Judge James C. Chalfant, Case Number: 22STCP01352, Date: 2023-08-31 Tentative Ruling

Petitioner Jin Ser Park (“Park”) seeks a writ of mandate to compel Respondents City of Pasadena (“City”), its City Council, and its City Board of Zoning Appeals (“Board”) to set aside the decision to approve the additions described in Hillside Development Permit (“HDP”) #6838 (“Project”).

The court has read and considered the moving papers, joint opposition, and reply,[1] and renders the following tentative decision.

Petitioner Park commenced this proceeding on April 14, 2022, alleging causes of action for (1) administrative mandamus, (2) traditional mandamus, (3) violation of the California Environmental Quality Act (“CEQA”), and (4) denial of due process and equal protection. The Petition alleges in pertinent part as follows.

Park owns property at 1812 Linda Vista Avenue, Pasadena, CA 91103 (“Park Property”). The Park Property is a residential property with a 2,452 square-foot single family residence. Multiple rooms on the first floor have a view of the San Gabriel Mountain Ridgeline (the “Ridgeline”), a historic ridgeline of prominence under Pasadena Municipal Code (“PMC”) section 17.29.060.G.

The adjacent property is 1820 Linda Vista Avenue, Pasadena, CA (“Project Property”). The Project Property is home to a 2,452 square-foot single family residence that has not changed in 70 years. The lot has an average slope of 29%, some areas as steep as 50%. It is in a high fire severity zone, and the Project Property and surrounding properties are all in a liquefaction zone on the Department of Conservation’s Earthquake Hazards Map.

Real Party-in-Interest Matthew Feldhaus (“Feldhaus”) applied for HDP #6838. The Project design under the HDP application was for the construction of a 2,208 square-foot, two-story addition to the existing residence, with 1,401 square feet on the same level as the existing residence and 807 square feet one level lower. Feldhaus used story poles to provide a visual representation of the height of the new structures.

PMC section 17.29.060.G.3 prohibits the construction of new structures where they block the view of “prominent ridgelines” from any main dwelling on a neighboring property. Although the City’s Department of Planning and Community Development (“Planning”) reviewed the HDP, it never analyzed whether the Project would obstruct the Park Property’s view of the Ridgelines. Planning’s staff report summarily concluded that there was no obstruction of protected views because the Park Property’s view was already limited by the Project Property’s existing roofline and the sky above. The report also noted that the Project maintains the general height of the existing residence.

In January 2020, the hearing officer granted the HDP for the Project and a CEQA Notice of Exemption (“NOE”). On January 19, 2021, Park appealed this decision. The Board heard the appeal on April 22, 2021, where Park used pictures to show that the Project would obstruct his view of the Ridgeline. Park also submitted evidence and argument to show that the Project is not exempt from CEQA’s requirement for an Environmental Impact Report (“EIR”).

In April 2021, the Board voted unanimously to grant Park’s appeal and reject the HDP for the Project. Feldhaus appealed that decision to the City Council.

Days before the City Council’s 2021 meeting on Feldhaus’s appeal, Planning released a staff report that revealed modifications to the Project. The revised Project description included a 1,364 square foot addition to the existing 2,452 square-foot residence, a 315 square foot garage addition, a 158 square-foot equipment and storage area, and a swimming pool. These modifications added an Additional Dwelling Unit (“ADU”) which should have prompted a new application and a new hearing.

Park objected to the City Council’s consideration of the revised Project. At its October 21, 2021 meeting, the City Council referred the HDP to the Board based on “new evidence”. The Board conducted a second review of the HDP on November 18, 2021 based on the revised Project. The City did not provide any other new relevant evidence. The Board approved the revised Project with a slight reduction to the height of the garage.

On March 14, 2022, the City Council reaffirmed the Board’s new decision with minor conditions not relevant to Park’s objections. It also determined that the revised Project is exempt from CEQA.

Park alleges that the City Council approved the HDP without substantial evidence. The City Council also did not have jurisdiction to review the revised Project. The Board and City Council failed to correctly interpret CEQA and PMC Chapter 17.29.

Park seeks a peremptory writ of mandate that compels Respondents to set aside the Project’s approval and suspend all activities in furtherance thereof. The writ of mandate should also set aside the NOE and compel Respondents and Feldhaus to prepare an EIR. Park alternatively seeks a remand of the revised Project to the City.

On April 21, 2022, Park served the City, City Council, and Board with the Petition.

The Hillside Overlay District Ordinance (the “Ordinance”) governs development on a site within a Hillside Development overlay zoning district. PMC §17.29 et seq. (RJN Ex. A). Approval of an HDP in any Hillside Development overlay zoning district is required for any proposed subdivision, new dwelling or structure, addition of 500 square feet or greater to the first floor of an existing structure, square footage above an existing first story, and major renovations. PMC §17.29.030.A.1, .2, .4, .6, .7 (RJN Ex. A).

A proposed structure shall be designed and located so that it avoids blocking views from surrounding properties to the maximum extent feasible, as determined by the review authority. PMC §17.29.060.G. A “surrounding” property is any abutting property as well as a property directly across a street from the subject property. Id. The review authority shall consider the feasibility of relocating the proposed structure to another part of the site, of modifying the massing of the proposed structure to not impact views from surrounding properties, and of minimizing architectural features that may intrude upon those views. Id.

New structures and tall landscaping shall not be centered directly in the view of any room of a primary structure on a neighboring parcel. Id. New structures shall avoid blocking such views of (1) culturally significant structures such as the Rose Bowl, Colorado Street Bridge, or City Hall; (2) downslope views of the valley floor; (3) prominent ridgelines; and (4) the horizon line. Id.

The HDP process provides a review for the City to consider the appropriateness of proposed development on hillside lots to ensure that a proposed project minimizes its visual and environmental impact. PMC §17.29.080.A. An HDP application should include a geotechnical report that proposes mitigation measures for any soils or geological problems that may affect site stability or structural integrity. PMC §17.29.080.C.2. A hydrology report shall analyze the effects of water runoff, drainage, sustained landscape irrigation, and increased groundwater on slope stability. PMC §17.29.080.C.3. It must then analyze the potential effects of added groundwater on property’s downslope. PMC §17.29.080.C.3.

If a lot exceeds 20,000 square feet, the review authority may approve additional floor area above the maximum permitted by Neighborhood Compatibility after reviewing site conditions and compliance with Hillside District standards. PMC §17.29.080.G. This can only happen if (a) the additional square footage will not have an additional view impact and (b) the massing, scale, and building articulation of the proposed structure is compatible with the neighborhood as viewed from public or private streets. Id.

When reviewing an appeal or a call for review, the review authority may reverse, modify, or affirm, in whole or in part, the determination that is the subject of the appeal. PMC §17.72.070.B.1.b (RJN Ex. B). It may also choose to adopt additional conditions of approval that were not considered or imposed by the original applicable review authority. PMC §17.72.070.B.1.c.

If the applicant submits new plans and materials that the Zoning Administrator finds differ substantially from the materials submitted for the original decision, the hearing shall be terminated, and the applicant shall file a new application. PMC §17.72.070.B.2.b. Changes to the original submittal to address objections of the review authority need not be the subject of a new application. PMC §17.72.070.B.2.c.

If new or different evidence is presented during the hearing, the applicable review authority may refer the matter back to the Director, Zoning Administrator, Hearing Officer, Environmental Administrator, Design Commission, or Historic Preservation Commission to draft a report on the new or different evidence before a final decision on the appeal. PMC §17.72.070.B.3. Examples of the applicable review authority include the Board of Zoning Appeals, Design Commission, Historic Preservation Commission, or City Council. Id.

If the review authority fails to act upon an appeal or a call for review, the decision from which the appeal or call for review was taken shall be deemed affirmed. PMC §17.72.070.B.5. This does not apply when an affirmative vote to approve or certify is necessary for any action pursuant to CEQA. Id. A failure to affirmatively approve or certify any CEQA action shall be deemed a denial thereof, but it shall also be considered a decision and may be called for review or appealed. Id.

The existing residence on the Project Property is 2,425 square feet, with an attached 366 square-foot garage and an attached 439 square-foot carport. AR 4. The house was originally built in 1948. AR 121. The last substantial alteration in 1965 was the addition of enclosed floor area, an open courtyard, and a carport to the front of the house. AR 121. The Project Property sits within a “liquefaction zone”. AR 863.

The Park Property is a two-story house adjacent to and south of the Project Property. AR 774.

On June 29, 2020, Feldhaus filed HDP Application #6838 for the Project. AR 4, 1710. The Project was for the construction of a 2,208 square-foot, two-story addition with a 366 square-foot garage and a 439 square-foot carport. AR 10. The addition included a 1,401 square-foot addition at the same level as the existing residence, plus an 807 square-foot lower-story addition. AR 10. This would expand the building on the Project Property to a 4,660 square-foot residence with an attached 754 square-foot garage. AR 10.

On January 4, 2021, Park objected to the Project. AR 49. He asserted that his house was within 50 feet of the residence on the Project Property and the proposed additions would have a direct view into several of Park’s living spaces. AR 49. The additions also would obstruct Park’s view, especially from the living room. AR 49. The Project further violated PMC prohibitions on any development below or above “the top edge”. AR 49. Just two years earlier, Park had a similar project denied. AR 49.

Planning issued a Notice of a Public Hearing for January 6, 2021. AR 4. The Notice described the Project as a 1,401 square-foot addition to the same level as the existing residence and a new 807 square-foot lower-story addition. AR 4. An HDP would be required for the Project. AR 4. The Notice further stated that the Project fell under the Class 1 Exemption to CEQA. AR 4.

On January 6, 2021, Planning issued a staff report for the Project. AR 10. The report explained that the Project Property descends east down a hillside toward the Arroyo Seco. AR 11. 6,232 square feet of the site has a slope equal to or greater than 50. AR 11. Of the areas with a slope of less than 50%, the average slope was 29%. AR 11.

The staff report noted that the Project Property is zoned to RS-4-HD, a single-family residential area in the Hillside Overlay District. AR 12. Any addition over 500 square feet within the Hillside Overlay District requires an HDP. AR 12.

The second story deck of the new building would be expanded to include a pool and spa. AR 12.[4] The proposed structure’s scale and massing would be within the scale and setting of that neighborhood. AR 16. The Project would still look like a single-story residence from the street. AR 16.

Planning staff visually inspected the Project Property after installation of story poles in December 2020 to create a temporary silhouette. AR 17. Based on the site visit, staff’s position is that the Project would not reasonably impact any protected views from adjacent properties. Although portions of the silhouette are visible from various vantage points, there is no protected view obstruction. AR 17. Those portions that are visible are not reasonably centered directly in the view of the abutting properties, consistent with the intent of the Zoning Code. AR 17. Views from the Park Property (1812 Linda Vista) are limited to portions of the Project Property’s existing roof’s ridgeline and the sky above. AR 17. Because the additions would maintain the general height of the existing residence, they would not impact existing view conditions. AR 17. Moreover, the majority of the Project is sited at the northern side of the Project Property, directly south of a property at 1840 Linda Vista, which would not affect that property’s view. AR 17. Therefore, none of the addition would be centered directly in any protected view. AR 17.

An attachment to the staff report listed 30 homes within 500 feet of the Project Property. AR 31. The median building size is 2,827 square feet, while the average is 2,765.5 square feet after excluding the two vacant lots. AR 31. No lot that is under 51,000 square feet has a building over 3,270 square feet. AR 31. Twelve homes are within the same RS-4 Zone as the Project Property. AR 31. Although most are between 2,500-3,000 square feet, Park’s house is 5,055 square feet and another home is 4,945 square feet. AR 31.

Also on January 6, 2021, City staff issued a recommendation that the hearing officer find that the Project qualifies for a Class 1 Exemption under CEQA. AR 9.

A Planning hearing officer conducted a hearing on the HDP on January 6, 2021. AR 1695. At the hearing, City staff described the Project, and stated that the developer also intended to expand the existing deck for a swimming pool and additional living space. AR 1698. The lower story addition would be completely below the extended deck’s footprint. AR 1698. The Project meets all required development standards, and the applicant is asking to exceed the maximum allowed neighborhood compatibility analysis. AR 1698. Staff reviewed the request and was able to make the required findings. AR 1698.

On January 11, 2021, the hearing officer sent Feldhaus a notice approving the HDP for the Project with certain conditions. AR 88-89. The hearing officer described the Project as a 2,208 square foot, two-story addition to the existing 2,452 square foot, single-story single-family residence, with an attached 366 square foot garage and an attached 439 square foot carport. AR 89. Of the total new square footage, 1,401 square feet would be on the same level as the existing residence and 807 square feet would be part of a lower-story addition. AR 89. The hearing officer determined that the Project is exempt from CEQA under Class 1 (Existing Facilities). AR 90.

On January 19, 2021, Park filed an appeal from the hearing officer’s decision. AR 103-04.

On March 20, 2021, the hearing officer issued an addendum responding to Park’s appeal. AR 117, 1541. Park’s argument the argument that the Project is “out of scale” had no merit because it still would be smaller than Park’s own house. AR 117. The staff report had provided a comprehensive analysis of viewshed impacts. AR 117.

As for the “unusual circumstances” cited by Park -- the steepness of the lot and its proximity to a large liquefaction zone which includes an historic watershed -- these circumstances applied to many neighboring properties, including the Park Property. AR 117-18. The existence of other homes also undermined the argument that the Project would put stress on the hillside and liquefaction zone. AR 118.

Park submitted a presentation that included a projection of the Project. AR 153. The pictures showed that the planned infinity pool would be on the farthest and steepest edge of the Project Property. AR 153. Other pictures showed that, based on the silhouettes from the story poles, the Project would block Park’s view of the Ridgeline. AR 373-77.[5]

On April 21, 2021, Park’s counsel submitted a statement asserting that the hearing officer incorrectly described the Project. AR 183. The Project violates the requirements of the Ordinance and would block Park’s protected views. AR 183. It also should not qualify for a Class 1 Exemption under CEQA because the scale of the alteration, adjacent land conditions, and other circumstances merit environmental review. AR 183.

Park’s counsel also asserted that Feldhaus’ intention to pursue additional by-right projects was intended to avoid CEQA analysis and neighborhood input, notice, and review. AR 183. Planning knew this fact yet failed to examine the additional modifications. AR 183-84.

Sometime after Park’s objections, he obtained Planning’s email communications with Feldhaus in response to a California Public Records Act (“CPRA”) request. In emails from July and August 2020, Feldhaus asked an assistant City planner if he could add an ADU to the initial planning submission. AR 212. An assistant City planner replied that the City’s current ADU ordinance prohibits newly constructed ADUs in the Hillside districts but does allow conversion of existing legally permitted space into an ADU. AR 210.

Feldhaus then asked if Planning could allow an ADU in this case. AR 210. His current approach was to obtain a permit for the additional square footage at the lower level, then apply to convert the new space to an ADU. AR 210. If he could instead apply directly for an ADU, he would not need to construct internal stairways and additional doors only to demolish them once the conversion is approved. AR 210.

On February 3, 2021, an associate planner told Feldhaus that, as of that week, the City would no longer prohibit ADUs on the Hillside districts. AR 214. However, if the same permit sought to add both a 500 square-foot master bedroom and a lower story ADU, the master bedroom addition may be considered as a second story addition. AR 214. Because this could potentially trigger an HDP review, a better option would be to separate the ADU out for a subsequent permit. AR 214.

On April 14, 2021, Planning contacted Park’s counsel to ask for permission to take a few pictures from the backyard of the Park Property, near any of its buildings and windows. AR 4098. Park’s counsel agreed to allow this to occur on April 21 when Park was home. AR 4098.

On April 22, 2021, Planning issued a staff report recommending that the Board uphold the hearing officer’s January 2021 decision. AR 58. The report also recommended a finding that the Project is exempt under the Class 1 Exemption to CEQA and that there are no unusual circumstances. AR 58.

The staff report asserted that the primary concerns from the three public comments at the January 2021 hearing -- including two from Park’s attorney -- concerned privacy impacts on abutting properties, potential impact on protected views, the proximity of the addition to the top edge of the slope, grading impacts, and incorrect application of a CEQA exemption. AR 60. The hearing officer acknowledged and discussed these concerns and then issued a decision that approved the HDP and the finding that the Class 1 Exemption applies. AR 60.

The Zoning Code requires that applicants design and locate improvements to avoid blocking views from surrounding properties by not centered new structures directly in the view of any room of a primary structure on a neighboring parcel. AR 65. Improvements shall avoid blocking culturally significant structures, including ridgelines. AR 65. Views of the open sky, existing foliage, private yards, and existing structures on surrounding properties are not considered by the reviewing authority. AR 65.

The Park Property’s view of the Ridgeline is already limited to portions of the Project Property’s existing roof's ridgeline and the sky above. AR 65. Because the additions would maintain the general height of the existing residence, they would not impact existing view conditions. AR 65. Although portions of the silhouette from story poles were visible from various vantage points, there was no protected view obstruction. AR 66. The portions that were visible would not be reasonably centered directly in the view of the abutting properties. AR 66. This was consistent with the intent of the Zoning Code. AR 66. City staff concluded that the Project minimized view impacts and is consistent with view protection standards. AR 66.

The staff report addressed the five arguments in Park’s appeal. AR 68. The first was that the Project Property’s development would be out of scale with the developments in the vicinity because no lot less than 51,000 square feet has a building more than 3,270 square feet, and the Zoning Code does not allow a proposed dwelling to exceed the median floor area of surrounding residences by over 35%. AR 68. That is not how staff analyzes neighborhood character. AR 68. For lots larger than 20,000 square feet, the review authority may approve additional floor area after a review of site conditions and compliance with Hillside District standards. AR 68-69. City staff chose to do so here. AR 69. Although Park also noted the average building size in the neighborhood is only 2,765.5 square feet, this is irrelevant because four parcels are vacant. AR 68-69. The mean size of the 27 developed parcels is 2,827 square feet. AR 69. Staff found the Project size compatible with the neighborhood. AR 69.

Park’s second argument was that the City did not consider the impact on the view and privacy on the Park Property and surrounding properties. AR 70. The Zoning Code prohibits improvements centered directly in the view of any room of a primary structure on a neighboring parcel. AR 70. Such views include prominent ridgelines but not the open sky, existing foliage, private yards, or existing structures. AR 70-71. No portion of the Project would be centered directly in any of Park’s existing view of the Ridgeline. AR 71. As for privacy, the views Park refers to would be from the exterior portion of a neighboring structure and are not protected views. AR 71-72.

Park’s third argument was that a variety of unusual circumstances compel preparation of an EIR. AR 72. The staff report stated that the Project Property and adjacent properties all sit next to the largest liquefaction zone in the City. AR 72. It is also in a high fire severity zone and a landslide zone. AR 72, 327. It further has a slope of over 50% in some areas, with the rest averaging 29%. AR 72.

The staff report determined that the Project qualified for a Class 1 Exemption because there are no unusual circumstances distinguishing this project from others in the exempt class. AR 72, 316. Feldhaus had provided a preliminary geotechnical report concluding that the Project would be safe against hazard from landslide, settlement, or slippage. AR 73, 317. It also would not adversely affect the area’s geologic stability. AR 73, 317. Further plan checks and conditions of approval from various departments would provide assurance that the Project meets all building and safety and fire requirements. AR 73. Additionally, the hearing officer’s Addendum pointed out that lot steepness and the nearby liquefaction zone did not prevent construction in neighboring properties with the same problem. AR 73. This also undercut Park’s fourth argument that the study of cumulative impacts was necessary. AR 74.

Park’s final argument was that the Project could cause a substantial adverse change to a historic resource. AR 74. Planning’s Design & Historic Preservation Section concluded that the Project Property in its current form was not eligible for historical designation because of the additions in 1965. AR 74.

The Board heard Park’s appeal on April 22, 2021. AR 1709. The City gave a presentation why the Board should affirm the hearing officer’s decision. AR 1710, 1716-24.

Among other things, the City noted that Park argued that a variety of unusual circumstances compel preparation of an EIR but the City determined that the Project did not have any features that disqualified it from a Class 1 Exemption. AR 1724-25. Two of the unusual circumstances Park cited applied equally to many neighboring properties, including the Park Property. AR 1725.

Park argued that the cumulative impacts of the properties built adjacent to the liquefaction zone merited EIR preparation. AR 1726. Residential additions are common within that district. AR 1726. The preliminary geotechnical report identified no significant concerns and included recommendations for continued slope stability. AR 1726. These recommendations were listed in the approval conditions for the building. AR 1726.

The City addressed the emails Planning exchanged with Feldhaus about an ADU. AR 1727-28. This was not an effort to piecemeal the Project or conceal it from the public. AR 1728-29. The Project before the Board was the same as that for the hearing officer’s January 2021 decision. AR 1729. After that decision and during the appeal, Feldhaus asked if he could abandon the HDP application and pursue a by-right smaller project. AR 1729. After Feldhaus explored his options, he decided to move forward with the HDP application as is. AR 1730. Staff also noted that ADUs are ministerial and not subject to CEQA. AR 1730. If Feldhaus pursues an ADU in the future, there would be a plan check process and the future ADU would make use of the floor area already considered under the HDP. AR 1730.

A Board Commissioner asked how City staff analyzes the view from any room of a main dwelling on a neighboring property. AR 1767. Staff responded that it asks for access into the home to take pictures when it believes a view may be impacted. AR 1767. In this case, the nature of existing foliage, trees, and other structures made that unnecessary. AR 1767. In light of the photographs that Park provided, staff did not think that such a visit would have yielded additional information. AR 1767-68.

As to the emails, a Board Commissioner noted that while Feldhaus was forthcoming about his plans for an ADU, City staff advised him to piecemeal that project. AR 1775. The staff reports never discussed the ADU or infinity pool. AR 1775. The Commissioner asked if this was an attempt to circumvent public input or potential CEQA analysis. AR 1775.

City staff replied that the public notice described the Project’s additions triggering the need for an HDP. AR 1775. If those additions did not go forward, Feldhaus still had the right to build a pool deck and swimming pool. AR 1775-76. The notices of the HDP in City agendas includes the elements of the Project that were subject to discretion. AR 1776. Only the HDP was a discretionary matter subject to CEQA review; the addition of an ADU is ministerial and therefore not subject to CEQA review. AR 1776. If the applicant came back to do an ADU in the future, he would be converting the existing space currently being evaluated for view protection and neighborhood compatibility. AR 1776.

After the hearing, the Board voted unanimously to grant Park’s appeal and reject the HDP for the Project. AR 261. The Board found that the application requested 844 square feet of floor area above that permitted by the Neighborhood Compatibility requirement. AR 261. Under PMC section 17.29.80.G.1, any additional floor area requires a finding that “no additional view impacts will occur to neighboring properties as a result of granting additional square footage.” AR 261. The Board could not make this finding because the Project would block Park’s view of the Ridgeline from a first-floor window. AR 261. Therefore, the HDP was disapproved. AR 261. The Board did not vote on the CEQA exemption recommendation, which is considered a denial under PMC section 17.72.070.B.5. AR 261.

On May 3, 2021, Feldhaus appealed that decision to the City Council. AR 262. The appeal hearing was set for October 18, 2021. AR 257.

On September 30, 2021, Feldhaus submitted revised plans for the Project. AR 1610-12. The plans depict a low-profile, single-story home with much of the home hidden under the back side of the house. AR 1610-12.

On October 15, 2021, Feldhaus’s counsel sent a letter to the City Council asserting that that, in response to the Board’s decision, he had eliminated the square footage in excess of the Neighborhood Compatibility requirements. AR 515. The Project already reduced view impacts to the maximum extent feasible and thus complies with the Zoning Code. The two-story Park Property residence exceeds 5,000 square feet and will have unobstructed views from all protected places. AR 515.

Feldhaus replied to Park’s argument that his communications with Planning sought to piecemeal the Project or hide aspects of it from public input. AR 521. He just asked Planning about his options for the Project. AR 521. Planning then advised him to comply with the rules for HDPs and ADUs. AR 521.

The staff report for the October 18, 2021 City Council appeal hearing noted that Feldhaus’ revised Project plans reduced the size of the residence within the floor area limits under the Neighborhood Compatibility Analysis. AR 258. The revised Project has 1401 square foot addition on the same level as the existing residence and an aggregate 158 square feet of lower story addition for enclosed pool equipment and storage space. AR 258. There is also an 807 square-foot lower-story ADU. AR 258. The revised Project would also have an attached 754-square foot garage. AR 262. The total square footage for the revised Project is 5572 square feet of gross floor area. AR 258. By comparison, the initial Project was a 4,660 square-foot residence. AR 262. The ADU is ministerial and not part of the HDP discretionary review. AR 258. The proposed deck expansion and pool also were not subject to an HDP. AR 258.

Feldhaus requests that the City Council modify the “neighborhood” used for Neighborhood Compatibility Analysis. AR 266. If City Council approved the proposed definition of “neighborhood,” the revised Project’s main residence would be within the allowed floor area of the Neighborhood Compatibility Analysis. AR 266. This would render it unnecessary to find that the additional square footage has no additional view impact. AR 266-67. If the City Council does not approve the modified neighborhood, the residence would have to be reduced by 37 square feet to be within the Neighborhood Compatibility Analysis threshold of 3,816 square feet. AR 267.

The staff report also asserted that the revised Project’s scale and massing are compatible with the scale and setting of the surrounding neighborhood. AR 267. From the street, it would still appear as a single-story residence. AR 267. The ADU would occupy captured space below the primary residence’s main level, which would otherwise remain empty. AR 268. The placement of the upper floor and lower floor additions would maintain any protected view corridors from adjacent properties. AR 268.

The staff report stated that Park’s pictures presented to the Board included a first-story window depicting a partial view of the Ridgeline. AR 269. Staff’s exterior visit to the Park Property observed that this window had views of the private side yard, existing foliage, a block wall, and the existing residence of the subject application. AR 269. After the Board voted to grant Park’s appeal, the Director of Planning contacted Park for permission to enter his residence and analyze the view from the interior of the windows. AR 269-70. Park did not grant permission. AR 270. The staff concluded that, although the new roof design of the revised Project would block some of the Ridgeline, it is designed to avoid blocking views from surrounding properties to the maximum extent feasible. AR 270.

The staff report stated that the revised Project qualifies for a CEQA Class 1 Exemption. AR 273. No unusual features distinguished the revised Project from other projects in the class. AR 273.

On October 18, 2021, Planning informed the City Council via email that Park had raised due process objections because the revised Project being considered by the City Council differs from the Project reviewed by the Board. AR 843. Planning therefore recommended that, pursuant to PMC section 17.72.070.B.3, the City Council remand the case to the Board to review and consider the revised Project. AR 843.

Park objected to the recommendation. AR 4315. He asserted that the revised Project is an entirely different project and proper protocol requires that the City Council render an opinion on the project at issue. AR 4315.

Over Park’s objection, the City Council voted to remand the revised Project to the Board for consideration. AR 1804-05.

On November 18, 2021, Feldhaus’ counsel asserted via letter to the Board that he had reached out to Park with an offer to maintain the Project Property’s existing roof height, lower his garage roof 18 inches, and develop a mutually agreeable landscape plan that would protect Park’s privacy. AR 918. Park rejected that offer. AR 918.

Park now asserts that there is no statutory framework for the Board to reevaluate its own decision by way of remand from the City Council. AR 919. PMC section 17.72.070.B.3 allows the City Council to remand the matter. AR 919. While Park argues that the Board is not listed as an eligible agency, this ignores the use of the words “for example” and “as applicable.” AR 919. PMC section 17.72.070.C.2.c also states that when changes to a submittal are to address objections of the review authority, they need not be in a new application. AR 919.

Park also misstated the size of the revised Project’s structure. AR 919. While the initial Project’s size exceeds the maximum allowable Neighborhood Compatibility floor area, the revised Project does not because the ADU and swimming pool are not a part of that floor area and do not require an HDP. AR 919.

Feldhaus also asserted that several of Park’s photographs are misleading because they were not centered on the window. AR 1265-72. The others showed that the Ridgeline would either remain visible or were already covered by the existing patio. AR 1265-73. Some of the views also did not qualify as protected views. AR 1265-73.

The staff report for the November 18, 2021 hearing recommended that the Board approve the revised Project and find it exempt from CEQA. AR 570. It reiterated the same analysis from the October 2021 staff report. AR 268-70, 273, 579-80, 583-84. This included the argument that ADUs are ministerial and not subject to discretionary review or a public hearing. AR 574. The swimming pool, deck expansion, and ADU did not require an HDP and are allowed by right. AR 574.

The design of the revised Project’s proposed structure avoids blocking any protected views from surrounding properties to the maximum extent feasible. AR 580, 584. It also avoids upper-story additions, made use of the existing building pad for the additions to the front of the residence, and provides a flat roof system. AR 580-81.

At the November 18, 2021 Board hearing (AR 1810), arguments and testimony were as follows.

The City explained that PMC section 17.72.070.2.C allows changes to a submittal to address objections of the review authority without a new application. AR 1819. This gave the Board the authority to review the revised Project. AR 1819.

Planning noted that, if the Board modified the definition of “neighborhood” for the Neighborhood Compatibility Analysis, the revised Project would be only 3,853 square feet and it would be unnecessary to find that the additional square footage has no additional impact on the view. AR 1822-23. If the Board did not modify the definition of the neighborhood, Feldhaus would have to decrease the revised Project by 37 square feet to meet the threshold. AR 1824.

As to the view, Planning visited the exterior of both the Park and Project Properties. AR 1827. It concluded that the proposed additions would not be centered directly in front of a protected view. AR 1827. To the maximum extent feasible, the revised Project would not affect any second-story views. AR 1827. Park’s pictures shows that the existing structure already obstructed first-story views. AR 1827-28.

Feldhaus also had decided to forego windows on the south elevation to mitigate Park’s privacy concerns. AR 1829. The lower story ADU would not be visible from the Park Property because the elevation would be unchanged from the Project. AR 1829.

The pictures Park provided were taken from angles and not centered directly from the windows, and the City could not authenticate them because it was denied entry. AR 1828-29. When the City asked to enter the Park Property to verify interior views, Park denied entry. AR 1827. As shown by the story poles, the proposed additions were not shown directly centered in front of a protected view. AR 1830-31.

The silhouettes blocked the Park Property view of the Ridgeline from any angle. AR 1862. In any case, it was a misstatement of the law to say that PMC section 17.29.060.G only prohibits buildings that obscure protected views when centered. AR 1862.

Park then addressed the argument that the Board had the authority to consider changes to the New Project as new evidence under PMC section 17.72.070.D.3. AR 1863. That provision only allows the body which hears the appeal to require the original body to report on the new evidence. AR 1863-64. It does not give the appellate body authority to remand the entire case based on new evidence, which is what the City Council did here. AR 1864. This means that the Board did not have jurisdiction over the case. AR 1864.

Lisa Johnson (“Johnson”) is the previous owner of the Project Property. AR 1880. She has been in both the Park and Project Properties since she was born. AR1880. Based on her knowledge of all the vantage points, Park’s pictures misrepresent the view of the Ridgeline from the Park Property. AR 1880-81. The avocado trees on that side prevent any view unless the person is really tall. AR 1881. Feldhaus could not have designed a Project that is more respectful to his neighbors. AR 1881.

On November 23, 2021, the Board issued a decision approving the HDP for the revised Project, subject to certain conditions. AR 995. The decision described the revised Project as a 1,364 square-foot addition to the existing 2,452 square-foot, single-story residence. AR 995. It would also add a 315 square-foot garage addition and a 158 square-foot equipment and storage area. AR 995. The decision reiterated that Feldhaus would add a swimming pool and an 807 square-foot lower-story ADU, neither of which required an HDP. AR 995.

The Board’s conditions of approval reduced the garage roofline by 18 inches. AR 955. A second condition required reduction of the addition to the primary residence by 37 square feet to 1,364 because the Board chose not to modify the Neighborhood Compatibility Analysis as requested. AR 955. The Board also adopted the environmental determination that the revised Project is exempt from CEQA review. AR 955, 995.

On November 29, 2021, Park appealed the Board’s November 2021decision. AR 955. He asserted grounds of (1) failure to properly apply the provisions of the Ordinance, (2) failure to properly evaluate CEQA compliance, (3) unequal treatment of an applicant, (4) approval of a new project different from the original project for which the Board did not have jurisdiction, (5) the Project would impact Park’s view, (6) a flawed Neighborhood Compatibility Analysis, (7) failure to consider the ADU as part of the Project, and (8) incorporation of all prior objections to the Project. AR 956.

The City Council gave notice via its agenda that it would hear Park’s appeal on March 14, 2022. AR 938, 945.

On December 10, 2021, Elizabeth Houston (“Houston”) submitted her recollection of the view from the Park Property. AR 1691-92. Her grandfather built the Park Property residence and she lived there for 48 years. AR 1691. The only view of the Ridgeline was from upstairs in two bedrooms and the bathroom in between. AR 1692.

On March 11, 2022, Park’s counsel submitted a letter. AR 1632-44. He included pictures from one of Park’s living room windows, which showed that Park did have a view of the Ridgelines that the revised Project would obscure based on the poles’ silhouettes. AR 1637-38.

Also on March 11, Feldhaus’ counsel submitted a letter noting that the revised Project had support from several of his neighbors and previous owners of the Project Property. AR 1618. Feldhaus also agreed to comply with the conditions the Board imposed in the November 2021 decision. AR 1627.

On March 14, 2022, Johnson submitted a comment that Park’s photographs exaggerated the angle from which a person would look outside when passing by the downstairs window. AR 1693-94. In reality, a person would look from a lower angle and see only the back of the Project Property. AR 1694. The inconvenience Park would suffer from the revised Project is minimal. AR 1694.

On February 16, 2022, Park conditionally offered to let Planning come inside the Park Property to take pictures from the first-story windows. AR 4317. He required that he receive (1) permission to videotape Planning representatives as they take the pictures, and (2) all pictures taken that day, including those that the City did not intend to use at the appeal hearing. AR 4317. City staff rejected the offer. AR 4317.

Planning issued a staff report for the City Council appeal recommending approval of the HDP for the revised Project. AR 952. It also recommended adopting the finding that the Class 1 Exemption to CEQA applies. AR 952.

As for CEQA exemption, the staff report noted that, although the ADU, proposed deck expansion, and pool are allowed by right, both the proposed development plans and the geotechnical report considered them. AR 957. The revised Project met all the requirements for a Class 1 Exemption. AR 956. The revised Project would not enlarge the existing structure by more than 10,000 square feet, and it was in an area with access to public services and facilities that was not environmentally sensitive. AR 956-57. It was also not unusual in terms of size, location, or vicinity to historic resources. AR 957. The City had researched the Project Property and determined that it is not eligible for historical designation. AR 957.

Park’s claim of unequal treatment was unfounded. Both parties received the same information upon request. AR 957. As to the Board’s approval of a “new project”, Feldhaus’ changes to the initial Project to address the Board’s concerns did not require a new application. AR 957. In any case, the changes between the initial and revised Project did not affect the footprint, setbacks, height, or massing. AR 957.

As for the Board’s jurisdiction, PMC section 17.72.070 gave the City Council authority to refer a project back to the Board for review. AR 957.

While the Board previously found that the Project would impact Park’s protected view, the revised Project was no longer subject to this finding. AR 958. The square footage of the revised Project did not exceed the Neighborhood Compatibility Analysis square footage. AR 958. Therefore, the findings that the Board could not make as to view impact do not govern the revised Project. AR 958.

As for whether the Neighborhood Compatibility Analysis was flawed, the Board denied Feldhaus’ request to modify the neighborhood used to determine the median square footage; the revised Project complies with the Analysis. AR 958.

As for failure to consider the entire Project, the proposed ADU is ministerial, allowed by right, and beyond the scope of this discretionary review. AR 958. The proposed deck expansion and pool also are not subject to an HDP. AR 958. Yet, all three were still a part of the proposed development plans and the geotechnical report. AR 958-59.

As for view protection, the Zoning Code requires applicants to design improvements as to not block views from surrounding properties to the maximum extent feasible. AR 960. New structures should not be centered directly in the view of any room of a primary structure on a neighboring parcel. AR 960. Said views are limited to culturally significant structures, downslope views of the valley floor, prominent ridgelines, and horizon lines. AR 960. Views of the open sky, existing foliage, private yards, and existing structures on surrounding properties are not protected. AR 960.

Based on the story poles and silhouettes, the revised Project would not block the Park Property’s protected southeast or easterly views. AR 961. Although Park provided photographs to assert partial blockage from the north of the Ridgeline, he would not allow City staff inside his house to take their own pictures. AR 961. Staff therefore could not substantiate the claim of partial blockage. AR 961.

The Project Property would still look like a single-story residence from the street because the ADU is underneath the main level and deck. AR 961. The Board’s conditions also reduce the height of the garage to make this portion less visible. AR 961. No other areas of the home or surrounding areas were impacted. AR 961.

At the March 14, 2022 City Council hearing (AR 1901), City staff reiterated that the revised Project’s ADU is not part of the HDP. AR 1905. To minimize massing, the revised Project is an aggregate of three smaller additions at multiple locations. AR 1909.

City staff stated that the revised Project would minimally impact views from the Park Property. AR 1910. Any effect on first story views to the north would be reasonably limited to unprotected views like existing foliage, the private yard, the existing structure and the open sky. AR 1910. The City presented various photographs from the Park Property to that effect. AR 1925-28. The opinions of Houston and Johnson, the previous owners of the Park and Project Properties, confirm this. AR 1949-50.

The additions in the revised Project would not be centered directly in front of any views of Ridgeline. AR 1910-11. The existing residence and foliage already obscure these views. AR 1911. The revised Project does not add anything atop of the first story and instead builds on the flattest portions of the lot with minimal massing over the slope. AR 1910. This means that the revised Project would limit view impacts to the maximum extent feasible. AR 1910.

City staff noted that the revised Project has both ministerial and discretionary components. AR 1911. Approval of the 807 square-foot ADU, the deck expansion, and the infinity swimming pool and spa are all ministerial actions and do not require an HDP. AR 1911-12. The City still evaluated them as part of a comprehensive Project. AR 1912. The geotechnical report that the City reviewed to ensure general compliance also assessed these components. AR 1912.

The City asserted that the Class 1 Exemption to CEQA applies. AR 1912-13. Class 1 applies when a project would not enlarge the existing structure by more than 10,000 square feet, the area has access to public services and facilities, and the area is not environmentally sensitive. AR 1912-13. The revised Project meets all three requirements. AR 1913. When the City analyzed the revised Project for CEQA purposes, it included the ADU and other parts that are ministerial. AR 1941-42.

Nor does an exception to the Class 1 exemption apply. The revised Project is not unusual in terms of size, location, or vicinity to historic resources. AR 1913. It would not cause a substantial adverse change in the significance of a historic resource. AR 1913. It therefore does not meet the requirements for an exception to a CEQA exemption. AR 1913.

As for jurisdiction, the PMC contemplates changes to a project in response to appeal issues. AR 1918. The change to square footage between the initial and revised Project was so significant that City staff did not think it appropriate to have the City Council hear it before the Board did so again. AR 1918. But there is nothing in the Zoning Code that requires the HDP application to go all the way back to the hearing officer, so the Board took action on a different Project. AR 1918.

After the hearing, the City Council voted to approve the staff recommendations and affirm the Board’s November 2021 decision. AR 2025-26. It also required two more feet of setback for the portion of the structure closest to the Park Property and landscaping between the two properties. AR 2026.

Petitioner Park argues that the City Council’s decision should be set aside under the PMC because (1) the City abused its discretion by failing to follow its own procedures and (2) the City lacks substantial evidence that the revised Project complies with its protected view and massing requirements.[6]

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. 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 pertinent issues under section 1094.5 are (1) whether the respondent has proceeded without jurisdiction, (2) whether there was a fair trial, and (3) whether there was a prejudicial abuse of discretion. CCP §1094.5(b). An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. CCP §1094.5(c).

CCP section 1094.5 does not on its face specify which cases are subject to independent review. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. Instead, that issue was left to the courts. Where, as here, the underlying administrative case does not involve a fundamental vested right, the standard of review is substantial evidence. Young v. City of Coronado, (2017) 10 Cal.App.5th 408, 418 (property owner’s challenge to a city council’s decision to designate a residential cottage as an historical resource); CCP §1094.5(c). “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. Substantial evidence can be the opinion of a single expert (Coastal Southwest Dev. Corp. v. Coastal Zone Conservation Comm'n, (1976) 55 Cal.App.3d 525, 532), or opinions in a staff report (Griffin Dev. Co. v. City of Oxnard, (1985) 39 Cal.3d 256, 261).

The 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. The court must uphold the decision unless it concludes, based on the evidence before the administrative agency, a reasonable person could not reach the conclusion reached by the agency. Harris v. City of Costa Mesa, (1994) 25 Cal.App.4th 963, 969. Where “reasonable persons may differ,” the courts will not disturb the judgment of the administrative agency. Breakzone Billiards v. City of Torrance, (2000) 81 Cal.App.4th 1205, 1246. The court does not weigh evidence or decide who has the better argument and must resolve reasonable doubts in favor of the findings and decision. Topanga, supra, 11 Cal.3d at 514.

The court reviews questions of law de novo. D uncan v. Dept. of Personnel Admin., (2000) 77 Cal.App.4th 1166, 1174.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner seeking administrative mandamus therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137; Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691 (“[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).

“Findings. If the applicant submits new plans and materials that differ substantially, as determined by the Zoning Administrator, from the materials submitted for the original decision, the hearing shall be terminated and the applicant shall file a new application.”

Park argues that the City erred by allowing Feldhaus to avoid preliminary review of a new project.[7] Feldhaus, with the City’s assistance, substantially altered and expanded the Project. The approved revised Project is a new project requiring a new application under PMC section 17.72.070.B.2.b because it includes a new dwelling unit (and more massing in the form of a 158 square footenclosure for spa equipment). Adding an entire residential unit and expanded use, particularly on a hillside area, is significant. Major changes to a project cannot be piggybacked on an application already in the appeal stages. The revised Project should have been submitted at the entry level for plans, with proper public notice. Pet. Op. Br. at 12-13.

Park’s reliance on PMC section 17.72.070.B.2.b is unavailing. That provision states that if an applicant submits new plans and materials “that differ substantially, as determined by the Zoning Administrator,” a new application is required. No such determination was made by a Zoning Administrator. Nor could it have been because Feldhaus revised the Project to meet the Board’s objection under section 17.72.070.B.2.c.

The court agrees with the City (Opp. at 17-18) that the City Council was authorized to remand the revised Project without requiring Feldhaus to submit a new application. Section 17.72.070.B.2.c expressly states: “Changes to the original submittal to address objections of the review authority need not be the subject of a new application.” Feldhaus revised portions of the Project to address concerns expressed by the Board, which was a reviewing authority.

The City explained at the November 18, 2021 Board hearing that Feldhaus need not file a new application and that the Board may review the revised Project. AR 1819. The issue also was discussed at the March 14, 2022 City Council hearing. AR 1915-19. See also AR 957 (staff report). City staff explained that under PMC “it is right and […] actually contemplated that a project would be changed in response to appeal issues.” AR 1918. In light of the fact that the purpose of PMC section 17.72.070.B.2.c is to foster project revisions to meet the reviewing authority’s objections, Parks objection lacks merit.

Park argues that the Feldhaus changed the Project but did not address his objections. Park objected to the massing of the entire Project, and every one of his objections related to the size, weight, and the footprint of the structures, including the building envelope. Not one of these issues is addressed by recategorizing a portion of the main building. Feldhaus did not address Park’s objections but changed the Project to incorporate a new ADU and pool. Reply at 9.

The answer is that section 17.72.070.B.2.c permits changes to address objections of the reviewing authority (the Board), not the objections of Park. The Board granted Park’s appeal and rejected the HDP because the application requested 844 square feet of floor area above that permitted by the Neighborhood Compatibility Analysis. AR 261. Under PMC section 17.29.80.G.1, any additional floor area requires a finding that “no additional view impacts will occur to neighboring properties as a result of granting additional square footage”, and this was a finding the Board could not make. AR 261.

In response to the Board’s decision, Feldhaus revised the Project to come within the Neighborhood Compatibility Analysis square footage threshold. His counsel’s October 15, 2021 letter to the City Council explained that he had eliminated the square footage in excess of the Neighborhood Compatibility requirements to meet the Board’s objections. AR 515. The Project already reduced view impacts to the maximum extent feasible and thus complies with the Zoning Code. AR 515. The changes between the initial and revised Project did not affect the footprint, setbacks, height, or massing; they only affected the square footage for Neighborhood Compatibility purposes. AR 957.

Park also argues in reply that Feldhaus improperly piecemealed the Project. PMC section 17.29.030.A applies to expansion of projects. While an ADU receives ministerial review, when it is incorporated into a larger project it becomes part of that project. The Ordinance gives no discretion to simply delete an attached ADU (or other ministerial components -- e.g., attached garages, sheds, etc. -- from the consideration of total massing calculation involving the primary structure. See PMC §17.20.060.G.2 (counting “other structures towards massing”). The City cites no authority that the ADU can be subtracted from the total Project’s massing for analyzing “Excess Neighborhood Compatibility.” The Project components (pool, ADU) form a unified project for which Feldhaus improperly obtained approval. The fallacious use of the ADU to address massing concerns is an attempt to avoid starting over with an initial public hearing. Reply at 9.

Park is incorrect. Improper piecemealing is a CEQA concept, not a municipal code issue. Park points to no law or portion of the PMC that proscribes piecemealing a project. Thus, Feldhaus permissibly could apply for a discretionary HDP for the revised Project with the intent to make a subsequent by-right application for an ADU and pool.[8]

“New evidence. If new or different evidence is presented during the hearing, the applicable review authority (e.g., Board of Zoning Appeals, Design Commission, Historic Preservation Commission, or Council) may refer the matter back to the Director, Zoning Administrator, Hearing Officer, Environmental Administrator, Design Commission, or Historic Preservation Commission, as applicable, for a report on the new or different evidence before a final decision on the appeal.” (emphasis added).

Park argues that, even if the revised Project is not a new project requiring a new application, the matter was improperly re-decided by the Board based on new evidence. The City clearly thought it could revisit the Board’s decision by claiming the existence of new evidence. The March 14, 2022 City Council staff report cites PMC section 17.72.070 as the basis for authority to remand the matter to the Board, but the City cannot point out any language in that provision to support its position. AR 957. Under PMC section 17.72.070.B.3, the proper procedure when new evidence is submitted is for a hearing officer review, not a remand/review by the Board. There is no authority or fair reason for the Board to redecide its own April 2021 decision approving Park’s appeal and rejecting the Project. The hearing process was flawed, and the City’s opposition simply ignores the City’s own reasoning for the remand to the Board. Park adds that the City Council effectively failed to act on the original appealed Project when it only considered the revised Project, and the PMC requires that this failure to act should result in an affirmation of the underlying decision. PMC §17.72.070B-5. Pet. Op. Br. at 13-14; Reply at 8, 10.

City staff explained at the March 14, 2022 City Council hearing that the PMC contemplates changes to a project in response to appeal issues. AR 1918. The change in square footage between the initial and revised Project was so significant that City staff did not think it appropriate for the City Council hear it without a remand. AR 1918. But there is nothing in the Zoning Code that requires the application to go all the way back to the hearing officer, so the Board took action on a different, revised Project created in response to the Board’s initial decision. See AR 1918.

The court agrees. As Feldhaus argued in his counsel’s November 18, 2021 letter, PMC section 17.72.070.B.3 allows the City Council to remand the matter. AR 919. While the Board is not expressly listed as an eligible agency, the provision lists the appropriate agencies “as applicable.” AR 919. Clearly, the Board is in the chain of review between the hearing officer and the City Council. Hence, the Board is an applicable agency. PMC section 17.72.070.B.3 contains no prohibition on the City Council remanding to the Board, which conceivably could have, and did not, remand to the hearing officer.[9]

Park argues that neither the pool nor the ADU were referred to in the initial Project description, thereby failing to properly apprise the public of the actual Project. The lack of public notice and an initial hearing for the revised Project was an abuse of discretion under both the PMC and CEQA. California recognizes a “much more inclusive” due process standard and “protects a broader range of interests than under the federal Constitution.” Ryan v. California Interscholastic Federation-San Diego, (2001) 94 Cal.App.4^th 1048, 1069; see also Govt. Code §54950 et seq. (Brown Act requirements for open meetings); Govt. Code §11340 et seq. (Administrative Procedure Act). Pet. Op. Br. at 14. Park has fundamental rights of (1) the right to proper environmental review of nearby properties and (2) the rights and protections afforded to them as property owners in the district. Case law also requires adequate public notice when a NOE from environmental review is proposed for a new project. Los Angeles Department of Water and Power v. County of Inyo, (2021) 67 Cal.App.5^th 1018, 1033. The City acted to circumvent public review of the revised Project, which it made inseparable from the ADU. Pet. Op. Br. at 14-15; Reply at 10.

The City correctly notes that Park’s arguments regarding public notice lack citation to the administrative record. Nor was any notice required to include the pool and the ADU for the HDP, which were not part of the Project for approval of an HDP. The City’s agendas for each hearing provided notice and included links to staff reports and exhibits for the Project. AR 4-5, 9, 56-57, 250-51, 564-65, 568-69, 945-56. Opp. at 18. There were multiple opportunities for discussion at public hearings on the Project and revised Project. The notice was not defective.

Nor does Park show any prejudice from lack of adequate notice. A due process violation requires a showing of prejudice. Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141 (delay in notice and opportunity to be heard requires prejudice). Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation. People v. Belton, (1992) 6 Cal.App.4^th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay). “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”. F isher v. State Personnel Bd., (2018) 25 Cal.App.5th 1, 20. Park was represented at each hearing and argued the very issues he argues now. As a result, he cannot show prejudice.

In reply, Park contends that the fact that the pool was discussed at the hearing officer meeting does not cure the notice defect. “Notice given before a public hearing has a role in defining the opportunity provided to the public.” Los Angeles Department of Water and Power v. County of Inyo, (2021) 67 Cal.App.5^th 1018, 1033. Reply at 10. The discussion at a hearing may not cure a defective notice for members of the public who refrain from appearing, but it does for Park. From the evidence, it also appears that Park was the only person who opposed any portion of the Project or revised Project at any of the numerous hearings.

The purpose of the Ordinance is, among other things, to “[p]reserve and protect views to and from hillside areas to maintain the identity, image, and environmental quality of the City[.]” PMC §17.29.010.a.

“A proposed structure shall be designed and located so that it avoids blocking views from surrounding properties to the maximum extent feasible, as determined by the review authority,” and including, but not limited to, consideration of the following:

1. The feasibility of relocating the proposed structure to another part of the site;

2. The feasibility of modifying the massing of the proposed structure such that views from the surrounding properties would not be impacted; and

3. The feasibility of minimizing architectural features that may intrude upon views from surrounding properties….

“New structures and tall landscaping shall not be centered directly in the view of any room of a primary structure on a neighboring parcel. Views shall be considered from windows of any room in the primary structure. New structures shall avoid blocking the following from any room of a main dwelling on a neighboring property:

1. Culturally significant structures such as the Rose Bowl, Colorado Street Bridge, City Hall, etc;…3. Prominent ridgelines….Views of open sky, existing foliage, private yards, and existing structures on surrounding properties shall not be taken into consideration by the reviewing authority.” PMC §17.29.060.G (emphasis added).

Park notes that the City must have substantial evidence to support the finding of view protection. Topanga, supra, 11 Cal.3d at 511. Park argues that the City failed to provide any evidence supporting its finding that the revised Project does not block protected views. The Planning staff report before the first Board hearing concluded, with no meaningful analysis, that since the Project would “maintain the general height of the existing residence, … the existing view conditions [of Park’s property] would not be impacted.” AR 17. The City conducted no analysis of sight angles from the interior of Park’s home, no discussion of the first-story windows, and the only pictures that City staff took from Park’s property were outside of the home. Lack of meaningful view analysis renders the City’s conclusions unsupported. Pet. Op. Br. at 8-9.

Park argues that pictures show that the expansion of square footage for the Project will directly block views from Park’s rooms to the Ridgeline. AR 1028-32, 373-77 (photos), 563 (email). The October 18, 2021 staff report acknowledged the Ridgeline view obstruction. AR 270 (“Although it appears that a portion of the ridgeline would be blocked from a first-story window by the new roof-design of the single story additions and remodel, the proposed structure is designed to avoid blocking views from surrounding properties to the maximum extent feasible.”). Park argues that this understates the truth since there are several first-floor windows and rooms affected by the view obstruction.[10] Pet. Op. Br. at 8.

Park contends that the Board recognized the unlawful view obstruction at its April 2021 hearing. However, it inexplicably reversed this finding at the October 2021 hearing for no apparent reason. Park provided clear evidence showing a blockage of his own protected view and the finding that the revised Project avoids blocking protected views has no support. Pet. Op. Br. at 9.

There are several reasons why Park’s argument fails. Procedurally, the City correctly points out that Park fails to fairly and completely present the view evidence. Opp. at 11. When a petitioner challenges an administrative decision as unsupported by substantial evidence in light of the record as a whole, the petitioner has the 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 "[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, he is required to set forth in his brief all the material evidence on the point and note merely his own evidence. Unless this is done, the error is deemed to be waived. Id. (quoting Foreman & Clark Corp. v. Fallon, (1971) 3 Cal.3d 875, 881). Park has done nothing more than cite his own evidence, some of which (AR 563) does not support him at all. His contention fails for this reason.

On the merits, Park’s argument ignores the “maximum extent feasible” language of PMC section 17.29.060.G and assumes that no view impact on protected views is permissible. That is not correct. PMC section 17.29.060.G expressly provides that “[a] proposed structure shall be designed and located so that it avoids blocking views from surrounding properties to the maximum extent feasible, as determined by the review authority.” City staff explained in its March 14, 2022 staff report that the Zoning Code requires applicants to design improvements as to not block views from surrounding properties to the maximum extent feasible. AR 960. New structures should not be centered directly in the view of any room of a primary structure on a neighboring parcel. AR 960. Said views are limited to culturally significant structures, downslope views of the valley floor, prominent ridgelines, and horizon lines. AR 960. Views of the open sky, existing foliage, private yards, and existing structures on surrounding properties are not protected. AR 960.

In reply, Park argues that this is not the proper interpretation of the Ordinance, which requires a finding that the revised Project will not block his Ridgeline views at all. PMC section 17.29.060.G provides a general prohibition against centering landscaping and structures directly in the view of any room in primary structures (e.g., accessory dwellings, guesthouses). It then states that new structures must unequivocally avoid blocking prominent ridgeline views from rooms in their neighbor’s main dwelling. The living room is in Park’s main dwelling and the new roof of the revised Project will block Ridgeline views from that room. Reply at 4.

PMC section 17.29.060.G’s prohibition of view obstruction to “the maximum extent feasible” occurs in reference to the feasibility of relocating structures. This “maximum extent feasible” language appears before the more specific language that prohibits obstruction of particular views (including prominent ridgelines) from neighboring properties and refers only to general views from “surrounding properties”, which are defined to include abutting properties as well as those across the street. See United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., (2018)0 4 Cal.5^th 1082, 1090 (statutes should be interpreted so they have a whole and coherent meaning). The view protection in the subsequent portion of PMC section 17.29.060.G that applies to prohibiting obstruction of specific views expressly applies to “neighboring parcels,” which includes Park’s property. Reply at 4-5.

Park’s interpretation of PMC section 17.29.060.G suffers from several defects. First, it is made for the first time in reply. Park knew that the City interprets PMC section 17.29.060.G to only preclude view blockage from surrounding properties to the maximum extent feasible and based on whether they are centered directly in the view of any room of a primary structure on a neighboring parcel. AR 960. Yet, he failed to discuss this interpretation in his moving papers. New evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.

Second, Park is incorrect. Nothing in PMC section 17.29.060.G prevents the “maximum extent feasible” language from applying to the entire provision. Park’s suggestion that it only applies to the feasibility of relocating proposed structures while having nothing to do with view blockage makes little sense. Why move structures to avoid blocking views to the maximum extent feasible if another portion of the provision is an outright ban on any view blockage? This conclusion is underscored by the fact that both portions of PMC section 17.29.060.G use the language of “avoid blocking” as opposed to an express ban. Park’s distinction that the “maximum extent feasible” language applies to surrounding properties while the avoid blocking views of prominent ridgeline language refers only to neighboring properties also is unavailing. The definition of “surrounding properties” in PMC section 17.29.060.G includes neighboring properties.

Park’s interpretation of PMC section 17.29.060.G further ignores PMC section 17.29.080.G, which states that “the review authority may approve additional floor area above the maximum permitted by the Neighborhood Compatibility” if findings can be made, including that no additional view impacts will occur to neighboring properties as a result of granting additional square footage. There would be no need for this more restrictive ban of view impacts for projects with square footage above the maximum permitted by Neighborhood Compatibility if PMC section 17.29.060.G already did so for all projects. Statutes are not construed in isolation and every statute must be read and harmonized with the statutory scheme. People v. Ledesma, (1997) 16 Cal.4^th 90, 95.

If arguendo there were any doubt, the City’s interpretation of its own Ordinance is entitled to deference. An agency's view of the meaning and scope of its own ordinance or regulation is entitled to great weight unless it is clearly erroneous or unauthorized. Friends of Davis v. City of Davis, (2000) 83 Cal.App.4th 1004, 1015; Anderson First Coalition v. City of Anderson, (“Anderson”) (2005) 130 Cal.App.4th 1173.

Given the appropriate interpretation of PMC section 17.29.060.G, there is more than substantial evidence that Park’s view of the Ridgeline will not be obstructed. At the March 14 2022 City Council hearing, staff stated that the revised Project would minimally impact views from the Park Property. AR 1910. Any effect on first story views to the north would be reasonably limited to unprotected views like existing foliage, the private yard, the existing structure and the open sky. AR 1910. The City presented various photographs from the Park Property to that effect. AR 1925-28.

The opinions of Houston and Johnson, the previous owners of the Park and Project Properties, confirm this conclusion. AR 1949-50. Houston, who lived in the Park Property home for 48 years, stated that the only view of the Ridgeline from the Park Property is upstairs in two bedrooms and the bathroom in between. AR 1691-92. Johnson, who sold the Project Property to Feldhaus, commented that Park’s photographs exaggerate the angle from which a person would look outside when passing by the downstairs window. AR 1693-94. In reality, a person would look from a lower angle and see only the back of the Project Property. AR 1694. Johnson concluded that the inconvenience Park would suffer from the revised Project is minimal. AR 1694.

City staff opined that the additions in the revised Project would not be centered directly in front of any window’s view of Ridgeline. AR 1910-11. The existing residence and foliage already obscure these views. AR 1911. The revised Project does not add anything atop of the first story and instead builds on the flattest portions of the lot with minimal massing over the slope. AR 1910. This means that the revised Project limits view impacts to the maximum extent feasible. AR 1910. Although Park provided photographs to assert partial blockage from the north of the Ridgeline, he would not allow City staff inside his house to take their own pictures. AR 961. Staff therefore could not substantiate the claim of partial blockage. AR 961. The City also recognized that Feldhaus designed the revised Project in a manner that would “minimize (to the maximum extent feasible) views protected by the Zoning Code.” AR 961, 1910-12.

Park attacks this evidence as speculation and the conjecture of persons who have never seen the story poles while his pictures and video – the latter of which is not presented -- from inside his home reflect obstruction of views of the Ridgeline. Reply at 2. The City’s opposition even acknowledges the City’s own finding of view obstruction in the record. AR 270 (“Although it appears that a portion of the Ridgeline would be blocked from a first-story window by the new roof-design….”). Reply at 2-3.

This evidence is not speculation. As the City’s opposition states, Park’s suggestion that the City was required to take photographs from specific angles in his home is unsupported by the Zoning Code (PMC §17.29.060), let alone by the fact that Park denied City staff access to the interior of his home. AR 961. Opp. at 13. Nor is there any requirement that Johnson and Houston see the story poles when they are intimately familiar with the view from Park’s home. The City’s finding of an apparent blockage of a portion of Park’s view is unconfirmed by Park’s failure to permit entry and, even if true, is insufficient to constitute a violation of PMC section 17.29.060.G.

This evidence from City staff, Johnson, and Houston, coupled with Park’s failure to permit access to substantiate his photographs, constitutes more than substantial evidence that Park’s view of the Ridgeline would not be impeded by the revised Project.

Park refers to PMC section 17.29.080.G, which requires hillside projects exceeding a certain square footage (Excess Neighborhood Compatibility) to meet an additional requirement that “[n]o additional view impacts will occur to neighboring properties as a result of granting additional square footage.” Park argues that the City cursorily concluded, without evidence, that the revised Project does not violate this requirement. The Board’s April 2021 decision recognized the view impacts, but its subsequent decision inexplicably disregards its own finding. Nonetheless, additional view impacts do result from the revised Project’s additional scale -- i.e. the near doubling in size and additional story to the building. Neither version of the Project complies with Neighborhood Compatibility requirements because of Ridgeline view obstruction. Pet. Op. Br. at 9.

PMC section 17.29.080.G’s absolute ban on view impact has no application. Feldhaus revised the Project to bring the square footage within Neighborhood Compatibility requirements. AR 515. The City agreed. AR 958. While the Board previously found that the Project would impact Park’s protected view such that a finding under PMC section 17.29.080.G could not be made, the revised Project is within permissible Neighborhood Compatibility square footage and no longer subject to PMC section 17.29.080.G’s ban on view impact. AR 958.

Park’s argument further ignores the findings that the revised Project was specifically designed to reduce massing. The October 2021 staff report asserted that the revised Project’s scale and massing were compatible with the scale and setting of the surrounding neighborhood. AR 267. From the street, it would still appear as a single-story residence. AR 267. The ADU would occupy captured space below the primary residence’s main level, which would otherwise remain empty. AR 268. The placement of the upper floor and lower floor additions would maintain any protected view corridors from adjacent properties. AR 268.

The March 14, 2021 staff report noted that the Project Property would still look like a single-story residence from the street because the ADU is underneath the main level and deck. AR 961. The Board’s conditions also reduce the height of the garage to make this portion less visible. AR 961. No other areas of the home or surrounding areas were impacted. AR 961. The revised Project does not violate any massing requirements of the Ordinance.

Petitioner Park argues that the revised Project is subject to the unusual circumstances exception to the CEQA Class 1 exemption.

A party may seek to set aside an agency decision for failure to comply with CEQA by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085. A petition for administrative mandamus is appropriate when the party seeks review of a “determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with [CEQA].” §21168. This is generally referred to as an “adjudicatory” or “quasi-judicial” decision. Western States Petroleum Assn. v. Superior Court, (“Western States”) (1995) 9 Cal.4^th 559, 566-67. A petition for traditional mandamus is appropriate in all other actions “to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with [CEQA].” Where an agency is exercising a quasi-legislative function, it is properly viewed as a petition for traditional mandamus. Id. at 567; §21168.5.

The distinction between the two is rarely significant. In both cases, the issue is whether the agency abused its discretion. California Farm Bureau Federation v. California Wildlife Conservation Bd., (“Farm Bureau”) (2006) 143 Cal.App.4^th 173, 185, n. 6 (citations omitted). Public entities abuse their discretion if their actions or decisions do not substantially comply with the requirements of CEQA. Sierra Club v. West Side Irrigation District, (2005) 128 Cal.App.4^th 690, 698. An abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. Western States, supra, 9 Cal.4^th at 568; §21168.5.

Whether the agency abused its discretion must be answered with reference to the administrative record. This standard requires deference to the agency’s factual and environmental conclusions based on conflicting evidence, but not to issues of law. Laurel Heights Improvement Association v. Regents of the University of California, (“Laurel Heights”) (1988) 47 Cal.3d 376, 409. Argument, speculation, and unsubstantiated opinion or narrative will not suffice. Guidelines, 15384(a), (b).

The purpose of CEQA (Public Resources Code[11] §21000 et seq.) is to maintain a quality environment for the people of California both now and in the future. §21000(a). “[T]he overriding purpose of CEQA is to ensure that agencies regulating activities that may affect the quality of the environment give primary consideration to preventing environmental damage.” Save Our Peninsula Committee v. Monterrey County Board of Supervisors, (2001) 87 Cal.App.4^th 99, 117. CEQA must be interpreted “so as to afford the fullest, broadest protection to the environment within reasonable scope of the statutory language.” Friends of Mammoth v. Board of Supervisors, (1972) 8 Cal.3d 247, 259.

CEQA expressly applies to discretionary projects by public agencies. §21080(a). Environmental analysis must be performed before an agency approves a project Laurel Heights, supra, 47 Cal.3d at 394), and an agency may not commit itself to a project without performing such review (National Resources Defense Council v. City of Los Angeles, (2002) 103 Cal.App.4^th 268, 271-72).

The term “project” may include several discretionary approvals by government agencies; it does not mean each separate government approval. Guidelines §15378(c). The project is the whole of the action, not simply its constituent parts, which has the potential for resulting in either direct or reasonably foreseeable indirect physical change in the environment. Guidelines §15378. When a project involves an approval that contains elements of both a ministerial action and a discretionary action, the project will be deemed to be discretionary and will be subject to the requirements of CEQA. Guidelines §15268(d).

The Guidelines list 33 classes^{^[12]} of projects that generally do not have a significant effect on the environment and may be exempted from CEQA. §21084; Guidelines §15300; Asuza Land Recl. Co. v. Main San Gabriel Basin Watermaster, (1997) 52 Cal.App.4^th 1165. Classes of projects designated in the Guidelines pursuant to section 21084 are expressly exempted from CEQA. §21080(b)(9). These categorical exemptions are those classes of projects that the Secretary of the California Resources Agency “has found…do not have a significant effect on the environment” and in the Guidelines “has listed those classes and ‘declared [them] to be categorically exempt from the requirement for the preparation of environmental documents.’” Berkeley Hillside Preservation v. City of Berkeley, (“Berkeley Hillside”) (2015) 60 Cal.4^th 1086,1092,1102.

The exemptions are narrowly construed. Santa Monica Chamber of Commerce v. City of Santa Monica, (2002) 101 Cal.App.4^th 786, 793. “‘Exemption categories are not to be expanded beyond the reasonable scope of their statutory language.’ [Citation.]” Save the Plastic Bag Coalition v. County of Marin, (“Save the Plastic Bag”) (2013) 218 Cal.App.4^th 209, 226. “In order to support a categorical exemption under CEQA, a public agency must be able to marshal substantial evidence to support the conclusion that the project fell within the exemption.” Id. at 228.

No CEQA review is required if a categorical exemption is determined to apply to a proposed project or activity. §§ 21080(b)(9), 21084(a); Muzzy Ranch Co. v. Solano Cty. Airport Land Use Comm., (“Muzzy Ranch”) (2007) 41 Cal.4^th 372, 380. CEQA does not require any particular procedure for agency approval of a project that it finds to be exempt from CEQA review. See Apartment Assn. of Greater Los Angeles v. City of Los Angeles, (2001) 90 Cal.App.4^th 1162. If the agency properly finds the project is exempt from CEQA, no further environmental review is necessary. The agency may prepare and file a NOE, citing the relevant section of the Guidelines and including a brief statement of reasons to support the finding. Davidson Homes v. City of San Jose, (1997) 54 Cal.App.4^th 106, 113; Guidelines §§ 15061(d), 15062(a)(3).

The Class 1 Exemption for “existing facilities” is found in Guidelines section 15031. The existing facility exemption applies when there are only minor alterations made to an existing structure that involve “negligible” or “no expansion” of the previous use. Guidelines §15301. The Class 1 Exemption lists examples of “minor alterations” that qualify for the Class 1 Exemption as additions to existing structures, provided that the addition will not result in an increase of more than (1) 50% of the floor area of the structures before the addition, or 2,500 square feet, whichever is less, or (2) 10,000 square feet if the project is in an area (a) where all public services and facilities are available to allow for maximum development permissible in the General Plan and (b) that is not environmentally sensitive. Id.

Where a categorical exemption is at issue, the agency has the burden of demonstrating that substantial evidence supports its categorical exemption determination. California Unions for Reliable Energy v. Mojave Desert Air Quality Management Dist., (2009) 178 Cal.App.4^th 1225, 1245. The court “must first determine as a matter of law the scope of the exemption and then determine if substantial evidence supports the agency’s factual finding that the project fell within the exemption.” California Farm Bureau Federation v. California Wildlife Conservation Bd., (2006) 143 Cal.App.4^th 173, 185 (citations omitted). The court reviews the agency’s factual determination that a project comes within the scope of a categorical exemption under the substantial evidence standard. Holden v. City of San Diego, (2019) 43 Cal.App.5^th 404, 410. The agency has the burden of demonstrating that substantial evidence supports its factual finding that the project is exempt. California Unions for Reliable Energy v. Mojave Desert Air Quality Management District, (2009) 178 Cal.App.4^th 1225, 1239.

The City determined that the revised Project is exempt from CEQA under the Class 1 Exemption for existing facilities. The City found that the revised Project meets the Class 1 Exemption requirements of an addition to existing structures that does not exceed 10,000 square feet, the revised Project is in an area where public services and facilities are available, and the revised Project area is not environmentally sensitive. AR 956-57, 2024-25.

Park disputes the finding of a Class 1 Exemption by arguing that the City improperly piecemealed the revised Project.

The “project” is the whole of the action, not simply its constituent parts, which has the potential for resulting in either direct or reasonably foreseeable indirect physical change in the environment. Guidelines §15378. CEQA forbids piecemealing review of the significant environmental effects of a project. Paulek v. Department of Water Resources, (2014) 231 Cal.App.4^th 35, 45. Agencies cannot allow environmental considerations to be submerged by chopping a large project into smaller parts. Banning Ranch Conservancy v. City of Newport Beach, (“Banning Ranch”) (2012) 211 Cal.App.4th 1209, 1223. When multiple project components are contemplated, the agency must analyze them together in the project’s environmental review. Id.

The piecemealing test was set forth by the California Supreme Court in Laurel Heights: (1) An EIR must include an analysis of the environmental effects of future expansion if (1) it is a reasonably foreseeable consequence of the initial project and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project and its environmental effects. 47 Cal.3d at 396. The determination of whether an EIR improperly piecemeals a project is an issue of law. Banning Ranch, supra, 211 Cal.App.4^th at 1224.

Applying the Laurel Heights test, the courts have found improper piecemealing when the purpose of the reviewed project is intended as the first step toward future development. See Bozung v. Local Agency Formation of Ventura County, (1975) 13 Cal.3d 263, 269-70 (city annexed land so it could rezone it for development). There may be improper piecemealing when the reviewed project legally compels or practically presumes completion of another action. Nelson v. County of Kern, (2010) 190 Cal.App.4th 252, 272 (EIR for reclamation plan should have included mining operations that necessitated it). On the other hand, two projects may properly undergo separate environmental review where they have different proponents, serve different purposes, or can be implemented independently. Banning Ranch, supra, 211 Cal.App.4^th at 1223; Communities for a Better Environment v. City of Richmond, (2010) 184 Cal.App.4^th 70, 90 (refinery upgrade and construction of pipeline to export excess hydrogen were independent projects with different proponents).

Park notes that “[w]here a project involves an approval that contains elements of both a ministerial action and a discretionary action, the project will be deemed to be discretionary and will be subject to the requirements of CEQA.” Guidelines §15268(d). He argues that, while a pool and ADU are ministerial, their incorporation into the revised Project requires environmental consideration of the entire Project. According to Park, the City knowingly omitted the ADU and other components from the description for the hearing that was noticed to the public, and therefore did not proceed by in accordance with CEQA. Furthermore, the City did not consider any aspects of the ADU, pool, or any other ministerial components in determining whether circumstances militated against the application of the Class 1 Exemption. AR 1769. Thus, the categorical exemption was improperly applied. Pet. Op. Br. at 11-12.

Park’s argument fails to analyze the law concerning piecemealing. Feldhaus clearly intends -- and fully disclosed his intention -- to build a pool and ADU. See, e.g., AR 210. As City staff noted at the Board’s April 2021 hearing, ADUs are ministerial and not subject to CEQA. AR 1730. So are pools. Feldhaus’ revised Project excluded certain square footage from the Project in favor of building an ADU, and the Board’s remand decision expressly noted that Feldhaus intends to add a swimming pool and an 800 square foot ADU, neither of which requires an HDP. AR 995.

Although Feldhaus intends to add an ADU and pool after the revised Project, that does not make these ministerial actions part of the Project as a whole. The revised Project and ADU/pool project serve different purposes and can be implemented independently. Feldhaus is able to build the revised Project without the pool or ADU, and vice versa. See Banning, supra, 211 Cal.App.4^th at 1223; Communities for a Better Environment v. City of Richmond, supra, 184 Cal.App.4^th at 90. Consequently, there was no piecemealing in violation of CEQA.

Guidelines section 15268(d) is not to the contrary. That provision simply states that where a project contains both ministerial and discretionary components, it will be considered discretionary and subject to CEQA. Guidelines section 15268(d) assumes a single project and does not govern the piecemealing issue of separate projects. Compare Day v. City of Glendale, (1975) 51 Cal.App.3d 817, 823-24 (hybrid ministerial discretionary projects are subject to CEQA review).

Additionally, the City did consider the pool, deck, and ADU in its CEQA analysis. They all were included in Feldhaus’ plans and geotechnical report required by PMC section 17.29.080.C and reviewed by the City. AR 955-57, 1581-82. At the City Council hearing, City staff noted that approval of the 807 square-foot ADU, the deck expansion, and the infinity swimming pool and spa are all ministerial actions that do not require an HDP. AR 1911-12. Yet, the City still evaluated them as part of a comprehensive Project. AR 1912.[13]

Park notes that Feldhaus intends to build an infinity pool with an unknown amount of sitting water and a constant running portion running downslope onto another part of the pool on the hillside. The City never reviewed the environmental effect of the pool on the hillside because it never analyzed the weight of the pool. The City should have used the pool size and characteristics to prepare acceptable geotechnical and hydrology reports as required by PMC section 17.29.080.C.3, .4. Does the pool require mitigation for reinforcement? Can the hillside withstand that weight? Can the cascading water cause landslides? The lack of information on the pool prevented proper environmental review and the City abused its discretion by finding a CEQA exemption under these circumstances. Pet. Op. Br. at 12.

The City relies on Feldhaus’ geotechnical report showing that the Project would be structurally sound. AR 317. In addition, “the City’s plan check process will ensure that the proposed [pool] project will meet all of the applicable building and safety and fire requirements.” Opp. at 17.

Park replies that Feldhaus had five public hearings at which he could have identified the size of the infinity pool and the amount of water that it would hold. No geologist can just guess the size of the pool and render a competent analysis. Feldhaus’ geology/hydrology analysis mentions no size of the pool. The City wrongly advocates illegally deferring consideration of the pool’s weight. In other words, “worry about it later.” See Madera Oversight Coalition, Inc. v. County of Madera, (2011) 199 Cal.App.4^th 48 (mitigation may not be unlawfully deferred); Guidelines §15126.4(a)(1)(B). The question of the cumulative weight on the hillside must be considered during environmental evaluation, not later. Reply at 8.

Park’s argument is unsupported both because the pool is not part of the revised Project and because the Class 1 categorical exemption does not require any further environmental review, including mitigation.

Once an agency finds a project categorically exempt from CEQA, the burden shifts to petitioner to demonstrate that an exception to the exemption applies. 14 CCR § 15300.2; Berkeley Hills Watershed Coalition v. City of Berkeley, (2019) 31 Cal.App.5th 880, 887.

An agency may not find the activity categorically exempt if there is a reasonable possibility the project will have a significant effect on the environment due to “unusual circumstances.” Guidelines §15300.2(c). There are two separate ways for a petitioner to show unusual circumstances. Berkley Hillside, supra, 60 Cal.4th at 1105. First, the petitioner “may identify ‘evidence that the project will have a significant effect’ on the environment, which necessarily means that the project presents unusual circumstances. Id. at 1105-06. Second, the petitioner may use a two-step approach. Id. at 1114-15. At the first step, a petitioner must show the project is unusual because it “has some feature that distinguishes it from others in the exempt class, such as its size or location.” Id. at 1105. The court then makes a factual inquiry under the deferential substantial evidence standard whether the public agency’s determination that no unusual circumstances exist is supported. Id. at 1114. Only if unusual circumstances exist do the agency and court “apply the fair argument standard in determining whether ‘there is a reasonable possibility of a significant effect on the environment due to unusual circumstances.’” Id. at 1115. “The fair argument standard is a ‘low threshold’ test for requiring the preparation of an EIR. It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency's determination. Review is de novo, with a preference for resolving doubts in favor of environmental review.” Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4^th 903, 928.

The City correctly notes that Park does not attempt to show that the Project will have a significant effect and instead relies on the two-step approach. Opp. at 15.

Park argues that there are unusual circumstances at play: (a) the Project Property is located directly adjacent to a large liquefaction zone, including a historic watershed (AR 327); (b) the property to the north of the Project Property (1840 Linda Vista) is itself directly within a liquefaction zone (Ibid.); (c) the revised Project would double the footprint of the existing structures, a massive expansion from structures that have not been substantially altered since 1965 (AR 121); (d) the effect on the hillside, without examining soil movement in the past 58 years must be reviewed in light of the load created by the new structures including the pool (Ibid.); (e) portions of the property contain a steep slope (over 50%), and the average slope for the remaining portions of the parcel is 29% (AR 11); (f) the Project Property is in a high fire severity zone (AR 327); (g) the Project Property is next to other properties at the top of the hillside which all sit next to the largest liquefaction zone in the City (AR 11); (h) the Project Property sits within a landslide zone (AR 863); (i) the adjacent golf course with the watershed could be damaged in the event the soil on the subject property shifts due to earthquakes, landslides, or other soil movement and this could affect the watershed, a natural resource; and (j) the proposed swimming pool appears to put major strain on the further edge of the Project, which is closest to the steepest portions of the slope and no one knows its weight (AR 153, 3547, 3548). Pet. Op. Br. at 10-11.[14]

Further, the revised Project is a massive change in the structural footprint on the Project Property. The structures will increase from a 2,425 square foothome, a 366 square foot garage, and a carport to a 4,660 square footresidence (including a new dwelling unit), a 754 square foot garage, a large infinity pool, and a 158 square foot spa equipment area. Big massing changes in a steep hillside in a landslide-prone, fire sensitive area, including a new dwelling and a large, cascading infinity pool are fairly unusual circumstances. The sensitive location of Property under the circumstances of a massive home expansion on a slope next to properties with geological conditions shows the requisite “reasonable possibility” of a potential substantial environmental effect. Pet. Op. Br. at 11.

These are not unusual circumstances. The revised Project consists of improvements to a single-family residence in a developed area of the City. City staff determined, and the City Council concurred, that the revised Project is not unusual in terms of size, location, or vicinity to historic resources. AR 1913. It would not cause a substantial adverse change in the significance of a historic resource. AR 1913. It therefore does not meet the requirements for an exception to a CEQA exemption. AR 1913.

In making this determination, the City was entitled to, and did, consider the neighborhood surrounding the Project. Berkeley Hillside, supra, 60 Cal.4th at 1118-19. The hearing officer determined, in findings that were part of the City Council’s consideration (AR 1541-42), that the Park’s arguments concerning the steepness of the lot, its proximity to the liquefaction zone, wildfire zone, and historic watershed “apply to many of the properties on the East side of Linda Vista Avenue, including both the subject property (1820 Linda Vista Avenue) and [Park’s] property (1812 Linda Vista Avenue).” AR 1541. Thus, none of Park’s cited eight “unusual circumstances” is “unusual, unique, or specific to the subject property at 1820 Linda Vista Avenue. Most, if not all of these ‘unusual circumstances’ apply, as well, to [Park’s] existing home….” AR 1542. Similarly, the Board found that the Project has “no features that distinguish this project from others in the exempt class; therefore, there are no unusual circumstances”. AR 316.[15]

The City correctly notes that additional facts support this conclusion. There are 30 homes within 500 feet of the Project Property, and 12 within the same RS-4 Zone. AR 31. Feldhaus’ revised Project is a 3,816 square foot two-story residence, with an attached 754 square foot garage and a 150 square foot storage area. AR 969. Park’s home next door is 5,055 square feet. AR 31. Most homes within 500 feet of the revised Project are at least 2,500 to 3,000 square feet. AR 31. Over the course of decades, several homes have been built or expanded on the same eastern side of Linda Vista Avenue. AR 118. Thus, the Project and location present no unusual circumstance. As the City notes, “the general principle remains – the construction of one single-family residence, or the ensuing modifications commonly undertaken, are not covered by CEQA.” Martin v. City and County of San Francisco, (2005) 135 Cal.App.4th 392, 403. Opp. at 15-16.

Park replies that he presented numerous project-specific circumstances (size and location) that are atypical for home expansions. Without mitigation measures, these issues could easily cause a landslide or other environmental impact. Thus, he made a fair argument that unusual circumstances preclude application of the CEQA exemption. The City illogically counters that because other projects have been approved on the same hillside, that is de facto proof that there are no unusual circumstances in this case. The City’s previous failures to properly evaluate other projects do not excuse it from properly evaluating the revised Project. Without even considering differences in the other homes, the fact that those projects avoided environmental scrutiny is irrelevant to the court’s analysis of this project. Reply at 5.

Park ignores the fact that the existence of a categorical exemption means that no environmental analysis is required under CEQA. §§ 21080(b)(9), 21084(a); Muzzy Ranch, supra, 41 Cal.4^th at 380. This is because the Secretary of the California Resources Agency has found that such exempt projects “do not have a significant effect on the environment”. Berkeley Hillside, supra, 60 Cal.4^th at 1102. Park bears the burden of showing that the revised Project is unusual because it “has some feature that distinguishes it from others in the exempt class, such as its size or location” and the City need only have substantial evidence that no unusual circumstances exist. Id. at 1105, 1114. The existence of other neighboring homes with the same circumstances as the Project Property – including Park’s home – is not a failure by the City to properly evaluate the environmental consequences of such projects. As with the revised Project, these projects are categorically exempt, and no environmental review was required unless they were unusual. The fact that such other homes exist surrounding the revised project is dispositive of whether the circumstances are unusual. The unusual circumstances exception does not apply.

The Petition is denied. Real Party Feldhaus’ counsel is ordered to prepare a proposed judgment, serve it on other counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for September 28, 2023 at 9:30 a.m.

[1] The court has not read or considered any of the footnotes in Park’s papers, which are not in 12-point type as required by CRC 2.104.

[2] Park requests judicial notice of (1) Ordinance 7310, PMC Chapter 17.29 (RJN Ex. A); and (2) PMC Chapter 17.72 (RJN Ex. B). The requests are granted. Evid. Code §452(b).

[3] The parties cite to AR 89-90, 774, 1691-94, 1775-76, 1862-63, 3547-48, and 4098 but did not include them in the Joint Appendix. The court has reviewed these pages.

[4] The submitted plans also included the pool and spa. AR 32.

[5] Park also cited a video at AR 564 for this point. Pet. Op. Br. at 8. AR 564 is a notice of a public hearing set for November 18, 2021.

[6] For convenience, the court will refer to the joint opposition of the City and Feldhaus as the City’s opposition.

[7] Park incorrectly cites CEQA case law when arguing violations of the PMC. Pet. Op. Br. at 12-13.

[8] Moreover, Feldhaus did not improperly piecemeal under CEQA. See post.

[9] Nor is there any defect in the Board considering both the initial Project and the revised Project after remand. As Park argues, the revisions were new evidence sufficient to require a remand. There is no violation of the PMC for the Board to conduct the initial review of those revisions.

[10] Park’s citation (AR 564) is to a notice, not a video, and does not support his position.

[11] All further statutory references are to the Public Resources Code unless otherwise stated.

^{^[12]}A project that is not exempt by statute or under the 33 categories in the Guidelines may be found to be exempt under the “common sense” exemption that a project is not subject to CEQA where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. Guidelines §15061(b)(3).

[13] In reply, Park reiterates lack of notice. The Project was presented to the public it a way that omitted aspects that Feldhaus intended to be included. The omission of aspects of the project from initial review is piecemealing. Before the first public hearing, City Planner Katherine Moran advised Feldhaus to separate the ADU out from the HDP so that it would not be part of the review process. AR 214. Feldhaus complied and omitted the ADU and pool from the Project description. The public did not receive notice, and the City later admitted that it intended to ignore part of the ADU and the pool in CEQA analysis. AR 1768-69. Reply at 6-7.

Since the ADU and pool are separate projects for which Feldhaus will have to comply with all plan check requirements, it follows that no notice was required to be given to the public. Additionally, the court’s ruling ante concerning lack of prejudice applies equally to this CEQA notice argument.

[14] With the exception of the reference to the swimming pool, Park repeats the same eight circumstances he listed for his appeal to the Board. AR 316.

[15] The Board added that supporting technical reports confirmed that “the grading and proposed structure will be safe against hazard from landslide, settlement, or slippage and the proposed construction will have no adverse effect on the geologic stability of the adjacent properties provided recommendations are followed.” AR 317.