior Court, (1988) 204 Cal.App.3d 598, 600. The reasons for intervention must outweigh any opposition. Truck Insurance Exchange v. Superior Court, (1997) 60 Cal.App.4th 342, 346.

The Project is the demolition of existing structures on a 1.07 acre site at 1701 Gage Road, in the City’s Heavy Manufacturing and the erection of a 25,250 square foot solid waste transfer station building for processing and transfer of up to 1,500 tons per day of municipal solid waste; offices totaling 1,530 square feet; and a 160 square foot house. Mot. at 5. The Project Site is currently used for truck and container storage. Mot. at 5. It is surrounded by long-existing industrial uses and properties and a hotel. Roski Decl., ¶2; Webb Decl., ¶2; Wong Decl., ¶2; Di Sano Decl., ¶2; Bacci Decl., ¶¶ 2-4; Millman Decl., ¶¶ 2-4.

Proposed Intervenors, sent correspondence to the Planning Commission expressing their opposition to the Project. Glushon Decl., ¶¶ 2-5, Exs. 1, 2; Roski Decl., ¶¶ 3, 4, Ex. 1; Wong Decl., ¶3, Ex. 1; Di Sano Decl., ¶3, Ex. 1; Millman Decl., ¶5.

On January 5, 2021, the Planning Commission met at a regularly scheduled hearing to consider the Project. Glushon Decl., ¶6. During the hearing, neighboring property owners, including the Proposed Intervenors, testified against the Project, expressing concerns that the Project would have adverse impacts on their adjacent properties. Glushon Decl., ¶6; Roski Decl., ¶5; Wong Decl., ¶4; Bacci Decl., ¶5; Millman Decl., ¶5. The Planning Commission voted to deny the Project. Roski Decl., ¶6.

On February 24, 2021, the City Council met at a regularly scheduled hearing to consider Petitioners’ appeal. Glushon Decl., ¶7. Again, many neighboring property owners, including the Proposed Intervenors, sent correspondence to the City Council opposing the Project. They also testified against the land use entitlements for the Project, expressing concern that the Project would have adverse impacts on adjacent properties. Glushon Decl., ¶¶ 5, 7, Ex. 3; Roski Decl., ¶¶ 7-8, 9, Ex. 2; Webb Decl., ¶3; Wong Decl., ¶¶ 6-7, Ex. 2; Di Sano Decl., ¶3, Ex. 1; Bacci Decl., ¶¶ 7-8, Ex. 1; Millman Decl., ¶¶ 8-10; Exs. 1, 2.

The City Council directed staff and the City Attorney to prepare a resolution upholding the Planning Commission’s determination to deny the Project. Roski Decl., ¶10. The City Council thereafter adopted the Resolution to that effect. Roski Decl., ¶10.

Gage Ave. owns 1801 Gage Avenue, located about 250 feet south of Petitioners’ Project Site. Roski Decl., ¶2. Gage Ave. has owned this property for approximately 25 years. Roski Decl., ¶2. It is improved with an industrial building currently used by a food processing company. Roski Decl., ¶2.

Gage Ave. will be directly impacted by the court’s decision in whether to set aside the City’s determination to deny the Project. Roski Decl., ¶11. Such impacts include possible adverse water, noise, air quality, vector, litter and other related public health and safety impacts. Roski Decl., ¶11. The proposed Project is a change of use which is significantly more intensive than the current use and will significantly increase the truck traffic in the area, introducing odor and vermin. Roski Decl., ¶11. Gage Ave.’s current food manufacturing tenant has advised that it may not be able to continue operating if the Project is allowed. Roski Decl., ¶11.

901 Union owns the property located at 901 Union Street, less than a quarter mile from Petitioners’ Project Site. Webb Decl., ¶2. 901 Union has owned this property for approximately six years. Webb Decl., ¶2. It is improved with an industrial building currently used by a consumer products storage and distribution company. Webb Decl., ¶2.

901 Union will be directly impacted by the court’s decision whether to set aside the City’s determination to deny the Project. Webb Decl., ¶5. Such impacts include adverse odor, water, traffic, noise, air quality, vector, litter and other related public health and safety impacts arising from the proposed intensification of use. Webb Decl., ¶5.

Mater owns the property located at 7709 Telegraph Road, less than a quarter mile from Petitioners’ Project Site. Wong Decl., ¶2. Mater has owned this property for over 20 years. Wong Decl., ¶2. It is improved with a hotel which has been at this location since 1964. Wong Decl., ¶2.

Mater will be directly impacted by the court’s decision whether to set aside the City’s determination to deny the Project. Wong Decl., ¶9. Such impacts include adverse odor, water, noise, air quality, vector, litter and other related public health and safety impacts. Wong Decl., ¶9. Most importantly, the traffic disruption from the proposed Project and the runoffs generated by the operation of the Project will adversely impact the long-standing hotel use. Wong Decl., ¶9.

RGGL owns 1550 and 1600 Gage Rd., which are both approximately 175 yards from Petitioners’ Project Site. Di Sano Decl., ¶2. RGGL has owned these properties since the 1970’s. Di Sano Decl., ¶2. The properties are currently occupied by two tenants, a food distributor, and a food grade plastic wrap manufacturer. Di Sano Decl., ¶2.

RGGL will be directly impacted by the court’s decision in whether to set aside the City’s determination to deny the Project. Di Sano Decl., ¶4. Such impacts include adverse water, air quality, vector, litter and other related public health and safety impacts. Di Sano Decl., ¶4. Most importantly, the roads in this part of the City are in disrepair and the amount of proposed traffic proposed by the Project is beyond what these streets can reasonably accommodate. Di Sano Decl., ¶4. The noise and odor impacts would adversely impact RGGL’s tenants, both of which work in the food industry. Di Sano Decl., ¶4.

Peter Bacci is the Sole Trustee of the Bacci Living Trust and a manager of P.B. Industrial Holdings, LLC as well as Greenwood Ave Properties, LLC (collectively, “the Bacci Entities”). Bacci Decl., ¶1.

Bacci is the co-owner in common of the property located at 8117-8129 Slauson Avenue (“Slauson Ave. Properties”), which are approximately 1000 feet from Petitioners’ Project Site. Bacci Decl., ¶2. The Slauson Ave. Properties are occupied by an exhaust part distributor, which has been at the location for over 20 years, and several packaging and distribution of cannabis product uses. Bacci Decl., ¶2.

P.B. Industrial owns 75% of the real property located at 8033 Slauson Avenue, located approximately 995 feet from the Petitioners’ Project Site and improved with an industrial building used by a building/construction supplies distributor. Bacci Decl., ¶3.

Greenwood Ave owns 50% of the real property located at 1555 Greenwood Avenue, approximately 1,610 feet from the Petitioners’ Project Site. Bacci Decl., ¶4. The property is improved with an industrial building and used by a fire and plumbing supplies distributor. Bacci Decl., ¶4.

The Bacci Entities will be directly impacted by the court’s decision in whether to set aside the City’s determination to deny the Project. Bacci Decl., ¶10. Such impacts include adverse odor, health, water, traffic (the Project proposes voluminous truck trips), noise, air quality, vector, litter and other related public health and safety impacts. Bacci Decl., ¶10.

Kenneth Millman (“Millman”) is a manager of both 1717 Gage Rd. and Hermark 25, and the general partner of Hermark Investment (“Millman Entities”). Millman Decl., ¶1. 1717 Gage Rd. owns the property located at 1717 Gage Road, located immediately adjacent to Petitioners’ Project Site. 1717 Gage Rd. has owned this property for approximately 60 years. Millman Decl., ¶2. It is improved with an industrial building currently used for food distribution. Millman Decl., ¶2.

Hermark 25 owns the property located at 1725 Gage Road, immediately adjacent to 1717 Gage Road. Millman Decl., ¶3. It is improved with an industrial building currently used for food processing, warehousing and distribution. Millman Decl., ¶3. Hermark 25 has owned this property for approximately 60 years. Millman Decl., ¶3.

Hermark Investment owns the property located at 1708 Gage Road, which is across the street from the Petitioners’ Project Site. Millman Decl., ¶4. Hermark Investment has owned this property for approximately 60 years. Millman Decl., ¶4. It is improved with an industrial building currently used by a garment manufacturing use and showroom and offices. Millman Decl., ¶4.

The Millman Entities will be directly impacted by the court’s decision whether to set aside the City’s determination to deny the Project. Millman Decl., ¶12. Such impacts include adverse order, water, traffic, noise, air quality, vector, litter and other related public health and safety impacts. Millman Decl., ¶12. Most importantly, the proposed intensity of use will negatively impact adjacent uses by the increase in traffic, odor and vermin/vectors. Millman Decl., ¶12. Such impacts are particularly significant to the Millman Entities’ tenants who operate food processing and distribution businesses. Millman Decl., ¶12.

Proposed Intervenors retained counsel at the beginning of October 2021. Kropp Decl. ¶2. On October 13, 2021, Proposed Intervenors reserved the first available date for a motion to intervene on November 16, 2021. Kropp Decl., ¶3.

Proposed Intervenors seek leave for permissive intervention. Petitioners and the City both oppose. In part, Petitioners and the City object to mandatory intervention, but this objection is irrelevant as Proposed Intervenors only seek permissive intervention. See Pet. Opp. at 4-5; City Opp. at 2-3; Reply at 2.

Permissive intervention lies within the court’s discretion and is more liberally granted than mandatory intervention. The intervenor must show that it (1) has a direct and immediate interest in this proceeding, (2) intervention will not enlarge the issues under consideration, and (3) the reasons for intervention outweigh any prejudice to the existing parties. CCP §387(a).

There is no statutory time limit for filing a motion to intervene. Noya v. A.W. Coulter Trucking, (2006) 143 Cal.App.4th 838, 842. Rather, it is the general rule that a right to intervene should be asserted within a reasonable time and that the intervener must not be guilty of an unreasonable delay after knowledge of the suit. Allen v. California Water & Tel. Co., (1947) 31 Cal.2d 104, 108. Intervention is timely unless any party opposing intervention can show prejudice from any delay attributable to the filing of a motion to intervene. Truck Ins. Exchange v. Superior Court, (1997) 60 Cal.App.4th 342, 351 (motion to intervene filed in lawsuit pending for four years was timely because real parties had shown no prejudice other than being required to prove their case.) A “reasonable time” is measured not from the date the intervenor knew about the litigation, but rather from the date the intervenor knew or should have known their interests in the litigation were not being adequately represented. Lofton v. Wells Fargo Home Mortg., (2018) 27 Cal.App.5th 1001, 1013.

Petitioners argues that Proposed Intervenors’ motion is untimely, filed over four months after the Petition was filed. Pet. Opp. at 6. Petitioners note that the statute of limitations for judicial review of CUP actions is 90 days after the legislative body’s decision and the action must be both commenced and served on the legislative body within 90 days. Pet. Opp. at 6; Government Code § 65009. Proposed Intervenors were represented by counsel through the entire administrative process and should have known of the shortened statute of limitations. Pet. Opp. at 6.

Proposed Intervenors correctly point out in reply that the statute of limitations has nothing to do with the timeliness of their motion to intervene but rather concerns the timeliness of a petitioner’s lawsuit challenging a land use decision. Petitioners do not show unreasonable delay by the Proposed Intervenors who retained counsel at the beginning of October 2021. Kropp Decl. ¶2. Petitioners failed to show any prejudice from allowing intervention. Proposed Intervenors’ motion to intervene is timely.[2]

Proposed Intervenors assert that they have a direct and immediate interest in the outcome of the litigation because they are owners of real properties improved with industrial buildings and a hotel, located adjacent to and in the immediate community surrounding the Project. Mot. at 8. Proposed Intervenors assert that they are the persons the City’s zoning laws were enacted to protect and they participated in the Planning Commission and City Council proceedings in opposition to the Project. Mot. at 7. An outcome in favor of Petitioners would result in potential adverse effects such has traffic, odors, vermin, noise, water, litter, lost tenants, etc. Roski Decl., ¶11; Webb Decl., ¶5; Wong Decl., ¶9; Di Sano Decl., ¶4; Bacci Decl., ¶10; Millman Decl., ¶12.

The court agrees. The type of interest required for permissive intervention is not an interest in the property or transaction, but an interest in the lawsuit. The interest must not merely be consequential and instead must be such that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Rominger v. County of Trinity, (1983) 147 Cal.App.3d 655, 660-61. The phrase “direct and immediate” is construed broadly, given the liberal interpretation of section 387(a) required in favor of intervention. See Id. at 662-63 (proposed intervenor need not have specific legal or equitable interest in the subject matter of the litigation).

The interest must not merely be consequential and instead must be such that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Rominger v. County of Trinity, supra, 147 Cal.App.3d at 660-61.

In challenges based on environmental impacts, the direct and immediate interest may be a generalized concern about potential impacts to an adjacent property owner. A judgment in favor of Petitioners would result in a writ setting aside the City’s denial of the Project and permitting it to go forward. The impacts include adverse odor, water, noise, air quality, vector, litter and other related public health and safety impacts, as well as business impacts. These potential adverse environmental and business impacts on neighboring properties is a direct and immediate effect. While such effects dissipate for non-adjacent properties and not all of the Proposed Intervenors are adjacent to the Project Site (e.g., 901 Union and Mater), they all appeared at the hearings and/or filed written opposition. This is sufficient to demonstrate that the Proposed Intervenors’ strong interest in the litigation is direct and immediate.

Proposed Intervenors argue that their intervention will not enlarge the issues in the case and only seeks to defend Respondents’ denial of the Project. Mot. at 9.

Petitioners state that granting intervention would enlarge the issues and the parties interest outweigh the reasons for intervention. They do not state how the issues would be enlarged or why the parties’ interests outweigh the reasons for intervention. Pet. at 9-10.

The City does not address this issue directly but argues that the Proposed Intervenors will prevent any resolution other than trial because they will oppose anything other than upholding the denial of Petitioners’ application. City Opp. at 5.

As Proposed Intervenors are not bringing in any additional claims or evidence not already in the administrative record, their intervention would not enlarge the issues. An impact on possible settlement is not an enlargement of issues.

Proposed Intervenors argue that their reasons for intervention outweigh any reasons for opposing intervention. Mot. at 9-10. Proposed Intervenors wrote letters and attended the hearings for the Project. Glushon Decl., ¶6; Roski Decl., ¶5; Wong Decl., ¶4; Bacci Decl., ¶5; Millman Decl., ¶5. As a result, they have an intimate understanding of Petitioners’ application and its incompatibility with their properties. Proposed Intervenors contend that, while the City has a general interest in defending its land use decisions, no City official will be directly impacted by the outcome of the case. The City also has an interest in minimizing litigation costs which could undermine a robust defense of the case. Mot. at 10.

Petitioners only make a conclusory statement that the parties’ interests outweigh the Proposed Intervenors’ interests. Pet. Opp. at 9-10.

The City argues that the Proposed Intervenors will prevent any settlement as they will oppose any decision other than upholding the denial of the Petitioners’ application. As such, intervention would only serve to prolong, confuse, and disrupt the lawsuit. Proposed Intervenors have already expressed their concerns about the Project at the public hearings, the City will adequately represent their interests, and intervention would delay and prevent settlement. City Opp. at 5.

The court agrees with Proposed Intervenors, at least some of whom should have been named as Real Parties-in-Interest in the Petition. While Proposed Intervenors have made clear that they would object to anything aside from upholding the denial of the Project, and this fact would stall, delay, or prevent this case from settling, that fact does not outweigh their reasons for intervention. Indeed, no party, including the City, will adequately represent their interests in assuring that their rights are protected.

The reasons for Proposed Intervenors’ intervention outweigh the prejudice to existing parties.[3]

Proposed Intervenors’ motion for permissive intervention is granted. Proposed Intervenors are ordered to file their Complaint-in-Intervention and answer the Petition within 20 days. Petitioners and the City are not required to respond to the Complaint-in-Intervention.

[1] Although virtually irrelevant to the motion’s outcome, the court has ruled on Petitioners’ written evidentiary objections. The clerk is ordered to scan and electronically file the rulings.

[2] Petitioners also argue that Proposed Intervenors have not exhausted all administrative remedies. If Petitioners were to obtain a ruling in their favor, Proposed Intervenors would be required to exhaust all of their administrative remedies prior to seeking review. Ultimately, Proposed Intervenors are prematurely seeking judicial intervention when they do not have any interest in the proceeding ripe for judicial review. Pet. Opp. at 7-8. This argument is spurious. Proposed Intervenors do not have an administrative remedy to exhaust; they are defending a decision in their favor.

[3] The court need not address Petitioners’ argument in the alternative that the court should limit the Proposed Intervenors to participation as amicus curiae. Pet. Opp. at 10.