Judge Maurice A. Leiter, Case Number: 23STCP03847, Date: 2024-07-22 Tentative Ruling

Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief

Moving Party: Petitioner and Plaintiff, Supporters Alliance for Environmental Responsibility

Responding Party: Respondents and Real Parties in Interest, City of Long Beach, City Council of the City of Long Beach, CP VI Marketplace, LLC, and Carmel Partners, LLC,

The Court finds that supplemental CEQA review is required because the Project is outside the scope of the SEASP EIR and will have cumulative impacts not analyzed in the SEASP EIR. Supplemental review also is required to consider impacts not mitigated to less than significant in the SEASP EIR, and to analyze aesthetic impacts not analyzed in the SEASP EIR.

The Court considers the Opening Brief, Opposition Brief, Reply Brief, and Sur-Reply.[1]

The Southeast Area Specific Plan (“SEASP”), adopted in 2017, serves as the zoning and policy guidance for land uses, development standards, and design guidelines in the SEASP area. It aims to maintain natural resources while aligning with the City’s 2030 General Plan update. Developed through a multi-year process with substantial community involvement, the SEASP includes a Program Environmental Impact Report (“PEIR”) that analyzed 17 environmental impact categories, evaluated four alternatives, and included 20 appendices with additional technical studies, responding to all public comments. The SEASP PEIR includes 39 mitigation measures applicable to future projects. The SEASP required an amendment to the City’s Local Coastal Program (“LCP”), which was certified by the Coastal Commission in 2020 with 16 modifications to protect coastal resources. These modifications were adopted by the City of Long Beach in 2021, re-certifying the SEASP PEIR.

On September 19, 2023, Respondents City of Long Beach and City Council of the City of Long Beach approved entitlements sought by Real Parties in Interest CP VI Marketplace, LLC and Carmel Partners, LLC, allowing demolition of two office buildings and development of a six-story mixed use building in Long Beach, California (“Project”). The Project is one of the first mixed-use residential projects within the SEASP area and would replace two two-story office buildings and associated parking and landscape areas at 6615 and 6695 East Pacific Coast Highway with a new six-story mixed-use building, 91 feet high. The Project includes 390 residential units (17 affordable for very low-income levels for at least 55 years) and 5,351 square feet of commercial/retail space, with 576 vehicular parking spaces, 196 bicycle parking spaces, 45,141 square feet of common and private open spaces, and 24,507 square feet of public open space.

The SEASP includes 10 distinct land use districts, including the Mixed-Use Community Core (“MU-CC”) Area, where the Project site is located. The Project site is designated as MU-CC, where buildings are limited to 80 feet in height and specific areas have story limits. The SEASP PEIR includes a Mitigation Monitoring and Reporting Program (“MMRP”), requiring all projects to implement SEASP policies, standards, and mitigation measures. The MU-CC is envisioned as the primary activity center with a mix of residential, retail, visitor-serving accommodations, and office uses.

The Project site is located at 6615 East Pacific Coast Highway, surrounded by wetlands and open space, and in the coastal zone, near where the San Gabriel River empties into San Pedro Bay. The Project site is bordered by parking and commercial uses to the north, an office building to the northeast, and the Los Cerritos Wetlands 194 feet further northeast. The “Pumpkin Patch” vacant lot is directly south, with the San Gabriel River top bank about 435 feet south. Pacific Coast Highway is to the west, with a commercial mall across it. The San Gabriel River flood control channel close to the Project site is designated by the Specific Plan and the LCP as an Open Water Local Sensitive Habitat Area. An area of eelgrass designated as a National Marine Fisheries Service “Habitat of Particular Concern” is nearby, and green sea turtles that forage on eelgrass have been observed along the San Gabriel River. The Open Water portion of the San Gabriel River flood control channel is recognized as an Environmentally Sensitive Habitat Area (“ESHA”).

City approvals required for the Project included a Site Plan Review, Lot Line Adjustment, Lot Merger, and a Local Coastal Development Permit.

The City prepared a 206-page Compliance Checklist analyzing the project’s potential impacts across 20 areas, including 14 appendices with technical studies and the SEASP PEIR’s Mitigation Monitoring and Reporting Program (“MMRP”). The checklist concluded that the project complies with SEASP density limits, falls within the scope of the SEASP PEIR, and is exempt under Guidelines section 15183. The City sought approval based on compliance with these sections, without analyzing the necessity for subsequent CEQA review.

On July 20, 2023, the Planning Commission held a hearing, supported by a staff report recommending Project approval without further CEQA review, stating that the Project was consistent with and within the scope of the SEASP PEIR and subject to the MMRP. The City determined that the Project was exempt from the requirement of preparing environmental documents pursuant to 14 C.C.R. sections 15162, 15168, and 15183, claiming that the Project was adequately analyzed in the Program EIR prepared for the Specific Plan. The staff report stated the Project is eligible for ministerial concessions under the State Density Bonus Law, allowing increased building height and story limits to facilitate additional residential units and affordable housing. It also concluded that the Project aligns with the Coastal Act’s public access goals and environmental justice policies.

Appeals were filed by the Los Cerritos Wetlands Land Trust, Sierra Club Los Cerritos Wetlands Task Force, and others.

Additional comments and expert input were submitted on September 18, 2023. The Council, after a hearing on September 19, 2023, denied the appeals and approved the project with exemptions from CEQA review. A Notice of Exemption (“NOE”) was issued on September 20, 2023, citing consistency with SEASP and zoning, and confirming no new significant impacts beyond those identified in the SEASP PEIR. The Council adopted Resolution RES-23-0142, confirming that the Project will not result in new significant impacts or an increase in previously identified impacts.

On October 18, 2023, Petitioner Supporters Alliance for Environmental Responsibility filed a Petition for Writ of Mandate and Complaint against City of Long Beach, City Council of the City of Long Beach, and Real Parties in Interest CP VI Marketplace, LLC and Carmel Partners, LLC. The petition alleges a violation of the California Environmental Quality Act (“CEQA”) (Public Resources Code section 21000 et seq). The Petition requests injunctive and declaratory relief.

“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 first tier requires an agency to do an initial study to determine whether an activity is subject to CEQA, the second tier concerns exemptions from CEQA review, and the third tier requires an agency to submit an EIR in the event they find the project may cause a significant effect. (Id. at 380-381.)

Here, the City found that no supplemental EIR was required for the Project pursuant to Public Resources Code (“PRC”) sections 2116, 14 California Code of Regulations (“CCR”) sections 15162 and 15168. The City also determined that the Project was exempt from subsequent CEQA review pursuant to PRC § 21083.3 and 14 CCR § 15183 (“CEQA Streamline Provisions”).

Under PRC § 21166, if an EIR already has been prepared for a project, no subsequent or supplemental EIR is required unless one of the following events occur:

(1) Substantial changes are proposed to the project that necessitates major revisions to the EIR;

(2) Substantial changes in the circumstances under which the project is being undertaken requiring major revisions to the EIR;

(3) New information that was not known and could not have been known at the time the EIR was certified as complete becomes available.

Under 14 CRC § 15162, if an EIR has been certified or a negative declaration adopted for a project, no additional EIR is required unless the lead agency finds substantial evidence of one or more of the following:

(1) Significant changes to the project that introduce new significant environmental effects or increase the severity of previously identified effects;

(2) Significant changes in the project’s circumstances that lead to new significant effects or increased severity of known effects necessitate a new EIR; or

(3) New, previously unknown information that shows the project will have significant effects not previously discussed, or that previously examined effects are now more severe, also requires further review. This includes situations where feasible mitigation measures or alternatives previously deemed unfeasible would now substantially reduce significant effects, but the project proponents refuse to adopt them, or if different feasible mitigation measures or alternatives not previously analyzed could significantly reduce effects but are not adopted. (14 CRC § 15162 sub. (a).)

When changes or new information arise after adopting a negative declaration, the lead agency must prepare a subsequent EIR if the criteria are met; otherwise, they must decide whether to prepare a new negative declaration, an addendum, or no further documentation. (14 CRC § 15162 sub. (b).) After project approval, the lead agency’s role is complete unless further discretionary approvals are needed; new information post-approval does not require reopening the approval unless further discretionary approval is necessary. (Id. subd. (c).) If conditions for a subsequent EIR or negative declaration arise, the agency granting the next discretionary approval must prepare the required documentation before any further approvals by other responsible agencies. (Id.) Subsequent EIRs or negative declarations must undergo the same notice and public review as the initial documents and specify where the original EIR or negative declaration can be reviewed. (Id. subd. (d).)

Under 14 CRC § 15168, a Program EIR is used for a series of related actions, which may be connected geographically, as logical parts of a sequence of actions, through rules, regulations, plans, or criteria governing a continuous program, or by similar environmental effects and mitigation methods under the same authority. (14 CRC § 15168 subd. (a).) Using a program EIR offers several benefits: it allows for comprehensive consideration of effects and alternatives compared to individual EIRs, ensures cumulative impacts are considered, avoids repetitive evaluation of policy considerations, enables broad policy alternatives and mitigation measures to be considered early on, and reduces paperwork. (Id. subd. (b).)

Subsequent activities within the program must be evaluated in relation to the program EIR. (14 CRC § 15168 subd. (c).) If new effects are identified, a new initial study leading to an EIR or negative declaration is required, which can tier from the program EIR. (Id. (c)-(d).) If no new EIR is required, the agency can approve the activity within the scope of the program EIR. (Id. (c).) The agency must incorporate feasible mitigation measures and alternatives from the program EIR into later activities. (Id.) For site-specific operations, the agency should document the evaluation using a checklist to ensure the effects are covered by the program EIR. (Id.) A detailed program EIR facilitates the approval of later activities without further environmental documents. (Id.) A program EIR can simplify preparing environmental documents for later activities by providing the basis for determining significant effects in initial studies, being incorporated by reference for regional influences, cumulative impacts, and broad alternatives, and focusing subsequent EIRs on new, previously unconsidered effects. (Id. (d).) When public notice is required for later activities under laws other than CEQA, the notice must state that the activity is within the scope of the previously approved program and that the program EIR adequately describes the activity for CEQA purposes. (Id.)

Generally, the standard of review under PRC § 21166 and 14 CCR §§ 15162 and 15168 is substantial evidence. Petitioner acknowledges this but asserts the fair argument standard should apply where a later proposal is either not the same as or not within the scope of the project described in the program EIR. In opposition, Respondents argue that the substantial evidence standard applies.

The Court finds that the substantial evidence standard applies to the City’s determination that no supplemental EIR was required for the Project. But if the Court finds there was not substantial evidence to support the City’s finding that the Project fits within the SEASP PEIR, the activity is analyzed as a new project, and the fair argument standard applies.

“[W]e review the administrative record to see that substantial evidence supports each element of the exemption.” (Lucas v. City of Pomona (2023) 92 Cal.App.5th 508, 538.) “Because Guidelines section 15183 requires an agency to examine whether a project’s environmental effects were analyzed as significant impacts in a prior EIR on a general plan or zoning action with which the project is consistent . . . the substantial evidence standard applies. Fair argument is not the proper standard of review.” (Id.) The determination that a later activity is within the scope of a program EIR is based on substantial evidence. (Save Our Access v. City of San Diego (2023) 92 Cal.App.5th 819, 847.) If substantial evidence supports the conclusion that a later activity is within the scope of the program EIR, additional review under Guidelines section 15162(a) may be required. If not, the activity is treated as a new project, subject to the fair argument test. (Save Our Access, supra, 92 Cal.App.5th at 859-860.) The factual determination of whether subsequent review is required under Guidelines section 15168 is essentially equivalent to that used under Guidelines section 15183. (See Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 299, fn. 20.) In either scenario, the lead agency must show that substantial evidence supports a determination that the project is within the scope of the previously certified EIR and will not cause new significant impacts or an increase in the severity of previously identified significant impacts.

Under PRC § 21083.3, if a parcel is zoned or designated in a community plan to accommodate a specific density, and an EIR was certified for that action, any project consistent with this zoning or plan will need to address only environmental effects unique to the parcel or project that were not previously considered significant in the EIR, or new substantial information that shows increased significance. (PRC § 21083.3 subd. (a).) For development projects consistent with a local agency’s general plan that had a certified EIR, environmental review is limited to unique effects not previously addressed as significant, or effects that new substantial information indicates are more significant. (Id. subd. (b).) This section does not waive the requirement to analyze significant offsite or cumulative impacts not discussed in the prior EIR. (Id. subd. (c).) Public agencies must implement any feasible mitigation measures specified in the prior EIR for any significant effects caused by the project. (Id.) The lead agency must confirm at a public hearing whether these measures will be implemented. (Id.)

An environmental effect is not considered unique to the parcel or project if existing development policies or standards, based on substantial evidence, will mitigate the effect unless new information indicates otherwise. (Id. subd. (d).) Rezoning actions consistent with a community plan are exempt from additional review under this section. (Id. subd. (e).) A “community plan” is part of a general plan that applies to a specific area, complies with relevant government codes, includes development policies, and specifies measures for their implementation. (Id.) Individuals cannot challenge a public agency's decision regarding the project’s conformity to mitigation measures identified in a prior EIR unless they participated in the relevant public hearing. (Id. subd. (f).) Participation includes providing oral or written testimony before the hearing concludes, except when public notice of the hearing was not given as required. (Id.) Community plans adopted before January 1, 1982, can be amended to meet current criteria. (Id. subd. (g).) If amended, and an EIR was certified for the plan, and the EIR has not been legally challenged or deemed inadequate, the plan will be considered a “community plan” under this section. (Id.)

Under 14 CRC § 15183, CEQA mandates that projects consistent with the development density established by existing zoning, community plans, or general plans, for which an EIR was certified, do not require additional environmental review unless there are project-specific significant effects peculiar to the project or its site. (14 CRC § 15183 subd. (a).) This streamlines the review process and reduces repetitive environmental studies. (Id.) When approving such projects, public agencies should only examine environmental effects that are unique to the project or its location, were not previously analyzed as significant in the EIR for the related zoning or plan, are potentially significant off-site or cumulative impacts not discussed in the prior EIR, or are identified significant effects that have become more severe due to new substantial information. (Id. subd. (b).) If an impact is not peculiar to the project or location, has been addressed in the prior EIR, or can be mitigated through standard development policies, an additional EIR is not required. (Id. subd. (c).) This section applies to projects that align with an adopted community plan, a zoning action, or a general plan, for which an EIR was certified. (Id. subd. (d).) Public agencies must mitigate significant environmental effects identified in the EIR and confirm the feasibility of these measures in a public hearing. (Id. subd. (e).)

Environmental effects are not considered peculiar to the project if existing development policies or standards effectively mitigate them unless new substantial information indicates otherwise. (Id. subd. (f).) Examples of uniformly applied development policies include parking ordinances, public access requirements, grading ordinances, hillside development ordinances, floodplain ordinances, habitat protection ordinances, view protection ordinances, and greenhouse gas reduction requirements. (Id. subd. (g).) The absence of applicable development policies does not alone make an environmental effect peculiar to the project. (Id. subd. (h).) This section also applies to rezoning actions consistent with an approved general or community plan, provided that the plan meets CEQA requirements. (Id. subd. (i).) Lastly, this section does not waive the requirement to analyze potentially significant offsite or cumulative impacts unless these impacts were adequately discussed in the prior EIR. (Id. subd. (j).)

Petitioner argues that the fair argument standard applies to the City’s determination to exempt the Project from CEQA review, because determining the scope of a categorical exemption is a legal question subject to de novo review. Petitioner argues that this situation is distinguishable from Hilltop Group, Inc. v. County of San Diego (2024) 99 Cal.App.5th 890, where the court held that the substantial evidence standard applies when assessing whether adverse significant impacts were previously analyzed in a related community plan or zoning action under section 15183. Petitioner contends that Hilltop did not clarify whether the fair argument standard applies to “peculiar” impacts. Petitioner says that the fair argument standard applies to offsite and cumulative impacts under PRC § 21083.3 and 14 CCR § 15183 because the term “potentially significant” impact requires use of the fair argument standard. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1115.)

The Court finds that the City’s exemption determination is reviewed under the substantial evidence standard. As mentioned above, this involves the “second tier” of CEQA analysis, which “concerns exemptions from CEQA review.” (Muzzy Ranch Co., supra, 41 Cal.4th at p. 380.) In enacting CEQA, the 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 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.”].)

The Density Bonus Law (“DBL”), Government Code §§ 65915 et seq., was enacted to address California’s affordable housing shortage. When a developer agrees to construct a specified percentage of units for low- or very-low-income households, the city or county must grant the developer one or more concessions and a “density bonus,” allowing the developer to increase the project'’ density beyond the maximum limit set by local zoning laws. (Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755, 770.) In addition to increased density, the DBL mandates incentives and concessions, such as reduced or modified local development standards, to lower development costs. (Id.) It also requires waivers of local development standards (such as height limits) that would otherwise prevent construction at the density allowed by the DBL. (Id.) The DBL includes very limited exceptions and places the burden on the city to prove that an exception applies. (Id.)

Petitioner argues that the Project is not eligible for streamlined environmental review under Guidelines section 21083.3 because the Project is inconsistent with the zoning requirements found in the SEASP. The Project would be more than 91-feet tall, exceeding the maximum height requirement of 80 feet. It would be six stories tall, exceeding the maximum building story requirements of five and three for buildings along Shopkeeper Road and Pacific Coast Highway, respectively.

Respondents argue that the waivers granted under the DBL make the Project consistent with the SEASP and the General Plan. Respondents assert that the City was required to approve the building height limit and story increases under the DBL. Respondents argue that the Project qualifies for a 20% density bonus under the DBL because it provides 17 very low-income affordable units. (Gov. Code, § 65915(b).) They assert that density bonuses, along with necessary concessions, incentives, and waivers, must be provided if the statutory criteria are met. (Gov. Code, § 65915(b), (d), (e).) Government Code § 65589.5 mandates that such concessions and incentives be granted unless they do not result in cost reductions, would have a specific adverse impact on public health and safety, or would be contrary to state or federal law. (Gov. Code, § 65915(d)(1).) And local agencies are prohibited from applying development standards that would preclude construction at the granted densities and with the authorized concessions and incentives unless the agency can make specific adverse impact findings. (Gov. Code, § 65915(e)(1).) Respondents contend that the Project obtained necessary waivers.

Respondents point to Bankers Hill (2022) 74 Cal.App.5th 755, 770, which states a city “must” waive a building height limitation that would preclude development permitted by the DBL. They also point to Wollmer v. City of Berkely (2011) 193 Cal.App.4th (Wolmer II), which held that a city’s waiver of zoning standards for a density bonus project did not render the project inconsistent with general plan and zoning requirements. (Wollmer II, supra, 193 Cal.App.4th at 1347-1349.) And Petitioner argues that the DBL does not apply in the Coastal Zone relying on Kalnel Gardens, LLC v. City of Los Angeles (2016) 3 Cal.App.5th 927, which states that while the DBL does not supersede the Coastal Act, it requires that density bonuses be granted unless doing so would violate the Coastal Act. (Kalnel Gardens, LLC, supra, 3 Cal.App.5th at 944.)[2]

In reply, Petitioner asserts that the Project exceeds the height and story limits in the SEASP EIR, which functions as part of the City’s LCP and General Plan. Petitioner says the City is prohibited from granting density bonuses if they violate the LCP, making the waivers discretionary, not ministerial. And Petitioner contends that even if the DBL and Coastal Act could be balanced to allow waivers in the Coastal Zone, such waivers would be discretionary because a project is ministerial only when approval can be legally compelled without any changes in design to mitigate adverse environmental impacts. (Friends of Westwood v. City of Los Angeles (1987) 191 Cal.App.3d 259, 267; 14 CCR § 15369.) Since the City’s decision to grant height waivers under the DBL in violation of the LCP was discretionary, Petitioner claims that the Project was subject to CEQA review.

In sur-reply, Respondents argue that Petitioner abandoned its original argument, now claiming that the Project’s density bonuses violate the LCP due to height concerns. However, the City determined that the project is consistent with the Coastal Act. They also state that Petitioner did not challenge the City’s finding of consistency with the Coastal Act during the administrative process and is therefore barred from doing so now.

The Court finds that the waivers under the DBL were discretionary approvals rather than ministerial, due to the need to balance between the Coastal Act and DBL and ensure that the density bonus does not violate the Coastal Act. There is substantial evidence to support the City’s finding that the Project was consistent with the zoning and general plan. The evidence shows that the City analyzed the Project’s consistency with the Coastal Act in the City’s Staff Reports and findings. The Project, which provides for 17 very low-income affordable units, qualifies for a 20% density bonus under the DBL. The Project obtained waivers to allow a six-story building with a maximum height of 91 feet. There is substantial evidence to show that these waivers are essential to accommodate the density bonus and affordable units, and state law requires the City to grant them. The Court finds that the Project remains consistent with the SEASP and General Plan because the DBL preempts local zoning regulations in favor of state-mandated affordable housing goals. The Project is eligible for streamlined environmental review under PRC § 21083.3 and 14 CCR § 15183.

B. However, Supplemental CEQA Review is Required Because the Project is Outside the Scope of the Prior EIR

Petitioner argues that CEQA’s subsequent review provisions 14 CCR §§ 15168(c)(2) or 15168 are inapplicable to the Project because it is outside of the scope of the project analyzed in the specific plan EIR. According to 14 CCR § 15168(c), later activities must be examined considering the program EIR to determine whether additional environmental documentation is needed. If a later project falls outside the program’s scope, it must be treated as a separate project, and the previous environmental review cannot be relied on. (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1320-1321.) Petitioner claims the Project exceeds the height and story limits permitted by the Specific Plan and was not analyzed in the Specific Plan EIR.

Respondents contend that the SEASP permits building heights up to seven stories for certain overnight visitor-serving accommodations in the MU-CC, and this scenario was analyzed in the SEASP PEIR. Respondents also argue that the building height limit and story waivers for the Project are “ministerial” approvals required by state law if the objective criteria in the DBL are met. Even if a subsequent or supplemental EIR identified significant impacts from the Project’s ministerial waivers, the City would lack the discretion to modify the Project to address those concerns.

In reply, Petitioner argues that the question of buildings up to seven stories was analyzed in the SEASP EIR only as to “overnight visitor-serving” uses in the MU-CC zone, such as hotels, which are not part of the Project. The SEASP specifically limits buildings to a maximum height of 80 feet and the SEASP EIR’s analysis assumed compliance with the five-story height limit without considering density bonuses. It says the SEASP EIR does not mention the DBL, indicating no analysis of increased building heights due to the DBL. The SEASP allows seven-story buildings only in limited circumstances for projects that provide significant community amenities, which the Project does not. And even if seven-story buildings were analyzed, the SEASP EIR assumes nine-foot floor heights, which do not exceed 80 feet in total height. The Project’s 91-foot height was never analyzed in the SEASP EIR.

Under 14 CCR § 15168, if a subsequent project is not consistent with the program or plan, it must be fully analyzed as a new project or in another tiered EIR if it may have a significant environmental effect. (Friends of College of San Mateo Gardens v. San Mateo Co. Comm. Coll. Dist. (2016) 1 Cal.5th 937, 960; Save Our Access, supra, 92 Cal.App.5th at 845). In Save Our Access, the court held that supplemental CEQA review was required when a city allowed building heights to exceed 30 feet in the Coastal Zone, as the program EIR for the Local Coastal Plan assumed that buildings would not exceed 30 feet in height. (Id. at 845, 859-61).

As discussed above, the height and story waivers are discretionary approvals. While the waivers allowed the Project to remain consistent with the general plan and zoning, Respondents have not shown there is substantial evidence that the Project is within the scope of the SEASP EIR. The SEASP permits buildings up to seven stories only as to “overnight visitor-serving” uses in the MU-CC zone, such as hotels, which are not part of the Project. The SEASP specifically limits buildings to a maximum height of 80 feet, and the SEASP EIR’s analysis assumed compliance with the five-story height limit without considering density bonuses. And the SEASP EIR does not mention the DBL, indicating that increased building heights due to the DBL were not analyzed. Petitioner also has shown that the SEASP allows seven-story buildings only in limited circumstances for projects providing significant community amenities, which this Project does not offer. If seven-story buildings were analyzed, the SEASP EIR assumes nine-foot floor heights, which would not exceed 80 feet in total height. It does not appear that the Project’s 91-foot height was analyzed in the SEASP EIR. The Court finds that the Project is outside the scope of the SEASP EIR and further review is required.

Petitioner argues that additional CEQA review is required for any potentially significant impacts that are “peculiar to” a project or its site if those impacts were not addressed as significant impacts in the previous EIR. Petitioner asserts that the City’s own 14 CCR § 15183 Compliance Checklist acknowledges that the Project has significant impacts peculiar to the project or the parcel that were not analyzed as significant effects in the SEASP PEIR, including impacts related to hazardous materials, flood flows, noise, and transportation.

Respondents contend that the City did not “admit” that the Project requires additional review. They state that if an effect is peculiar to the site but can be mitigated to a less than significant level, further review is not required. Respondents assert that the Compliance Checklist provides substantial evidence explaining why impacts in areas such as flood flows, noise, and transportation will be mitigated to a less than significant level. And Respondents contend that alleged “new information” cannot trigger supplemental review unless it was not known and could not have been known at the time the SEASP PEIR was certified. Respondents reassert these arguments in their sur-reply.

Petitioner argues that the Project site is uniquely hazardous due to soil and groundwater contamination that exceed regulatory screening levels, including total petroleum hydrocarbons, VOCs, pesticides, and metals. A Phase II Environmental Site Assessment and an investigation by the Los Angeles Regional Water Quality Control Board found contamination exceeding regulatory screening levels for total petroleum hydrocarbons (TPH), petroleum-related VOCs, and chloroform. Groundwater contamination includes VOCs, pesticides, and metals, with benzene, naphthalene, arsenic, barium, and lead exceeding drinking water maximum contaminant levels. Expert evidence presented in Petitioner’s comments indicates these chemicals are toxic and/or carcinogenic. The site has a history of use for oil production and as a landfill, located within the Seal Beach Oil Field and Chevron Seal Beach Gas Plant, with two oil and gas production wells on site. The Regional Board suggests the site may have also been used for industrial waste disposal, with ongoing concerns about landfill gas and methane migration from adjoining oil field properties. Evidence demonstrates the Project will result in hazardous material impacts due to these conditions. The City’s CEQA Checklist acknowledges these impacts are peculiar to the project and were not analyzed as significant effects in the SEASP PEIR.

Petitioner asserts that the SEASP EIR did not analyze the site-specific chemicals, propose a cleanup plan, or suggest mitigation measures for construction workers or future residents, instead relying on regulatory measures. (AR 2406-2407.) Regulatory compliance determinations must be based on a project-specific analysis. (Californians for Alternatives to Toxics v. Dep’t of Food & Agric. (2005) 136 Cal.App.4th 1; Ebbetts Pass Forest Watch v. Dep’t of Forestry & Fire Protec. (2008) 43 Cal.4th 936, 956.) Petitioner states this omission is critical due to the potential spread of contaminated soil and vapors during substantial demolition and grading activities, posing health risks to workers, future residents, and nearby populations. (Ass’n for a Cleaner Env’t v. Yosemite Cmty. Coll. Dist. (2004) 116 Cal.App.4th 629, 639.) Petitioner states that under CCR § 15183, subsequent CEQA review is required to analyze and mitigate this peculiar impact. (PRC § 21083.3(a); 14 CCR § 15183(a), (b)(1)-(2).) It also constitutes significant new information necessitating supplemental environmental review. (PRC § 21166; 14 CCR § 15162(c)).

Respondents assert that the SEASP PEIR evaluated potentially significant impacts at various sites within and near the SEASP area containing hazardous substances from historical operations. The PEIR included three mitigation measures (HAZ-1, HAZ-2, and HAZ-3) to address these impacts. They claim that the Project’s implementation of these measures, along with compliance with federal, state, and local laws regarding hazardous substances management and disposal, would render potential hazardous materials impacts less than significant. The Compliance Checklist explains that implementing the SEASP mitigation measures will address site-specific effects, reducing impacts to a less-than-significant level consistent with the PEIR. Potential hazardous materials impacts can be substantially mitigated by uniformly applied development policies or standards, making an additional EIR unnecessary. A supplemental memorandum by the City’s consultants states that while no historical oil or gas wells are within the Project area, the site’s location in a designated City methane zone subjects it to additional municipal code requirements. The site, formerly used as a landfill, requires review and oversight by multiple regulatory agencies, with compliance mandated. The City concluded that three mitigation measures, along with compliance with applicable law, would mitigate impacts to a less-than-significant level.

The Court finds that the Project site’s history of oil production and landfill use, resulting in soil and groundwater contamination, was adequately addressed in the SEASP PEIR. These hazardous material impacts, including contaminants such as total petroleum hydrocarbons, VOCs, pesticides, and metals, were analyzed, and specific cleanup plans were proposed, not necessitating further environmental review.

Petitioner argues that the Project has significant biological resources impacts peculiar to it requiring subsequent CEQA review. It points to the conclusion of Dr. Shawn Smallwood that the Project would significantly impact biological resources unique to the Project and its site, impacts not analyzed in the SEASP EIR. Wildlife biologist Noriko Smallwood identified six special status species on-site: Monarch butterfly, Allen’s hummingbird, Western gull, Double-crested cormorant, Cooper’s hawk, and Red-shouldered hawk. Dr. Smallwood found that at least 135 species of vertebrate wildlife use the site, with at least 29 being special-status species. The Project would result in 405 bird-window collision fatalities annually due to a 6-story building in their flightpath. Vehicle collisions from Project traffic would cause further fatalities of special status species. Petitioner argues that these impacts are “peculiar” under 14 CCR § 15183 because they are unique to the parcel. Petitioner says that the SEASP EIR incorrectly concluded that there were no sensitive species on the Project site and did not analyze impacts of avian flight collisions or traffic collisions.

Respondents argue that substantial evidence in the SEASP PEIR, Compliance Checklist, Biological Technical Report, and supplemental technical memorandum support the City’s determination that the Project will not have significant impacts, including the application of seven mitigation measures and other SEASP provisions designed to protect biological resources. Respondents point out that the Project site is fully developed, with 5.61 acres of the 5.75-acre site consisting of existing buildings, an asphalt parking lot area, ornamental landscaping, and highly disturbed areas in the adjacent Pumpkin Patch. Respondents also argue that the supplemental technical memorandum by Glenn Lukos Associates refutes Petitioner’s claim that six special-status species were identified on the Project site, explaining that the special-status designations claimed are generally inaccurate or inapplicable. Mitigation measure BIO-8 and SEASP Policy 5.30 are incorporated to prevent direct impacts to nesting birds. Petitioner’s claim that the SEASP PEIR analyzed building heights up to seven stories. The argument regarding bird-window strikes is addressed by the requirement for bird-safe building treatments in SEASP section 8.3.14. And the claim about traffic collisions with wildlife is based on an irrelevant rural road study, not applicable to the urbanized Project site adjacent to Pacific Coast Highway. Glenn Lukos Associates determined that migratory birds could adjust their flight around developments, and the Project site does not constitute an established wildlife corridor that would be substantially interfered with. In sur-reply, Respondents state that a disagreement among experts does not undermine the substantial evidence supporting the City’s decision. (Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1069.)

The Court finds that there is substantial evidence to support the City’s findings that there are not peculiar impacts requiring supplemental review. Generally, potential effects peculiar to the project were adequately analyzed in the SEASP PEIR and covered by the Compliance Checklist. The City’s proposed mitigation measures for flood flows and noise, such as raising the elevation of selected portions of the development, floodproofing retrofits, and modified pile driving techniques, are part of uniformly applied policies. The Compliance Checklist indicated that the Project could have effects peculiar to the Project such as flood flows, noise, and transportation, but it sufficiently analyzed them and concluded that no additional CEQA impact analysis was required.

As to biological resources, the Compliance Checklist, Biological Technical Report, and supplemental technical memorandum, support the City’s determination that the Project will not have a significant impact, including through the application of seven mitigation measures and other SEASP provisions designed to protect biological resources. There is also substantial evidence presented by GLA that there are no peculiar impacts to biological resources. GLA determined that migratory birds could adjust their flight around the development while staying within their natural flyways to and from wintering and breeding grounds. The Project site does not constitute an “established native resident or migratory wildlife corridor” that the Project could substantially interfere with.

Given the substantial evidence of adequately analyzed impacts, there are no peculiar impacts requiring supplemental review.

D. There is Substantial Evidence that the Project Will Have Cumulative Impacts Not Analyzed in the Specific Plan EIR

Petitioner states that even if Section 21083.3 and 14 CCR § 15183 are applicable, supplemental CEQA review is required for “cumulative impacts which were not discussed in the prior EIR.” (14 CCR §§ 15183(b)(3), (j).) Petitioner argues there is substantial evidence that the impacts from the Project at 6615 PCH, combined with those from a residential project at 6700 PCH, will have significant cumulative impacts not analyzed in the Specific Plan EIR or the City’s CEQA Compliance Checklist. Although they were considered simultaneously, Petitioner says the environmental review for each project fails to discuss the impacts of the other adequately.

Petitioner argues the Project will have significant cumulative impacts on biological resources not analyzed in the SEASP EIR. Dr. Smallwood concluded that the projects at 6615 PCH and 6700 PCH will have cumulatively significant impacts on wildlife, including special status species. He stated that the six-story building at 6615 PCH would fragment aerial habitat, causing bird-window collision fatalities and contributing to wildlife-automobile collision mortality.

Petitioner also argues that the Project will have significant cumulative air quality impacts not analyzed in the Specific Plan EIR. The CEQA Compliance Checklist for 6615 PCH reports construction NOx emissions of 96 pounds per day (ppd), just below the significance threshold of 100 ppd. The 6700 PCH project will have NOx emissions of 41 ppd. Petitioner claims that the two projects combined will exceed the CEQA significance threshold with 137 ppd, and that the City’s CEQA documentation ignores these cumulative impacts. Petitioner argues that the failure to mention the 6700 PCH project in relation to cumulative impacts means there is no substantial evidence supporting the finding that the 6615 PCH project does not have significant cumulative impacts.

The Court finds that Petitioner has shown the Project would have significant cumulative impacts from the Project at 6615 PCH combined with those from the residential project at 6700 PCH not adequately analyzed in the SEASP PEIR or the City’s CEQA Compliance Checklist. The fair argument standard applies in determining whether these cumulative impacts may have a significant effect on the environment. Respondents argue in their sur-reply that the substantial evidence standard governs under Guideline 15183. The Court disagrees because, as discussed above, the Court found that there is not substantial evidence to support the City’s finding that the Project fit within the SEASP PEIR, and as a result the activity is analyzed as a new project to which the fair argument standard applies. The fair argument standard, which sets a low threshold for requiring an Environmental Impact Report (EIR), mandates that if there is any substantial evidence supporting a fair argument that a project may have a significant environmental effect, an EIR must be prepared. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 and No Oil, Inc., supra 13 Cal.3d 68.)

As to cumulative biological resources impacts, the Court is persuaded by Dr. Smallwood’s identification of six special status species on the Project site and the adverse effects of the Project on these species, including 405 annual bird-window collision fatalities. These are significant cumulative biological impacts not analyzed in the SEASP PEIR. Respondents’ argument that there is no substantial evidence of significant impact fails to address the cumulative nature of these impacts. Nor does it address the fair argument standard, which requires treating the effect as significant where there is expert disagreement. (Sierra Club v. Sonoma (1992) 6 Cal.App.4th 1307, 1316-1317).

As to cumulative air quality impacts, the Court finds that the cumulative NOx emissions of 137 ppd from the Project and the 6700 PCH project exceed the CEQA significance threshold, constituting a significant cumulative air quality impact not analyzed in the SEASP PEIR. In the sur-reply, Respondents contend that Petitioner fails to address the City’s supplemental technical memorandum, which states that, according to SCAQMD guidance, a project’s maximum daily emissions exceeding the project-specific threshold are also considered cumulatively significant. They assert that this guidance and the City’s expert opinion provide substantial evidence that there will be no significant cumulative air quality impacts. Respondents also claim that the Project’s cumulative impacts were assessed in the SEASP PEIR. However, the Court finds that Petitioner has provided sufficient evidence to support a fair argument that there may be cumulative air quality impacts that were not analyzed in the SEASP PEIR. The Court notes that the CEQA Compliance Checklist fails to mention the 6700 PCH project in relation to cumulative impacts. The acknowledgment of significant impacts related to flood flows, noise, and transportation in the 15183 Compliance Checklist further supports the need for supplemental CEQA review.

E. The City Did Not Fail to Implement Mitigation Measures Required by the SEASP EIR

Under 14 CCR § 15183(e), an agency can limit further CEQA analysis of an impact only when it “undertakes or requires others to undertake mitigation measures specified in the EIR which the lead agency found to be feasible.” (14 CCR § 15183(e)(1)). Petitioner argues that the City has eliminated required mitigation measures to reduce hazardous materials impacts required by the Specific Plan EIR. The EIR mandated the preparation of a soil management plan to be “evaluated by a qualified environmental professional.” But Petitioner says the City removed this requirement. Without this requirement, Petitioner says there is no assurance of the plan’s adequacy to safeguard workers and residents.

Petitioner also claims the City failed to implement feasible mitigation measures identified in the Specific Plan MMRP to reduce impacts on biological resources. Specific Plan Mitigation Measure BIO-3 requires that “[i]f sensitive biological resources are identified within or abutting the proposed development area, the project applicant shall submit evidence to the Long Beach Development Services Department that a qualified biologist has been retained to prepare a construction management plan.” Petitioner states the City did not require the project applicant to submit evidence that a qualified biologist had been retained to prepare a construction management plan.

In opposition, Respondents argue that the Compliance Checklist states that mitigation measures HAZ-1, HAZ-2, and HAZ-3 apply to and are incorporated into the Project, as modified. Respondents describe the modified HAZ-2 as more robust than the original version, enhancing the requirement for evaluation of an SMP. Respondents argue that streamlining CEQA review under Guidelines section 15183 would be defeated if project-specific refinements to mitigation measures from a program EIR triggered yet another CEQA document. They argue that refinements or additions to mitigation measures do not necessitate endless public review periods, which would only serve to arm project opponents with a paralyzing weapon of hired experts discovering flaws in mitigation measures. (Long Beach Sav. & Loan Ass’n v. Long Beach Redevelopment Agency (1986) 188 Cal.App.3d 249, 263). Respondents reassert these arguments in their sur-reply.

The Court finds that the City did not fail to incorporate mitigation measures from the SEASP PEIR into the Project. The Compliance Checklist states that mitigation measures HAZ-1, HAZ-2, and HAZ-3 are applicable to and incorporated into the Project, including the full text of these measures. The Court finds the modifications to HAZ-2 to be appropriate given the existing regulatory programs for subsurface contamination remediation, and the CEQA Guidelines expressly authorize such refinements to mitigation measures identified earlier in a program EIR. Appendix G of the CEQA Guidelines specifies that when an agency relies on an earlier analysis in a program EIR, it should describe the mitigation measures that were incorporated or refined and the extent to which they address site-specific conditions for the project. This approach was followed in the City’s Compliance Checklist.

As to Petitioner’s claim that mitigation measure BIO-3 will not be implemented, the Compliance Checklist includes BIO-3 and states that it applies to the proposed Project. The City’s supplemental technical memorandum explains that BIO-3 requires a construction management plan addressing resources in the vicinity of the property and any potential impacts unique to the Project site. This plan includes provisions for a monitoring biologist to be on-site during all grading activities, with work halted if potential impacts are observed.

F. The Project Does Not Have “Peculiar” Energy Impacts Requiring Further Review

Petitioner argues that subsequent CEQA review is necessary because energy impacts were not analyzed in the SEASP EIR. 14 CCR § 15183(a)(2) mandates review for impacts not previously analyzed as significant effects in a prior EIR for zoning, general plan, or community plan actions. (14 CCR § 15183(a)(2).) The City’s CEQA Checklist acknowledges that the SEASP PEIR did not analyze energy impacts separately, as the energy thresholds were added to Appendix G after PEIR certification Therefore, Petitioner claims that under section 15183 these impacts must be analyzed in a subsequent CEQA document. Also, under CEQA PRC § 21166, subsequent review is required if a project will have one or more significant effects not previously discussed. (14 CCR 15162(a)(3)(A).) Petitioner argues that a CEQA document should assess potential measures like solar panels, wind turbines, or heat pumps to reduce energy demands, and the City’s reliance on Title 24 and CALGreen does not meet the requirements for an adequate discussion of the Project’s energy impacts.

In opposition, Respondents argue that the Project does not have “peculiar” energy impacts requiring further review. According to 14 CCR § 15183, an impact is considered “peculiar” if it belongs exclusively to a project or is characteristic only of that project. Here, they claim that the Project’s energy impacts are typical of similar developments statewide and were contemplated under the SEASP. Additionally, substantial evidence in the PEIR, Compliance Checklist, and supplemental technical memorandum shows that the Project will not result in wasteful, inefficient, or unnecessary energy consumption. The Project not only complies with the 2013 Building Energy and Efficiency Standards and CalGreen but also meets the LEED Silver Standard, ensuring energy conservation. Mitigation measures AQ-1 through AQ-6 promote renewable energy by requiring electric landscaping equipment, energy-efficient appliances, renewable energy sources, and EV charging infrastructure. AQ-4 mandates enrollment in 100% renewable electricity services and prohibits gasoline-fueled equipment. The Project includes features to minimize transportation-related fuel usage, such as bicycle lanes, sidewalks, bicycle parking, a bus turnout, improved pedestrian accessibility, and a mix of residential and commercial spaces to reduce vehicle trips.

The Court finds that further CEQA review is not necessary for the Project’s energy impacts. The Project’s energy impacts are typical of similar types of development throughout the state, and are contemplated by and allowed under the SEASP. In addition, substantial evidence in the PEIR, Compliance Checklist, and supplemental technical memorandum shows that the Project would not result in wasteful, inefficient, or unnecessary consumption of energy resources.

G. Supplemental Review is Required to Consider Impacts Not Mitigated to Less Than Significant in the SEASP EIR

Petitioner argues that subsequent CEQA review is necessary for impacts not mitigated to less than significant levels in the SEASP EIR. The Specific Plan EIR acknowledged several impacts that were not mitigated to insignificance, including air quality, cultural resources, greenhouse gases, noise, and transportation. The City’s 15183 CEQA Compliance Checklist acknowledges these as significant and unavoidable impacts but contends that no additional environmental review is required since it would not result in new or more severe impacts than those previously evaluated and disclosed in the SEASP EIR. Petitioner asserts that this conclusion is incorrect. Section 15183 only applies to impacts that were “adequately addressed in the prior EIR.” (14 CCR § 15183(j).) In Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 122-125, the court held that when a first-tier EIR admits a significant, unavoidable environmental impact, a second-tier EIR is required for later projects to ensure those unmitigated impacts are “mitigated or avoided.”

In opposition, Respondents argue that an additional EIR is not required for impacts that are not peculiar to the project or parcel or have been addressed as significant effects in the prior EIR. (14 CCR § 15183(b)(1), (2), (c).)

The Court finds that the Project requires further review for significant and unavoidable impacts already identified in the SEASP PEIR. As discussed above, Petitioner sufficiently shows that the Project does not fit within the scope of the SEASP EIR, and it is not exempt under 14 CCR § 15183.

H. Supplemental Review is Required to Analyze Aesthetic Impacts Not Analyzed in the SEASP EIR

Petitioner argues the Project’s location on Pacific Coast Highway and its proximity to San Pedro Bay and the San Gabriel River will result in aesthetic impacts that the SEASP EIR did not consider. Section 15183 requires subsequent environmental review for impacts that were not previously analyzed as significant effects, are potentially significant off-site or cumulative impacts not discussed in the prior EIR, or are previously identified significant effects that have become more severe due to new information. (14 CCR § 15183(b).) The SEASP EIR concluded that the SEASP program would not have significant aesthetic impacts based on the assumption that no building would exceed five stories or 80 feet in height. But the Project will be six stories and more than 91 feet tall. Petitioner says this will block views from the PCH towards San Pedro Bay and the San Gabriel River, impacting the scenic quality of these areas.

Petitioner cites Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 937, which notes that aesthetic issues should be studied in an EIR to assess project impacts. The court in Pocket Protectors, Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492, and Citizens for Responsible and Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1337, emphasized that aesthetic impacts are relevant and should be considered in environmental reviews.

In opposition, Respondents argue that the Project’s potential aesthetics impacts were adequately assessed in the SEASP PEIR, which analyzed maximum building heights up to seven stories. Respondents assert that Petitioner fails to address the Compliance Checklist’s aesthetics analysis, which found that the Project would not obstruct existing views of the Los Cerritos Wetlands, hinder views of the San Gabriel River along Pacific Coast Highway, or affect views of Alamitos Bay from Marina Drive. It also concluded that the Project would not have a substantial adverse effect on scenic vistas.

The Court finds that subsequent CEQA review is necessary for the Project’s significant aesthetic impacts that were not analyzed in the SEASP EIR. The SEASP EIR assumed no building would exceed five stories or 80 feet in height, but the proposed Project will be six stories and over 91 feet tall. Petitioner shows that this increased height will likely block views from the Pacific Coast Highway towards San Pedro Bay and the San Gabriel River, impacting the scenic quality of these areas. As noted, section 15183 requires subsequent environmental review for impacts not previously analyzed as significant effects, for potentially significant off-site or cumulative impacts not discussed in the prior EIR, or for previously identified significant effects that have become more severe due to new information. Under CEQA, a subsequent EIR is necessary when new information of substantial importance, unknown at the time of the previous EIR, shows that the project will have significant effects not previously discussed or that new mitigation measures could substantially reduce these effects. The Court concludes that the significant aesthetic impacts due to the Project's increased height and its location on a scenic highway were not adequately addressed in the SEASP EIR.

[1] Respondents and Real Parties contend that Petitioner’s reply brief improperly introduced new legal arguments and failed to comply with the procedural requirement to present evidence favorable to Petitioners in their opening brief. The Court disagrees with these contentions. However, the Court allowed Respondents and Real Parties to file a sur-reply addressing any evidence or argument raised for the first time in the Reply.

[2] The Court rejects Respondents’ argument that Petitioner waived these arguments.

*Superior Court of California* *County of Los Angeles*
Supporters Alliance for Environmental Responsibility,	Petitioner and Plaintiff,	Case No.:	23STCP03847
vs.		Tentative Ruling
City of Long Beach, City Council of the City of Long Beach, and DOES I to X,	Respondents and Defendants.
CP VI Marketplace, LLC, Carmel Partners, LLC, and Roes I to X.	Real Parties in Interest and Defendants.