Judge William D. Claster, Case 21-01178477 2023-08-18 Tentative Ruling

Judge: William D. Claster, Case: 21-01178477, Date: 2023-08-18 Tentative Ruling

Petitioner Laguna Beach Historic Preservation Coalition, Preserve Orange County, and Village Laguna's Notice of Motion and Motion for Preliminary Injunction ROA 171

Petitioners’ motion for a preliminary injunction is DENIED.

I. Preliminary Injunction Standard

“‘In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.’” (Take Me Home Rescue v. Luri (2012) 208 Cal.App.4th 1342, 1350.)

The party seeking injunctive relief bears the burden of proof. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) The first element is met by showing it is “reasonably probable that the moving party will prevail on the merits.” (San Francisco Newspaper Printing Co., Inc. v. Superior Court (1985) 170 Cal.App.3d 438, 442.)

II. CEQA Standard

In this case, Petitioners raise a CEQA challenge to the City’s amended Historic Resources Element. The Historic Resources Element is part of the City’s larger Historic Preservation Program. The City approved the Historic Preservation Program after adopting a negative declaration. Petitioners brought this proceeding to set aside the adoption of the amended Historic Resources Element, contending the City was required to prepare an EIR rather than adopt a negative declaration. (The petition was later amended to add 1902 Ocean Way, LLC as Real Party in Interest. The City’s approval of Real Party’s construction project, followed by Real Party’s partial demolition of the structure at 1902 Ocean Way, are the impetus for this motion.)

If a lead agency is presented with a “fair argument” that a project may have a significant effect on the environment, it must prepare an environmental impact report (EIR). On the other hand, if the agency’s initial study shows there is no substantial evidence to support a “fair argument” that a project may have a significant effect on the environment, then the agency may adopt a negative declaration. (See Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1111-1112.) When a negative declaration is challenged in court, the reviewing court must determine whether substantial evidence supports the agency’s conclusion that a “fair argument” cannot be made. If there is substantial evidence that the project may have the effect complained of, the negative declaration must be set aside, because it can be “fairly argued” that the project might have significant environmental effect. (See id., at p. 1112.)

III. Discussion

Petitioners contend an EIR was required because the new Historic Resources Element may have a significant effect on historic properties in the City. They allege numerous properties that were presumptively protected by law will no longer have presumptive protection under the new Historic Resources Element, thus enabling construction projects and demolition that diminishes those properties’ historic attributes.

In order to meet their burden under the first element of the preliminary injunction standard, Petitioners must show it is reasonably probable they will prevail on the merits. That is, they must show it is reasonably probable that substantial evidence exists to support a fair argument that the Historic Resources Element will have the deleterious effects on historic resources complained of.

Petitioners cannot meet their burden on the record before the Court. To determine whether the City’s use of a negative declaration violated CEQA, the Court must review the negative declaration itself. It appears the negative declaration at issue is entirely absent from the Court’s file. It is not attached to the original petition, the first amended petition, or the supplemental petition that first identifies Real Party. It is not included in either set of TRO papers or supporting documents, the opening preliminary injunction memorandum or supporting documents, the supplemental memorandum or supporting documents, or the reply memorandum or supporting documents. The failure to include the negative declaration with the reply papers is noteworthy because (1) the City specifically mentions the missing negative declaration in its opposition, and (2) Petitioners’ reply papers include documents that fill other evidentiary gaps flagged by the City. The Court acknowledges counsel’s medical issues discussed in her declaration, and it is willing to give Petitioners the benefit of the doubt in considering the other evidence filed on reply that should have been filed with the initial papers.

But the failure to include the negative declaration in the record is not a minor oversight the Court can simply overlook. According to the staff report supporting the adoption of the Historic Preservation Program, the negative declaration is 107 pages long, spanning pages 90-197 of the staff report packet. (Kohn Decl., Ex. B, at p. 29.) The negative declaration is not a two-page document whose contents can be summarized in a few paragraphs. Rather, based on the description in the staff report, it apparently goes into considerable detail explaining its rationale and responds to stakeholder comments. Without a copy of the negative declaration, the Court lacks the foundation necessary to determine whether the use of a negative declaration violates CEQA.

Because Petitioners cannot establish a reasonable probability of prevailing on the merits, the motion is denied.