Johnson v. City of Lynwood CA2/4 ( 2023 )

Filed 2/22/23 Johnson v. City of Lynwood CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
A.G. JOHNSON, B305060
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS175033)
v.
CITY OF LYNWOOD et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mary Strobel, Judge. Affirmed.
Corin L. Kahn for Plaintiff and Appellant.
Kane, Ballmer & Berkman, Royce K. Jones, Bruce Gridley
for Defendant and Respondent City of Lynwood and City Council
of the City of Lynwood.
Meylan Davitt Jain Arevian & Kim, Raymond B. Kim,
Grace C. Lee for Defendant and Respondent 3000 E. Imperial,
LLC.
Appellant A.G. Johnson filed a writ petition and complaint
for declaratory relief challenging respondent City of Lynwood’s
approval of respondent 3000 East Imperial, LLC’s proposed high-
density, mixed use project, the Plaza Mexico Residences (PMR or
the project). Appellant also asked the trial court to set aside the
City’s approval of a supplemental environmental impact report
(SEIR) concerning the project and related amendments to one of
the City’s specific land use plans. After briefing and a hearing,
the trial court denied the petition and declaratory relief.
In this appeal, appellant contends the City impermissibly
failed to require the project to comply with requirements in the
specific land use plan relating to open space and mobility
infrastructure. She further contends the City violated the
California Environmental Quality Act (CEQA) (Pub. Resources
Code, § 21000 et seq.),1 because it did not require the project to
comply with traffic mitigation requirements and failed to
consider the potential environmental impacts of density transfer,
greenhouse gas (GHG) emissions, and waiver of mobility
infrastructure requirements. Appellant also challenges the
analytical framework the City used to evaluate GHG emissions
and land use impacts. We affirm the judgment of the trial court.
1 All further statutory references are to the Public Resources
Code unless otherwise indicated. Where applicable, the
Guidelines for Implementation of the California Environmental
Quality Act (Cal. Code Regs., tit. 14, §§ 15000-15387) will be
noted as “Guidelines” to distinguish between the Public
Resources Code and the Code of Regulations.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Lynwood Transit Area Specific Plan
In September 2016, the City adopted the Lynwood Transit
Area Specific Plan (LTASP), a specific land use plan for an
irregularly shaped, approximately 315-acre area “surrounding
the I-105 at the freeway’s junction with Long Beach Boulevard
and the Long Beach Boulevard Metro Green Line station.” The
stated purpose of the LTASP is to “encourage the revitalization of
the existing uses in the planning area and to establish a land use
framework that emphasizes a compact, urban form that relies
less heavily on the private automobile.” The LTASP states it is
“consistent with” other local and state plans and policies,
including “the City of Lynwood General Plan (2002), the Long
Beach Boulevard Specific Plan (2006), and the California
Sustainable Communities and Climate Protection Act of 2008 (SB
375) ‘Transit Priority Project Requirements.’”
The Metro Green Line station is the “focal point” of the
LTASP, and the area is also served by six bus lines with “varying
degrees of service, with headways [intervals between buses]
ranging from 6-7 minutes to 60 minutes.” The “planning
boundary” of the LTASP “generally contains properties within a
half mile [sic] radius of the station,” including the Plaza Mexico
Shopping Center and St. Francis Medical Center, as well as
portions of Long Beach Boulevard, Imperial Highway, and
Martin Luther King Jr. Boulevard. At the heart of the LTASP is
the “Town Center District,” a 36-acre area “bounded by Imperial
Highway, Long Beach Boulevard, State Street, and the I-105.”
The Town Center District is “envisioned as a destination, mixed-
use, transit-oriented environment located in the center of the
[LTASP] area.” It is slated for future development including “up
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to 2,500 multi-family residential units, approximately 1.0 million
square feet of local shopping, dining, and entertainment
opportunities, and a 350-room hotel, all of which would create a
highly livable community with transit services located within a
comfortable walking or bicycling distance.” The project at issue
in this appeal lies within the Town Center District.
The LTASP includes strategies and recommendations to
improve pedestrian and bicycle mobility throughout the area. It
identifies Imperial Highway as one of the “backbone[s] of the
pedestrian system,” and recommends that “enhanced sidewalks .
. . with a dedicated four-foot wide amenity zone and 6 ft. wide
pedestrian zone” be established along the route. It adds that the
sidewalks “will be improved as new development occurs.” To
achieve the recommended wider sidewalks, the LTASP
recommends reducing the size of vehicle travel lanes, a strategy
known as a “road diet.” It further recommends constructing
buffered bicycle lanes on both sides of the street. Illustrations of
the envisioned changes depict them within what appears to be
the public right-of-way. The chapter titled “Implementation +
Financing” also states that the City “will need to undertake a
series of specific policy and regulatory actions to fully implement
the LTASP,” including “[i]mplement[ing] roadway restriping,
road diet, transit station improvements, sidewalk improvements,
bike improvements . . . and improved landscaping along the
portions of . . . Imperial Highway within the LTASP.”
The LTASP designates the portion of Imperial Highway
bordering the northern boundary of the Town Center District as
“open space.” The LTASP explains that the “intent of the Open
Space land use designation is to promote the creation of inviting,
safe, and accessible open spaces. The open spaces shall include,
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but are not limited to pedestrian and bicycle pathways, linear
parks, and neighborhood parks.”
The LTASP recommends implementation of a
“Transportation Demand Management” (TDM) program to
increase transit ridership and the use of non-automobile
transportation. TDM “components . . . should be implemented as
part of each new development in the LTASP.” These include
providing residents with transit information, distributing
subsidized transit passes, and arranging carpools. The LTASP
states that “[i]ndividual developers within the LTASP will be
responsible for implementation of the program prior to the
issuance of building permits, or upon verification by the City that
sufficient transit demand exists,” but envisions the eventual
creation of a “Transportation Management Agency” to manage
and fund the TDM program.
In addition to these strategic visions, the LTASP also
prescribes design standards for buildings constructed in the
Town Center District. These standards include maximum
building heights and lengths, minimum street setbacks,
minimum dwelling unit size, and minimum open space required
per dwelling unit.
II. Environmental Impact Report and Mitigation
Measures
The City evaluated the potential environmental impacts of
the LTASP in a draft environmental impact report (EIR), and
ultimately certified a final EIR for the LTASP in 2016. Pursuant
to section 21801.6, the EIR included a “Mitigation Monitoring
and Reporting Program” aimed at mitigating potentially
significant environmental effects it had identified. Relevant here
are two mitigation measures relating to “Transportation and
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Circulation,” MMT-1(e) and MMT-1(f). The EIR provides that
both “shall be incorporated into any future development project
proposed in the Plan Area to the greatest extent feasible.”
MMT-1(e) is titled “Bicycle Facilities and Other Non-
motorized Transportation.” It provides that future development
projects in the LTASP “shall be required to construct or
contribute funds toward” specified “major pedestrian/bicycle
improvements.” The listed improvements include: “Construct
Class II Buffered/Protected Bike Lanes along Imperial Highway
east from its intersection with Fernwood Avenue to Long Beach
Boulevard and along State Street”; “Establish enhanced
sidewalks along Imperial Highway, State Street, and Beechwood
Avenue with a dedicated 4-foot wide amenity zone and a 6ft. [sic]
wide pedestrian zone”; “Add high visibility cross-walks” to three
Imperial Highway intersections; and “Add sidewalk bulb-outs
and extensions, or reducing curb returns on intersection corners
wherever feasible.” The “Action Required” box states that project
applicants “shall work with City Staff to design and construct
bicycle and pedestrian improvements as part of each individual
development proposal.” The City’s Planning and Building and
Public Works Departments are identified as the “Responsible
Agency or Party.”
MMT-1(f) is titled “Transportation Demand Management”
and concerns the TDM program. Like the LTASP itself, it
provides that “[i]ndividual developers in the LTASP will be
responsible for implementation of the program prior to issuance
of building permits, or upon verification by the City that
sufficient transit demand exists.” The “Action Required” and
“Responsible Party” are identical to those in MMT-1(e).
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III. Project Application and Proposed LTASP
Amendments
In 2017, respondent 3000 East Imperial, LLC (developer)
applied to develop a vacant 3.6-acre lot within the Town Center
District. One long side of the rectangular site fronts 3000 East
Imperial Highway, while one short side runs along State Street.
The site is one block west of the Plaza Mexico Shopping Center,
across State Street, and slightly more than 0.5 miles northwest of
the Metro Green Line station.
Developer described the proposed project, the PMR, as a
six-story, 675-foot-long mixed-use development that would
contain 348 residential units atop 26,417 square feet of
commercial space and a two-level parking structure. The
residential units ranged in size from 558-square-foot studios to
1,248-square-foot three-bedrooms. The proposed height of the
project exceeded the maximum prescribed by the LTASP, and
some of the proposed units were smaller than the minimum
prescribed by the LTASP. The proposed open space allotment of
200 square feet per unit was also below the 300-square-foot
minimum. Developer applied for variances from these
requirements, which the City approved along with the project.2
Appellant, the co-owner of a nearby fourplex, challenged the
approvals, however, and developer withdrew the application.
Developer submitted a revised application in 2018; this is
the application currently at issue. The substance of the project
itself was unchanged from the original application. However,
instead of requesting variances from the LTASP requirements,
2 The City conducted an initial study of the project pursuant
to CEQA, after which it prepared a mitigated negative
declaration.
7
developer sought to amend the LTASP such that the project
would comply with its requirements. As relevant here, the
proposed amendments increased the maximum building height
from five to seven stories; increased the maximum building
length from 200 to 250 feet or more with City approval; reduced
the front setback requirements from “0 to 5 feet min.” to “0 feet”;
reduced the minimum dwelling unit size from 750 square feet to
450 square feet; and reduced the minimum open space per
dwelling unit from 300 square feet to 120 square feet.
The City also proposed numerous other revisions to the
LTASP, most of which it characterized as “minor in nature and
mainly for editorial purposes,” such as correcting grammatical
errors and providing “consistency of terminology throughout the
Specific Plan.” More substantive edits relevant here include the
addition of new text allowing “land owners within the Town
Center District to transfer development potential from one
property owned to another, while staying within the overall
development cap established for the Town Center District.” The
number of allowable dwelling units and density were included in
the transferrable “development potential.” All proposed changes
to the LTASP were highlighted in red typeface.
IV. SEIR
The City prepared a draft supplemental environmental
impact report (SEIR) to assess the potential environmental
impacts of the project and the proposed LTASP amendments.
The SEIR was “tier[ed] off of the programmatic analysis”
contained in the EIR prepared and approved in connection with
the LTASP and addressed the potential for new or intensified
environmental impacts associated with the project and proposed
LTASP amendments.
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The SEIR concluded that the LTASP amendments would
not create any new environmental impacts or intensify those
previously addressed in the EIR, because they did not change the
LTASP’s overall uses and intensities. It concluded that the only
new or more severe potential significant impacts stemming from
the PMR related to traffic, particularly around the intersections
of Imperial Highway and State Street, Imperial Highway and
Long Beach Boulevard, and State Street and Beechwood
Boulevard. It determined that these potential impacts would be
reduced to less than significant with the application of new
mitigation measure MMT-2, which required developer to add
right turn lanes via restriping to the intersections of Imperial
Highway with Long Beach Boulevard and State Street, and
convert the intersection of State Street and Beechwood Avenue
from a two-way stop to a four-way stop.
The SEIR also identified MMT-1 from the EIR as an
applicable mitigation measure. However, it modified the
measure by striking text stating that “Mitigation Measures T-
1(a) through T-1(f) shall be incorporated into any future
development project proposed in the Plan Area to the greatest
extent feasible” and replacing it with underlined text stating,
“Prior to approval of future development projects in the Plan
Area, the City shall review Mitigation Measures T-1(a) through
T-1(f) to determine if a project will have significant impacts that
warrant the project being subject to conditions of approval that
help implement any applicable measure. If the City makes such
determination it may impose conditions of approval for the
project that address that project’s actual impact.”
During the 45-day public comment period on the draft
SEIR, appellant, through counsel, submitted four letters
9
challenging various aspects of the project, the proposed
amendments to the LTASP, and the SEIR. The City responded to
appellant’s comments in the final SEIR. The comments and
responses relevant to this appeal are discussed below. We note
here only that none of appellant’s letters mentioned the revisions
to mitigation measure MMT-1.
The City’s Planning Commission held a public hearing in
August 2018 and recommended approving the site plan review for
the PMR, the LTASP amendments, and the SEIR.3 Appellant,
through counsel, submitted a fifth letter opposing the PMR,
LTASP amendments, and SEIR later in August, on the same day
the City Council held a public hearing on the matter. After the
public hearing, the City Council approved the site plan review for
the PMR and the LTASP amendments, and certified the SEIR.
V. Trial Court Proceedings
On September 20, 2018, appellant filed a verified petition
for writ of mandate and complaint for declaratory relief in the
trial court. Developer filed its verified answer on January 25,
2019; it asserted numerous affirmative defenses, including
failure to exhaust administrative remedies. Appellant filed the
operative verified first amended petition and complaint on March
7, 2019; the parties stipulated that developer’s previously filed
answer would apply to the new filing. Appellant requested that
the court issue a writ directing respondents to set aside the City
Council resolution approving the site plan for the PMR and
LTASP amendments and certifying the SEIR. The City answered
3 Appellant was one of approximately 12 City residents who
publicly voiced opposition to the project at the hearing.
Approximately eight hearing attendees publicly voiced their
support of the project.
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the first amended petition and complaint on June 4, 2019. It also
asserted the affirmative defense of failure to exhaust.
The parties subsequently filed briefs and lodged the
administrative record and a joint appendix with the trial court.
The trial court heard the matter on October 10, 2019. On
December 12, 2019, the court issued a 22-page written order
denying appellant’s petition for writ of mandamus and
declaratory relief. The court entered judgment in favor of
respondents on January 17, 2020.
Appellant timely appealed.
DISCUSSION
I. CEQA Principles and Standard of Review
“The foremost principle under CEQA is that the
Legislature intended the act ‘to be interpreted in such manner as
to afford the fullest possible protection to the environment within
the reasonable scope of the statutory language.’” (Laurel Heights
Improvement Assn. v. Regents of University of California (1988)
47 Cal.3d 376, 390 (Laurel Heights); see also Sierra Club v.
County of Fresno (2018) 6 Cal.5th 502, 511 (Sierra Club);
Guidelines § 15003, subd. (f).) “With narrow exceptions, CEQA
requires an EIR whenever a public agency proposes to approve or
carry out a project that may have a significant effect on the
environment.” (Laurel Heights, supra, 47 Cal.3d at p. 390.) The
EIR is an “informational document,” the purpose of which is to
provide the public with detailed information about the likely
effects a proposed project is likely to have on the environment,
list ways in which significant effects may be minimized, and
indicate alternatives to the project. (Id. at p. 391; see also
§ 21061.) Before approving a project, the lead agency must
certify that the EIR has been completed in compliance with
11
CEQA, that the agency has reviewed and considered the EIR, and
that the EIR reflects the agency’s independent judgment and
analysis. (Guidelines § 15090, subd. (a).) The EIR accordingly is
a “document of accountability”: “[i]f CEQA is scrupulously
followed, the public will know the basis on which its responsible
officials either approve or reject environmentally significant
action, and the public, being duly informed, can respond
accordingly.” (Laurel Heights, supra, 47 Cal.3d at p. 392.)
A lead agency may require an SEIR under limited
circumstances. (§ 21166; Guidelines § 15162.) The purpose of an
SEIR is to explore potential environmental impacts not
considered in the original EIR. It is not an occasion to revisit the
original analysis; only changed circumstances are at issue.
(Friends of College of San Mateo Gardens v. San Mateo County
Community College District (2016) 1 Cal.5th 937, 949.) The
propriety of an SEIR and the form of the document are not at
issue. It is likewise undisputed that “the appropriate judicial
approach is to look to the substance of the EIR, not its nominal
title.” (City of Irvine v. County of Orange (2015) 238 Cal.App.4th
526, 540.)
Any action or proceeding “to attack, review, set aside, void
or annul a determination, finding, or decision of a public agency
on the grounds of noncompliance with” CEQA is reviewed only to
determine “whether there was a prejudicial abuse of discretion.”
(§ 21168.5.) “Abuse of discretion is established if the agency has
not proceeded in a manner required by law or if the
determination or decision is not supported by substantial
evidence.” (Ibid.; see also § 21005; Vineyard Area Citizens for
Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th
12412, 435 (Vineyard); Cleveland National Forest Foundation v.
San Diego Assn. of Governments (2017) 3 Cal.5th 497, 511.)
“Judicial review of these two types of errors differs
significantly: while we determine de novo whether the agency
has employed the correct procedures, ‘scrupulously enforce[ing]
all legislatively mandated CEQA requirements’ [citation], we
accord greater deference to the agency’s factual conclusions. In
reviewing for substantial evidence, the reviewing court ‘may not
set aside an agency’s approval of an EIR on the ground that an
opposite conclusion would have been equally or more reasonable,’
for, on factual questions, our task ‘is not to weigh conflicting
evidence and determine who has the better argument.’
[Citation.]” (Vineyard, supra, 40 Cal.4th at p. 435.) We
accordingly “adjust [our] scrutiny to the nature of the alleged
defect, depending on whether the claim is predominantly one of
improper procedure or a dispute over the facts.” (Ibid.) “[T]o the
extent a mixed question requires a determination whether
statutory criteria were satisfied, de novo review is appropriate;
but to the extent factual questions predominate, a more
deferential standard is warranted.” (Sierra Club, supra, 6
Cal.5th at p. 516.)
“Whether an EIR has omitted essential information is a
procedural question subject to de novo review.” (Banning Ranch
Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 935;
see also Sierra Club, supra, 6 Cal.5th at p. 514 [“whether a
description of an environmental impact is insufficient because it
lacks analysis or omits the magnitude of the impact is not a
substantial evidence question”].) However, we look not for an
exhaustive analysis or technical perfection; we examine the
agency’s review for adequacy, completeness, and a good-faith
13
effort at full disclosure. (Sierra Club, supra, 6 Cal.5th at p. 515.)
The “ultimate inquiry” is whether the EIR includes sufficient
detail “‘to enable those who did not participate in its preparation
to understand and to consider meaningfully the issues raised by
the proposed project.’” (Id. at p. 516, quoting Laurel Heights,
supra, 47 Cal.3d at p. 405.) This is a mixed question of law and
fact generally subject to de novo review, though “underlying
factual determinations [such as] an agency’s decision as to which
methodologies to employ for analyzing an environmental effect [ ]
may warrant deference.” (Ibid.)
In affording that deference, we do not “‘pass upon the
correctness of the EIR’s environmental conclusions, but only upon
its sufficiency as an informative document.’ [Citation.] [¶] This
standard of review is consistent with the requirement that the
agency’s approval of an EIR ‘shall be supported by substantial
evidence in the record.’ [Citation.] In applying the substantial
evidence standard, ‘the reviewing court must resolve reasonable
doubts in favor of the administrative finding and decision.’
[Citation.] The Guidelines define ‘substantial evidence’ as
‘enough relevant information and reasonable inferences from this
information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached.’
[Citation.]” (Laurel Heights, supra, 47 Cal.3d at pp. 392-393.)
Our review “is the same as the trial court’s: the appellate
court reviews the agency’s action, not the trial court’s decision; in
that sense, appellate judicial review under CEQA is de novo.”
(Vineyard, supra, 40 Cal.4th at p. 427.) “We therefore resolve the
substantive CEQA issues . . . by independently determining
whether the administrative record demonstrates any legal error
by the [City] and whether it contains substantial evidence to
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support the [City’s] factual determinations.” (Ibid.) In doing so,
we presume the SEIR is legally adequate, and that the City
correctly certified it. (Cherry Valley Pass Acres & Neighbors v.
City of Beaumont (2010) 190 Cal.App.4th 316, 327.) Appellant
bears the burden of showing otherwise. (Id. at pp. 327-328.) We
are not required to search the record to determine whether it
supports appellant’s contentions, nor must we furnish legal
argument where it may be lacking. (Mansell v. Board of
Administration (1994) 30 Cal.App.4th 539, 545-546.)
II. Project Compliance with LTASP
Appellant contends the City failed to require the PMR to
comply with the LTASP. She asserts that the “approval of zero
front yard set-back along Imperial [Highway] allowed
construction of a building in the exact physical location where the
LTASP required land uses limited by the Open Space Land Use
designation.” She further asserts that the “enlarged building
footprint” also will encroach upon “the exact location where the
LTASP envisioned lively and stimulating pedestrian
infrastructure improved by a dedicated four-foot-wide amenity
zone,” and the City therefore failed to require improvement of the
sidewalk as development occurs. She also asserts the City failed
to require developer to “contribute anything to advance bicycle,
pedestrian, or other non-auto mobility,” and “did nothing to
reduce transportation[-]caused GHG emissions.”
In reviewing the project’s consistency with the LTASP, “we
accord great deference to the agency’s determination.” (Sierra
Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1510.)
“[G]eneral and specific plans attempt to balance a range of
competing interests. It follows that it is nearly, if not absolutely,
impossible for a project to be in perfect conformity with each and
15
every policy set forth in the applicable plan. An agency,
therefore, has the discretion to approve a plan even though the
plan is not consistent with all of a specific plan’s policies. It is
enough that the proposed project will be compatible with the
objectives, policies, general land uses and programs specified in
the applicable plan.” (Id. at pp. 1510-1511.)
Appellant has not demonstrated the City abused its
discretion here. Even before it was amended, the LTASP
permitted setbacks of zero feet along a building’s frontage. The
PMR’s minimal setback from Imperial Highway thus complied
with both the original and amended LTASP. Moreover, the
original LTASP allowed the zero setback in conjunction with the
open space designation and vision for sidewalk expansion,
necessarily indicating that these three things can coexist
consistently within the LTASP and its objectives. Indeed, the
illustrations in the LTASP depict changes to the public right-of-
way, not the setback area between buildings and the sidewalk.
Appellant has not pointed to any evidence in the nearly 9,000-
page administrative record showing that the minimal setback
would in any way impede implementation of mobility
infrastructure. The primary case she cites, Elysian Heights
Residents Association v. City of Los Angeles (1986) 182
Cal.App.3d 21, does not advance her claim that the City erred in
approving the PMR.
Appellant also ignores statements in the LTASP placing
the burden of “road diet, . . . sidewalk improvements, bike
improvements, . . . and improved landscaping along the portions
of . . . Imperial Highway within the LTASP” primarily upon the
City. To the extent developer bears some burden, the SEIR
16
states that the PMR would provide new sidewalks and lighting,
concurrently with its broader footprint.
A primary goal of the LTASP is to “establish a land use
framework that emphasizes a compact, urban form that relies
less heavily on the private automobile.” A dense, mixed-use
development near public transit, such as the PMR, aligns with
and advances this goal. The SEIR recognizes that the project
“provides convenient bicycle storage on the first level . . . to
encourage residents to use their bicycles while traveling
throughout the community and to the train station.” Such
facilities are expressly suggested in the LTASP as a means by
which to achieve the goal of fostering pedestrian and bicycle
activities.
In lieu of developing her arguments regarding GHG
emissions, appellant cites to her letters below and states that the
“summary” of those letters “is that City did nothing to reduce
transportation[-]caused GHG emissions.” An appellant must
fully present all arguments in its briefs rather than incorporate
them by reference. (See Aguimatang v. Cal. State Lottery (1991)
234 Cal.App.3d 769, 796; cf. People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 363 [even where appellants permissibly
join one another’s briefs, “particularized argument,” not “cursory
and unfocused statements” is required].) We accordingly do not
address this issue.
III. Mitigation Measure MMT-1
Appellant next contends the City failed to proceed as
required under CEQA by effectively exempting the PMR from
compliance with MMT-1. The trial court concluded, and
respondents now contend, that appellant is precluded from
raising this argument because she failed to exhaust it at the
17
administrative level. Appellant does not address exhaustion in
either her opening or reply brief; she asserts only that a putative
“concession at trial allows Petitioner to argue now that required
implementation of Mobility Infrastructure under MMT-1 applied
to the PMR.” We conclude she failed to exhaust her arguments
concerning MMT-1.
Section 21177 provides that a CEQA petitioner may not
challenge a project “unless the alleged grounds for noncompliance
. . . were presented to the public agency orally or in writing by
any person during the public comment period provided by this
division or before the close of the public hearing on the project
before the issuance of the notice of determination.” (§ 21177,
subd. (a).) The purpose of this requirement is to ensure that a
public agency has an opportunity to respond to factual issues and
legal theories before litigation becomes necessary. (Stop Syar
Expansion v. County of Napa (2021) 63 Cal.App.5th 444, 453
(Stop Syar).) This purpose is satisfied only where the “exact
issue” is presented to the agency below. (Ibid.)
“‘[T]he requirement of exhaustion is a jurisdictional
prerequisite, and not a matter of judicial discretion.’” (Stop Syar,
supra, 63 Cal.App.5th at p. 453.) “‘Inasmuch as the issue of
exhaustion is a question of law, “[a]n appellate court employs a
de novo standard of review when determining whether the
exhaustion of administrative remedies doctrine applies.”’
[Citation.]” (Ibid.)
None of appellant’s letters specifically mentions or refers to
the changes the City made to MMT-1, nor do they challenge the
City’s alleged failure to apply the measure to the PMR.
Appellant also has not pointed to comments regarding this issue
made by any other interested party. The exhaustion requirement
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accordingly has not been satisfied. Appellant asserts the
argument is preserved, however, because “City took the position
the MMT-1(e) requirement to implement LTASP Mobility
Infrastructure did not apply to the PMR,” but during the trial
court hearing “reversed their position and agreed MMT-1 applied
to private development if a sufficient nexus existed between PMR
impacts and the amount of Mobility Infrastructure to be
required.” This contention is not persuasive.4 In its response to
one of appellant’s letters (that did not mention MMT-1), the City
stated that the LTASP “identifies various pedestrian and bicycle
improvements throughout the specific plan area which will be
implemented by the City over time.” It also stated that the PMR
“cannot incorporate, enhance or connect bicycle networks into the
project at this time for a variety of reasons,” including lack of
existing bicycle networks, a separate City plan that proposes
bicycle lanes in locations not proximate to the PMR, and the
state’s exercise of control over Imperial Highway. Nothing in the
cited portion of the hearing transcript is inconsistent with these
statements or otherwise tantamount to a reversal of position.
Even if it was, appellant does not cite any authority in
support of her suggestion that the exhaustion requirement can be
overcome by estoppel. To the contrary, the case appellant cites to
support the proposition that mitigation measures cannot be
ignored also clarifies the conditions under which mitigation
measures can be modified or deleted, as they were here. (See
4 During oral argument, appellant asserted for the first time
that the argument was preserved because her letters to the City
addressed the mobility requirements of the LTSAP, and those are
equivalent to MMT-1. This belated assertion is equally
unpersuasive.
19
Lincoln Place Tenants Association v. City of Los Angeles (2005)
130 Cal.App.4th 1491, 1508-1509.)
IV. Consideration of Potential Impacts
Appellant contends the City violated its obligations under
CEQA by failing to consider in the SEIR the potential
environmental impacts caused by the density transfer within the
LTASP, the putative waiver of PMR’s contribution to mobility
infrastructure, and the PMR’s GHG emissions.
These overlapping arguments are largely predicated on the
assertion that the PMR does not qualify as a transit-oriented
development due to its distance from the Metro Green Line
station. From the outset, appellant has taken the position that
“development intensification must occur within ½ mile of
qualified transit facilities,” and “no part of the PMR is located
within ½ mile from the Green Line as the crow flies.” Due to this
distance, appellant asserts, the PMR will not reduce automobile
usage and concomitant GHG emissions. Additionally, she
contends the LTASP amendments permitting smaller units and
less open space, coupled with the ability of developers to transfer
density across projects within the Town Center District will lead
to “an increased concentration of Town Center dwellings at a
location without demonstrated alternatives to the automobile,” as
well as ensure that a future project will need to compensate for
PMR’s increased GHG emissions.
In its responses to appellant’s letters, the City agreed that
the PMR was “just outside of the ½-mile radius (within a few
feet),” but asserted it qualified as transit-oriented due to its
proximity to a bus stop with frequent bus service and was
classified as a “High Quality Transit Area” by the Southern
California Association of Governments (SCAG). The City
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provided hyperlinks to current bus schedules and a SCAG map
showing the site’s location within a High Quality Transit Area. It
also stated that the PMR would “complement” the preexisting
Plaza Mexico Shopping Center, through which PMR residents
could walk to the Green Line station on a “secure walking path
with security guards and lighting along the path.” The City
asserted that its assumptions and analyses consequently were
valid and consistent with CEQA. It further asserted that the
PMR was consistent with the intent of the Town Center District
to “provide an urban form that can accommodate an urban
mixed-use environment that supports public transportation
alternatives.”
Appellant now contends the City’s responses were nothing
more than speculation, unsupported by substantial evidence. We
disagree. The City provided functional, up-to-date hyperlinks to
pertinent bus schedules and maps produced by regional
governing bodies. We discern little material difference between
providing these links and embedding the full bus schedules and
maps within the already lengthy SEIR, particularly where
appellant’s citation to her “demand” for further data is to the
letter she submitted the day of the City Council hearing.
Appellant also provides no support for her assertion that “the
comparative transit profile between the PMR and the aggregate
of the Town Center District differ sharply,” or her speculative
suggestion that any relevant density transfers would “c[o]me
from a donor site with good transit access.” As noted above,
citations to her previous letters are insufficient to establish an
appropriate appellate argument.
With regard to mobility infrastructure, appellant
additionally contends that the “approval of the physical
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elimination of a nearly 700-foot stretch of an identified Open
Space [the Imperial Highway frontage] that required and
envisioned a major bicycle and pedestrian corridor without a
word of review or explanation will embolden future projects” to
rely on the lack of existing bicycle infrastructure to shirk their
own contributions. As discussed above, nothing in the LTASP
amendments or project plans reduced the permissible setbacks or
eliminated any open space. The City also recognized that other
applicable planning documents propose bicycle networks on other
thoroughfares, and cited evidence from traffic engineers and road
designers that creating a one-block bicycle lane on Imperial
Highway would be unsafe. Moreover, appellant’s contention that
not requiring the PMR to create a one-block bicycle lane on a
state-controlled road “will likely change the efficacy of the LTASP
to achieve its goals” is speculative and unsupported by evidence.
Appellant further asserts that the City’s failure to require
the PMR to contribute to mobility infrastructure conceals the
true extent of the project’s GHG emissions. She contends the
PMR is distinct from the remainder of the LTASP area for
analytical purposes (in part due to its distance from the Green
Line), such that the City did not act in good faith in analyzing the
project as a cumulative addition to the LTASP.
The SEIR contains a 25-page discussion and analysis of
GHGs. The analysis separately examines the impacts of the
LTASP amendments and the PMR, and recognizes that both
contribute to global climate change impacts. It also recognizes
that the unchallenged 2016 EIR concluded the LTASP would not
conflict with plans aimed at reducing GHG emissions, that the
amendments to the LTASP do not affect this finding, and that the
PMR’s emissions, while significant, are “in line with SCAG’s
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vision for the southern California region.” Appellant has not
adequately explained why this does not constitute a “reasonable
effort to put into a meaningful context the conclusion that the air
quality impacts will be significant.” (Sierra Club, supra, 6
Cal.5th at p. 522.) Her assertion that the City’s analysis was not
in good faith is thus not well taken. The ultimate inquiry is
whether the SEIR includes sufficient detail “‘to enable those who
did not participate in its preparation to understand and to
consider meaningfully the issues raised by the proposed project.’”
(Sierra Club, supra, 6 Cal.5th at p. 516.) That standard is
satisfied here.
V. Conflicts, Consistency, and Appendix G
Appellant argues that the SEIR failed to properly consider
the “Appendix G thresholds of significance” for GHG emissions.
Appendix G is part of the CEQA Guidelines. It contains a sample
“Environmental Checklist Form” that is “intended to encourage
thoughtful assessment of impacts, and do[es] not necessarily
represent thresholds of significance.” (Guidelines Appendix G.)
The two sample questions relating to GHG emissions are:
“Would the project: a) Generate greenhouse gas emissions, either
directly or indirectly, that may have a significant impact on the
environment? b) Conflict with an applicable plan, policy or
regulation adopted for the purpose of reducing the emissions of
greenhouse gases?” (Guidelines Appendix G.) The City included
both questions verbatim in the SEIR. Appellant contends the
City therefore “selected a ‘conflicts’ analysis between the PMR
and the applicable plans, policies and regulations as its
thresholds of significance for GHG emissions,” yet ignored its own
policies to reduce GHG emissions by focusing exclusively on state
and regional policies. She asserts Appendix G does not “excuse”
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consideration of local plans and policies, and the City failed to
meet the CEQA standard of transparency by “limit[ing] its
consideration to a uselessly over-broad statement” that the PMR
would not conflict with SCAG’s plan.
Appellant also challenges the adequacy of the City’s
“conflicts” analysis generally. She contends there is a distinction
between determining whether a project “conflicts” with policies
and plans, and determining whether a project is “consistent” with
them.5 She concedes she “could not find a case that discussed the
exact legal effect of City’s failure to perform the Appendix G
‘conflicts’ analyses,” but asserts an argument rejected in Stop
Syar, supra, 63 Cal.App.5th 444 “parallels Appellant’s
substantive argument and procedural CEQA contentions in this
case.”6
In Stop Syar, a petitioner argued that an EIR failed to
address a project’s alleged inconsistencies with the county’s
general plan. (Stop Syar, supra, 63 Cal.App.5th at p. 460.) The
county responded that it concluded the project was consistent
with the general plan, and that no further analysis was required
under CEQA. It further asserted that the petitioner should have
pursued this argument by bringing an ordinary writ of
5 She nevertheless acknowledges in a footnote that
Guidelines Appendix G, which uses the word “conflict” in
connection with GHG emissions, “is functionally the same as
Guidelines § 15125(d),” which provides that an EIR “shall discuss
any inconsistencies between the proposed project and applicable
general plans, specific plans and regional plans.” (Guidelines
§ 15125, subd. (d), emphasis added.)
6 Appellant cites Stop Syar for the first time in her reply
brief, despite its publication nearly two months before she filed
her opening brief.
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mandamus, not a CEQA action. (Ibid.) The trial court agreed
and declined to address the merits of the argument. (See ibid.)
On appeal, the petitioner contended it was not required to
challenge the county’s determination that the project at issue was
“consistent” with its general plan, because “‘consistency’ and
‘inconsistency’ for purposes of CEQA mean something different
than in the context of general planning and land use law.” (Id. at
p. 462.) It tried to characterize its argument as one that the EIR
failed to adequately inform the public about inconsistencies and
therefore violated CEQA. (See id.) The court of appeal rejected
this argument, noting that the petitioner “cite[d] no authority
supporting its assertion that ‘inconsistency’ for CEQA purposes is
different than for purposes of general planning and land use
law,” and that another court had rejected attempts to reframe an
attack on a deferential determination as an “informational” issue
subject to de novo review under CEQA. (Id. at pp. 462-463, citing
Golden Door Properties, LLC v. County of San Diego (2021) 50
Cal.App.5th 467, 482.)
We discern no meaningful distinction between the
arguments rejected in Stop Syar and appellant’s arguments here.
Appellant asserts “the difference here is that Appellant relies on
City’s failure to properly analyze ‘conflicts’ based on the City’s
freely chosen threshold of significance stated in Appendix G.” As
expressly stated in Guidelines Appendix G, the sample questions
contained therein “do not necessarily represent thresholds of
significance.” Consistent with this guidance, the SEIR
considered the project and the LTASP amendments in the context
of limits set by SCAG and other regional governing bodies. It
also separately considered whether the project and the LTASP
amendments were consistent with local land use policies.
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Appellant does not identify any specific local policies governing or
limiting GHG emissions. Instead, she reiterates her previous
contention that City “concealed” GHG emissions by failing to
require the project to comply with MMT-1 or implement mobility
infrastructure. Those arguments are no more persuasive under
this guise. The SEIR adequately serves its purpose as an
informational document.
DISPOSITION
The judgment is affirmed. Respondents are entitled to
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
STONE, J. 

Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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