Judge James C. Chalfant, Case Number: 21STCP01969, Date: 2023-05-25 Tentative Ruling

Petitioners NASA Services and 1701 Gage Road, LLC (collectively, “NASA”) seeks a writ of mandate compelling Respondents City of Montebello (“City”) and City Council of the City of Montebello (“City Council”) (collectively, “City”) to grant NASA’s conditional use permit (“CUP”) application.

The City opposes. Intervenors Gage Avenue Investment, LLC, Mater Montebello, 1717 Gage Road, LLC, Hermark 25, LLC, Hermark Investment Company, 901 Union Street, LLC, R/G/G/L Corp., Peter Bacci, in Trust as Trustee of the Bacci Living Trust, P.B. Industrial Holdings, LLC, and Greenwood Ave Properties, LLC separately oppose in a joint opposition.

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

Petitioners commenced this action 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.

NASA’s 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.

On May 9, 1994, the City’s Planning Commission (“Planning Commission”) approved CUP 2-94 to allow for the establishment of a glass recycling plant at the Project site. NASA currently uses the Project site as a collection truck and roll-off container storage yard. Approximately 30 collection trucks and 60 roll-off bins can be stored on the site at any time. The facility operates between 3:00 a.m. – 5:00 p.m., Monday through Sunday, and is typically staffed by one to two employees.

On October 26, 2020, NASA applied to the City for a CUP to allow the operation of a solid waste transfer station on the Project site. NASA seeks a solid waste transfer station to process and transfer of up to 750 tons per day of municipal solid waste. Pursuant to the Project, the existing structures will be demolished and a 26,940 sf building will be erected in its place.

NASA’s CUP application is considered a project under CEQA. City staff recommended a CEQA initial study to consider the Project’s potential impacts on the environment. The initial study concluded that the Project would have less than significant effects on the environment. A negative declaration was prepared which analyzed the potential environmental impacts and found that the Project does not have the potential to result in any significant environmental impacts.

At the January 5, 2021 Planning Commission hearing on the CUP application and the negative declaration, City staff presented the staff report with a recommendation of approval 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 denied the CUP application.

On January 13, 2021, NASA timely filed an appeal pursuant to Montebello Municipal Code (“MMC”) section 17.78.070. NASA sought the City Council’s review 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 and others. The City’s staff again recommended approval of the Project, citing the lack of any significant environmental impacts and the Project’s compliance with the MMC.

The City Council denied the appeal and directed City staff and the City Attorney to prepare a resolution denying NASA’s request and upholding the Planning Commission’s decision (the “Resolution”). The Resolution includes unsupported determinations that the 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 fails 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 October 4, 2022, Intervenors filed a Complaint-in-Intervention alleging in pertinent part as follows.

The Project site is in an M-2 (Heavy Manufacturing) Zone. The Project calls for demolition of an existing structure on the Project site and erection of (1) a 25,250 sf solid waste transfer station building that can process and transfer 1,500 tons per day, (2) 1,530 sf of offices, and (3) a 160 sf house. The City’s initial study found that the Project would have less than significant impacts on the environment, and a negative declaration was prepared.

At the Planning Commission’s hearing on January 5, 2021, Intervenors and other neighboring property owners testified against the Project. They expressed concern that the Project would have adverse impacts on adjacent properties and that the negative declaration was insufficient under CEQA. The Planning Commission voted to deny the requested entitlements for the Project.

NASA appealed the denial. At the City Council hearing on February 24, 2021, Intervenors and other neighboring property owners again testified against the land use entitlements for the Project. After full consideration of the appeal, the City Council directed staff and the City Attorney to prepare the Resolution which the City Council then adopted. Intervenors request that the court deny NASA’s Petition.

On September 15, 2022, the court granted Intervenors’ motion to intervene. Intervenors filed their Complaint-in-Intervention and Answer on October 4, 2022.

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or traditional mandamus (CCP §1085). A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....” CCP §1085. CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15. The decision on issuance of a CUP is a quasi-judicial, administrative decision governed by CCP section 1094.5. See Jacobson v. County of Los Angeles, (1977) 69 Cal. App. 3d 374, 391.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. Instead, that issue was left to the courts. In cases other than those requiring the court to exercise its independent judgment, the substantial evidence test applies. CCP §1094.5(c). Land use decisions do not typically involve vested rights requiring independent review. See PMI Mortgage Insurance Co. v. City of Pacific Grove, (1981) 128 Cal.App.3d 724, 729. The granting of a permit or variance does not infringe on the fundamental vested rights of adjoining property owners. Bakman v. Dept. of Transportation, (1979) 99 Cal.App.3d 665, 689-90. There is no vested right in the enforcement of a zoning ordinance. Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach, (2001) 86 Cal.App.4th 534, 552. Therefore, the court’s review in this case is for substantial evidence.

“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California Youth Authority”) (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value. Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n.28. An agency’s reliance “upon the opinion of its staff in reaching decisions … has been recognized as constituting substantial evidence.” Browning-Ferris Industries v. City Council, (1986) 181 Cal.App.3d 852, 866.) Substantial evidence may include statements of neighbors “if they are based on relevant personal observations or involve ‘nontechnical’ issues.” Bowman v. City of Berkeley, (“Bowman”) (2004) 122 Cal.App.4th 572, 583; see also McCoy v. Gustafson, (2009) 180 Cal.App.4th 56, 100 (applying Bowman’s lay opinion standard for a nuisance claim).

The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision. California Youth Authority, supra, 104 Cal.App.4th at 585. “‘[T]he test of substantiality must be measured on the basis of the entire record, rather than by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence.’ [Citations.]” Martori Brothers Distributors v. Agricultural Labor Relations Bd., (1981) 29 Cal.3d 721, 727 (italics added.)”; Gerawan Farming, Inc. v. Agric. Labor Relations Bd., (2018) 23 Cal.App.5th 1129, 1162. The standard is met if there is relevant evidence in the record which a reasonable mind might accept in support of the findings. Id. (citation omitted). If there is a plausible basis for the decision, the fact that contrary findings may be equally reasonable, or even more so, is of no moment. Id.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, 11 Cal.3d at 515.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.” Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691. The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole record. Young v. Gannon, (2002) 97 Cal.App.4th 209, 225.

The legislative body of a city or county may, by ordinance, create and establish either a board of zoning adjustment, or the office of zoning administrator, or both. Government Code (“Govt. Code”) §65900. It may also, by ordinance, create and establish a board of appeals. Govt. Code §65900.

If a city or county establishes a board of zoning adjustment, that board shall hear and decide applications for conditional uses or other permits when the zoning ordinance provides therefor and establishes criteria for determining those matters, and applications for variances from the terms of the zoning ordinance. Govt. Code §65901(a). In the event that neither a board of zoning adjustment or the office of a zoning administrator has been created and established, the planning commission shall exercise all of the functions and duties of said board or said administrator. Govt. Code §65902.

A board of appeals, if one has been created and established by local ordinance, shall hear and determine appeals from the decisions of the board of zoning adjustment or the zoning administrator, as the case may be. Govt. Code §65903. Procedures for such appeals shall be as provided by local ordinance. Govt. Code §65903. Such board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision, or determination as should be made, and such action shall

For zoning purposes, the terms “abut,” “adjoining,” or “contiguous” means two or more lots or parcels of land sharing a common boundary line. MMC §17.08.010. “Adjacent” means lots or objects which are located in close proximity to each other, separated only by an alley, street, highway, or recorded easement. MMC §17.08.030.

The Planning Commission shall have the authority to grant a CUP subject to the MMC’s procedures. MMC §17.70.020. Before any CUP shall be granted, all of the following findings must be made: (1) the site for the proposed use is adequate in size and shape; (2) the site has sufficient access to streets and highways, and is adequate in width and pavement type to carry the quantity and quality of traffic generated by the proposed use; (3) the proposed use will not have an adverse effect upon adjacent or abutting properties; and (4) the proposed use is consistent with the objectives of the community redevelopment project area in which the site is located. MMC §17.70.070.

Any condition imposed upon the granting of a CUP may be modified or eliminated, or new conditions may be added, provided that the granting body shall first conduct a public hearing in the same manner as required for the granting of the original permit. MMC §17.70.130. No modification shall be made unless the Planning Commission or City Council finds that such modification is necessary to protect the public interest and/or adjacent or abutting properties or, in case of deletion of an existing condition, that such action is necessary to permit reasonable operation and use under the conditional use permit. MMC §17.70.130.

The decision of the Planning Commission in granting or denying a CUP shall go into effect in 20 days, or upon the day following the first regular City Council meeting after its decision, whichever shall occur first, unless within such period an appeal in writing is filed by the applicant or an opponent with the city clerk. MMC §17.78.070. At the same time as the filing of an appeal, the appealing party shall pay a filing and processing fee in a sum to be set by resolution of the City Council. MMC §17.78.070.

Upon receipt of the appeal, the City Council shall set the matter for hearing before itself within 30 days from the receipt of the appeal. MMC §17.78.080. Notice of the hearing shall be given in accordance with the MMC. MMC §17.78.080. At such hearing, the City Council shall make the same findings and consider the same criteria as required of the Planning Commission. MMC §17.78.080. Any action by the City Council on such matters shall be final. MMC §17.78.100.

On May 9, 1994, the Planning Commission approved CUP 2-94 to allow for the establishment of a recycling plant at the Project site, which was in the M-2 (Heavy Manufacturing) zone. AR 22, 1446-49. As a condition of approval, all active use areas, including containment bins, had to be fully enclosed. AR 30, 712. Condition 6.d also disallowed garbage and food waste processing and required removal of any incidental amounts within 48 hours. AR 712.

Sometime afterwards, NASA converted the Project site to a collection truck and roll-off container storage yard that is not open to the public. AR 1468. The site has a maximum capacity of 30 collection trucks and 60 roll-off bins. AR 1468. The yard is open seven days a week from 3:00 a.m. to 5:00 p.m. and typically has one or two employees on duty. AR 1468.

On October 26, 2020, NASA filed the CUP application for the Project site. AR 1. The application sought to modify the existing CUP to allow the Project site to receive up to 1,500 tons per day of municipal solid waste. AR 18, 79. NASA explained that it planned to build a solid waste transfer facility. AR 3. Collection and transfer trucks would enter from Union Street and exit onto Gage Road, in a circulation pattern that minimizes cross traffic. AR 3. The 25,250 sf transfer station building would allow multiple vehicles on the tipping floor, inbound and outbound scales, adequate room for vehicle circulation and maneuvering, administrative offices, parking, and landscaping. AR 3.

All tipping, sorting, processing, and loading activities would occur inside the enclosed transfer station building. AR 18. Whereas the truck and roll-off bin storage yard on the Project site currently has 104 vehicle trips per day, the Project would generate 426 additional vehicle trips when operating at full capacity. AR 18.

City staff recommended a CEQA initial study of environmental impacts. See AR 626. The initial study prepared by Clements Environmental (“Clements”) and dated October 2020 explains in the project description that the 25,250 sf transfer station building would be about 40 feet tall. AR 628. It would incorporate a variety of building materials, including decorative blocks and metal and translucent panels on the upper portions. AR 628. The building would be setback ten feet from the front property line and 15 feet from the side property line. AR 628. NASA would direct all onsite truck traffic one-way to simplify traffic control and enhance site safety. AR 628.

The initial study asserted that most categories of environmental impact would not occur at all and that the level of some types of impact would be less than significant. AR 730-748. The Project Site is in an M-2 (Heavy Manufacturing) zone, which is reserved for the heaviest industrial uses in the City. AR 1486. The four adjacent properties are also zoned M-2; all four are warehouses with two of them doubling as manufacturing facilities. AR 1471. The Project would not conflict with any land use plan, policy, or regulation of an agency with jurisdiction. AR 1486.

For air quality, the initial study stated that there would be a less than significant impact on odors adversely affecting a substantial number of people. AR 732. The Project would mitigate odors by processing and loading waste inside the building, which would have negative air pressure and an overhead misting system with neutralizing agents. AR 733. The initial study did not address odor emissions from the garbage trucks. See AR 733. The trucks are required to comply with the California Air Resources Board’s rule adopted in 2004 and eventually all collection trucks will operate with compressed natural gas (“CNG”). AR 732.

Hazardous waste would not be accepted. AR 739. If some incidental hazardous waste is onsite, the facility would comply with all requirements of the Solid Waste Facility Permit and Department of Toxic Substance Control. AR 739. The initial study concluded there would be a less than significant impact related to the release of hazardous materials. AR 739.

As for water quality, any impact from a violation of water quality standards or waste discharge requirements would be less than significant. AR 739. The Project would not impact surface or groundwater because all industrial material storage, handling, and activity would be indoors. AR 740. The facility is completely paved and there will be no significant change in drainage pattern. AR 740. The Project also would not substantially increase the amount of surface runoff or contribute to runoff which would exceed the capacity of the existing or planned stormwater drainage system. AR 740. The facility would comply with all requirements of the Industrial Stormwater General Permit Order. AR 740.

For noise, demolition of the existing buildings and construction of a new building could result in a substantial temporary increase in ambient noise levels. AR 646. Because construction would follow all local general plans, noise ordinances, and applicable standards, this impact would be less than significant. AR 646. Upon completion of construction, all Project activities except for truck traffic would occur inside the building, and noise levels not expected to exceed standards of the General Plan or noise ordinance. AR 646.

The initial study concluded that the Project would not have a significant effect on the environment and Clements prepared a negative declaration. AR 1474.

The Planning Commission heard the CUP application on December 1, 2020. AR 44-47, 78.

At the December 1, 2020 meeting, Assistant Planner Saara Chaudry (“Chaudry”) explained that Planning staff had recommended an initial study to assess the environmental impacts for the Project under CEQA. AR 78, 80. The initial study revealed that the Project would have less than significant impacts on the environment, and a negative declaration was prepared to that effect. AR 80.

In a written comment, 901 Union opposed the Project as a nuisance and detriment to its property. The City should not allow a use that would negatively impact the City in an area that has become an economic engine. AR 81, 116.

Another written comment asserted that an environmental impact report (“EIR”) was necessary under CEQA for any trash-related business. AR 81, 115.

Another commenter, Robert Glushon, Esq. (“Glushon”), alleged that there were several Brown Act issues with the notice of the hearing. AR 82, 107. That notice said that the Project was substantially similar to the previously approved glass recycling use but the Project site is currently a truck storage facility, and in any case glass recycling is different from solid waste management. AR 83. The initial study did not evaluate several of the potential impacts that are always evaluated with solid waste transfer stations. AR 83. One finding for the proposed use must be that it cannot have any adverse effect on the adjacent properties, but the City needed to evaluate these impacts further before it could make that finding. AR 83.

Representatives from Clements responded to Glushon’s comment. AR 84. Clements had reviewed all the impacts listed in Glushon’s letter, including air quality, odor, health, runoff, noise, and traffic, and determined that all of them were less than significant. AR 84. Clements has done a lot of work with similar facilities, so it understood the potential impacts and how to address them. AR 84. The Project would be a state-of-the-art solid waste transfer station with all uses contained inside a building. AR 85. NASA’s vehicles use CNG to further minimize air impacts. AR 85. The Project would have various mitigation measures and an aesthetically compatible design with the surrounding neighborhood that conceals what is occurring on the Project site. AR 85. The regulatory environment in place would reduce most potential impacts to insignificant levels. AR 85.

The Planning Commission voted to postpone the decision to December 15, 2020 and issued new notices for that date. AR 90, 118-21.

Glushon submitted a December 1, 2020 letter to the Planning Commission which explained that most proposed solid waste transfer station uses require either an EIR or mitigated negative declaration because of certain potential significant impacts including odor, health, water runoff, traffic, noise, air emissions and quality, storm water quality, vectors like rodents and scavenging birds, litter, and public safety and resources. AR 257.

Glushon further explained that the properties adjacent to the Project site included food processing, food and beverage, storage, fashion design and apparel, offices, and other uses incompatible with the proposed facility. AR 257. Water runoff from the Project site already runs behind and under some of those buildings and runoff from a solid waste facility would have a significant impact on those properties. AR 257.

The Planning Commission voted to skip the agenda item and adjourn until January 5, 2021. AR 303.

The staff report recommended adoption of a resolution approving the CUP. AR 318. The report explained that the Project facility would transfer waste from smaller hauling trucks onto larger hauling trucks. AR 319. This would allow for consolidated operations and a more efficient system of waste transportation. AR 319.

The Project is consistent with two goals of the City’s General Plan. AR 1007. Goal #1 is to formulate a plan which is responsive to the needs of the community and permits the orderly arrangement of land uses, while permitting sufficient areas for reasonable development. AR 1007. Goal #4 is to provide for growth and development of an industrial area in a manner compatible with other uses. AR 1007. The Project also is compatible with Policy #4 to preserve frontage along Santa Ana Freeway for industrial and compatible commercial uses. AR 1007.

The Project meets all four requirements under MMC section 17.70.070. AR 320-22. The Project site (1) is adequate in size and shape, (2) has sufficient access to streets and highways, adequate in width and pavement type to carry the quantity and quality of traffic generated by the proposed use, (3) would not have an adverse effect upon adjacent or abutting properties, and (4) conforms with the goals, policies, and objectives of the General Plan, the MMC, and any applicable specific plan. AR 320-22.

For the first requirement, the 1.07-acre lot is big enough for the facility to meet all setback requirements, height requirements, and floor area to lot size requirements. AR 1007. The proposed footprint is 26,940 sf with a building height of 40 feet. AR 1007. The Project would provide 27 off-street parking spaces, which is sufficient to meet MMC requirements. AR 1007. All proposed development meets development standards for the M-2 zone. AR 1007. The Project site is therefore adequate in size and shape. AR 1007.

For the second requirement, the streets and highways that serve the Project site are designed to accommodate the heavy industrial vehicles NASA would use. AR 1007. The site is located in an industrial area zoned M-2 (Heavy Manufacturing), with frontage on Union Street and Gage Road. AR 1007. Two major roads, Greenwood Avenue and Telegraph Road, provide access to Union and Gage, respectively. AR 1008. The truck traffic would mostly consist of collection vehicles, which themselves are maneuverable and accessible to standard residential and commercial neighborhoods. AR 1008. Access to the I-5 Freeway is therefore available via streets adequate in width, pavement type, and classification to accommodate a proposed transfer station. AR 1008.

For the third requirement, the Project is in the M-2 area and bordered by industrial development in all directions. AR 1008. It is designed to minimize the potential adverse effects on adjacent and abutting properties by conducting all waste material processing inside the transfer station building. AR 1008. The building will be equipped with a negative air pressure system and overhead misting system to control dust and odors. AR 1007. It will provide a safe and efficient traffic circulation system that will employ spotters to further minimize traffic impacts on adjacent properties and businesses. AR 1008. The Project would be an asset to the area because its aesthetically pleasing design would contribute to the surrounding properties. AR 1008.

For the fourth requirement, the Project is consistent with Goal #1. AR 1008. The facility would provide a vital service to the local community. AR 1008. It would facilitate efficient transfer of solid waste from residential, commercial, and industrial land uses to the local landfills. AR 321. The prime location for such a facility is close to the communities it serves but with adequate distance from sensitive receptors such as residential communities and schools. AR 321-322. The Project site is the most ideal site for this transfer facility. AR 322.

MCC section 17.70.130 allows the imposition, modification, or elimination of a condition on a CUP only if the Planning Commission finds that such modification is necessary to protect the public interest and/or adjacent or abutting properties. AR 322. The staff report found that the proposed modification would provide an essential service to the community by facilitating efficient transfer of solid waste to local landfills. AR 322. The Project will protect the public interest because the new facility would provide adequate community infrastructure to support and service City residents. AR 322.

Clements prepared a December 10, 2020 memorandum to clarify and expand on the proposed Project’s operations. AR 436. The memorandum explained that, although the existing CUP allows NASA to operate a glass recycling operation on the Project site, it has not done so for years. AR 436. NASA uses the property as a truck yard for solid waste collection vehicles and empty roll-off containers. AR 436.

The Project would provide a transfer station to consolidate waste from multiple collection vehicles into larger, high-volume transfer trucks for efficient and economical shipment to disposal sites. AR 436. Such stations increase the efficiency of collection trucks because they reduce driving times and travel distances, which in turn reduce vehicle emissions and overall vehicle miles. AR 437. All tipping and loading activities would occur entirely inside the building to minimize litter, odors, and vectors. AR 437.

The Clements memorandum included pictures of large garbage collection vehicles and the interior of a typical transfer station. AR 438-39.

Samantha Millman (“Samantha”) submitted a comment letter as manager of three properties adjacent to the Project site: Hermark 25, Hermark Investment, and 1717 Gage Rd. AR 449-450, 581. She explained that the Project site is quiet because NASA has not acted on its existing CUP to recycle glass. AR 449, 581. The businesses that operate on Gage Road are quiet office, hospitality, warehousing, distribution, and food processing facilities. AR 449. A hotel is just “a few doors down” from the Project site. AR 449. The property across the street from the site is an apparel company with predominantly office and showroom space. AR 450. Samantha’s tenant at 1717 Gage Road, directly adjacent to the Project site, distributes food products and sundries. AR 450.

These businesses will be significantly harmed if a solid waste transfer station that processes up to 1,500 tons of solid waste per day opens next door. AR 450. Such a facility will cause increased odor, noise, and traffic. AR 450. They are always dirty, produce odor, increase traffic and emissions, and attract vermin. AR 450. The City should also study drainage from the Project site, which runs behind the building at 1717 Gage Road, under the building at 1725 Gage Road, and through the parking lot of the hotel at the end of Gage Road. AR 450.

Angela Wong (“Wong”) is the CEO of Quality Inn and Suites, which operates a hotel close to the Project site. AR 452, 1224. Because of its close proximity to the hotel, the Project would negatively affect the hotel’s business and the area as a whole. AR 452. The 420 additional vehicle trips during business hours, most of which would be collection and transfer trucks, would significantly increase the area’s traffic. AR 452. Both the stigma of a waste processing plant in the area and the environmental issues like truck and operational noise, odor, and vermin would have a negative impact on the neighborhood. AR 452, 1224. The reputation of the area would suffer. AR 452.

Doron Kadosh (“Kadosh”) is the owner of 2253 Apparel, which operates a design showroom, warehouse, and offices at 1708 Gage Road. AR 454. Her company chose this location because it is a quiet street and area. AR 454. A CUP would result in over 400 daily vehicle trips past the business, most of which would be large garbage trucks. AR 454. The noise and emissions from those trucks, along with the odors of the Project facility and vermin it would attract, are intolerable to 2253 Apparel. AR 454.

Michael Roski (“Roski”) is the managing partner of Gage Ave, which owns property 250 feet south of the Project site. AR 456. Gage Ave’s tenant is a food manufacturing company that has expressed concern that it does not want to be next to a “dump station.” AR 456. The Project is a more intensive use of the Project site than its current use. AR 456. It would impact the immediate surrounding area with high volume trash truck traffic, smells, odors, rodents, and other unwanted affects. AR 456.

There is no EIR for the Project, and any EIR would disfavor it. AR 456. The surface water from the Project site runs directly under Roski’s building and onto the neighboring hotel property. AR 456. Roski has not heard of any water treatment plans to address the concerns of adjacent property owners that the run-off water would be contaminated. AR 456.

CJ Distribution CEO John Huang (“Huang”) engages in wholesale distribution of foods and restaurant supplies a few buildings away from the Project site. AR 461. His business thrives because of the clean streets, quiet surroundings, light traffic, and orderly environment. AR 461. The Project site is only a few buildings away from his and would introduce heavy traffic, unpleasant odors, pest infestation, and health hazards. AR 461.

Peter Bacci (“Bacci”) is an industrial real estate broker. AR 478. He asserted that the Project would cause a significant negative impact to the property owners and tenants around the Project site because it would diminish property values and hinder the ability to attract investors and tenants due the uncertainty of the environment, the stigma of the use, and the risk of contamination. AR 478.

Attorney Shahen Hairapetian (“Hairapetian”) asserted that the criticism of the CUP Application is primarily anecdotal and failed to address the applicable law and requirements. AR 470.

Planning staff made a presentation to the Planning Commission at the January 5, 2021 meeting. AR 419. Staff explained that the main function of the Project is to reduce the milage of City vehicles by providing a place to transfer waste from smaller to larger hauling trucks. AR 424.

Clements’ representative explained that it prepared a negative declaration for the Project because the initial study revealed no areas of impact that would require additional mitigation measures. AR 512.

Kenneth Millman (“Kenneth”) stated that he is a principal owner of properties adjacent to the Project site. AR 513. He noted that the CUP for recycling clean glass, which was operated for a short time, was subject to stringent restrictions on the daily amount of glass to import and the number of trucks that could come to the site. AR 513.

The Project would materially change the nature of the Project site’s use. AR 513. It would generate 530 daily trips in and out of the site, 500 of which would be trash trucks with about 1,500 tons of solid waste. AR 513. The federal Environmental Protection Agency (“EPA”) has documented that transportation generally results in environmental issues such as traffic, noise, orders, emissions, vector, and litter. AR 513. Conducting all operations indoors does not mitigate the concerns because that many truck trips will mean that the doors either open and close 500 times a day or stay open. AR 513-14. Odors, vectors, and noise can escape each time they open. AR 514. Kenneth was extremely concerned about the impact of a solid waste transfer station on property values and the ability to attract tenants. AR 514.

Samantha stated that the proposed CUP is a profound intensification of use. AR 515. The uses surrounding the Project site are not heavy industrial uses; they are quiet small business owners. AR 515. These longstanding businesses would suffer if next to a solid waste transfer station. AR 515. The Project would also impair the City’s ability to attract other high-quality businesses to that location. AR 515.

Glushon stated that he has never seen such a blatant CEQA violation in 40 years of practice. AR 517. The Project would change the Project site from a truck storage yard with very little traffic impact to a solid waste transfer station. AR 517. Other transfer stations have required an EIR or mitigated negative declaration. AR 517.

The adjacent businesses are incompatible with a solid waste transfer station, and water runoff flows from the Project site behind his client’s building at 1717 Gage and under the building at 1725 Gage, as well as to other properties. AR 517. The question is not whether runoff exists, but how impactful it will be. AR 517. An environmental review enables the identification of such issues, and similar sites in other cities required such review. AR 517. The Planning Commission cannot approve the CUP application unless it finds that the proposed use will not possibly have an adverse impact on adjacent properties, but it will. AR 517.

Brian Vanriper (“Vanriper”) of 2253 Apparel, directly across the street from the Project site, explained that his business has buyers like Bloomingdales, Nordstrom, Macys, and Guess Jeans. AR 518. It brings a lot of buyers and other producers through and has therefore invested a lot in property improvements. AR 518. In the time it has operated, the street has been quiet. AR 518. 2253 Apparel cannot operate the way it has been if this changes due to the volume of truck traffic the Project would bring. AR 518-19.

Planning Commissioner Marlene Ramirez (“Ramirez”) noted that the Project poses a lot of extreme concerns that NASA had not addressed. AR 520. She was concerned about the impact on adjacent businesses and the increase of storm water runoff onto the other properties. AR 520.

Planning Commission Vice-Chair Alexandra Briseno (“Briseno”) disagreed with the initial study’s findings that the Project’s proposed use is substantially similar to the current use. AR 521. The Project is likely to cause significant adverse impacts to the surrounding business and to the community. AR 521.

Commissioner Cuevas (“Cuevas”) agreed that the Project would harm a lot of the current businesses because of rodents, traffic, and truck queuing for dumping and leaving the facility. AR 521. Hotels and food-related businesses are particularly vulnerable. AR 521.

Planning Commissioner Berj Aliksanian (“Aliksanian”) asked what modifications to the CUP, if any, address the public concerns about rodents and environmental impact. AR 478, 521. A Clements representative explained that many different agencies highly regulate transfer station facilities like the Project. These local enforcement agencies are concerned with the same issues as those raised in the January 5, 2021 meeting, including vector control. AR 521. These agencies enforce standard practices that minimize the potential risks. AR 521. These include a monthly inspection by a third party subject to more frequent inspections after complaints to a health department. AR 521-22.

Another Clements representative added that bait trap inspections and general maintenance of a clean food facility usually address most of the vector and odor problems. AR 522. The negative air pressure system and state-of-the-art facility also include standard operating procedures to address any concerns. AR 522. Because the Project would also be under the regulatory umbrella for odor and dust emissions, regulations forbid movement of air in the facility. AR 522. The trucks would use CNG to reduce emissions. AR 522. As for runoff water, the building would be enclosed, have storm water infiltration and would capture all runoff onsite through biofilters with the groundwater. AR 522. The point of the Project and its design is to mitigate the impacts typical of these facilities. AR 522.

Commissioner Aliksanian asked whether the modification to the CUP would bring additional revenue to the City. AR 522. City staff stated that it had not evaluated this issue. AR 522.

Commissioner Briseno replied that the City should know the environmental impacts of the Project before approving it just like the other transfer stations to which Glushon referred. AR 523.

Commissioner Ramirez responded that she did not see how the Project could address the impact on surrounding businesses and she did not agree that it should move forward. AR 523.

The Planning Commission denied the CUP application on a 3-1 vote with one abstention. AR 523-24.

NASA filed a timely appeal from the Planning Commission’s decision pursuant to MMC section 17.78.070. AR 542. In its appeal letter, NASA contended that the denial was based on unsubstantiated findings that the Project is not compatible with the surrounding industrial uses. AR 1822.

The City set the appeal hearing for February 10, 2021, published notice of the public hearing in the Whittier Daily News, and mailed notice to all property owners within 300 feet of the Project site. AR 542, 551, 570-71.

The staff report for the appeal noted that the Planning Commission expressed concern regarding unknown potential environmental impacts to the surrounding properties. AR 551-52. The staff report asserted that the Project would enable NASA to provide for efficient transfer of solid waste, an essential service to the community. AR 555. It would provide adequate community infrastructure to support and service City residents. AR 555. This meant that it would facilitate the public good and protect the public interest. AR 555. The Project site is a prime location for an industrial use that facilitates waste transfer because it is both close to the communities it serves and distant enough from sensitive receptors. AR 555.

The report stated that the Project meets all four requirements under MMC section 17.70.070. AR 868-70. AR 555-56. Staff recommended that the City Council conduct a public hearing and either uphold the Planning Commission’s denial of the CUP application or adopt the negative declaration and overturn the Planning Commission decision. AR 558.

The City Council continued the appeal hearing to February 24, 2021. AR 865. For the February 24, 2021 hearing, City staff issued a new staff report with the same recommendations. AR 865. Staff also submitted a proposed resolution for overturning the Planning Commission’s denial. AR 874.

Some of the written comments received by the City Council are set forth as follows.

An association called Montebello Concerned Citizens asserted that water runoff from the proposed solid waste transfer station would have a significant impact on neighboring properties. AR 1175. Other inevitable consequences include heavy traffic, unpleasant odors, pest infestation, and health hazards. AR 1175. The Project involves a significant change of use from a truck storage yard to a waste transfer station and such stations always require an EIR. AR 1175.

Danny Cota (“Cota”) is the Operations Manager of Landsberg Orora (“Landsberg”), which owns property less than a quarter mile from the Project site. AR 1195. Landsberg is a packaging solutions provider, and some clients are food and medical companies. AR 1195.

Traffic on Union Street is already very heavy. AR 1195. Increased heavy truck traffic from the Project would only exacerbate the problem. AR 1195. It would also further the deterioration of the road, which is not well-maintained. AR 1195.

On the February 24, 2021 day of the continued hearing, NASA sent the City Council a letter modifying its CUP application. AR 1824. While the initial study found that the Project had no significant environmental impact, NASA decided to reduce the impact further by halving the tonnage of waste it is requesting to transport and process. AR 1824. This reduced the daily amount of waste from 1,500 to 750 tons, the number of new vehicle trips from 426 to 274, the operational air emissions of criteria pollutants by 88%, and greenhouse gas emissions by 36%. AR 1824.

On February 24, 2021, the City Council heard NASA’s appeal. AR 1267. Pertinent testimony is as follows.

Landsberg has been doing business at its current location for nearly 49 years. AR 1281. It is one of the top 25 tax revenue companies in the City. AR 1281.

His organization is concerned about the Project’s traffic impact. AR 1281. Traffic congestion on Greenwood Avenue has caused drivers to use Union Street to get to the 5 Freeway south. AR 1281. This has dramatically increased traffic on Union Street, a road that is not well-maintained. AR 1281.

Because the Project would introduce additional traffic to an already congested route, it poses safety concerns. AR 1281. If the City Council approves the CUP application, it will increase the heavy traffic on Union Street and have a severe impact on it. AR 1281. Landsberg drivers already find it difficult to enter and exit the property. AR 1281. Some have experienced hits resulting in injuries and close calls, while others experience delays when trying to back into docks as vehicles pass by. AR 1281. The most experienced Class A drivers would find the necessary maneuvers difficult. AR 1281-82.

A solid waste transfer station also creates potential for odor and rodent issues. AR 1282. This is particularly problematic for Landsberg customers in the food and medical industry. AR 1282.

The Project’s impact on the value of nearby properties would be horrific. AR 1291. The nearby Bluff Road is already hard to drive on, and the Project would have 33,000 pound trucks drive on it. AR 1291. Traffic coming off Union, with trucks lining up to get to the transfer station on Gage Road, would be a terrible idea. AR 1292.

Kenneth has been an active property owner in the City for 50 years. AR 1295. He questions why the City would want a garbage transfer station when there is no financial incentive for it. AR 1296.

The Project would increase traffic. AR 1296. While the Project description originally said it would add another 400 trips by truck, NASA now asserts it will only add 200. AR 1296. This still means that one truck enters and leaves the facility every three to four minutes. AR 1296.

Kenneth compared the one-acre Project site to other transfer stations. AR 1296. He drove to transfer stations that were on 14, seven, and three acres. AR 1296-97. These sites have room for trucks to que on site. AR 1297. Without this room, NASA trucks would stack up on Union Street in front of other properties. AR 1297.

The Project would have a negative effect on adjacent property values and the ability to keep existing tenants and attract new ones. AR 1297.

Wong’s Quality Inn Hotel and Suites is on Gage and Telegraph. AR 1303. The hotel has over 50 employees and 150 rooms. AR 1303. Traffic from the Project would start at 3:00 or 4:00 a.m. and serve as a major disruption for hotel guests, even if cut in half as NASA recently suggested. AR 1303.

Those trucks would pass by a popular City bus stop for Wong’s employees. AR 1304. The traffic at Gage Road and Telegraph Road, right off the 5 Freeway, is already horrific right where the hotel is. AR 1304. The trucks would both add to this and cause additional wear and tear on the roads. AR 1304.

Wong also has concerns as to odors, air quality, vermin in the air and ground, noise, and water runoff. AR 1304. The hotel already has runoff from the Project site. AR 1304.

Even if NASA cuts the Project’s daily garbage intake in half, it still would bring 1.5 million pounds of garbage to the Project site per day for export within 48 hours. AR 1306. That is millions of pounds of garbage per day going in and out of the site. AR 1307.

There is a hotel four doors down from the Project site. AR 1307. The tenant at 1708 Gage Road directly across the street is an apparel company with offices and showrooms. AR 1307. Her tenant at 1717 Gage Road adjacent to the site warehouses and distributes food. AR 1307.

A waste station in Sun Valley is on 19 acres and next to a landfill, high-voltage power lines, manufacturing, and rock quarry. AR 1307. Another Los Angeles site is over nine acres, with two and a half acres of parking lot “to accommodate sewing”. AR 1307-08. By comparison, the Project Site is ill-equipped for this kind of work. AR 1307. Although it is in an M-2 zone, the surrounding businesses do not involve heavy manufacturing. AR 1307. The Project site is at the intersection of two small streets, Gage and Union. AR 1307.

The facilities Samantha highlighted are for material recovery, which is a different operation than the Project for transfer of solid waste. AR 1309.

The Project is for a transfer facility which does not process solid waste. AR 1310. It only transfers (tips) solid waste from small trucks to larger ones. AR 1310.

Because NASA owns the trucks that would visit the Project facility, it can coordinate their delivery times to off-peak hours and avoid queuing on the street. AR 1310. Clements has designed and received approval for similar facilities on parcels of lands similar in size to the Project site. AR 1310.

The facility would be subject to various regulatory agencies including the Los Angeles County Health Department and the local South Coast Air Quality Management District (“SCQAMD”). AR 1310-11. The Project would have negative air pressure systems to mitigate odors. AR 1310-11. The State and cities are all striving for recycling and more efficient transfer of solid waste and this facility would accomplish that. AR 1311. Centralized facilities reduce traffic and allow the waste to be handled where it is generated. AR 1311.

Odors are mitigated by SCAQMD Rule 410, which requires a negative air pressure system. AR 1311. The Project would comply with the Regional Water Quality Control Board’s wastewater standards. AR 1311. It would use Clarifiers and bioswales which would minimize to very low any potential for stormwater runoff to leave the site. AR 1311. The traffic numbers fall below the a.m./p.m. peak hour thresholds for traffic impact. AR 1311. CNG fuel minimizes the impact on air quality. AR 1311-2. Pest control companies would provide weekly or monthly monitoring to address vectors. AR 1312. Because all the regulatory requirements of agencies that have oversight authority address any environmental impact, Clements prepared a negative declaration. AR 1311.

Solid waste transfer is a conditionally permitted use within the M2 zone and Clement based the environmental impact analysis on the existing use of truck storage, not the recycling facility use in CUP No. 2-94 as a baseline. AR 1312.

Facilities such as that proposed are an essential service to the community and the State’s goal of zero waste. AR 1313. The Project is appropriate for a heavy industrial zone, Planning staff has recommended its approval, and it is designed to be an asset to the community as a state-of-the-art facility with all necessary environmental controls. AR 1313.

City Planning Director Joseph Palombi (“Palombi”) explained that the City staff based its recommendation on the zoning of the immediate area and the proposed use. AR 1338. Staff analyzed what the zone calls for, what are the allowed uses therein, and what the existing use on the Project site is. AR 1338.

The Project would reduce the regional traffic trips by streamlining the process of going to the landfill -- three trucks could offload to a larger truck, which then would go to the landfill. AR 1339.

Staff has been very challenged by this particular zone. AR 1340. This is a heavy industry zone that has not been updated since 1973 and there are different uses there today. AR 1340. There are refineries (Chevron) and other heavy intensive uses. AR 1340-41. Staff had to look at the zone and uses and that is where its recommendation came from. AR 1341.

Larry Miner (“Miner”) conducted the traffic analysis for the Project. AR 1339. His analysis considered that garbage haulers are already picking up trash to take to the nearest facility. AR 1339. Because they are already moving around the region, the Project does not increase the level of traffic. AR 1340.

There is also a reduction in air emissions. AR 1340. The Project uses CNG vehicles, and NASA is moving towards electrified vehicles. AR 1340. This reduces emissions, and the decrease in miles trucks must travel because of the Project would decrease emissions further. AR 1340.

Councilmember Melendez (“Melendez”) stated that the Project site is in an M-2 heavy manufacturing zone and is surrounded by industrial development. AR 1316. The City Council only heard from business owners and not residents. AR 1316. The Project is consistent with the General Plan and there is no standing to claim a public nuisance. AR 1317.

Mayor Pro Temp Torres (“Torres”) explained that the City is currently revising the General Plan to determine what it should look like for the next 10-15 years. AR 1319. A decision authorizing an intensive use for the Project site like a solid waste transfer facility will determine the future of the surrounding area. AR 1319-20. The City Council now has the opportunity to imagine what to do with the area. AR 1320. The area consists of grocers that need to be sanitary and food safe, apparel companies with high-quality customers who visit, and a hotel that would feel an impact from multiple trucks driving past with garbage at 3:00 to 4:00 a.m. AR 1320. The building doors cannot mitigate the odors, noise, or vectors as well if they constantly have to open for 40-foot-long trucks to come in and out. AR 1320-21. Other facilities never close their doors because of the constant vehicular flow. AR 1321.

Councilmember Jimenez emphasized that while the City will update its General Plan at some point, for now the area is zoned for heavy manufacturing. AR 1332. The Project is the specific type of business intended for those areas. AR 1332-33.

The City Council voted 3-2 to direct City staff to prepare a resolution of findings that upheld the Planning Commission’s denial of the CUP application. AR 1348-49. The City Attorney noted that, per this this motion, the City Council would consider the new resolution at its next meeting on March 24, 2021. AR 1348-49.

The meeting minutes stated Councilmember Melendez observed that the Project conforms with the City's General Plan and land use element, is compatible with the surrounding land uses, and supports the existing goals and policies developed for that area. AR 1228. Councilmember Torres mentioned the City’s plan to update the General Plan and argued that the decision on this appeal would determine the future of the surrounding area. AR 1229. Councilmember Peralta stated that the City Council should consider the public comments and echoed that the General Plan had not been updated since 1973 and that land use acceptable then may not be acceptable today. AR 1229. Councilmember Jimenez asked for clarification of staff’s recommendation. Palombi explained that staff recommended approval based on conformance with the General Plan, underlying zone, and existing CUP. AR 1229.

Before the March 24, 2021 City Council meeting, the City staff prepared a report and attached the draft resolution. AR 1414, 1418. The report noted that projects that a public agency’s rejection of a project is not subject to CEQA per Public Resources Code section 21080(b)(5). AR 1418.

On March 24, 2021, the City Council adopted Resolution 21-11 (the “Resolution”). AR 1465. On May 17, 2021, the City clerk mailed NASA notice of the Resolution. AR 1829.

The Project is consistent with the General Plan. AR 1462. However, it is not compatible with surrounding land uses and does not support the existing goals and policies for proper industrial growth and development. AR 1462. Goal #4 is to provide for growth and development of an industrial area in a manner compatible with other uses. AR 1420. The Project would have a significant adverse impact on the adjacent businesses and other operations and land uses in the surrounding area. AR 1420.

Four adjacent property owners testified that the creation of a solid waste transfer station at the Project site would create various environmental and health impacts. AR 1421. These in turn would diminish the value of property in the vicinity. AR 1421. In addition, 20 adjacent property owners or residents asserted that the requested modification to the CUP is not the best interest of or compatible with existing industrial uses of the area. AR 1421. The significant increase in the transportation of solid waste from surrounding areas to the Project site creates an imposition of processing waste not generated by City residents or businesses and has a negative effect on the existing industrial uses. AR 1421.

A CUP cannot be approved unless it the City makes four findings in its favor. AR 1463.

The first required finding is that the Project site is adequate in size and shape. AR 1463. The proposed building would be 26,940 sf. AR 1463. The Project site for this building is the same 1.07-acre lot as the current 5,356 sf building. AR 1463. The intensification of use from a glass recycling facility to a solid waste transfer station exceeds the appropriate use for a property of this size and shape. AR 1463. The Project site is not adequate in size or shape for the proposed use. AR 1463.

The second required finding is that the site has sufficient access to streets and highways and is adequate in width and pavement type to carry the quantity and quality of traffic generated by the proposed use. AR 1463. The streets and highways that serve the Project site are designed for the heavy industrial vehicles that the Project would use. AR 1463. However, the daily number of inbound and outbound truck trips would increase from 104 to 530, five times the current truck volume. AR 1464. This would have a detrimental impact upon traffic in the surrounding area. AR 1464. Additionally, the intensified use does not have sufficient access to streets or highways leading to the Project site, and the increased truck traffic impact would have a detrimental effect on the roads and general infrastructure. AR 1464.

The third required finding is that the proposed use will not have an adverse effect on adjacent or abutting properties. AR 1464. The Project site is in an M-2 (Heavy Manufacturing) zone, and the bordering development is all heavy manufacturing. AR 1464. Numerous business and property owners, residents, and interested “property” (sic.) have testified that the Project would have numerous adverse impacts on adjacent and abutting properties and businesses. AR 1464. The City Council agrees. AR 1464.

The fourth required finding is that the proposed use is in conformance with the goals, policies, and objectives of the General Plan and the purpose and intent of the MMC and any applicable specific plan. AR 1464. The Project is inconsistent with Goal #4 of the General Plan to provide for growth and development of an industrial area in a manner compatible with other uses. AR 1464. The intensified use is not compatible with the adjacent industrial area because of the increased truck traffic, solid waste disposal and processing, noise, odors, potential rodent infestation, and related impacts. AR 1464.

Under MMC section 17.70.130, a condition imposed upon granting a CUP can be modified or eliminated if the granting body first conducts a public hearing in the same manner as required for the original CUP. AR 1465. The City Council must also find that the modification is necessary to protect the public interest and/or adjacent or abutting properties. AR 1465. The requested modification to CUP 02-94 is not in the public interest and does not benefit adjacent or abutting properties. AR 1465.

The negative declaration does not adequately address the Project’s environmental impacts. AR 1423. Unlike the negative declaration, the City Council finds that the cumulative effects of the Project can have significant impact on the area’s traffic, noise, air quality, greenhouse gas emissions, hazardous materials, and water quality. AR 1465. Additional environmental analysis via an EIR or mitigated negative declaration should have been required. AR 1465.

The CUP application is denied because the underlying Project is not consistent with the City’s General Plan, does not meet the findings required under MMC section 17.70.070 or 17.70.130, and lacks the required CEQA analysis of significant environmental impacts. AR 1465.

MMC section 17.70.070 lists the four affirmative findings the City must make prior to granting a CUP:

(2) the site has sufficient access to streets and highways, and is adequate in width and pavement type to carry the quantity and quality of traffic generated by the proposed use;

(3) the proposed use will not have an adverse effect upon adjacent or abutting properties; and

(4) that the project is in conformance with the goals, policies, and objectives of the General Plan and the purpose and intent of this code and any applicable specific plan.

The applicant’s failure to meet any one of those requirements will result in the proper denial of a CUP. Saad v. City of Berkeley, (1994) 24 Cal.App.4th 1206, 1213-14 (italics original). So long as the decisionmaker made a finding that any one of the necessary elements was lacking, and this finding is itself supported by substantial evidence, the denial of the application must be upheld. Id. at 1214 (citing Desmond v. County of Contra Costa, (1993) 21 Cal.App.4th 330, 336-37).

As a result, the City need only have substantial evidence for one of the City Council’s four MMC section17.70.070 findings. The City also need only have substantial evidence to support the City Council’s finding that the requested modification to CUP 02-94 is not in the public interest and/or it does not benefit adjacent or abutting properties under MMC section 17.70.130.

NASA argues that City staff demonstrated before both the Planning Commission and the City Council that the Project meets all four of the affirmative findings MMC section 17.70.070. The City repeatedly ignored City staff’s objective showing, relying on the conclusory assertions presented by Project opponents to deny the CUP. These criticisms were primarily anecdotal and failed to address the applicable law and requirements. AR 470. This improper reliance resulted in the City Council’s unsupported negative conclusions on each of the four required findings. Pet. Op. Br. at 8.

While Intervenors are correct, they misunderstand NASA’s point, which is that the City staff’s opinions qualify substantial evidence. This point is distinct from the fact that the City Council is not bound by its staff’s conclusions. Staff reports and opinions may constitute substantial evidence to support a decision. See Young v. City of Coronado, (2017) 10 Cal.App.5th 408, 432 (use of staff report to support a city’s decision); Browning-Ferris Industries v. City Council, (1986) 181 Cal.App.3d 852, 866.

There is little doubt that, if the City Council had decided to approve the CUP, the staff report, coupled with NASA’s expert opinions, would be substantial evidence supporting that decision. The Project is zoned M-2 (Heavy Manufacturing) and is consistent with the General Plan. The Project would reduce the regional traffic trips by streamlining the process of going to the landfill; three trucks could offload to a larger truck which then would travel to the landfill. AR 1339. The staff report asserted that the Project would enable NASA to provide for efficient transfer of solid waste, an essential service to the community. AR 555. It would provide adequate community infrastructure to support and service City residents and would facilitate the public good and protect the public interest. AR 555. The Project site also is a prime location for an industrial use that facilitates waste transfer because it is both close to the communities it serves and distant enough from sensitive receptors. AR 555.

The issue, however, is not whether the Project is supported by substantial evidence but whether the City Council’s decision to disapprove the CUP is supported by substantial evidence. All the evidence in opposition to the Project came from neighboring property owners.[3] Layperson opinions may constitute substantial evidence if the statements are based on relevant personal observations or non-technical issues. Bowman, supra, 122 Cal.App.4th at 583. NASA contends that the comments and testimony of neighboring property owners consists of unsupported conclusions that are not substantial evidence. Reply at 5. The issue before the court is whether this lay opposition is substantial evidence.

The City argues that NASA’s opening brief fails to set forth all material evidence considered by the City Council. NASA argues at length about its supporting evidence while dismissing the testimony of the property owners as “conclusory assertions”. NASA fails to describe these specific concerns that were raised about a large Project with significantly increased heavy truck traffic and unanswered questions about potential environmental and financial impacts. In ignoring this evidence, NASA has waived its contention that the City Council’s findings are not supported by substantial evidence. City Opp. at 6.

When a petitioner challenges an administrative decision as unsupported by substantial evidence in light of the record as a whole, it is the petitioner’s burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. The petitioner is obligated to lay out the evidence favorable to the other side and show why it is lacking. The "[f]ailure to do so is fatal" to any substantial evidence challenge and "is deemed a concession that the evidence supports the findings." Defend the Bay v. City of Irvine, (2004) 11928 Cal.App.4th 1261, 1266. A recitation of only the part of the evidence that supports the petitioner’s position is not the demonstration contemplated by this rule. According, if a petitioner contends that some issue of fact is not sustained, and he does not lay out all the material evidence on the point, the error is deemed to be waived. Foreman & Clark Corp. v. Fallon, (1971) 3 Cal.3d 875, 881.

NASA replies that its opening brief did not fail to discuss credible evidence presented by the other side because there was no such evidence to discuss. NASA did discuss the “evidence” relied upon by the City Council, but it consisted of no more than inflammatory conclusions and accusations. NASA’s opening brief references and cites both the City’s findings and the evidence it relied upon for its determination. See Pet. Op. Br. at 6, 9, 11, 12, 16. Nowhere in its opposition does the City cite any specific evidence that NASA failed to discuss. Reply at 4.

A review of NASA’s opening brief shows that NASA blanket cited to the comment letters and City Council testimony of property owners. Pet. Op. Br. at 9 (citing AR 1168-225 (comment letters to the City Council), 1234-1403 (City Council hearing transcript). NASA also pin cited some specific comments about impact on adjacent properties. Pet. Op. Br. at 11-12 (citing to AR 1175 (email to City Council from Montebello Concerned Citizens); AR 450 (Samanta letter to Planning Commission), 456 (letter to City Council from Roski); AR 1291 (Bocci comment at City Council hearing). NASA further pin cited property owner comments about: (a) traffic impacts. Pet. Op. Br. at 16 (citing AR 1175 (email to City Council from Montebello Concerned Citizens; AR 1195 (letter to City Council from Landsberg); (b) noise impacts. Pet. Op. Br. at 17 (citing AR 1304 (Wong comment at City Council hearing), 1224 (Glushon letter to Planning Commission); and (c) air quality and water runoff impacts. Pet. Op. Br. at 17 (citing AR 454 (2253 Apparel comment to Planning Commission), and 1175 (email to City Council from Montebello Concerned Citizens).

NASA did not list all property owner comments or purport to summarize them. However, NASA did cite opposition comments as examples. While this approach is not fully compliant with NASA’s burden to demonstrate that the administrative record does not contain sufficient evidence to support the City Council’s decision, the court will not find a waiver to deny NASA’s Petition.

2. Whether the Project Site Is of Adequate Size and Shape for the Proposed Transfer Station

“The Property is located on a 1.07-acre lot with a proposed footprint of a 26,940 square feet of building footprint. The proposed increased use from a glass recycling facility to a solid waste transfer station is an intensification of use which exceeds the appropriate use for a property of this size and shape. The proposed use would result in a demolition of existing structures to accommodate a new facility which would increase the current office space and waste processing uses of the site from approximately 5,356 square feet to a new construction footprint of 26,940 square feet (over five times the size of the existing site facilities). All new construction would be placed upon the same 1.07 (46,609 square feet) site as the current use sits. The City Council finds the site is not adequate in size or shape for the proposed use.” AR 1463.

An agency’s reasoning on an administrative decision must not be “so conclusory that [it] fail[s] to ‘bridge the analytic gap between the raw evidence and the ultimate decision or order.’” Save Livermore Downtown v. City of Livermore, (2022) 304 Cal.Rptr.3d 103, 108 (quoting Topanga, supra, 11 Cal.3d at 515); Village Laguna of Laguna Beach, Inc. v. Board of Supervisors, (“Laguna Beach”) (1982) 134 Cal.App.3d 1022, 1035 (city did not adequately disclose its reasons for its administrative decision when all it provided was “conclusionary, almost boilerplate” language for its findings).

NASA argues that, similar to Laguna Beach, the City erred in finding that the Project site is “not adequate in size or shape for the proposed use” by ignoring the objective determinations and by relying on conclusory, boilerplate language. AR 1421. The evidence demonstrated that the Project site is adequate for the transfer station. City staff found that the 1.07-acre Project site is sufficient to support the transfer station and complies with the necessary setback and parking requirements. The Project site meets “development standards for the M-2 zone and … is adequate in size and shape.” AR 1007. This conclusion is consistent with the City’s land use element which states that a building size in “industrial areas may approach 100% lot coverage.” AR 1598. Pet. Op. Br. at 9.

NASA contends that the public comments did not present any evidence contradicting the City staff’s determination that the Project site is of suitable size and shape. To assuage concerns over the Project size, a project engineer provided examples of other similar successful projects located on comparably sized sites. AR 1310. Despite this evidence, the City Council’s Resolution, unguided by any articulated standards or code requirements, merely recited the square footage of the Project site and the proposed increase in building size as reasons for its finding. AR 1421. That mere assertion cannot pass the test of substantial evidence. Pet. Op. Br. at 9.

The City correctly states (City Opp. at 7) that the City Council’s written findings are not the sole means of satisfying Topanga. “In addition to the findings stated in the council’s resolution, we look to the transcript of the hearing for statements made by the council members. It is proper to look for findings in oral remarks made at a public hearing at which both parties were present, which was recorded and of which a written transcript could be made.” Lindborg-Dahl Investors, Inc. v. City of Garden Grove, (1986) 179 Cal. App. 3d. 956, 963.

The City responds that NASA fails to consider the totality of the evidence. A review of the minutes of the Planning Commission hearings and the transcript of the City Council hearing demonstrates that neighboring property owners raised multiple concerns with respect to the impact on their properties and on the future of south City. A comparison was provided between the waste transfer facility owned by the City of Los Angeles, which consists of nine acres along with a two-and-a-half-acre site for parking, as opposed to the one-acre site for the Project. AR 1307-08. Additionally, the Crown Site in Sun Valley consists of seven acres, and the Grand Central Recycling and Transfer Station in the City of Industry consists of three acres, both of which have places for trucks to queue on site. AR 1296-97.

Accordingly, the City contends that the City Council’s finding was based on substantial evidence. The City relies on Harris v. City of Costa Mesa, (“Harris”) (1994) 25 Cal. App. 4th 963, where the court reversed the trial court’s writ of mandate because the presentations by a neighborhood coalition opposing a project to build a two-story granny flat on his residential lot were sufficient evidence to support the city’s denial of a CUP. Harris relied on Desmond v. County of Contra Costa, (1993) 21 Cal. App. 4th 330, 335, which held that although the city did not articulate any particular ordinance requirement, the finding that the project is out of character with the neighborhood may be a summation of several requirements. Id. at 974-75. The Harris project overshadowed the neighborhood and was detrimental to the welfare and injurious to the immediate area. Id. at 973-75. The City argues that, like Harris, a number of neighboring property owners expressed their strong concerns about the Project. After considering all the issues and evidence cited, the City Council upheld the Planning Commission’s denial of the CUP. City Opp. at 8.

The issue is not whether the City Council made the required finding or whether its finding satisfies Topanga, but whether it is supported by substantial evidence. It is not. Building intensity in industrial areas may approach 100% lot coverage, less required setback and parking requirements. AR 1598. As NASA replies (Reply at 5), the City fails to cite any evidence that the Project site is not of adequate size and shape for the proposed transfer station. Aside from the fact that most do not address the size and shape of the Project site, the comments of neighboring property owners lack expertise to opine on this issue. The only comments addressing the size and shape issue were lay comparisons of the Project site to the size and nature of other waste facilities. AR 1307-08, 1296-97. However, a NASA representative explained to the City Council that these facilities were not transfer stations; they are material recovery facilities which have different operations from a transfer station. AR 1309. As a result, they are not a good comparison. NASA’s Project engineer provided a comparison of the Project site to other similar projects, noting similar successful projects on “similar sized parcels” at the Universal Waste Systems transfer station in Santa Fe Springs and in downtown Los Angeles. AR 1310. NASA is correct that neither the City nor any Project opponent rebutted the Project engineer with substantial evidence. Reply at 5-6.

The City Council’s finding that the Project site is not adequate in size or shape for the proposed use is not supported by substantial evidence.[4]

3. Whether the Project Site Has Sufficient Access to the Streets and Highways to Support the Project’s Traffic

“While the streets and highways that serve the Project Site are designed to accommodate heavy industrial vehicles such as those associated with the proposed transfer station and the surrounding warehouse/distribution and trucking business, the number of inbound and outbound truck traffic impacts would increase from the current volume of 104 trips per day to 530 trips per day. This would create five (5) times more truck traffic volume than currently exists at this location and would have a detrimental impact upon traffic in the surrounding area. The City Council finds that the intensified use as proposed by the Applicant does not have sufficient access to streets or highways of the right of ways leading to the Project location. In addition, the city Council finds the increased truck traffic impacts would have a detrimental impact to the pavement and general infrastructure of the area. AR 1463-64.

NASA argues that the City Council erred in finding that the proposed transfer station use “does not have sufficient access to streets or highways of the right of ways leading to the Project location” and that “the increased truck traffic impacts would have a detrimental impact to the pavement and general infrastructure of the area.” AR 1421-22. This finding is unsupported by any data or standards, contradicted the City staff determinations, disregarded the City’s traffic guidelines, and ignored NASA’s commitments to mitigate the Project’s impacts. Pet. Op. Br. at 10.

First, the City Council contradicted itself and erred in its analysis. The Resolution found that the streets and highways adjacent to the Project Site are “designed to accommodate heavy industrial vehicles such as those associated with the Project,” as well as the vehicles used by the surrounding warehouse and trucking businesses. AR 1421. Then, in the same finding, the City stated that those same trucks “would have a detrimental impact to the pavement and general infrastructure of the area.” AR 1464. In fact, NASA’s vehicles are specifically built for residential neighborhoods and thus are easily suitable for the heavy industrial roads adjacent to the Project site. AR 1008. Pet. Op. Br. at 10.

The City Council’s primary concern was the increase in the quantity of trucks that would use the Project site each day. AR 1463-64. However, the Resolution cited 530 trips per day, which is much greater than the amount of traffic presented for the Project at the City Council meeting. In a letter presented to the City Council before its hearing, NASA voluntarily reduced the Project’s total tonnage by 50%, thus decreasing the Project’s daily vehicle trips from 530 trips per day to 378. AR 1824. The City Council made its determination based on inaccurate figures. Reply at 6-7.

Second, the initial study showed that the Project’s vehicle trips would be well below the vehicle threshold established by the City’s Guidelines for Process and Requirements for Traffic Impact Study Reports. City staff explained that the Project would reduce the overall vehicle miles traveled in the City by waste trucks by allowing smaller waste trucks to efficiently transfer their waste on to larger vehicles. AR 424, 437. There would be a projected maximum of 32 vehicle trips per hour, which is 36% lower than the City’s threshold of 50 vehicles for a project. The City Council ignored the fact that the surrounding infrastructure would adequately support the Project and instead relied on mere assertions that there would be “heavy traffic”. AR 1175, 1195, 1421. Yet, there was no testimony evidencing that the Project’s traffic would have a detrimental impact on the surrounding infrastructure. Pet. Op. Br. at 10.

The City responds that substantial evidence may include statements of neighbors if they are based on relevant personal observations or involve non-technical issues. Bowman, supra, 122 Cal. App. 4th at 583. The City Council received a letter from NASA before the hearing which indicated that new truck trips would be reduced from 426 to 274. AR 1824. Pet. Op. Br. at 10, n. 4.[5] Neighboring property owners indicated that, even with a reduction to 274 trips a day, trucks would still be entering and leaving the facility every three to four minutes and would need to queue on the public streets due to the lack of sufficient parking and turnaround space on the Project site. AR 1296. Multiple property owners provided testimony that the Project site is located at the intersection of two small streets (Union and Gage Streets) and expressed concern that there is insufficient space on those streets for truck queuing. Testimony was also provided on the current traffic issues in the area and the problems additional Project traffic to and from the site would cause. AR 1303, 1304, 1308, 1320. City Opp. at 9-10.

The problem with the concern of Project opponents about parking, queuing, and turnaround space is that it is unsupported speculation. While the Project opponents can certainly complain about increased traffic, their opinions on the technical aspects of traffic design cannot serve as substantial evidence. See Bowman, supra, 122 Cal.App.4^th at 583.

NASA’s application states that the Project is designed to allow for “adequate room for vehicle circulation and maneuvering,” and an “efficient circulation pattern that minimizes cross traffic” with a one-way traffic flow throughout the facility. See AR 3. City staff agreed, concluding that the streets and highways that serve the Project site are designed to accommodate the heavy industrial vehicles the Project would use. AR 1007. The site is in an industrial area zoned M-2 (Heavy Manufacturing), with frontage on Union Street and Gage Road. AR 1007. Two major roads, Greenwood Avenue and Telegraph Road, provide access to Union and Gage, respectively. AR 1008. The truck traffic would mostly consist of collection vehicles, which are maneuverable and accessible to standard residential and commercial neighborhoods. AR 1008. Access to the I-5 Freeway is therefore available via streets adequate in width, pavement type, and classification to accommodate a proposed transfer station. AR 1008.

The property owner complaints that Gage and Union are too small and lack sufficient space, are undermined by the facts that the Project site is located one block from the I-5 Freeway and the General Plan land use element states that “[f]rontage along Santa Ana Freeway [I-5] should be preserved for industrial and compatible commercial development.” AR 1598. In any event, to address the concern about trucks queuing on public roads, NASA’s project engineer explained to the City Council that NASA would prevent queuing by controlling when their vehicles access the site, which has been done successfully on similarly-sized projects. AR 1310. As NASA argues, neither the City nor any Project opponents presented any facts or analysis to rebut the Project engineer’s solution. Reply at 7.

There also is no evidence that the Project’s traffic would have a detrimental impact on the surrounding pavement and infrastructure. The streets and highways that serve the Project site are designed to accommodate the heavy industrial vehicles NASA would use. AR 1007. Access to the I-5 Freeway is therefore available via streets adequate in width, pavement type, and classification to accommodate a proposed transfer station. AR 1008.

The City Council’s finding that the proposed transfer station use does not have sufficient access to streets or highways of the right of ways leading to the Project location and that the increased truck traffic would have a detrimental impact to the pavement and general infrastructure of the area is not supported by substantial evidence.

4. Whether There Was Substantial Evidence That the Transfer Station Would Have an Adverse Impact on Adjacent or Abutting Properties

“The proposed use is located in the M-2 (Heavy Manufacturing) zone, and is bordered by industrial (Heavy Manufacturing) development in all directions. While the project complies with the M-2 designated land use, it will have an adverse impact on adjacent or abutting properties….[n]umerous business and property owners, residents, and interested property (sic.) testified…of the numerous adverse impacts this proposed use would have both directly and indirectly upon adjacent and abutting properties and business operations. After carefully considering the testimony presented, the City Council finds that the proposed use will have an adverse effect upon adjacent and abutting properties.” AR 1464.

NASA argues that the City Council improperly ignored the numerous state-of-the-art minimization measures integrated into the Project’s design and relied on baseless, inflammatory remarks from Project opponents. Project opponents presented no more than a practiced recital of alleged future effects, citing no evidence or thresholds of significance to indicate that the Project would cause “traffic, unpleasant odors, pest infestation, health hazards, and more.” AR 450 1175. These claims assumed a project vastly different in scope, technology, and mitigation than the actual Project. For each such alleged impact, NASA designed the Project to render any impact either non-existent or insignificant. Pet. Op. Br. at 11.

None of the Project opponents provided support for their concerns, and they amount to the generalized, vague, and nonspecific statements from project opponents that cannot amount to substantial evidence. Lucas Valley Homeowners Assn. v. County of Marin, (“Lucas Valley”) (1991) 233 Cal.App.3d 130, 157. For example, nearly all the opponents cited concerns over odor and vermin that would become “intolerable.” AR 456. Yet, the evidence demonstrates numerous measures to prevent the realization of the asserted concerns. To control vector issues, operations would occur indoors, and NASA would employ regular vector control. AR 1312. Any odor and run-off concerns are mitigated by the fact that all operations would be entirely inside the state-of-the-art building which would employ a negative air pressure system and onsite stormwater infiltration system to prevent potential runoff. AR 1310-11. The Project also is subject to regulatory oversight from numerous agencies including the Los Angeles County Health Department and the SCAQMD. AR 1310-11.

Intervenors respond that the City Council’s finding is well grounded. The EPA has documented the environmental impacts of waste transfer stations. AR 513, 515. The existence of poor drainage at the intersection of Gage Road and Union Avenue has been documented in the City’s General Plan since 1973. AR 1633. Furthermore, personal observations of residents on non-technical subjects such as traffic qualify as substantial evidence. Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist., (2013) 215 Cal.App.4th 1013, 1054 (resident testimony regarding traffic congestion and accidents associated with events at a school stadium constituted substantial evidence); Keep Our Mountains Quiet v. County of Santa Clara, (“Keep Our Mountains”) (2015) 236 Cal.App.4th 714, 735 (traffic conditions raised by neighbors with personal knowledge of existing hazardous road conditions where proposed use posed a significant increase in traffic during certain periods of the day constitute substantial evidence). The evidence presented by these adjacent and abutting property owners demonstrated that the Project’s operations would bring impacts including odors, health concerns, stormwater runoff, traffic, noise, vectors, and litter, and that such impacts would adversely impact their properties. AR 449-50, 452, 454, 456, 461, 480, 515, 518-19, 588, 593, 612, 614, 1195, 1282, 1303-04, 1436. Int. Opp. at 2-3, 5.

NASA’s own environmental consultants admitted to the existence of these impacts, stating that “one of the big concerns” posed by the Project was vector control, and also referred to other impacts of odor, dust, traffic, noise, stormwater, and air quality. AR 84-85, 521-22. The initial study documented some of these adverse impacts. AR 733 (“[t]he project may result in odor emissions resulting from the solid waste material”); AR 739 (the potential for “incidental hazardous waste” will be handled by the Department of Toxic Substance Control); AR 646 (acknowledging noise increase and linking to noise ordinance standards); AR 741 (documenting the fivefold increase in vehicle traffic). Int. Opp. at 5.

Intervenors add that the City was not required to treat these impacts as non-existent simply because NASA’s environmental consultants stated that the impacts would be minimized by a state-of-the-art facility that will comply with regulatory permitting requirements, including a negative air pressure system to minimize odors, will conduct all tipping and loading activities inside the building, and will employ “regular vector control”. AR 437, 521-22, 1310-12. Minimizing impacts does not necessarily eliminate them. Despite the fact that all tipping and loading activities would be conducted inside the building, the Project’s operations necessarily include the ingress/egress of full-size garbage trucks at the Project site every three to four minutes, each time requiring rolling up of the doors to the facility, bringing odors, emissions, and noise, and allowing vectors to escape while the doors are open. AR 513-14, 1320-21. The noise, traffic, odor and vector impacts of these outdoor operations alone are adverse impacts on the adjacent and abutting properties. Int. Opp. at 5-6.[6]

For these reasons, the City found adverse impacts to the adjacent and abutting properties. AR 1833 (Resolution); AR 520 (Commissioner Ramirez raising concerns regarding stormwater runoff); AR 521 (Commissioner Cuevas finding the rodent, traffic and truck queuing impacts adverse to existing businesses, especially hotel and food type businesses); AR 1319-21 (Mayor Pro Temp Torres noting that businesses that handle food and need sanitary conditions, apparel companies and the hotel use would be particularly impacted by the increase in traffic, vectors, noise and odors operating as early as 3 a.m.). Int. Opp. at 4.

Intervenors distinguish Lucas Valley, supra, 233 Cal.App.3d at 130. Unlike Lucas, the adverse impacts were substantiated. It is not speculative that full-sized garbage trucks driving past a hotel, an office, hospitality, or apparel showroom use every three to four minutes, starting at 3 a.m. and ending at 8 p.m., pose adverse noise, odor, and transportation impacts. It is also neither vague nor nonspecific that the vectors attracted to the garbage will adversely impact adjacent business uses, particularly medical, and food and beverage processing facilities sensitive to a clean and sanitary environment. Int. Opp. at 4.

NASA first replies that Intervenors attempt to move the goalpost beyond the limited scope of “adjacent or abutting properties.” The term “adjacent” is defined as “lots or objects which are located in close proximity to each other (separated only by an alley, street, highway or recorded easement)”. MMC §§ 17.08.010. The term “abut” is defined as “two or more lots or parcels of land sharing a common boundary line.” MMC §17.08.030. The City Council understood the limited scope of this required finding when it stated that the Project “is bordered by Industrial (Heavy Manufacturing) development in all directions.” AR 1464, 1468 (aerial photograph of the Project site and adjacent and/or abutting properties). Intervenors try, but fail, to find substantial evidence of the Project’s harmful impacts to properties outside the scope of the required finding by mislabeling numerous properties as adjacent or abutting the Project site, including a hotel nearly a block away. Thus, Intervenors mislabel the following properties as adjacent or abutting the Project site: 1640 S. Greenwood Ave., 1725 Gage Road, 1801 Gage Road, and 1550 Gage Road. Reply at 8.

The impacts of health, vectors, litter, and property values[7] are not sufficiently raised in the comments of property owners. Therefore, the City Council’s finding of adverse effects is not supported by those issues. NASA then argues the issues of runoff, odor, noise, and traffic.

Property owners testified that there is drainage and water runoff from the Project site onto adjacent properties. AR 257, 450, 456, 1175. Intervenors contend that, without any evidence that compliance with stormwater regulations would address this problem and the Project’s contribution to it, NASA’s representatives simply claimed that the Project would comply with regulatory stormwater regulations. AR 522. Int. Opp. at 3.

NASA argues that the property owners’ concern about drainage and runoff is unsupported. Project engineers testified that the Project would ensure that the potential for stormwater impacts is “very, very low,” by operating completely indoors, using clarifiers and bioswales (channels to remove pollution from runoff), testing “all stormwater runoff leaving the site,” and complying with the Regional Water Quality Control Board industrial wastewater standards. AR 1311. No one answered that evidence in any fashion. Reply at 9.

The court agrees. The existence of the poor drainage condition at the intersection of Gage Road and Union Avenue has been documented in the General Plan since 1973. AR 1629–33. Adjacent and abutting property owners testified regarding ongoing drainage and water runoff from the Project site onto adjacent properties. AR 257, 450, 456, 903, 1175. Thus, there is evidence that there is poor drainage at the Project site and that water runoff on adjacent properties has occurred. But there is no evidence that water runoff from the Project would “inevitably happen.” AR 1175. No engineering or other reports or studies were relied upon for the inevitability to which the opponent speculated. See Porterville Citizens for Responsible Hillside Development v. City of Porterville, (2007) 157 Cal.4th 885, 907 (unqualified neighbor’s concerns over drainage was not substantial evidence). There is not substantial evidence supporting the City Council’s finding stormwater runoff from the Project would be an adverse impact on property and business owners.

A concern about odor from the Project’s building and trucks is legitimate. NASA argues that the concern of property owners that the Project would result in intolerably unpleasant smells are vague speculations fail to address the air quality mitigation measures in place at the Project site. AR 454. The Project’s odor issues were addressed in the staff report, initial study, and the testimony of Project engineers, all stating that the Project would neutralize odors by operating completely indoors, employing a negative air pressure system and an overhead misting system equipped with neutralizing agents to actively counteract any odorous particles. AR 1479, 1311, 732. Reply at 9.

NASA is correct that the City and Intervenors fail to answer NASA’s evidence on the adequacy of its technical, state-of-the-art odor control system. The mere suggestion that odors will escape when the building’s door is opened is unsupported by evidence. AR 513-14, 1320-21. In addition, all NASA vehicles use CNG fuel to minimize air quality impacts and the Project site is subject to regulatory oversight from the Los Angeles County Health Department and the SCAQMD. AR 1310-11. Pet. Op. Br. at 17.

Intervenors point out that odor impacts from the trucks themselves was not addressed in the initial study. AR 732-33 (air quality analysis). Int. Opp. at 13. True, but that is not substantial evidence of that property owners will be adversely impacted by odor from the trucks either.

There is not substantial evidence supporting the City Council’s finding that odor from the Project’s operation would adversely impact property owners.

Intervenors point out that the Project initially sought to bring 1,500 tons of solid waste to the Project site, increasing truck trips over five times from the existing 104 daily trips to 530 daily trips.[8] AR 18, 1833. In a last-ditch effort, NASA reduced the Project to bring daily solid waste of 750 tons, increasing truck vehicle trips to 378 per day, still two and half times more than the existing 104 trips per day. AR 1824. For an operation between the hours 3 a.m. and 8 p.m., even 378 trips means that a truck would enter the Project site every three minutes. These are large garbage collection vehicles (AR 438-39), each coming to and leaving from the Project every three to four minutes, bringing odors, emissions, and noise, requiring the rolling up of the doors to the facility, and allowing vectors to escape while the doors are open. AR 513-14, 1320-21. Int. Opp. at 3-4.

NASA notes that any potential noise concerns were addressed by the fact that the Project will be an entirely indoor operation. AR 1487. In addition, the Project will be compliant with the applicable noise ordinances and standards set forth in the General Plan. Ibid. NASA argues that Project opponents do not provide any details why the indoor Project would exceed the applicable noise standards in the industrial zone. The General Plan noise element states that noise levels within industrial zones may be higher than in residential and commercial zones. AR 1567. See Jenson v. City of Santa Rosa, (2018) 23 Cal.App.5th 877, 894 (noise calculations presented by neighbors were opinions of non-experts and not substantial evidence). The opponents’ mere assertion that the Project would result in a “huge noise disruption” is not substantial evidence. AR 1304, 1224. Pet. Op. Br. at 17; Reply at 9.

The court accepts that the City Council lacks substantial evidence of noise from the indoor operation. But NASA ignores the fact that the trucks coming to and from the Project site will make noise. Although the Project site is in the M-2 (Heavy Manufacturing) zone, the adjacent and abutting properties to the Project site are office, hospitality, warehousing, medical, distribution and food and beverage processing facilities, and apparel showroom space. AR 449, 454, 456, 461, 480, 518, 593, 612, 614, 1195, 1436. The current operations on Gage Road are described as very quiet. AR 581, 593. The Quality Inn & Suites also is located a few doors away from the Project site. AR 449, 452.

The Project’s operations necessarily include the ingress/egress of garbage trucks driving in and out of the Project site every three to four minutes between 3 a.m. and 8 p.m. This would be a significant increase from current operations. Property owners stated that this number of trucks would cause an undue noise impact on their operations. AR 452, 454, 480, 519, 1136. Property owners can testify to the existence of disruptive noise even if they cannot scientifically calculate it. See Jenson, supra, 23 Cal.App.5^th at 894. It also is well-settled that compliance with a noise ordinance does not foreclose possibility of significant noise impacts under CEQA (Keep Our Mountains, supra, 236 Cal.App.4^th at 732) and it certainly does not prevent the City Council from considering noise impacts on adjacent properties. Int. Opp. at 12.

NASA notes that Intervenors cited concerns of a hotel owner who testified that traffic “starting at 3:00 or 4:00 in the morning will surely be a huge impact negatively on my hotel.” AR 1304. These concerns ignored the fact that the current operation at the Project site opens at 3 a.m., six days a week, with 104 daily vehicle trips. AR 1468. Yet, the hotel owner previously never stated a concern about the 3 a.m. opening. Notably, the hotel property is adjacent to Telegraph Road, which is designated as a truck route, and is across the street from the I-5 freeway. Reply at 10.

This point does not address the hotel owner’s concern about increase in truck traffic at 3:00 a.m., nor its or any other property owners’ concerns. There is substantial evidence supporting the City Council’s finding that noise from the trucks would have an adverse impact on property and business owners.

Property owners testified about the already congested traffic in the area (AR 1195, 1442, 1281-82) and that the addition of large amounts of garbage truck traffic (an additional 2.5 times the current traffic level) would further add to the traffic conditions and adversely impact their businesses and operations. AR 454, 456, 461, 480, 513-14, 1195, 1442, 1444, 1281-82. Property owners testified that the addition of 2.5 times the current level of garbage truck traffic on Union (AR 1195, 1442), and from Greenwood to Union (AR 1281-82), plus queuing at the site, would further add to the traffic conditions and adversely impact their businesses and operations. AR 454, 456, 461, 480, 513-14, 1195, 1442, 1444, 1281-82.

NASA contends that the property owners’ assertions about heavy traffic were speculative, without traffic studies to support them. AR 1421, 1175, 1195. These lay opinions do not constitute substantial evidence and are directly contradicted by the Project’s environmental engineers who stated that traffic from the Project would not only fall well below the City’s peak thresholds for traffic impacts in the industrial zone but would result in an overall decrease in the number of vehicle miles traveled by local garbage trucks. AR 1311, 437. Pet. Op. Br. at 16.

NASA distinguishes Keep Our Mountains, supra, 236 Cal.App.4^th at 7126-27, 735-36, as a case in which neighboring project opponents in a rural area presented exact measurements demonstrating that a single-lane mountain road was narrower than the standard requirements and was missing certain standard safety requirements. Ibid. These arguments were also corroborated by an expert traffic consultant. Ibid. In contrast, the City staff confirmed that the street adjacent to the Project site is “designed to accommodate heavy industrial vehicles.” Reply at 10.

The court agrees. Property owners can testify generally to traffic congestion, but they cannot opine on the Project’s impact on that traffic congestion without a traffic study. There also is no evidence of queuing. As a result, there is not substantial evidence supporting the City Council’s finding that increased traffic from the Project would have an adverse impact on property owners.

5. Whether the Project Complies With All the Applicable Goals and Polices of the General Plan

“The project is not consistent with the goals and policies of the General Plan, specifically; (sic).

General Plan Goal #4: “[T]o provide for growth and development of an industrial area in a manner compatible with other uses”

The City Council finds the proposed Project is an intensified use that is not compatible with other adjacent industrial uses. The increased truck traffic, solid waste disposal and processing, noise, odors, potential rodent infestation, and related impacts create circumstances which are incompatible with other surrounding and adjacent uses…..” AR 1464.

The fourth goal of the General Plan’s land use element is to provide for growth and development of an industrial area in a manner compatible with other uses. AR 1594-95. The City’s industrial area should be preserved and maintained. AR 1597. Frontage along Santa Ana Freeway should be preserved for industrial and compatible commercial development. AR 1598.

NASA argues that the City Council erred in finding that the Project is not consistent with the goals and policies of the General Plan. AR 1422. A CUP must be consistent with a City’s lawful general plan and zoning requirements. Neighborhood Action Group v. County of Calaveras, (1984) 156 Cal.App.3d 1176, 1185. The City staff report stated that the Project is “consistent with the goals and policies of the General Plan, specifically: Goal #1: [T]o Formulate a plan which is responsive to the needs of the community …” and Goal #4: “[T]o provide for growth and development of an industrial area in a manner compatible with other uses.” AR 1007. City staff further stated that the Project site is the ideal site to provide a vital service to the community and “provide adequate community infrastructure to support and service industrial development across the City.” Ibid. This reasoning was consistent with the initial study, which stated that the Project would be located in the area “reserved for the heaviest industrial uses in the City” and “would not conflict with any land use plan, policy or regulation.” AR 960. During the City Council meeting, one Councilmember concluded that the Project is plainly consistent with the General Plan and that the Project area is zoned “for something specific like this.” AR 1332. Another stated that the Project is consistent with the City’s land use element and “bordered by industrial development in all directions.” AR 1316. Pet. Op. Br. at 12.

The court disagrees. As Intervenors argue (Int. Opp. at 6-7), the City Council found that the Project is not consistent with General Plan Goal #4 “to provide for growth and development of an industrial area in a manner compatible with other uses.” AR 1833 (emphasis added). The City Council found that the Project presented an intensified use not compatible with other adjacent industrial uses and that the increased truck traffic, solid waste disposal and processing, noise, odors, potential rodent infestation, and related impacts would be incompatible with other surrounding and adjacent uses. AR 1833.

The Project is an intensified use of garbage trucks on a relatively quiet street with light industry neighbors consisting of office, hospitality, warehousing, medical, distribution and food and beverage processing facilities, and apparel showroom space. AR 449, 454, 456, 461, 480, 518, 593, 612, 614, 1195, 1436. The fact that the Project site is zoned for M-2 (Heavy Manufacturing) Zone with a General Plan land use designation of Industrial does not detract from this fact. Nor does the fact that some of these impacts -- solid waste disposal and processing, noise, odors, rodents – are not supported by evidence. There is substantial evidence that the Project does not meet Goal #4 of a development in a manner compatible with surrounding uses. A trail of garbage trucks every three minutes from 3 a.m. to 8 p.m. is not compatible with the surrounding property uses.

NASA relies on Mitcheltree v. City of Los Angeles, (“Mitcheltree”) (1971) 17 Cal.App.3d 791, 796-97, n. 4, the court held that a city in the process of developing a general plan could not rely on it to influence its findings on a CUP. See also J.L. Thomas, Inc. v. County of Los Angeles, (“J.L. Thomas”) (1991) 232 Cal.App.3d 916, 927 (irrelevant that the project was inconsistent with the area’s redevelopment activities when such a finding was not required for the CUP determination). NASA contends that the City Council did not simply rely on a not-yet finalized general plan as in Mitcheltree, it relied on a mere vision for a future plan, ignoring evidence of the Project’s consistency with the current General Plan. This reasoning led the City to the unsupported conclusion that the Project would “create circumstances which are incompatible with other surrounding and adjacent uses.” AR 1422. Pet. Op. Br. at 12-13.

During the City Council’s deliberations, Mayor Pro Temp Torres explained that the City was currently revising the General Plan to determine what it should look like for the next 10-15 years. AR 1319. A decision authorizing an intensive use for the Project site like a solid waste transfer facility will determine the future of the surrounding area. AR 1319-20. The City Council now has the opportunity to imagine what to do with the area, including “cleaner uses”. AR 1320, 1323-24. Councilmember Peralta reiterated that the General Plan has not been updated since 1973 and this area is not the right area for this Project. AR 1327. Councilmember Jimenez emphasized that while the City will update its General Plan at some point, for now the area is still zoned for heavy manufacturing. AR 1332. Councilmember Melendez stated that the current General Plan allows the Project, and the City Council should not be telling the business community that it cannot have a project that meets the zoning standards. AR 1336.

It is unfortunate that two City Councilmembers referred to how the General Plan might look in the future in discussing the Project; reliance upon an as-yet unadopted general plan is unlawful under Mitcheltree and J.L. Thomas. However, the mere fact that these two Councilmembers suggested that a future General Plan may not permit such a Project does not mean that they relied on a future plan in their vote; both Councilmembers set forth other reasons why they voted to deny the CUP. NASA fails to provide any authority that a discussion about potential future City goals is inappropriate.

The City Council’s finding that the Project does not comply with all the applicable goals and policies of the General Plan is supported by substantial evidence.

6. Whether the Project Is Necessary to Protect the Public Interest and/or Benefits the Surrounding Uses

As an alternative to a new CUP, NASA sought a CUP modification based on the Project site’s previous approved use as a glass recycling plant. AR 513, 520. To approve a CUP modification, the City must find that “such modification is necessary to protect the public interest and/or adjacent or abutting properties.” MMC §17.70.130. The City Council found that, based on all the evidence presented, the Project is “not in the public interest and does not benefit the existing uses of adjacent or abutting properties.” AR 1423.

NASA argues that the Resolution parroted a conclusion that the Project “is not in the public interest and does not benefit the existing uses of adjacent or abutting properties.” See MMC §17.70.130. This is not sufficient to “bridge the analytic gap between the raw evidence and the ultimate decision” necessary to constitute substantial evidence. Topanga, supra, 11 Cal.3d at 515. Reply at 12.

NASA notes that in Goat Hill Tavern v. Costa Mesa, (“Goat Hill”) (1992) 6 Cal.App.4th 1519, 1531, the court held that a city’s administrative determination to deny a CUP renewal based on the adverse impacts to surrounding neighbors was improper due to a lack of substantial evidence. The neighboring property owners stated vague concerns relating to noise and sanitation (id. at 1524) and the court held that these concerns contrasted with the evidence presented by the project proponent that mitigated these concerns. Id. at 1531.

NASA argues that, as in Goat Hill, nearly all the evidence in the instant case contrasts dramatically with the speculative and vague concerns of the Project opponents. The evidence confirms that the Project serves the public interest by providing a necessary public service within the City. According to the City staff report, “the modification to the existing conditional use permit will facilitate the public good and protect the public interest.” AR 555. Staff determined that the Project will allow NASA to “provide an essential service to the Montebello community” with “adequate community infrastructure to support and service City residents.” Ibid. The Project also will “provide a vital service to the local community by facilitating efficient transfer of solid waste.” Ibid. Not only is the Project site a prime location to provide this essential service, it also is carefully designed to minimize any potential adverse impacts to its neighboring properties. AR 869-70. Further, a Project engineer informed the City Council that the Project would benefit the region by reducing regional pollution through a decrease in vehicle miles traveled for waste services vehicles. AR 1340. City staff concluded that the Project would “facilitate the public good and protect the public interest” and “will be an asset to the area.” AR 321-22.

NASA argues that, instead of relying on the demonstrable realities of Project design and planning, the City Council relied on speculative claims that the Project is incompatible with the surrounding industrial uses, despite the fact that the General Plan’s land use element states that the “industrial area should be preserved and maintained.” AR 1567. There is insufficient evidence to support the City’s conclusory assertion that the Project is not in the public interest and does not benefit the surrounding uses. Pet. Op. Br. at 13-14; Reply at 12.

The City responds that the record shows that NASA uses the Project site as a truck yard and seeks to change this current use to a solid waste transfer station. “Changes in operation by businesses…are subject to review by local zoning authorities who exercise their police power for the welfare of the community.” Breakzone Billiards v. City of Torrance, (“Breakzone”) (2000) 81 Cal. App. 4th 1205, 1248. “In reaching a decision on an application for a CUP it is also appropriate for an agency to consider traffic, parking, safety, noise and nuisance problems; these clearly represent concerns that are well within the domain of the public interest and public welfare.” Breakzone, supra, 81 Cal. App. 4th at, 1246. City Opp. at 12.

Intervenors and the City argue that the City Council’s finding that the Project is not in the public interest and did not benefit the surrounding uses is supported by substantial evidence. The evidence of the Project’s incompatibility with, and adverse impacts upon, adjacent and abutting properties shows that it does protect or benefit them. The property owners’ evidence was neither speculative nor vague and their concerns were critical in determining that the Project does not serve the public interest. Int. Opp. at 8; City Opp. at 11.

The City staff report indicated that the Project would enable NASA to provide an essential service to the community and would thus facilitate the public good and protect the public interest. AR 555. However, the record also reflects countervailing evidence that the negative effects of the Project would substantially exceed whatever benefit it might provide to the City and its residents. The Resolution articulates specific evidence that the Project is not compatible with the surrounding property uses and does not support the goals and policies for proper industrial growth and development. AR 1831. City Opp. at 11-12.

The City Council Resolution specified that: (a) the owners of four adjacent properties provided testimony that the environmental and health impacts of the Project would diminish property values in the area; (b) over 20 adjacent property owners or residents expressed their view that granting the requested modification was not in the best interests of, or compatible with, the existing industrial uses in the area; and (c) the Project’s significant increase in solid waste transported primarily from surrounding communities to the Project site imposes on the City a burden of processing waste not generated within its borders. AR 1832.[9]

NASA replies that neither the City nor Intervenors invoke any evidence suggesting that the Project would not confer important public benefits. The City simply restates its own findings from the Resolution and fails to provide specific citations of any of the neighbor opinions. There is insufficient evidence to support the conclusory assertion that the Project is not in the public interest and does not benefit the surrounding uses. Reply at 12-13.

The answer is that the Resolution relied on all the evidence presented to conclude that the Project is “not in the public interest and does not benefit the existing uses of adjacent or abutting properties.” AR 1423. This includes the evidence supporting denial of the CUP because noise from the trucks would have an adverse impact on property owners and because the Project does not comply with all the applicable goals and policies of the General Plan. It also includes evidence that the Project’s significant increase in solid waste transported primarily from surrounding communities to the Project site imposes on the City a burden of processing waste not generated within its borders. There is no doubt that the Project would provide a general regional benefit, but the City Council was entitled to consider the impact on its residents, particularly the property owners.

There is substantial evidence to support the City Council’s conclusion that a modified CUP is not necessary to protect the public interest of City residents and adjacent or abutting properties. MMC §17.70.130.[10]

The Petition is denied. The stayed damages claims are ordered transferred to Department 1 for assignment to an I/C court.

[1] The transcript misspells the name as “Kota.” AR 1280.

[2] The hearing transcript misspells the name as “Bocci”. AR 1291.

[3] For convenience, the court will refer solely to neighboring “property owners” and not “businesses and property owners”.

[4] Harris is inapplicable both because the City cannot rely on a summation of ordinance factors when dealing with a specific required finding and because there is no supporting evidence for this required finding.

[5] The new trips of 274 are consistent with the total of 378 discussed by NASA.

[6] Intervenors correctly note (Int. Opp. at 5-6) that the arguments of NASA’s environmental consultants were tailored to an environmental impacts analysis under CEQA. Whether a particular impact meets a threshold for review or mitigation under CEQA does not control whether the Project will have an adverse effect on adjacent and abutting properties under the MMC. The City disagreed with the CEQA analysis anyway. AR 520-21, 1319-20, 1833.

[7] Property owners testified that the Project would result in decreased property values. See, e.g., AR 1291 (broadly stating the Project’s impact on property values would be “horrific”). A project opponent’s “general allusions to property values” will only amount to “speculative, imprecise opinion[s],” not substantial evidence. Lucas Valley, supra, 233 Cal.App.3d at 157. The property owners failed to provide facts to support their assertions that the Project would result in a decrease in property values. Pet. Op. Br. at 11-12.

Property owners also testified to the stigma of a waste processing plant in the area. AR 452, 1224. The stigma created by a solid waste transfer use would have a negative impact on their business operations and hinder their availability to attract investors and tenants. AR 452, 478, 515. The reputation of the area would suffer. AR 452. This, too, is an irrelevant generalization too vague and non-specific to amount to substantial evidence. Lucas Valley, supra, 233 Cal.App.3d at 157.

[8] NASA refers to this increase as 104 to 426, referring only the change, not the total number of generated trips. AR 18. Int. Opp. at 3, n.1.

[9] Intervenors argue that NASA’s reliance on Goat Hill is misplaced. Goat Hill presented a set of unique facts leading the court apply the independent judgment standard of review to the city’s denial of a CUP renewal because the applicant had established vested rights to operate Goat Hill Tavern. 6 Cal.App.4th at 1519-30. Goat Hill had little to do with whether opposing neighbors presented substantial evidence of impacts. In fact, the court found the circumstances more like the city was revoking a CUP than denying one. Id. at 1529-30. Int. Opp. at 9. NASA explains that its citation of Goat Hill was made to show the kind of evidence that qualifies as substantial evidence, not to claim any vested rights for the standard of review. Reply at 12-13.

[10] NASA notes that this is not a CEQA case and that it addresses the adequacy of the initial study only to argue that the City Council erred when it refused to adopt the Project’s negative declaration. AR 1465. Pet. Op. Br. at 15. Intervenors point out that CEQA does not apply to projects which are denied. Pub. Res. Code §21080(b)(5); see also AR 1418. Thus, the City was not required to make any CEQA findings. Int. Opp. at 9.

Given that the court has found that substantial evidence supports the City Council’s denial of a CUP, and a modification of the existing CUP, it need not address the adequacy of the City Council’s CEQA determination. Nor does the court need to address the parties’ debate about whether the court lawfully can issue a writ of mandate commanding approval of the CUP application under CCP section 1094.5(f). Compare City Opp. at 12-13 and Reply at 14.