Judge Mary H. Strobel, Case 21STCP03146 2023-02-28 Tentative Ruling

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

Petitioner Fix the City, Inc. (“Petitioner”) petitions for a writ of mandate directing Respondents City of Los Angeles (“City”), Los Angeles Department of Building and Safety (“LADBS”), and Board of Building and Safety Commissions (“BBSC”) (collectively “Respondents”) to set aside the “permits and entitlements” for two separate multi-family residential structures on properties located at 1772 Glendon Avenue and 1751 Malcolm Avenue on the westside of Los Angeles (“Project”). (See Opening Brief (“OB”) 4-5 and Pet. Prayer ¶¶ 1-3.) Respondents oppose the petition and Real Party in Interest HS Westside Properties, LLC (“Real Party”) joins in the opposition.

Petitioner’s Evidentiary Objections; and Respondents’ Requests to Augment the Administrative Record

Petitioner objects that the declarations of Daniel Schneidereit, Derrick Spencer, and Sinan Sinanian, submitted in opposition, are improper extra-record evidence and should be excluded in their “entirety.” (Obj. 2-4. )

This action is governed by CCP section 1085. The Court of Appeal has held that the trial court may have discretion to admit extra-record evidence in a traditional mandate action challenging informal administrative action under the Alquist–Priolo Act. (California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 254-256.) The Court of Appeal stated that “administrative actions that do not involve public hearings, such as those taken pursuant to the Alquist–Priolo Act …, are generally considered ‘informal.’” (Ibid.) The Court stated that “because the record upon which a public agency's informal action is based is often inadequate to permit meaningful review, the court presiding over traditional mandamus proceedings challenging the agency's informal action is generally permitted to consider extra-record evidence if the facts are in dispute.” (Ibid.) In those circumstances, the Court of Appeal held that the trial court did not abuse its discretion when, following a trial, the court “ordered the parties to submit expert declarations relating to the claims arising under the Alquist–Priolo Act after concluding such evidence was necessary to help the court interpret technical design drawings in the administrative record relevant to those claims.” (Id. at 245 and 256.)

Here, as argued by Petitioner, the circumstances are different than those in California Oak Foundation. In this case, Petitioner appealed LADBS’s issuance of permits and decisions under the Alquist–Priolo Act (“AP Act”) to Respondent BBSC, which held a hearing on the appeal. The administrative record, which is nearly 3,000 pages, includes various expert geologic reports, LADBS responses to those reports in Correction and Approval letters, Petitioner’s appeal and supporting expert reports, a staff report to BBSC, and testimony and a PowerPoint presentation of geologist Schneidereit before the BBSC. In that testimony and PowerPoint presentation, Schneidereit gave further explanation, in addition to that set forth in the Correction and Approval letters, for LADBS’s actions under the AP Act. Thus, unlike in California Oak Foundation, it cannot be said that there was no administrative hearing in this case. Furthermore, while LADBS’s initial actions under the AP Act were arguably “informal,” those actions were appealed in a formal BBSC proceeding.

Nonetheless, “[a]lthough extra-record evidence is not admissible to contradict evidence upon which the administrative agency relied in making its quasi-legislative decision, or to raise a question regarding the wisdom of that decision (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 579, 38 Cal.Rptr.2d 139, 888 P.2d 1268 (Western States )), it may be admissible to provide background information regarding the quasi-legislative agency decision, to establish whether the agency fulfilled its duties in making the decision, or to assist the trial court in understanding the agency's decision.” (Outfitter Properties, LLC v. Wildlife Conservation Bd. (2012) 207 Cal.App.4th 237, 251.)

Based on the foregoing, the court overrules Petitioner’s objection to paragraphs 1-5 and 7 of the Sinanian declaration. These paragraphs provide background information concerning the actual construction of the Project site, which is not included in the administrative record. This background information is helpful to the court in understanding LADBS’s approval of the cantilevering portion of the Project and related legal claims made by Petitioner about how the building was actually constructed. The objection to Paragraph 6 of the Sinanian declaration is sustained.

The court sustains Petitioner’s objections to the declarations of Derrick Spencer.

The court overrules the general objection to the court considering the Schneidereit declaration. The court finds it helpful in understanding the reasons for the agency’s decision. Because the court tentatively will grant the petition, as discussed below, the court does not find it necessary to give Petitioner the opportunity to submit its own supplemental expert declaration or to examine Schneidereit at trial.

The Alquist–Priolo Act (hereafter “AP Act” or “Act”) “was enacted to prohibit the location of structures for human occupancy across the trace of active faults. (§ 2621.5; Guidelines, § 3603, subd. (a).) In furtherance of this mandate, the Act's implementing regulations provide that ‘No structure for human occupancy ... shall be permitted to be placed across the trace of an active fault. Furthermore, as the area within fifty (50) feet of such active faults shall be presumed to be underlain by active branches of that fault unless proven otherwise by an appropriate geologic investigation and report ... no such structures shall be permitted in this area.” (California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 247-248.)

The Act “is applicable to any project, as defined in Section 2621.6, which is located within a delineated earthquake fault zone, upon issuance of the official earthquake fault zones maps to affected local jurisdictions, except as provided in Section 2621.7.” (Pub. Res. Code § 2621.5(b).)[1] A “project” under the AP Act includes “structures for human occupancy.” (Id. § 2621.6(a)(2).)

“[T]he lead agency responsible for developing a project,” in this case LADBS, “has the ultimate responsibility to determine whether a project complies with the Alquist–Priolo Act and its implementing regulations.” (Better Alternatives for Neighborhoods v. Heyman (1989) 212 Cal.App.3d 663, 671.)

The State Mining and Geology Board has promulgated regulations to implement the Act. (Cal. Code Regs. (“CCR”), tit. 14, §§ 3600 et seq.) LADBS and the California Geological Survey have issued guidelines, and the Los Angeles Municipal Code (“LAMC”) includes regulations, regarding the Act and surface fault rupture hazard investigations. (See OB 6-7 and Oppo. 4-5.)

As stated in a LADBS Information Bulletin, City requires fault investigations “for projects located within an official or preliminary Aquist-Priolo Earthquake Fault Zone (APEFZ); and/or within a City of Los Angeles Preliminary Fault Rupture Study Areas (PFRSA).” (AR 603.) “The PFRSA’s have been established along faults considered active within the City boundaries that the CGS [California Geological Survey] has not yet zoned….” (Ibid.; see OB 6-7, discussing AR 603.)

The Project consists of “two separate garden-style multifamily residential buildings” with living space above a subterranean parking garage. (AR 2661.) Before the current Project was built, there were “existing on-grade apartment buildings, constructed from 1938 through 1944.” (AR 2661.) The Project site is near Santa Monica Boulevard and about a block from The Church of Jesus Christ of Latter-Day Saints (hereafter “LDS Church”). (AR 2700-2710 [maps]; 1318-1334 [BBSC staff presentation].)

The Project site is located within a City Preliminary Fault Rupture Study Area (“PFRSA”), established in July 2015 and “designated for the Santa Monica fault.” (AR 2894, 1322.) Previous fault studies have determined that “starting from Century City through the Veteran’s Administration grounds just west of Interstate 405, the Santa Monica fault extends roughly along the alignment of Santa Monica Boulevard.” (AR 2665.) “The large grass lawn in the front yard of the LDS Church at 10777 Santa Monica Boulevard … is known by geologic workers … to be the location of the most prominent and visible fault scarp of the Santa Monica fault zone in this area.” (Ibid.) “In the vicinity of the subject lot in the Westwood area, the fault is thought to make a westward bend near the southwest corner of the LDS Church property, roughly parallel with the westward bend in Santa Monica Boulevard at nearly the same location.” (Ibid.) “In 2010, Mactec conducted a series of fault studies in this area as part of a region-wide investigation for the proposed Purple Line Metro subway extension. Mactec advanced a seismic line along Selby Avenue, oriented northwest-southeast, which is just one block east of the subject study area.” (Ibid.; see also AR 2702 [regional fault map].)

The area encompassing the Project site was designated by the California Geological Survey in Aquist-Priolo Earthquake Fault Zone (APEFZ) in January 2018, after the geology and soils report was approved in this case. (AR 1322.) Fault Evaluation Report 259 (“FER-259”) of the California Geological Survey, authored by Brian Olson, Engineering Geologist, resulted in the 2018 updated AP Zone Map. (AR 1326-27; 528-591; AR 504-505, 514.)

In July 2015, after City established the PFRSA, Real Party retained Applied Earth Sciences (“AES”), a licensed geotechnical engineering firm, to perform a geological fault study for the Project. (AR 1322, 2659; Sinanian Decl. ¶ 4.) Although the Project site was not part of an official APEFZ at the time that the AES conducted its studies, AES understood from correspondence with the California Geological Survey (“CGS”) that zoning of the Santa Monica fault was “currently under way.” (AR 2661.) Further, in 2015, LADBS required fault studies for properties located within the PFRSA for the West Los Angeles area. (Ibid.)

On July 21, 2015, AES issued a “combined fault investigation and geotechnical investigation report for the proposed residential development project to be located at 1749-51 Malcolm Avenue and 1772 Glendon Avenue.” (AR 2659.) AES adopted a field exploration approach, as discussed at length in the Analysis section below. (AR 2662-63.)

Based on field data, review of prior investigations by others, and other maps and reports, it was AES’s “professional opinion that a prominent strand of the Santa Monica fault zone extends through the northeast portion of the subject site, approximately ten feet south of the location as shown on Navigate LA Maps.” (AR 2671; see also AR 2703.) As mitigation, AES recommended the following:

1. Avoidance. As required by state and city law, no new structure shall be constructed across the active fault splay, as shown on our Geologic Map. The new structures may be as close as ten feet to the fault splay, toward the south (since the proposed basement level is only five feet below ground surface in this location), provided the second mitigation measure is also adopted;

2. A thick slab “mat” foundation should be utilized for the eastern-most building in this project…. (The western building which will be structurally independent from the eastern building can utilize a conventional foundation without using a 2’ mat, since it is more than 50 feet away from the westward-projected fault trace; see geotechnical engineering recommendations later in this report.) …. This type of mitigation is considered by the undersigned to be sufficient mitigation of fault rupture hazard within close proximity of the subject site.

Daniel Schneidereit, an engineering geologist with LADBS with more than 35 years of experience, was assigned as the LADBS reviewing geologist for the Project fault investigation. (AR 2895.)

On August 19, 2015, Schneidereit issued a Correction Letter requiring AES to conduct additional study and prepare a supplemental report addressing certain issues. As relevant to this writ petition, Schneidereit identified the following issue that needed “correction”:

1. The proposed 10-ft. setback from the active fault splay appears small given that the fault was identified at only one location and there is no direct evidence of the orientation of the fault. In addition, the fault trace may be closer to B-3 than estimated. Additional exploration is required to determine the fault's trend in at least two locations to warrant the recommended reduced setback. Alternatively, a larger setback could be recommended.

During a subsequent meeting, Schneidereit also asked AES to look at data relating to a gas station south of the Project site. (AR 2833, 2895.)

On November 30, 2015, AES issued its Supplement No. 1 report responding to the August 19, 2015, Correction Letter and oral discussion with Schneidereit. In the supplemental study, AES advanced seven additional CPTs, CPT-14 through CPT-20, “in the street between old CPTs 8-10 on the north and CPTs 11-13 on the south along the same alignment.” AES stated that these additional CPTs “allowed for better resolution of the fault location and orientation.” (AR 2830-31.) AES summarized the results of the supplemental study, as follows: “Based on the additional exploration, by having two transects of geologic data, one along the street and one along the eastern property, we have been able to determine that the location of the faults are essentially the same as previously reported, as is the orientation of the fault…. Our interpretation of the subsurface structure essentially locks in the orientation of the fault from the street to the east portion of the property, and this orientation is essentially the same as what was previously reported. Please see attached Drawings for graphical depiction.” (Ibid.)

AES also revised its recommended mitigation, stating: “[I]n light of the city’s request, and due to the nature of the profession and variability of subsurface conditions, we are revising our setback recommendation to 20 feet (originally we recommended ten feet). The 20 feet setback will affect the northeast portion of the proposed new building as it was previously designed. Either the design needs to be revised to stay outside of the 20 feet setback zone, or the building structure be designed so that any portion extending into the No-Build Zone is structurally cantilevered so that its foundation stays outside of the no-build zone….. [¶] In addition, for the same reasoning, we are revising our mat foundation recommendation to include the entire project area….” (AR 2834.)

On December 29, 2015, apparently when Schneidereit was out of the office, LADBS geologist Casey Lee Jensen issued a second Correction Letter which identified the following three issues in AES’s fault investigation and proposed mitigation:

1. The southern most fault closest to the proposed habitable structures identified by the consultants appears to be located between continuous core boring B-3 and CPT-7 in transect B-B' and between CPT-18 and CPT-10 in transect A-A'. As no direct evidence of the orientation of the fault has been provided, the most conservative orientation of the fault trace appears to be a fault that is located just north of B-3 and just south of CPT-19. Provide a revised-possible fault orientation and setback; or, provide additional exploration to confirm the fault's trend as interpreted by the consultant.

2. As no exploration has been performed west of transect B-B' to identify the fault trend, the consultants should provide an opinion as to possible variability (non-linear, flowering, etc.) in the fault trend west of transect B-B ', with appropriate setback.

3. As the consultants recommend building a cantilevered structure within the "No-Build Zone", the consultants shall provide recommendations as to the maximum vertical and horizontal offset of the fault; and, a recommendation for vertical and horizontal space to be maintained below the cantilevered structure. Provide a plan that depicts the required space maintained below the cantilevered structure. Note: The current plan appears to show a lobby with doorways in the cantilevered area. No at grade structures can be connected to the cantilevered section of the proposed building.

On January 15, 2016, AES issued its Supplement No. 2 report responding to the December 29, 2015, Correction Letter and oral comments from Schneidereit at a meeting on January 13, 2016. (AR 2914.) In response to Jensen’s comments, AES stated and opined:

1. We have hereby revised the fault orientation to reflect the most conservative orientation, based on that fact that direct evidence or observation of the actual orientation of the fault with the exploration methods used is not possible. The revised fault orientation passes through B-3 and CPT-19. However, now that the most conservative possible fault orientation is being used as a basis for engineering design of the buildings, we have reduced the no-build setback from twenty to ten feet, as was originally recommended in our 7/21/15 original report. This reduction in setback back to ten feet, based on the most conservative possible fault orientation, was discussed and verbally agreed upon with Mr. Schneidereit of LADBS in our meeting on 1/13/16.

2. Based on the presence of abundant fine-grained sag pond deposits north of the two faults encountered during our exploration, it is our opinion that the main trace of the Santa Monica fault lies north of the study area…. [See further discussion of this opinion in Analysis below.]

3. Based on our correspondence with the aforementioned fault specialists, and our prior experience along the Hollywood and Santa Monica fault zones, it is the opinion of the undersigned that the maximum vertical offset along this fault for a single earthquake event is 12 inches. We have depicted the cantilevered portion of the building as such: the area around the proposed new building which will be cantilevered within the setback zone shall be subject to minor grading/shaving of the ground surface, confined to the subject property, such that the cantilevered part of the proposed building will have a minimum of 12 inches clearance above the finished ground surface. Any appurtenant stair or bridge structures that provide access to the lower lobby level of the main building shall be structurally separate from the main building….

On February 1, 2016, Schneidereit issued a Geology and Soils Report Approval Letter for the Project stating that AES’s fault rupture investigation and recommended mitigation were “acceptable” subject to multiple conditions for site development. (AR 306-310.)

On September 28, 2018, LADBS issued a building permit for the Project. (AR 705, 1506-08.)

On August 3, 2020, Petitioner filed a Request for Modification of Building Ordinances challenging the building permit and temporary certificate of occupancy issued for the Project. On December 29, 2020, Schneidereit denied the request. (AR 316-327.)

On April 16, 2021, Petitioner filed an appeal to BBSC of LADBS’s decision to deny the Request for Modification of Building Ordinances. (AR 472-490.) On July 19, 2021, Petitioner filed a lengthy appeal letter to BBSC which included evidence, including two expert analyses of Wilson Geosciences Inc. (“WGI”). Based on its review of the AES studies, FES-259, and other date, WGI concluded as follows:

· The Site contains one, and possibly two, active earthquake faults one of which was located/identified by the AES field investigations,

· The Malcolm Project site study and design do not meet APEFZ and City of Los Angeles requirements with regard to study methods and building setback, and

· The Glendon Project site was not studied and does not meet APEFZ and City of Los Angeles FRSA mandates with regard to study requirements and methods; as such active fault traces must be assumed to be present and no structure can be permitted absent the required studies and findings; and

· The proposed cantilever building design for the Malcolm Project crossing over the eastern active fault trace to accommodate one-foot vertical fault offset appears insufficient and vertical offset could be much greater than one-foot vertical.

The BBSC held a hearing on Petitioner’s appeal on July 20, 2021. (AR 2620-2657 [transcript].) Schneidereit presented testimony for LADBS at the hearing. (AR 2626-2644.) At the conclusion of the hearing, the BBSC decided that LADBS “did not err or abuse its discretion by the issuance of permit number 16010-2000-02308 in compliance with the Alquist-Priolo Earthquake Fault Zoning Act and other City of Los Angeles seismic hazard policies.” (AR 1373, 2648.)

Construction of the Project was completed in June 2021. The Certificate of Occupancy was issued on June 30, 2021. (AR 1799; Sinanian Decl. ¶ 7.) The Project site started out with three addresses, 1749 and 1751 Malcolm Avenue and 1772 Glendon Avenue, but the Project was constructed as two addresses, 1751 Malcolm Avenue and 1772 Glendon Avenue. (Sinanian Decl. ¶ 7.)

On September 22, 2021, Petitioner filed a verified petition for writ of mandate pursuant to CCP sections 1085 and 1094.5, and a complaint for declaratory and injunctive relief. The petition includes three causes of action: (1) violation of mitigating conditions of building permit; (2) violation of Alquist-Priolo Act; and (3) declaratory relief.

On January 6, 2022, at the trial setting conference, the court stayed the third cause of action until the court rules on the writ causes of action.

On December 30, 2022, Petitioner filed its opening brief in support of the petition. The court has received Respondents’ opposition and supporting papers; Real Party’s joinder in the opposition and supporting declaration; Petitioners’ reply; the administrative record; and the joint appendix.

The parties agree that the writ petition is governed by CCP section 1085, and not CCP section 1094.5. (OB 12-13; Oppo. 7-8.) The Court of Appeal has also held that traditional mandate is the appropriate proceeding to review the lead agency’s decision under the AP Act. (See Better Alternatives for Neighborhoods v. Heyman (1989) 212 Cal.App.3d 663, 671-672, fn. 6 and California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 247.)

There are two essential requirements to the issuance of an ordinary writ of mandate under section 1085: (1) a clear, present and ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.)

“Normally, mandate will not lie to control a public agency's discretion, that is to say, force the exercise of discretion in a particular manner. However, it will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.” (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.)

“In determining whether an abuse of discretion has occurred, a court may not substitute its judgment for that of the administrative board [citation], and if reasonable minds may disagree as to the wisdom of the board's action, its determination must be upheld [citation].” (Better Alternatives for Neighborhoods, supra, 212 Cal.App.3d at 672.) “Where a petitioner's challenge in a mandamus action rests on the sufficiency of the evidence, ‘the court does not have the power to judge the intrinsic value of the evidence or to weigh it.’” (California Oak Foundation, supra, 188 Cal.App.4th at 247.)

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) 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.)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

The parties suggest that CCP section 1094.5 could apply to the BBSC appeal decision. (OB 13, fn. 7; Oppo. 8, fn. 1.) Neither party fully explains whether BBSC was required by law to take evidence and was vested with discretion in “the determination of facts,” as necessary for administrative mandate. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) The parties also agree that LADBS, not BBSC, is the “lead agency” under the AP Act. (Oppo. 4-5.) Finally, the writ causes of action and prayer in the petition do not seek a writ directing BBSC to set aside its decision. (See Pet. ¶¶ 44-73 and Prayer.) It appears that section 1094.5 does not apply to any part of the petition.

In its writ causes of action, Petitioner contends that, for several reasons, LADBS violated the AP Act and related City regulations when it approved the AES studies and recommended mitigation for the Project. (OB 13-18.) Petitioner contends that Respondents had the power to revoke the Project’s permits and certificates of occupancy in response to Petitioner’s arguments in the Request for Modification and BBSC appeal that the Project did not comply with the AP Act. Petitioner contends that the court should issue a writ revoking such permits and the certificates of occupancy. (See OB 18, citing LAMC § 98.0601(a), (b) and § 91.109.6.) In opposition, Respondents do not dispute that the permits and certificates of occupancy should be revoked if LADBS did not comply with the AP Act.

Petitioner argues that Respondents failed to require any geologic investigation for the structure at 1772 Glendon, violating the AP Act and City’s regulations. (OB 13-16; Reply 5-6, 9-12.)

In its initial study, AES stated that it performed a “combined fault investigation and geotechnical investigation report for the proposed residential development project to be located at 1749-51 Malcolm Avenue and 1772 Glendon Avenue.” (AR 2659 [bold italics added].) AES stated that the Project “will consist of two separate garden-style multifamily residential buildings, both with two of living space atop one level of semisubterranean to full subterranean parking garage.” (AR 2661.) AES stated that “[t]he site has an irregular shape, has a surface area of 24,560 square feet.” (AR 2664.) While Counsel should confirm this at the hearing, it appears that this surface area of 24,560 square feet refers to both lots.

AES also explained that there were onsite tenants living in the existing buildings on 1772 Glendon Avenue and 1751 Malcolm Avenue, and, therefore, “trenching was considered not to be a suitable option for field exploration for this fault study.” (AR 2662.) Instead, AES adopted a field exploration approach that included “a combination of Cone Penetrometer soundings [“CPT”] and continuous core borings.” (AR 2662.) AES stated that “[t]o determine whether or not a fault exists on, or adjacent to, the subject lots, a total of sixteen (16) holes were advanced.” (AR 2662 [bold italics added].) AES’s three reports include various geological maps and site plans that show the location of CPTs and borings in reference to both properties. (See e.g. AR 2702-2708.) AES also recommended mitigation for both 1772 Glendon Avenue and 1751 Malcolm Avenue (i.e., western and eastern building). (See e.g. AR 2671-72, 2915-16.)

The foregoing is substantial evidence that AES intended for its geological study to apply to 1772 Glendon Avenue and 1751 Malcolm Avenue. AES clearly referred to a fault investigation for both “lots.” LADBS could reasonably conclude, as it did, that the AES studies applied to 1772 Glendon Avenue and 1751 Malcolm Avenue.

LADBS Did Not Initially Abuse Its Discretion in Approving the AES Geologic Studies for the Entire Project Site

Petitioner argues that, even if the AES studies covered 1772 Glendon, LADBS could not reasonably rely on the AES studies to conclude that 1772 Glendon would not be built across the trace of an active fault. (OB 13-16.) Petitioner asserts that AES performed its field exploration on “a single transect along Malcolm Avenue.” (Reply 5-7.) In effect, Petitioner contends that AES did not conduct an adequate study under the AP Act and pertinent regulations with respect to the entire Project site.

The AP Act “prohibit[s] the location of developments and structures for human occupancy across the trace of active faults.” (§ 2621.5(a).) The Act's implementing regulations provide that “No structure for human occupancy ... shall be permitted to be placed across the trace of an active fault. Furthermore, as the area within fifty (50) feet of such active faults shall be presumed to be underlain by active branches of that fault unless proven otherwise by an appropriate geologic investigation and report ... no such structures shall be permitted in this area.” (§ 3603(a).)[2] LAMC section 91.106.4.1(4) also states: “Permits may be issued if it can be demonstrated through accepted geologic seismic studies that the proposed structure will be located in a safe manner and not over or astraddle the trace of an active fault. Acceptable geologic seismic studies shall meet the criteria as set forth in rules and regulations established by the Superintendent of Building to assure that such studies are based on sufficient geologic data to determine the location or nonexistence of the active fault trace on a site.” (Pet. RJN Exh. 1.)

The LADBS Information Bulletin “Surface Fault Rupture Hazard Investigations” (Bulletin 2017-129) provides that fault investigation reports “shall be based upon sufficient geologic data to determine the location or nonexistence of active fault trace(s) on the site.” (AR 603.) The Bulletin provides guidelines for field exploration, including the use of “transects of borings and Cone Penetrometer Tests (CPT’s)” when it is not possible to conduct a “trench excavation.” (AR 604-605 [discussing transects, data point spacing, and orientation of exploration].) In challenging AES’s fault investigation, Petitioner has not addressed this detailed guidance for field exploration or shown that AES’s studies did not meet the criteria set forth in LADBS rules and regulations.

AES adopted a field exploration approach that included a combination of CPT soundings and continuous core boring. (AR 2662.) AES performed 3 borings and 13 CPT soundings along Malcolm Avenue. (AR 2662.) The AES report and geological map show that all 3 boings and 7 CPTs were performed on private property on 1749 and 1751 Malcolm Avenue, and 6 CPTs were performed beyond the northern and southern property boundaries along Malcolm Avenue. (AR 2662, 2702-04).[3] AES apparently did not conduct CPTs or borings along Glendon Avenue. However, its reports show clearly that AES intended the field exploration along Malcolm Avenue to apply to both lots. The initial report also shows that AES considered past geological studies from nearby sites, including those from the 2010 Matec fault studies conducted one block east of the Project, and also those relating to the LDS Church, one block east of the Project. (AR 2665-66, 2702.)

In a Correction Letter, LADBS instructed AES to conduct additional field exploration “to determine the fault's trend.” (AR 2895.) In response, AES conducted additional field exploration along Malcolm Avenue. (AR 2830-2836.) AES opined that “[t]hese additional CPTs have allowed for better resolution of the fault location and orientation” and “essentially lock[] in the orientation of the fault from the street to the east portion of the property.” (AR 2831-32.) Significantly, after a meeting with LADBS, AES also “utilize[d] information from the gasoline station south of the site to augment our data and provide additional discussion of the stratigraphic correlation of the southern portion of the study area.” (AR 2833.) AES “extended [its] interpretation of subsurface structure in transect B to include the boring information from TDD-3.” (AR 2833.) AES concluded that this additional geological data “is sufficiently similar to our Boring Log 1, advanced in the southeast portion of the site, and hence, does not provide any supporting data that would indicate the presence of a fault in the southern portion of the study area.” (Ibid.)

In a second Correction letter, LADBS stated, in pertinent part: “As no exploration has been performed west of transect B-B' to identify the fault trend, the consultants should provide an opinion as to possible variability (non-linear, flowering, etc.) in the fault trend west of transect B-B ', with appropriate setback.” (AR 2922-93.) In response, AES opined as follows:

Based on the presence of abundant fine-grained sag pond deposits north of the two faults encountered during our exploration, it is our opinion that the main trace of the Santa Monica fault lies north of the study area. This corresponds to the geomorphic and topographic evidence of the main trace being along the south-facing escarpment that forms the front lawn of the LDS temple, the northwestward projection of which extends north of the study area. The project area is likely located on the south part of a localized zone of transtension along the generally left-lateral strike-slip fault zone, related to the northwestward bend in the main fault trace one block east of the study area (Miles Kenney, 2014; Scott Lindvall, personal communication, Richard Crook, Jr., personal communication). It is therefore the opinion of the undersigned that the possibility of flower structures or non-linear variability west of the encountered fault is minute, since we consider this fault to be a splay of the main fault north of the project area. Furthermore, it is our opinion that any non-variability west of the study area (B-3) to the north property limit (a span of 50 feet) will be within the established ten-feet setback zone.

In summary, AES conducted a field exploration for the entire Project site, considered geological data from nearby sites, and gave an expert opinion regarding the fault trend with respect to the entire Project site, including 1772 Glendon. AES also opined that there was no “supporting data that would indicate the presence of a fault in the southern portion of the study area” and that “the possibility of flower structures or non-linear variability west of the encountered fault is minute.” LADBS could reasonably conclude from the AES reports, as it did in its Approval Letter, that with the proposed mitigation both structures at 1772 Glendon Avenue and 1751 Malcolm Avenue would not be built “across the trace of active faults” and that a 50-foot setback from the fault trace was not required for either property. (§ 2621.5(a) and § 3603(a).)

In its writ briefs, Petitioner has not identified any statute or regulation that required AES to conduct CPTs or drilling on the 1772 Glendon Avenue property or on Glendon Avenue. Petitioner relies heavily on section 3603(a) of the regulations, which states that no structures are permitted within 50 feet of an active fault unless it is proven by “an appropriate geological investigation report” that such area is not “underlain by active branches of that fault.” (OB 14.) Section 3603(d) states that such report shall be prepared by a geologist registered in the State of California and “shall be based on a geologic investigation designed to identify the location, recency, and nature of faulting that may have affected the project site in the past and may affect the project site in the future.” (§ 3603(d).) Here, the AES reports were prepared by a licensed geologist and identify the location, recency, and nature of faulting that has or may affect the entire Project site. Nothing in section 3603 specifies that the geologist must conduct the field exploration in any specific location on the site.

Petitioner contends that “Special Publication 42 requires a showing of ‘the evidence of absence’ and not ‘absence of evidence’ (AR00672), yet at the Glendon site, there was a complete void of evidence.” (OB 14; Reply 11.) Special Publication 42 states that “[i]f the project geologist concludes that fault is absent, this conclusion should be based on the evidence of absence and not the absence of evidence for surface fault rupture hazard.” (AR 672.) Here, AES determined a location and orientation of a fault on the northeastern corner of the Project site based on geological data, as summarized above. AES also determined based on geological data that there was not an active fault trace at or near other parts of the Project site. LADBS could reasonably conclude that AES’s recommendations were not based on an “absence of evidence.”

Petitioner also does not show, by citation to evidence, that LADBS abused its discretion in approving the AES studies under the AP Act and City regulations. Petitioner contends that the AES study “references Metro’s 2011 map showing a second potential fault.” (OB 16, citing AR 2827.) Petitioner cites a figure from the 2010-2011 Metro study, which shows a dotted line with question marks near Santa Monica Boulevard and a notation stating: “Inferred trace of Santa Monica fault shown based on preliminary geophysical data and interpretation of geomorphology.” (AR 2827.) The figure does not show the position of the “inferred trace” relative to the Project site. Moreover, AES considered this prior study in its fault investigation and expert opinions, summarized above. (AR 2665-66, 2827.)

In its Statement of Facts, Petitioner cites expert reports of WGI, dated November 23, 2020, and July 17, 2021, which Petitioner submitted during the LADBS and BBSC appeal proceedings. (OB 8 and 11; see AR 499-514 and 523-525.) Based on its review of the AES studies and other data, WGI opined, inter alia, that “[t]he Glendon Project site was not studied and does not meet APEFZ and City of Los Angeles FRSA mandates with regard to study requirements and methods; as such active fault traces must be assumed to be present.” (AR 508.) “In a traditional mandamus action such as this, it is not [the court’s] role to judge the extrinsic value of the evidence, or to reweigh it, in order to reach [its] own judgment.” (California Oak Foundation, supra, 188 Cal.App.4th at 258.) Under substantial evidence review, “[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.) As Petitioner acknowledges in reply, the WGI reports do not, in themselves, prove an abuse of discretion by LADBS. (Reply 12, fn. 10.)

Moreover, as Petitioner notes in reply, Schneidereit explained at the BBSC hearing why the field exploration was conducted along Malcolm: “The geologic study concentrated on the east side for several reasons. It's wider, and the fault further to the east is thought to traverse through the lawn of the Mormon temple which is nearby, and so they wanted to get as close to that. We sort of knew where the fault was, and in many cases most cases in the City of LA it's hard to do trenching. So they did a transect method ….” (AR 2628-29.) Thus, the record contains evidence that LADBS considered the AES studies as evidence of the geologic conditions on the entire Project site.

Based on the foregoing, the court concludes that LADBS’s decision to approve the AES fault studies in February 2016 was not arbitrary, capricious, or entirely lacking in evidentiary support. Substantial evidence in the administrative record supports that decision of LADBS under the AP Act.

LADBS Abused its Discretion in Determining that FER-259 and the 2018 AP Zone Map Did Not Provide New Geological Data Warranting Further Fault Investigation for the Project

Petitioner argues that further fault investigation was mandated by “new geological data” provided with FER-259 and the 2018 AP Zone Map. (OB 15-16; Reply 9-12.) This information was not available when LADBS approved the AES studies in February 2016 and could not show an abuse of discretion in that earlier decision. However, Petitioner contends that LADBS abused its discretion in failing to order a new fault investigation and report starting in 2018 for the Project site in light of the FER-259 and the 2018 AP Zone Map.

Section 2623(a) states that “[c]ities and counties shall require, prior to the approval of a project, a geologic report defining and delineating any hazard of surface fault rupture.” Section 2623(b) states that “after a report has been approved or a waiver granted, subsequent geologic reports shall not be required, provided that new geologic data warranting further investigations is not recorded.”

Fault Evaluation Report 259 (“FER-259”) of the California Geological Survey, authored by Brian Olson in January 2018, resulted in the 2018 updated AP Zone Map. According to a report of Petitioner’s expert WGI, the 2018 AP Zone Map shows a fault trace in the alley adjacent to the southerly edge of the Project site. (AR528-591 [FER-259]; AR 504-505, 514 [WGI Report].) Notably, at a presentation by City staff for the BBSC hearing, the City appeared to agree. “The 2018 A-P zone map shows a fault trace in the alley adjacent to the southerly edge of the site (mapped after the site geologic investigation.” (AR 1326-27 [City presentation at BBSC hearing showing 2018 AP Zone Map]; see also AR2626-27 (testimony at BBSC hearing).)

In his supplemental declaration, Schneidereit seems to somewhat contradict his prior statements at the hearing by noting that “there is no indication of the distance of the purported Santa Monica fault from the addresses… I disagree that ‘FER-259 shows an APEFZ fault trace entering the Glendon Project site.” (Schneidereit decl., para. 36.) City relies, in part, on the lack of precision of the exact fault line to support its contention no additional investigation was required after the 2018 FER and revised map. Notably, Schneidereit does not opine on the possible distance from the new projected fault trace to the project. Rather he generally disagrees with WGI’s conclusion.

More significantly, Schneidereit and City appear to question the wisdom of the California Geological Survey (“CGS”) in including this new potential fault trace in the vicinity of the project on the 2018 A-P Zone Map. Respondents argue that FER-259 and the 2018 AP Zone Map were not field studies, but rather were based on CGS’s review of fault investigation studies done by third parties. Respondents also question the new fault line based on the lack of aerial photograph supporting its location. Respondents note that the nearest field study to the west of the Project was 1 mile away, and question the conclusion of CGS that it could project from this study the location of the potential trace fault in the vicinity of the Glendon portion of the Project.

In somewhat of a circular argument, City argues, based on Schneidereit’s opinion, that since the only field study identified in FER-259 is the AES study for the Project, that there is no potential fault trace located at the Project. However, as discussed above, the AES Study did not include any borings or subsurface investigation of the southwesterly portion of the project near Glendon, the location of the newly mapped potential fault trace. Schneidereit opines that the new potential fault trace represented a “reasonable geologic interpretation” from the point of view of engineer Brian Olson, who authored FER-259. (AR1326 [presentation to BBSC; Schneidereit decl., p. 39 [‘reasonable geologic conjecture.”]

Respondents contend that FER-259 and the 2018 A-P Map do not constitute “new geologic data” in section 2623(b). Respondents interpret “new geologic data” to mean “actual field data” demonstrating a fault trace that could impact the project site within the meaning of the AP Act. (Oppo. 17:1.) The court disagrees that anything in the statute supports this narrow interpretation.

As Petitioner notes “mapped APEFZs,” such as the 2018 AP Zone Map, must “encompass all potentially and recently active traces of [specific faults] and such other faults . . . as the State Geologist determines to be sufficiently active and well-defined as to constitute a potential hazard to structures from surface faulting or fault creep.” (Reply 10, citing Public Resources Code § 2622(a).)

Section 2622(c) states that “[t]he State Geologist shall continually review new geologic and seismic data and shall revise the earthquake fault zones or delineate additional earthquake fault zones when warranted by new information.” This section suggests that a newly issued APEFZ or related map could trigger an additional fault study under section 2623(b) for a geologic report previously approved for a project.

While Respondents appear to contend that CGS had insufficient data to place the new potential fault trace on the 2018 A-P Zone map, they cite to no authority that the City can second guess the existence of the potential fault trace and determine that no further investigation is needed once the map is issued. Based on the explanation given by Schneidereit at the BBSC hearing as well as in his declaration submitted with the opposition, the court concludes City abused its discretion in not requiring some type of further investigation after the issuance of the 2018 A-P Zone Map.

LADBS Did Not Abuse its Discretion under the AP Act in Approving the Mitigation Measures Recommended by AES

Petitioner argues that, for several reasons, the mitigation recommended by AES and approved by LADBS did not comply with the AP Act. (OB 16-18; Reply 12-13.) As discussed above, Petitioner has the initial burden to prove these arguments and must cite all material evidence. “In determining whether an abuse of discretion has occurred, a court may not substitute its judgment for that of the administrative board [citation], and if reasonable minds may disagree as to the wisdom of the board's action, its determination must be upheld [citation].” (Better Alternatives for Neighborhoods, supra, 212 Cal.App.3d at 672.) “’[T]he court does not have the power to judge the intrinsic value of the evidence or to weigh it.’” (California Oak Foundation, supra, 188 Cal.App.4th at 247.)

Petitioner contends that Respondents violated the AP Act when “City permitted a reduced setback from the required 50 feet despite not having data to establish ‘the location, trend and nature of a particular fault trace’ by ‘several data points’ as required by Bulletin 2017-129.” (OB 17.) Relatedly, Petitioner contends “[t]he 10-foot no-build zone was established because it could not be proven that there were not traces of the active fault within this area.” (Ibid.) These arguments are not persuasive.

As discussed above, the AES studies established the existence and orientation of a fault trace at the northeastern corner of the Project site. (AR 2669-72, 2703-06, 2915, 2919.) The final AES report states that AES “revised the fault orientation to reflect the most conservative orientation, based on that fact that direct evidence or observation of the actual orientation of the fault with the exploration methods used is not possible. The revised fault orientation passes through B-3 and CPT-19. However, now that the most conservative possible fault orientation is being used as a basis for engineering design of the buildings, we have reduced the no-build setback from twenty to ten feet….” (AR 2915.) The AES studies are substantial evidence that, with the proposed mitigation, including the 10-foot setback, both structures at 1772 Glendon Avenue and 1751 Malcolm Avenue would not be built “across the trace of active faults” and that a 50-foot setback was not required. (§ 2621.5(a) and § 3603(a).)

In a footnote, Petitioner states: “The AP Act does not allow mat foundations to be substituted for no-build setbacks…. Neither does the AP Act provide for cantilevering as an alternative mitigation.” (OB 9, fn. 4.) The first argument is easily rejected. The mat foundations were not used as a substitute for no-build setbacks, but in addition to the 10-foot setback. Also, Publication 42 recommends that aside from setbacks, “[a]dditional measures (e.g., strengthened foundations, ground improvement, flexible utility connections)” can be used. (AR 661.) The AP Act does not mention any specific mitigation measure explicitly. (§ 2621 et seq. and § 3603.) In these circumstances, LADBS could reasonably accept AES’s recommendation for mat foundations as an additional form of mitigation.

The parties agree that the AP Act and related regulations do not state whether or not cantilevering may be used to ensure a building does not encroach on a setback required by the AP Act. (Oppo. 14-15.) In the absence of a prohibition in the statutes or regulations, the court concludes that cantilevering may be used as mitigation depending on the circumstances and if supported by appropriate geologic investigation and geotechnical reports. (§ 2621.5(a) and § 3603(a)-(d).) In this case, the AES studies are substantial evidence that cantilevering was an appropriate mitigation measure for 1751 Malcolm. (AR 2834, 2915-16, 2920.)

Petitioner also makes a factual argument that the structure at 1751 Malcolm was not constructed “consistent with the cantilever requirement.” (OB 18.) Petitioner represents in its brief that it “has visited 1751 Malcolm Avenue since construction of the structure on that property, and photographed the structure from the street.” (Ibid.) Petitioner states that “[t]he front of the property is not one foot above the finished grade but rather flush with the surface of the lot.” (Ibid.) These statements in Petitioner’s brief are not evidence and are not considered as such by the court. Petitioner also cites its presentation to BBSC, which includes a photograph of the entrance to 1751 Malcolm and a notation by Petitioner stating “No cantilever built.” (AR 1337.) Petitioner cites a Geotechnical Cross Section from AES’s final report, which specifies that the cantilevered portion of the building “must be structurally cantilevered 1’ above ground.” (AR 2920.) As noted in the opposition brief, the LADBS-approved plans also indicate that the 12-inch gap between the cantilevered portion and the ground is filled in with Styrofoam. (Oppo. 14, citing AR 1806; see also Sinanian Decl. ¶ 5.) Given these plans, the court cannot determine solely from the cited photograph that the Project, as constructed, did not comply with the cantilever requirement. Specifically, the photograph does not show whether, consistent with AES studies and the approved plans, the building was “structurally cantilevered 1’ above ground” with the use of Styrofoam in the 12-inch gap. Furthermore, Petitioner has the burden of proof and did not submit an expert declaration proving that the building was constructed inconsistent with the approved cantilever requirement.

In reply, Petitioner argues for the first time that “[t]he Styrofoam is not mentioned anywhere in the geologic report that required the cantilever.” (Reply 13.) Petitioner cites a statement in the third AES report that any “appurtenant stair or bridge structure … shall be structurally separate from the main building.” (Ibid., citing AR 2916.) These reply arguments are improper and should have been presented in the opening brief so Respondents could address them. Moreover, on the merits, these arguments are not persuasive. While Styrofoam is not mentioned in the AES studies, it was included in the Project plans which are part of the record. (AR 1806.) The court cannot determine from Petitioner’s cited evidence, which consists entirely of a photograph, that the cantilevered portion of the building was not constructed consistent with AES’s recommendations. Petitioner cites no expert evidence in support.

Based on the foregoing, Petitioner does not meet its burden to show that LADBS abused its discretion under the AP Act and related regulations in approving the mitigation proposed by AES. Nor does Petitioner prove that the Project was constructed in a manner inconsistent with the approved cantilevering requirement. The court has decided these issues based on the burden of proof, evidence in the administrative record, and background information provided by Sinanian about how the building was actually constructed. The court has not relied on Respondents’ new expert evidence concerning the cantilever requirement. (See Schneidereit Decl. ¶ 30.)

Petitioner contends that the appropriate remedy should be revocation or suspension of the certificates of occupancy for the Project. The court is not convinced that this is necessarily the only appropriate remedy. For example, the court could remand the matter to LADBS for further consideration of whether the potential fault line depicted on the 2018 A-P Zone Map potentially comes within 50 feet of the Project, and if so, what further investigation is warranted. (See Pub. Res. Code sec. 2323(b)). If remanded, all parties would be permitted to submit supplemental geologic reports or declarations of their own addressing these issues. However, the court notes that on remand, a generic conclusion that the 2018 Map is not to scale does not, in and of itself, suffice to support a decision that the location of the potential fault trace cannot be determined. The parties should address the appropriate remedy at the hearing. If necessary the court will order supplemental briefing on the issue.

Pursuant to the local rules which designate that Department 82 is a specialized Writs and Receivers department and not a general civil department, only a cause of action for writ of mandate is properly assigned to this department. (LASC Local Rules 2.8(d) and 2.9.) Local Rules 2.8(d) and 2.9 do not include a claim for declaratory relief as a special proceeding assigned to the writs departments.

On January 6, 2022, the court stayed the third cause of action until the court rules on the writ causes of action. It appears that the declaratory relief claim is entirely derivative of the writ claims. Counsel may address that at the hearing.

Subject to oral argument on the issues outlined above, the first and second causes of action are Granted.

Subject to argument, the third cause of action for declaratory relief is denied.

[1] Unless otherwise stated, statutory references are to the Public Resources Code, and citations to regulations are to title 14 of the California Code of Regulations.

[2] The regulations define “active fault” as “a fault that has had surface displacement within Holocene time (about the last 11,000 years)….” The regulations define “fault trace” as “that line formed by the intersection of a fault and the earth's surface, and is the representation of a fault as depicted on a map, including maps of earthquake fault zones.” The regulations define “earthquake fault zones” as “areas delineated by the State Geologist, pursuant to the Alquist-Priolo Earthquake Fault Zoning Act … which encompass the traces of active faults.” (§ 3601(a)-(d).)

[3] The maps also refer to the locations of “geotechnical borings.” (AR 2703.) Those appear different than the 3 continuous core borings used in the field exploration for the fault study.