Judge Maurice A. Leiter, Case 21STCP02223 2023-03-06 Tentative Ruling

Responding Parties: Respondent, City of Los Angeles; Real Party in Interest, Hi Point M, LLC

T/R: PETITIONER’S FIRST AMENDED PETITION FOR WRIT OF MANDATE IS GRANTED IN PART AND DENIED IN PART.

A. Measure JJJ, Transit Oriented Communities Affordable Housing Incentive Program

On November 8, 2016, Los Angeles County voters adopted Measure JJJ. (AR 6655-6676.) Measure JJJ sought to address the acute shortage of affordable housing for unhoused and low-income persons, following the dissolution of the Community Redevelopment Agency (which had provided funding for low- and moderate-income housing), and considering the County’s outdated General Plan and zoning designations, which failed to address affordable housing challenges. (AR 6656.)

Measure JJJ contained an incentive program to encourage the development of affordable housing. It sought to spur development of affordable housing in strategic locations, such as near major transit stops, where residents are susceptible to displacement as property values and rents rise. (Ibid.) And it created the Transit Oriented Communities (“TOC”) Affordable Housing Incentive Program to provide developers with incentives to develop affordable housing in transit-oriented neighborhoods. (AR 6657.)

On December 13, 2016, the Los Angeles Municipal Code was amended to codify Measure JJJ and the TOC Affordable Housing Incentive Program, in Municipal Code section 12.22 A.31. (Resp. Request for Judicial Notice (“Resp. RJN”), Ex. B at pp. 75-77.) This Code section provides incentives to housing developments “located within a one-half mile radius [2,640 feet] of a Major Transit Stop,” defined by California Public Resources Code section 21064.3 as “[t]he intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute hours.” (Id., Ex. B at p. 75; AR 6947; Pub. Resources Code, § 21064.3, subd. (c).) The incentives include residential density increases and parking reductions. (Id., Ex. B at p. 76.) It directs, “[w]ithin 90 days of enactment of this Ordinance, the Director of Planning [to] prepare TOC Affordable Housing Incentive Program Guidelines (“TOC Guidelines”) that provide the eligibility standards, incentives, and other necessary components of this TOC Incentive Program described herein.” (Ibid.)

On May 25, 2017, the Los Angeles City Planning Commission adopted TOC Guidelines. (AR 6939.) The TOC Guidelines specify that only affordable housing developments located within a one-half mile radius of a “major transit stop” qualify for the incentives. (AR 6947.) They establish a “Tier” system, which provides a ranking (Tier 1-4) to each eligible affordable housing based on its proximity to a “major transit stop.” (Ibid.) Pertinent to the matter before the Court, the TOC Guidelines provide that affordable housing developments will be ranked as “Tier 3” where (a) the development is located within 750 feet of an intersection of a Regular Bus and Rapid Bus Line; or (b) the development is located within 1,500 feet of an intersection of two Rapid Bus lines. (AR 6948.) The TOC Guidelines define a “Rapid Bus” as “a higher-quality bus service that may include dedicated bus lanes, branded vehicles and stations, high frequency, limited stops at major intersections, intelligent transportation systems, and possible off-board fare collection and/or all door boarding. It includes Metro Bus Rapid Transit line, Metro Rapid 700 lines, Metro Orange and Silver Lines, Big Blue Rapid lines, and the Rapid 6 Culver City. (Ibid.)

The TOC Guidelines state that all eligible affordable housing developments will receive “Base Incentives,” which are residential density increases (an increase in the number of dwelling units permitted under the applicable zoning ordinance, and an increase in the floor area ratio permitted under the applicable zoning ordinance), and parking reductions (a decrease in the number of parking spaces required under the applicable zoning ordinance). (AR 6950, 6952-6954.) The degree of the reduction and/or increase permitted is determined by Tier ranking. (Ibid.) And the TOC Guidelines provide that eligible affordable housing developments may be granted “[u]p to three Additional Incentives” (AR 6950.), including reductions in yards/setbacks, decreases in open space, increases in maximum lot coverage, decreases in lot width, and increases in development height. (AR 6954-6957.)

The proposed project at issue here concerns a rectangular-shaped lot at 1447 South Hi Point Street in Los Angeles (“Project Site”), near the intersection of Pico Boulevard and Fairfax Avenue. (AR 18.) The Project Site is approximately 8,839 square feet and currently has a single-family residence. (Ibid.) The Project Site is in the Wilshire Community Plan Area and is zoned [Q]R3-1-O, with a land use designation of “Medium Residential.” (Ibid.) Under its current zoning, building height is limited to 35 feet, articulation is required every 30 feet for building facades exceeding 40 feet, and balconies above the first floor which have a line of sight to adjacent homes are prohibited. (Ibid.)

The proposed Project would demolish the single-family home and construct a five-story, 57-foot-high multi-family residential development above one level of subterranean parking. (AR 18.) It will contain 20 multi-family dwelling units: two one-bedroom units, ten two-bedroom units, and eight three-bedroom units. (Ibid.) It would provide 24 parking spaces, 20 long-term bicycle parking spaces, and two short-term bicycle parking spaces. (Ibid.) The building will encompass approximately 20,093 square feet in total building area, with a floor area ratio of approximately 3.78:1. (Ibid.)

The properties surrounding the Project Site generally are commercial, single-family residences, and multi-family residential uses. (AR 18.) Properties abutting the Project Site to the west are zoned [Q]R3-1-O and contain three- and four-story apartment buildings. (Ibid.) Properties to the east of the Project Site, across Hi Point Street, are also zoned [Q]R3-1-O and are developed with one- to four- story single-family homes, condominiums, and small lot buildings. (Ibid.) Properties to the north of the Project Site are zoned [Q]R3-1-O and C4-1-O and include both single-family and multi-family residential structures, as well as a McDonald’s Drive-Thru restaurant and a commercial strip mall. (Ibid.) Properties to the south of the Project Site, across Saturn Street, are zoned [Q]R3-1-O and R1R3-RG-O and include a mix of single-family residences and multi-story apartment buildings. (Ibid.)

On February 27, 2020, Hi Point M, LLC (“Real Party in Interest”) submitted a “Transit-Oriented Communities Referral Form” to the Department of City Planning, which asked the Department to determine whether the Project qualified for incentives under the TOC Affordable Housing Incentive Program and, if so, under which “Tier” the Project may be categorized. (AR 619.) On the same day, the Department concluded that the Project qualified for incentives, because the Project was within a half-mile radius of a “Major Transit Stop.” The Department noted, “Santa Monica [Big Blue Bus] 7” and “[Rapid] 7” travel through the intersection [at Pico and Fairfax] and have service intervals of less than 15 minutes. (Ibid.) The Department also noted that “Local Line 217” and “Rapid 780” travel through the intersection and have service intervals of 14.4 minutes and 12.7 minutes, respectively. (Ibid.) The Department concluded the Project qualified for “Tier 3” categorization because it was (a) within 750 feet of an intersection of a Regular Bus and Rapid Bus Line, or (b) within 1,500 feet of an intersection of two Rapid Bus lines. (AR 619, 6948.)

On May 24, 2020, Real Party in Interest submitted a “Department of City Planning Application” requesting approval of the Project and the issuance of incentives under the TOC Affordable Housing Incentive Program. (AR 646-652.) Real Party in Interest sought: (a) 70% Density Bonus; (b) 50% Floor Area Ratio increase, (c) Parking reduction to .5 spots per unit; (d) 22 feet height increase; (e) 25% open space reduction; and (f) 30% side yard setback reduction. (AR 647.)

On December 30, 2020, the Director of the Department of City Planning approved the application. (AR 2954-2955.) The Director determined the Project is in a “Tier 3” Incentive Area and approved these “Base Incentives:” (a) a density increase of 70 percent, which equates to a maximum density of 21 residential dwelling units; (b) a maximum floor area ration of 4.5 to 1, representing a 50 percent increase in the floor area ratio of the underlying residential zone; and (c) .5 automobile parking spaces per unit. (AR 2955-2956.) The Director also approved these “Additional Incentives:” (a) a 30 percent reduction in the required width of two side yards to provide a minimum setback of five feet eight inches in lieu of the minimum eight feet; (b) an increase of 22 feet in building height, equal to a maximum building height of 57 feet, with limited additional height permitted for roof structures, stairwells, elevator shafts, etc. as permitted by the Los Aneles Municipal Code; and (c) a maximum reduction of 25 percent in the required amount of open space. (AR 2956.) And the Director concluded that the Project was exempt from CEQA pursuant to the “Class 32” Categorical Exemption. (AR 2954.)

On January 13, 2021, nearby residents filed a total of five appeals from the Director’s approval of the Project. (AR 22.) The residents’ appeals challenged: (a) The Director’s conclusion the Project is located in a “Tier 3” TOC Affordable Housing Incentive Area; (b) The Director’s conclusion the Project is exempt from CEQA pursuant to the “Class 32” Categorical Exemption, because the Project will have significant impacts on noise and traffic conditions; (c) whether The Project complies with the Qualified “Q” Conditions of the Project Site’s [Q]R3-1-O zoning; and (d) whether the height of the Project is incompatible with the surrounding neighborhood and will result in loss of sunlight, properly values, and community character. (AR 22-25.)

In response to these appeals the Department of City Planning drafted an “Appeals Recommendation Report”, which recommended that the appeals be denied. (AR 22-25.) The Report concluded that: (a) While the Project Site may not be located within 750 feet from a Major Transit Stop, “the project [remains] qualified for Tier 3 TOC status by proximity to a Major Transit Stop involving the intersection of two or more rapid bus routes located within 1,500 feet of the subject property” (rapid bus routes, Santa Monica Big Blue Bus Rapid 7 Line and Metro Rapid Line 780); (b) The Project is exempt from CEQA as it satisfied the five requirements applicable to the “Class 32” Categorical Exemption; (c) The Project is in compliance with the Qualified “Q” Condition; and (d) The Project’s height is not incompatible with the surrounding neighborhood. (AR 22-25.)

On April 8, 2021, the City Planning Commission adopted the Department of City Planning’s recommendation and denied the appeals. (AR 289.)

On April 13, 2021, two residents filed a CEQA appeal of the “Class 32” Categorical Exemption finding. (Ibid.) On August 31, 2021, the Planning and Land Use Management (“PLUM”) Committee, following a hearing, recommended the City Council deny the residents’ appeal. (AR 295-296.) On September 15, 2021, the City Council adopted the PLUM Committee’s recommendation and denied the CEQA appeal. (AR 317.)

On July 12, 2021, Hi Point Neighbors’ Association (“Petitioner”) filed a Verified Petition for Writ of Mandate against City of Los Angeles (“Respondent”). On November 10, 2021, Petitioner filed the operative Verified First Amended Petition for Writ of Mandate. This Petition has three causes of action: (1) Violation of Local Zoning—As Applied Challenge to TOC Guidelines; (2) Violation of Local Zoning Law—Project Inconsistent with TOC Guidelines; and (3) Violation of California Environmental Quality Act—Improper Adoption of Exemption.

Petitioner’s Request for Judicial Notice is GRANTED, pursuant to Evidence Code section 452, subdivisions (a), (b), and (h).

Respondent’s Request for Judicial Notice is GRANTED, pursuant to Evidence Code section 452, subdivisions (a) and (b).

Real Party in Interest’s Request for Judicial Notice is GRANTED, pursuant to Evidence Code section 452, subdivision (c).

The First Cause of Action is a challenge to the TOC Guidelines. Petitioner argues the TOC Guidelines are invalid as exceeding the scope of Measure JJJ. (FAP, ¶¶ 32-33.) First, Petitioner contends the “Tiers” in the TOC Guidelines were not permitted by Measure JJJ. (FAP, ¶ 35.) Second, Petitioner contends the “Additional Incentives” in the TOC Guidelines exceed the incentives permitted by Measure JJJ. (FAP, ¶¶ 32-33.) Third, Petitioner argues the TOC Guidelines improperly allow open space reductions and height increases which override [Q] Conditions (such as design guidelines) applicable to the Project Site by Ordinance Number 168193. (FAP, ¶ 38.) Petitioner contends the TOC Guidelines are invalid as exceeding those authorized by Measure JJJ.

These are both facial and as-applied challenges. Petitioner challenges the TOC Guidelines as not authorized by Measure JJJ, and challenges them on the ground that their application resulted in the issuance of invalid “conditions of approval” to the Project. (FAP, ¶ 37.) A facial challenge to a statute or local ordinance contends “‘the alleged defect is in the [O]rdinance itself, not in the manner or circumstances in which it is being applied.’” (County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1324.) “‘In evaluating a facial challenge, a court considers “only the text of the [challenged enactment] itself,”’ and conducts statutory interpretation to determine the enactment’s validity. (Beach & Bluff Conservany v. City of Solana Beach (2018) 28 Cal.App.5th 244, 264.) An as-applied challenge asserts the enforcement of a particular statute or ordinance is invalid. (Howard Jarvis Taxpayers Assn. v. Weber (2021) 67 Cal.App.5th 488, 496.)

The California Supreme Court similarly found a combined facial and as-applied challenge in Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 767.) The Ordinance at issue there permitted County residents to develop a second dwelling unit on their property so long as the rent charged for the second dwelling unit did not exceed that established by the Section 8 Program or Chapter 17.1 of the County Code, whichever higher, and the resident of the second dwelling unit was a low-income resident, an elderly resident, or a family member of the owner of the unit. (Id. at p. 763.) Travis owned a residential property in the County of Santa Cruz. (Id. at p. 764.) He was granted a permit to construct a second dwelling unit on his proper, subject to the rent and resident conditions imposed by the Ordinance. (Ibid.) Travis filed a Petition for Writ of Mandate against the County of Santa Cruz, challenging the Ordinance on the ground that it violated state law and is unconstitutional.

The Supreme Court found that the petition presented a facial challenge to the Ordinance as invalid and unconstitutional. It also presented an as-applied challenge to the Ordinance, as it placed allegedly improper conditions on his second dwelling unit. (Travis, supra, 33 Cal.4th at p. 767.)

The interpretation of a legislative enactment and the determination of the enactment’s validity is reviewed de novo. (Beach & Bluff Conservancy, supra, 28 Cal.App.5th at p. 264.) To prevail on an as applied challenge, a plaintiff must demonstrate that the application of the statute deprived the individual of a protected right. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 56.) In either case, the Court begins from “‘the strong presumption that the ordinance is . . . valid.’ [Citations.]” (Building Industry Assn. of Bay Area v. City of San Ramon (2016) 4 Cal.App.5th 62, 90.) The court “‘resolve[s] all doubts in favor of the validity of the ordinance.’ [Citation.]” (Ibid.) Unless conflict between the two provisions is “clear and unmistakable”, the court must uphold the ordinance. (Ibid.) Petitioner bears the burden of demonstrating the ordinance is invalid. (Ibid.)

B. Second Cause of Action: Challenge to Respondent’s Tier 3 Finding under TOC Guidelines

The Second Cause of Action alleges that Respondent’s conclusion that the Project qualifies for “Tier 3” is not supported by the evidence. (FAP, ¶¶ 39-60.) It is undisputed that this cause of action is governed by Code of Civil Procedure section 1094.5. (Code Civ. Proc., § 1094.5.)

Code of Civil Procedure “section 1094.5, subdivision (c), does not establish a single standard for judicial review of the evidentiary basis for agency determinations.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 137; Code Civ. Proc., § 1094.5, subd. (c).) It articulates two possible standards of review: independent judgment and substantial evidence. (Code Civ. Proc., § 1094.5, subd. (c).) The independent judgment standard applies where an administrative agency’s decision “substantially affects a fundamentally vested right.” (Bixby, supra, 3 Cal.3d at p. 144.) In all other scenarios, where an agency’s decision does not “substantially affect a fundamentally vested right,” the substantial evidence standard applies. (Ibid.) “The courts must decide on a case-by-case basis whether an administrative decision or class of decisions substantially affects fundamental vested rights . . . .” (Ibid.)

Petitioner does not advance any substantive arguments that approval of the Project “substantially affects a fundamentally vested right.” Petitioner’s Opening Brief contains a single, conclusory sentence asserting that the Second Cause of Action is subject to independent judgment review. (OB, at p. 12:19-26.) The Court disagrees. The substantial evidence standard of review is applicable to Petitioner’s Second Cause of Action.

Under the substantial evidence standard of review the Court must “examine all relevant evidence in the entire record, considering both the evidence that supports the administrative decision and the evidence against it, in order to determine whether or not the agency decision is supported by ‘substantial evidence.’” [Citation.]” (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335.) “[T]he petitioner in an administrative mandamus proceeding has the burden of proving that the agency’s decision was invalid and should be set aside, because it is presumed that the agency regularly performed its official duty. When the standard of review is the substantial evidence test . . . it is presumed that the findings and actions of the administrative agency were supported by substantial evidence. [Citations.]” (Desmond, supra, 21 Cal.App.4th at pp. 335-336.) The court’s review “is not designed to rectify an imprudent decision by an administrative agency. Administrative mandamus is not to be used to control the discretion of an administrative body, but only to ensure that it was not abused. [Citations.] It is for the agency to weigh the preponderance of conflicting evidence, ‘as we may reverse its decision only if, based on the evidence before [the agency], a reasonable person could not have reached the conclusion reached by [the agency].’ [Citations.]” (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 419.)

C. Third Cause of Action: Challenge to Respondent’s CEQA Exemption Finding

The Third Cause of Action is brought under the California Environmental Quality Act (“CEQA”). “CEQA is a comprehensive scheme designed to provide long-term protection to the environment.” (Mt. Lion Found. v. Fish & Game Com. (1997) 16 Cal.4th 105, 112.) “In enacting CEQA, the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties.” (Ibid.) “CEQA is to be interpreted to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Ibid.)

“In order to ensure that the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions, CEQA and its implementing administrative regulations (CEQA Guidelines) establish a three-tier process to ensure that public agencies inform their decisions with environmental considerations.” (Muzzy Ranch Co. v. Solano County Airport Land Use Com’n (2007) 41 Cal.4th 372, 379-80.)

The Court’s inquiry here involves the “second tier.” “The second tier concerns exemptions from CEQA review.” (Muzzy Ranch Co., supra, 41 Cal.4th at p. 380.) In enacting CEQA, the California Legislature recognized that not all “projects” will have a significant effect on the environment, and, therefore, should not be subject to the regulations imposed by CEQA. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1100-1101.) The Legislature instructed the Office of Planning and Research to “prepare and develop proposed guidelines for the implementation of [CEQA]”, which “shall include a list of classes of projects that have been determined not to have a significant effect on the environment and that shall be exempt from [CEQA review]. In adopting the guidelines, the Secretary of the Natural Resources Agency shall make a finding that the listed classes of projects referred to in this section do not have a significant effect on the environment.” (Pub. Resources Code, §§ 21083, 21084.) “In response to [the California Legislature’s] mandate,” the Secretary of the Natural Resources Agency has concluded that thirty-three (33) categories of “projects” “do not have a significant effect on the environment” and “are declared to be categorically exempt from the provisions of CEQA.” (CEQA Guidelines, §15300.) Where a public agency properly finds that a proposed “project” falls into one of the thirty-three (33) categorical exemptions articulated within the CEQA Guidelines, “no further environmental review is necessary.” (Muzzy Ranch, supra, 41 Cal.4th at 380.) “The agency need only prepare and file a notice of exemption (see CEQA Guidelines, §§ 15061, subd. (d), 15062, subd. (a)), citing the relevant statute or section of the CEQA Guidelines and including a brief statement of reasons to support the finding of an exemption (id., § 15062, subd. (a)(4)).” (Ibid.)

An agency’s finding that a proposed project is categorically exempt from CEQA review and is reviewed for a prejudicial abuse of discretion. (Pub. Resources 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.) “‘[O]nce an agency . . . determines, based on substantial evidence in the record, that the project falls within a categorical exemption . . ., the burden shifts to the challenging party . . . to “‘produce substantial evidence . . .’” [citations] . . . that one of the exceptions to [the] categorical exemption applies.’ [Citation.]” (CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 514; see Berkeley Hillside, supra, 60 Cal.4th at p. 1105 [“As to projects that meet the requirements of a categorical exemption, a party challenging the exemption has the burden of producing evidence supporting an exception.”].)

Petitioner challenges Respondent’s approval of the Project on three grounds. First, Petitioner contends Respondent’s award of “Additional Incentives” pursuant to the TOC Guidelines was improper because the Guidelines are invalid on their face and as applied. Second, Petitioner argues that Respondent’s finding that the Project qualifies for “Tier 3” incentives is not supported by substantial evidence. Third, Petitioner says Respondent’s determination that the Project qualifies for a “Class 32” Categorical Exemption under CEQA is not supported by substantial evidence. The Court addresses each claim in turn.

Petitioner raises three facial and as-applied challenges to the TOC Guidelines. Petitioner contends the TOC Guidelines’ “Tier” system was not contemplated by Measure JJJ. Second, Petitioner says Measure JJJ did not contemplate the award of “Additional Incentives.” Third, Petitioner contends the incentives are inconsistent with the [Q] Conditions applicable to the Project Site.

Before reaching these arguments, the Court addresses Respondent’s argument that the first cause of action is barred by the statute of limitations.

Respondent argues that First Cause of Action is untimely under Government Code section 65009, subdivision (c)(1)(B), which creates a 90-day statute of limitations period for actions or proceedings challenging several types of local planning and zoning decisions. (Gov. Code, § 65009, subd. (c)(1).) Pertinent here are actions described in Government Code section 65009, subdivision (c)(1)(B) and (c)(1)(E):

(c)(1) Except as provided in subdivision (d), no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body's decision:

(B) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance.

(E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.

(Gov. Code, § 65009, subd. (c)(1)(B), (c)(1)(E).) The Court of Appeal in County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1324 stated: “[t]he limitations periods set out in the statute are triggered by specific acts of local land use planning authorities. [Citation.] For the actions described in section 65009, subdivision (c)(1) the 90-day limitations period begins to run from the date on which the challenged decision is made. [Citation.] Thus, where a party brings a facial challenge to a zoning ordinance, [the limitations period described in Government Code section 65009, subdivision (c)(1)(B) is applicable, and] the limitation period begins to run on the date the ordinance becomes effective. [Citation.] If a party challenges conditions attached to a conditional use permit or other permit, [the limitations period described in Government Code section 65009, subdivision (c)(1)(E) is applicable, and] the limitations period runs from the date of final administrative action on the permit.” (County of Sonoma, supra, 190 Cal.App.4th at p. 1324.) Therefore, to determine when the statute of limitations begins to run, “one must determine what specific governmental act or acts the [party] . . . sought to challenge.” (Ibid.)

Respondent argues that Petitioner’s First Cause of Action presents only a facial challenge to the TOC Guidelines, that subdivision (c)(1)(B) is applicable, and the statute of limitations period began to run when TOC Guidelines were adopted on May 25, 2017. (AR 6939.)

As discussed, the First Cause of Action is both a facial challenge and an as-applied challenge to the TOC Guidelines. It claims the TOC Guidelines exceed the scope of Measure JJJ, and also claims the application of the TOC Guidelines to the Project resulted in “conditions of approval” unauthorized by Measure JJJ. While the facial challenge is barred by subdivision (c)(1)(B), the as-applied challenge is timely under subdivision (c)(1)(E).

The “Additional Incentives” awarded to the Project are contained in the “Director’s Determination” as “Conditions for Approval.” These became final on April 13, 2021, when the Department of City Planning issued a Letter of Determination denying the appeals filed against the Director’s approval of the award of “Additional Incentives.” (AR 289.) Petitioner was required to file the Petition within 90 days, or July 12, 2021. (Ibid.; Gov. Code, § 65009, subd. (c)(1)(E).) Petitioner filed the original Petition on July 12, 2021.

The Court recognizes that Petitioner’s as-applied challenge includes arguments that also would apply to a facial challenge: the Court must determine whether the “Additional Incentives” and “Tier” system are permitted by Measure JJJ. The Court may do so in considering the as-applied challenge. (Travis, supra, 33 Cal.4th at pp. 768-769 [“That the Ordinance could have been facially attacked in an appropriate action at an earlier time, before it was applied to Travis’ property, does not make section 65009 subdivision (c)(1)(E) inapplicable to Travis’s claim for removal of invalid conditions. This is not a case in which the plaintiff complains of injury solely from a law’s enactment. [Citation.] Travis complains of injury arising from, and seeks relief from, not simply the Ordinance’s enactment or continued presence in the County Code, but the County’s imposition on his second unit permit of conditions required by the Ordinance. Having brought his action in a timely way after application of the Ordinance to him, Travis may raise in that action a facial attack on the Ordinance’s validity.”].)

Petitioner focuses on Section 6 of Measure JJJ, which discusses one of the incentives available to affordable housing developments under the TOC Affordable Housing Incentive Program. (AR 6673.) It states, in part,

Residential Density Increase. An Eligible Housing Development shall be granted increased residential density at rates that shall meet or exceed a 35% increase. In establishing density allowances, the Department of City Planning may allow adjustments to minimum square feet per dwelling unit, floor area ratio, or both, and may allow different levels of density increase depending on the Project’s base zone and density.

(AR 6673-6674 [emphasis added].) Petitioner contends Measure JJJ prohibits varying levels of incentives on any basis other than “the Project’s base zone and density.” (Ibid.) According to Petitioner, “Base Incentives” and “Additional Incentives” based on the Project’s proximity to transit—the “Tier” system—is beyond the authority granted by Measure JJJ.

There are several weaknesses in this argument. First, the italicized language relied on by Petitioner is applicable only to one form of incentive (Residential Density Increase); it is not an overarching limitation to all incentives, as Petitioner suggests. Second, Measure JJJ does not expressly prohibit differing incentives based on a criterion other than a Project’s base zone and density. Third, Measure JJJ intended to provide flexibility to the Director of the Department of City Planning in drafting the TOC Guidelines. It expressly give the Director discretion to draft the TOC Guidelines and establish “eligibility standards, incentives, and other necessary components of this TOC Incentive Program . . . .” (AR 6673 [emphasis added].) Measure JJJ also states that the Director “shall” draft the TOC Guidelines “consistent with [those] purpose[s]”. (AR 6673.) A stated purpose of the TOC Affordable Housing Incentive Program is to encourage the development of affordable housing in transit-rich neighborhoods. (AR 6656-6657.) The Tiers in the TOC Guidelines and the award of more favorable incentives to developments in closest proximity to major transit stops furthers the purpose of Measure JJJ.

The TOC Guidelines’ “Tier” system is not inconsistent with or beyond the scope of Measure JJJ.

Petitioner focuses next on the “Additional Incentives” authorized by the TOC Guidelines. Those include reductions in otherwise required yards/setbacks, decreases in required open space, increases in maximum lot coverage, decreases in lot width, and increases in development height. (AR 6954-6957.) Petitioner argues that Measure JJJ did not contemplate the “Additional Incentives.”

Measure JJJ expressly contemplates the “Base Incentives” included in the TOC Guidelines. (AR 6673-6674.) But Measure JJJ does not prohibit the Director from including additional incentives. Indeed, Measure JJJ allows the Director to draft incentives; those are not limited to the Base Incentives. (AR 6673.) Measure JJJ expressly provides: “[w]ithin 90 days of enactment of this Ordinance, the Director of Planning shall prepare TOC Affordable Housing Incentive Program Guidelines (‘TOC Guidelines’) that provide the . . . incentives . . . of this TOC Incentive Program . . . .” (Ibid.)

The “Additional Incentives” in the TOC Guidelines are not inconsistent with Measure JJJ.

The Project Site is in the Wilshire Community Plan Area and is zoned [Q]R3-1-O. (AR 18.) The “Q” Qualified Condition, established by Ordinance Number 168.193, limits building height to 35 feet, requires articulation at every 30 feet for building facades exceeding 40 feet, and prohibits balconies above the first floor which have a line of sight to adjacent existing single-family uses. (Ibid.) Petitioner contends the TOC Guidelines improperly violate the “Q” Qualified Condition by awarding incentives in excess of permissible height and articulation. (OB, at p. 17:1-7.)

The Court is unpersuaded this argument provides grounds to invalidate the TOC Guidelines. The premise of Petitioner’s First Cause of Action is that the TOC Guidelines are invalid because they are inconsistent with Measure JJJ. But this argument does not concern inconsistency with Measure JJJ; instead it claims a purported inconsistency with the “Q” Qualified Condition. (OB, at p. 17:1-7.) Petitioner’s argument concerning the “Q” Qualified Condition does not show that “the TOC Guidelines [are] inconsistent with Measure JJJ,” as alleged in the First Cause of Action. (FAP, ¶ 38.)

B. Second Cause of Action— Petitioner’s Challenge to Respondent’s Tier 3 Finding under TOC Guidelines

Petitioner’s Second Cause of Action contends that approval of “Tier 3” TOC Incentives is not supported by substantial evidence. (OB, at p. 14:6-15:11.)

As discussed, a proposed development will be placed in “Tier 3” if it is within 1,500 feet of a “Major Transit Stop” which includes the intersection of two “Rapid Buses.” (AR 2089.) The TOC Guidelines define a “Rapid Bus” as “a higher quality bus service that may include several key attributes, including dedicated bus lanes, branded vehicles and stations, high frequency, limited stops at major intersections, intelligent transportation systems, and possible off-board fare collection and/or all door boarding. It includes, but is not limited to, Metro Bus Rapid Transit lines, Metro Rapid 700 lines, Metro Orange and Silver Lines, Big Blue Bus Rapid lines and the Rapid 6 Culver City bus.” (Ibid.)

On April 8, 2021, the City Planning Commission denied the various appeals filed by residents challenging the Director of City Planning’s determination that the Project qualifies as “Tier 3.” (AR 14-15.) The Commission concluded the Project is located less than 1,500 feet from the intersection of Pico Boulevard and Fairfax Avenue, where two Rapid Bus lines intersect. (AR 22.) The two Rapid Bus lines are Santa Monica Big Blue Bus Rapid 7 and Metro Rapid 780. (AR 22, 286.)

Petitioner does not appear to dispute Santa Monica Big Blue Bus Rapid 7 and Metro Rapid 780 meet the definition of “Rapid Bus[es].” And Petitioner does not appear to dispute that the Project is located within 1,500 feet from the intersection of Pico Boulevard and Fairfax Avenue, where Santa Monica Big Blue Bus Rapid 7 and Metro Rapid 780 intersect. Rather, Petitioner questions whether Respondent’s finding that where the Santa Monica Big Blue Bus Rapid 7 and Metro Rapid 780 meet, at the intersection of Pico Boulevard and Fairfax Avenue, qualifies as a “Major Transit Stop.” (OB, at pp. 15:11-16:2.) Petitioner points out that the intersection of two or more bus lines will be considered a “Major Transit Stop” only where those bus lines have “a service interval of 15 minutes or less during the morning and afternoon peak commute hours.” (AR 6947.) Petitioner contends the service interval of Metro Rapid 780 exceeds 15 minutes during the morning and afternoon peak hours, the intersection of the two Rapid bus lines therefore do not meet the definition of “Major Transit Stop,” and the Project did not qualify for “Tier 3.” (OB, at pp. 15:11-16:2.)

The Court agrees. Respondent’s finding is not supported by substantial evidence within the administrative record. Indeed, substantial evidence in the administrative record shows the service interval of Metro Rapid 780 exceeds 15 minutes during the morning and afternoon peak commute hours.

The administrative record includes the bus schedule for Metro Rapid 780 effective as of March 17, 2020. (AR 22 [“[T]he definition of a Major Transit Stop was subsequently clarified through City Planning on August 19, 2020 to apply only to transit schedules in place as of March 17, 2020 . . . .”]; OB, at p. 15:15-21.) Appendix A of the TOC Guidelines outlines the methodology for determining whether a particular bus line has a service interval frequency of 15 minutes or less. (Ibid.) To determine whether a bus line has an average service interval frequency of 15 minutes or less, one must first determine the number of trips the bus line completes during “peak” morning hours and “peak” afternoon hours, and then divide the number of trips made during “peak” morning and afternoon hours by 420. (AR 6958-6959.) 420 represents the total number of minutes during the peak hours of 6:00 AM to 9:00 AM (morning “peak” hours) and 3:00 PM to 7:00 PM (afternoon “peak” hours). (AR 619 [footnote 2], 6958-6959.) Appendix A specifies that the calculation must be completed separately for each direction the bus line travels. “If one or both directions fail to meet the 15 minutes frequency limit, the entire bus line is ineligible for a Major Transit Stop.” (Ibid.)

Metro Rapid 780 travels eastbound and westbound. (AR 1982.) The Court finds it makes approximately 12 eastbound trips during the morning “peak” hours, and approximately 12 eastbound trips during the afternoon “peak” hours. (AR 1982, 6958-6959.) Dividing the total number of eligible “peak” hour trips (24 total trips) by 420 yields an average service interval for Metro Rapid 780 Eastbound of approximately 17.5 minutes, which is above the 15-minute requirement for a “Major Transit Stop”. (AR 6947.)

Metro Rapid 780 westbound yields similar results. It makes approximately 11 trips during the morning “peak” hours, and approximately 12 trips during the afternoon “peak” hours. (AR 1982, 6958-6959.) The Court divides the total of 23 “peak” hour trips by 420, yielding in an average service interval for Metro Rapid 780 Westbound of approximately 17.5 minutes.

These calculations are greater than the 15-minute requirement for a “Major Transit Stop.” (AR 6947.) The Metro Rapid 780 Bus Line is ineligible for inclusion in a Major Transit Stop and does not support Respondent’s “Tier 3” finding. (AR 6959.)

Respondent’s Opposition does not address this argument, nor does it refer to any portion of the administrative record which provides a calculation different than the Court’s, or those provided during the residents’ appeals.

First, Real Party in Interest argues the “Tier 3” category does not contain a 15-minute service requirement. But an overarching eligibility requirement for the TOC Affordable Housing Incentive Program is proximity to a “Major Transit Stop,” which is defined as the intersection of two or more bus lines “with a service interval of 15 minutes or less during the morning and afternoon peak commute periods.” (AR 6947.) While the definition of “Tier 3” does not itself mention the 15-minute service interval requirement, this requirement is located under the heading “Type of Major Transit Stop.” It follows that the “Two Rapid Buses” which intersect must qualify for inclusion within a “Major Transit Stop,” and must satisfy the 15-minute service interval requirement. (Ibid.)

Second, Real Party in Interest argues that the intersection of Pico Boulevard and Fairfax Avenue still qualifies if the Court were to “combine” the intervals of service provided by the Metro Rapid 780 as well as the Metro Local Line 217. (Real Party in Interest’s Opposition Brief (“RPI Opp.”), at pp. 8:12-9:3.) Real Party contends that Metro Rapid 780 and Metro Local Line 217 “follow the same [bus] route from the intersection of Venice and Fairfax to the intersection of Hollywood and New Hampshire.” (Id., at p. 8:19-21.) According to Real Party, if the Court were to combine the number of trips made by both bus line during “peak” morning and afternoon commute hours, and divide by 420, the average service interval would be less than 15 minutes. (Id., at p. 8:19-23.) But Appendix A of the TOC Guidelines does not contemplate combining bus lines to determine whether a particular bus line is eligible for inclusion within a “Major Transit Stop.” (AR 6958-6959.) And Real Party does not show that Respondent engaged in this exercise.

Respondent’s finding the Project qualifies for “Tier 3” categorization and incentives, based on the conclusion that the Project is within 1,500 feet of a “Major Transit Stop” including the intersection of “Two Rapid Buses,” is not supported by substantial evidence. A writ of mandate setting aside the “Tier 3” incentives awarded under the TOC Affordable Housing Incentive Program is warranted. The Petition as to the Second Cause of Action is GRANTED.

C. Third Cause of Action—Petitioner’s Challenge to Respondent’s “Class 32” Categorical Exemption Finding

The Third Cause of Action challenges Respondent’s finding that environmental review pursuant to CEQA is not required because the Project qualifies for a “Class 32” Categorical Exemption. (FAP, ¶¶ 61-69.) First, Petitioner argues the Project does not satisfy the first and fourth conditions of CEQA Guidelines section 15332. (CEQA Guidelines, § 15332; OB, at pp. 17-24.) Second, Petitioner contends the “unusual circumstances” and/or “cumulative effects” exceptions apply and prohibit the Categorical Exemption. (Id., at p.24-25.)

1. The Record Does Not Contain Substantial Evidence That the Project Satisfies the Conditions for a “Class 32” Categorical Exemption

CEQA Guidelines section 15332 lists five conditions that must be satisfied to qualify for a “Class 32” Categorical Exemption. (Ibid.) It states:

Class 32 consists of projects characterized as in-fill development meeting the conditions described in this section.

(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.

(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban areas.

(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.

(e) The site can be adequately served by all required utilities and public services.

Petitioner focuses on subdivisions (a) and (d). Petitioner argues the Project fails to satisfy (a) because substantial evidence demonstrates the Project is inconsistent with the general plan and zoning designations applicable to the Project Site. Petitioner argues the Project fails to satisfy (d) because substantial evidence demonstrates the Project would have a significant effect on noise and air quality.

a. Subdivision (a)—Substantial Evidence Supports the Finding that the Project is Consistent with Applicable General Plan and Zoning Designations

Petitioner argues the Project fails to comply with the applicable “Q” Qualified Conditions. As discussed, the Project Site is within the Wilshire Community Plan Area; it is zoned [Q]R3-1-O, with a corresponding land use designation of “Medium Residential.” (AR 18.) The “Q” Qualified Conditions impose various land use requirements, including these:

Section 2. Pursuant to Section 12.32-K of the Los Angeles Municipal Code and the amendments thereto, the following limitations are hereby imposed upon the use of that property shown in Section 1 hereof which are subject to the Permanent “Q” Qualified Classification.

1. Covenant: Prior to the issuance of any permits relative to this matter, an agreement concerning all the information contained in these conditions shall be recorded in the County Recorder’s Office. The agreement shall run with the land and shall be binding on any subsequent owners, heirs or assigns. Further, the agreement must be submitted to the Planning Department for approval before being recorded. After recordation, a copy bearing the Recorder’s number and date must be given to the City Planning Department for attachment to the subject file.

3. Building Mass: For any building façade greater than forty (40) feet in length, articulation shall be required for every thirty (30) feet. Minimum depth of modulation of the façade shall be five (5) feet.

5. Energy Conservation: Prior to the construction of any project, the Department of Water and Power and the Southern California Gas Company shall be consulted regarding feasible energy conservation features which can be incorporated into the design of the project.

10. Open Space: A minimum of 100 square feet of usable open space shall eb provided for each dwelling unit. Parking area, driveways, front yard setback areas and rooftops shall not be included as open space. To be considered as usable open space[,] the project shall meet the following criteria:

a. Private Open Space: Patios and yards (located at ground level or the first habitable room level) which are part of a single dwelling unit and are enclosed by solid screen material at least four feet in height may eb included as usable open space provided said areas have a horizontal dimension of at least 15 feet in width.

b. Common Usable Open Space: Each common usable open space area . . . shall have an average width of 20 feet with no width less than 15 feet at any point.

Common open space areas shall incorporate recreational amenities such as swimming pools, spas, picnic tables, benches, tot lots, ball courts, barbecue areas, sitting areas, etc. to the satisfaction of the Department of City Planning.

A minimum of 50 percent of the common usable open space areas shall be planted in ground cover, shrubs or trees[.]

Petitioner argues the Project is inconsistent with these conditions because: (a) The Conditions of Approval failed to require Real Party in Interest to record the contemplated covenant before any permits may be issued; (b) The Project failed to provide articulation at every 30 feet of the building height; (c) The Conditions of Approval do not require Real Party in Interest to consult with the Department of Water and Power and the Southern California Gas Company prior to the construction of the Project to determine energy conservation designs; and (d) The Project fails to provide the requisite open space per dwelling unit.

Respondent argues that the Project is not required to comply with all the “Q” Qualified Conditions. According to Respondent, the requirements of the “Q” Qualified Conditions may be amended by the “Base Incentives” and “Additional Incentives” under the TOC Affordable Housing Incentive Program. (Ibid.) Respondent’s reading of the “Q” Qualified Conditions and the TOC Affordable Housing Incentive Program is supported by the Los Angeles Municipal Code.

On August 18, 1992, Ordinance Number 168193 codified the “Q” Qualified Conditions. (AR 2294.) It amended Los Angeles Municipal Code section 12.04 (entitled “Zones-Districts-Symbols”) by effectively re-zoning the Project Site and neighboring properties, placing a “Q” designation in the zoning classification (i.e., “[Q] R3-1-O”). (AR 2288.) Those properties zoned with the “Q” designation would be subject to the land-use requirements and limitations in the “Q” Qualified Conditions. (AR 2287-2288.)

Los Angeles Municipal Code section 12.22 enumerates approximately 35 “[e]xceptions” to the land use restrictions and requirements in Los Angeles Municipal Code sections 12.04 through 12.21.6. (L.A. Municipal Code, § 12.22 [entitled, “Exceptions.”].) Where an “[e]xception” is applicable, a property may be used in a way different than the zone permits. (L.A. Municipal Code, § 12.22.) It is undisputed that the TOC Affordable Housing Incentive Program is included in Los Angeles Municipal Code section 12.22 A.31, as one of the 34 specified “[e]xceptions” to the zoning land-use restrictions in Los Angeles Municipal Code sections 12.04 through 12.21.6. (L.A. Municipal Code, § 12.22, subd. A.31.) While the “Q” Qualified Conditions are applicable to the Project Site as a zoning designation, the Project may stray from their requirements by virtue of the Project’s eligibility for the TOC Affordable Housing Incentive Program. (Ibid; Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966, 999 [“ ‘ “If the statutory language is clear, our task is at an end, for there is no need for judicial construction.” ’ ”].)

As discussed next, the Court also finds that the Project is not inconsistent with the “Q” Qualified Conditions.

Section 2, subsection 1 of the “Q” Qualified Conditions states: “Prior to the issuance of any permits relative to this matter, an agreement concerning all the information contained in these conditions shall be recorded in the County Recorder’s Office. The agreement shall run with the land and shall be binding on any subsequent owners, heirs or assigns.” (AR 2289.) Petitioner contends the Project fails to comply with this section because Respondent failed to include, as a condition of approval for the Project, a requirement that Real Party in Interest record the covenant. (OB, at pp. 21:23-22:3.)

The Court is not persuaded the Project is inconsistent with this section. Petitioner has failed to demonstrate that the covenant was not recorded by Real Party in Interest’s various predecessors. The “Q” Qualified Conditions were created more than 30 years ago. (AR 2294.) This section does not require all owners of the Project Site to record the contemplated covenant. (AR 2289.) It merely requires the owner of the Project Site who requests a permit first following the effective date of the Ordinance to record the contemplated covenant, which will then “run with the land.” (AR 2289.) Petitioner fails to show a prior owner of the Project Site had not recorded the covenant.

ii. Section 2, Subsection 3 of “Q” Qualified Conditions --“Building Mass”

Section 2, subsection 3 of the “Q” Qualified Conditions provides: “For any building greater than forty (40) feet in length, articulation shall be required for every thirty (30) feet. Minimum depth of modulation of the façade shall be five (5) feet.” (AR 2289.) Petitioner contends the Project fails to provide sufficient articulation in relation to the building’s length. (OB, at pp. 17:28-18:2.) Specifically, Petitioner argues that, while the southern elevation of the Project is approximately 132 feet in length (which would require approximately four articulations pursuant to the “Q” Qualified Conditions), the Project provides only “one articulation 20 feet, 8 inches from the western façade.” (Ibid.)

Substantial evidence in the administrative record supports Respondent’s conclusion the Project is consistent with this section. The plans depict approximately five corridors on the southern façade, which are exposed and visible from the exterior with a glass railing. (AR 187, 195.) The Department of City Planning determined the five exposed corridors provide sufficient articulation for the building’s length. (AR 24.) Petitioner argues that the exposed corridors do not constitute sufficient “modulation of the façade because “the [term] “façade” is defined as the boundary of an exterior walls of the structure, which are not changed by exposed corridors.” (OB, at p. 18:5-7.)

Petitioner’s definition of the term “façade” comes not from the definitions provided within the “Q” Qualified Conditions but from “LawInsider.com.” (Petitioner’s Request for Judicial Notice, Ex. 1.) The Court is not persuaded that this definition governs. And the Court must give “great weight” to the Department of City Planning’s determination that the exterior corridors provide a sufficient modulation of the building’s “façade.” (Berkley Hills Watershed Coalition v. City of Berkley (2019) 31 Cal.App.5th 880, 896 [“a city’s interpretation of its own ordinance, ‘“is entitled to great weight unless it is clearly erroneous or unauthorized.”’].)

iii. Section 2, Subsection 5 of “Q” Qualified Conditions --“Energy Conservation”

Section 2, subsection 5 of the “Q” Qualified Conditions provides: “Prior to the construction of any project, the Department of Water and Power and the Southern California Gas Company shall be consulted regarding feasible energy conservation features which can be incorporated into the design of the project.” (AR 2289.) Petitioner contends there is no evidence demonstrating Real Party in Interest consulted with either the Department of Water and Power or the Southern California Gas Company regarding feasible energy conservation features for the Project. (OB, at p. 22:6-11.)

The Project is not inconsistent with this section. Under Section 2, subsection 5 consultation with the Department of Water and Power and the Southern California Gas Company is required “prior to the construction of any project.” (AR 2289.) It does not require consultation before obtaining approval for the Project, only before construction. Real Party was not required to consult with either the Department of Water and Power or the Southern California Gas Company for the purpose of obtaining approval for the Project.

iv. Section 2, Subsection 10 of “Q” Qualified Conditions -- “Open Space”

Petitioner maintains the Project is incompatible with various “Open Space” requirements in Section 2, subsection 10 of the “Q” Qualified Conditions.

Petitioner first focuses on the mandate that all patios and yards which are “private open space” must “have a horizontal dimension of at least 15 feet in width.” (AR 2290.) Petitioner argues that, while the Plans say the Project provides 50 square feet of “private open space” of patios and yards, the patios are not 15 feet in width. (OB, at p. 19:7-10.) Petitioner cites to the Project Plans, on pages 184 through 186 of the administrative record. (Ibid.; AR 184-186.) But the Plans referenced do not display the measurements of the relevant patios on the first floor, and the legend provides no further guidance. (Ibid.) Petitioner has not proved this contention.[1]

Petitioner next focuses on the requirement that “[c]ommon open space areas shall incorporate recreational amenities such as swimming pools, spas, picnic tables, benches, tot lots, ball courts, barbecue areas, sitting areas, etc. to the satisfaction of the Department of City Planning.” (AR 2291.) Petitioner contends “no amenities are provided for the 950 square feet of rear yard space shown on the Plans.” (OB, at p. 19:11-12.) But the 950 square feet of rear yard space clearly provides picnic tables and benches. (AR 182.) These are “recreational amenities” pursuant to the “Q” Qualified Conditions (i.e., “[c]ommon open space areas shall incorporate recreational amenities such as . . . picnic tables, benches . . . .”) (AR 2291.)

Petitioner then points to the mandate that “[e]ach common usable open space area shall have a total area of at least 400 square feet and shall have an average width of 20 feet with no width less than 15 feet at any point.” (AR 2291.) Petitioner contends the “rear yard area has an average width less than 20 feet with widths as narrow as 4 feet[.]” But the Project Plans unambiguously state the rear yard of the Project is approximately 20 square feet in width. (AR 182.)

Next, Petitioner directs us to the requirement that “rooftops shall not be included as open space.” (AR 2290.) Petitioner says the “fifth floor garden,” which is approximately 592 square feet, may not be counted towards the “open space requirement” because it is “located on the roof of the fourth story.” (OB, at p. 19:17-18.) The Court is unpersuaded that the fifth-floor garden may not be counted towards the minimum open space requirements. Notably, following review of the Project’s Plans, the fifth-floor garden is not on the rooftop of the Project, as Petitioner would suggest, but is on an exposed deck on the fifth floor. (AR 6540.) The rooftop is above the fifth floor. (AR 6541.)

Petitioner also points to the requirement that “[a] minimum of 50 percent of the common usable open space areas shall be planted in ground cover, shrubs or trees . . . .” (AR 2291.) Petitioner contends “the Project fails to landscape 50 percent of common open space as virtually none of the open space that meets the [Q] Conditions provides landscaping.” (OB, at pp. 19:23-20:1 [emphasis added].) The Court already has concluded the open space provided by the Project complies with the “Q” Qualified Conditions.

Petitioner’s contention that the Project fails to qualify for a “Class 32” Categorical Exemption because it is inconsistent with the “Q” Qualified Conditions is unpersuasive. Substantial evidence demonstrates the Project is sufficiently “consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.”

b. Subdivision (d)—Substantial Evidence Exists That Project Would Result in Significant Effects Relating to Air Quality; Petitioner Has Not Met its Burden as to Noise

CEQA Guidelines section 15332(d) requires that “[a]pproval of the project not result in any significant effects relating to traffic, noise, air quality, or water quality.” Petitioner argues that Respondent’s determination the Project will not have a substantial effect on noise and air quality is not supported by substantial evidence.

Petitioner’s argument concerning air quality centers on the Greenhouse Gas (“GHG”) emissions resulting from the Project. (AR 22:12-24.) Respondent based its conclusion on “a March 2020 . . . Air Quality Technical Report prepared by ZMassociates Environmental Corporation International.” The ZM Report assessed the Project’s effect on air quality by employing the South Coast Air Quality Management District (“SCAQMD”) Final Localized Significance Threshold Methodology, published in July 2008. (AR 6621.) Noting that the “Regional Construction Threshold” for Localized Significance with respect to GHG emissions is 3,000 CO₂e/year, the ZM Report concluded the GHG emissions created by the Project would be only 70.69 CO₂e/year. (AR 6624.) Petitioner contends this finding is erroneous because the SCAQMD “threshold for significance” employed by the ZM Report is outdated, and a more recent “threshold for significance” should have been used. (OB 22:14-24.)

During the administrative appeal Respondent was provided a report by the consulting entity “SWAPE” which analyzed the Project according to current SCAQMD “thresholds of significance.” (AR 3158.) The SWAPE Report provides:

As previously stated, the AQ Report estimates that Project construction would generate net annual greenhouse gas (“GHG” emissions of 70.69 metric tons of carbon dioxide equivalents per year (“MT CO₂e/year”), which would not exceed the SCAQMD threshold of 3,000 MT CO₂e/year (p. 9, Table 6). However, the guidance that provided the 3,000 MT CO₂e/year threshold, the SCAQMD’s 2008 Interim CEQA GHG Significance Threshold for Stationary Sources, Rules, and Plans report, was developed when the Global Warming Solutions Act of 2006, commons known as “AB 32”, was the governing statute for GHG reductions in California. AB 32 requires California to reduce GHG emissions to 1990 levels by 2020. Furthermore, AEP guidance states:

“[F]or evaluating projects with a post 2020 horizon, the threshold will need to be revised based on a new gap analysis that would examine 17 development and reduction potentials out to the next GHG reduction milestone.”

As it is already August 2021, the thresholds for 2020 are not applicable to the Project and should be revised to reflect the current GHG reduction target. As such, the SCAQMD bright-line threshold of 3,000 MT CO2e/year is outdated, and the AQ Report’s less-than-significant GHG impact conclusion should not be relied upon. Instead, we recommend that the Project apply the SCAQMD 2035 efficiency target of 3.0 metric tons of carbon dioxide equivalents per service population per year (“MT CO₂e/SP/year”), which was calculated by applying a 40% reduction to the 2020 targets.

(AR 3158-3159.) The SWAPE Report concluded that the GHG emissions from the Project would equal approximately 4.6 MT CO₂e/SP/year, “resulting in a potentially significant impact.” (AR 3159-3160.)

Respondent makes two arguments in response. First, Respondent contends the “air quality” assessment does not require analysis of potential GHG emissions. (Resp. Opp., at pp. 10:24-11:4.) Respondent contends subdivision (d) merely requires it to analyze potential substantial impacts to “air quality.” Respondent cites to Appendix G of the CEQA Guidelines, which is a sample “Environmental Checklist Form” that may be used to conduct an initial study of a Project’s potential environmental impacts. (CEQA Guidelines, Appendix G.) The sample includes a list of “[e]nvironmental [f]actors” which may be [p]otentially [a]ffected” by a project’s development; it shows “Air Quality” and “Greenhouse Gas Emissions” in separate categories. (Ibid.) Second, if the Court concludes GHG emissions fall within the scope of an analysis of air quality impacts, Respondent contends the conclusions of the ZM Report should be upheld.

The Court is not persuaded by Respondent’s interpretation of the language of subdivision (d). Although “Air Quality” and “Greenhouse Gas Emissions” are listed separately in Appendix G, this also shows that analysis of GHG emissions is relevant in considering whether the Project will have a significant impact on air quality. Indeed, the ZM Report, on which Respondent relies, analyzes GHG emissions. (AR 6624.) Moreover, Respondent has provided no case law or statue supporting its contention that an analysis of air quality would not include an analysis of GHG emissions.

Turning to the evidence in the administrative record, Respondent does not dispute that the ZM Report used an outdated SCAQMD threshold of significance in analyzing the Project’s GHG emissions. (See, Resp. Opp., at p. 11:5-20; AR 6624.) Nor does Respondent dispute that the proper SCAQMD threshold of significance is the SCAQMD 2035 efficiency target of 3.0 MT CO₂e/SP/year—the threshold of significance used in the SWAPE Report. (Ibid.; AR 3158-3160.) And Respondent does not dispute the conclusion of the SWAPE Report that the GHG emissions created by the Project would exceed the applicable SCAQMD 2035 efficiency target of 3.0 MT CO₂e/SP/year, resulting in a “potentially significant effect” to air quality. (Ibid.; AR 3159-3160.)

The Court’s review “is not designed to rectify an imprudent decision by an administrative agency[,]” and may be reversed only if, “based on the evidence before [the agency], a reasonable person could not have reached the conclusion reached by [the agency].” (Young, supra, 10 Cal.App.5th at p. 419.) Here, the Court cannot find that Respondent properly assessed the Project’s impact on air quality when Respondent used an incorrect standard with respect to GHG emissions. Respondent did not have a proper factual basis to conclude “the proposed [Project] will not exceed greenhouse gas Construction Air Emission Significance Thresholds, and therefore will not have a greenhouse has air quality impact.” (AR 6625.)

It was an abuse of discretion for Respondent to conclude CEQA Guidelines section 15332(d) was satisfied, and the Class 32 Categorical Exemption properly may be applied to the Project.

Petitioner’s challenge to Respondent’s determination concerning noise impacts centers on construction-related noise and operational noise.

Petitioner challenges Respondent’s conclusion that construction-related noise will not exceed the maximum decibel limit in Los Angeles Municipal Code section 112.05 of approximately 75 dB(A). The Court is not persuaded by Petitioner’s contentions. Substantial evidence in the administrative record, including the expert conclusions in the ZM Report, supports Respondent’s conclusion. (AR 6619.) The ZM Report states: “[d]ue to the small project size, the limited number of construction vehicles, limited number of construction equipment, and small size of construction equipment compared to much larger projects, the proposed project will not result in exceedance of City of Los Angeles noise ordinances.” (Ibid.)

Petitioner challenges this with an opposing expert report produced by Project opponents during an administrative hearing. (OB, at pp. 23:1-24:1.) This report was prepared by RK Engineering; it concludes the construction-related noise caused by the Project “would result in expected noise levels ranging from 78.5 dB(A) to 117 dB(A).” (AR 3333.) But differing expert opinion is not determinative in a substantial evidence review. (We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683, 699 [holding, “‘ “a disagreement among experts does not make an EIR inadequate”’ ” and is not determinative in a substantial evidence review].)

Petitioner’s arguments concerning operational noise fare no better. Respondent’s conclusion is supported by factual findings reached by Department of City Planning staff in a Recommendation Report. (AR 91.) The Department of City Planning concluded: “[n]oise generated through human conversation and activities (particularly in outdoor recreational spaces, such as balconies and patios), landscape maintenance, or trash collection would not exceed the recommended noise compatibility guidelines. Any new stationary sources of noise, such mechanical HVAC equipment, installed on the proposed development will be required to comply with LAMC Sections 112.02 and 112.05 which prohibit noise from air conditioning, refrigeration, heating, pumping, and filtering equipment from exceeding the ambient noise level at neighboring occupied properties by more than five dBA. In addition, the project is not expected to generate a substantial number of vehicle trips which could in turn generate additional noise. The proposed project is expected to generate a negligible increase in ambient noise from operation.” (Ibid.)

Petitioner questions the Department of City Planning’s findings, citing to a differing expert report which concludes” “it is highly probable that a noise level exceedance would occur from mechanical equipment operating on the project site.” (AR 3333.) Again, differing expert opinions are insufficient and this one also appears speculative. (We Advocate Through Environmental Review, supra, 78 Cal.App.5th at p. 699; CEQA Guidelines, § 15384, subd. (a) [substantial evidence does not include “speculation”].)

2. Petitioner Has Shown the “Unusual Circumstances” Exception is Applicable, But Not the “Cumulative Impacts” Exception

The Court’s conclusion that application of the Class 32 Categorical Exemption is an abuse of discretion -- because Respondent’s findings regarding air quality are not supported by substantial evidence -- ends the inquiry. The Court need not reach whether an exception applies to application of the exemption. But in the interest of completeness the Court will address Petitioner’s claim that, if there were substantial evidence for the Class 32 Categorical Exemption, an exception applies. It is Petitioner’s burden to show such an exception. (CREED-21, supra, 234 Cal.App.4th at p. 514.)

Petitioner argues that the “unusual circumstances” and/or “cumulative impacts” exception apply. (OB, at pp. 24:16-25:18.) Under the CEQA statutory scheme, the thirty-three categorical exemptions are not absolute. (North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 850 (North Coast Rivers).) They “are subject to exceptions that defeat the use of the exemption.” (Ibid.) Where an exception to an exemption applies, the public agency “must ‘conduct an initial study to determine if the project may have a significant effect on the environment.’ [Citation.]” (Muzzy Ranch, supra, 41 Cal.4th at p. 381.)

The “unusual circumstances” exception of CEQA Guidelines section 15300.2, provides: “[a] categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (State CEQA Guidelines, § 15300.2, subd. (c).)

The California Supreme Court in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 sets forth a two-part, “bifurcated approach” to determine whether a public agency abused its discretion in concluding an “unusual circumstances” exception was inapplicable. (Id. at pp. 1114-1115.) First, the reviewing court must review the administrative record to determine whether there is substantial evidence supporting Respondent’s determination that the Project does not present unusual circumstances. A project presents “unusual circumstances” when it will have a significant effect on the environment. (Berkeley Hillside, supra, 60 Cal.4th at p. 1105.) Second, the court determines whether the evidence presents a “fair argument” of “a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (Berkeley Hillside, supra, 60 Cal.4th at p. 1114.) A “fair argument” may be made where the administrative record includes substantial evidence reflecting “‘it [could] be “fairly argued”’ ” that “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (Id. at p. 1112.)

Petitioner focuses on the construction-related noise and the GHG emissions, arguing that substantial evidence demonstrates these are “unusual circumstances.”

The Court concludes substantial evidence in the record shows the Project presents “unusual circumstances.” As discussed above, the SWAPE Report concludes the Project will have a significant effect on the environment due to GHG emissions that exceed the “threshold of significance” in the most recent SCAQMD guidelines. Respondent has not produced evidence or argument challenging SWAPE’s conclusions. The report sufficiently demonstrates that the Project’s GHG emissions will have a significant effect on the environment, and the Project has “unusual” features and elements. (Berkeley Hillside, supra, 60 Cal.4th at p. 1105.)

In this case, the second prong of the Berkeley Hillside analysis dovetails with the first. Substantial evidence presents a “fair argument” the Project will have a significant impact on the environment.

The “cumulative impacts” exception, in CEQA Guidelines section 15300.2, subdivision (b), provides: “[a]ll exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant.” “‘Cumulative impacts’ refer to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.” (CEQA Guidelines, § 15355.) “The individual effects may be changes resulting from a single project or a number of separate projects.” (CEQA Guidelines, § 15355, subd. (a).) “The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects. Cumulative impact can result from individually minor but collectively significant projects taking place over a period of time.” (CEQA Guidelines, § 15355, subd. (b).) The challenging party has the “burden to produce evidence that there was a fair argument that the cumulative impact exception applied.” (Aptos Residents Assn. v. County of Santa Cruz¿(2018) 20 Cal.App.5th 1039, 1052.)

Petitioner argues that three other developments near the Project have been approved by Respondent and “likely [will] be developed concurrently” with the Project, resulting in a significant cumulative impact to air quality. (OB, at p. 25:4-18.) The development projects are: (a) 1444 Hi Point Street (VTT-74364-SL); (b) 1437 Hi Point Street (DIR-2009-2189-SPR-DB); and (c) 1500 Hi Point Street ((DIR-2020-1870-TOC-HCA). (Ibid.) Petitioner cites to the SWAPE Report, which concludes the additional projects and the development at the Project Site “will occur in close proximity at the same time, thus resulting in a potentially significant cumulative impact.” (AR 3152-3153.)

Petitioner has failed to demonstrate a fair argument that the cumulative impacts of successive projects, including the Project at issue here, would have a significant effect on the environment. The contentions in the SWAPE Report appear to be speculative. Petitioner fails to confirm whether the additional development projects will occur at the same time as the development of the Project Site, suggesting only that they “would likely be developed” at the same time. (OB, at p. 25:9-10.) And while the SWAPE Report concludes: “[the] projects at 1447 and 1500-1512 ½ South Hi Point Street will occur in close proximity at the same time[,]” the Report fails to articulate any facts—such as a development schedule for the referenced projects—supporting this conclusion. (AR 3152.)

Petitioner’s First Amended Writ of Mandate is GRANTED, in part, and DENIED, in part. It is DENIED with respect to the First Cause of Action. It is GRANTED with respect to the Second and Third Causes of Action.

A writ of mandate is issued ordering Respondent to vacate and set aside approval of the Project, including Respondent’s award of “Tier 3” TOC Incentives under the TOC Affordable Housing Incentive Program, as well as the Notice of Exemption based on Respondent’s finding the Project qualifies for application of a Class 32 Categorical Exemption.

[1] Even if Petitioner demonstrated the patios are less than 15 feet in width, this would be insufficient to demonstrate the Project has failed to provide the requisite amount of open space. Due to an “Additional Incentive” provided to the Project (25 percent reduction in the amount of open space), the Project is required to provide approximately 1,500 in open space. (AR 15.) The Plans show the Project provides approximately 2,492 square feet in open space. (AR 181.)

*Superior Court of California* *County of Los Angeles*
Hi Point Neighbors Association,	Petitioner,	Case No.:	21STCP02223
vs.		Tentative Ruling
City of Los Angeles,	Respondent.
Hi Point M, LLC and Does 1-25,	Real Party in Interest.