Judge Mary H. Strobel, Case 21STCP00897 2022-09-01 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Petitioner Coyotl + Macehualli (“Petitioner”) petitions for a writ of mandate directing Respondent City of South Pasadena (“City”) to set aside its approval of a Hillside Development Permit for a roadway extension extending westward approximately 600 feet from the terminus of the existing Moffat Street in the City of South Pasadena connecting to Lowell Avenue in the City of Los Angeles, and Tree Removal Permit for the removal of five trees for the roadway extension. Petitioner also seeks a writ directing City to “complete the CEQA environmental review” for the project. City and Real Party in Interest HDP Moffat Street, LLC (“Real Party”) (collectively “Respondents”) jointly oppose the petition.

As described in the Notice of Exemption dated April 22, 2021, the “Project Location” is a “Private street extending westward from the northern end of Lowell Avenue, Assessor’s Parcel Numbers 5310-006-039, 5310-006-038, 5310-005-010, 5310-005-011, and 5310-005-004.” (AR 1.) City described the Project as “the design and construction of the extension of Moffat Street which will be a private street extending approximately 580 feet westward from the northern end of Lowell Avenue to allow access to seven single-family landlocked lots in the City of Los Angeles and the removal of five trees.” (AR 1.)

The site of the street extension was for decades part of the Moffatt Street public right-of-way. (AR 909.) In 1961, the City formally vacated this segment of the right-of-way and, to preserve access, granted an easement over it to the owner of the adjacent seven lots in Los Angeles. (AR 908, 940 [Ordinance No. 1373], 942-48 [easement].) The easement continues to provide the only legal access to the lots, and both the easement and lots are currently owned by Real Party in Interest.

The street extension will serve a small subdivision “in which only one single-family unit is proposed for each legal parcel.” (AR 59.) A detailed rendering of the future subdivision can be found at AR 001716. The rendering indicates that the street will serve seven separate parcels for which the project applicant proposes to construct seven single-family homes in Los Angeles. (AR 1716.)

In 2018, Real Party applied to the City for permits to grade and pave the easement to provide a “shared private driveway” accessing the homes it seeks to develop on the adjoining seven lots in Los Angeles. (AR 1393, 1418.) Because the average slope of the street extension site is greater than 20%, Real Party was required by the City’s Hillside Protection Ordinance to apply for a hillside development permit. (AR 909, 912.) Real Party also requested a permit to remove five trees associated with the street extension. (AR 58, 372.)

In its initial application, Real Party had requested—in addition to the hillside development and tree removal permits—a variance to construct an 18-foot high retaining wall exceeding the dimensions permitted under the site’s zoning. (AR 908, 1412.) City staff determined that such a variance, along with the amount of grading and soil transport Real Party was proposing, would require an initial study under CEQA. (AR 7461.) In response, Real Party substantially revised its application, reducing the height of the retaining wall by more than two-thirds (AR 3) and reducing the amount of soil transport. (AR 1433.) In late 2019, City staff determined that, with these revisions, the Project would be categorically exempt from CEQA. (AR 7174.)

City staff coordinated with Los Angeles planning staff regarding the proposed development of the street extension and seven homes. (AR 667, 229, 269.) Real Party and City faced a “chicken and egg issue.” (AR 5820.) Los Angeles asserted that it could not lawfully issue building permits for the seven homes unless the City had approved the street extension— the only existing legal access to the seven parcels. (AR 151, 229, 5820.) At the same time, to avoid vandalism and other potential problems, the City did not want to authorize street improvements leading to vacant lots if Real Party ultimately could not secure building permits from Los Angeles. (AR 913.) To address this issue, City staff recommended imposing conditions to: (1) prohibit construction of the street extension if the homes in fact required discretionary review; and (2) require Real Party to demonstrate receipt of building permits for the homes prior to any grading. (AR 229, 913, 13-14.)

The Planning Commission held three public hearings on the Project, in March, July, and August 2020. (AR 4-5, 548, 661, 904.) During the course of these hearings, staff requested—and Real Party agreed—to change the Street Extension’s originally proposed alignment to eliminate any grading of existing Moffatt Street and redirect construction and future car traffic serving the seven homes to streets within Los Angeles. (AR 552-54.)

On August 11, 2020, the Planning Commission unanimously approved the Street Extension with the modified alignment suggested by staff. (AR 371, 1459.) The Commission found the Project exempt from environmental review under Guidelines section 15303 (the “Class 3 exemption”). (AR 379, 560-561.) Micah Haserjian appealed the Planning Commission’s decision. (AR 404.)

The City Council held initial public hearings on Mr. Haserjian’s appeal in October and November 2020. (AR 221, 365.) Council directed staff to propose appropriate approval conditions to ensure that the street extension could not be built without prior CEQA review if the homes somehow required discretionary approvals. (AR 229, 380, 5.) On February 17, 2021, having received the requested revised conditions of approval, the Council held its third public hearing on the Project. (AR 124-25, 139, 153-54, 270.) The Council unanimously denied the Appeal, and upheld the Commission’s approval of street extension, including its exemption determination. (AR 23, 26, 29.)

On March 2, 2021, Appellant Haserjian filed a demand that the City redo the February 17 hearing, claiming the City violated the Brown Act because it did not “live broadcast” all pre-recorded comments. (AR 1994-95.) While disputing Petitioner’s claims, the City elected to avail itself of the Brown Act’s provision to cure any alleged defects to avoid unnecessary litigation. (See AR 57; Gov. Code § 54960.1.) The Council accordingly set aside its February 17 decision and later noticed a new hearing on the appeal for April 20, 2021. (AR 57-58, 1331, 2205.) On April 19, 2021, Petitioner submitted a comment letter from a biological resources consultant (“Hamilton Report”). (AR 1740, 1762-1960.) The Council considered these comments, its prior staff reports, the information presented at prior Planning Commission and City Council hearings, and an additional staff report summarizing all of this information. (AR 57-60; see also AR 3-6.) The Council determined that the Project was exempt from CEQA under the “Class 3” and “Class 32” exemptions, denied the appeal, and approved the Project with conditions. (AR 6-10.)

On April 22, 2021, City filed a Notice of Exemption stating that the Project is exempt from CEQA review pursuant to the “Class 3” and “Class 32” exemptions in CEQA Guidelines sections 15303 and 15332. (AR 1.)

On March 19, 2021, Petitioner filed its original writ petition. On May 20, 2021, Petitioner filed its amended petition.

On July 26, 2021, the court approved the parties’ stipulation re: administrative record.

On November 17, 2021, Petitioner filed its opening brief in support of the petition (hereafter “OB”). The court has received Respondents’ opposition (“Oppo.”), Petitioner’s reply (“Reply”), the administrative record (“AR”), and the joint appendix. The court considers these papers in the Analysis section below.

On May 12, 2022, after a hearing, the court denied Respondents’ and Petitioner’s requests for judicial notice and motions to augment the administrative record. The court also sustained, in part, Respondents’ objections to Petitioner’s “sur-reply.” The court stated that it “will not consider the parties’ additional briefing regarding the merits of the case for the trial on the CEQA petition” contained in legal briefing for the requests for judicial notice and objections thereto.

In an action challenging an agency’s decision under CEQA, the trial court reviews the agency’s decision for a prejudicial abuse of discretion. (Pub. Res. Code, § 21168.5.) “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (Ibid.; see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.) Challenges to an agency’s failure to proceed in a manner required by CEQA are subject to a less deferential standard than challenges to an agency’s factual conclusions. (Vineyard, supra at 435.) In reviewing these claims, the Court must “determine de novo whether the agency has employed the correct procedures.” (Ibid.; see Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4^th 20, 26.)

Courts review an agency’s determination that an activity falls under the ministerial exemption of CEQA for prejudicial abuse of discretion. (Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 23; see Pub. Res. Code, § 21168.)

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

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

Petitioner contends that “City failed to adequately describe the project and engaged in piecemeal environmental review by isolating the street extension from the development of the seven parcels which was a condition of the Project’s approval.” (Opening Brief (“OB”) 5, 11-13.)

“Project” is defined as an “activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment....” (Pub. Resources Code § 21065; see also CEQA Guidelines § 15378.) “Activity” includes “[a]n activity directly undertaken by any public agency.” (§ 21065(a).)

“‘Project’ is given a broad interpretation ... to maximize protection of the environment.’ [Citation.] ‘Project’ refers to ‘the whole of an action….” (Riverwatch v. Olivenhain Mun. Water Dist. (2009) 170 Cal.App.4th 1186, 1203.) “This broad interpretation ensures CEQA's requirements are not avoided by chopping a proposed activity into bite-sized pieces which, when taken individually, may have no significant adverse effect on the environment.” (POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52, 73.) “CEQA forbids ‘piecemeal’ review of the significant environmental impacts of a project.” (Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1222.)

Whether several actions constitute a single project is generally a question of law. (Tuolomne County Citizens for Respondent Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1224.) The California Supreme Court has set forth the following piecemealing test: “[A]n EIR must include an analysis of the environmental effects of future expansion or other action 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 or its environmental effects.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396; see also County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, 385 [where two activities are “part of a coordinated endeavor” they may constitute a single project].)

City Considered the Street Extension and Development of the Seven Land-Locked Homes

Respondents contend that City considered “the whole of the Project, including both the Street Extension and the seven land-locked homes it would serve.” (Oppo. 13.) Respondents concede that the development of single-family homes on the seven lots is a “reasonable foreseeable consequence” of the street extension. Thus, improper piecemealing would occur if “the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects,” and if City did not consider such future expansion in its CEQA decision. (Laurel Heights, supra, 47 Cal.3d at 396.) While neither party sufficiently addresses that second part of the Laurel Heights test, the court will assume, for purposes of argument, that City was required to consider the potential development of the seven land-locked homes as part of the “project.” Respondents effectively concede that issue when they assert that City did consider “all aspects of the Project including … development of the seven land-locked homes.” (Oppo. 12:25-26.)

The record shows that City did consider such potential development under the ministerial exemption. In the notice of exemption, City described the Project as “the design and construction of the extension of Moffat Street which will be a private street extending approximately 580 feet westward from the northern end of Lowell Avenue to allow access to seven single-family landlocked lots in the City of Los Angeles and the removal of five trees.” (AR 1.) City found that the project is exempt from CEQA review pursuant to the “Class 3” and “Class 32” exemptions in CEQA Guidelines sections 15303 and 15332. (AR 1; see also AR 6-10.) In the “Project Description,” City did not describe the development of the seven land-locked homes as part of the “project.” (AR 1.) However, the staff report and notice of exemption show that City determined that development of the seven land-locked homes would be a ministerial project not subject to CEQA. City found that the entire project, including development of the seven lots, was exempt from CEQA review based on a combination of a statutory and categorial exemptions. (See AR 59-60 [staff report], AR 1 [notice of exemption].) The staff report and notice of exemption also stated that the Class 3 and Class 32 categorial exemptions applied to the street extension. (AR 1, 58-60.)

“Ministerial projects are exempt from the requirements of CEQA.” (CEQA Guidelines § 15268; see Pub. Res. Code § 21080(b)(1).) No environmental review is required for a project that is exempt from CEQA. (McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80, 89.) “Issuance of building permits” are “presumed to be ministerial” unless a “discretionary provision [is] contained in the local ordinance.” (Guidelines § 15268(b).) “‘The statutory distinction between discretionary and purely ministerial projects implicitly recognizes that unless a public agency [is authorized to] shape the project in a way that would respond to concerns raised in an EIR, or its functional equivalent, environmental review would be a meaningless exercise.’ [Citation.]” (Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 493-494 [hereafter Protecting Our Water].)

Petitioner objects to City’s reliance on the ministerial exemption as one of its rationales for finding the project exempt from CEQA. (OB 12-13.) However, “where the agency considers the project as a whole and determines the combined effect of two exemptions places the entire project outside the scope of CEQA, no improper segmentation has occurred.” (California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 191, citing Surfrider Foundation v. Cal. Coastal Comm’n (1994) 26 Cal.App.4th 151, 155-156 [no improper segmentation occurred where combination of statutory and categorial exemptions placed project outside of CEQA].)

In Surfrider, the project consisted of (1) the imposition of new and increased park fees; and (2) the installation of devices to collect those fees at 16 state park beaches. (Surfrider, supra, 26 Cal.App.4th at 154.) The Coastal Commission found the imposition of fees qualified for the statutory exemption for fees charged to meet operating expenses under Public Resources Code section 21080(b)(8) and the collection devices qualified for the categorical exemption for new small structures under Guidelines section 15303. (Id. at 155-56.) The Court upheld the Commission’s actions against a segmentation claim, reasoning that “it is the combined effect of two types of CEQA exemptions which places the collection of fees as a whole outside the purview of CEQA.” (Ibid.) While Surfrider did not consider a ministerial exemption, the Court’s reasoning logically applies to any combination of CEQA exemptions.

Petitioner’s arguments to distinguish Surfrider are unconvincing. (Reply 9-10.) Similar to Surfrider, City here found the instant project to be exempt based on a combination of statutory and categorical exemptions. While it is true that City did not include the development of the seven lots in the project description (see AR 1), City sufficiently explained in the notice of exemption that such development constituted a ministerial project not subject to CEQA. Thus, City considered whether the development of the seven lots fell within the scope of CEQA.

City of Antioch v. City Council (1986) 187 Cal.App.3d 1325 is distinguishable. (Oppo. 15.) In that case, the City of Antioch adopted a negative declaration for a project that consisted of more than a mile of streets with sewer lines and utilities. The City did not consider, in any manner, environmental consequences of development which the street and utilities would engender. The Court of Appeal found error, stating: “Although the environmental impacts of future development cannot be presently predicted, it is very likely these impacts will be substantial.” (City of Antioch, supra, 187 Cal.App.3d at 1336.) Here, City did not ignore the proposed development of the seven lots in Los Angeles to which the road extension would provide access. Rather, City noted that the development would consist of a single-family home on each of the seven lots, and that the City of Los Angeles would find the development approval ministerial. In fact, the approval of the road extension was conditioned on the City of Los Angeles so finding.

Petitioner cites CEQA Guidelines section 15268(d), which states: “Where 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.” (OB 13; Reply 9.) Respondents did not address this point in opposition and should state their position at the hearing. Subject to further argument, the court must harmonize section 15268(d) with the rule stated in California Farm and Surfrider that the combined effect of CEQA exemptions may place a project entirely outside of CEQA. In light of those binding opinions, section 15268(d) did not preclude City from relying on a combination of statutory and categorical exemptions – including the statutory exemption for ministerial projects -- to find that the entire project is exempt from CEQA. The development of the seven lots depends on land use approvals that must be, but have not yet been obtained, from the City of Los Angeles. The approval of City of South Pasadena of the street extension did not contain elements of both ministerial and discretionary action. In addition, if the building permits to be issued by Los Angeles are ministerial in nature, Cities of South Pasadena and Los Angeles would have no power to respond to environmental concerns raised in an EIR and “environmental review would be a meaningless exercise.” (Protecting Our Water, supra, 10 Cal.5th at 493-494.) Section 15268(d) does not control here.

Did City Prejudicially Abuse its Discretion in its Determination that Los Angeles’ Potential Approval of the Seven Single Family Homes Would Be Ministerial and Exempt from CEQA?

Primarily in reply, Petitioner also challenges the merits of City’s determination that the development of the seven lots constituted a ministerial project.

For the first time in reply, Petitioner argues that “the record contains no findings … by the City of South Pasadena or Los Angeles … that seven homes are ‘by-right’, as required by Topanga rule or CEQA.” (Reply 9.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioner does not show good cause to raise this argument for the first time in reply. The court could reject this argument solely on procedural grounds.

Even if the reply argument is considered, Petitioner fails to support it with adequate legal analysis. Petitioner does not cite any case or statute showing that City had a legal duty to make express or detailed findings that the potential development of the seven lots would fall within the ministerial exemption. Indeed, Petitioner concedes in the opening brief that “findings documenting the basis for an exemption are not required by statute or the CEQA Guidelines.” (OB 16.)

An agency can assert that a statutory exemption applies for the first time in court and express administrative findings are not required for the exemption. (See Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal.App.4th 173, 179 and 182.) Petitioner points out that Del Cerro “concerned statutory exemptions, which the Courts are required to apply as a matter of law to exempt from CEQA environmental review.” (Reply 7.) That observation does not distinguish Del Cerro, but rather shows that the case is analogous. As in Del Cerro, the ministerial exemption at issue here is statutory. (Pub. Res. Code § 21080(b)(1).)

CEQA Guidelines section 15062, which sets forth requirements for a notice of exemption, states that the agency should provide a “[a] brief statement of reasons to support the finding” that an exemption applies. (§ 15062(a)(4).) However, “it is clear a notice of exemption is not mandatory and its only effect when filed is to start the statute of limitations running.” (California Farm, supra, 143 Cal.App.4th at 190.) In any event, in the notice of exemption, City explained that “[d]evelopment of the 7 parcels with single-family homes is a ministerial act in Los Angeles, requiring only a building permit.” (AR 1.) Thus, City provided a “brief statement of reasons” for the statutory exemption.

Petitioner does not show that the findings requirement from Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506 applies to a statutory exemption. In addition, even if Topanga applied, “administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954.) The agency's findings may “be determined to be sufficient if a court has no trouble under the circumstances discerning the analytic route the administrative agency traveled from evidence to action.” (West Chandler Blvd. Neighborhood Ass’n vs. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1521-22.) Here, Petitioner has failed to show that additional findings were necessary for Petitioner and the court to review the determination that the potential development of the seven lots with single-family homes would be ministerial acts in Los Angeles.

City made sufficient findings for the ministerial exemption it relied upon, in part, in the notice of exemption.

Does Substantial Evidence Support City’s Finding of a Ministerial Exemption for the Potential Development of the Seven Land-Locked Homes?

As noted, City found in the notice of exemption that “[d]evelopment of the 7 parcels with single-family homes is a ministerial act in Los Angeles, requiring only a building permit.” (AR 1.) In the opening brief, Petitioner argues that this finding is “speculative,” but Petitioner does not otherwise develop the point with discussion of relevant evidence. (OB 12-13.) In response to opposition arguments, Petitioner addresses this issue in more detail in reply. (Reply 11-12.) For instance, Petitioner points out that “the record has no information about seven homes, to enable any findings.” However, Petitioner does not “lay out the evidence favorable to the other side and show why it is lacking.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.)

The record shows that City staff coordinated with Los Angeles and Real Party to determine whether the potential seven-home development would be subject to ministerial review by Los Angeles. Initially, City staff indicated that the street extension could not proceed before the Planning Commission until City obtained “preliminary approvals” from Los Angeles that the “design of 7 homes is not subject to discretionary review.” (AR 5635-36.) However, due to local requirements concerning fire access (AR 22, 3299, 5665), Los Angeles could not issue any building permits until street access was “approved and recorded.” (AR 3296.)

In an email dated May 4, 2020, to City and Real Party, Nicole Sanchez, City Planner for the City of Los Angeles wrote: “As long as the proposed dwellings comply with the Q Conditions and D Limitations (aka the Northeast Hillside Ordinance) as well as the applicable sections of the Los Angeles Municipal Code, then the dwellings would be ‘by-right’ and would solely need to go through plan check in order to get Planning Department approval. The only time a project in this area would need a discretionary review/approval for the construction of the dwellings, is if the dwellings do not comply with the Ordinance or the Code and the applicant would need to request to deviate from the Ordinance or the Code. As of today, I have not seen plans for the proposed dwellings that show compliance with the Ordinance and/or the Code so I can only speak to how the general process works.” (AR 5633 and 5212; see also AR 4870-71 [Northeast Hillside Ordinance checklist].)

The Q Conditions and D Limitations of the Northeast Hillside Ordinance include various requirements, including a maximum floor area ratio calculation; limitations of grading to “a maximum of 500 cubic yards plus 5% of the total lot size up to a maximum of 1,000 cubic yards”; a tree report; and limitations on the height and length of retaining walls. (AR 4870-71.)

On May 27, 2020, an attorney for Real Party wrote the following to City’s Planning Director: “The seven homes to be constructed by Developer in the City of Los Angeles will be built in conformance with the Northeast Hillside Ordinance (Ordinance No. 180403)…. As we have discussed previously, Developer has not yet prepared plans for the development of the seven homes because it first needs to secure physical access to the lots by means of the private access drive. It is my understanding that the City of Los Angeles won’t process plans for the proposed homes until such access drive has been, at the very least, approved for construction by the City. Developer will be submitting plans for the seven homes that will be in conformance with NEHO, and will not be seeking any variance from the application of NEHO which would otherwise be inconsistent with the ministerial processing of such plans.” (AR 5212-13.)

City requested assurances from Real Party that its building plans would comply with Los Angeles’ Northeast Hillside Ordinance (“NEHO”.) (AR 5213, 5251.) City staff recommended imposing conditions to: (1) prohibit construction of the street extension if the homes in fact required discretionary review; and (2) require Real Party to demonstrate receipt of building permits for the homes prior to any grading. (AR 229, 913, 13-14.) As a result, City Council imposed conditions P-12(b), P-14, and P-16 on the Project. (AR 11, 13-14.) These conditions provide as follows:

P-12. The street improvement plan shall not be approved until the following documentations are provided to the satisfaction of Director of Planning and Community Development and the Director of Public Works:

b. Documentation from the City of Los Angeles that a preliminary development plans (site plan and elevations) for the construction of all seven (7) lots have been reviewed by the City of Los Angeles Planning and confirmation that the plans as presented will not be subject to discretionary review.

P-14. The applicant shall demonstrate that they received approved building permits from the City of Los Angeles for the seven (7) properties (Tract 5643 Lot 26 APN:5309-012- 019, Lot 24 APN: 5309-012-017, Lot 22 APN: 5309-012-015, Lot 20 APN: 5309-012-013, Lot 18 APN: 5309-012-011, Lot 18 APN: 5309-012-009, and Lot 16 APN: 5309-012-007) . . .

P-16. In the event that no homes are built on the properties listed above (Condition P-11) after ten (10) years, the bond shall be used by the bonding company for the removal of the street improvements. (AR 11, 13-14.)

Condition P-20 may also be relevant. It provides as follows: “The applicant shall participate in a pre-construction meeting with property owners directly adjacent to the private street, the City of South Pasadena Planning and Building Divisions and Public Works Department, and Southern California Edison, to ensure all parties involved are aware of when construction will occur, what to expect, and to identify potential conflicts to eliminate otherwise unanticipated problems prior to the start of grading.” (AR 14-15 [bold italics added].)

Respondents contend that “City’s approval process thus ensured ministerial approval of the homes, while also resolving the ‘chicken-and-egg’ issue created by the fact that the only legal access to the seven ‘by right’ homes is in LA.” (Oppo. 16-17.) The court understands Petitioner to argue that the conditions of approval were ineffective to ensure that the development of the seven lots would be ministerial. (Reply 11-12.) For instance, Petitioner points out that Los Angeles “could not review and issue any building permits until street access was ‘approved and recorded.’” (Reply 12.)

Los Angeles planning staff indicated that building the seven homes would be ministerial and only require building permits if the plans complied with NEHO “as well as the applicable sections of the Los Angeles Municipal Code.” (AR 5633.) “Issuance of building permits” are “presumed to be ministerial” unless a “discretionary provision [is] contained in the local ordinance.” (Guidelines § 15268(b).) Real Party represented that “Developer will be submitting plans for the seven homes that will be in conformance with NEHO, and will not be seeking any variance from the application of NEHO.” (AR 5212-13.)

As Petitioner suggests, City could not know definitively whether the development of the seven homes would be ministerial and only require building permits without seeing the building plans. (OB 12-13, Reply 11-12.) However, Respondents have cited evidence that Los Angeles could not review and issue any building permits until street access was “approved and recorded.” (AR 3296.) In these circumstances, while the available evidence suggested that the development would be ministerial in Los Angeles, City imposed conditions P-12(b), P-14, and P-16 on the Project which have the effect of prohibiting development of the street extension unless Real Party submits confirmation that Los Angeles’ review of the building plans would be ministerial and also submits building permits from Los Angeles. (AR 11, 13-14.)

In the opening brief and reply, Petitioner has failed to develop an argument why conditions P-12(b), P-14, and P-16 would be inadequate to ensure that the street extension is only constructed if the development of the seven lots is ministerially approved in Los Angeles.

Subject to further argument, the court concludes that ministerial review of any future development of the seven lots is a component of the approval of the street extension project. “If the project cannot be built as approved, the applicant must apply for approval of a different project.” (Walters v. City of Hermosa Beach (2016) 1 Cal.App.5^th 823, 824.) Based on the conditions of approval discussed above, substantial evidence supports City’s determination that development of the seven lots would be ministerial and exempt from CEQA. Petitioner has not shown that City’s finding of a ministerial exemption for the seven lots was improper piecemealing or otherwise a prejudicial abuse of discretion under CEQA.

Petitioner contends that City prejudicially abused its discretion in finding that the Project qualifies for a Class 3 exemption. (OB 15; Reply 13-16.)

The Class 3 exemptions “consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.” (CEQA Guidelines § 15303.) “The numbers of structures described in this section are the maximum allowable on any legal parcel. Examples of this exemption include but are not limited to:

(a) One single-family residence, or a second dwelling unit in a residential zone. In urbanized areas, up to three single-family residences may be constructed or converted under this exemption.

(b) A duplex or similar multi-family residential structure totaling no more than four dwelling units. In urbanized areas, this exemption applies to apartments, duplexes, and similar structures designed for not more than six dwelling units.

(c) A store, motel, office, restaurant or similar structure not involving the use of significant amounts of hazardous substances, and not exceeding 2500 square feet in floor area. In urbanized areas, the exemption also applies to up to four such commercial buildings not exceeding 10,000 square feet in floor area on sites zoned for such use if not involving the use of significant amounts of hazardous substances where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive.

(d) Water main, sewage, electrical, gas, and other utility extensions, including street improvements, of reasonable length to serve such construction.” (Ibid.)

Respondents contend that the seven homes to be developed on the land-locked lots and the street extension all fall within the Class 3 exemption. Respondents interpret the Class 3 exemption to apply to the development of seven residential homes that are “each on its own separate legal parcel.” (Oppo. 18.) Petitioner interprets the Class 3 exemption to apply only to “one single-family residence, a second dwelling unit for an existing structure, three homes in an urbanized area, a duplex, a structure of not more than four dwellings, and in an urban area not more than six dwellings.” (OB 15.)

As a preliminary matter, Petitioner also contends that “City never expressly exempted the development of the seven lots under the Class 3 exemption.” (Reply 13.) It appears that City concluded that the entire project, including development of seven homes, fell within the Class 3 exemption. (AR 1.) In any event, as analyzed above, an agency can assert that a statutory or categorical exemption applies for the first time in court. (Oppo. 19; Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal.App.4th 173, 179.) Even if City did not expressly find that the entire project falls within the class 3 exemption, the court may decide that legal issue for the first time in this writ action.

The parties raise questions of the proper interpretation of CEQA Guidelines section 15303. “The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.) These same rules apply to the interpretation of a regulation.

Respondents highlight the sentence in section 15303 which states that “[t]he numbers of structures described in this section are the maximum allowable on any legal parcel.” Respondents also point out that the exemptions in section 15303 are not exclusive and “include but are not limited to” those listed. (Oppo. 18-19.) Respondents cite evidence that each of the seven homes will be built on a separate legal parcel. (AR 59.) In contrast, Petitioner highlights the statement that “[i]n urbanized areas, up to three single-family residences may be constructed or converted under this exemption.” (Reply 14 [bold in reply].) Petitioner also contends that Respondents’ interpretation would not protect the environment and would lead to absurd results under which an “unlimited number of single family homes” could be built under the exemption. (Ibid.)

Exercising its independent judgment, the court agrees with Petitioner that section 15303 cannot reasonably be interpreted to apply to seven separate singe-family residences. While the examples are not exhaustive, the regulation provides a specific exemption for single-family homes. The regulation states clearly that the exemption applies to “[o]ne single-family residence, or a second dwelling unit in a residential zone.” The general statement that “[t]he numbers of structures described in this section are the maximum allowable on any legal parcel” reasonably applies to that example. However, example (a) also includes an exception in “urbanized areas” under which “up to three single-family residences may be constructed or converted under this exemption.” That last qualification signals clearly that this exception to example (a) only authorizes the exemption to up to three single-family residences in an urbanized zone.

The court also finds support for this interpretation in paragraph (b) of the Class 3 exemption, which similarly states that “[i]n urbanized areas, this exemption applies to apartments, duplexes, and similar structures designed for not more than six dwelling units.” (bold italics added.) This language clearly signals the drafters’ intent such that the Class 3 exemption would apply, in an urbanized area, to an apartment with not more than six dwelling units. This language cannot be reasonably interpreted such that, if multiple apartments are on different legal parcels, the exemption would apply to multiple apartment buildings with more than six dwelling units total.

Respondents’ contrary interpretation leads to absurd results under which the exemption could apply to an unlimited number of single-family residences in a major subdivision project or to multiple six-unit apartment buildings on different legal parcels. When interpreting a statute or regulation, the court must construe the statute or regulation, if possible to achieve harmony among its parts. (People v. Hull (1991) 1 Cal. 4th 266, 272.) The court “must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246.) In section 15303, the drafters stated their intent to limit the exemption to a “limited numbers of new, small facilities or structures” (§ 15303.) An interpretation of the section which would authorize an exemption for the development of an unlimited number of single-family residences in a single project, as long as each was on a separate lot, would be contrary to that stated intent. That interpretation would also be inconsistent with the purpose of CEQA “to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (CEQA Guidelines § 15003(f).)

Alternatively, Respondents argue that even if the Class 3 exemption does not apply to the seven homes, “the Street Extension itself clearly qualifies for this exemption as a ‘new, small facilit[y] or structure[ ].’” (Oppo. 19.) In contrast, Petitioner contends that “[t]he Class 3 exemption could apply to a street extension by itself, but only if it served other exempt structures under CEQA Guidelines § 15303.” (OB 15 [italics in original]; see also Reply 15-16.)

Respondents rely on paragraph (d) of the Class 3 exemption, which applies to “Water main, sewage, electrical, gas, and other utility extensions, including street improvements, of reasonable length to serve such construction.” (bold italics added.) Respondents contend that the guidelines “specifically identify street extensions and improvements as one of four illustrative examples of such ‘new, small facilities or structures.’” (Oppo. 19-20.)

Respondents’ interpretation omits the words “to serve such construction” from the Guidelines and broadens subdivision (d) to exempt any street improvement. (Reply 15.) “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.) Here, paragraph (d) is reasonably interpreted to exempt utility extensions, including street improvements, that “serve such construction” discussed in paragraphs (a) through (c). In this case, the street extension does not serve any “such construction” that falls within the scope of the Class 3 exemption.

Respondents contend that the examples listed in section 15303 expressly “are not limited to” those set forth in the regulation. (Oppo. 20.) Respondents also argue that Petitioner’s interpretation of section 15303 could lead to inconsistent results: “Under Petitioner’s rationale, a street improvement that would serve up to six new dwellings would be exempt because subdivision (b) expressly refers to up to six new dwelling units…. But that same street improvement would not be exempt if it were designed to serve six already existing dwellings or the same six dwellings that fell within a different exemption.” (Oppo. 20-21.)

The court agrees that the examples listed in section 15303 are a non-exclusive list of what constitutes “a limited number of new, small, facilities or structures.” Under subdivision (d), a street improvement which serves construction of structures otherwise exempt under the regulation is an express example of a project that meets the section 15303 exemption. A street improvement which does not serve a construction project otherwise exempt may theoretically also qualify as a “new small facility or structure” under the general language of the exemption. However, in determining whether such a street improvement would also fall under the general description of “a limited number of new, small, facilities or structures” the court would need to consider the express examples given, and determine whether the proposed project is similar to those examples. (See e.g. People v. Arias (2008) 45 Cal.4th 169, 180.)

Here, the regulation gives the specific example that a street improvement which serves construction otherwise exempt (up to three single-family residences) would be exempt. A street improvement which serves instead the construction of 7 single-family residences is not of like kind to a street improvement that serves a maximum of three single-family residences, and in fact conflicts with the limitation in section 15303(a). Therefore, even considering the street improvement alone, Respondents have not shown that it falls within section 15303.

Respondents’ cited cases do not support their position that the street improvement falls within the scope of the Class 3 exemption. In all these cases, the court found the exemption for a limited number of small structures applied. (See Oppo. 18, citing Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, 1042-43, 1047 [13 microcell transmitters qualified as “limited number”]; Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th at 953-54, 955-56 [40 wireless telecommunications units qualified as “limited number”]; Surfrider, supra, 26 Cal.App.4th at 154, 155-56 [dozens of fee collection devices installed at 16 different parks qualified as “limited numbers”].) Here, the Class 3 exemption cannot be interpreted to apply to the street extension serving the development of 7 single-family homes, where the exemption itself provides that “up to three single-family residences may be constructed under this exemption.” Those cases also provide no support for the notion that a street extension, standing alone and regardless of the size of the development that it would serve, is exempt under the Class 3 exemption.

Guidelines, section 15332 exempts “in-fill development” meeting the following requirements: “(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses.(c) The project site has no value, as habitat for endangered, rare or threatened species.(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.(e) The site can be adequately served by all required utilities and public services.”

Petitioner primarily argues that the Project does not qualify for a Class 32 exemption because the Project site has value as habitat for Black Walnut. (OB 16-17.) In the opening brief, Petitioner also tersely argued (in a paragraph) that City failed to provide evidence concerning any impacts of the Project on traffic, notice, air quality, or water quality. (OB 17-18.) Petitioner further developed both arguments in reply. (Reply 16-18.)

Does Substantial Evidence Support City’s Finding that the Project Site Has No Value as Habitat for Endangered, Rare, or Threatened Species?

Real Party retained an expert, MIG, to document the site’s natural resources (“MIG Report”). (AR 1503-1565.) The site studied by MIG was the 0.51-acre “Moffatt Street Extension Project Site located in South Pasadena, Los Angeles County, California (portions of APNs 5310-005-010, 5310-005-011, 5310-005-004, 5310-006-038, and 5310-006-039).” (AR 1503.)

Real Party’s expert “traversed the entire [site] by foot and evaluated the suitability of on-site vegetation communities to support special-status species.” (AR 1508.) “The California Natural Community List (CDFW 2019) was consulted to determine if any rare or sensitive plant communities are present. In addition, plant communities were evaluated to determine if they are considered sensitive under federal and/or other state regulations and local policies.” (Ibid.)

The original MIG Report, dated January 2020, contains a list of all potential “special status” species. (AR 1529-42.) MIG noted in January 2020 that Southern California black walnut had a California Native Plant Society (“CNPS”) ranking of 4.2, but was “not expected” to occur in the Project area. (AR 1532.) The original MIG report concluded that “[n]o special-status plant species are expected to occur on the Project Site due to the extent of current development and lack of suitable habitat” and that “no impacts will occur to special status plants.” (AR 1515-16.) The MIG Report also stated that “Southern California black walnut (Juglans californica) saplings are infrequently located within this community but are not of sufficient size to be protected by Section 34 of the South Pasadena Municipal Code.” (AR 1512, sec. 4.3.1.)

The original MIG Report defined “Special-Status Plants” to include: “(1) plants that are federal- or state-listed as rare, threatened or endangered, (2) federal and state candidates for listing, (3) plants assigned a Rank of 1 through 4 by the CNPS Inventory, and (4) plants that qualify under the definition of "rar in the California Environmental Quality Act, section 15380.” (AR 1513.)

With respect to CNPS rankings, the original MIG Report stated: “Plants on Lists 1A, 1B, and 2 of the CNPS Inventory consist of plants that may qualify for listing, and the CDFW, as well as other state agencies (e.g., California Department of Forestry and Fire Protection). As part of the CEQA process, such species should be fully considered, as they meet the definition of threatened or endangered under the NPPA and Sections 2062 and 2067 of the California Fish and Game Code. California Rare Plant Rank 3 and 4 species are considered to be plants about which more information is needed or are uncommon enough that their status should be regularly monitored. Such plants may be eligible or may become eligible for state listing, and CNPS and CDFW recommend that these species be evaluated for consideration during the preparation of CEQA documents.” (AR 1506.) The report stated that a CNPS ranking of 4 means “Plants of limited distribution – A watch list.” In addition, the endangerment code of 2 means “fairly endangered in California (20-80% occurrences threatened).”[1] (Ibid.)

On or about April 14, 2021, MIG issued an “Amendment to Moffatt Street Extension General Biological Resource Assessment Report, January 2020.” The amendments were “based on a desktop review of project notes, photos, and reporting from the December 15, 2019 field survey and the January 2020 GBRA report.” (AR 54.) MIG amended its report to include the following statement:

Southern California black walnut (CNPS 4.2) seedlings and saplings are present on the Project Site. Potential impacts to onsite individuals may be considered adverse, but would not appreciably affect their overall population given the large amount of similar suitable habitat in the vicinity of the Project Site and beyond. As such, impacts to southern California black walnut seedlings and saplings on the Project Site are less than significant.

MIG also amended the Appendix A, regarding Special Status Plant Species, to state the following with respect to black walnut: ““Present. Southern California black walnut seedling and saplings occur on the Project Site.” (AR 54.)

On or about April 20, 2021, the day of the final City Council hearing on the Project, Petitioner submitted a comment letter from biological resources expert Robert A. Hamilton of Hamilton Biological, Inc. (AR 1754 – 1777.) Hamilton found that the site of the street extension and the future site of the seven-home development it will serve contained no less than 12 Black Walnuts, with 4 live Black Walnuts being present on the site of the road extension project. (AR 1769.) Hamilton also explained that the Black Walnut is assigned a 4.2 rank by the CNPS and that this refers to a “species of limited distribution or infrequent throughout a broader area in California, whose status should be monitored regularly; moderately threatened in California (20-80% occurrences threatened / moderate degree and immediacy of threat).” (AR 1773-4.) The Hamilton letter also states that “The Juglans californica/annual herbaceous community is assigned a NatureServe Rank of G3/S3” and “this means that the State regards this community as ‘vulnerable’ at global and state levels, referring to natural communities ‘at moderate risk of extinction.’” (AR 1774.)

Analysis – Substantial Evidence Supports City’s Finding that the Project Site Has No Value As Habitat for Endangered, Rare or Threatened Species

As discussed, substantial evidence supports City’s determination that, as the street extension has been approved, the future development of the seven lots in Los Angeles must be ministerial and exempt from CEQA review. Thus, for purposes of the Class 32 exemption, the analysis must focus on the street extension itself and not the seven lots.

The MIG Report contains a comprehensive list of all potential “special status” species and concludes that of these, only Black Walnut is present at the Project site. (AR 1529-42, 54.) Petitioner only challenges City’s finding under section 15332(c) with respect to Black Walnut and its habitat on the site. Substantial evidence supports the City’s finding that the Project site has no value as habitat for any other species that could be considered endangered, rare, or threatened.

There is no dispute that some Black Walnut exist on the Project site. (See Oppo. 21:25; AR 54.) The parties dispute whether Black Walnut qualifies as an “endangered, rare or threatened species” under CEQA. In relevant part, the term “endangered, rare or threatened species” is defined in the CEQA Guidelines as follows:

(1) “Endangered” when its survival and reproduction in the wild are in immediate jeopardy from one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, disease, or other factors; or

(A) Although not presently threatened with extinction, the species is existing in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens; or

(B) The species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range and may be considered “threatened” as that term is used in the Federal Endangered Species Act.

Contrary to Petitioner’s assertion, the MIG Report did not conclude that Black Walnut is endangered, rare, or threatened. (OB 16-17.) Rather, the Report merely documented black walnut as a “special status” species based on its CNPS Inventory rank of 4.2. The Report stated that a CNPS ranking of 4 means “Plants of limited distribution – A watch list.” The Report states that “California Rare Plant Rank 3 and 4 species are considered to be plants about which more information is needed or are uncommon enough that their status should be regularly monitored. Such plants may be eligible or may become eligible for state listing, and CNPS and CDFW recommend that these species be evaluated for consideration during the preparation of CEQA documents.” (AR 1506.) This summary of the CNPS ranking of 4 does not suggest or conclude that Black Walnut or its habitat are endangered, rare, or threatened species as defined in CEQA Guidelines section 15380.

Petitioner and the Hamilton Report highlight the endangerment code of “.2” that is attached to the CNPS ranking of 4.2 for Black Walnut. (AR 1774; OB 16-17.) Petitioner contends that “species ranked as 4.2 are ‘rare’ under CEQA, although their ‘threat appears low at this time.’” (Reply 17.) Under substantial evidence review, Petitioner’s arguments are not persuasive.

Hamilton indicates that this endangerment code means “moderately threatened in California (20-80% occurrences threatened / moderate degree and immediacy of threat).” (AR 1773-4.) The MIG Report is consistent and states that the endangerment code of 2 means “fairly endangered in California (20-80% occurrences threatened).” (Ibid.)

The 4.2 CNPS Ranking, as described by both MIG and Hamilton, does not compel a conclusion that Black Walnut is endangered, rare, or threatened under CEQA. In other words, a reasonable decisionmaker would not be required to find, based on the MIG and Hamilton reports, that (1) the survival and reproduction of a species with a ranking of 4.2 are in “immediate jeopardy” or (2) the species is “existing in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens”. (bold italics added.) Without evidence regarding the range of Black Walnut in California and its survival and reproduction rates, which Petitioner does not cite, a reasonable decisionmaker could conclude that the CNPS ranking of 4.2 is insufficient evidence that Black Walnut is endangered, rare, or threatened under CEQA.

Petitioner also does not show, with record citation, that Black Walnut may be considered “threatened” as that term is used in Federal Endangered Species Act. (See CEQA Guidelines § 15380(b)(2)(B).) Petitioner fails to address that issue and thereby waives argument on it.

Furthermore, even if different inferences from the .2 endangerment code are possible, the court does not weigh the evidence or independently decide this issue on substantial evidence review. MIG did not conclude that the 4.2 CNPS ranking means that Black Walnut is endangered, rare, or threatened. A reasonable decisionmaker need not interpret the 4.2 CNPS ranking, or MIG’s or Hamilton’s discussion of that ranking, in the manner asserted by Petitioner. “When two or more inferences reasonably can be deduced from the evidence, we cannot substitute our deductions for those of the agency.” (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 410.)

Petitioner also cites to the statement in the Hamilton Report that “the Juglans californica/annual herbaceous community is assigned a NatureServe Rank of G3/S3” and “this means that the State regards this community as ‘vulnerable’ at global and state levels, referring to natural communities ‘at moderate risk of extinction.’” (AR 1774.) This discussion in the Hamilton Report also does not compel a conclusion that Black Walnut is endangered, rare, or threatened under CEQA. Hamilton does not state that a G3/S3 rank means that (1) the survival and reproduction of a species are in “immediate jeopardy” or (2) the species is “existing in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens”. (bold italics added.) Moreover, Petitioner does not show that CEQA’s definition of “species” encompasses combinations of species that exist together in a community. (See CEQA Guidelines § 15380.) In addition, the MIG Report found that “[n]o sensitive plant communities were observed.” (AR 1512.) The City was entitled to rely on this conclusion of an expert. (See Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951, 960 [in analyzing CEQA exemption, court does not weigh conflicting evidence].)

Finally, City also had a reasonable basis to conclude that the Project site – as limited to the street extension – has no value as habitat for Black Walnut. In the amended report, MIG concluded that impacts to Black Walnut seedlings and saplings on the Project site would be adverse, “but would not appreciably affect their overall population given the large amount of similar suitable habitat in the vicinity of the Project Site and beyond.” (AR 54) MIG opined that “impacts to southern California black walnut seedlings and saplings on the Project Site are less than significant.” (Ibid.) Hamilton found four live Black Walnuts on the site of the road extension project. (AR 1769.) He found eight additional Black Walnuts on the seven vacant lots in Los Angeles subject to ministerial exemption. (Ibid.) While Hamilton criticized aspects of MIG’s report, Hamilton did not clearly opine that the street extension site, in itself, has value as habitat for Black Walnut. (AR 1769-1777.) Petitioner has not shown that an expert cannot consider various factors related to the “value” of the habitat, including the prevalence of the species on the site, the quality of the site as habitat for the species, and the existence of other suitable habitat in the area. Considering and weighing all of the evidence, including the expert opinions, substantial evidence supports City’s conclusion that the Project site has no value as habitat to Black Walnut. Different inferences from the evidence were possible. However, under substantial evidence review, the court must defer to City’s weighing of the evidence and the reasonable inferences from it. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 410.)

Based on the foregoing, substantial evidence supports City’s finding that the Project site has no value as habitat for endangered, rare, or threatened species.

Does Substantial Evidence Support City’s Finding that the Project Would Not Result in Significant Effects Relating to Traffic, Noise, Air Quality, or Water Quality?

Petitioner contends that City failed to provide evidence concerning any impacts of the Project on traffic, notice, air quality, or water quality. (OB 17-18; Reply 16-18.)

The City’s determination that the Project qualifies for the Class 32 exemption included an implied finding that the project has no significant effect on the environment. (Assn. for Protection of Evntl Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 731.) City’s implied finding may be supported by any evidence in the record, including expert reports, the Project’s design, and conditions of approval. (See Walters v. City of Redondo Beach (2016) 1 Cal.App.5th. 809, 823-24 [condition of approval requiring compliance with municipal noise ordinance was evidence project would not have significant noise effect].)

An agency is presumed to have regularly performed its official duties. (Evidence Code § 664.) When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [its] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) The petitioner “must lay out the evidence favorable to the other side and show why it is lacking.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) Petitioner’s opening brief did not satisfy these requirements in the challenge to City’s implied finding that the Project would not have significant impacts related to traffic, notice, air quality, or water quality. (OB 17-18.) Petitioner cites evidence in reply, which was not discussed in the moving papers, depriving Respondents of an opportunity to address that evidence in their written opposition. (Reply 18-19.) The court analyzes the parties’ arguments as follows, subject to further oral or written argument.

A vehicle trip assessment by K2 Traffic Engineering, Inc. (“K2 Report”), dated January 20, 2020, estimated the maximum daily vehicle trips the Project would generate and concluded it would have “no or less than significant impact to nearby roadways and intersections.” (AR 1476-77.) The vehicle trip assessment was for a street extension of Moffat Street, a residential cul-de-sac, in City of South Pasadena. (Ibid.) However, the Project was later amended such that the new private street would extend westward from the northern end of Lowell Avenue, in Los Angeles. (AR 1, 669, 841-42, 1249-50.)

In reply, Petitioner submits evidence that Lowell Avenue is considered “narrow” and “substandard.” (AR 669, 841-42, 4124-25.) Petitioner also points out that K2 Report only considers residential traffic impacts related to 10 homes and not construction traffic or impacts related to the “steep slope” of the Project tie. (Reply 18.) Petitioner also cites evidence that City of South Pasadena planning staff noted that City of Los Angeles would study any traffic impacts for a connection to Lowell Avenue. (AR 4351-53.)

In the opening brief, Petitioner did not meet its burden to prove the insufficiency of the City’s traffic finding, with citation to the record, as required by case law. (See OB 17-18; Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) However, Petitioner’s citations in reply bear on the sufficiency of the evidence to support an implied finding of no significant effect on traffic, specifically related to the extension to Lowell Avenue, including possible construction traffic impacts. Respondents should address this evidence at the hearing.

A preliminary geologic investigation concluded the Project would have no impact on groundwater. (AR 1595.) As a condition of approval, Real Party must prepare multiple plans to address stormwater runoff and mitigation plans for erosion and flood control. (AR 17-18.) Real Party must also record a covenant to perpetually maintain all drainage and stormwater devices. (AR 18.)

In reply, Petitioner argues that under CEQA water quality impacts are not limited to groundwater; the Project site is on a steep slope; and the Project “may” have water quality impacts related to drainage. (Reply 19, citing AR 910, 1068.)

Considering the small size of the Project (580-foot street extension), the preliminary geologic investigation, and the conditions of approval, City had some basis to conclude that the Project would not have significant impacts related to water quality. Respondents should address Petitioner’s reply evidence at the hearing.

Respondents cite several conditions of approval that are relevant to possible impacts on air quality and noise. (Oppo. 25.) Real Party must comply with the City’s construction curfew hours. (AR 12.) Real Party also is required to submit a “construction management plan,” which shall include:

a. A proposed haul route and location of a proposed off-site construction staging area where project construction workers and/or subcontractors will park and equipment will be stored. Equipment and construction staging area shall be located away from adjacent residential uses. Any construction activity that may require closing public roadways shall be identified and mitigation identified as part of the staging plan. The applicant shall obtain input from Public Works to identify haul route and staging area.

b. A plan for dust control techniques to be implemented during project construction which shall include, but not be limited to, plans for daily watering of the construction site, limitations on construction hours, and adherence to standard construction practices such as watering of inactive and perimeter areas.

c. A traffic control plan for the duration of the construction prepared by a licensed civil engineer for approval by the City Engineer. The applicant shall notify businesses and residents impacted by any parking restrictions during construction.

d. A list of construction equipment, fixed or mobile, showing that all equipment will be equipped with properly operating and maintained mufflers and other stater-required noise-attenuation devices.

e. A plan for limiting the number of noise-generating, heavy-duty off-road construction equipment (e.g., backhoes, dozers, excavators, loaders, rollers, etc.) simultaneously used on the project site within 50 feet of adjacent residential uses surrounding the site to no more than one or two pieces of heavy-duty, off-road equipment to reduce construction noise levels. (AR 14-15.)

Respondents also contend that City could reasonably infer that the Project would not cause significant noise or air quality impacts from the K2 Report. (Oppo. 25.) Petitioner does not cite any relevant evidence for City’s implied finding the Project would not have significant impacts related to noise or air quality. It appears Respondents may have cited all relevant evidence.

Counsel should address at the hearing whether the K2 Report, pertaining to residential traffic for a different street extension, provides evidence in support of City’s implied finding that the Project would not have significant impacts related to noise or air quality. In particular counsel should address whether there is substantial evidence to support a finding of no significant impacts related to construction noise or air quality. While the conditions of approval seem relevant, Respondents have not articulated how City could have concluded, solely from those conditions, that the Project would not have any significant impacts on noise and air quality, including during construction

The court requires further argument from the parties with respect to the evidence supporting, or detracting from, City’s implied finding that approval of the Project would not have significant impacts related to traffic, notice, air quality, or water quality. Substantial evidence supports the other parts of City’s finding that the Project qualifies for the Class 32 exemption.

Improper Reply Arguments – Cumulative Impacts and Unusual Circumstances Exceptions to the Categorical Exemptions

In reply, Petitioner argues, for the first time, that the Project is not categorically exempt because the cumulative impacts and unusual circumstances exceptions apply. (Reply 19-20.) While Petitioner noted the existence of the cumulative impacts and unusual circumstances exceptions under CEQA in the opening brief (OB 14), Petitioner made no argument that they applied to this case. “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; see also Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333.) Petitioner does not show good cause to raise these new arguments for the first time in reply. These reply arguments are based on an administrative record, which was known to Petitioner when the opening brief was filed. Respondents are prejudiced by assertion of new arguments in reply. Notably, these legal theories also were not pleaded in the first amended petition. (See FAP ¶¶ 55-68.) The court denies these arguments on procedural grounds because they were not properly raised in the petition or opening brief.

Based on the conditions of approval for the Project, substantial evidence supports City’s determination that development of the seven lots would be ministerial and exempt from CEQA. City’s finding of a ministerial exemption for the seven lots was not improper piecemealing or otherwise a prejudicial abuse of discretion under CEQA.

Substantial evidence does not support City’s finding that the Project qualifies for the Class 3 exemption. City prejudicially abused its discretion with respect to the Class 3 exemption.

[1] From context, it appears that this endangerment code is the .2 of the 4.2 ranking assigned to Black Walnut.

[2] This guideline also states: “(c) A species of animal or plant shall be presumed to be endangered, rare or threatened, as it is listed in: (1) Sections 670.2 or 670.5, Title 14, California Code of Regulations; or (2) Title 50, Code of Federal Regulations Sections 17.11 or 17.12 pursuant to the Federal Endangered Species Act as rare, threatened, or endangered.” It is undisputed Black Walnut is not “listed” within the meaning of subdivision (c).