Judge Stephen I. Goorvitch, Case Number: 23STCP00415, Date: 2024-08-28 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP00415, Date: 2024-08-28 Tentative Ruling

Citizens Preserving Venice (“Petitioner”) petitions for a writ of administrative mandate directing the California Coastal Commission (the “Commission” or “Respondent”) to set aside its approval of a coastal development permit (“CDP” or the “permit”). The Real Party in Interest, Wynkoop Properties, LLC (“the real party”), acquired eight lots on Abbott Kinney Boulevard and seeks to demolish the existing structures, viz., three restaurants, a private school operating in three residential buildings, office space, and a surface parking lot. The real party plans to merge the lots and construct a mixed-use development with four 30-foot tall buildings and a subterranean parking lot.

The City of Los Angeles (the “City”) previously approved the plan after conducting a CEQA analysis, finding that the benefits of the project overrode the cultural impacts. The Commission also approved the plan. A different petitioner challenged the City’s approval on zoning grounds, and the court (Lofton, J.) denied the petition (“the Alba Luz petition”). Now, Petitioner challenges the Commission’s approval, arguing that the Commission improperly authorized the demolition of historic and cultural resources and did not properly consider the cumulative impacts of the project. Petitioner also argues that the Commission did not properly consider “the functionality related to the untested automated parking system,” and that the Commission improperly authorized consolidation of the eight lots.

This court sits as a quasi-appellate court over the Commission under Code of Civil Procedure section 1094.5. The court’s authority is limited to reviewing the Commission’s decision and determining whether there was a prejudicial abuse of discretion, which occurs when the Commission has not proceeded in the manner required by law; when the Commission’s decision is not supported by the findings; or when the Commission’s findings are not supported by the evidence. The court does not have authority to substitute its own judgment for that of the Commission or to conduct its own independent review of the disputed issues. In this case, the court finds that the Commission followed the correct procedures; the Commission’s decision is supported by its findings; and of most relevance, the Commission’s findings are supported by the evidence in the administrative record. Petitioner attempts to cite evidence outside the record, which the court may not consider. Therefore, the court must deny this petition.

The real party applied for a CDP for the following actions: “1) the demolition of one 2,442 sq. ft. restaurant at 1031 Abbot Kinney Boulevard, demolition of an existing preschool at 1047 Abbot Kinney Boulevard, demolition of a 2,200 sq. ft. of office space at 1021 Abbot Kinney Boulevard, and demolition of a 60- space surface parking lot located at 1011 Electric Avenue; 2) a lot merger of the eight subject lots into one 46,870 sq. ft. lot; and 3) construction of a 70,310 sq. ft. hotel development sited in four new 30-ft. tall buildings that would be connected by pedestrian bridges and the subterranean parking levels” (hereafter, “the Project”). (AR 30-31.)

The Project includes “a 54,728 sq. ft., 78-room hotel (consisting of 68 market-rate rooms and 10 lower-cost rooms), 2,935 sq. ft. of ground-floor retail space (including a market with 170 sq. ft. of service area), a 1,735 sq. ft. spa, 2,027 sq. ft. of in-house office space, four 472 sq. ft. apartment dwelling units (totaling 1,888 sq. ft. of residential development), and a 3,810 sq. ft. hotel restaurant.” (Ibid.)

“The proposed hotel development would be … composed of four 30-ft. tall, three-story buildings. Regarding the mass of the proposed structure, the three new structures would be articulated and stepped back in multiple locations to reduce the massing as seen from Abbot Kinney Boulevard and Electric Avenue.” (AR 48.) Specifically:

The architectural design of the proposed development is best described as a modern minimalist structure, characterized with a plain steel and wood façade. [¶] Abbot Kinney Boulevard is a highly urbanized street containing structures that range from one story to three stories (with a 30 ft. maximum height). The structures accommodate a wide variety of uses, including residences, retail shops, restaurants, and other light commercial uses. The Abbot Kinney Boulevard commercial corridor is surrounded by residential neighborhoods.

The City evaluated the Project’s potential environmental impacts under the California Environmental Quality Act (“CEQA”). In December 2020, after multiple public hearings before several the City’s decision-making bodies, the City Council certified the environmental impact report (“EIR”) for the project and approved various entitlements, including a CDP. (AR 2362.)

Three petitioners filed a lawsuit challenging the City’s approval of the Project, captioned Alba Luz Privado v. City of Los Angeles, et al., Case No. 21STCP00177. The lawsuit alleged the City violated provisions of the Los Angeles Municipal Code (“LAMC”), as well as applicable land use plans and CEQA. Trial was held on May 31, 2022, before the Honorable Joel L. Lofton. On July 22, 2022, Judge Lofton issued a Final Statement of Decision and Judgment denying the petition in all respects. (AR 1586-1609.) Petitioners did not seek appellate review of Judge Loftin’s decision. (See AR 1574.) Neither Petitioner nor the Commission were parties to the Alba Luz action. (See AR 635.)

The California Coastal Act of 1976 (the “Coastal Act”) is a comprehensive legislative scheme that governs land use planning for the entire coastal zone of California. (See Pub. Res. Code § 30001(a); Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 793.) The Coastal Act requires local governments to prepare local coastal programs (“LCPs”) to govern coastal zone development within their jurisdictions. (Pub. Res. Code § 30500.)

The City of Los Angeles has a certified land use plan for the Venice area (“Venice LUP”), but it has not completed its local coastal program (“LCP”). (AR 72.) The Coastal Act permits jurisdictions, such as City, to issue CDPs in the absence of a fully certified LCP under certain circumstances. (Pub. Res. Code § 30600(b).) As relevant here, the Commission hears appeals of City-approved permits if it determines that the appeal raises a “substantial issue” as to the project’s conformity with Chapter 3 of the Coastal Act. (Pub. Res. Code § 30625.)

Petitioner and other interested parties appealed the City’s approval of the CDP, and the Commission held a “substantial issue” hearing on March 10, 2022. (AR 130, 485.) The Commission determined, in relevant part, that the appeals raised “substantial issues” regarding low-cost overnight accommodations, cumulative impacts, parking requirements, and environmental justice. (AR 131.) The Commission did not determine there was a “substantial issue” with respect to historical resources. (AR 155-156, 477.) On December 15, 2022, after a de novo hearing, the Commission unanimously approved the Project’s CDP with conditions. (AR 2371, 2377, 1052-53.) This writ petition followed.

“Any aggrieved person shall have a right to judicial review of any decision or action of the commission by filing a petition for a writ of mandate in accordance with Section 1094.5 of the Code of Civil Procedure.” (Pub. Res. Code § 30801(a).) Under Code of Civil Procedure section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc. § 1094.5(b).)

The trial court presumes that the agency’s decision is supported by substantial evidence, and the party challenging that decision bears the burden of demonstrating the contrary. In reviewing the agency's decision, the court examines the whole record and considers all relevant evidence, including that evidence which detracts from its decision. Although this task involves some weighing to fairly estimate the worth of the evidence, that limited weighing does not constitute independent review where the court substitutes its own findings and inferences for that of the Commission. Rather, it is for the Commission to weigh the preponderance of conflicting evidence, as [the court] may reverse its decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it.

(Lindstrom v. California Coastal Commission (2019) 40 Cal.App.5th 73, 93, citation omitted.)

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. (See California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85). Substantial evidence also is evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 n. 28.)

The petitioner seeking administrative mandamus has the burden of proof and “must identify (with citations to the record) the factual findings made by the [Commission] that he or she is challenging and demonstrate (with citations to the record) why those factual findings” are not supported by the evidence. (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513, emphasis added; see Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

On questions of law arising in mandate proceedings, the court exercises independent judgment. (See Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The court exercises its independent judgment when the facts are undisputed, and “the purely legal issues involve the interpretation of a statute [or regulation] an administrative agency is responsible for enforcing . . . .” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343, citing Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 11.) In such cases, the court “tak[es] into account and respect[s] the agency’s interpretation of its meaning.” (Ibid.) How much weight to accord an agency’s construction is “situational,” and depends on the circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.)

Petitioner raises four arguments in this petition for writ of mandate: (1) The Commission violated the Coastal Act and ignored the Venice LUP by permitting the demolition of historic and cultural resources; (2) The Commission violated the Coastal Act by refusing the consider the cumulative impacts of the project; (3) The Commission errored by refusing to consider “the functionality related to the untested automated parking system;” and (4) The Commission violated the Coastal Act and ignored the LUP by permitting the real party to consolidate the eight lots. The court will consider each argument separately.

B. The Commission Did Not Misinterpret the Venice LUP, and There Is Sufficient Evidence Supporting the Commission’s Decision to Demolish the Buildings

The Commission correctly determined that the project is consistent with the Venice LUP and its treatment of historic resources. As part of the review process, the Commission must consider the Venice LUP but may deviate from the plan under proper circumstances.

If [the Commission] ignores the certified land use plan, then the decision may be subject to reversal if a reviewing court finds that the decision was arbitrary and capricious. In other words, the issuing agency must have a good reason for ignoring a certified land use plan, such as a significant change of conditions.

(Douda v. California Coastal Commission (2008) 159 Cal.App.4th 1181, 1194-1195.)

The Commission’s analysis of historic resources was based in part on Policy I.F.1 of the Venice LUP, which states in full:

Historic and Cultural Resources: The historical, architectural and cultural character of structures and landmarks in Venice should be identified, protected and restored where appropriate, in accordance with historical preservation guidelines. The following buildings, streets, and trees have been identified through the coordinated efforts of surveys performed by the Venice Historical Society, Venice Community, State Coastal Conservancy and City of Los Angeles as significant architectural, historical and cultural landmarks in the Venice Coastal Zone.

The Windward area, including the Windward Colonnades, Windward Apartments (1906), 52 Windward Avenue and 80 Windward Avenue (constructed in 1905 and housed the Venice First National Bank)

Walk streets (as shown in the LUP on Exhibit 19, Pedestrian Access and Bicycle Trails)

The Commission found that demolition of the structures would not run afoul of the Venice LUP. As found in Commission’s decision, GPA Consulting, which is an historic resource expert, prepared an historical resources analysis of the Project site and determined that none of the nine existing structures on the Project site are listed under any local, state, or national landmark or historic district programs. (AR 155-156, 480, 1646-1757.) GPA determined that “Abbot Kinney Boulevard between Venice Boulevard and Brooks Avenue,” where the Project site is located, has not been “formally evaluated [as a historic resource] using national, state, and local criteria and standards.” (AR 1673.)

GPA also determined that three bungalows located at 1047, 1047A, and 1047B Abbot Kinney appear eligible for local listing based on one local criterion (Craftsman architectural style), but are not eligible for listing on national or California registers. (AR 1648-49, 1690-1694.) In their analysis under CEQA, both GPA and the City concluded the Project would have an impact on the environment because of the demolition of the bungalows at 1047, 1047A, and 1047B Abbot Kinney. (AR 1648-49, 155-56.) The City considered a project alternative that maintained the three bungalows, but the City adopted a Statement of Overriding Considerations stating that the benefits of the Project overrode impacts relating to the bungalows and historic resources. (AR 156, 306-308.) There was no evidence before the Commission that the three bungalows had ever been listed on the local, state, or federal registers. (AR 155-156.) Accordingly, based on its review of the GPA report and the record, Commission found that “In this case, the City provided sufficient factual support for its recommendation to approve the project” with regard to demolition of the structures on the Project site and that the appeals did not raise a “substantial issue” with regard to historic or cultural resources. (AR 155-156.)

Petitioner raises several challenges to this decision. First, Petitioner contends that Commission misinterpreted the LUP when it concluded that the historic designation of Abbot Kinney Boulevard applied to the “street as a primary commercial corridor, not the individual structures” within the street. (Opening Brief (“OB”) 12:15-26; see AR 156.) LUP Policy I.F.1 provides a list of “buildings, streets, and trees” that have been identified as “significant architectural, historical and cultural landmarks in the Venice Coastal Zone.” (bold italics added.) The plain language of the policy supports the Commission’s conclusion. Notably, LUP Policy I.F.1 lists multiple buildings and structures that are historically important, but none of the buildings at the Project site are included in that list. Further, the undisputed evidence, including the GPA report, shows that none of the nine existing structures on the Project site are listed under any local, state, or national landmark or historic district programs, and only the three bungalows are even potentially eligible for listing on the local register. (AR 155-156, 480, 1646-1757.) In such circumstances, substantial evidence supports the Commission’s findings that the Project site’s location on Abbot Kinney did not create a “substantial issue” with respect to historical resources or require disapproval of the CDP.

Second, Petitioner contends that the Commission prejudicially abused its discretion when it “found that only structures actually listed on the National Register of Historic Resources, the California Register, or actually designated as a City of Los Angeles Cultural Monument were to be protected under the LUP and the Coastal Act.” (OB 12:6-12.) Similarly, Petitioner points out that GPA and City identified the three bungalows located at 1047, 1047A, and 1047B Abbot Kinney “as eligible for local listing because the bungalows constitute a mostly unaltered representation of the coastal bungalow architectural style that is associated with Venice.” (OB 13:1-16 and AR 155.)

In fact, the Commission did not find that “only” listed structures are eligible for protection under the LUP and the Coastal Act. Rather, the Commission considered the three bungalows’ lack of a listing as but one factor supporting its decision. The Commission also considered the analysis in GPA’s reports and the City’s Statement of Overriding Considerations with respect to the three bungalows. For instance, the Commission observed that “the report notes that the bungalows are not eligible for state or federal listing because the architecture of the bungalows are not representative of a master work or high artistic value.” (AR 155, emphasis added.) Petitioner did not submit any expert opinion conflicting with GPA’s historical resources analysis. Further, LUP Policy I.F.1 states that historical and cultural character of structures in Venice “should be identified, protected and restored where appropriate.” (AR 46 [bold italics added].) This language in the LUP contemplates scenarios where protection or restoration of historic buildings may not be appropriate or feasible. To that end, the Commission adopted the City’s finding that “the benefits of the project overrode the unavoidable impacts relating to cultural resources,” i.e., the project’s benefits outweigh the value of historic preservation of the three bungalows. (AR 156.)

Third, Petitioner argues that “[t]he Commission stated the City did not adequately consider the potential impact brought by demolishing three structures that could be eligible for local historic listing.” (OB 13:5-7, citing AR 156.) The Commission made no such statement. To the contrary, the Commission stated that “the City provided sufficient factual support for its recommendation to approve the project” with regard to the demolition of potential historic resources. (AR 156.)

Fourth, Petitioner argues that LUP Policy I.F.2 provides that properties not eligible for monument status should “be flagged for review.” (OB 13:15-16; AR 48.) This policy does not require City to preserve a structure that has not been officially listed or designated, and it does not mandate preservation of a structure that has been “flagged for review.” Petitioner’s reference to LUP Policy I.F.2 appears irrelevant to the Commission findings at issue.

Finally, Petitioner argues that the building at 1031 Abbot Kinney, formerly known as the Azz Izz Jazz Cultural Center, warrants protection for historic and cultural significance because it is mentioned in “the SurveyLA Los Angeles Citywide Historic Context Statement: African American History of Los Angeles.” (OB 13:17-24.) Petitioner does not provide any citation to the record in support of this contention. In opposition, the real party represents that the SurveyLA Context Statement upon which Petitioner relies was not submitted by Petitioner into the record. (RP Oppo. 12:12.) Petitioner advances no argument to the contrary. (See Reply 3-4.) Petitioner also has not moved to augment the administrative record pursuant to Code of Civil Procedure section 1094.5(e) with the SurveyLA Context Statement. Accordingly, Petitioner’s argument regarding 1031 Abbot Kinney lacks support in the record and is rejected. (See Richardson v. City and County of San Francisco (2013) 214 Cal.App.4th 671, 702 [“a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency”]; Shenouda, supra, 27 Cal.App.5th at 513 [under section 1094.5, the petitioner must demonstrate “with citations to the record” why the administrative findings are not supported by the record evidence].)

In sum, the court finds that the Commission did not abuse its discretion in authorizing the demolition of the three bungalows, among other structures. The Commission’s interpretation of the Venice LUP was supported by its plain language. There was sufficient evidence supporting the Commission’s finding that the three bungalows lack historic significance. The Commission also relied on the City’s finding that the project’s benefits outweigh the value of historic preservation of the three bungalows. Therefore, the petition for writ of mandate is denied on this basis.

Section 30250(a) of the Coastal Act states, in relevant part: “New residential, commercial, or industrial development … shall be located … where it will not have significant adverse effects, either individually or cumulatively, on coastal resources.” (Pub. Res. Code § 30250(a); see also Pub. Res. Code § 30105.5.) Section 13096(a), of title 14 of the California Code of Regulations, requires the Commission to make findings about the consistency of a proposed project with the Coastal Act and CEQA, including a staff report in conformance with section 13057.

In this case, the Commission made written findings concerning the cumulative effects of the Project, including the following:

Staff analyzed the potential cumulative effects on the character of the area by surveying the surrounding development. Staff’s survey area included the development on Abbot Kinney Boulevard between Brooks Avenue and Santa Clara Avenue (Exhibit 5). Of the surveyed development, the vast majority of structures are currently operating as light commercial development (office, retail) or some form of mixed-use commercial/residential development (i.e. ground level retail, upper-level residential)….

The proposed hotel, comprised of four 30-ft. tall buildings, would take up almost an entire block, which is not a typical pattern of development in the area. However, as stated in LUP Policy A.17, hotels are a preferred use in the Community Commercial zone. Community Commercial zones are limited throughout the City, which limits the available area suitable for developing a new hotel, which by its nature takes up a significant portion of land mass. Given that this project constitutes the first hotel project in the Abbot Kinney commercial corridor, there is not enough available evidence at this time to suggest that the project would have an adverse cumulative impact on the surrounding area. Furthermore, the proposed development does not exceed the maximum allowable height, and, as designed, is visually compatible with the mass, scale and character of surrounding development, even when accounting for the potential cumulative effects of development over time.

Petitioner argues that the Commission erred because it “made no new finding in determining the cumulative impact” of “another hotel in the Abbot Kinney commercial corridor that was presently under construction,” which Petitioner argues was “required under Section 13096(a) and (b) of Title 14 of the California Code of Regulations.” (OB 14:8-20.) In fact, the Commission considered the impact of the other hotel. At the hearing on December 15, 2022, a Commission staff person, Amrita Spencer, corrected the record in response to an email indicating that “there was an approval for a hotel at 812 Main Street, within the project vicinity, 13 years ago.” (AR 1001.) Spencer further stated: “However, this hotel hasn’t broken ground yet. And the Los Angeles Department of Building and Safety recently issued permits. So, there’s a chance that the 812 hotel may break ground first, but this doesn’t change Staff’s Recommendation for the project.” (AR 1001-02.) The Commission then approved the project.

Section 13096(b) of the Commission’s regulations provides that “[u]nless otherwise specified at the time of the vote, an action taken consistent with the staff recommendation shall be deemed to have been taken on the basis of, and to have adopted, the reasons, findings and conclusions set forth in the staff report as modified by staff at the hearing.” Here, the second hotel was acknowledged by staff at the hearing and did not change the staff’s recommendation to approve the CDP. The Commission was aware of the second hotel when it concluded that the cumulative impacts of the project did not militate against approval. (See AR 188-189.) Because the Commission’s action was consistent with the staff recommendation, the Commission implicitly adopted staff’s reasoning with respect to the new hotel, as set forth in Spencer’s comments at the hearing. (See 14 Cal. Code Regs. § 13096(b).) To the extent Petitioner argues otherwise, Petitioner is incorrect. (See OB 14:4-20).

In reply, Petitioner appears to assert that any finding with respect to the second hotel is “conclusory” and the Commission did not adequately consider the cumulative effects of these “two hotels in the area.” (Reply 5:3-9.) On a procedural basis, this new argument is improper because it was first raised in reply and also because it lacks any cogent analysis of the administrative record. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Reaching the merits, however, both the Commission and the real party point out that the second hotel is outside the survey area for the project and therefore would not affect the Commission’s cumulative impacts analysis. (Comm. Oppo. 17:15-17; RP Oppo. 14:14-17, citing AR 111-112.) In reply, Petitioner does not dispute that the second hotel falls outside the survey area. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) This explains why the Commission was not required to address the second hotel expressly in its analysis of the cumulative impact. The Commission’s findings were based on the staff’s analysis of “the potential cumulative effects on the character of the area by surveying the surrounding development.” (AR 50.) The Commission noted that “[the] Staff’s survey area included the development on Abbot Kinney Boulevard between Brooks Avenue and Santa Clara Avenue (Exhibit 5).” (Ibid.) Exhibit 5 is a map showing the addresses and structures included in staff’s Community Character Analysis. The property located at 812 Main Street, the site of the other hotel, is not included in Exhibit 5. (See AR 111-112.) Petitioner has not developed any argument that the scope of the staff’s survey area was not large enough for a cumulative impacts analysis. Accordingly, there is substantial evidence supporting the Commission’s finding that the hotel at 812 Main Street did not change the cumulative impacts analysis.

Petitioner also argues that “[t]he impact of the mass and scale of the Project was not properly considered by the Commission in approving the Project.” (OB 14:21-24.) The Coastal Act states, in relevant part, that “[p]ermitted development shall be sited and designed … to be visually compatible with the character of surrounding areas.” (Pub. Res. Code § 30251.) New development shall also “[w]here appropriate, protect special communities and neighborhoods that, because of their unique characteristics, are popular visitor destination points for recreational uses.” (Pub. Res. Code § 30253(e).) “LUP Policies I.E.2, I.E.3 and Coastal Act section 30251 require development to maintain existing neighborhood scale, massing, landscape, and character and be visually compatible with the character of the area.” (AR 3.)

Petitioner cites a “streetscape” that was submitted with the administrative appeal. (See AR 361-364 and RP Oppo. 14, fn. 14.) Petitioner argues that the streetscape “showed the hotel was 1.8 times or almost two times larger than the FAR of the surrounding properties” and “the Coastal Act does not distinguish between surrounding commercial or residential zones.” (OB 14:21-23; Reply 5:17-18.) The Commission responded in detail to Petitioner’s streetscape and stated, in relevant part, as follows:

On July 18, 2022, Robin Rudisill submitted a report to demonstrate that the proposed mixed-use hotel development is not consistent with the existing scale and character of the community (Exhibit 3)…. [T]he report includes a character survey that analyzes the scale of 37 developments within the project vicinity. The survey included 22 residential structures, 14 commercial structures, and a former church….[¶¶]

…. Areas D, E, F, and G of Ms. Rudisill’s character survey (which include residential structures) represent a different zoning area within Venice. As stated in the staff report, the project site is located on Abbot Kinney Boulevard and zoned Community Commercial in the certified Land Use Plan (LUP). The Community Commercial Zone allows both residential and commercial uses to be developed on the site….[¶]

Abbot Kinney Boulevard, including the block along which the project site is located, is widely considered to be a primary commercial focal point within Venice. In being zoned Community Commercial, the City has identified the Abbot Kinney corridor as an area that should include visitor-serving uses, such as a hotel. Furthermore, LUP policy A.17 identifies hotels as a preferred use in this category….[¶]

Given that the residences that Ms. Rudisill references in her survey are in a different zoning district than the project site (residential vs. commercial (with some allowances for mixed-use commercial/residential)), staff contends that it is more accurate to compare the mass and scale of the proposed development to the development pattern of the Abbot Kinney Boulevard. As such, staff conducted a community character survey to compare the proposed development to the surrounding developing along the Abbot Kinney commercial corridor. Staff’s survey is detailed in the staff report; however, staff concluded that the proposed development would be compatible with the variety of architectural styles of the surrounding development on the block, which includes one and two-story bungalows as well as modern 3-story developments.

The court finds that the Commission’s analysis does not reflect an abuse of discretion. To the contrary, the Commission’s decision is supported by the record. The project is located in a commercial zone that “is widely considered to be a primary commercial focal point within Venice,” and the LUP states that hotels are a preferred use in this area. (AR 51-52.) The project is designed to be consistent with the mass, scale, and character of surrounding development. “This is realized in the breakup of the development into multiple building as opposed to one large mass, as well as articulation throughout the development.” (AR 52.) These findings are supported by substantial evidence in the record. (See AR 43-52, 78-84, 111-113, 1088-1091.) Because the residential properties identified by Petitioner in its streetscape are in a different zoning district than the project site, the Commission reasonably determined that it was more accurate to compare the project to the development pattern along the Abbot Kinney commercial corridor. (AR 52.)

Based on the foregoing, the Commission’s cumulative impact findings are supported by substantial evidence. Petitioner does not show a prejudicial abuse of discretion in those findings. Therefore, the petition for writ of mandate is denied on this basis.

Petitioner argues that the project relies on “an untested automated parking system to meet the parking requirements of the site,” and the Commission erred in approving use of this system. Parking is at issue because the Coastal Act provides that “[t]he location and amount of new development should maintain and enhance public access to the coast by … providing adequate parking facilities or providing substitute means of serving the development with public transportation.” (Pub. Res. Code § 30252.) The Venice LUP “require[s] an applicant to provide a certain number of off-street spaces depending on the size and proposed use of a site.” (AR 5.)

Here, the Project is designed to provide 191 parking spaces, which exceeds the LUP requirement of 184 vehicle parking spaces for the Project. (AR 5, 60-61.) The Project is also designed to include a Transportation Demand Management Program (TDMP) to incentivize use of public transit and ride share to mitigate parking impacts related to the proposed demolition of a 60-space, private parking lot near the Project site. (AR 5-6; 61-63.) The Project’s parking would be provided in a three-level, subterranean, automated parking garage.

The Commission considered the nature of the parking system—including its automated nature—and made the following findings:

Under the automated garage system, hotel guests arriving by car would pull into the carport located off Electric Avenue. The car would be given into the care of a valet staff member, who will provide the patron with a ticket and/or a mobile access code. The valet staff member will then drive the car to one of three proposed car bays with elevators within the development, turn off and exit the vehicle, and activate the automated system. The automated system will scan the car and lower it on the elevator to one of the available parking floors. Once the car reaches the designated floor, it will be transported on the bay to an available parking space. The owner will be notified of their car’s location using a phone app. They can use the app to check on the status of their car and request their car. Compared to a conventional parking garage, the proposed automated parking garage requires less space to construct because there are no additional accommodations for ramps and turning radiuses.

(AR 31.) The Commission also analyzed Petitioner’s arguments and considered a supporting expert report during the approval process:

On November 21, 2022, Amanda Seward provided a study prepared by RK Engineering assessing the proposed automated parking system for the project (Exhibit 1). The document, dated July 8, 2022, specifically asserts that the applicant’s proposal for an automated parking structure is infeasible…. The report claims that the automated parking system does not evaluate the capacity of incoming and exiting cars separately, which would result in long queueing lines that would spill onto and increase congestion along Electric Avenue.

On December 12, 2022, the applicant provided a letter to respond to concerns raised in the RK Engineering letter (Exhibit 2). The applicant notes that the City imposed several conditions in the local approval of the project to ensure that the automated parking system would adequately satisfy the parking demand for the project….

Further, the applicant notes … that the parking and traffic studies for the project were approved by the City’s Department of Transportation (DOT). The applicant contends that if DOT identified any substantive issues with the proposal, the department would not have approved the automated parking structure.

While reviewing the project, the Commission staff determined that the project would provide 191 parking spaces, and that the parking proposal is consistent with the certified LUP requirements. Nevertheless, the Commission recognizes that there is a level of uncertainty associated with use of newer technologies, such as automated parking structures. Thus, to address these concerns, Special Condition 13 has been revised to require the applicant to maintain all 191 automated parking spaces in operable condition for the life of the development, immediately notify the Executive Director if any of the automated parking spaces become inoperable, and that if more than 25% of the spaces become inoperable for more than 10 days or if any automated parking space is inoperable for than 30 days, then the hotel and its appurtenant facilities shall cease operations until repairs of all automated parking spaces are completed. In addition, Special Condition 13 has also been revised to require the applicant submit a monitoring report one year after the automated parking system goes into effect. The monitoring report would evaluate whether the proposed automated parking system is in fact providing adequate parking for the development. If the report concludes that the automated system is causing cars to queue into the street or that the system is malfunctioning, the applicant would be required to submit a revised parking plan as an amendment to this permit. The revised plan could involve changing the automated system, or it could involve converting the garage to a conventional self-park garage. In any case, the project would be required to maintain access to 191 spaces. If the applicant is not able to operate the spaces, hotel operations would cease until the parking is fixed and fully accessible.

Now, Petitioner’s counsel argues that Special Condition 13—which was imposed by the Commission in response to her concerns—improperly deferred a determination of whether the parking system is feasible. (OB 15-16, citing AR 241 and Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3rd 296; see also AR 63, 810-867, 1434-1440 [Petitioner submission of study from RK Engineering].) This condition did not defer the decision on the feasibility of the parking lot. Rather, the condition imposed monitoring requirements, as well as safeguards/incentives to ensure that parking is accessible when the hotel is in operation. Therefore, Petitioner does not show a prejudicial abuse of discretion in Commission’s findings related to parking or in Commission’s decision to impose Special Condition 13.

More important, Petitioner fails to address the fact that the project’s transportation impacts were analyzed by the City under CEQA. (See AR 288-291.) Notably, Petitioner’s expert, RK Engineering, provided analyses of transportation and the automated parking garage system “to the city of Los Angeles in conjunction with the CEQA review of the project.” (AR 810.) The EIR for the Project analyzed the operation of the automated parking garage and concluded that no significant impacts related to transportation would occur. (AR 288-291.) A project design feature (“PDF”) imposed by City, and analyzed in the EIR process, states: “The three lifts in the Main Valet Area will have a total minimum service rate of 80 vehicles per hour (combined input and output) (approximately 27 per hour per lift).” (AR 291, 1936-1950.) This PDF was based upon the analysis of an expert traffic engineer of the automated parking system, and it is an enforceable condition of approval by the City. (AR 1936, 1949-1950.) The EIR is final and not subject to challenge. Accordingly, the EIR is “conclusively presumed to comply with the provisions of [CEQA] for purposes of its use by responsible agencies” such as the Commission. (§ 21167.2; California Coastkeeper Alliance v. State Lands Com. (2021) 64 Cal.App.5th 36, 60.)

In reply, Petitioner asserts that “there was no evidence that the Commission relied on the City’s EIR review of the automated parking system or that the Commission independently reviewed the efficacy of the system.” (Reply 8:15-17.) Petitioner does not show good cause to raise this argument for the first time in reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Regardless, the Commission’s decision states that “[the] Commission staff determined that the project would provide 191 parking spaces, and that the parking proposal is consistent with the certified LUP requirements.” (AR 64.) Thus, the record shows that the Commission considered and reviewed the efficacy of the parking system. Further, it may be reasonably inferred that the Commission considered the EIR analysis and expert reports that are included in the administrative record.

Petitioner cites Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3rd 296, but that case is distinguishable. In Sundstrom, the agency approved a negative declaration without determining whether the project would have significant impacts. “Forced later to confront the hydrological problems presented by the proposed irrigation system, the staff devised the solution of requiring the applicant to submit hydrological studies relating to subsurface and surface drainage.” (Sundstrom, supra, 202 Cal.App.3rd at 306.) The use permit stated: “Mitigation measures recommended by the study shall be incorporated as requirements of this use permit.” (Ibid.) The requirement that the applicant adopt mitigation recommended in a future hydrological study, to be conducted by the applicant, impermissibly deferred analysis under CEQA of the project impacts and mitigation. (Id. at 306-308.) By contrast, in the instant case, the City already analyzed the environmental impacts of the Project related to the automated parking system in the EIR. (See AR 288-291, 1949-50.) Further, the Commission itself analyzed whether the parking provided by the Project would comply with the Venice LUP and the Coastal Act and concluded that it did. (AR 5-6; 59-64.) The Commission did not impermissibly defer any Coastal Act analysis for a later date. It was within the Commission’s authority and discretion to impose Special Condition 13 as an additional measure to ensure compliance with the Coastal Act. (See Pub. Res. Code § 30607; Lindstrom v. Cal. Coastal Comm. (2019) 40 Cal.App.5th 73, 100-101 [The Commission has “broad” authority to impose conditions to ensure compliance with the Coastal Act].)

Based upon the foregoing, the court finds that the Commission did not abuse its discretion in approving the “untested” automated parking system. Nor did the Commission impermissibly defer any decision. Therefore, the petition for writ of mandate is denied on this basis.

E. Substantial Evidence Supports the Commission’s Findings that the Eight-Lot Consolidation Is Consistent with the Coastal Act and the Venice LUP

Petitioner contends that the Commission’s approval of an eight-lot consolidation for the Project violated section 30604(a) of the Coastal Act because it would prejudice the City’s ability to establish a residential to commercial ratio for mixed-used development in the LCP process. (OB 14-15; Reply 7:16-25.) Section 30604(a) states, in pertinent part:

Prior to certification of the local coastal program, a coastal development permit shall be issued if the issuing agency, or the commission on appeal, finds that the proposed development is in conformity with Chapter 3 (commencing with Section 30200) and that the permitted development will not prejudice the ability of the local government to prepare a local coastal program that is in conformity with Chapter 3 (commencing with Section 30200).

(Pub. Res. Code § 30604(a).) The Venice LUP states that lot consolidation shall be “restricted to protect the scale of existing neighborhoods.” (AR 1216.) However, the Venice LUP authorizes lot consolidation under certain circumstances. As relevant here, “[l]ot consolidation of more than two lots shall be permitted for mixed-use projects which conform to the existing scale and character of the surrounding community and provide adequate on-site parking.” (AR 1211.)

Here, in its discussion of lot consolidation, Petitioner does not dispute that the Commission made the necessary findings from the Venice LUP to approve the lot consolidation. (See OB 14-15; Reply 5-7.) Nor does Petitioner truly dispute that the Commission’s findings for the lot consolidation are supported by substantial evidence. Specifically, the Commission found that the Project is “a mixed-use project that is comprised of a hotel, four residential units, and other general commercial uses (including office space, general retail, restaurant, and an onsite spa).” (AR 154.) Although the four residential units are a “fairly small amount” of the development, “the certified LUP does not specify a residential: commercial ratio that would qualify as a mixed-use development.” (Ibid.; see also AR 1207 [Policy I.B.2].)

The Project’s four apartment units are clearly residential development. (See e.g. AR 15 [“the four dwelling units shall be rented out for a minimum of 30 consecutive days”].) As Petitioner concedes, “the LUP does not state the ratio of residential to commercial components necessary to qualify as a mixed-use project entitled to lot consolidation.” (Reply 6:19-21; see also AR 1207 [“Mixed-use development provides an on-site mix of housing, retail, jobs and recreational opportunities”].) Accordingly, substantial evidence supports the Commission’s finding that the Project is a mixed-used development.[1] The Commission also found that the Project provides adequate on-site parking, and that finding is supported by substantial evidence, as discussed. (AR 59-63.) Lastly, as discussed, the Commission made findings, supported by substantial evidence, that the Project conforms to the existing scale and character of the surrounding community. (See AR 43-52, 78-84, 111-113, 1088-1091.)

Petitioner argues that the Commission “violated section 30604(a) of the Coastal Act because it supplanted the LCP process of determining the ratio of residential to commercial in the Venice Coastal area that would qualify as a mixed use project and an exception to the general restrictions on lot consolidations in Venice that the community had implemented in its LUP.” (Reply 7:20-25.) Petitioner fails to explain or provide any specific legal analysis of how the Commission’s findings regarding lot consolidation for this specific project could possibly prejudice City’s preparation of a LCP. Petitioner does not show that the Commission’s decision will prevent City from setting development standards, such as a specific residential to commercial ratio for mixed-used development, that would operate prospectively in the Venice area. Further, given the unique attributes of the project, factually it appears unlikely that the Commission’s approval of the CDP will set a precedent regarding the residential to commercial ratio for mixed-used development even in the Abbot Kinney area. (See RP Oppo. 17:3-4 and fn. 17.)

Based on the foregoing, the court finds that there is substantial evidence supporting the Commission’s findings that the eight-lot consolidation is consistent with the Venice LUP and the Coastal Act. Petitioner does not show a prejudicial abuse of discretion in those findings, including with respect to the requirements of section 30604(a).

3. Respondent’s counsel shall provide notice and file proof of service with the court.

[1] In light of this conclusion, the court does not reach the real party’s contention that the judgment in the Alba Luz petition has any collateral estoppel effect on this case. (See RP Oppo. 15-16.) The court does note, however, that the Commission was not a party to Alba Luz and that the petitioners in that case, unlike Petitioner here, did not raise claims of non-compliance with section 30604(a) of the Coastal Act. (See AR 1605-06.)