Judge: Mary H. Strobel, Case: 22STCP00655, Date: 2023-03-09 Tentative Ruling
Case Number: 22STCP00655 Hearing Date: March 9, 2023 Dept: 82
|
v. City of
Los Angeles, et al., Respondents
Belmont
Village, L.P., et al., Real
Parties in Interest |
Judge
Mary Strobel Hearing:
March 9, 2023 |
|
22STCP00655
(related to 22STCP00646) |
Tentative
Decision on Petition for Writ of Mandate |
Petitioner Dana Zinderman (“Petitioner”)
petitions for a writ of administrative mandate directing Respondents City of
Los Angeles and the City Council of the City of Los Angeles (collectively “City”
or “Respondents”) to set aside and vacate a Sustainable Communities
Environmental Assessment (“SCEA”) issued under CEQA for the Belmont Village
Senior Living Westwood II Project (the “Project”), which entails construction
of a 12-story eldercare facility and 2-story childcare facility in the Westwood
area of Los Angeles. Respondents and
Real Parties in Interest Belmont Village, L.P., Belmont Village Landlord 4,
LLC, and Westwood Presbyterian Church of Los Angeles, CA (“Real Parties”;
collectively “Respondents”) jointly oppose the petition.
Petitioner’s
Request to Augment the Administrative Record; and Respondents’ Objection
Petitioner
submits a declaration of Sieglinde Kruse in support of her opening brief. Respondents object that the declaration is
improper extra-record evidence and Petitioner failed to exhaust administrative
remedies with respect to the statements in the declaration.
In
general, “a hearing on a writ of administrative mandamus is conducted solely on
the record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle
Bd. (1987) 188 Cal.App.3d 872, 881.) Extra-record evidence may be admitted only if,
in the exercise of reasonable diligence, the relevant evidence could not have
been produced or was improperly excluded at the hearing. (CCP § 1094.5(e).) The
requirements to submit extra-record evidence are “stringent.” (Pomona
Valley Hosp. Med. Ctr. v. Superior Court (1997) 55 Cal.App.4th 93,
102.) In CEQA cases, “extra-record
evidence can never be admitted merely to contradict the evidence the
administrative agency relied on in making a quasi-legislative [or quasi-adjudicatory]
decision or to raise a question regarding the wisdom of that decision.” (Western States Petroleum Assn. v. Sup. Ct. (1995)
9 Cal.4th 559, 579; see Cadiz
Land Co. v. Rail Cycle LP (2000) 83 Cal.App.4th 74, 120.)
The Kruse
declaration is evidentiary material and is not part of the certified
administrative record. Thus, Petitioner
impliedly requests to augment the record.
That Kruse discusses evidence contained in the administrative record does
not support a different conclusion.
Petitioner
does not show that the requirements to augment the record are met. Specifically, Petitioner does not show that,
in the exercise of reasonable diligence, she could not have submitted this
declaration in the administrative proceedings. To the extent the Kruse declaration was
intended as legal argument, it should have been presented in Petitioner’s
opening brief. Any similar legal
arguments in Petitioner’s opening brief are addressed by the court in the
Analysis below.
Petitioner’s request to augment the
administrative record with the Kruse declaration is denied. Respondents’ objection to the Kruse
declaration as improper extra-record evidence is sustained.
Background
The Project
In
June 2018, Real Parties filed their applications for entitlements to develop
the Project. (AR 10130-10210, 10399-10409.)
As stated by City, the Project would:
[C]onstruct a new 12-story,
176,580-square foot Eldercare Facility containing up to 53 Senior Independent
Housing dwelling units, 77 Assisted Living Care Housing guest rooms, 46
Alzheimer’s/Dementia Care Housing guest rooms, and associated residential
amenity and service areas within a single building located on the northern
portion of the Project Site located at 10822 Wilshire Boulevard that is
currently owned by the Westwood Presbyterian Church (Church). In addition, the
Eldercare Facility would provide a new 2,520-square foot Fellowship Hall on the
ground level fronting Wilshire Boulevard for use by the Church, and 2,923
square feet of shared space consisting of a multipurpose and toddler room,
pantry, kitchen, and storage space all to be shared by both the Church and the
residents of the Eldercare Facility. The Project would also construct a new
two-story, 19,703-square foot Childcare Facility containing 10,238 square feet
of classroom, administrative office space, and multipurpose/group space and
1,845 square feet of church-related administrative offices within a single
building located on the southern portion of the Project Site at 10812 Ashton
Avenue. A minimum of 184 parking spaces for the Project would be provided on
the ground floor level adjacent to the Childcare Facility and within a
three-level subterranean parking garage located below the Eldercare Facility.
The Project would also provide up to 27 short-term and 43 long-term bicycle
parking spaces. To allow for construction of the Project, the Church’s existing
preschool, Fellowship Hall, administrative offices, and surface parking lot
located at 10822 Wilshire Boulevard, and a Church-owned single-family residence
located at 10812 Ashton Avenue would be demolished. The Church’s existing
Sanctuary located on the northern portion of the Project Site fronting Wilshire
Boulevard would remain.
(AR
330.)
Sustainable Communities Environmental
Assessment
“To encourage
the development of transit priority projects, the Legislature in Senate Bill
375 limited the extent of environmental review that a local agency must perform
under CEQA to approve them.” (Sacramentans
for Fair Planning v. City of Sacramento
(2019) 37 Cal.App.5th 698, 719.)
Under CEQA and
SB 375, a lead agency may prepare a Sustainable Communities Environmental
Assessment (“SCEA”) in lieu of other CEQA documentation for a “transit priority
project” (“TPP”) that is consistent with an adopted sustainable communities
strategy. (Pub. Res. Code §§ 21155, 21155.2.)[1] A TPP “shall
(1) contain at least 50 percent residential use, based on total building square
footage and, if the project contains between 26 percent and 50 percent
nonresidential uses, a floor area ratio of not less than 0.75; (2) provide a
minimum net density of at least 20 dwelling units per acre; and (3) be within
one-half mile of a major transit stop or high-quality transit corridor included
in a regional transportation plan.” (§
21155(b).)
“If a transit
priority project (1) ‘is consistent with the general use designation, density,
building intensity, and applicable policies specified for the project area’ in
the strategy; and (2) incorporates all feasible mitigation measures,
performance standards, and criteria set forth “in the prior applicable environmental
impact reports” and which were adopted as findings, then the local agency may
review the project's environmental effects in a streamlined manner using an
SCEA.” (Sacramentans
for Fair Planning, supra, 37 Cal.App.5th at 719.)
In the instant case, City found that
the Project qualifies as a TPP and analyzed the Project’s potential
environmental impacts in a SCEA. (AR
330-2426.) City made the following findings
relevant to this case:
1.
The Project qualifies as a TPP pursuant to PRC
Section 21155(b) because it contains more than 50 percent residential use;
provides a minimum net density greater than 20 units an acre; and is within 0.5
mile of a major transit stop or high-quality transit corridor included in a
regional transportation plan;
…[¶]
3.
The Project is consistent with the general use
designation, density, building intensity, and applicable policies specified for
the Project area in the RTP/SCS [“regional transportation plan/sustainable
communities strategy”] prepared by SCAG [“Southern California Association of
Governments”];
4.
The Project incorporates all feasible mitigation
measures, performance standards, or criteria set forth in the prior applicable
environmental reports and adopted findings made pursuant to PRC Section 21081,
including the 2016-2040 RTP/SCS Program EIR;
5.
All potentially significant or significant effects
required to be identified and analyzed pursuant to CEQA have been identified
and analyzed in an initial study;
6.
and With respect to each significant effect on the
environment required to be identified in the initial study, changes or
alterations have been required in or incorporated into the Project that avoid
or mitigate the significant effects to a level of less than significant.
(AR 341.)
Relevant Administrative
Proceedings
The SCEA was circulated for public
review for over 30 days, from November 12, 2020 to December 14, 2020. (AR
2429.) The City prepared responses to comments received on the SCEA. (AR
2435-2530.) In addition, the City
prepared an erratum to the SCEA, which included minor changes and additional
discussion of the Project’s consistency with the recently adopted 2020-2045
RTP/SCS. (AR 2531-2618.)
On May 4, 2021, the City’s Planning and
Land Use Management (“PLUM”) Committee held a public hearing to consider the
SCEA on behalf of the City Council. (AR 6-7.) After providing an opportunity
for public comment, the PLUM Committee recommended approval of the SCEA, the
Erratum, the mitigation monitoring program (“MMP”), and Environmental Findings
for the Project to the City Council. (AR 7.) The City Council adopted the PLUM
Committee’s recommendation on May 18, 2021. (AR 8.)
In addition to approving the SCEA,
Council also approved Project entitlements that include an eldercare facility
unified permit, a conditional use permit, a design review and project permit
compliance, site plan review, and a vesting tentative tract map and associated
haul route. (AR 1.)
Writ Proceedings
On
February 25, 2022, Petitioner filed her verified petition for writ of mandate,
which states a single cause of action for violation of CEQA. This action has been deemed related to LASC
Case No. 22STCP00646. At the trial
setting conference, the parties stipulated that the two actions are
consolidated as to the administrative record and hearing date only.
Respondents and Real Parties have
answered the petition.
On November 3, 2022, the court approved
the parties’ stipulation to increase the page limit for a joint opposition to
25 pages, and the page limit for the reply to 12 pages.
On
December 8, 2022, Petitioner filed her opening brief in support of the
petition. The court has received
Respondents’ consolidated opposition, Petitioner’s reply, the administrative
record, and the joint appendix.
Standard of Review
CEQA
In an
action challenging an agency’s decision under CEQA, the trial court reviews the
agency’s decision for a prejudicial abuse of discretion. (Pub. Res. Code, § 21168.5.) “Abuse of discretion is established if the
agency has not proceeded in a manner required by law or if the determination or
decision is not supported by substantial evidence.” (Ibid.; see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova (2007) 40 Cal.4th 412, 435.)
Challenges to an agency’s failure to proceed in a manner required by
CEQA are subject to a less deferential standard than challenges to an agency’s
factual conclusions. (Vineyard, supra at 435.) In reviewing these claims, the Court must
“determine de novo whether the agency
has employed the correct procedures.”
(Ibid.; see Dry Creek Citizens
Coalition v. County of Tulare (1999) 70 Cal.App.4th 20,
26.)
Under CEQA, a “lead agency’s decision to
review and approve a transit priority project with a sustainable communities
environmental assessment shall be reviewed under the substantial evidence
standard.” (§ 21155.2(b)(7); see also Sacramentans for Fair Planning v. City
of Sacramento (2019) 37 Cal.App.5th 698, 722.)
“Substantial evidence includes
fact, a reasonable assumption predicated upon fact, or expert opinion supported
by fact…. Substantial
evidence is not argument, speculation, unsubstantiated opinion or narrative,
evidence that is clearly inaccurate or erroneous, or evidence of social or
economic impacts that do not contribute to, or are not caused by, physical
impacts on the environment.” (Pub. Res.
Code § 21080(e).) Under the substantial
evidence test, the court review “the administrative record to see if it contains
evidence of ponderable legal significance that is reasonable in nature,
credible, and of solid value, to support the agency's decision.” (Protect Tustin Ranch v. City of
Tustin (2021) 70 Cal.App.5th 951, 960.)
The court “do[es] not weigh conflicting evidence, as that is the role of
the public agency.” (Ibid.)
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.)
Consistency
with General Plan
“When [the court] review[s] an agency's
decision for consistency with its own general plan, [the court] accord[s] great
deference to the agency's determination. This is because the body which adopted
the general plan policies in its legislative capacity has unique competence to
interpret those policies when applying them in its adjudicatory
capacity…..’” (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th
1552, 1563.) Courts also accord
deference to a city’s findings that a project is consistent with its own zoning
regulations. (Old East Davis
Neighborhood Association v. City of Davis (2021) 73 Cal.App.5th 895, 914.)
Statutory Interpretation
To the
extent “purely legal issues involve the interpretation of a statute an
administrative agency is responsible for enforcing, [the court] exercise[s]
[its] independent judgment, ‘taking into account and respecting the agency's
interpretation of its meaning.’” (Housing
Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343; see also Yamaha Corp. of America v. State Bd. Of
Equalization (1998) 19 Cal.4th 1, 11.)
How much weight to
accord an agency's construction is “situational,” and depends on the
circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012)
54 Cal.4th 446, 461-462.) These
same rules apply to the interpretation of a regulation.
Analysis
The
petition states a single cause of action for violation of CEQA. Petitioner contends that City prejudicially
abused its discretion in approving the SCEA because the Project does not
qualify as a TPP, and because requirements of Public Resources Code sections
21155(a) and 21155.2(b) were not met.
Substantial Evidence Supports City’s Finding
that the Project is a TPP
As noted, a TPP is
defined to “(1) contain at least 50 percent residential use, based on total
building square footage and, if the project contains between 26 percent and 50
percent nonresidential uses, a floor area ratio of not less than 0.75; (2)
provide a minimum net density of at least 20 dwelling units per acre; and (3)
be within one-half mile of a major transit stop or high-quality transit corridor
included in a regional transportation plan.”
(§ 21155(b).) Petitioner has not challenged City’s findings that the Project
satisfies the minimum density requirement or that the Project is located within
one-half mile of a major transit stop or high-quality transit corridor. Petitioner
contends that the Project does not satisfy the “50 percent residential
use” requirement of section 21155(b). (Opening
Brief (“OB”) 4-6; Reply 4-8.)
City found
that the Project would construct two new buildings on the Project Site which
would contain a total floor area of 196,283 square feet, and that 176,580
square feet of the Project is comprised of residential uses associated with the
eldercare facility. Thus, City found that
“the Project’s residential floor area would comprise nearly 90 percent of the
Project’s new building square footage.”
(AR 389-390.)
Petitioner
does not dispute that 176,580 square feet, or 90 percent, of the Project is
comprised of the eldercare facility.
However, Petitioner contends that the common areas of the eldercare
facility “devoted to on-site support services, accessory uses, and enlarged
corridors and elevators” do not qualify as “residential uses” under section
21155(b). (OB 4-5.)
Petitioner
cites no statute or case that supports an interpretation of the phrase
“residential use” in section 21155(b) to exclude a residential building’s
common areas. The parties agree that the
phrase “residential use” is not defined in section 21155 or other statutes
governing SCEAs. (See Reply 4:17-19.) In
these circumstances, “the courts should give to the words of the statute their
ordinary, everyday meaning.” (Halbert’s
Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238.) The ordinary, everyday meaning of
“residential use” includes a residential building and the common areas within
that building that are used by the residents for residential purposes, such as
hallways, elevators, common dining areas, and community rooms. As applied in this case, that common meaning
is consistent with the Los Angeles Municipal Code (“LAMC”), which defines “senior
independent housing,” a component of an “eldercare facility,” as “[r]esidential
housing that consists of dwelling units for persons 62 years of age and older
and may include common dining areas or other community rooms.”
Petitioner’s
interpretation of “residential use” to include only the area in the building’s dwelling
units conflicts with the canon of statutory interpretation that different terms
in the same statute are presumed to have different meanings. (See Romano v.
Mercury Ins. Co. (2005) 128 Cal.App.4th 1333, 1343.) The second requirement for a TPP is that the
project “provide a minimum net density of at least 20 dwelling units per acre.” The legislature is presumed to have intended
a different meaning for “residential use” and “dwelling unit.” If “residential use” had the meaning ascribed
to it by Petitioner, the first part of section 21155(b) should have stated that
the Project must contain 50 percent dwelling units.
Furthermore,
even if “residential use” were limited to the dwelling units and guest rooms of
the eldercare facility, City found that the 50 precent threshold would be
met. (AR 2735-36.) Specifically, in response to a comment, City staff
stated: “if only the floor area of the proposed dwelling units and guest rooms
were considered, the project would still surpass the 50 percent threshold as
the total floor area contained within the 53 Senior Independent Housing
dwelling units and 77 Assisted Living Care Housing guest rooms is 85,280 square
feet and the total floor area contained within the Alzheimer's/Dementia Care
Housing guest rooms is 18,940 square feet, for a total of 104,220 square feet
of non-common area Eldercare Facility floor area.” (AR 2735-36.)
Petitioner fails to address this finding or show it is not supported by
substantial evidence.
Petitioner
also argues that the Project’s eldercare facility does not qualify as a
“residential use” because “[v]ery few of the residents of this facility will be
either physically able or legally permitted to operate a vehicle.” (OB 5.)
Petitioner contends that SB 375 was enacted “to require coordinated land
use strategies with transit investment to increase its efficiency – a lost
opportunity here due to the admitted characteristics of the Project’s
population.” (Ibid.) In reply,
Petitioner rephrases the argument somewhat, stating “the issue involves … the
manner in which people live, not their age” and that “TPP cannot be so broad as
to include a project where it is admitted that the mobility profile of the
majority of its users varies widely from the mobility profile of the average
member of a residential household throughout the region.” (Reply 4.)
Section
21155(b) does not differentiate between projects whose projected residents will
be more or less mobile. Petitioner seeks
to read a requirement into section 21155(b) not supported by the plain
language, specifically that residents must be likely to drive a vehicle. “When interpreting statutory language, [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.) Public Resources Code section
21083.1 also specifically forbids courts from interpreting CEQA or the CEQA Guidelines “in a manner which
imposes procedural or substantive requirements beyond those explicitly stated.”
Petitioner’s
assumption that an eldercare facility cannot benefit from
being located in a high quality transit area is not fully supported. Petitioner
cites a description of the Project, which states that many of the residents are
unlikely to own or operate a personal vehicle and that residents will
“typically” use a shuttle service. (AR
2191.) However, that same description
states that “[t]he Project Applicant has noted that up to 20 residents are
anticipated to drive/own personal vehicles based on experience from the nearby
Belmont Village Senior Living facility.”
(Ibid.) Moreover, employees of
the eldercare facility and visitors to its residents, as well as employees and
visitors of the childcare facility, will be able to make use of public
transportation near the Project.
Petitioner similarly asserts that “[t]here
was no no [sic] showing of a net GHG [greenhouse gas] benefit, rather, the Project
will cause a net GHG increase.” (OB
6.) To be considered a TPP, section
21155(b) does not require that a “net GHG benefit” be shown. Petitioner’s related assertion that the
Project would result in an increase in GHGs is not supported by her citation to
the record. Petitioner only cites to a declaration
(AR 12123-25), which does not analyze the Project’s GHG impacts and only
provides a local resident’s observations.
In reply,
Petitioner clarifies that her discussion of greenhouse gases was intended to
support her statutory interpretation of “residential use” to exclude the
eldercare facility. (Reply 4-8.) Petitioner states that the purpose of SB 375
“was to advance ‘smart growth’ as [a] means to reduce GHG caused by cars and
light trucks including the creation of a streamlined CEQA review for qualifying
residential projects that also can demonstrate they can achieve that
purpose.” (Reply 5.) Petitioner contends that “the facts, common
sense and reasonable inferences raise the substantial probability that users of
the Project will not contribute to achieving the regional GHG reduction targets
required by the State.” (Reply 6.) Petitioner states that “the usurpation of the
opportunities to access alternative transportation by persons who will not or
cannot use it, foreseeably will frustrate the purpose behind enacting SB 375
and SCEA.” (Reply 8.)
While Petitioner
argues that this eldercare facility will not serve the purpose of SB 375, Petitioner
points to no part of the text of section 21155(b), SB 375, or any other statute
to support a conclusion that only projects with a demonstrable reduction in GHG
qualify as “residential use” under the statute.
While the legislature determined
that TPPs “can help reduce greenhouse gas emissions from motor
vehicles,” Sacramentans for Fair Planning, supra, 37
Cal.App.5th at 719, the legislature did not define a TPP to include only
projects for which a net GHG benefit had been shown or projects that will house
“mobile” residents that drive frequently.
Nor did the legislature exclude any specific types of residential
projects, such as eldercare facilities, from the definition of TPP. The
court cannot imply a requirement inconsistent with the statutory text. (§ 21083.1.)
Petitioner’s concern that opportunities for alternative transportation
will be wasted on an eldercare facility “is a complaint to take to the
Legislature.” (Sacramentans
for Fair Planning, supra, 37 Cal.App.5th at 724.)
Based on the foregoing, substantial
evidence supports City’s finding that the Project is a TPP within the meaning
of section 21155(b). Petitioner does not
show any prejudicial abuse of discretion in that finding.
Substantial Evidence Supports City’s
Finding that the Project is Consistent With the General Use Designation,
Density, Building Intensity, and Applicable Policies Specified in the Regional Transportation Plan/Sustainable
Communities Strategy
Petitioner contends that the
eldercare facility does not qualify for a SCEA under section 21155(a) because
it is inconsistent with open space and other zoning requirements in the LAMC;
because the Project causes a single-family residence to be removed; and because
the characteristics of an eldercare facility are inconsistent with policies in
the applicable sustainable communities strategy. (OB 6-10.)
A lead
agency may review a project using a SCEA if the TPP is “consistent with the
general use designation, density, building intensity, and applicable policies
specified for the project area in either a sustainable communities strategy or
an alternative planning strategy ….” (§ 21155(a).) Section 21155(a) does not require consistency
with local zoning requirements, but rather consistency with the standards set
forth in the applicable “sustainable communities strategy.” (§ 21155(a); see
also Sacramentans for Fair Planning, supra, 37 Cal.App.5th at 722-724.) Where “substantial evidence supports the
City’s determination that the project was consistent with the strategy,” the consistency
requirement set forth in section 21155(a) is satisfied. (Sacramentans for
Fair Planning, supra, 37 Cal.App.5th at 724.)
City’s Consistency
Findings Under Section 21155(a)
City found
that the Project is consistent with the general use designation and applicable
policies specified for the project area in both the 2016-2040 and 2020-2045 regional
transportation plan/sustainable communities strategy (“RTP/SCS” or “SCS”)
issued by the Southern California Association of Governments (“SCAG”), the
metropolitan planning organization with jurisdiction over the site. (AR 373-456.) City made detailed findings, including, but
not limited to the following:
For its
2016-2040 RTP/SCS, using data collected from local jurisdictions, including
general plans, SCAG categorized existing land use into land use types, then
combined the land use types into 35 Place Types (see Figure IN-1), and
classified sub-regions into one of three land use development categories
(LDCs): Urban, Compact, or Standard….
The
Project Site is located in an area that is within an Urban LDC -the highest
density and most intense land development category assessed in the 2016-2040
RTP/SCS….
The Urban
LDC comprises multiple urban footprint scenario models, including Urban Mixed
Use, Urban Residential, Urban Commercial, City Mixed Use, City Residential, and
City Commercial.
The
Project Site would be consistent with the Urban Residential and City
Residential place types within the Urban LDC, as described further below….[¶¶]
The Project is consistent with the Urban
LDC and the Urban Residential and City Residential place types described in the
2016-2040 RTP/SCS, as it is located within a highly urbanized area within the
City of Los Angeles and proposes to develop uses and buildings that are
consistent with the contemplated place types of the RTP/SCS (residential and
institutional mixed-uses). Specifically, the Project Site is surrounded by
higher-density urban land uses, including high-rise multi-family residential
buildings within the Wilshire-Westwood Scenic Corridor Specific Plan and
high-rise commercial buildings within the City of Los Angeles General Plan
Regional Center land use designation immediately to the west of the Project
Site. Moreover, the Project Site is well served by existing and proposed
transit infrastructure, including multiple bus transit lines along both
Wilshire and Westwood Boulevards, as well as the future Westwood/UCLA Station
for Metro’s Purple Line Extension. Although the Urban and City Residential
place types states that building heights may range from 5-60 stories for Urban
Residential and 5-40 stories for City Residential, the two-story Education
Center is consistent with the existing one and two-story single-family
residences located to the east and south of the Project Site and contributes to
the 11-12% mixed use land use mix that is identified as being part of the Urban
and City Residential place types.
At this highly urban location, the
Project would develop a new 12-story, 153-foot-tall high-rise building
containing a total of 176 senior residential units and guest rooms, while
retaining the Project Site’s existing Sanctuary. The southern portion of the
Project Site would include the Education Center, which would consist of a
childcare facility and administrative offices for use by the Church in a new
low-rise, two-story building which would provide a transition between the
greater height and density of the Eldercare Facility and the reduced density
and height of the single-family neighborhoods to the south and east of the
Project Site. The vast majority of the Project’s parking spaces would be
located in a new subterranean parking garage, consistent with the
characteristics of the Urban and City Residential place types. The Eldercare
Facility would contain 53 dwelling units and 123 guest rooms on an
approximately one-acre portion of the Project Site, which is consistent with
the range of residential densities contemplated by both the Urban and City
Residential place types. The Eldercare Facility would result in a FAR of
approximately 5.45:1, while the new Education Center would result in a FAR of
1.24:1, both of which are generally consistent with the FAR contemplated for
the Urban and City Residential place types. As such, the Project’s scale,
location, and mixture of land uses would be consistent with Urban LDC and
corresponding Urban and City Residential place types which call for
developments that integrate residential uses as well as non-residential uses
and subterranean parking near transit as described in the 2016-2040 RTP/SCS.
(AR 375-376.)
City also
found that the Project is consistent with the 2020-2045
RTP/SCS, as the Project Site falls within the 2020-2045 RTP/SCS’ identified
Priority Growth Area, where development of high density projects, like the
Project here, is encouraged. (AR 376, 2536-2537.)
Table
3-1 of the SCEA states multiple goals and polices of the RTP/SCS and explains
why the Project does not conflict with those goals and policies. (AR 384-389.)
Petitioner
Does Not Show a Prejudicial Abuse of Discretion in City’s Consistency Findings
Under Section 21155(a)
While Petitioner states in the opening
brief that there is a “significant mismatch between the Project’s
characteristics and the ‘residential’ land use characteristics contemplated in
the policies in the applicable plans,”
(OB 8-9) Petitioner does not identify
any specific goals or policies in the RTP/SCS or cite to any evidence of
inconsistency. The cases cited in this
part of Petitioner’s brief do not address section 21155(a) and are irrelevant
to analysis of the SCEA. (OB 8-9.) Petitioner cites no case or statute to
support her position that “characteristics of the population's actual use must
be measured against the SCS ‘policies specified for the project area.’" (OB 9:11-14.)
Petitioner argues that the consistency
analysis in Table 4-15 of the SCEA “is filled with erroneous assumptions backed
by conclusions that defy common sense, are clearly erroneous, unsupported
opinions and conclusions, and not by a demonstrated fact.” (OB 9.)
As Respondents point out, Table 4-15 is part of the SCEA’s analysis of
whether the Project would cause a significant environmental impact due to a
conflict with policies adopted for the purpose of avoiding or mitigating an
environmental impact. (See AR 570-576.) A different part of the SCEA, including Table
3-1, discuss consistency with the RTP/SCS “general use and applicable policies”
pursuant to Section 21155(a). (AR
374-389, 2536-40.) Moreover, even if the
court interprets Petitioner’s arguments as challenging Table 3-1, Petitioner
does not summarize the evidence supporting City’s findings in Table 3-1 or
Table 4-15. To prove her CEQA claim,
Petitioner was required to “lay out the evidence favorable to the other side
and show why it is lacking.” (Defend the Bay, supra, 119 Cal.App.4th at 1266.) A
reviewing court does not independently review the record to make up for
appellant's failure to carry his burden.
(Id.)
Petitioner
makes a brief argument that the Project is inconsistent with SCS Land Use
Policy 7, which is to “continue to protect stable, existing single-family
areas.” (OB 7:20-22.) Petitioner seems to argue that the Project is
inconsistent with this policy because it will remove one single-family home at
the southern part of the Project site and replace it with the two-story
childcare facility. (Ibid.) In its consistency analysis, City found:
The
Project’s Eldercare Facility would be located within the portion of the Project
Site that is zoned for high-density residential uses, while the Education
Center would be located on the southern portion of the Site that is zoned for
single-family residential uses. Institutional uses would be allowed on the southern
portion of the Project Site pursuant to the approval of a CUP. The southern
portion of the Project Site is currently improved with a single-family
residence and a surface parking lot, both of which would be removed to allow
for development of the Project. The removal of one single-family residence is
unlikely to negatively impact the stability of the single-family residential
areas located south and east of the Project Site. The proposed lower scale and
intensity of the development on the southern portion of the Project Site would
assist with the protection of the existing nearby single-family areas.
(AR 389.)
Substantial
evidence supports this finding. Petitioner
cites no evidence that the removal of one residence, and replacement with a
childcare facility, materially conflicts with SCS Land Use Policy 7. Moreover, even if reasonable minds could
differ on this issue, City’s finding of consistency with Land Use Policy 7 was
reasonable and, therefore, not an abuse of discretion.
Petitioner contends that there is an
“inherent contradiction between the 8 required ‘adjustments’ to applicable
objective zoning standards [granted for the Project] and the requirement that a
SCEA may only be used based on consistency (compliance) with the applicable
polices.” (OB 10, citing §
21155(a).) As discussed, for purposes of
section 21155(a), City was only required to make a finding of consistency with
the RTP/SCS, not with local zoning standards.
Petitioner does not show, with citation to the record, that any deviations
from zoning standards granted for the Project reflect an inconsistency with
policies of the RTP/SCS.
Petitioner suggests throughout her
legal briefs, including in reply, that City’s approval of an eldercare facility
in a high quality transit area is inconsistent with applicable RTP/SCS policies. (See OB 8-10; Reply 8-10.) Petitioner argues, for the first time in
reply, that the Urban Residential and City Residential “place types” in the SCS
“did not take into account the unique lifestyle and substantially different
mobility profile of the Project’s uses.”
(Reply 9.) Petitioner does not
cite any specific policy or goal in the SCS relevant to these arguments, such
as a policy or goal stating that residential uses with more “mobile” residents
or greater “mobility profile” should be given priority in certain areas. The SCEA noted that, consistent with Goals 2
and 8 of the SCS, the Project’s proximity to public transit would “provide
residents and visitors with convenient access to public transit and
opportunities for walking and biking.” (AR 572-573; see also AR 384-387.) That finding of consistency is supported by
substantial evidence in the record and was not unreasonable. (See e.g. AR 362, 375-376, 390-391, 377-382,
2536-40; see also AR 346-348 [maps and aerial photo].)
As noted, Petitioner challenges
City’s findings under section 21155(a), in part, on the basis that the Project
is inconsistent with open space and other zoning requirements in the LAMC. (OB 6-10; Reply 11-12.) However, as previously noted, under section
21155(a), City was only required to make a finding of consistency with the
RTP/SCS, not with local zoning standards.
Petitioner has not identified any goal or policy in the RTP/SCS for
which her arguments about consistency with zoning standards is relevant. Accordingly, in her discussion of LAMC
requirements, Petitioner does not show any prejudicial abuse of discretion in
City’s findings under section 21155(a).
To the extent relevant, the court will consider Petitioner’s municipal
code based arguments in its discussion below of City’s findings under section
21155.2 and approval of the SCEA and initial study.
Based on
the foregoing, City’s findings of consistency with the “general use
designation, density, building intensity, and applicable policies specified for
the project area” in the relevant RTPs/SCSs are supported by substantial
evidence. (See AR 374-389,
2536-50.) Petitioner shows no
prejudicial abuse of discretion in those findings.
Petitioner
Shows No Prejudicial Abuse of Discretion in City’s Approval of the SCEA
Petitioner contends that the SCEA
“failed to properly examine land use conflicts.” (OB 11.)
Petitioner states that “variances” do not obviate CEQA procedural requirements,
and that Government Code consistency analysis does not apply. (OB 11-12.)
In a section of the brief titled “Flawed Conflicts Analysis,” Petitioner
seems to reiterate her argument, discussed above, that the “land use
characteristics” of the eldercare facility conflict with regional transportation
and GHG-reduction goals of SB 375. (OB
13.) Petitioner also briefly states that
“the LAMC and the Specific Plan embody land use policies to protect
single-family neighborhoods.” (OB
14:1-2.) For the reasons discussed
below, Petitioner has not shown a prejudicial abuse of discretion in City’s
approval of the SCEA.
City’s Initial Study and Relevant
Findings
If the requirements of section 21155
are met, “then the local agency may review the project's environmental effects
in a streamlined manner using an SCEA.”
(Sacramentans for Fair Planning, supra, 37
Cal.App.5th at 719; see generally § 21155.2.) Consistent with this statutory authority,
City prepared an initial study and circulated it for comment. (See AR 2429, 458-689 [initial study].) The
initial study and attached technical appendices analyzed, among other things, the
Project’s air quality, greenhouse gas, and transportation impacts, as well as
the Project’s potential to result in a significant environmental impact due to
a conflict with any land use plan or regulation adopted for the purpose of
avoiding or mitigating an environmental effect. (AR 330-2426.) The SCEA
concluded that the Project would not result in any significant impacts on the
environment with the implementation of mitigation identified in a mitigation
monitoring program (“MMP”) prepared for the Project. (AR 341.)
City’s
Legal Standard in Determining Consistency with Land Use Policies; and Standard
of Review in Trial Court
Petitioner
argues that the SCEA is legally deficient because its analysis of consistency
with land use policies applies a consistency standard taken from Sequoyah
Hills Homeowners Association v. City of Oakland (1993) 23 Cal.App.4th 704, 719. (OB 12.)
In the analysis of land use policies, the initial study cited
Sequoyah and stated “[a] project is considered consistent with the
provisions and general policies of an applicable City or regional land use
plans and regulations if it is consistent with the overall intent of the plans
and would not preclude the attainment of its primary goals”. (AR 570.)
Petitioner contends that Sequoyah pertained to Government Code
consistency, and CEQA requires a
different analysis.
However, Petitioner does not specify the alternative
standard that City should have applied.
Petitioner’s quotation from Friends of
Mammoth v. Bd. of Supervisors (1972) 8 Cal.3d 247 does not relate to the
standard to be used to determine land use consistency. Petitioner argues without support that in a
CEQA consistency analysis, “there is no balancing of competing local values,
only advancing the State’s environmental policies to eliminate, or reduce all
significant environmental impacts where feasible; and to fully disclose all
relevant information.”
The SCEA contains a lengthy discussion
of consistency with applicable plans and policies. (AR570-593.)
This analysis includes the fact the Project is seeking deviations from
the zoning regulations as well as provisions of the specific plan in order to
construct the eldercare facility and childcare facility. (AR583.) Petitioner has not shown that the granting of
a deviance allowable under zoning regulations makes the project inconsistent
with zoning or any applicable specific plan.
Respondents argue that the relevant
inquiry under CEQA is whether a project would cause a significant environmental
impact due to a “conflict with any applicable land use plan, policy, or
regulation ... adopted for the purpose of avoiding or mitigating an
environmental effect.” (Friends of
Riverside’s Hills v. City of Riverside (2018) 26 Cal.App.5th 1137, 1151.)
A
claim that a project is inconsistent with land use policies that were not
adopted to mitigate environmental impacts is reviewed under the deferential
standard that applies to a non-CEQA claim of inconsistency with a land use
plan. (Joshua Tree Business Alliance
v. County of San Bernardino (2016) 1 Cal.App.5th 677, 695; see Pfeiffer v. City of Sunnyvale City Council (2011)
200 Cal.App.4th 1552, 1563 and Sequoyah Hills Homeowners Assn. v. City of
Oakland (1993) 23 Cal.App.4th 704, 717–718.) The court agrees this is the standard to be
applied.
Under the appropriate standard,
Petitioner has not shown City abused its discretion.
Petitioner also seems to argue that the
court should apply a stricter standard of review for City’s land use
consistency findings. (OB 12-13; Reply
4.) In reply, Petitioner states that a de
novo standard applies to her claims.
(Reply 4.) Under CEQA, a “lead agency’s decision to
review and approve a transit priority project with a sustainable communities
environmental assessment shall be reviewed under the substantial evidence
standard.” (§ 21155.2(b)(7); see also Sacramentans for Fair Planning, supra,
37 Cal.App.5th at 722.) The instant
case involves City’s decision to approve an SCEA. Accordingly, the court is bound by statute to
apply a substantial evidence standard of review to any factual findings made by
City. (§ 21155.2(b)(7).) To the extent Petitioner’s claims raise legal
issues, the court applies a de novo standard.
Petitioner Shows No Prejudicial Abuse of
Discretion in City’s Land Use Findings in the SCEA
The SCEA and initial study include a
detailed analysis of land use and planning, and specifically whether “the
project cause[s] a significant environmental impact due to a conflict with any
land use plan, policy, or regulation adopted for the purpose of avoiding or
mitigating an environmental effect.” (AR
570-593.)
Petitioner
does not appear to challenge the analysis in this part of the SCEA. To the extent she does, the argument fails
because Petitioner does not identify the CEQA finding that she challenges or “lay
out the evidence favorable to the other side and show why it is lacking.” (Defend
the Bay, supra, 119 Cal.App.4th at 1266.)
Petitioner states that “the LAMC and
the Specific Plan embody land use policies to protect single-family
neighborhoods.” (OB 14:1-2, citing Table
4-17, Goal 1 and Policy 1-1.2 at AR 587.)
Petitioner does not explain how this assertion relates to any potential
environmental impact and analysis in the SCEA. Based on the record citation, it appears
Petitioner challenges a finding that the Project is consistent with Goal 1 and
Policy 1-1.2 in the Westwood Community Plan.
(AR 587.) Goal 1 and Policy 1-1.2
seek to ensure a ”safe, secure and high quality residential environment” and
“protect the quality of residential environment.” (AR 587.) City found, inter alia, that “[t]he
Project’s 176 eldercare dwelling units and guest rooms will provide new housing
opportunities to seniors in need of housing and associated care, help to meet
the diverse housing needs within the Community Plan area, and make new housing
opportunities available to the Community Plan’s senior population.” (AR 587.)
City also found that “[t]he
Project will result in the construction of a 12-story senior housing building
on a parcel predominantly zoned R-5, and the preservation of the Church’s
existing preschool in a new two-story building within the Project Site’s R-1
zone. Accordingly, the Project will be consistent the existing development
patterns in the vicinity of the Project Site while providing new housing and
community serving amenities to the residents of the Westwood Community
Plan.” (AR 587.) Moreover, the City found that the Project is
consistent with the single-family neighborhoods to the south of the Project
site, stating:
The
project site transitions between a single-family and high-rise multi-family
area. The project respects this transition by siting a two-story building in
the southern portion of the site adjacent to single-story and two-story single-family
residences and a twelve-story building in the northern portion of the site
adjacent to a twenty four-story building, the existing sanctuary, a multilevel
movie theater and thirteen story office building along Wilshire Boulevard. As
described in the determination, this arrangement best suits the project and
neighborhood compatibility, the Zoning Administrator made the findings related
to compatibility with surrounding neighborhood, and no new evidence has been
presented.
(AR
2730-31.)
This
analysis in the record, as well as maps and Project plans, among other
documents and testimony, are substantial evidence of consistency with Goal 1
and Policy 1-1.2 in the Westwood Community Plan and generally with “land use
policies to protect single-family neighborhoods.” (See e.g. AR 377-382, 346-348,
355-361.) Petitioner does not show any prejudicial abuse
of discretion in these findings.
Consistency
With Open Space and Other LAMC Requirements
As noted above, Petitioner
challenges City’s findings under section 21155(a), in part, on the basis that
the Project is allegedly inconsistent with open space and other zoning
requirements in the LAMC. (OB 6-10;
Reply 11-12.) Those arguments are
irrelevant to the consistency requirement of section 21155(a), as discussed
above. It is unclear whether Petitioner
challenges some other findings in the SCEA, including land use analysis in the
initial study, with these contentions.
Assuming she does, these arguments are not persuasive for several
reasons.
As a preliminary matter, Petitioner only
states a cause of action for violation of CEQA, not for violation of the LAMC,
including the requirements for City to grant a CUP or deviations from land use
standards. Petitioner is limited to the
cause of action pleaded in the petition.
In Petitioner’s arguments about the
LAMC, Petitioner does not identify the specific CEQA findings or analysis challenged,
or the evidence supporting them.
Petitioner does not analyze whether the LAMC requirements were
“adopted for the purpose of avoiding or mitigating an environmental
effect.” (Friends of Riverside’s
Hills v. City of Riverside (2018) 26 Cal.App.5th 1137, 1151.) To the extent they were not, then CEQA does
not apply. (Ibid.)
Even
if Petitioner’s municipal code based arguments are relevant to the SCEA or
initial study, Petitioner does not show City prejudicially abused its
discretion in approving the SCEA, as discussed below.
Petitioner
contends that City failed to comply with LAMC open space requirements because
it omitted guest rooms from the open space calculation. (OB 6-7.)
LAMC section 12.21.G.2 specifies a minimum “usable open space per
dwelling unit.” (AR 20386.) A dwelling unit is specifically defined in the LAMC
as a “group of two or more rooms, one of which is a kitchen, designed for
occupancy by one family for living and sleeping purposes.” (AR 20296.) In contrast, “guest room” is defined as “any
habitable room except a kitchen, designed or used for occupancy by one or more
persons and not in a dwelling unit.” (AR 20300.)
It is undisputed that the Project provides the required open space for
its 53 “dwelling units” as defined by the LAMC. (AR 364.) The plain text of LAMC section 12.21.G.2 only
provides open space requirements for “dwelling units” as that term is defined
by the LAMC. The statute is clear, and Petitioner
has developed no argument that the plain text of the statute should be given a
different construction.
Petitioner
also argues that some guest rooms are similar in size to some dwelling units,
and, therefore, the guest rooms should be treated as dwelling units for
purposes of determining open space and density requirements under the LAMC and section
5.B of the Specific Plan. (OB 7:10-12,
citing Kruse Decl.) This argument
relies, in part, on extra record evidence that the court has not admitted into
evidence. (Kruse Decl.) Moreover, as discussed above, LAMC section
12.21.G.2 clearly and unambiguously provides open space requirements only for
“dwelling units.” Similarly, section 5.B
of the Specific Plan unambiguously provides: “No building shall be erected, or
enlarged, which exceeds a density of 100 dwelling units per acre of lot area.”
(AR 3534.) The Specific Plan states that
the term “dwelling unit,” and other words not defined in the Specific Plan,
shall have the same definition as that set forth in section 12.03 of the LAMC.
(AR 3534.) Section 5.B is unambiguous. It is undisputed that City complied with the
density requirement of section 5.B. (AR
352.)
“Under
well-established law, an agency's view of the meaning and scope of its own
ordinance is entitled to great weight unless it is clearly erroneous or
unauthorized.” (Friends of Davis v.
City of Davis (2000) 83 Cal.App.4th 1004, 1015.) Here, City is entitled to deference in its
interpretation of section 12.21.G.2 and section 5.B of the Specific Plan. City’s interpretation is not clearly
erroneous. (See Oppo. 26-27.) Moreover, even giving no deference to City,
Petitioner’s contrary interpretation conflicts with the plain and unambiguous
language of the ordinance and specific plan.
“When interpreting statutory language, [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.) “Where, as
here, the plain text is unambiguous, it is controlling.” (People v. Sanchez (2019) 38
Cal.App.5th 907, 916.)
Petitioner
also contends that “LAMC 12.08.5(a) sets an objective FAR limit of .045 in the
R-1 zone” and that the Project is not consistent with this objective
standard. Relatedly, Petitioner states
that the Project caused the removal of a single-family home “within a neighborhood
comprised only of one-story, 2,500 square foot single-family homes.” (OB 7:15-22.)
The Project site is directly adjacent to a 24-story luxury high rise
tower. (AR 3374-3375; see also AR 2680.)
Petitioner does not support her factual assertion that the neighborhood
is comprised only of single family homes. The record also
shows that the Project is consistent with density requirements in section
12.08. LAMC section 12.08.C.5(a)
provides a floor area ratio (“FAR”) limit of 0.45 in the R-1 zone, but the LAMC
also provides that this limit “shall not apply” where a CUP is granted for a
project. (AR 20312, 20393.) Here, the City granted a CUP for the project
pursuant to LAMC sections 12.24 W.9, 12.24 W.51, and 12.24 F and this CUP
allowed for various deviations from the City’s by-right zoning provisions,
including a deviation to allow a “1.24:1 FAR for the proposed Childcare
Center’s lot in lieu of the 0.45:1 FAR otherwise permitted by LAMC section
12.08 C.5(a).” (AR 2741.)
Based on
the foregoing, Petitioner’s arguments about consistency with the municipal code
do not establish any prejudicial abuse of discretion in City’s approval of the
SCEA or initial study.
Petitioner
Does Not Show a Prejudicial Abuse of Discretion in Any Other Aspect of the SCEA
Petitioner has not developed an
argument that any other findings in the initial study or SCEA are not supported
by substantial evidence or were otherwise an abuse of discretion. (Nelson
v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863
[“When an appellant fails to raise a point, or asserts it but fails to support
it with reasoned argument and citations to authority, we treat the point as
waived”].)
In her opening brief, Petitioner
repeatedly refers to policies concerning GHG emissions. In a
section of her brief titled “Flawed Conflicts Analysis,” Petitioner seems to
reiterate her argument, discussed above, that the “land use characteristics” of
the eldercare facility conflict with regional transportation and GHG-reduction
goals of SB 375. (OB 13.) The court has sufficiently analyzed that
issue in its discussion, above, of the finding that the Project is a TPP. In the opening brief, Petitioner did not
develop any argument that the analysis of GHG impacts in the SCEA and initial
study was an abuse of discretion under CEQA.
(See AR 530-547 [initial study analysis of GHG emissions].)
In reply, Petitioner makes new arguments
about GHG emissions and cumulative impacts.
Petitioner states that the court should apply a de novo review in
“evaluating GHG impacts [and] identifying the potential significance of
significant cumulative GHG impacts.”
(Reply 4.) Petitioner also states
that “the record does not support the requisite equivalence and thus the PEIR
[Program EIR] does not contain the sufficient degree of relevance described in
Guidelines 15152(e) and Friends of College of San Mateo Gardens v. San Mateo
County Community College Dist. (Ibid.) to allow City to make the findings
regarding the cumulative GHG impacts of the Project.” (Reply 13.)
“The salutary rule is that
points raised in a reply brief for the first time will not be considered unless
good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149
Cal.App.3d 1002, 1010.) Petitioner does
not show good cause to raise these new arguments in reply. The court rejects all new arguments involving
GHG emissions on procedural grounds because they were improperly raised in
reply.
Even if
considered, Petitioner’s reply arguments are not persuasive. Pursuant to statute, a substantial evidence
standard of review applies to City’s approval of the SCEA, including analysis
of GHG emissions and cumulative impacts.
(§ 21155.2(b)(7); see also Sacramentans
for Fair Planning, supra, 37 Cal.App.5th at 722.) Petitioner cites no authority for the court
to disregard this statute in review of an SCEA.
To the extent Petitioner challenges fact findings made by City
concerning GHG emissions or cumulative impacts, she does not identify those
findings or cite all material evidence.
Petitioner does not cite any legal determination made by City related to
GHG emissions or cumulative impacts or show a lack of substantial evidence to
support those findings. In such
circumstances, Petitioner does not show a prejudicial abuse of discretion under
CEQA.
Petitioner argues that, while section
221155.2(b)(1) does not expressly require “functional equivalency” to rely on
cumulative impacts analysis from a prior EIR, the “logic” of the statute does
and that it “seems” the Legislature meant a functional equivalency test. (Reply 12:6-10.) These and other arguments in Petitioner’s
reply overlook Public
Resources Code section 21083.1, which specifically forbids courts from
interpreting CEQA or the
CEQA Guidelines “in a manner which imposes procedural or substantive
requirements beyond those explicitly stated.”
Moreover, Petitioner has not discussed the detailed cumulative impacts
analysis included throughout the SCEA, including with respect to GHG emissions,
or the material evidence and any prior EIR upon which it was based. (See AR 458-689 [initial study]; see AR 546-547 [GHG emissions].) She does not
show an abuse of discretion.
Conclusion
The petition is DENIED.