Judge Stephen I. Goorvitch, Case Number: 23STCP01363, Date: 2024-05-06 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP01363, Date: 2024-05-06 Tentative Ruling

Petitioners West Adams Heritage Association and Adams Severance Coalition (“Petitioners”) filed this petition for writ of mandate directing Respondent City of Los Angeles (the “City”) to set aside its approval of a 52-unit, multi-family residential apartment building. (the “52-unit development” or the “Project”). This project will be located at 806 West Adams Boulevard in Los Angeles, California. The Real Parties in Interest are Robert Champion, Champion Real Estate Company, and 806 West Adams Property, LLC (the “Real Parties”).

Previously, the City approved the Real Parties’ proposed 102-unit development project (the “102-unit development”), which would be constructed on the parcel at issue in this case (“Parcel One”) and an adjacent parcel (“Parcel Two”). Petitioners filed a petition for writ of mandate; the trial court (Brazile, J.) denied the writ; and the District Court of Appeal reversed that decision, finding that the City improperly relied on mitigation measures when concluding that the 102-unit project’s rooftop decks would not cause significant noise impacts. The Real Parties subsequently petitioned for Supreme Court review, which was granted on November 21, 2023, but the case has been stayed pending the Supreme Court’s decision in another case. In addition, Petitioners filed a second petition for writ of mandate challenging the City’s approval of the 102-Unit Development (Case Number 22STCP02210), which also has been stayed. Accordingly, it may take many years to resolve the challenges to the 102-unit development.

In the alternative, the Real Parties sought approval for the 52-unit development, which would sit on only one parcel of land. The City that the project is statutorily exempt from the California Environmental Quality Act (“CEQA”) under the exemption for “ministerial” projects, i.e., those in which the staff exercises no discretion. Now, Petitioners challenge that decision, arguing that the City erred in relying on the ministerial exemption because the project required two discretionary reviews. Petitioners also argue that the Real Parties improperly “segmented” the 52-unit project from the 102-unit project in order to circumvent CEQA. The City and the Real Parties (collectively, “Respondents”) oppose the petition, arguing that the petition is untimely; the City correctly decided that CEQA was not triggered by the ministerial project; and Petitioners fail to establish unlawful piecemealing. Following a hearing, the court denied the petition.

In or about 2018, the Real Parties submitted a proposal to construct the 102-unit development on Parcel One (which is the site of the 52-unit development) and Parcel Two (which is an adjacent property). (See Pet. RJN Exh. G, H and Oppo. 12-13.) In February 2020, City approved discretionary zoning applications for the 102-Unit Development and concluded that this project was exempt from environmental review pursuant to the Class 32 urban infill exemption of CEQA. (Pet. RJN Exh. H.) In approving the 102-Unit Development, City described the project and site as follows:

The proposed project is located at 758 - 832 West Adams Boulevard & 2610 South Severance Street and involves the construction and operation of an urban infill residential development on an approximately 2.8-acre site in the University Park neighborhood of the South Los Angeles Community Plan Area, less than one mile from the University of Southern California (USC) campus. The irregularly-shaped project site is located at the southeast corner of West Adams Boulevard and Severance Street on a block that is also bordered by Figueroa Street to the east, 28th Street to the south, and University Avenue to the southeast….

The project will demolish the existing on-site building and parking lot and construct 99 five bedroom rental flats within six, three-story buildings over a single-level podium parking structure, totaling four stories. Five of the units will be restricted affordable units for Very Low Income households. An additional four-story building provides a clubhouse that would include a variety of resident-serving amenities. In total, the project will construct 183,150 square feet of new floor area. The seven proposed buildings sit on a fully enclosed and screened single-level, ground-floor parking structure providing a total of 259 vehicle parking spaces for off-street parking….

The project includes outdoor residential amenity spaces at the podium and building roof levels. The podium-level amenity space would include landscaping, gathering areas, paseos, outdoor cooking areas, and an outdoor swimming pool. Building roofs contain additional private amenity spaces that would include landscaping and outdoor lounge and cooking areas.

Petitioners filed a lawsuit challenging the zoning approvals and the City’s determination that the 102-Unit Development was exempt from CEQA. After the trial court denied the writ petition, Petitioners appealed to the District Court of Appeal, which reversed and found that the City improperly relied on mitigation measures when concluding that the project’s rooftop decks would not cause significant noise impacts. (See West Adams Heritage Association v. City of Los Angeles (2023) 2023 WL 5119275.) The Real Parties petitioned for review by the Supreme Court, and review was granted on November 21, 2023. The parties represent that the matter is pending before the Supreme Court and has been stayed pending disposition of a different appeal. (See OB 9 and Oppo. 12-13.)

In or about December 2021, the Real Parties submitted an application for a building permit for the 52-Unit Development, which is a standalone 52-unit, multi-family residential apartment building that is 4-stories in height with 159,113 square feet of total building area. (AR 29:345, 358; see also AR 217:2924-45.)

In its administrative review of the Real Parties’ application, the staff determined that a discretionary historic review was not required because “[the] site is not identified as an eligible historic resource & is not located in a potential historic district.” (AR 26:300.)[1] The staff determined that a discretionary “site plan review” was not required because the project’s “base density minus existing units on site equates to less than 50 new units.” (Ibid.) The staff also determined that a discretionary Redevelopment Plan Project Compliance Review was not required because the project complied with the Exposition/University Park Redevelopment Plan (the “Redevelopment Plan”). (Ibid.) On November 1, 2022, after determining that the 52-Unit Development required no discretionary approvals, the City issued building permits for the Project. (Pet. RJN Exh. E.)

In February 2023, Petitioners asked the City how the 52-Unit Development could be approved when the 102-Unit Development’s approvals were still pending. (AR 14:50.) In response, the staff wrote Petitioner the following:

The developer has secured a building permit for the 52 unit project…. There was an RDP administrative review and clearance issued for this project among other Planning clearances prior to issuance of the building permit by LADBS. The 52 unit project is in no way dependent on the approval of the larger project. [¶] There is no record from City Planning to confirm that the larger project has been abandoned, although building permits have not been issued. Planning approvals are typically not terminated after the fact, although if not utilized, the Planning approval will expire and no longer be valid.

(AR 14:49.) The staff also informed Petitioners on February 22, 2023, that the 52-Unit Development was exempt from CEQA environmental review because the building permit was approved ministerially. (AR 14:49.)

On April 27, 2023, Petitioner filed its original petition for writ of mandate challenging the City’s ministerial approval of the 52-Unit Development and the City’s determination that the Project was exempt from CEQA review. On January 26, 2024, after a hearing, the court (Beckloff, J.) sustained Respondents’ demurer to the petition with leave to amend. On February 5, 2024, Petitioners filed the operative, first amended petition (“FAP”), and the City and Real Parties filed an answer on February 15, 2024. On March 4, 2024, Petitioners filed their opening brief in support of the petition. On April 2, 2024, Respondents filed their joint opposition. On April 16, 2024, Petitioner filed their reply brief.

The court grants Respondents’ request for judicial notice, as there are no objections and the exhibits are properly subject to judicial notice under Evidence Code section 452(c). The court rules as follows on Petitioners’ request for judicial notice:

Exhibit B – GRANTED. The Los Angeles Municipal Code section 13.12 is relevant to Petitioner’s arguments and subject to judicial notice under Evidence Code section 452(b).

Exhibit F – GRANTED. The court overrules Respondents’ objections because the Real Parties’ application to add one accessory dwelling unit (“ADU”) is relevant to Petitioners’ arguments and subject to judicial notice under Evidence Code section 452(c). Moreover, there was no administrative hearing at which Petitioner could challenge the building permit, which was approved pursuant to the ministerial exemption in CEQA. Accordingly, Exhibit F is admissible extra-record evidence. (See County of Mono v. City of Los Angeles (2022) 81 Cal.App.5th 657, 666-667 [“While extra-record evidence is largely inadmissible in administrative mandamus cases, such evidence is admissible ‘in traditional mandamus actions challenging ministerial or informal administrative actions if the facts are in dispute.’”].)

Pursuant to the Local Rules that apply to petitions for writ of mandate, “[t]he opening and opposition briefs must state the parties’ respective positions on whether the petitioner is seeking traditional or administrative mandamus, or both.” (Local Rule 3.231(i)(1).) Petitioners and Respondents do not include sufficient discussion of this issue in their briefing. The court finds that this action is one for an ordinary writ of mandate because no administrative hearing was required for City to approve the Project ministerially. (See Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848 [“ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.”].)[2]

There are two essential requirements for an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “Generally, mandamus is available to compel a public agency’s performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) Petitioner “bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

An agency’s determination that a project falls under the ministerial exemption from CEQA is reviewed for abuse of discretion. (Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 23.) “When an agency concludes an activity is exempt based on factual considerations, a court reviews for substantial evidence. If the agency’s determination involves pure questions of law, we review those questions de novo.” (Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 495-96.) However, whether an agency has improperly segmented a project is generally a question of law, subject to de novo review. (Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1224.)

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 interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)

Petitioners challenge the City’s determination that the 52-Unit Development is exempt from environmental review under the ministerial exemption to CEQA. “Ministerial projects are exempt from the requirements of CEQA.” (CEQA Guidelines § 15268; see Pub. Res. Code § 21080(b)(1).) No environmental review is required for a project that is exempt from CEQA. (McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 31 Cal.App.5th 80, 89.) “Issuance of building permits” are “presumed to be ministerial” unless a “discretionary provision [is] contained in the local ordinance.” (Guidelines § 15268(b).) “‘The statutory distinction between discretionary and purely ministerial projects implicitly recognizes that unless a public agency [is authorized to] shape the project in a way that would respond to concerns raised in an EIR, or its functional equivalent, environmental review would be a meaningless exercise.’ [Citation.]” (Protecting Our Water, supra, 10 Cal.5th at 493-494.)

“Where a project involves an approval that contains elements of both a ministerial action and a discretionary action, the project will be deemed to be discretionary and will be subject to the requirements of CEQA.” (CEQA Guidelines § 15268(d).) “[A] project cannot be divided into smaller parts that individually will not have a significant effect on the environment…. [T]his rule is applicable even if one of the smaller parts might require only ministerial, rather than discretionary, approval.” (Katzeff v. Department of Forestry & Fire Protection (2010) 181 Cal.App.4th 601, 611; accord Orinda Assn v. Board of Supervisors (1986) 182 Cal.App.3d 1145, 1171.)

Petitioner raises three arguments: (1) The City erred in concluding that the discretionary Redevelopment Plan Project Compliance review (the “Redevelopment Review”) was not required; it was required under the Hoover/Exposition/University Park Redevelopment Plan (the “Redevelopment Plan”); (2) The City erred in concluding that the discretionary Site Plan Review was not required; the ADU put the project above the threshold; and (3) The project has been improperly segmented. Respondents argue that Petitioner’s claims are untimely, but in the alternative, oppose the writ on the merits.

Respondents argue that Plaintiff’s claims are time-barred. The operative petition alleges that the ministerial exemption to CEQA is not applicable because the City was required to undertake two discretionary reviews. Respondents argue that the gravamen of this case is a challenge to zoning decisions, which has a 90-day statute of limitations under Government Code section 65901. Petitioners argue that there is a 180-day statute of limitations under CEQA for “action[s] or proceeding[s] alleging that a public agency is carrying out or has approved a project that may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment . . . .” (Pub. Resources Code § 21167(a).) The court need not resolve this issue because assuming the petition was timely, Respondents prevail on the merits.

Petitioners argue that a discretionary Redevelopment Review was required because the 52-Unit Development exceeds the “49 unit land use density” allowed under the Redevelopment Plan, which resulted from the City’s approval of three housing units under the State Density Bonus Law and the City’s Density Bonus Ordinance. (OB 13-16.) In ruling on the demurrer, Judge Beckloff rejected this argument with respect to the discretionary Site Plan Review. (See Court’s Order Sustaining Demurrer, dated January 26, 2024, at 2-7.)

On November 11, 2019, the City adopted an ordinance “to establish uniform citywide procedures, standards, and criteria for reviewing and processing Redevelopment Plan Projects” (“RDP Ordinance”). (Pet. RJN Exh. A [LAMC §11.5.14].) The RDP Ordinance applies to “Redevelopment Plan Projects,” defined as “any proposed development activity within a Redevelopment Project Area with an Unexpired Redevelopment Plan that includes the issuance of a building, grading, demolition, sign or change of use permit.” (Id. § 11.5.14.C.) The RDP Ordinance defines “Redevelopment Regulations” as “the land use provisions of the Redevelopment Plans and design for development guidelines adopted pursuant to such Redevelopment Plans.” (Ibid.)

Petitioners contend that section 1306 of the Redevelopment Plan requires City to make four discretionary findings for projects with more than 24 dwelling units per gross acre in areas with the Low Medium II designation, which is 49 units in this case. (OB 15, citing AR 269:3698.) Section 1306 of the Redevelopment Plan, titled “Residential Density Bonuses,” states in full:

In order to promote revitalization and after the review and recommendation of the Project Area Committee, the Agency may, but is not required to, subject to a development or participation agreement, authorize new housing to be developed at higher densities than otherwise permitted by Sections 1303, 1304, and 1305. The purpose is to achieve flexibility in housing design, well-planned neighborhoods offering variety in housing and environment to all socioeconomic groups, and to provide appropriate land use through special methods of development. Agency approval of such development shall:

2. Contribute to a desirable residential environment, neighborhood stability, and not adversely impact the neighboring environment.

3. Provide units with adequate living area and avoid excessively dense development.

(AR 269:3698 [bold italics added].) However, Petitioners do not demonstrate that the three additional units were authorized through the negotiation and adoption of a “development or participation agreement.” Indeed, there is no procedure in the RDP Ordinance for City to negotiate and adopt development or participation agreements. (Pet. RJN Exh. A.)[3]

Instead, the City approved three density bonus units for the Project pursuant to the State Density Bonus Law and the City’s Density Bonus Ordinance. (AR 26:300; AR 86:1145-1157.) Government Code section 65915, which is part of the State Density Bonus Law, states that “[w]hen an applicant seeks a density bonus unit for a housing development . . . th[e] local government shall comply with this section.” (Gov. Code § 65915(a)(1).) Specifically: “The granting of a density bonus shall not require, or be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval.” (Gov. Code § 65915(f)(5), emphasis added.) Similarly, the City’s Density Bonus Ordinance states that “[a]pproval of Density Bonus units shall not, in and of itself, trigger other discretionary approvals required by the Code.” (Pet. RJN, Exh. C [LAMC § 12.22 A.25(c)(8)], emphasis added.)

The State Density Bonus Law defeats Petitioners’ argument. In addition, the City’s Density Bonus Ordinance controls over the RDP Ordinance. The RDP Ordinance must be interpreted in context of other relevant parts of the Los Angeles Municipal Code, including the Density Bonus Ordinance. (See Eskeland v. City of Del Mar (2014) 224 Cal.App.4th 936, 947.) Further, “[a]lthough statutory interpretation is ultimately a judicial function, ‘the contemporaneous construction of a statute by an administrative agency charged with its administration and interpretation, while not necessarily controlling, is entitled to great weight and should be respected by the courts unless it is clearly erroneous or unauthorized [citations].’” (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1087, 1091.)

The City determined that the Project’s 52 units were “permitted within the residential area per State Density Bonus (CA Govt Code Sec. 65915); therefore, complies with the Exposition /University Redevelopment Plan.” (AR 26:300.) Petitioners do not show that City’s interpretation of the relevant ordinances was clearly erroneous. The plain language of City’s code, which includes the Density Bonus Ordinance, states that the addition of density bonus units does not trigger discretionary approvals “required by the Code.” The Density Bonus Ordinance further states that its provisions apply to the grant of a density bonus for a housing development project “[n]otwithstanding any provision of this Code to the contrary.” (Pet. RJN Exh. C [LAMC, § 12.22 A.25(c)].) Based on these provisions of City’s code, City could reasonably conclude, as it did, that the grant of three density bonus units under the Density Bonus Ordinance did not trigger a discretionary Redevelopment Review.

Petitioners’ arguments to the contrary are not persuasive. Petitioners argue that the specific approvals listed in section 65915(f)(5) (i.e., general plan amendment, local coastal plan amendment, zoning change) are all “legislative approvals” and that, under the maxim ejusdem generis, non-legislative approvals, such as Redevelopment Plan Project Compliance Review, are not included. (OB 16.) The plain language of this statute is clear: “The granting of a density bonus shall not require, or be interpreted, in and of itself, to require . . . other discretionary approval” of such projects. Therefore, the law is clear: “If there is no ambiguity in the plain language of a statute, a court presumes the lawmakers meant what they said, and the plain meaning of the language governs.” (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227.) The principle of “ejusdem generis is only an aid in getting the meaning and does not warrant confining the operations of a statute within narrower limits than were intended.” (Wishnev v. The Northwestern Mutual Life Ins. Co. (2019) 8 Cal.5th 199, 213-14.) Regardless, the legislative intent does not support Petitioners’ argument. “The entire aim of Section 65915 is to provide incentives to developers to construct housing for seniors and low-income families.” (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 825.) This legislative intent to promote the construction of new affordable housing is also evident in the City’s Density Bonus Ordinance, which was enacted “to establish procedures for implementing State Density Bonus Law requirements, as set forth in Sections 65915-65918, and to increase the production of affordable housing, consistent with City policies.” (Pet. RJN Exh. C [LAMC § 12.22.A.25(a)].) Petitioners’ narrow construction of section 65915(f) is inconsistent with the purposes of the State Density Bonus Law and the City’s Density Bonus Ordinance. Petitioners also ignore the broad language of section 12.22.A.25(c)(8), of City’s Density Bonus Ordinance, which states that “[a]pproval of Density Bonus units shall not, in and of itself, trigger other discretionary approvals required by the Code.” (Pet. RJN Exh. C.)

Citing Government Code section 65915(j)(2), Petitioners argue that “[g]ranting a density bonus does not require the City to waive these Redevelopment Plan findings because they do not set a development standard.” (OB 16.) Section 65915(j)(2) provides, in pertinent part, that “the granting of a density bonus shall not require or be interpreted to require the waiver of a local ordinance or provisions of a local ordinance unrelated to development standards.” (OB 16.) To promote construction of affordable housing, the State Density Bonus law requires agencies to “waive” any zoning “development standard” such as height limits, setbacks, and floor area ratios “that would physically preclude construction of that project as designed.” (Gov. Code § 65915(e), (o)(2); see also Bankers Hill 150 v. City of San Diego (2022) 74 Cal.App.5th 755, 775, 783.) Thus, in context, subsection (j)(2) is reasonably interpreted to mean that local agencies are not obligated to grant such waivers of local ordinance provisions that are not development standards when granting a density bonus. (Gov. Code § 65915(j)(2).) Subsection (j)(2) does not pertain to whether the approval of density bonus units may trigger a discretionary approval.

Petitioners point out that Planning Department staff initially found that discretionary Redevelopment Plan Project Compliance was required for the Project. (OB 15, citing AR 113:1566.) However, as Petitioners acknowledge, City staff ultimately determined that findings under section 1306 of the Redevelopment Plan were not required because the three density bonus units were sought under the State Density Bonus Law and the City’s Density Bonus Ordinance. (OB 15.) The City was not bound by the preliminary determination of the staff, and Petitioners do not show legal error in the City’s final decision.

For the first time in reply, Petitioners argue that City’s Redevelopment Regulations, including section 1306 of the pertinent Redevelopment Plan, “supersede” conflicting provisions from the Density Bonus Ordinance. (Reply 13.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Regardless, the argument is not persuasive because section 1306 is not applicable. Because section 1306 of the Redevelopment Plan and the Density Bonus Ordinance provide for additional density in different circumstances (i.e., section 1306 applies only when there is a development or participation agreement), there is no conflict between the Redevelopment Regulations and the Density Bonus Ordinance (and Government Code section 65915 would govern anyway).

Based upon the foregoing, Petitioners do not demonstrate that the City erred in determining that a discretionary Redevelopment Review was not required for the 52-Unit Development. Therefore, the petition for writ of mandate is denied on this basis.

Petitioners challenge the City’s determination that a discretionary Site Plan Review was not required for the 52-Unit Development. As discussed, Judge Beckloff previously ruled that the approval of three additional units did not trigger the requirement for a Site Plan Review. (See Court’s Order Sustaining Demurrer, dated January 26, 2024, at 2-7.) Now, Petitioners argue that the Real Parties applied to include one additional accessory dwelling unit on March 30, 2023, increasing the project to 53 units, necessitating a discretionary Site Plan Review. (OB 17-18.) Petitioners’ argument fails for several reasons.

First, this issue is not ripe. “A basic prerequisite to judicial review of administrative acts is the existence of a ripe controversy.” (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 708.) “‘A decision attains the requisite administrative finality when the agency has exhausted its jurisdiction and possesses ‘no further power to reconsider or rehear the claim.’ …. Until a public agency makes a ‘final’ decision, the matter is not ripe for judicial review.” (Cal. Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1485.) Petitioners do not submit any evidence that the ADU permit has been issued by the City. Petitioners do not argue, or show, that a pending application for an ADU permit determines whether Site Plan Review is required. Accordingly, on this record, Petitioners’ claim based on the ADU application is not ripe.

In the alternative, assuming the claim is ripe, it would be untimely. Petitioners did not raise this issue in the original petition, which was filed almost two months after the real parties submitted their ADU application. Instead, Petitioners first raised this issue over one year after the ADU application, which would be untimely even assuming the 180-day statute of limitations under CEQA governs this claim. The claim does not relate back to the filing of the original petition.

Where the statute of limitations has expired before the filing of an amended complaint, unless an amended complaint relates back to a timely filed original complaint, the amended complaint will be time-barred. Under the relation back doctrine, to avoid the statute of limitations bar, the amended complaint must allege the same general set of facts, refer to the same accident, same injuries, and refer to the same instrumentality as alleged in the original complaint.

(Fix the City, Inc. v. City of Los Angeles (2024) 100 Cal.App.5th 363, 374, citations omitted.) “In determining whether the amended complaint alleges facts that are sufficiently similar to those alleged in the original complaint, the critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading.” (See Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 277.) “[D]ifferent acts leading to distinct injuries are not part of the ‘same general set of facts’ even though they may be part of the same ‘story.’” (McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1262, emphasis in original.) Simply, the real party’s new ADU application is distinct from the claims raised in the original petition.

Finally, reaching the merits, Petitioners have not proven that an application for, or the approval of, an ADU permit triggers discretionary Site Plan Review. (See Oppo. 33-34; see Gov. Code § 66317(a) [“A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing”]; Pet. RJN Exh. C at LAMC § 12.22.A.33(c)(2) [“An ADU which complies with this subdivision shall not require a discretionary planning approval.”].) In the opening brief, Petitioners failed to address this relevant language from the pertinent statutes and from City’s code. Petitioners’ new arguments in reply are procedurally improper and also unpersuasive on the merits. (Reply 15-17.)

Based upon the foregoing, the court finds that Petitioners’ claim that the Real Party’s ADU application triggered the discretionary Site Plan Review is unripe or untimely, and lacks merit. Therefore, the petition for writ of mandate is denied on this basis.

Finally, Petitioners argue that the real parties are “segmenting” or “piecemealing” the project in order to circumvent CEQA. As discussed, the real parties initially intended to develop the 102-Unit Development (which is tied-up in litigation) and now seek to develop the 52-Unit Development. Petitioners argue that the 52-Unit Development “represents the first phase of the original 102-unit development.” (OB 20.)

CEQA prohibits “piecemeal” review of the significant environmental impacts of a “project.” (See Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1222.) Accordingly, “an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396.)

A “project” is defined under CEQA as an “activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment....” (Pub. Resources Code § 21065; see also CEQA Guidelines § 15378.) “Activity” includes “[a]n activity directly undertaken by any public agency.” (§ 21065(a).) The term project is afforded “a broad interpretation ... to maximize protection of the environment.’ [Citation.] ‘Project’ refers to ‘the whole of an action….” (Riverwatch v. Olivenhain Mun. Water Dist. (2009) 170 Cal.App.4th 1186, 1203.) “This broad interpretation ensures CEQA’s requirements are not avoided by chopping a proposed activity into bite-sized pieces which, when taken individually, may have no significant adverse effect on the environment.” (POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52, 73.)

Respondents argue that CEQA does not apply to ministerial projects, so the concept of segmenting is not applicable in this case. However, Respondents do not establish that the 102-Unit Development is subject to the ministerial exemption to CEQA. It is well established that “a project cannot be divided into smaller parts that individually will not have a significant effect on the environment…. [T]his rule is applicable even if one of the smaller parts might require only ministerial, rather than discretionary, approval.” (Katzeff v. Department of Forestry & Fire Protection (2010) 181 Cal.App.4th 601, 611; accord Orinda Assn v. Board of Supervisors (1986) 182 Cal.App.3d 1145, 1171.) Therefore, the court will reach the merits of Petitioners’ claim.

The court considers several factors in determining whether two projects are truly one project that is being built in phases. Where two activities are “part of a coordinated endeavor” they may constitute a single project. (County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, 385.) In addition, “there may be improper piecemealing when the purpose of the reviewed project is to be the first step toward future development…. And there may be improper piecemealing when the reviewed project legally compels or practically presumes completion of another action. … On the other hand, two projects may properly undergo separate environmental review (i.e., no piecemealing) when the projects have different proponents, serve different purposes, or can be implemented independently.” (Banning Ranch, supra, 211 Cal.App.4th at 1223.)

As applied here, Petitioners’ segmentation claim fails for several reasons. Most important, the real parties cannot construct both projects because they cannot physically co-exist on Parcel One. (Compare AR 254:3583 [plans for 102-Unit Development]; AR 29:344-563 [plans for 52-Unit Development].) If the pending litigation before the Supreme Court were to be resolved in the Real Parties’ favor and they proceed with the 102-Unit Development, then they necessarily could not build the 52-Unit Development. Rather, the 52-Unit Development and 102-Unit Development are alternatives to one another that propose different developments on Parcel One of the subject site. (See AR 14:49.) Thus, they are two different, independent projects that cannot be subject to piecemealing. (See Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1358 [no piecemealing occurred where “there were two separate projects].) Similarly, because the Real Parties cannot construct both the 52-Unit Development and 102-Unit Development, neither project is a “reasonably foreseeable consequence” of the other. (Laurel Heights, supra, 47 Cal.3d at 396.)

As Petitioners acknowledge, there are many design differences between the 52-Unit Development and the 102-Unit Development (which would have been divided into two phases). (See OB 20:6-15; see also Oppo. 13-14 and AR 22:154; 29:345, 358-360, 391; 49:647-651; 169:1974; Pet. RJN, Exh. G at 122.) For example, the 52-Unit Development consists of all two- or three-bedroom units, while the 102-Unit Development consists primarily of five-bedroom units. (See AR 29:344-563, 40:599-600; Pet. RJN Exh. G at 122.)[4] Respondents cite evidence, which Petitioners do not refute, that there are many other differences between the two projects, including (1) location of the buildings on the site; (2) the building types (i.e., the 52-Unit Development is slab on grade while the 102-Unit Development is a podium project); (3) building footprints and layouts; (4) parking design; and (5) open space design. (See Oppo. 38, citing record; Reply 7-8 [responding to certain design differences, but not others].) These design differences undermine Petitioners’ assertion that one project is a “reasonably foreseeable consequence” of the other.

There is no evidence in the record of any plans for future expansion of the 52-Unit Development. Nor is there any evidence in the record concerning the Real Parties’ plans, if any, for Parcel Two. Instead, Petitioners’ segmentation claim is predicated heavily on the following contention: “[The] Real Parties have continued to pursue 102 units of development on the whole of the site by seeking review from the California Supreme Court, further demonstrating the residential development across the whole of the site is the clear intent.” (OB 20:25-27.) However, Petitioners do not cite any evidence in the record, or from their request for judicial notice, of any plans for future expansion of the 52-Unit Development or for development of the adjacent parcel. Moreover, Petitioners ignore the procedural history of this case and the related cases. This is not a case in which the Real Parties engaged in segmenting at the outset by submitting plans for the 52-Unit Development and then attempted to develop Parcel Two. Rather, the real parties proposed to construct the 102-Unit Development in 2018, and the project was stalled by objections and litigation. Over three years later, in December 2021, the Real Parties proposed to develop the smaller project. This procedural history does not support Petitioners’ claim of segmenting.

Petitioners’ remaining arguments are not persuasive. Petitioners assert that “[t]he 52-unit development would be developed in an area that roughly corresponds to Phase 1 of the approved 102-unit development, with Parcel 2 remaining available for future development similar to Phase 2 with Buildings 6 and 7.” (OB 10:23-25; see also Id. 19-20.) However, Petitioners fail to show that the second phase of the 102-Unit Development is a viable, standalone development project that would physically fit on Parcel 2. (Oppo. 39-40.) Respondents cite record evidence that, as part of the 52-Unit Development, the Real Parties substantially reduced the size of Parcel Two of the prior, larger 102-Unit Development site and legally separated the lots with a termination of the existing lot tie covenant. (Oppo. 39, citing AR 29:345, 358-360; 49:647-651; 169:1974.) In reply, Petitioners acknowledge that there was a “lot line adjustment” and they do not rebut Respondents’ contention that the second phase of the larger project, as originally planned, would not fit on Parcel Two. (Reply 20, fn. 3.)

Further, Respondents argue: “The 102-Unit Development was designed as a single project with multiple buildings and a side-wide single-story parking podium that traverses Parcels 1 and 2; building only Phase 2 of the 102-Unit Development on Parcel 2 would entail building only a portion of the larger garage and only a portion of the two of the three proposed buildings in Phase 2.” (Oppo. 39.) Respondents also show, with record citation, that “Phase 2 of the 102-Unit Development, alone, could not legally be built under City zoning standards and its entitlements from the City.” (Oppo. 39-40.) Petitioners do not meaningfully respond in reply. (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”].) In fact, Petitioners concede that Real Parties would need to modify the second of the 102-Unit Development “from what was approved.” (Reply 20:23-24.)

Petitioners cite Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th 1333, but that case is distinguishable. In Arviv, “over a short period of time, a housing developer managed to secure among other things (1) a series of permits to build five houses downslope from Mulholland Drive; (2) a categorical environmental exemption to build two additional houses across the street; (3) a mitigated negative declaration to build 14 additional houses on an adjacent street; and (4) a variance for one of the five houses built over height.” (Id. at 1336.) The evidence showed that the developer, “never intended a two or three house project. As he admitted at the hearing before the Commission, he always envisioned a 21-house development.” (Id. at 1346.) Accordingly, the Court of Appeal found no abuse of discretion in City’s determination that “ the cumulative effects from what was in reality a development project for 21 hillside houses required an environmental review of the project as a whole.” (Id. at 1336.) By contrast, in the instant case, there are two alternative development proposals that, as a result of occupying the same physical space, cannot both be built, and the second one was proposed only after the first one became mired in legal challenges.

Petitioners also cite Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, but that case does not suggest there was improper segmentation in the instant case. In Laurel Heights, the “[t]he draft EIR acknowledged that UCSF will occupy the entire Laurel Heights facility when the remainder of the space becomes available.” Further, “UCSF explained that it intends to use the facility for the School of Pharmacy's basic science group and UCSF’s Office of the Dean. The EIR even estimated the number of faculty, staff, and students that will occupy the facility until 1995 (a total of 460 persons) and then afterward when the entire facility becomes available (860 persons).” (Laurel Heights, supra, 47 Cal.3d at 396.) Thus, based on the record before the Court, it was “indisputable that the future expansion and general type of future use is reasonably foreseeable.” (Ibid.) By contrast, in the instant case, there is no evidence how the Real Parties would use or develop Parcel Two if it abandons the 102-Unit Development and opts to construct the 52-Unit Development. Without evidence of how Parcel Two might be developed, it cannot be determined that “the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” (Laurel Heights, supra, 47 Cal.3d at 396.)

In sum, the court finds that there has been no segmenting in this case because: (1) Both projects cannot be built; (2) There are significant design differences between the two projects; (3) There is no evidence in the record of any coordinated or future development of the adjacent parcel; and (4) The procedural history does not support any claim of segmenting. At heart, Petitioners’ claim is based entirely on speculation about what might occur if the 52-Unit Development is constructed and the Real Parties abandon the 102-Unit Development. The courts have made clear that speculation about future development is insufficient to support a claim of improper piecemealing. (See Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 294-295 [no piecemealing where “the type of future development that will be proposed is purely speculative at this point”]; Lucas Valley Homeowners Assn v. County of Marin (1991) 233 Cal.App.3d 130, 162 [“The dreams of the rabbis and others for expansion, and past outreach efforts, are not substantial evidence that future expansion of the project, as presented to the Board, is reasonably foreseeable.”]; El Dorado County Taxpayers for Quality Growth v. County of El Dorado (2004) 122 Cal.App.4th 1591, 1600 [additional mining was not a reasonably foreseeable consequence of reclamation plan because it was dependent on many outside factors, including federal approval and environmental, social, and political factors].) Therefore, Petitioners’ claim fails.

At heart, Petitioners’ segmenting claim is premature. The appropriate time to raise this claim would be when, if ever, the Real Parties attempt to develop Parcel Two. At that point, the court can evaluate the two projects together to determine whether they are part of a coordinated endeavor and truly constitute one project. Petitioners argue: “The City’s segmentation of the project is extremely prejudicial.” (OB 22.) The court disagrees. If the Real Parties prevail in the litigation before the California Supreme Court and elect to proceed with the 102-Unit Development, the City will conduct an environmental review if it is required.[5] In the alternative, if the Real Parties elect to proceed with the 52-Unit Development and then attempt to develop Parcel Two, any required environmental review would consider the impacts of that development.

[1] Petitioners do not challenge the decision not to conduct an historic review.

[2] The court would reach the same decision even if this petition was governed by Code of Civil Procedure section 1094.5.

[3] Respondents represent that such development or participation agreements are “a relic of the City’s former Redevelopment Agency, which was dissolved by statute in 2011.” (Oppo. 28-29.) Petitioners do not dispute that representation.

[4] Respondents represent that the 52-Unit Development “is made up entirely of two-bedroom units” (Oppo. 38:10), but they do not explain evidence stating that the units in this Project are predominately three bedrooms. (See AR 29:344-563, 40:599-600.) In any event, whether the 52-Unit Development is made up of two- or three-bedroom units, or some combination thereof, is not dispositive. The unit sizes for the 52-Unit Development clearly differ from the 102-Unit Development.

[5] The City’s compliance with CEQA concerning the 102-Unit Development is not at issue in this case, so the court takes no position on that issue. The court’s analysis applies only to the 52-Unit Development.