Judge Mary H. Strobel, Case 22STCP00217 2023-02-23 Tentative Ruling

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

Petitioners Elite-Trc Alhambra Community LLC, Elite-Trc North Parcel LLC, and The Corner Company, LLC (“Petitioners”) petition for a writ of mandate directing Respondents City of Alhambra (“City”) and City Council of the City of Alhambra (“Council”; collectively, “Respondents”) to set aside Council’s decision to deny Petitioners’ applications for land use entitlements for a mixed-used development project at 1000 S. Freemont Street, Alhambra, CA (the “Project”). Petitioners contend that the Housing Accountability Act (“HAA”) applies to the Project and mandates that Council grant the land use entitlements. Petitioners also contend that other denial findings made by Council are not supported by substantial evidence.

Petitioners’ Request for Judicial Notice (“RJN”) Exhibits A-C – Granted.

As stated in a staff report, “The project site is The Alhambra, a unique property originally built as the corporate headquarters for the engineering firm C. F. Braun from the 1920’s to 1980’s. The Alhambra occupies the entire block bounded by Orange Street to the north, Mission Road to the south, Date Street to the east, and Fremont Avenue to the west. The property occupies approximately 1,675,498 square feet (38.38 acres, approximate). The property currently exists as an office campus with 20 buildings of varying heights and 974,166 square feet of office space. The property is fully developed with office, fitness center, warehouse, storage, utility substation, and surface parking lot uses.” (AR 9485.)

On May 25, 2017, Petitioners submitted an application to redevelop the Project Site into 1,061 housing units, new offices, and other uses. Petitioners requested discretionary approval of a vesting tentative map (“VTM”); conditional use permit (“CUP”); planned development permit (“PDP”); and variances. (AR 19886.)

In a variance application, Petitioners requested a variance to reduce the number of parking spaces required pursuant to the Alhambra Municipal Code (“AMC”). (AR 136.) Specifically, Petitioners requested “a variance to allow a shared parking arrangement for an existing office and commercial campus with the addition of 1,061 residential dwelling units.” (Ibid.) Petitioner noted in its application, and City staff reports confirmed, that a similar “shared parking variance was approved for the Villages at the Alhambra Project Site in 2004.” (Ibid.; see also AR 16945-47, 106-107, 1521-23.) Petitioner proposed to provide approximately 2,246 less parking spaces than required by the AMC. (See AR 106-107 and 9497-99; see also Oppo. 8, fn. 3.)[1]

On June 22, 2017, City informed Petitioners that their application was incomplete. Specifically, City stated that Petitioners needed to submit additional copies of the Project plans and vesting tentative tract map and a property ownership mailing list, and to pay environmental filing fees associated with the CEQA process. (AR 499-500.) Petitioners promptly addressed the City’s requests and City scheduled a public scoping meeting on the Project’s environmental impact report (“EIR”) for October 19, 2017. (Opening Brief (“OB”) 6:25-27 and AR 525-528.)

In addition to requesting a variance from the minimum parking requirements, the variance application requested the City to except the permits from 1-year permit terms set by the AMC, and instead to approve the permits with 10-year terms. (AR 96.) In the June 22, 2017 notice, City staff informed Petitioners that a variance is not a mechanism for extending permit expiration dates, but that a request for such extensions could be pursued by alternative means. (See AR 499.)

On October 18, 2019, apparently in response to City’s suggestion, Petitioners applied for approval of a development agreement, which would, among other things, give the Petitioners a vested right to develop the Project pursuant to the City regulations in effect at the time of approval and for a term extending beyond the otherwise applicable expiration date of the approvals. (AR 19886; see 21093-21099, 21100-21103.)

The proposed development agreement also referenced Petitioners’ variance application, in which they requested relief from the minimum parking requirements. (AR 21096.) On February 11, 2020, the City returned the draft development agreement with comments, including that Petitioners might request an exception from the parking requirements through the discretionary process set forth in AMC section 23.52.060 (“Section 23.52.060”), rather by the variance application. (AR 22125-28.)

On July 20, 2020, the Planning Commission held a public hearing on Petitioners’ applications. The agenda for the meeting summarized the Project application and then stated the following: “In addition, -- it is expected that if the Project is approved the applicant will implement a parking reduction pursuant to Alhambra Municipal Code Section 23.52.060.” (AR 9476.) As Petitioners note, a similar statement was included in numerous agendas and staff reports related to the Project in the proceedings before the Planning Commission and City Council. (OB 8:10-23, citing record.)

In a staff report for the July 20, 2020, meeting, City staff asserted that the Project was ineligible for protections of the HAA because “the proposed Project is requesting a modification of the off-street parking requirements, [and therefore] the Project is not fully compliant with the applicable objective General Plan and zoning criteria of a residential development in accordance with the Alhambra Municipal Code.” (AR 9512-13.)

The July 20, 2020, staff report explained that “[t]he applicant is also seeking to implement a parking reduction pursuant to Alhambra Municipal Code Section 23.52.060.” (AR 9485.) As relevant to this writ petition, the staff report summarized Petitioners’ request for a parking reduction and supporting evidence, as follows:

Pursuant to Alhambra Municipal Code (AMC) Section 23.52.060(A) [Reduction of Requirements], the alternating use of parking facilities may be approved in cases where parties wish to cooperatively establish and operate parking facilities and where the uses on those sites generate parking demands primarily during hours when the remaining uses are not in operation.

The Applicant hired Walker Consultants, a third-party consultant to prepare a Shared Parking Analysis (Appendix B of the Draft EIR) for the site. The Analysis proposes to demonstrate that the maximum parking demand for the existing, remaining uses in the Office Area is actually 2,213 during weekdays and 788 on weekends. Thus, even though Code-requirements would be for 4,206 spaces based on a total proposed remaining Office Area of 902,201 square feet, the Analysis describes a need to provide just 2,213 spaces to meet the actual parking demands. The Project proposes to retain approximately 1,778 parking spaces within two existing parking structures. A 490- space parking structure is also proposed to be constructed in the East Plan Area to serve the parking needs of the Office Plan Area. With the construction of this parking garage, there would be 2,268 parking spaces provided for the exclusive use of the Office Plan Area, which exceeds the Analysis’ conclusion regarding the maximum daily parking demand for the remaining buildings in the Office Area.

Between July 20, 2020, and November 2, 2020, the Planning Commission conducted eight public hearings to consider Petitioners’ applications and received testimony from approximately 377 members of the public. (AR 16738.) During the course of the Planning Commission proceedings, Petitioners modified the Project to reduce the total number of housing units from 1,061 to 839. (Ibid.)

On November 16, 2020, the Planning Commission adopted a resolution recommending that the City Council deny the applications. (AR 16900-18.) Among other reasons for its recommendation, Commission found that allowing Petitioners to provide fewer spaces than the minimum required by Section 23.52.040 would cause parking shortages for businesses’ customers and employees, and traffic congestion. (AR 16908-09.) Commission was also concerned that “the project density is too great and will lead to significant impacts relating to traffic,” among other issues, and that the proposed land uses would not be consistent with the General Plan. (AR 16906.)

City Council then held 12 public hearings on the Project, from January 11, 2021, through October 25, 2021. (OB 8:24-28, citing record.) Council received extensive oral testimony and written comments from the public. (AR 19890-92.) During the course of the Council proceedings, Petitioners modified the Project to reduce the total number of housing units to 775 and then 790. (AR 18189, 19623.)

On October 25, 2021, Council adopted Resolution R2M21-40 denying the Project. (AR 19886-904.) Council’s relevant findings and conclusions of law are discussed in the Analysis section below.

On January 20, 2022, Petitioners filed their verified petition for writ of mandate and complaint for declaratory and injunctive relief. The petition for writ of mandate includes three separate causes of action: (1) violation of the HAA; (2) failure to support denial findings with substantial evidence; and (3) violation of limitation on number of hearings in Government Code section 65905.5 of the Housing Crisis Act (“HCA”). The complaint also includes a fourth cause of action for declaratory relief.

On May 3, 2022, at the trial setting conference, the court granted the parties’ requests to extend the page limits for the writ briefs by five pages each. The court stayed the declaratory relief cause of action pending resolution of the writ causes of action.

On December 16, 2022, Petitioners filed their opening brief in support of the petition. The court has also received Respondents’ opposition, Petitioners’ reply, the administrative record, and the joint appendix.

Petitioners’ challenge to quasi-judicial administrative actions of City, such as the denial of a vesting tentative map or CUP, are reviewed under CCP section 1094.5. (See Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1005-06.) Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

In administrative mandate proceedings, the trial court reviews land use decisions for substantial evidence. (See Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 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.)

Generally, in an administrative mandate proceeding, “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.) The petitioner seeking administrative mandamus has the burden of proof and must cite to the administrative record to support its contentions. (See Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.)

However, the burden of proof is reversed in an action to enforce the HAA. “In any action taken to challenge the validity of a decision by a city, county, or city and county to disapprove a project or approve a project upon the condition that it be developed at a lower density pursuant to Section 65589.5, the city, county, or city and county shall bear the burden of proof that its decision has conformed to all of the conditions specified in Section 65589.5.” (Gov. Code § 65589.6; see California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 837 [“As the public entity that disapproved the project, the City bears the burden of proof that its decision conformed to the HAA. (§ 65589.6.)”].)

Regardless of which party bears the burden of proof, a reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

The approval of a development agreement is a legislative act, not a quasi-judicial act. (Neighbors in Support of Appropriate Land Use, supra, 157 Cal.App.4th at 1004.) Accordingly, Petitioners’ challenge to the Council’s denial of the application for a development agreement is reviewed under CCP section 1085. (Ibid.) “The trial court's inquiry in a traditional mandamus proceeding is limited to whether the local agency's action was arbitrary, capricious, or entirely without evidentiary support, and whether it failed to conform to procedures required by law.” (Ibid.)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ …. Interpretation of a statute or regulation is a question of law.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioners contend that, for several reasons, City failed to comply with the HAA when it denied Petitioners’ applications for land use entitlements. (OB 10-20.) Petitioners also contend that, separate from the HAA, certain “denial findings” made by City Council are not supported by substantial evidence and “independently fail.” (OB 20-24.)

“The HAA was enacted in 1982 in an effort to address the state's shortfall in building housing approximating regional needs, and the Legislature has amended the law repeatedly in an increasing effort to compel cities and counties to approve more housing.” (Save Lafayette v. City of Lafayette (2022) 85 Cal.App.5th 842, 850.) “Still dissatisfied with the dearth of housing in this state, the Legislature in 2017 passed further amendments to the HAA, supported by detailed findings. The Legislature added a provision requiring that an applicant receive timely written notice and an explanation if an agency considers a proposed housing development inconsistent with applicable standards. (§ 65589.5, subd. (j)(1); Stats. 2017, ch. 378, § 1.5.) It heightened fines for bad faith disapproval of a project. (§ 65589.5, subd. (l); Stats. 2017, ch. 378, § 1.5.) And it increased the burden of proof required for a finding of adverse effect on public health or safety. (§ 655589.5, subd. (j)(1); Stats. 2017, ch. 378, § 1.5.).” (California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 836 [hereafter “CARLA”].)

As relevant to this writ petition, “the HAA provides that when a proposed housing development complies with objective general-plan, zoning, and subdivision standards and criteria in effect at the time the application is deemed complete, the local agency may disapprove the project or require lower density only if it finds the development would have specific adverse effects on public health or safety that cannot feasibly be mitigated.” (Save Lafayette, supra, 85 Cal.App.5th at 850; see Gov. Code § 65589.5(j)(1).)

Thus, stated differently, a city may deny a land use application without making the findings required by the HAA if the proposed housing development does not comply with “with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete.” (§ 65589.5(j)(1) and CARLA, supra, 68 Cal.App.5th at 838.)

Section 65589.5(f)(4) also states the following: “For purposes of this section, a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity.”

In an action under the HAA, “instead of asking, as is common in administrative mandamus actions, ‘whether the City's findings are supported by substantial evidence’ (ibid.), we inquire whether there is ‘substantial evidence that would allow a reasonable person to conclude that the housing development project’ complies with pertinent standards. (§ 655589.5, subd. (f)(4).) As the public entity that disapproved the project, the City bears the burden of proof that its decision conformed to the HAA. (§ 65589.6.)” (CARLA, supra, 68 Cal.App.5th at 837.)

Finally, the HAA states that “[i]t is the policy of the state that this section be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.” (§ 65589.5(a)(2)(L).)

The HAA Does Not Apply to Petitioners’ Application for a Development Agreement

Respondents contend that the HAA does not apply to the entire Project because Petitioners applied for a development agreement, which required legislative approval and was “an integral component of Project application.” (Oppo. 13-14.)

The approval of a development agreement is a legislative act. (Neighbors in Support of Appropriate Land Use, supra, 157 Cal.App.4th at 1004.) “[A] court is without power to interfere with purely legislative action, in the sense that it may not command or prohibit legislative acts[.] ... The reason for this is a fundamental one—it would violate the basic constitutional concept of the separation of powers among the three coequal branches of the government.” (United Assn. of Journeymen v. City and County of San Francisco (1995) 32 Cal.App.4th 751, 759.)

The HAA applies to applications for development projects that conform to existing, objective planning and zoning standards (see § 65589.5(j)), not to applications for legislative acts. Petitioners concede this point in reply and also did so in the administrative proceedings. (See Reply 9 and AR 18030-33 [“While City Council may decline to enter into a development agreement, it cannot deny the Project consistent with the [HAA].”].) The court concludes that the HAA does not apply to Council’s legislative decision to deny the application for a development agreement.

It does not follow, however, that the remainder of the Project is exempt from the HAA simply because Petitioners applied for a development agreement. Respondents cite no authority for that proposition. Respondents state that “City found that Petitioners’ request for a DA was an integral component of Project application when deciding to deny the Project.” (Oppo. 14, citing AR 19896.) However, City Council did not find that the entire Project was exempt from the HAA because Petitioners also requested a development agreement. (AR 19893-94.) Respondents appear to be raising that argument for the first time on writ review.

Furthermore, “as the public entity that disapproved the project, the City bears the burden of proof that its decision conformed to the HAA. (§ 65589.6.)” (CARLA, supra, 68 Cal.App.5th at 837.) In exchange for additional affordable housing and other public benefits, the development agreement proposed to vest the Project’s required entitlements and extend the default entitlement lifespans established in the AMC for a total period of approximately 20-years. (AR 19656-19695.) While such benefits were presumably important to Petitioners, Respondents cite no evidence that Petitioners would have been unable to proceed with the Project if City had denied solely the application for a development agreement. The court concludes that Council’s denial of the application for a development agreement did not exempt the remainder of the Project from the HAA.

City Was Not Required to Make Findings Under Section 65589.5(j) Because the Project Does Not Comply with Objective Parking Standards in AMC Section 23.52.040

Respondents also argue that, even if the HAA applies, City properly denied the Project because the Project did not satisfy the objective parking standards under AMC section 23.52.040 and because substantial evidence supports the City’s decision to deny the discretionary parking reduction under section 23.52.060(A). (Oppo. 17-22.) “City bears the burden of proof that its decision conformed to the HAA. (§ 65589.6.)” (CARLA, supra, 68 Cal.App.5th at 837.) The court concludes that Respondents have the burden of proof on the first of these arguments, but not the second, as discussed below.

A city may deny a land use application without making the findings required by the HAA if the proposed housing development does not comply with “with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete.” (§ 65589.5(j)(1) and CARLA, supra, 68 Cal.App.5th at 838 [bold italics added].) The HAA defines “objective” to mean “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.” (§ 65589.5(h)(8).) Thus, “a standard that cannot be applied without personal interpretation or subjective judgment is not ‘objective’ under the HAA.” (CARLA, supra, 68 Cal.App.5th at 840.) “[W]hether the [standards] are ‘applicable’ and ‘objective’ for purposes of the HAA is a question of law .” (Id. at 839.)

Here, as a matter of law, AMC section 23.52.040 is an objective zoning standard within the meaning of the HAA. Section 23.52.040 states that “the following minimum number of parking spaces shall be provided for each use” in the City, including residential and commercial uses. (Pet. RJN Exh. C.) For a mixed-used project, the specific minimum number of required parking spaces may be calculated by reference to the chart in section 23.52.040. Indeed, in their variance application, Petitioners identified the precise number of parking spaces required by section 23.52.040 for the entire Project. (AR 106-107; see also AR 1521-23 [CEQA parking analysis].) As Petitioners concede in their writ brief, the calculations of minimum parking under section 23.52.040 are objective in that the “standards involve no subjective judgment by the City and are knowable in advance by a project applicant.” (OB 13.)

In reply, Petitioners do not dispute that section 23.52.040 is objective or that the total number of spaces required by section 23.52.040 could be calculated for the Project. Rather, Petitioners argue, for the first time, that the objective parking standards in section 23.52.040 were not “applicable” to the Project. (Reply 11-15.) Petitioners argue that “[w]hile [section 23.52.040] may be an objective standard as applied to a project consisting of a single use, … it does not address the amount of parking required when there is an interplay of uses on the same site.” (Reply 13.) As Respondents note in opposition, Petitioners apparently conceded in the opening brief and in the administrative proceedings that section 23.52.040 was “applicable” to the Project. (Oppo. 18, citing OB 13:19-20 and AR 27675.)

The court concludes, as a matter of law, that section 23.52.040 is “applicable” to the Project within the meaning of the HAA. Section 23.52.040 defines the “minimum number of parking spaces … for each use” in the City, including residential and commercial uses. (Pet. RJN Exh. C [bold italics added].) The number of required parking spaces can be calculated objectively for a mixed-used project, and Petitioners and the City’s staff and consultants in fact made such calculations for the Project. (See e.g. AR 106-107, 1521-23, 16946-47.) Nothing in the language of section 23.52.040 or section 23.52.060, discussed below, suggests that the parking standards in section 23.52.040 do not apply to a mixed-used project or a project for which “alternating use of parking facilities” is proposed.

As Petitioners concede, and as the undisputed evidence shows, the Project did not satisfy the applicable, objective parking standards of section 23.52.040. (AR 106-107, 1521-23, 16946-47, 27675.) Accordingly, City was not required to make the additional findings of section 65589.5(j)(1) to deny the Project.

The Availability of a Discretionary Parking Reduction in AMC Section 23.52.060 Does Not Make the Objective Requirements of Section 23.52.040 Inapplicable to the Project; and the HAA Does Not Apply to Petitioners’ Application for a Parking Reduction

Petitioners contend that the objective parking standard in section 23.52.040 “must also be read in harmony with the parking standards in AMC § 23.52.060(A), which apply more specifically in cases, such as the Project, where the alternating use of parking facilities is proposed to accommodate parking for projects in proximity to multiple uses.” (OB 13.) Relatedly, in reply, Petitioners argue that the availability of a discretionary parking reduction in section 23.52.060 proves that the objective parking standards in section 23.52.040 were not “applicable” to the Project. (Reply 11-12.) Petitioners discuss Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066 as support for their position. (Ibid.) These arguments are not persuasive.

As Petitioners note, “[a] statute must be construed ‘in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts.’” (People v. Hull (1991) 1 Cal. 4th 266, 272.) However, other rules of statutory construction are also relevant. The court “may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.) In addition, the court “must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246.)

Section 23.52.060 is titled “Reduction of Requirements” and discusses various circumstances under which City may grant reductions from the parking requirements of the AMC. The title and purpose of section 23.52.060 show clearly that these discretionary procedures are designed to grant relief from applicable parking “requirements,” including those in section 23.52.040.

The plain language of section 23.52.060(A) further supports this conclusion. This subdivision states, in full:

(A) The alternating use of parking facilities may be approved in cases where parties wish to cooperatively establish and operate parking facilities and where these uses generate parking demands primarily during hours when the remaining uses are not in operation (for example, if one use operates during the daytime or on weekends and the other use operates during evenings or weekdays only). The burden of proof for a reduction in the total number of required parking spaces, however, shall remain with the applicant, and documentation shall be submitted substantiating the reasons for this requested parking reduction.

An alternating use agreement may be approved only under the following circumstances:

(1) That a sufficient number of spaces shall be provided to meet the greatest parking demand of the alternating uses;

(2) That satisfactory statements have been submitted by the parties operating such facilities, describing the nature of the uses and times when such uses operate so as to indicate the lack of conflict between them; and

(3) That additional documents or agree-ments as may be deemed necessary in each particular case to assure provision for and the maintenance of the required parking spaces have been provided.

The bolded, italicized language shows that section 23.52.060(A) provides a discretionary exception for alternating use of parking facilities to the mandatory parking requirements of section 23.52.040. The reduction from the minimum parking requirements “may be approved” if the applicant meets its burden of proof on three subjective standards in subdivision (A)(1)-(3), but the City must exercise its discretion. The applicant must submit documentation and evidence to justify “a reduction in the total number of required spaces.” Harmonizing the two statutes, this discretionary procedure under which City “may” grant a reduction in required parking spaces only makes sense if the minimum parking requirements of section 23.52.040 apply in the first place. Respondents argue, and the court agrees, that section 23.52.060(A) provides the applicant seeking a parking reduction an alternative to a variance application, which may be easier to obtain. (Oppo. 19.) Although the threshold showing required under section 23.52.060(A) appears lower than that of a variance application (see Resp. RJN Exh. A), the procedures are both discretionary and offer exceptions from the objective parking standards.

Petitioners seem to argue that the availability of a discretionary exception to an objective zoning standard also renders the planning standard for which an exception is sought to be non-objective under the HAA. (OB 13-16.) Petitioners cite no authority for this novel position, which conflicts with the plain language and purpose of the HAA. “[T]he HAA cabins the discretion of a local agency to reject proposals for new housing” by “require[ing] municipalities to apply standards that are both ‘objective’ and ‘in effect at the time that the application was deemed complete.’” (CARLA, supra, 68 Cal.App.5th at 844.) If a project does not comply with an applicable, objective zoning standard, the HAA does not limit municipalities from exercising their discretion to grant a variance or other exception from the objective zoning standards.

The court finds support for this conclusion in section 65589.5(f)(4).) “Added in 2017 as the Legislature sought to strengthen the HAA, subdivision (f)(4) deems a project consistent with applicable objective standards ‘if there is substantial evidence that would allow a reasonable person to conclude that the [project] is consistent, compliant, or in conformity’ with such standards.” (CARLA, supra, 68 Cal.App.5th at 845.) As noted by the Court of Appeal, this reasonable person standard “is intentionally deferential to housing development” and is “an excellent backstop to ensure that the standards a municipality are applying are indeed objective.” (Ibid.) The HAA does not include a similar provision that a court would apply if a project does not satisfy objective zoning standards, and the municipality does not exercise its discretion to grant a variance or other discretionary exception from the zoning standards.

Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066 is inapposite. (Reply 11-12.) In Honchariw, the county asserted that the HAA did not apply to a project requiring a subdivision because the project failed to comply with the county’s subdivision water connection requirement. The Court of Appeal held, in relevant part, that the water connection requirement “is only applicable, i.e., relevant and operative, when a developer or owner attempts to build a home on the lots.” (Honchariw, supra, at 1080.) Thus, until the tentative map for the subdivision was approved, it was “premature” for the trial court to conclude that the proposed project failed to comply with the water connection requirement. (Ibid.) Here, in contrast, compliance or non-compliance with AMC section 23.52.040 could be, and in fact was, determined prior to approval of the Project. (See AR 106-107, 1521-23, 16946-47, 27675.) Furthermore, while section 23.52.060 is not an objective standard subject to the HAA, City also could determine prior to approval or disapproval of the Project whether to grant a parking reduction under that section.

Petitioners also argue that “[n]owhere did the City state or find that it could not approve the Project due to the Project proposing less parking than that required under the general ratios in AMC § 23.52.040.” (OB 15:19-28, citing record.) Petitioners argue that “the City processed the Project and held over 19 public hearings on the Project with the stated understanding that (1) it could approve the Project as proposed, and (2) the City would assess the proper amount of parking required after it approved the Project pursuant to AMC § 23.52.060.” (Ibid.) The relevance of these arguments to any legal claim in the petition is unclear. Petitioners have not pleaded a claim for estoppel or developed a legal argument that City was bound by any statements of City staff during the Planning Commission or Council proceedings. Moreover, contrary to Petitioners’ assertion, the City did not state that a parking reduction would necessarily be approved under section 23.52.060. In an agenda, City stated that “it is expected that if the Project is approved the applicant will implement a parking reduction pursuant to Alhambra Municipal Code Section 23.52.060.” (AR 9476 [bold italics added].) At a Planning Commission meeting, a City planner Paul Lam stated that section 23.52.060 “provides a process in which reductions [to parking requirements] may be sought” and that Petitioners would need to submit an analysis showing that a parking reduction is “feasible.” (AR 16196 [bold italics added].) Petitioners, who were represented by attorneys, could reasonably discern from such statements that City would determine, as part of the approval process, whether to grant a parking reduction pursuant to section 23.52.060.

In reply, Petitioners assert: “Nowhere does the City address a central question: how could it have approved a project that did not comply with the City’s objective parking standards? If the City really believed its concocted litigation position, there would have been no need to hold over 20 public hearings on the Project. Or, put another way, the City would have only considered the Project if it also considered a variance or some other form of exception to its parking code.” (Reply 13.)

While it may have been better for Petitioners had City determined whether or not to grant a parking reduction earlier in the process, Petitioners cite no authority that City was required to do so. City Council was the ultimate decisionmaker with respect to the Project and Petitioners’ request for a parking reduction. The record shows that City Council did consider whether to grant a parking reduction pursuant to section 23.52.060 and exercised its discretion to deny a parking reduction. (AR 19900.)

Petitioners argue that, even if City’s parking standards in section 23.52.060 are “objective,” Petitioners complied with such standards. (OB 16-17.) Because section 23.52.060 is a discretionary standard not subject to the HAA, the modified burden of proof under section 65589.6 and the modified standard of review in section 65589.5(f)(4) do not apply. (See CARLA, supra, 68 Cal.App.5th at 837.) The court analyzes below, for the second cause of action, whether substantial evidence supports Council’s findings under section 23.52.060.

Based on the foregoing, section 23.52.060 is a discretionary standard not subject to the HAA. Because the Project did not satisfy the objective parking standards of section 23.52.040, City Council was not required to make findings under the HAA.

The Notice Requirements of Section 65589.5(j)(2)(A) Did Not Apply Retroactively to Petitioners’ Applications

In their final argument under the HAA, Petitioners contend that “[b]y operation of law …, the Project was deemed consistent with the applicable standards and criteria on or around March 1, 2018.” (OB 17.) Petitioners contend that section 65589.5(j)(2)(A), which was enacted with Senate Bill 167 (“SB 167”) and went into effect on January 1, 2018, should be construed to apply to the Project application, which was complete in 2017. Petitioners raise an issue of retroactive application of statute.

(2)(A) If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:

(ii) Within 60 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains more than 150 units.

(B) If the local agency fails to provide the required documentation pursuant to subparagraph (A), the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.

Section 65589.5(j)(2) mandates notice from the local agency within a specific timeframe – here, “within 60 days of the date that the application for the housing development project is determined to be complete.” (bold italics added.) The parties agree that the Project application was deemed complete for purposes of the HAA by October 19, 2017. (OB 6:25-27 and Oppo. 9, fn. 4; see also Save Lafayette, supra, 85 Cal.App.5th at 850 and Gov. Code § 65943(b).) Section 65589.5(j)(2) was not effective until January 1, 2018, well after the 60-day window for giving notice. Thus, Petitioners seek a retroactive application of the statute.

“‘Generally, statutes operate prospectively only.’ [Citations.] ‘[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.... For that reason, the ‘principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.’ [Citations]….[¶] … [A] statute that interferes with antecedent rights will not operate retroactively unless such retroactivity be ‘the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.’ [Citations.] ‘[A] statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application.’” (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475.)

Petitioners have not identified any express language of retroactivity in the HAA or SB 167 relevant to section 65589.5(j)(2). Instead, Petitioners argue that “the legislative intent expressed in the HAA itself and the context of the enactment of the amendments indicate the intent of the Legislature for retroactive application of the amendments of Senate Bill 167.” (OB 19.) Petitioners cite the statement in section 65589.5(a)(2)(L) that “[i]t is the policy of the state that this section be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.” Petitioners also cite the Legislature’s findings that “California has a housing supply and affordability crisis of historic proportions…” and that “California’s housing picture has reached a crisis of historic proportions….” (Gov. Code § 65589.5(a)(2)(A), (J).) These statements do not provide “a clear and unavoidable implication” that the Legislature intended the notice requirement of section 65589.5(j)(2) to operate retroactively to Project applications that were complete prior to January 1, 2018. While section 65589.5(a)(2)(L), in particular, suggests the Legislature intended for the HAA to be interpreted in a manner that promotes the approval of housing, that instruction concerns prospective enforcement of the statute. If the Legislature intended to make the notice provision retroactive, it would have declared that the provision applies to applications that were deemed complete prior to January 1, 2018. The notice provision 65589.5(j)(2) does not make sense, textually, for project applications for which the specified notice period had already lapsed by January 1, 2018.

Petitioners argue that SB 167 may be given “prospective effect” if the court interprets section 65589.5(j)(2) to require municipalities to comply with the notice requirement for pending applications “within 60 days of the effective date.” (OB 18:1-3 and Reply 18:1-6.) However, as noted, the Project application was complete and the 60-day period for notice had lapsed before SB 167 became effective on January 1, 2018. There is no language in section 65589.5(j)(2) directing the local agency to give notice after the 60-day period has lapsed or suggesting that the notice requirement applies to pending applications. Contrary to Petitioners’ assertion, interpreting section 65589.5(j)(2) to require City to give notice of non-compliance within 60 days of the effective date of January 1, 2018, has no textual support in the statute and also requires a retroaction application.

The notice and “deemed consistent” provisions of section 65589.5(j)(2)(A) and (B) did not apply to the Project. The Project was not deemed consistent with City’s objective standards by operation of law. In light of this conclusion, the court does not reach Respondents’ argument that Petitioners were not prejudiced by any lack of notice. (Oppo. 24-25.)

Based on the foregoing, Petitioner’s first cause of action under the HAA is DENIED.

Second Cause of Action – Failure to Support Denial Findings with Substantial Evidence

Substantial Evidence Supports the Council’s Decision to Deny a Parking Reduction Under AMC Section 23.52.060(A)

Petitioners challenge the Council’s section 23.52.060(A) findings under the lower HAA standard. (See OB 17 and Reply 15-16.) However, because section 23.52.060 is a discretionary standard not subject to the HAA, the modified burden of proof under section 65589.6 and the modified standard of review in section 65589.5(f)(4) do not apply. (See CARLA, supra, 68 Cal.App.5th at 837.) The court applies the usual substantial evidence standard of review that applies to land use decisions under CCP section 1094.5. Under that standard, “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.)

In relevant part, Council made the following findings: “The Applicant … has requested a parking reduction pursuant to the discretionary process allowed by Code section 23.52.060. The Applicant's parking study suggested that non-residential garage parking spaces in the East Plan Area might be available for residential guest parking on nights and weekends, but did not provide details and suggested it would require a future agreement with Project operators or non-residential business interests. Furthermore, the Applicant has not offered to provide permanent parking use of non-residential spaces for residents…. [T]he Applicant has not met its burden of proof as required under Section 23.52.060 to show that the Project's residential uses can be adequately served by the parking spaces being proposed and will not cause congestion, adverse effects on the residents and the surrounding community, or other negative consequences. Therefore the City Council hereby finds, exercising its discretion pursuant to Code section 23.52.060, that approval of a reduction in residential parking below the parking standards required by Code section 23.52.040 is not justified and is denied.” (AR 19889 ¶¶ 6 and 10-11.)[2]

Section 23.52.060(A) places the burden of proof on the applicant, and states that “an alternating use agreement [for shared parking] may be approved only under the following circumstances: (1) That a sufficient number of spaces shall be provided to meet the greatest parking demand of the alternating uses; (2) That satisfactory statements have been submitted by the parties operating such facilities, describing the nature of the uses and times when such uses operate so as to indicate the lack of conflict between them; and (3) That additional documents or agreements as may be deemed necessary in each particular case to assure provision for and the maintenance of the required parking spaces have been provided.” (Pet. RJN Exh. C.) Thus, the statute requires evidence supporting all three findings in subdivision (A)(1)-(3).

Petitioners contend that they are entitled to a parking reduction based on “a Shared Parking Analysis dated January 7, 2019, prepared by Walker Consultants, one of the leadings experts in analyzing parking.” (OB 17, citing AR 1505-1525.) The Shared Parking Analysis was for the original 1,061 application and was not updated to analyze Petitioners’ modified applications before the City Council, which reduced the number of residential units to 790. In reply, Petitioners argue, without citation to the record, that "given that the Shared Parking Analysis demonstrated the Project site would have sufficient parking for a 1,061-unit project, it stands to reason that a reduced, 790-unit project would have sufficient parking.” (Reply 16, fn. 3.) Under substantial evidence review, the court cannot reweigh the evidence. Council could reasonably find the Shared Parking Analysis to be outdated and insufficient to meet Petitioners’ burden of proof, in that it did not analyze the amount of shared parking required for the modified Project. The court is not persuaded that a parking analysis for a larger project necessarily applies to a parking analysis for a smaller but modified project.

Furthermore, the Shared Parking Analysis did not include any statements “by the parties operating such facilities, describing the nature of the uses and times when such uses operate so as to indicate the lack of conflict between them” or evidence that “additional documents or agreements . . . to assure provision for and the maintenance of the required parking spaces have been provided.” (§ 23.52.060(A)(2) and (3).) The Shared Parking Analysis makes certain assumptions about the parking needs of the Project uses based on studies from the Urban Land Institute and information from Petitioners. However, the Shared Parking Analysis did not contain any statements or documentation required by section 23.52.060(A)(2) and (3). (AR 1507-09.) Nor have Petitioners cited to any other evidence supporting those two requirements for a parking reduction under section 23.52.060(A). Because Petitioners did not submit a parking analysis for the modified Project or the evidence required by subdivisions (A)(2) and (3), Council could reasonably find, as it did, that Petitioners did not prove that “a sufficient number of spaces shall be provided to meet the greatest parking demand of the alternating uses.” (§ 23.52.060(A)(1).)

Petitioners cite a statement by a City staff person, at a meeting on October 5, 2020, that the Shared Parking Analysis used parking rates that are “more in line with current demands for residential parking” than the minimum requirements of the AMC. (AR 16155.) In reply, Petitioners also contend that they had no reason to update the parking analysis because of “City’s repeated assertions indicating that the City would only review and approve the Project’s parking requirements after the approval of the Project.” (Reply 15:25-16:7, citing record.) As discussed above, Petitioners, who were represented by attorneys, could reasonably discern from City’s statements that City would determine, as part of the approval process, whether to grant a parking reduction pursuant to section 23.52.060. Indeed, the discussion at the October 5, 2020, hearing shows that City was considering the parking reduction request as part of the approval process. (AR 16155.) Petitioners have not developed any claim of estoppel or that they lacked a sufficient opportunity to submit additional evidence in support of the parking reduction request.

Substantial evidence supports the Council’s findings that Petitioners did not meet their burden of proof under section 23.52.060(A) to obtain a parking reduction.

Substantial Evidence Supports Council’s Denial of the Application for a Development Agreement; and That Legislative Decision Was Not Arbitrary, Capricious, or Unreasonable

Pursuant to AMC section 23.71.060, Council could only approve the development agreement if it made the following findings: “(A) The proposed development agreement is consistent with the objectives, policies, general land uses and programs of the General Plan; and (B) The adoption of the proposed development agreement would not be detrimental to the public interest, health, safety, convenience or welfare.” (Resp. RJN Exh. B.)

In its decision, Council found that the development agreement requested by Petitioners would not be in the public interest because the Project included insufficient affordable housing; construction laborers would not be paid a living wage; and Petitioners did not provide an adequate community benefit payment. (AR 19901-02.) Council also found that the Project would not be consistent with General Plan policies M-1A and M-1B, related to mobility and circulation. (Ibid.)

As discussed above, the approval of a development agreement is a legislative act, not a quasi-judicial act. (Neighbors in Support of Appropriate Land Use, supra, 157 Cal.App.4th at 1004.) Accordingly, Petitioners’ challenge to the Council’s denial of the application for a development agreement is reviewed under CCP section 1085. (Ibid.) “The trial court's inquiry in a traditional mandamus proceeding is limited to whether the local agency's action was arbitrary, capricious, or entirely without evidentiary support, and whether it failed to conform to procedures required by law.” (Ibid.) “If the underlying act involves the exercise of discretionary legislative power, the courts will interfere by mandamus only if the action taken ‘is 'so palpably unreasonable and arbitrary as to indicate an abuse of discretion as a matter of law.' ” (United Assn. of Journeymen v. City and County of San Francisco (1995) 32 Cal.App.4th 751, 759.)

In reply, Petitioners argue, for the first time, that “judicial deference owed to a legislative act such as the approval of a Development Agreement does not extend to decisions made in a non-legislative capacity.” (Reply 8-9.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioners do not show good cause to raise this argument, which concerns the standard of review, in the reply brief. Petitioners should have raised all arguments concerning the standard of review in their opening brief. (See LASC Local Rules 3.231(i)(3) [opening brief must state petitioner’s position on standard of review].)

Even if considered, the new reply argument is unpersuasive because Council decided to deny the development agreement solely in a legislative capacity. (AR 19901 ¶¶ 1-2.) The cases cited by Petitioners addressed circumstances in which the agency “simultaneously” acts in in a legislative and quasi-judicial capacity for a single decision. (See Mountain Defense League v. Board of Supervisors (1977) 65 Cal.App.3d 723, 729.) Petitioners themselves concede that the development agreement “was not required to ensure consistency with any applicable, objective General Plan, zoning, or subdivision standard.” (Reply 10:12-13.) That concession defeats Petitioners’ new position that denial of the development agreement should be reviewed as a quasi-judicial decision. The court concludes that Council’s legislative decision to deny the development agreement is subject to the lower standard of review under CCP section 1085.[3]

In their opening brief and reply, Petitioners have not challenged the finding the development agreement would not be in the public interest. (OB 20-24; Reply 7-10.) Petitioners do not discuss the finding or cite all material evidence upon which Council could have relied in making that finding. Petitioners, therefore, have not met their burden of proof to establish a prejudicial abuse of discretion or legal error in that denial finding. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point… we treat the point as waived”].) Furthermore, Petitioners have not cited, and the court has not found, any evidence in the record that would suggest Council’s public interest finding was arbitrary, capricious, or entirely lacking in evidentiary support.

The public interest findings were required for approval of the development agreement. (AMC § 23.71.060.) “Because the [Council] declined to approve the project, in order to establish reversible error, appellant must demonstrate that all the key findings are defective, as one adequate finding is sufficient to support the [Council’s] decision.” (Levi Family Partnership, L.P. v. City of Los Angeles (2015) 241 Cal.App.4th 123, 130.) Accordingly, because Petitioners do not show any error in the public interest findings, Petitioners’ challenge to the Council’s denial of the development permit necessarily fails. The court need not consider the parties’ remaining contentions related to the development agreement findings.

Nonetheless, because the General Plan findings may be relevant to other land-use findings, the court also analyzes the parties’ arguments regarding the Project consistency with General Plan circulation policies. In its finding, Council stated:

a. [The proposed development agreement] [i]s not consistent with the objectives and policies of the General Plan. The General Plan provides in relevant part:

"Senate Bill (SB) 743 requires the state to establish new criteria for determining the significance of transportation impacts under the California Environmental Quality Act (CEQA) to replace the current reliance on Level of Service (LOS), a measure of automobile delay. SB 743 requires the new criteria to "promote the reduction of greenhouse gas emissions, the development of multi-modal transportation networks, and a diversity of land uses." It also states that alternative measures of transportation impacts may include "vehicle miles traveled, vehicle miles traveled per capita, automobile trip generation rates, or automobile trips generated." The City will be required to use these criteria for CEQA environmental analyses. The City can, however, continue to use LOS standards to ensure reasonable flow of vehicular traffic."

Goal M-1: A circulation system that is efficient, safe, pleasant, and attractive for all users.

Policy M-1A: Maintain peak hour LOS D for intersections on secondary arterial and collector roadways and, as feasible, on major arterials.

Policy M-1B: At major intersections where two major arterials intersect (such as along Fremont, Valley, Mission, and Garfield), peak hour LOS E or F may be acceptable. In these locations, balance the efficiency and convenience of vehicular operations with other General Plan goals and policies."

The draft EIR concluded that there was no feasible mitigation to address the LOS impacts of the Project at either 1,061 or 839 units. Further, the 775-unit analysis indicated that the Project still would create impacts at intersections operating at an LOS E or F. No information was presented to establish that the goals and policies of the General Plan outweigh the adverse effect on the efficiency and convenience of vehicular operations on the surrounding major arterial intersections that would result from the LOS impacts of any of the various Project densities proposed by the Applicant. To the extent that the Project might advance one or more of the General Plan goals and policies, the substantial traffic impacts and inconsistencies with General Plan circulation policies greatly outweigh those other goals and policies. There was ample testimony in the record demonstrating existing traffic congestion concerns from residents and commuters in the area that will only be exacerbated by the increased demands placed upon intersections immediately surrounding the neighborhood, and these concerns were referenced and summarized by the City Council in comments made by Councilmembers at the various public hearings for the Project. The Council finds that the language in the General Plan requires a determination that General Plan goals and policies outweigh LOS impacts where a project will exacerbate traffic at major intersections operating at LOS E or F and further finds that the Project does not result in a circulation system that is efficient, safe, pleasant and attractive for all users.

“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. Because policies in a general plan reflect a range of competing interests, the governmental agency must be allowed to weigh and balance the plan's policies when applying them, and it has broad discretion to construe its policies in light of the plan's purposes. [Citations.] A reviewing court's role ‘is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies.’ [Citation.]….[¶] A city's findings that the project is consistent with its general plan can be reversed only if it is based on evidence from which no reasonable person could have reached the same conclusion…. Thus, the party challenging a city's determination of general plan consistency has the burden to show why, based on all of the evidence in the record, the determination was unreasonable.” (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1563.)

Petitioners seem to argue that Council’s findings to deny the development agreement should be reviewed under the more deferential standard of review in the HAA. (OB 21; see Gov. Code § 65589.5(f)(4).) As discussed above, the Project did not satisfy the applicable, objective parking standards of section 23.52.040. (AR 106-107, 27675.) Accordingly, City was not required to make the additional findings under section 65589.5(j)(1) to deny the Project. In addition, the modified burden of proof under section 65589.6 and the modified standard of review in section 65589.5(f)(4) do not apply to Council’s General Plan consistency findings. (See CARLA, supra, 68 Cal.App.5th at 837.)

Accordingly, the court must determine whether no reasonable person could have reached Council’s conclusion that the Project is inconsistent with the General Plan circulation policies. As Petitioners note, the Project’s transportation consultant Kimley-Horn and Associates, Inc. (“Kimley-Horn”) submitted a technical report titled “Level of Service Analysis for General Plan Consistency.” (AR 8365-8412.) Kimley-Horn found that the Project “would be compliant with the City’s applicable General Plan LOS policies at 18 of the 20 signalized study intersections; and, all unsignalized study intersections.” (AR 8368.) Further, Kimley-Horn found that the City’s General Plan LOS policies “would not be applicable” to the remaining two signalized study intersections due to the existing deficiencies of those intersections. (AR 8368.) Thereafter, the City’s outside planning consultant, Dudek, agreed, pursuant to a peer review memorandum wherein Dudek “concur[red] with the methodology and findings of [Kimley-Horn’s] June 25, 2021 LOS analysis memorandum…” (AR 8679.)

Based on these traffic studies, Petitioners argue “the only evidence in the Administrative Record demonstrates the Project’s consistency with Policy M-1A and Policy M-1B” and no reasonable person could have found that Project inconsistent with such policies. (OB 22.) Respondents argue that “Petitioners fail to show that no reasonable person could find that, with respect to intersections operating at LOS E and F (listed at AR 49:8367), exacerbating the poor level of service will be offset by advancement of other General Plan policies.” (Oppo. 16.) Respondents also argue that “Council determined that Policy M-1A’s reference to maintaining service LOS D means at no less than LOS D …, a reasonable interpretation which thus must be upheld.” (Ibid.)

The Kimley-Horn report shows that the Project would increase the “volume-to-capacity” (“V/C”) ratios at several intersections already listed as having “unacceptable operations (LOS E of F)” without the Project. (AR 8365-67 and Tables 1 and 2.) At the Fremont and Valley intersection (# 15 on Table 2), the Project would cause the traffic for PM hours to increase from LOS E to LOS F. In addition, at the Valley and Westmont intersection (# 27 on Table 2), the Project would cause the traffic for AM hours to increase from LOS D to LOS E. While traffic would remain impacted at LOS D, E, or F at several other intersections, the Kimley-Horn report shows an increase in the V/C ratios for those intersections, but not a large enough impact to move the intersection to a less acceptable LOS level. (# 1, 14, 18, 19, 20, 22, 23.)

The Project causes at least one intersection to increase from LOS D to LOS E, which conflicts with Policy M-1A. For this intersection, Kimely-Horn stated: “The intersection of W Valley Blvd/Westmont Dr (Intersection #27) would operate at LOS D in the Cumulative (2028) scenario and LOS E in the Cumulative (2028) Plus Project scenario. This change in level of service from LOS D to LOS E would cause the intersection to operate at a level that implicates Policy M-1A. However, the City’s TIA Guidelines indicate that for intersections that increase in level of service from LOS D to LOS E, if the increase in volume to capacity (V/C) is less than 0.020, no improvements or other strategies to reduce the V/C ratio are required. The increase in V/C ratio at intersection #27 is less than 0.020 in the AM peak period and as such, the General Plan does not require improvements or other strategies to maintain compliance with the General Plan.” (AR 8368.) Petitioners have not addressed that evidence in their briefing. While not entirely clear, it appears that the TIA Guidelines are not part of the General Plan. Thus, Council arguably could give Policy M-1A precedence over the TIA Guidelines. However, it does not appear that City Council found inconsistency with Policy M-1A. (AR 19901-02.)

The Project also causes increased traffic at major intersections that operate at peak hour LOS E or F, and Council found that other General Plan policies did not outweigh the LOS impacts at those major intersections. Petitioners do not show that Council’s interpretation of Policy M-1B and weighing of General Plan polices was unreasonable. Policy M-1B is triggered for any major intersection that has peak hour LOS E or F; does not necessarily require an increase in LOS levels; and requires Council to “balance the efficiency and convenience of vehicular operations with other General Plan goals and policies.” The Kimely-Horn study did not address that specific aspect of Policy M-1B. (AR 8368.) Furthermore, to the extent there is a conflict, deference is not owed to Kimely-Horn’s interpretation of the General Plan, while Council is owed substantial deference in its interpretation of the General Plan. (Pfeiffer, supra, 200 Cal.App.4th at 1563.)

Council also found that the Project did not result in a circulation system that is “efficient, safe, pleasant and attractive for all users” as required by General Plan Goal M-1. Relatedly, Council cited testimony “demonstrating existing traffic congestion concerns from residents and commuters in the area that will only be exacerbated by the increased demands placed upon intersections immediately surrounding the neighborhood, and these concerns were referenced and summarized by the City Council in comments made by Councilmembers at the various public hearings for the Project.” (AR 19902.) Petitioners have not addressed those findings or the material testimony in their writ briefing. When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) Petitioners do not show that these aspects of the Council’s traffic findings were unreasonable or not supported by any evidence.

Based on the foregoing, Council’s legislative decision to deny the development agreement was not arbitrary, capricious, or entirely lacking in evidentiary support. The court also finds substantial evidence in support of Council’s findings related to the denial of a development agreement, including the findings of inconsistency with General Plan circulation policies.

Council made certain other findings to support its denial of the applications for the VTM, PDP, and CUP, including with respect to the Project site’s environmental conditions. (AR 19892-19904.)

In opposition, Respondents have only opposed the petition with respect to the findings that Petitioners did not satisfy the objective parking requirements of section 23.52.040; that Petitioners were not entitled to a parking reduction under section 23.52.060; and that the Project was inconsistent with General Plan circulation policies. (Oppo. 16-22 and 25-26.) Respondents appear to concede that substantial evidence does not support Council’s findings with respect to the Project site’s environmental conditions. (See 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”].)

However, Respondents argue persuasively that Petitioners cannot obtain a writ overturning Council’s decision because substantial evidence supports some of the material findings. Compliance with City’s parking standards and General Plan policies are necessary for Council to approve the land-use entitlements at issue. Petitioners have developed no argument to the contrary. Accordingly, to obtain a writ of mandate, Petitioners “must demonstrate that all the key findings are defective, as one adequate finding is sufficient to support the [Council’s] decision.” (Levi Family Partnership, L.P. v. City of Los Angeles (2015) 241 Cal.App.4th 123, 130.) Petitioners have not met that burden.

Third Cause of Action – Violation of Limitation on Number of Hearings in Government Code Section 65905.5 of The Housing Crisis Act

In the opening brief and reply, Petitioners have developed no argument in support of their third cause of action under the HCA. Accordingly, Petitioners have not met their burden of proof and have also waived argument on this cause of action. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [argument waived if not raised]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].) The third cause of action is DENIED.

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 May 3, 2022, the court stayed the declaratory relief cause of action pending resolution of the writ causes of action. It appears that the declaratory relief claim is entirely derivative of the writ claims and should also be denied. Counsel may address that at the hearing.

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

[1] The court calculated the difference by subtracting the total spaces provided for the proposed Project (4,347) from the total spaces required per the AMC (6,593), as stated in Table 2 of the variance application and Table 8 of a staff report. (AR 106-107, 16946-47; see also AR 1521-23.) City calculated this difference as 2,268 in its opposition brief. The discrepancy is not material.

[2] Council also found, alternatively, that “the Project does not qualify for discretionary consideration of reduced parking, because the Project does not fit within any of the categories allowing such consideration specified in Code section 23.52.060.” (AR 19900.) Respondents do not defend that alternative finding in opposition. (Oppo. 21-23.)

[3] Even if the substantial evidence standard under CCP section 1094.5(b) applied, the court would reach the same result for Petitioners’ challenge to the Council’s denial of the development agreement.