Judge Mary H. Strobel, Case 21STCP02618 2023-02-09 Tentative Ruling

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

Petitioner Citizens Protecting San Pedro (“Petitioner”) petitions for a writ of administrative mandate directing Respondent City of Los Angeles (“City” or “Respondent”) to vacate and set aside all land use approvals for a proposed multifamily development at 1309-1331 South Pacific Avenue in the San Pedro area of Los Angeles (“Project”). City and Real Party in Interest RKD 13 PAC, L.P. (“Real Party”; collectively “Respondents”) jointly oppose the petition.

Petitioner’s Request for Judicial Notice (“RJN”) Exhibits 1-5 – Granted.

The Project “is the construction of a 4-story, 45-foot and 5-inch tall residential building comprised of 102 dwelling units (including 12 Very Low Income units). The project will be approximately 83,158 square feet in floor area with a Floor Area Ratio (‘FAR’) of 2.65:1. The project will provide 127 parking spaces in 2 subterranean levels. The site is currently improved with 3 vacant commercial structures, with 26 trees on the subject site and 4 trees along the public right-of-way, all of which will be removed to clear the lot.” (AR 1 [Notice of Exemption].)

Real Party requested approval of a Density Bonus with three incentives (increased FAR, reduced open space, 5-foot rear yard setback) and one waiver of development standard (height), and Site Plan Review for an increase of 50 or more units. (AR 22-23.) The site is zoned C2–1XL-CPIO with a maximum FAR of 1.5 to 1 and building height of 30 feet. (AR 26.) The site is located in the Pacific Corridor Redevelopment Plan Project Area and the San Pedro Community Plan Implementation Overlay (“CPIO”). (Ibid.)

As stated in a staff report, “The surrounding area is developed with a combination of primarily multi-family residential and commercial uses, with some single-family residential uses, and are also within the San Pedro CPIO. Properties along Pacific Avenue are zoned C2-1XL-CPIO and serve as a commercial corridor, with uses to the north including auto repair, a ballet school, furniture store, and flower shop; to the south is a 3-story multi-family residential building, light industrial, auto upholstery and repair, and dollar tree store; and across Pacific Avenue to the east is check cashing, donut shop, mini market, laundry, printing, auto repair, restaurant, and car wash. The properties to the west of the subject site are zoned RD1.5-1XL-CPIO and improved with multi-family residential buildings up to three stories in height and single-family ranging from one to two stories in height. The site is within 500 feet of the 15th Street Elementary School.” (AR 26-27.)

At its meeting on April 23, 2020, the Los Angeles City Planning Commission (“CPC”) approved the Project and found it exempt from CEQA pursuant to the Class 32 exemption. (AR 7071–7072.) The Commission considered objections from Petitioners and other interested parties. (See e.g. AR 6964-7016.)

Petitioner appealed the Project approvals and submitted opposition letters. (AR 7102-05, 9163-9577.) Other interested parties, including the LAUSD Office of Environmental Health and Safety (AR 14409), Congresswoman Nanette Diaz Barrigan (AR 10625), and the Northwest San Pedro Neighborhood Council (AR 7249), also opposed the Project.

On June 23, 2021, the City Council denied the appeal and upheld the CPC determination. (AR 5186 [Official Action].) The next day, a Notice of Exemption (“NOE”) was filed. (AR 1–2.)

On August 12, 2021, Petitioner filed its original petition for writ of mandate under CEQA. On September 21, 2021, Petitioner filed the operative, FAP for (1) violation of CEQA; and (2) violation of Planning and Zoning Law.

On March 24, 2022, the court granted Respondents’ motion for judgment on the pleadings, with leave to amend.

On April 13, 2022, Petitioner filed the operative, second amended petition (“SAP”). Respondent and Real Party answered.

On September 16, 2022, Petitioner filed its opening brief in support of the petition. The court has received Respondents’ consolidated opposition, Petitioner’s reply, the administrative record, and the joint appendix.

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.)

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.)

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.) “Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant's failure to carry his burden.” (Ibid.)

In cases reviewing decisions that do not affect a fundamental vested right, as in this one, the court is directed to review the record for substantial evidence supporting the administrative findings. (JKH Enterprises, Inc. v. Dept. of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057; see Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317 [land use decisions reviewed for substantial evidence].) Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), 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.) “Courts may reverse an [administrative] decision only if, based on the evidence …, a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

“[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Evid. Code § 664.)

“When [the court] review[s] an agency's decision for consistency with its own general plan, [the court] accord[s] great deference to the agency's determination. This is because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity…..’” (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1563.) Courts also accord deference to a city’s findings that a project is consistent with its own zoning regulations. (Old East Davis Neighborhood Association v. City of Davis (2021) 73 Cal.App.5th 895, 914.)

To the extent “purely legal issues involve the interpretation of a statute an administrative agency is responsible for enforcing, [the court] exercise[s] [its] independent judgment, ‘taking into account and respecting the agency's interpretation of its meaning.’” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343; see also Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 11.) How much weight to accord an agency's construction is “situational,” and depends on the circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.) These same rules apply to the interpretation of a regulation.

CEQA 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.”

“Since a determination that a project falls within a categorical exemption excuses any further compliance with CEQA whatsoever, we must construe the exemptions narrowly in order to afford the fullest possible environmental protection.” (Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 697.)

Petitioner contends that substantial evidence does not support City’s findings for the Class 32 exemption that the Project is consistent with all zoning regulations; and that approval of the Project would not result in any significant impacts relating to traffic, noise, or air quality. Petitioner also contends that the unusual circumstances and cumulative impact exceptions to the exemption apply. (Opening Brief (“OB”) 8-16.)

Does Substantial Evidence Support City’s Finding that the Project is Consistent with all Appliable Zoning Regulations?

Petitioner contends that the Project does not comply with a parking design bulletin issued by the Los Angeles Department of Building and Safety (“LADBS”) that states that “at least one parking stall per dwelling unit … shall be individually and easily accessible.” (OB 9; see AR 12529.)

The Project proposes 102 units and 127 total parking spaces, of which 28 are rear tandem spaces. (AR 22, 68-69, 12514-15.) Petitioner cites a letter from its expert stating that the parking stalls are “unbundled,” meaning the stalls are not associated with any specific unit. (AR 12514-15.) Thus, Petitioner argues that there are only 99 “individually accessible parking spaces” (i.e., 127-28.)

In the legal briefing, the parties do not sufficiently address whether any of the 102 units would be assigned more than one parking spot in the same tandem stalls. It appears from the record that some units are entitled to more than one parking space. (See e.g. AR 29 [noting that 2+ spaces are assigned to the larger units].) If units assigned more than one parking space receive the tandem spaces, then it appears the 99 “individually accessible parking spaces” could satisfy the LADBS bulletin. However, in opposition, Respondents do not address the position of Petitioner’s expert that “the parking structure stalls are ‘unbundled’, meaning that the stalls are not associated with any specific unit.” (AR 12514.) Counsel should address this issue at the hearing. Assuming the parking stalls are not associated with any specific unit, Petitioner has shown evidence that 3 spaces may not be individually accessible, inconsistent with the LADBS bulletin.

In opposition, City contends that the LADBS bulletin “was not adopted as an ordinance by the City Council, however, and is not a ‘zoning regulation’ for purposes of the Class 32 Exemption.” (Oppo. 17.) City’s argument is supported by the plain language of section 15332(a), which requires consistency with “applicable zoning designation and regulations.” This language is reasonably interpreted to refer to zoning regulations that have been formally adopted and have the force of law. Petitioner develops no different interpretation and cites no authority under which the bulletin constitutes a zoning regulation under section 15332(a).

In the opening brief, Petitioner did not develop any argument that the Project is inconsistent with section 12.21.A.5. Section 12.21.A.5(h) addresses tandem parking and states, in pertinent part, that “each required parking stall within a parking area or garage shall be accessible.” Section 12.21.A.5(h) also states that automobiles may be parked in tandem in a private parking area serving an “apartment house” or other residential dwelling, “where the tandem parking is not more than two cars in depth.” (Pet. RJN Exh. 1.) Unlike the LADBS bulletin, section 12.21.A.5(h) does not state that at least one parking stall per dwelling unit shall be individually and easily accessible. Rather, the ordinance only requires each parking stall to be accessible, and it authorizes tandem parking two cars in depth.

In reply Petitioner argues for the first time that the bulletin constitutes LADBS’s “long-standing” interpretation of section 12.21.A.5, is entitled to deference and therefore should be viewed as a zoning regulation under section 15332(a). (Reply 9:14-28.) Because this argument was made for the first time in reply, Respondents did not have an opportunity to respond to it. “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.

Even if considered, Petitioner’s reply argument is unpersuasive. Petitioner fails to present evidence the bulletin in fact constitutes the City’s approved interpretation of the zoning ordinance. The court has no information how the bulletin was developed, the degree of formality involved in its issuance, or the timing of when the pertinent language became part of the bulletin. Indeed, Petitioner states that the zoning administrator, and not LADBS, has authority to issue general interpretations of the zoning code. (OB 11:3-9; see LAMC § 12.21.A.2.) Petitioner has not shown that the bulletin constitutes City’s long-standing interpretation of 12.21.A.5 and that it is entitled to deference over the City’s interpretation set forth in its opposition. Under these circumstances, since nothing in the zoning ordinance specifically requires that “at least one parking stall per dwelling unit be individually and easily accessible,” Petitioner does not show a prejudicial abuse of discretion in the City’s conclusion that the project is consistent with applicable zoning regulations for parking.

Petitioner also states that “the Project failed to provide required queuing space for safe operation of tandem parking spaces.” (OB 9:20-21.) This contention fails because Petitioner did not cite to the record or provide legal analysis. Under CEQA, Petitioner “must lay out the evidence favorable to the other side and show why it is lacking.” (Defend the Bay, supra, 119 Cal.App.4th at 1266.) “Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant's failure to carry his burden.” (Ibid.)

Petitioner does not show a prejudicial abuse of discretion in City’s findings that the Project is consistent with applicable zoning regulations for parking. In light of the court’s analysis above, the court need not reach City’s contention that the state Density Bonus Law (“DBL”) controls over LAMC section 12.21.A.5(h). (Oppo. 18.)

Petitioner argues that “[t]he Project violates LADOT policies requiring a minimum 20-foot setback between the property line and the security gates for the Project.” (OB 9-10, citing RJN Exh. 4, AR 10606, 12515, and 12502.)

Petitioner cites a letter from a City traffic engineer stating that the Project should be subject to the following condition: “any security gates should be a minimum 20 feet from the property line.” (AR 10606.) Petitioner represents, without citation to the record, that this condition was based on the LADOT Manual of Policies and Procedures, submitted with Petitioner’s request for judicial notice. (OB 9, citing RJN Exh. 4.) As with the LADBS bulletin discussed above, Petitioner does not show that the LADOT Manual of Policies and Procedures is a zoning regulation within the meaning of section 15332(a).

Moreover, even if the LADOT Manual is a zoning regulation subject to section 15332(a), substantial evidence supports that the Project would be consistent with the setback condition. Petitioner’s expert opined that, “given the site plan and required setbacks, it does not appear feasible” for this condition to be met. (AR 12515.) In response to Petitioner’s expert’s comment, the applicant stated that “no security gate is identified for the project at this time” and “should a security gate be provided, it would be located approximately 70-feet into the subject site at the location where the open-air driveway stops and the building structure begins.” (AR 12548.) Petitioner cites no evidence that the applicant’s response was incorrect. The applicant’s response is substantial evidence that the Project either would have no security gate, or that any security gate would comply with the 20-foot setback condition.

In reply, Petitioner does not rebut City’s evidence, but contends that City “practically admits to improper project segmentation in violation of CEQA.” (Reply 11:7-8.) Petitioner does not show good cause to raise this segmentation argument in reply. Also, Petitioner provides no legal analysis in support. For both reasons, the court finds this reply argument to be unpersuasive.

Petitioner asserts that City abused its discretion by approving reductions in vehicle parking based on bicycle parking reductions in LAMC section 12.21.A.4 and 12.22.A.25(d). (OB 10-11.)

City approved the parking reduction in Option 1 of LAMC section 12.22.A.25(d) of City’s Density Bonus Ordinance, which reduced required parking for the Project to 132 spaces. (AR 29, 5151.) City also approved a reduction for five (5) additional vehicular parking spaces to 127 total parking spaces based on LAMC section 12.21.A.4, which authorizes reductions in vehicle parking and replacement with bicycle parking in certain circumstances. (See AR 29; Pet. RJN Exh. 1.)

The relevant, unnumbered paragraph of LAMC section 12.21.A.4 provides as follows: “Residential buildings, including hotels, motels and apartment hotels, may replace 10 percent of the required automobile parking with bicycle parking. Automobile parking spaces for residential projects or buildings located within 1,500 feet of a major transit stop, as defined in Subdivision (b) of Section 21155 of the California Public Resources Code, may replace up to 15 percent of the required automobile parking spaces with bicycle parking. If a residential building includes at least the minimum number of restricted affordable units to receive a density bonus under Section 12.22 A.25., then 30 percent of the required automobile parking may be replaced. In such cases, the replacement of automobile parking with bicycle parking shall be implemented in lieu of the parking options in Section 12.22 A.25.(d).”

Petitioner’s expert asserted that Real Party was “double dipping on the parking reduction” when it combined Option 1 from section 12.22.A.25(d) and the 10% reduction from the first sentence of the paragraph of section 12.21.A.4 quoted above. (AR 12515.) In response, Real Party’s expert cited the City’s Zoning Code Manual and Commentary (Fourth Edition). (AR 12547; Pet. RJN Exh. 2.) The Zoning Manual interprets section 12.21.A.4 such that “[t]he 10% or 15% replacement can be combined with the parking reduction per section 12.22A25(d),” but the “special” 30% reduction for a project that has received a density bonus “shall not apply to projects that received a parking reduction per section 12.22.A.25(d).” (Pet. RJN Exh. 2.)

Petitioner does not dispute that City calculated the parking reduction consistent with the interpretation of section 12.21.A.4 set forth in the Zoning Manual. Petitioner contends that the interpretation in the Zoning Manual conflicts with the plain language of the ordinance, is unreasonable, was not adopted through formal administrative procedure requirements, and is entitled to no deference from the court. (OB 10-11; Reply 11-12.) City contends that “City’s interpretation of its own ordinances” is entitled to great deference and must be respected unless it is unreasonable. (Oppo. 20, citing Old East Davis, supra, 73 Cal.App.5th at 914.)

The Zoning Manual “provides a cumulative summary of more than 230 written policies and interpretations made by the Department of Building and Safety, the Department of City Planning, and the Office of the City Attorney pertaining to the interpretation and administration of specific sections of the City of Los Angeles Planning and Zoning Code.” (Pet. RJN Exh. 2.) Contrary to Petitioner’s assertion, City’s interpretation of its own zoning regulations, as reflected in the Zoning Manual, is not similar to an agency’s interpretation of a state or federal law. (See OB 10:25-11:2.) “A court is more likely to defer to an agency's interpretation of its own regulation than to its interpretation of a statute, since the agency is likely to be intimately familiar with regulations it authored and sensitive to the practical implications of one interpretation over another.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12.)

The Zoning Manual is a “Fourth Edition” and appears to include long-standing interpretations of the zoning code by various city agencies, not a single staff person and not only LADBS. Petitioner cites no evidence that City has been inconsistent in its interpretation of the part of section 12.21.A.4 at issue. “Consistent administrative construction of a statute, especially when it originates with an agency that is charged with putting the statutory machinery into effect, is accorded great weight.’” (Ste. Marie v. Riverside County Regional Park & Open-Space Dist. (2009) 46 Cal.4th 282, 292-293.) “Significant factors to consider include whether the administrative interpretation has been formally adopted by the agency or is instead in the form of an advice letter from a single staff member, and whether the interpretation is long-standing and has been consistently maintained.” (Ibid.) “Under these circumstances, the administrative practice will be upheld ‘unless it is clearly erroneous or unauthorized.’” (Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1257.) City’s interpretation is not clearly erroneous or unreasonable.

In any event, even if the court gives no deference to the Zoning Manual, the court finds City’s interpretation to be more reasonable. The last sentence of the unnumbered paragraph begins with the language “In such cases …,” impliedly referring to the immediately preceding sentence which applies when the residential building has at least the minimum number of restricted affordable units and has received a density bonus. If the last sentence was intended to mean that any replacement of automobile parking with bicycle parking under the paragraph is in lieu of the parking options in Section 12.22.A.25(d), the sentence would have begun “In all cases” or omitted the prefatory words entirely. Notably, unlike the 30% reduction, the 10% and 15% parking reductions are not tied to including “at least the minimum number of restricted affordable units to receive a density bonus under Section 12.22 A.25.” The court agrees with City’s interpretation of its ordinance.

Petitioner does not show a prejudicial abuse of discretion in City’s finding of consistency with LAMC sections 12.21.A.4 and 12.22.A.25.(d).

Petitioner contends that City erred by finding that “Pacific Avenue is the Primary Frontage per the CPIO while 14th Street is the Front Yard per the LAMC.” Petitioner contends that, pursuant to ordinance, the CPIO supersedes the LAMC if there is a conflict. (OB 11, citing 5177.)

In the opening brief and reply, Petitioner fails to provide any discussion of the definitions of “Front Yard” in the LAMC and “Primary Frontage” in the CPIO to support its position that there was a conflict that City needed to resolve in favor of the CPIO. (See OB 11 and Reply 12.) Accordingly, Petitioner fails to meet its initial burden of proof under CEQA. (See e.g. Defend the Bay, supra, 119 Cal.App.4th at 1266.)

Moreover, contrary to Petitioner’s assertion (OB 11:23-26), City made sufficient findings that Pacific Avenue is the Primary Frontage and 14^th Street is the Front Yard. (See AR 3398, 7087, 39.) City defends those findings in opposition with a discussion of the relevant statutory definitions. (Oppo. 21-22.) Petitioner provides no substantive response in reply. (Reply 12; Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

City’s interpretation of the relevant provisions of the CPIO and LAMC is entitled to some deference, and Petitioner does not show that City’s interpretation was unreasonable. The Project site is located on the northwestern corner of Pacific Avenue and 14^th Street. (AR 26, 10607 [site plan].) The site has 210 feet of frontage on Pacific Avenue and 150 feet of frontage on 14th Street. (AR 26, 10236.) Based on the definitions of “lot line, front” and “yard, front” in section 12.03 of the LAMC, City could reasonably find that the southern lot line adjoining 14^th Street is the Front Lot Line. (AR 10236; City RJN Exh. A.)[1] City asserts, and Petitioner does not dispute in reply, that a front yard is not required because the Project site is located in the C2 zone. (Oppo. 21; see AR 3398.) In this case, the front lot line was relevant to the determination of rear yard setback for purposes of the LAMC. (AR 3398.)

The CPIO defines “Primary Frontage” relative to the “Primary Lot Line.” (AR 6188.) Where a lot fronts on more than one public street, the CPIO requires the Director of Planning to determine the “Primary Lot Line based on neighborhood characteristics, including the designation of the abutting streets and the dimensions of the subject lot.” (AR 6188.) The City’s findings and decision are reasonably interpreted to designate the Project’s frontage on Pacific Avenue to be the “Primary Lot Line” for purposes of the CPIO. (See AR 3398, 5177, 7087.) Petitioner does not show, with discussion of the record evidence, that this determination was inconsistent with the purposes in the CPIO. (See, e.g., AR 6186 [purpose of CPIO District are “to reinforce the vibrancy of districts through pedestrian-oriented design and development”, among others].) Because “Primary Frontage” and “Front Yard” have different meanings under the CPIO and LAMC, City could reasonably designate Pacific Avenue to be the Primary Frontage and 14^th Street to be the Front Lot Line for purpose of designating a “Rear Yard.” Petitioner does not show a prejudicial abuse of discretion in City’s finding of consistency with the CPIO and LAMC related to zoning yard requirements.

Petitioner also points out that it objected below that the proposed structure and balconies extend into the 16-foot setback required for a rear yard. (OB 11, citing AR 6977.) However, under the DBL, Real Party “requested an Off-Menu Incentive for a reduced yard, and proposes a 5-foot rear yard setback in lieu of the 16 feet otherwise required.” (AR 39.) City granted that incentive and made the findings required by the DBL to do so. (AR 38-40.)

Respondents also cite evidence, which Petitioner does not rebut, that the Project was revised to remove any balconies that conflicted with transitional height requirements. (Oppo. 37:3-4, citing AR 31, 7015.) Petitioner cites no evidence that the balconies, as approved, encroached into the approved setback.

Petitioner asserts that the Project “failed to comply with transitional height requirements in CPIO Section IV-2-A.3(b).” (OB 12; Reply 12-13.) In this section of its briefs, Petitioner repeatedly cites to AR 3980, a page cite that has nothing to do with Petitioner’s transitional height argument. (OB 12; Reply 12-13.) Certain citations in footnote 1 of the reply also appear irrelevant to the transition height issue. (See Reply 13, fn. 1, citing AR 12505, 12584.)

As the parties agree, CPIO section IV-2.A.3(a) provides the relevant transition height standard, and states: “Where the rear or side yard property line is contiguous with the residentially zoned lot, the structure shall be set back or stepped back one foot for every foot in height as measured 15 feet above grade at the shared property line.” (AR 6215; see Reply 12-13.)

Petitioner asserts that unlike the transitional height measured as a 45-degree plane for the Central Commercial subarea, the “transitional height for the Coastal Commercial subarea applies to the entirety of ‘the structure’ and not merely ‘portions of the structure.’” (OB 12.) Relatedly, Petitioner asserts that “the entire structure must be set back from the shared property line by an amount equal to the building height minus the elevation at the property line plus 15 feet, or 29 feet, 6 inches.” (Reply 12-13.) Petitioner’s interpretation of CPIO section IV-2.A.3(a) conflicts with the plain language, which requires the structure to be set back “one foot for every foot in height as measured 15 feet above grade at the shared property line.” (AR 6215.) Although this section does not expressly specify a 45-degree plane, the application of a “foot-for-foot” setback appears to be the same. Petitioner’s contrary interpretation leads to absurd results whereby the entire structures for taller buildings would require an exceptionally large setback (e.g., 29 feet, 6 inches, as argued by Petitioner here.) Section IV-2.A.3 states that projects “shall transition” in the manner set forth in (a) and (b). Petitioner’s interpretation is inconsistent with the concept of “transitional height,” which suggests a gradual scaling of height rather than setting back of the entire structure.

City found the transitional height requirement was met, and that finding is supported by substantial evidence in the record. (AR 30, 5184-85, 6603-04.) Petitioner’s argument are not supported by its own record citations. Petitioner cites an opinion of an opposing expert that acknowledged that a “45-degree step-back” was required for the Project, and also a diagram from its members referring to “the required 45 degree angle.” (Reply 13, fn. 1, citing AR 12515 and 12533.)

Petitioner does not show a prejudicial abuse of discretion in City’s finding of consistency with the transitional height requirement of CPIO section IV-2.A.3(a).

Petitioner contends that the “the Project improperly requested four incentives or concessions, whereas State Density Bonus Law and the LAMC provide for a maximum of three incentives.” (OB 12; see also OB 17-18.) The court decided this same question of law in its ruling on Respondents’ motion for judgment on the pleadings dated March 24, 2022, concluding that “the State DBL expressly allows for waivers in addition to the incentives authorized by the DBL.” (Ruling at 13-15.) For the reasons discussed in the Court’s ruling and also further discussed below for Petitioner’s zoning code claims, Petitioner does not show a prejudicial abuse of discretion in City’s finding of consistency with the Density Bonus Ordinance.

Based on the foregoing, substantial evidence supports all of City’s findings for the Class 32 exemption that the Project is consistent with the applicable zoning regulations. Petitioner does not show a prejudicial abuse of discretion in those findings.

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

Trip Generation Rates. Petitioner contends that “the Traffic Analysis improperly characterized trip generation rates for the affordable dwelling units by using trip generation rates for permanent supportive housing, thereby substantially underestimating operational emissions for the Project ….” (OB 13, citing AR 9806.) As phrased, this argument also concerns potential air quality impacts, discussed below. Petitioner develops no argument that the trip generation rates prove that no substantial evidence supports the City’s finding that the Project would not result in significant effects related to traffic. (OB 13:7-10.) In any event, Petitioner only cites to its attorney’s comment letter, which also did not explain how use of “trip generation rates for affordable units” could result in any significant environmental effect. (AR 9806.) Air quality and traffic impacts are technical issues, and the attorney does not show expert qualification to opine on those issues. “[I]nterpretation of technical or scientific information requires expert evaluation.” (Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 690.) Petitioner’s cited evidence for this argument is “mere argument and unsubstantiated opinion” and not substantial evidence. (Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 580.) Finally, the Project traffic expert responded to Petitioner’s comments, explaining the traffic analysis “employed the most conservative (highest) of the affordable vehicle trip generation rates, which were the ‘Family Housing’ category.” (AR 10249.) The traffic expert’s opinions about the sufficiency of trip generation rates are substantial evidence in support of City’s CEQA findings related to traffic.

Haul Routes. Petitioner also contends that City “failed to identify the haul route for exporting 23,348 cubic yards of soil,” which allegedly “masked the true extent of impacts as queues of trucks would pose a hazard to schools and to bicyclists and pedestrians.” Petitioner also contends that “the amount of soil removal shifted several times so Petitioner could not determine exactly how much would be hauled.” (OB 13, citing AR 18883, 15250, 18681, 14884.)

Petitioner’s arguments about haul routes are inadequate to prove an abuse of discretion under CEQA. Petitioner fails to “lay out the evidence favorable to the other side and show why it is lacking.” (Defend the Bay, supra, 119 Cal.App.4th at 1266.) Moreover, Petitioner cites no substantial evidence of any potentially significant impact on the environment related to the Project haul routes. Petitioner cites a response to a comment about use of tandem parking, which has no relevance to Petitioner’s haul route argument. (AR 18883.) Petitioner also cites an email from a city resident asserting that “haul routes must be considered when determining cumulative impacts, but they were not,” (AR 15250), and a comment from an interested party stating that there is a lack of “defined hauling routes during construction” making “assessment of air quality, noise, and traffic impacts impossible” (AR 18681.) Petitioner also cites an email stating that there were inconsistencies in City’s documentation regarding the amount of soil to be exported. (AR 14884.) None of these commenters showed expertise on traffic, noise, or air quality issues, and these comment letters provided no analysis of how alleged inadequacies in the haul route or soil export data showed a significant impact on the environment. Furthermore, in the opening brief, Petitioner provided no context for these comments with discussion of City’s evidence that the Project haul routes would not have a significant environmental effect. Accordingly, Petitioner did not meet its initial burden to prove a prejudicial abuse of discretion in City’s CEQA findings related to the Project haul route.

In opposition, Respondents cite evidence that Project’s experts and Petitioner’s expert (SWAPE) used the exact same values for soil export (23,248 cubic yards of soil), showing no confusion. (Oppo. 24, fn. 10, citing AR 299, 313-313, 10646.) Respondents cite evidence that the estimated haul route for the Project would avoid Pacific Avenue, which is included in City’s “High Injury Network,” and would instead use 14^th Street and travel west to Gaffey Street to access the freeway. (OB 25, citing AR 10257, 240-241.) Respondents also point out that LADOT recommended a condition of approval requiring submittal of a construction worksite traffic control plan. The plan “should show the location of any roadway or sidewalk closures, traffic detours, haul routes …..” (AR 10606.) Respondents’ cited evidence generally supports a conclusion that substantial evidence supports City’s finding that the Project would not result in significant effects related to traffic.

In reply, Petitioner argues that “the City has failed to support its finding that the Project would not result in significant traffic hazard impacts with substantial evidence.” (Reply 18.) Petitioner seeks to make new arguments concerning haul routes that were not presented in the opening brief, including that “Gaffey Street is also included in the City’s High Injury Network” and “the Project lacks an enforceable mitigation measure to ensure haul trips do not use Pacific Avenue.” (Reply 20, citing AR 9203.) “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 make entirely new arguments in reply.

In any event, Petitioner’s reply arguments do not show that substantial evidence does not support City’s findings. Petitioner cites its attorney’s comment letter, but the attorney does not show expertise in technical issues related to traffic. Furthermore, the cited page does not state that Gaffey Street is in City’s High Injury Network, and, even if it is a traffic impacted or “high injury” street, the letter does not provide a sufficient discussion of the evidence to support a conclusion that the estimated haul route will cause a significant impact on the environment, including with respect to “hazard to schools and to bicyclists and pedestrians.” (OB 13.) Petitioner has not disputed City’s contention that “the Project does not require a haul route permit because it does not involve the subdivision of land … and is not located in an area designated ‘hillside.’” (Oppo. 25, citing LAMC § 17.13 and § 91.7006.7.5; see City RJN Exh. B, C.) While Petitioner asserts in reply that City needed a mitigation measure to ensure haul trips do not use Pacific Avenue, Petitioner also concedes that any mitigation is not “part of the project.” (Reply 20, citing Lotus v. Dept. of Transportation (2014) 223 Cal.App.4th 645, 655.) Petitioner has not cited substantial evidence of a significant impact related to traffic caused by the Project haul routes.

Parking, Bicycle Parking, and Driveway Reservoirs. Petitioner incorporates its zoning arguments, analyzed above, and contends that the Project’s inconsistencies with “zoning standards for parking, bicycle parking and driveway reservoirs” conflicts with a LADOT guideline related to the “circulation system.” (OB 13-14.)

As discussed above, substantial evidence supports City’s CEQA finding of consistency with City’s zoning regulations, including with respect parking, bicycle parking, and “driveway reservoirs.” For the same reasons, Petitioner does not show that alleged inconsistencies with zoning standards establish an abuse of discretion in City’s CEQA finding of no significant effect related to traffic. To the extent Petitioner makes arguments concerning traffic on the Project site, including circulation issues related to tandem parking, Petitioner also does not raise a CEQA question. Parking and circulation at the Project site are not environmental impacts. (Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 825 [“[T]raffic impacts for CEQA purposes relate to the flow of vehicles in public spaces…. The movement of cars on the property affects only those persons on the property, not the general public”].)

Relatedly, Petitioner states that the Project is located on Pacific Avenue, within City’s High Injury Network and Bicycle Network, and asserts that “[t]he Project’s high traffic volumes would result in significant transportation hazard risks to bicyclists and pedestrians.” (OB 16, citing 9204, 10257-58.) Petitioner does not cite any expert opinion concluding that the Project’s location on Pacific Avenue and alleged high traffic volumes will result in significant transportation hazard risks to bicyclists and pedestrians. In reply, Petitioner acknowledges that it relies on “common-sense arguments … demonstrating that the Project would result in a substantial increase in traffic and turning movements on a street already identified as hazardous to pedestrians and bicyclists.” (Reply 18.) The comment letter of Petitioner’s attorney is not substantial evidence for that issue, as the attorney simply asserts that “the additional project-generated traffic through this intersection has the potential to increase accident risk at this location.” (AR 9204 [bold italics added].) The attorney provides no evidence that, compared to the Project’s baseline, any changes in traffic-related hazards would be significant. Finally, as argued in opposition, LADOT-approved Traffic Reports concluded the Project would not have any significant traffic impacts, as did the Project expert. (Oppo. 26, citing AR 158-224, 10480-10508, 10601-10609, 10490-10493.) These expert opinions are substantial evidence in support of City’s findings.

Based on the foregoing, substantial evidence supports City’s findings for the Class 32 exemption that approval of the Project would not result in any significant effects relating to traffic.

Petitioner contends that City’s noise findings are not supported by substantial evidence because Petitioner’s noise expert disagreed with the analysis of the Project noise expert, who opined that best management practices and regulatory compliance measures will reduce construction noise to less than significant. (OB 14-15; Reply 14-17.) Petitioner also faults City’s construction noise analysis for failing to account for the height of two sensitive receptors near the Project site. (Ibid.)

City made the following findings regarding Project noise: “The Project must comply with the adopted City of Los Angeles Noise Ordinances No. 144,331 and 161,574 and LAMC Section 41.40 as indicated above in RC-NO-1, LAMC Section 112.05, as well as any subsequent Ordinances, which prohibit the emission or creation of noise beyond certain levels. These Ordinances cover both operational noise levels (i.e., post-construction), and any construction noise impacts. As a result of this mandatory compliance, the proposed Project will not result in any significant noise impacts. Furthermore, the Noise Impact Analysis prepared by DKA Planning dated November 2019 confirmed that the Project would not result in construction-related or operational noise impacts on the environment….” (AR 16.)

Best Management Practices. In the cited noise analysis, DKA Planning found that the Project would not have significant construction noise impacts because the Project incorporates best management practices, specifically noise barriers, mufflers, and warming up equipment away from sensitive receptors. DKA Planning opined that those best practices would reduce construction noise sources by 20 dBA at a 50-foot reference distance. Applying this assumption, construction noise would be reduced to a maximum 65 dBA, 10 dBA below the LAMC section 112.05 threshold of 75 dBA. (AR 238-239, 12490-12491.) In addition, “Project construction noise levels at receptor locations were also modeled assuming a maximum noise reference level of 75 dBA Leq at 50 feet (Figure 1) during the grading phase.” (AR 238.) Based on this modeling, DKA Planning found that “construction noise levels at the nearest receptors could approach 69.7 dBA Leq, while noise levels would be considerably lower at other key receptors.” (Ibid.)

Petitioner’s expert disagreed with DKA Planning’s assumption that best management practices could reduce construction noise by 20 dBA. Petitioner’s expert stated: “The Noise Study asserts that construction best practices can reduce noise levels by 20 dBA. This assumption is entirely unsubstantiated and practically infeasible. This much noise reduction would not be expected even with the most substantial physical barriers that shield adjacent sensitive receptors from line of sight of construction activity. Given that the project will construct a 4-story/45-foot high building, it would be practically infeasible to build a screening wall high enough to block that much construction noise. Adjacent sensitive residential buildings are also multiple stories high, thus further reducing any potential noise reduction from line of sight

In response to this comment, Real Party’s expert stated: “The Noise Report references the potential benefits from best practices but uses the SoundPLAN Essential model to estimate noise from the construction site, relying on the LAMC’s limitation of 75 dBA of noise from powered equipment at 50 feet of distance. This City requirement will reduce noise levels from the construction site, which are then used to estimate off-site noise impacts during construction using industry-accepted ISO 9613-2 methodologies to estimate noise attenuation to nearby sensitive receptors based on distance, presence of intervening structures, topography, and other environmental factors. Furthermore, up to 20 dBA attenuation from a sound barrier has been established. (Caltrans, Technical Noise Supplement (TeNS), 2009, Chapter 2.1.4.2.) Construction noise impacts were determined to be less than significant. The Commenter presents no substantial evidence of a potential noise impact.” (AR 12491.) DKA Planning also responded to several other comments of Petitioner’s noise experts. (AR 12489-12493.)

Petitioner relies on a dispute between DKA Planning and Petitioner’s expert to challenge the noise findings. However, “[d]isagreements among experts do not suggest an abuse of discretion on the part of the [agency].” (Ebbetts Pass Forest Watch v. Dept. of Forestry & Fire Protection (2004) 123 Cal.App.4th 1331, 1346.) “When the evidence on an issue conflicts, the decisionmaker is ‘permitted to give more weight to some of the evidence ….’” (Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 349.) On substantial evidence review, this court cannot reweigh the expert evidence.

In reply, Petitioner argues that it does not raise a “disagreement among experts.” Rather, according to Petitioner, “the applicant’s expert opinion is not supported by any facts that best management practices will reduce the noise to a less than significant level (less than 75 dBA).” (Reply 15.) Petitioner argues that DKA Planning’s noise analysis only assumed that a noise wall would be used on the westerly lot line, and that DKA Planning “failed to quantify the reduction from sound walls versus mufflers, instead providing a blanket 20-dBA reduction for all reference noise levels for combined mufflers and sound walls.” (Reply 15, citing AR 238-239, Figure 1.) The court does not find these arguments persuasive.

Contrary to Petitioner’s assertion, DKA Planning did not assume a 20 dBA reduction based solely on noise walls. Rather, it assumed a 20 dBA reduction “from use of advanced exhaust mufflers and/or temporary sound barriers.” (AR 238, Table 4.) While Petitioner’s expert disagreed that this reduction was feasible, the validity of DKA Planning’s assumption was clearly a matter for experts. Petitioner does not show, with record citation, that DKA Planning’s assumption was devoid of factual support. Notably, DKA Planning cited a CalTrans study finding that “up to 20 dBA attenuation from a sound barrier has been established.” (AR 12491.) Petitioner also does not distinguish between a permanent wall, which could function as a sound barrier for operational noise, and “temporary sound barriers” that could presumably be used during construction on all sides of the Project site.

Notably, Petitioner did not raise any issue in the opening brief about there being only a noise barrier on the westerly side of the Project site. (OB 14-15.) While the court has considered the point, Petitioner should have raised it in the opening brief so Respondents could address it in their written opposition. Respondents should address this issue at the hearing.

Furthermore, Petitioner does not discuss all relevant evidence supporting City’s finding. DKA Planning did not rely solely on an assumption of best practices in its noise analysis. DKA Planning also “use[d] the SoundPLAN Essential model to estimate noise from the construction site.” (AR 12491.) City’s noise analysis states that “[t]his software package considers reference equipment noise levels, noise management techniques, distance to receptors, and any attenuating features to predict noise levels from sources like construction equipment.” (AR 235.) Petitioner has not discussed that part of DKA Planning’s analysis or cited any conflicting expert modeling.

Height of Nearby Receptors. Petitioner’s expert faulted DKA Planning for omitting two three-story multifamily structures as receptors in the noise impacts analysis. (AR 10217-18.) Petitioner contends that this contrary expert opinion undermines City’s noise findings because best management practices, such as sound barriers, would be less effective against three-story residences “which have direct line-of-sight to noise sources such as graders and other heavy equipment.” (OB 14, citing AR 10217-18.)

Contrary to Petitioner’s assertion, DKA Planning conducted noise modeling for an area that included the two receptors cited in Petitioner’s brief (501 West 14th Street and 1318 Pacific Avenue.) (AR 239, Figure 1.) Figure 1, titled “Construction Noise Contours,” shows modeling of project construction noise at receptor locations. (AR 238-239.) The figure has color coding that ranges from less than 24 dBA to greater than 42 dBA (in purple), and that shows only nearby receptors in the purple range that could possibly experience noise greater than 75 dBA. While not conclusive evidence of no significant noise impact, this figure is generally consistent with City’s noise findings and shows that DKA Planning did consider, at least generally, all nearby receptors in its analysis.

Significantly, DKA Planning also specifically estimated construction noise at four receptor locations, including residences at 524 West 14^th Street, 10 feet away from the Project site. (AR 239, 249, 12490.) DKA Planning also responded to and disagreed with the opinion of Petitioner’s expert that City needed to specifically estimate the construction noise at more nearby receptors, including 501 West 14th Street and 1318 Pacific Avenue. DKA Planning stated:

Per City of Los Angeles guidelines, the noise analysis models the construction impacts at several sensitive receptor locations within 500 feet, including a worst-case scenario analysis of the residences at 524 West 14th Street that are ten feet away from the Project Site. The proximity and orientation of this analyzed receptor reveals construction noise impacts that would be greater than either of the most distant receptors cited in the comment. Noise impacts were determined to be less than significant. As the commentor knows, while there is an endless number of sensitive receptors in the vicinity of the Project Site, the CEQA analysis is not required to analyze every last receptor. Instead, the analysis looked at those receptors most likely to be impacted by the Project’s construction given their proximity, line-of-sight, and presence of other attenuating factors. This was done with the selection of representative sensitive receptors that surround the Project Site. Any more distant receptors would have lesser impacts due to the many factors that would attenuate any noise from the Project Site.

Petitioner claims that City did not consider the height of receptors. (OB 14-15; Reply 16-17.) However, the record contains substantial evidence that DKA Planning did consider such factors in selecting receptors, including “proximity, line-of-sight, and presence of other attenuating factors.” (AR 12490; see also AR 228, 238-239, 12491 [discussing noise attenuation from various factors, including excavation].) Furthermore, “CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate the impacts of a proposed project. The fact that additional studies might be helpful does not mean that they are required.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1396.) The expert opinion of DKA Planning is substantial evidence that City conducted a reasonable noise analysis and was not required to conduct specific noise estimates for more receptors. The disagreement between experts regarding the choice of receptors for the noise estimates does not show City’s findings lack substantial evidence. (Ebbetts Pass Forest Watch, supra, 123 Cal.App.4th at 1346.)

Improper Reply Arguments re: Noise Estimates. In reply, Petitioner seeks to provide its own estimates of Project construction noise by excluding a 15 dBA reduction for sound barriers to receptors that, according to Petitioner, will not benefit from any sound barrier. (Reply 15:22-16:13.) Petitioner cites a statement in City’s noise report that “sound barriers can generally reduce noise levels by up to 15 dBA.” (Reply 15, citing AR 228.) Petitioner then asserts, without citation to expert analysis, that “if one assumes that 15 dBA was attributed to noise walls as a ‘best management practice,’ then all of the construction activity identified in Table 4 except backhoes exceeds the 75 dBA limit at 50 feet.” (Reply 15.) Petitioner also apparently asserts that no noise reduction should be applied for best management practices at certain receptors. (Ibid.) Relatedly, Petitioner opines that “without noise walls, the Noise Technical Report’s own calculations demonstrate equipment would generate up to 85 dBA at a distance of 50 feet from the noise source.” (Reply 17:6-19.)

Petitioner does not show good cause to raise these arguments in reply, as they are not rebuttal but rather entirely new factual arguments about City’s noise estimates for certain construction equipment and also at certain nearby receptors. Even if considered, Petitioner’s calculations are unclear and not supported by citation to expert analysis in the record. Estimating the amount of construction noise for specific equipment and at specific locations is clearly a matter for experts, and mere argument in Petitioner’s brief is not substantial evidence.

Based on the foregoing, substantial evidence supports City’s findings for the Class 32 exemption that approval of the Project would not result in any significant effects relating to noise. Petitioner does not show a prejudicial abuse of discretion in those findings.

City made the following findings: “The Project’s potential air quality effects were evaluated by estimating the potential construction and operations emissions of criteria pollutants, and comparing those levels to significance thresholds provided by the Southern California Air Quality Management District (SCAQMD). The Project’s emissions were estimated using the CalEEMod 2016.3.2 model (output October 29, 2019) for the purposes of evaluating air quality impacts of proposed projects and summarized in the Air Quality Technical Report prepared by DKA Planning dated November 2019. The analysis took into account construction activity emissions during demolition, grading building construction, and architectural coating, as well as effects to sensitive receptors. The analysis confirms that the Project would not exceed SCAQMD significance thresholds for air quality impacts….” (AR 16.)

Length of Architectural Coatings Phase. Petitioner contends that City’s findings rely on a “clearly erroneous Air Quality Report” that “improperly extended the length of certain construction phases, including the Architectural Coating phase, from the default value of 5 days to a manifestly unreasonable 110 day” in the CalEEMod User’s Guide. Petitioner relies on expert letters of Soil/Water/Air Protection Enterprise (“SWAPE”) in support of its position. (OB 15-16.)

In comment letters, SWAPE asserted that Real Party’s expert, DKA Planning, had no basis to increase the “architectural coating phase” in the CalEEMod air emissions model from the default of 5 days to 110 days. (AR 10629-30.) SWAPE stated that “[t]his default value is based on a SCAQMD construction survey, and thus is based on reasonable construction period data.” (Ibid.) SWAPE opined that “CalEEMod default values should only be changed when project-specific information, supported by substantial evidence, is available.” (Ibid.) SWAPE also noted that DKA Planning originally used a 88-day architectural coating period in its modeling, and then provided with its response to SWAPE’s first comment CalEEMod Output Files demonstrating that it used a 110-day architectural coating period. Thus, SWAPE asserted that DKA Planning’s modeling used inconsistent and “unsupported” time periods for architectural coating. (AR 10628-30; see also AR 10523-25 [CalEEMod Output Files].)

In its responses to SWAPE’s comments, DKA Planning explained the changes as follows:

The changes to the model’s default duration of each construction phase was based on the project-specific schedule proposed as provided by the Project Applicant directly to DKA Planning. (See Attachment C: Original Air Quality Data Needs Worksheet and Attachment D: Updated Data Needs Worksheet.) When project specific information is available it is appropriate to revise the CalEEMod default values. SWAPE incorrectly suggests that the “potential” construction schedule is not “accurate.” SWAPE has no basis to assume that the Applicant provided construction schedule is inaccurate. The schedule provided is the most accurate schedule that can be provided at this time and is appropriate for air quality construction modeling. It should be noted that all of the phase lengths are considerably longer than the default values thus more emissions were considered over time. As to SWAPE comments about the potential for increased daily emissions from a shorter phase period, there is basis to assume that, for example 112 days of architectural coating work could be compressed into 5 days. Again, the phase lengths are the best estimates by the Project Applicant for construction of this Project. (AR 10328.)

The schedule provided is the most accurate schedule that can be provided at this time and is appropriate for air quality construction modeling as opposed to using a generic set of default assumptions that are not specific to the Project at issue. The developer’s construction schedule includes 112 days of architectural coating work. Given the scale of the Project and its structures, including 220,725 square feet of indoor surfaces and 73,575 square feet of outdoor surfaces, applying sealants, paints, and other coatings will take far more than five days, which is a default assumption offered by the CalEEMod developers when there is no better project specific information. As discussed in the CalEEMod User’s Guide (Pages 30 through 31), the construction tab contains default information obtained from a survey conducted by SCAQMD of construction sites with a range of project types and sizes and provides default construction equipment list and phase length data based on the total lot acreage of a project. The Guide states: “If the user has more detailed site-specific equipment and phase information, the user should override the default values.” This is precisely what was done here. SWAPE has provided no basis, reasonable or otherwise, to revert to CalEEMod default values that are not specific to this Project. The citation of a 2,100% increase in the duration of architectural coatings is therefore a misleading citation based on an unrealistic baseline of five days to apply coatings to this Project.

Petitioner has not shown a prejudicial abuse of discretion in City’s findings. SWAPE acknowledged in its comments that the CalEEMod default values could be modified when “when project-specific information, supported by substantial evidence, is available.” Here, DKA Planning’s responses are substantial evidence that “the changes to the model’s default duration of each construction phase was based on the project-specific schedule proposed as provided by the Project Applicant directly to DKA Planning.”

In reply, Petitioner argues that “neither the consultant’s report nor the JOB [opposition brief] addressed the discrepancy between the 88-day duration of the architectural coating phase described in the original air quality technical report (AR 1392) and the 110-day duration included in the consultant’s response to SWAPE.” (Reply 21.) Subject to argument, the court concludes that DKA Planning’s responses do explain the change from 88 to 110 days. Specifically, DKA Planning states that it changed the architectural coating period based on project-specific information from the project applicant. DKA Planning’s responses are substantial evidence. Accordingly, Petitioner does not show any prejudicial abuse of discretion in the City’s air quality findings that were based on this modeling.

Health Risk Assessment. In the opening brief, Petitioner tersely argues that SWAPE prepared a screening level health risk assessment (“HRA”) that corrected “unsubstantiated assumptions in the [Project] Air Quality Report including improperly subtracting credits for previously-existing uses on the vacant site.” Petitioner states that SWAPE’s HRA found that child and lifetime cancer risks associated with the Project exceed the SCAQMD threshold of 10 in one million. (OB 15:25-16:2, citing AR 9613, 10638.)

The record contains extensive air quality analysis in support of City’s findings and that is relevant to Petitioner’s contentions that the Air Quality Report made “unsubstantial assumptions” and underestimated child and lifetime cancer risks. (See e.g. AR 269-313, 1885-2008, 10510-10558.) Petitioner provides no discussion of that conflicting evidence.

Respondents also cite an analysis of Air Quality Dynamics (“AQD”), an air quality expert, who opined that SWAPE’s “screening-level HRA” was flawed because it evaluated health risks using standards for industrial and commercial “stationary sources.” (Oppo. 29, citing AR 10510-513.) AQD opined that “emissions generated by construction and non-permitted operational sources are not subject to” the SCAQMD rules and agency regulations upon which SWAPE relied in its HRA. (AR 10512.) AQD then submitted its own HRA for the Project, which found no significant air quality impacts. (AR 10513-10558.) Petitioner did not discuss this expert evidence in the opening brief. In reply, Petitioner develops no argument that AQD’s opinions – i.e. that SWAPE’s HRA was flawed and that a different HRA found no significant impacts – are not substantial evidence in support of City’s findings.

Petitioner argues that Respondents’ cited evidence does not justify the exclusion of “previously-existing uses on the Project site.” (Reply 12:20-24.) However, Respondents did cite an expert opinion of AQD that conflicts with SWAPE’s HRA and finding of significant cancer risks from air emissions. (AR 9613-9620, 10513-10558.) The court cannot weigh these conflicting HRAs and expert opinions. “Disagreements among experts do not suggest an abuse of discretion on the part of the [agency].” (Ebbetts Pass Forest Watch, supra 123 Cal.App.4th at 1346.)

At the hearing, Respondents’ counsel should address, or clarify its response to, the argument made by Petitioner the Project Air Quality Report improperly subtracted operational emissions from existing land uses and thereby underestimated the net increase in operational emissions resulting from the Project. (OB 15:25-28; see section 2) at AR 9612-9613.) Subject to oral argument, the court concludes that Petitioner has not shown a prejudicial abuse of discretion in City’s air quality findings. Petitioner highlights a disagreement between experts, who each prepared HRAs, and each expert necessarily determined the estimated daily operations emissions as part of those analyses. Accordingly, the expert opinion of AQD cited by Respondents, along with other air quality analyses in the record, are substantial evidence in support of City’s findings.

Baseline Cancer Risk and Cumulative Air Impact. Petitioner also tersely argues that SWAPE noted that the Project site is in an area with significant “baseline excess cancer risk” and found that Project’s cumulative air quality impacts would be significant given that the Project site is located in proximity to several related projects. (OB 16, citing AR 10633.) Petitioner’s argument is unclear and unpersuasive. “The baseline for purposes of CEQA normally reflects the environmental conditions as they exist ‘at the time ... environmental analysis is commenced.’” (Bottini v. City of San Diego (2018) 27 Cal.App.5th 281, 303.) Thus, the issue under CEQA is whether the Project would have a significant impact compared to the baseline conditions, including “baseline excess cancer risk.” (See Cal. Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 388.) Here, consistent with this legal standard, the City relied on air quality analysis that focused on potential adverse change from baseline conditions. (See AR 12495-12496, 10510-10558.) Petitioner develops no argument to the contrary.

Petitioner also incorrectly states that SWAPE “concluded that the Project’s contribution to cumulative air quality impacts would be significant.” (OB 16, citing AR 10633.) Rather, SWAPE concluded: “the cumulative risk posed to nearby sensitive receptors to the Project in conjunction with the proposed sources of TACs in the vicinity of the Project site is unknown. Therefore, the proposed Project may result in a significant air quality impact that has not been previously identified or addressed.” (AR 10633.) Petitioner cites no other evidence to challenge City’s finding of no cumulative impacts related to air quality. (AR 17, 7371-72 (emphasis added); see also AR 12496.)

“[S]peculation that potential future projects similar to the one under consideration could cause a cumulative adverse impact is not sufficient to negate a categorical exemption.” (Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, 1050.) SWAPE’s speculation about “unknown” cumulative risk and opinion that the Project “may” result in an impact that “has not been … identified” is not sufficient to show a prejudicial abuse of discretion in City’s findings of no cumulative impacts.

Trip Generation Rates. As discussed above for the traffic analysis, Petitioner contends that “the Traffic Analysis improperly characterized trip generation rates for the affordable dwelling units by using trip generation rates for permanent supportive housing, thereby substantially underestimating operational emissions for the Project ….” (OB 13, citing AR 9806.) To the extent Petitioner raises this argument about air quality impacts, the court’s analysis above applies here as well. As stated above, Petitioner improperly relies on an attorney comment, not an expert opinion, and the traffic expert’s opinions relied upon by City are substantial evidence in support of City’s CEQA findings.

Based on the foregoing, substantial evidence supports City’s findings for the Class 32 exemption that approval of the Project would not result in any significant effects relating to air quality. Petitioner does not show a prejudicial abuse of discretion in those findings.

Petitioner argues that the City’s technical appendices for the Notice of Exemption (“NOE”) “were so riddled with inconsistencies that the City’s findings were not supported.” In particular, Petitioner argues there were inconsistencies in the City’s analyses of consistency with zoning regulations, trip generation rates, and haul routes. (OB 12-13.) The court has analyzed those contentions above with respect to City’s findings that the Project is consistent with zoning regulations and that approval of the Project would not result in any significant effects relating to traffic and air quality. For the reasons discussed above, the court finds substantial evidence in support of City’s CEQA findings. Petitioner’s contention that any alleged inconsistencies establish a prejudicial abuse of discretion is unpersuasive.

Petitioner also argues, very broadly, that the level of detail in the Project description was not sufficient “to enable adequate review of the Project’s impacts and eligibility for a Categorical Exemption.” (OB 13.) The court disagrees. The NOE is an optional document that can only be filed after Project approval. (CEQA Guidelines § 10561(d).) “Moreover, an NOE need only provide a ‘brief’ description of the approved project, state its location, and set forth reasons for the agency's finding of exemption. (CEQA Guidelines, § 15062, subd. (a).) Once the agency files a notice satisfying these basic requirements, thus alerting the public to the agency's decision and its basis, it is the public's obligation thereafter to determine whether a challenge to the project approval is appropriate. The Guidelines do not demand that the NOE itself disclose and explain all the arguable environmental implications, or all the grounds upon which such a challenge to the exemption determination might be based.” (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 514.)

“Once the agency establishes that the project is exempt, the burden shifts to the party challenging the exemption to show that the project is not exempt because it falls within one of the exceptions listed in Guidelines section 15300.2.” (Citizens, supra, 242 Cal.App.4th at 568.) As discussed above, City’s findings for the Class 32 exemption are supported by substantial evidence. Accordingly, Petitioner has the burden to show that the Project falls within one of the exceptions in section 15300.2.

“A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (CEQA Guidelines § 15300.2(c).)

The unusual circumstances exception may be established in one of two ways. “A party invoking the exception may establish an unusual circumstance without evidence of an environmental effect, by showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. In such a case, to render the exception applicable, the party need only show a reasonable possibility of a significant effect due to that unusual circumstance. Alternatively, … a party may establish an unusual circumstance with evidence that the project will have a significant environmental effect.” (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105.)

Here, Petitioner makes no argument that the first of these tests is met. (OB 16:22-27; Reply 21-22.) Rather, Petitioner incorporates the arguments analyzed above and asserts that it “has demonstrated that the Project will have significant noise, air quality and traffic impacts.” (OB 16.)

The court in Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, summarized the second test under Berkeley Hillside as follows:

In the second alternative under Berkeley Hillside, a challenger “may establish an unusual circumstance with evidence that the project will have a significant environmental effect.” “When it is shown ‘that a project otherwise covered by a categorical exemption will have a significant environmental effect, it necessarily follows that the project presents unusual circumstances.’ ” “But a challenger must establish more than just a fair argument that the project will have a significant environmental effect. A party challenging the exemption, must show that the project will have a significant environmental impact.” “In other words, a showing by substantial evidence that a project will have a significant effect on the environment satisfies both prongs of the unusual circumstances exception under the second method of establishing the exception.” (Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 819-820 [internal citations omitted].)

Petitioner develops no new arguments in support of the unusual circumstances exception, but rather incorporates its other CEQA arguments, which the court analyzed above. Petitioner does not show substantial evidence that the Project will have a significant effect on the environment.

“All exemptions for these classes [including Class 32] are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant.” (CEQA Guidelines § 15300.2(b).)

“Cumulative impacts’ refer to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts. (a) The individual effects may be changes resulting from a single project or a number of separate projects. (b) The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.” (CEQA Guidelines § 15355.)

The parties agree that the substantial evidence standard of review applies to the City’s determination that the cumulative impacts exception does not apply. (OB 8:11-12 and Oppo. 13; see Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, 1048.)

Petitioner only challenges the City’s finding that the Project’s air quality impacts would not be cumulatively significant. (OB 15-16.) The court has analyzed those arguments above, in the discussion of air quality impacts. As discussed above, Petitioner relies entirely on a speculative comment of SWAPE that there may be a cumulative impact related to air quality. (OB 16, citing AR 10633; see also Reply 20-21.) Petitioner cites no other evidence to challenge City’s findings of no cumulative impacts related to air quality. (AR 17, 7371-72; see also AR 12496.) “[S]peculation that potential future projects similar to the one under consideration could cause a cumulative adverse impact is not sufficient to negate a categorical exemption.” (Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, 1050.)

City’s finding that air quality impacts would not be cumulatively significant is supported by substantial evidence. Petitioner does not show a prejudicial abuse of discretion.

Petitioner contends that the Project violates the City’s zoning standards “for tandem parking, combining bicycle parking reductions with Density Bonus parking reductions and driveway reservoir spaces.” (OB 17.) These zoning arguments are entirely derivative of those analyzed above for purposes of CEQA. As discussed above, Petitioner does not show a prejudicial abuse of discretion in City’s findings.

Petitioner also argues City violated its Density Bonus Ordinance (LAMC § 12.22.A.25) by granting a waiver that was “equivalent” to a fourth incentive and because its findings are allegedly not supported by substantial evidence or sufficiently detailed. (OB 18.) These arguments, which relate to the state Density Bonus Law (“DBL”), are unpersuasive for the reasons discussed below.

“Government Code section 65915, commonly referred to as the ‘Density Bonus Law,’ was first enacted in 1979 with the aim to address the shortage of affordable housing in California…. ‘Although application of the statute can be complicated, its aim is fairly simple: When a developer agrees to construct a certain percentage of the units in a housing development for low- or very-low-income households, or to construct a senior citizen housing development, the city or county must grant the developer one or more itemized concessions and a ‘density bonus,’….” (Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755, 769.)

“When a developer agrees to include a specified percentage of affordable housing in a project, the Density Bonus Law grants that developer (1) a ‘density bonus;’ (2) ‘incentives and concessions;’ (3) ‘waivers or reductions’ of ‘development standards;’ and (4) prescribed ‘parking ratios.’” (Bankers Hill, supra, at 769 citing § 65915(b).) “[T]he incentives and concessions are intended to assist in lowering the cost to build a project that includes affordable housing by allowing the developer to avoid development standards…. The applicant is not required to prove the requested incentives will lead to cost reductions; the incentive is presumed to result in cost reductions and the city bears the burden to demonstrate otherwise if it intends to deny the incentive.” (Ibid.)

“[A] city must offer a waiver or reduction of development standards that would have the effect of physically precluding the construction of a development at the density, or with the requested incentives, permitted by the Density Bonus Law. (§ 65915, subd. (e)(1).) For example, if a city ordinance imposes a building height limitation, a city must waive that limitation for a development that is eligible for a density bonus if imposing the height limit would physically preclude construction of the proposed building with the requested incentives and at the density allowed by the Density Bonus Law. There are no financial criteria for granting a waiver.” (Id. at 770.)

“The Density Bonus Law includes very limited exceptions to its requirements and places the burden on a city to establish an exception applies. A concession or incentive may be refused if the city can establish it would not result in identifiable and actual cost reductions to provide for affordable housing costs. (§ 65915, subd. (d)(1)(A).) The only other exceptions to the requirement to grant incentives and concessions or waivers and reductions of standards require the city to find, based on substantial evidence, that doing so (1) would have ‘a specific, adverse impact ... upon public health and safety,’ (2) would have an adverse impact on any historic resource, or (3) would be contrary to state or federal law.” (Id. at 770-71.)

“The Density Bonus Law requires cities to adopt an ordinance to implement the state law and preempts any inconsistent local provisions. (Ibid.)

City’s Listing of On-Menu Incentives in the LAMC Does Not Constrain Which Off-Menu Incentives or Waivers May be Pursued and Approved Pursuant to the State DBL

In its ruling on MJOP, the court already considered Petitioner’s argument that City improperly granted a waiver as a “fourth incentive.” In its writ briefing, Petitioner largely repeats its prior arguments and does not persuade the court to reach a different result on this question of law.

The State DBL, Government Code Sections 65915 – 65918, governs incentives and waivers. The State DBL does not distinguish between on- and off-menu incentives. (See § 65915(k).) The State DBL expressly allows for waivers from development standards separate from concessions/incentives. (Compare § 65915(d) (incentives or concessions) with § 65915(e) (waiver or reduction of development standards).) Significantly to this case, the SBL expressly provides that grant of a waiver does not reduce the number of incentives or concessions a project can receive. “A proposal for the waiver or reduction of development standards pursuant to this subdivision shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subdivision (d).” Section 65915(e)(2).

As argued by Respondents, the State DBL expressly allows for waivers in addition to the incentives authorized by the DBL. Because the State DBL expressly allows for waivers from development standards “that will have the effect of physically precluding the construction of a development” meeting the State DBL criteria separate from concession or incentive, it is irrelevant that the waiver could have been sought as a concession or incentive. (§ 65915(e).) Moreover, State DBL contains no restriction as to what development standards can be “waived” as opposed to relief that may be granted via an incentive. (§ 65915(e).)

Petitioner asserts that City could not grant three incentives and a waiver under the State DBL and cites language from the City’s implementing ordinance, LAMC section 12.22.A.25(e)-(g). (OB 17-18.) However, as stated in several published appellate decisions, the State DBL “requires cities to adopt an ordinance to implement the state law and preempts any inconsistent local provisions. (Bankers Hill, supra, 74 Cal.App.5th at 755; see also Schreiber v. City of Los Angeles (2021) 69 Cal.App.5^th 549, 558 and Latinos Unidos Del Valle de Napa y Solano v. County of Napa (Latinos Unidos) (2013) 217 Cal.App.4th 1160, 1169 [voiding ordinance requiring larger percentage of affordable housing than provided in GC, § 65915].) To the extent Petitioner contends that any inconsistent provisions in LAMC section 12.22.A.25(e)-(g) prevail over the State DBL, the argument is contrary to law.

City Made Sufficient Findings Supporting its Approvals under the State DBL and LAMC Section 12.22.A.25; and City’s Findings Are Supported by Substantial Evidence

Petitioner contends that substantial evidence does not support City’s “findings that the Project would not have specific adverse impacts upon health and safety or the physical environment and that the incentives and waivers are required to provide for affirmative housing costs.” Petitioner also contends that City’s findings do not satisfy Topanga. (OB 18.) These arguments are unpersuasive.

As this Court previously ruled on Petitioner’s MJOP, “[n]either the State DBL nor the City’s ordinance requires the City to make findings that the density bonus and related incentives are necessary before approving them. Rather, the State DBL required the City to grant the incentives unless it found, based on substantial evidence, they are unnecessary in order to provide for affordable housing units.” (Ruling at 15; see Schreiber v. City of Los Angeles (2021) 69 Cal.App.5th 549, 592 [“By requiring the city to grant incentives unless it makes particular findings, the statute places the burden of proof on the city to overcome the presumption that incentives will result in cost reductions.”].)

Here, the City found that it could not make the findings necessary to deny the incentives:

Negative Finding 1: “The record does not contain substantial evidence that would allow the City Planning Commission to make a finding that the requested on- and off-menu incentives are not necessary to provide for affordable housing costs per State Law. . .”

Negative Finding 2: “There is no evidence in the record that the proposed density bonus incentive(s) will have a specific adverse impact . . . The finding that there is no evidence in the record that the proposed incentive(s) will have a specific adverse impact is further supported by the recommended CEQA finding.”

Negative Finding 3: “There is no evidence in the record that the proposed incentives are contrary to state or federal law.”

In Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515, the Supreme Court held that "implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." “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.) Significantly, 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.)

Given the legal standard that applies under the State DBL and the City’s Density Bonus ordinance, City’s findings satisfy Topanga. City provided a relatively detailed discussion of these negative findings, which are also supported by other findings, including those made under CEQA. (See AR 3-6.) Petitioner and the court can understand City’s “mode of analysis.”

The negative findings are also supported by substantial evidence. (See, e.g., AR 26–32 [Project Analysis], 33–34 [Density Bonus Conditions of Approval], 41–42, 10229–10230, 10234–10243.) Petitioner does not show, by citation to the record, that the requested on- and off-menu incentives are not necessary to provide for affordable housing costs per State Law or that the proposed density bonus incentive(s) will have a specific adverse impact. Petitioner also does not show that the proposed incentives are contrary to state or federal law.

Petitioner asserts that the setback incentive and height waiver were unnecessary, and it cites to a comment letter filed by its attorney below. (OB 18, citing 6977-78.) Petitioner states that “the true rear yard is between the Project and adjacent residential properties to the west, rather than adjacent to the commercially zoned parcel to the north.” (OB 18.) The court has analyzed that issue above, and found that substantial evidence supports City’s findings.

Petitioner also contends that “the height incentive was not necessary because the excess height was a result of the 14-foot ground floor, not as a result of the provision of housing units.” (OB 18, citing AR 6978.) City expressly found that the 30-foot height limitation in the appliable zone “would remove one (1) story from the proposed building which contains 27 dwelling units, and will limit the ability to construct the residential dwelling units permitted by-right and the Restricted Affordable Units which are of a sufficient size.” (AR 5.) City found that “this development standard would have the effect of physically precluding construction of a development providing 102 dwelling units, of which 12 units will be set aside for Very Low Income households.” (Ibid.) Substantial evidence supports those findings. (See e.g. AR 55 [statements of applicant: “Building height request is in order to provide requisite amount of floor-to-ceiling heights for affordable units and density bonus units. Height request is also due to CPIO requirement for ground floor to have 14 feet clear from grade to ceiling.”]; see also AR 6215.)

The cited letter of Petitioner’s attorney does not show this finding is unsupported by substantial evidence. The attorney argued that “[w]aiving the taller first floor would preserve massing consistency in the community plan area” and “[n]othing explains why waiving the community plan's total height requirement is superior.” (AR 6978.) However, the attorney did not dispute the evidence that a height waiver of some sort was necessary to provide for affordable housing costs per State Law. The applicant’s statements were substantial evidence that the building height waiver was necessary to provide for affordable housing. (AR 55.) That Petitioner’s attorney posited a different type of waiver Petitioner found “superior” does not negate City’s findings.

Substantial evidence supports City’s findings under the State DBL and City Density Bonus Ordinance. City also made sufficient findings to satisfy Topanga.

Does the Project Comply with the Pacific Corridor Redevelopment Plan (“PCRP”)?

Petitioner contends that “[t]he City approved the Project with only Redevelopment Plan Administrative Review (AR 10419) for a Project not compliant with the [PCRP]” because a document erroneously referred to the Project as “mixed-use” and the Project’s yards are allegedly inconsistent with the PCRP. Petitioner also asserts that the Project does not comply with Design Standard 2.1.5. (OB 19.)

On an administrative review form, a City staff person commented that the Project is “mixed-used.” (AR 7355.) However, the form accurately described the Project as a 102-unit multi-family residential project with 12 very low-income affordable units. (AR 7353.) The form also accurately stated that the proposed use is “multifamily residential” and that there was zero “proposed non-residential sq. ft.” (AR 7354.) The Project is entirely residential, not mixed used, as reflected in the Project plans submitted to City. (AR 6591-6612.) The Planning Department reviews the Project’s plans for compliance with the PCRP. (LAMC § 11.5.14(D)(4)(f); Resp. RJN Exh. D.) There is a presumption it regularly performed its duties. (Evid. Code § 664.) Other than the incorrect reference to “mixed use” on one page of the administrative review form, Petitioner has not cited any evidence in the record that City actually reviewed the Project as “mixed use.” Other parts of the administrative review form and the Project plans, as well as City’s ultimate decision, strongly suggest that City reviewed the Project as a multi-family residential use. Petitioner fails to support its claim that the Project was improperly reviewed as “mixed use.”

Substantial Evidence Supports City’s Finding that the Project Did Not Violate PCRP Yard and Setback Requirements

Petitioner contends that the Project does not comply with the PCRP because it resulted in “unpermitted encroachments into yards by the structure and balconies, as demonstrated above.” (OB 19.) Petitioner cites no standard in the PCRP governing yards. Petitioner appears to incorporate its zoning arguments, analyzed above. As discussed above, substantial evidence supports City’s findings of consistency with its zoning regulations, including with respect to yard and setback requirements.

PCRP Design Standard 2.1.5 states: “Residential in-fill shall approximately match the street setback of adjacent residential buildings.” (AR 6049.)

Respondents contend that Petitioner did not exhaust an argument that the Project does not comply with Design Standard 2.1.5. (Oppo. 37.) The court agrees. “The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536.) Petitioner’s citations in the opening brief do not show any discussion of this design standard, even generally. (AR 12615, 12655.) A comment letter of Allen Franz, cited in reply, did not mention Design Standard 2.1.5 but did mention a requirement of project “compatib[ility] with its surroundings,” and cited setback variances as one of the ways the compatibility requirement was violated. (See Reply 24, citing 7344.) However, Franz did not discuss relevant evidence that might support a conclusion that the Project does not “approximately match the street setback of adjacent residential buildings.” (AR 7344.) Under exhaustion doctrine, “[e]vidence must be presented in a manner that gives the agency the opportunity to respond with countervailing evidence…. The City cannot be expected to pore through thousands of documents to find something that arguably supports [the opponent’s] belief the project should not go forward.” (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 527.) Petitioner has not met its burden to show that it exhausted its argument about compliance with Design Standard 2.1.5.

Even assuming Petitioner had exhausted its argument, Petitioner does not show that City’s finding of conformance with the Design Standards of the PCRP, including Standard 2.1.5, is not supported by substantial evidence. (See AR 7356-37.) Petitioner relies on its attorney’s comment letter (AR 12615) and Franz’s letter (AR 7344), but those letters do not address the design standard or explain how the Project does not “approximately match the street setback of adjacent residential buildings.”

Petitioner also cites AR 12655, which is a page from the Historic Resources Evaluation Report and contains a 1921 Sanborn Insurance Map showing “development along and around Pacific Avenue between 12th and 15th Streets” as of 1921. Even if this map showed the current state of development (which is doubtful), the map does not show parcel setbacks and does not establish nonconformance with Design Standard 2.1.5. (See AR 12655.)

Finally, the standard in Design Standard 2.1.5 is inherently subjective (i.e., “approximately match”) and Petitioner does not show City’s finding of conformance was unreasonable, as required for substantial evidence review.

In light of this conclusion, the court finds it unnecessary to decide Respondents’ contention that Design Standard 2.1.5 is not applicable to the Project to the extent it conflicts with the CPIO and HAA. (Oppo. 37-38.)

Substantial evidence supports City’s finding that the Project complies with the PCRP. Petitioner does not show any prejudicial abuse of discretion.

[1] The LAMC defines “lot line, front” as “in the case of a corner lot, a line separating the narrowest street frontage of the lot from the street….” The LAMC defines “yard, front” as “a yard extending across the full width of a lot, the depth of which is the minimum horizontal distance between the front lot line and a line parallel thereto on the lot.”