Judge Mitchell L. Beckloff, Case 21STCP04191 2022-10-12 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP04191, Date: 2022-10-12 Tentative Ruling

Respondent, City of Los Angeles, and Real Party in Interest, Westlake Apartments LP, move for judgment pursuant to Code of Civil Procedure section 1094. Petitioner, Coalition for Equitable Westlake/Macarthur Park, opposes the motion.

The court grants judicial notice of the City’s unopposed request for judicial notice (RJN) of Exhibits A through O. (Evid. Code § 452, subds. (b), (c), (h).)

This proceeding challenges the City’s approval of a multi-family housing development at 831-835 ½ South Westlake Avenue in Los Angeles (the Project). The first amended petition alleges the City violated the California Environmental Quality Act (CEQA) (Pub. Resources Code § 21000 et seq.) when it determined the Project was an in-fill development project exempt from CEQA pursuant to Guidelines section 15332, a Class 32 categorical exemption (Class 32 Exemption). Petitioner alleges the City could not rely on the Class 32 Exemption because the cumulative impacts exception applies such that use of the Class 32 Exemption is prohibited.

“If a petition for a writ of mandate filed pursuant to Section 1088.5 presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ.” (Code Civ. Proc. § 1094.) When applicable, “the motion for judgment provided by Code of Civil Procedure section 1094 is the proper, and exclusive, procedural means for seeking a streamlined review of an agency's decision.” (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1293.)

The City moves for judgment on the grounds Petitioner failed to exhaust its administrative remedies on the issue it raises before this court. Specifically, the City argues Petitioner did not adequately raise the cumulative impacts exception to the Class 32 Exemption[1] in the underlying administrative proceeding. Thus, the City never had the opportunity to consider the issue during the administrative proceedings.

Petitioner disputes the City’s assertion. Petitioner argues it sufficiently raised the cumulative impacts exception to the Class 32 Exemption during the administrative proceeding.

“On September 12, 2021, a public comment in support of the appeal indicated that the Project would cause substantial impacts from construction, including impacts with regard to air quality and noise. The comment also pointed [out] that the Project would result in NOx, VOC and CO emissions, as well as fugitive dust and that the Project was in an area with sensitive receptors, including numerous residential uses. The comment also indicated that the construction of the Project will also result in noise and ground borne vibrations.” (FAP ¶ 22 [emphasis added].)

“Petitioners notified the City of the cumulative impacts this Project will have on the environment and the general public.” (FAP ¶ 36 [emphasis added].)

The City argues Petitioner misrepresents in the first amended petition the content of the comments made during the administrative proceedings. The City contends the content of the public comments as well as Petitioner’s administrative appeal are inadequate to satisfy Petitioner’s administrative exhaustion obligations. The court agrees.

“No action or proceeding may be brought pursuant to [Public Resources Code] Section 21167 unless the alleged grounds for noncompliance [ ] were presented to the public agency orally or in writing . . . .” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535 [citing Pub. Resources Code, § 21177, subd. (a)].) “ ‘The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.’ ” (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1138.)

Petitioner properly appealed the City’s decision the Project was exempt pursuant to section 11.5.13 of the Los Angeles Municipal Code (LAMC). On March 9, 2020, filed the appeal of the CEQA exemption determination made by the City’s director of planning. (FAP ¶ 21.) Petitioner’s appeal letter contained the following language setting forth the general applicable law:

“A project qualifies for a Class 32 Categorical Exemption if it is developed on an infill site and meets certain criteria. However, before a project can be determined to qualify for a categorical CEQA exemption, exceptions to the exemption, such as cumulative impacts, must be considered. If an exception to a categorical exemption applies, CEQA review in the form of an MND or EIR must be conducted. CEQA Guidelines section 15355 states: ‘Cumulative impacts refer to two or more effects which, when considered together, are considerable or which compound or increase other environmental impacts. ¶ . . . the City fails to take into consideration the cumulative impact these projects will have on the environment.” (RJN Ex. B, pp. 30-31 [emphasis added].)

“Below [Petitioner] submits a list of past projects, current projects and future projects that contribute towards the cumulative impacts of the Project that must be considered. . . . Below are 35 project proposals that have been filed with the City since July of 2016 and are within a 1 mile radius of the Project. Many have already been approved. Most are requesting a categorical exemption, or have been determined to be categorically exempt. However, when determining that these projects are categorically exempt, the City fails to take into consideration the significant cumulative impact these projects will have on the environment. The area within a 1 mile radius is heavily populated, and is a high pedestrian and car traffic area.” (RJN Ex. B, p. 30 [emphasis added].)

In response to Petitioner’s appeal letter, the Department of City Planning argued:

“The Appellant has not submitted for the record any substantial evidence to support their assertions that the cumulative impact exception applies. Other than speculation and an unsubstantiated list of ‘past projects, current projects, and future projects’, the Appellant fails to support its allegations. The appeal also does not state which cumulative effects are at issue.” (RJN Ex. E, p. 113.)

Perhaps in an attempt to address the Department of City Planning’s criticism, Petitioner submitted a supplemental appeal letter to explain its position. The letter, however, merely listed several projects by address, and provided the following single-sentence explanation for the list provided: “Appellant . . . submits the below additional comments to support their argument that a Class 32 Categorical Exemption does not apply due to the cumulative impacts of the projects listed below.” (RJN Ex. C, pp. 34-35.)

The City argues Petitioner failed to specify what, if any, cumulative impacts resulted from the Project. The City also contends Petitioner failed to provide any evidence or expert opinion to support its generalized contention regarding cumulative environmental impacts.

The court agrees Petitioner failed to identify cumulative impacts resulting from the Project.

That is, the court agrees that neither the March 9, 2020 appeal (RJN Ex. B) nor the August 31, 2021 supplemental letter (RJN Ex. C) identifies the purported cumulative effect at issue with respect to the Project.

“Cumulative impacts” are two or more individual effects that, when considered together, are considerable or compound and increase other environmental impacts. (Cal. Code Regs., tit. 14, § 15355.) “The mere existence of significant cumulative impacts caused by other projects alone shall not constitute substantial evidence that the proposed project’s incremental effects are cumulatively considerable.” (Id. at § 15064, sub. (h)(4).) An agency’s analysis of cumulative impacts concerns all categories of potential environmental impacts, i.e., aesthetics, air quality, biological resources, cultural resources, geology and soils, greenhouse gases, hazards and hazardous materials, hydrology and water quality, land use and planning, noise, public services, transportation and traffic, tribal cultural resources, utilities and service systems, mineral resources, population and housing and recreation.

Petitioner’s generalized and vague reference to “cumulative impacts” (especially in light of the City’s response to Petitioner’s appeal that the appeal “does not state which cumulative effects are at issue”) does not provide with City with any legitimate ability to respond before judicial review. Without identifying which category of potential environmental impact might cumulatively be significant, the City would be required to evaluate every category of potential environmental impact to respond to the issue. The exhaustion doctrine requires that the City have the opportunity to “ ‘receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.’ ” (Evans v. City of San Jose, supra, 128 Cal.App.4th at 1138.) Petitioner’s generalized complaint about “cumulative impacts” is not an articulated factual issue and legal theory to which the City could reasonably respond.

Although the law recognizes “less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding” because “parties in such proceedings generally are not represented by counsel, . . . generalized environmental comments at public hearings, relatively . . . bland and general references to environmental matters, or isolated and unelaborated comment[s]’ will not suffice” to satisfy the exhaustion requirement. (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 527 [cleaned up].) Rather, “ ‘[t]he “exact issue” must have been presented to the administrative agency . . . .’ ” (Sierra Club v. City of Orange, supra, 163 Cal.App.4th at 535.) Requiring anything less “would enable litigants to narrow, obscure, or even omit their arguments before the final administrative authority because they could possibly obtain a more favorable decision from a trial court.” (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 594.)

Here, neither letter from Petitioner identifies any specific cumulative effects that would potentially be caused by the Project. Simply suggesting that there will be some cumulative effect, without identifying the nature of the cumulative effect (i.e. category of environmental impact), is inadequate. Petitioner merely identified potential projects in the area of the Project and generally noted a cumulative effect. Thus, the court finds Petitioner’s appeal letters were insufficient to put the City on notice of the nature of Petitioner’s cumulative effects challenge and inadequately provided the City with an opportunity to respond prior to judicial review.

As noted earlier, “the essence of the exhaustion doctrine is the public agency’s opportunity to receive and respond to articulated factual issues and legal theories before its actions are subject to judicial review.’ [Citations.] Comments must express concerns so the lead agency has ‘its opportunity to act and to render litigation unnecessary.’ ” (Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, 453 [quoting North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623].) “ ‘The purposes of the doctrine are not satisfied if the objections are not sufficiently specific so as to allow the Agency the opportunity to evaluate and respond to them.’ ” (Ibid.)

Finally, the public comment submitted to the City on September 12, 2021 indicated the Project would cause substantial impacts from construction, including impacts with regard to air quality and noise. The comment stated:

“The Project will be constructed over a period of approximately two years, during which there will be substantial impacts from construction, including impacts with regard to air quality and noise. Construction of the Project will result in NOx, VOC and CO emissions, as well as fugitive dust. The Project site is located in an area with sensitive receptors, including numerous residential uses. Construction of the Project will also result in noise and ground borne vibrations. For these reasons the Project does not qualify for a CE.” (RJN Ex. D, p. 32.)

While containing a more specific factual articulation of the Project’s alleged defect, this comment does not raise a cumulative effects exception argument. As noted, the comment addresses the purported significant environmental impacts of the Project itself, not its cumulative effects—there is simply no reference to other projects or cumulative effects of those projects. Whether the Project will have significant environmental impacts informs on whether the Project meets the requirements of the categorical exemption itself, not the exception to the exemption.

[1] For a project to qualify for the Class 32 Exemption, five criteria must be met: “(a) [t]he project [must be] consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations[;] [¶] (b) [t]he proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses[;] [¶] (c) [t]he project site has no value, as habitat for endangered, rare or threatened species[;] [¶] (d) [a]pproval of the project [must] not result in any significant effects relating to traffic, noise, air quality, or water quality[; and] [¶] (e) [t]he site [must be able to] be adequately served by all required utilities and public services.” (Cal. Code Regs, tit. 14, § 15332.)

[2] Petitioner argues: “The evidence in Movant’s exhibits reflect that there is substantial evidence in the record that the project will have significant environmental impacts thereby triggering CEQA review, not an exemption.” (Opposition 6:13-16.) The court does not consider substantial evidence where the exhaustion of administrative remedies is challenged. That is, the court does not determine whether the underlying challenge has merit; instead, the court reviews whether the issue was properly raised during the administrative proceedings.