Chinatown Community etc. v. City of L.A. CA2/2 ( 2021 )

Filed 12/2/21 Chinatown Community etc. v. City of L.A. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CHINATOWN COMMUNITY B307157
FOR EQUITABLE
DEVELOPMENT, (Los Angeles County
Super. Ct. No. 19STCP01710)
Plaintiff and Appellant,
v.
CITY OF LOS ANGELES et al,
Defendants and
Respondents,
ATLAS CAPITAL GROUP, LLC,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Mitchell M. Tsai for Plaintiff and Appellant.
Remy Moose Manley, Sabrina V. Teller, Nathan O. George;
Michael N. Feuer, City Attorney, Terry Kaufmann Macias,
Assistant City Attorney, John F. Fox, Liliana M. Rodriguez,
Deputy City Attorneys; DLA Piper, A. Catherine Norian, Kyndra
Joy Casper, Andrew J. Brady and Karen L. Hallock for
Defendants and Respondents and Real Party in Interest and
Respondent.
******
Chinatown Community for Equitable Development (CCED)
appeals from a trial court judgment denying its petition for writ
of mandate and complaint for declaratory relief (petition). CCED
filed the petition following the decision by respondents City of
Los Angeles, Los Angeles City Council, and Los Angeles
Department of City Planning (collectively city) to approve a 725-
unit, mixed-use development (the project) proposed by real party
in interest and respondent Atlas Capital Group, LLC (Atlas).
CCED claims that the trial court misinterpreted the law in
rendering its decision that Measure JJJ, a voter-approved
initiative, did not apply to the project because Atlas’s map
application was deemed complete six months prior to Measure
JJJ’s effective date.1
CCED further challenges the trial court’s determination
that substantial evidence supported respondents’ compliance
1 On November 8, 2016, the Los Angeles voters approved
initiative ordinance JJJ, the Affordable Housing and Labor
Standards Related to City Planning initiative (Measure JJJ), now
codified in the Los Angeles Municipal Code (LAMC).
2
with the California Environmental Quality Act (Pub. Resources
Code, § 21000 et seq.) (CEQA). Specifically CCED claims that
substantial evidence does not support the conclusion contained in
the environmental impact report (EIR) that no significant
hazards exist. CCED claims that evidence of project site
remediation and cleanup of soil contamination on the site
occurring prior to 2003 does not support the current conclusion of
no significant hazards due to certain modifications of the project
since it was initially proposed.
Finally, CCED claims the city was required to recirculate
the EIR based on significant new information and revisions in the
final EIR, including revisions to the methane mitigation plan and
removal of the project’s designation as a project required to
comply with footnote 12 of the Central City North Community
Plan (Footnote 12).2
We find that under the applicable Government Code
sections governing the approval process and the vesting of a
developer’s rights, Measure JJJ is not applicable to the project.
We further find that CCED failed to meet its burden of showing
that there was insufficient evidence to support the less than
significant hazards finding and the decision not to recirculate the
EIR. Therefore, we affirm the judgment.
2 Footnote 12 of the Central City North Community Plan
required 20 percent of the project to be set aside for affordable
housing. Although the city initially indicated that Footnote 12
was applicable to the project, that position was later changed
because the city never formally adopted Footnote 12.
3
FACTUAL BACKGROUND
The project and original application
On August 1, 2012, Atlas’s predecessor-in-interest applied
to develop the project on a 4.92-acre vacant site located directly
across the street from the Chinatown Gold Line Metro Station
(the site).
The city deemed Atlas’s predecessor’s application complete
on December 7, 2012. On June 17, 2014, the city issued a notice
of preparation (NOP) for a 685-residential-unit, mixed-use
development with ground floor commercial, retail, and restaurant
space.
The current approved project is a seven-story, mixed-use
development with up to 725 residential units and over 51,000
square feet of commercial uses, totaling up to 618,580 square feet
of floor area on a 4.92-acre vacant site. Residential uses are
located within 5 five-story residential towers atop a two-story
podium used for parking and commercial space.
Revisions, application completion and draft EIR
In 2015 Atlas purchased the site through its affiliate,
Chinatown Station Owner LLC, and revised the proposed
development to a six-building, 770-multifamily-unit, mixed-use
development with 51,290 square feet of commercial and retail
space. Atlas sought (1) general plan amendments (GPA) to
deviate from Footnote 12 of the Central City North Community
Plan and to change the project site’s land use designation from
“Hybrid Industrial” to “Regional Center Commercial,” (2) a zone
change for the project site, (3) a height district change to increase
the maximum floor area ratio from 1:5:1 to 3:1 and (4) a site plan
review.
4
On May 13, 2016, Atlas submitted its application for the
vesting tentative tract map (VTTM) to subdivide the project site.
Thereafter Atlas was not advised by the city that its application
was incomplete. Therefore, the application was deemed complete
30 days later, on June 13, 2016, by operation of law. (Gov. Code,
§ 65943.)
On June 7, 2016, the city published a new NOP and notice
of a June 22, 2016 public scoping meeting. The new NOP
described the 770-unit project, including the requested GPA, zone
and height district changes, and a site plan review. The NOP
also added a master conditional use permit (MCUP) and a
specific plan amendment (SPA) to reflect the project site’s
exemption from the Cornfields Arroyo Seco Specific Plan (CASP)
provisions and to correct the community plan land use map.3
The city circulated a draft EIR (DEIR) for public review
beginning March 15, 2018.
Revisions to the project and final EIR
In response to stakeholder concerns and at the city’s
request, Atlas redesigned the 770-unit project to create the
project that the city ultimately approved, reducing it to five
buildings with no more than 725 residential units and other
minor modifications. The modifications were revealed and
analyzed in the final EIR, which was released on August 31,
2018.
The final EIR also acknowledged that the applicant
withdrew the request for the GPA to deviate from Footnote 12 of
3 The SPA request was eliminated in the final EIR because
the project is not subject to the CASP provisions under an
express exemption in the CASP. Therefore no SPA was required.
5
the Central City North Community Plan. The city had
determined after release of the DEIR, that Footnote 12 had been
proposed but never adopted, and as a result Footnote 12 had
never applied to either the site or the project.
Certification of the EIR and approvals of the project
On September 26, 2018, the city’s deputy advisory agency
considered the requested project VTTM and on November 6,
2018, issued its letter of determination setting forth its decisions
to (1) certify the EIR, (2) adopt related environmental findings
and a mitigation monitoring program and (3) approve the VTTM.
Various unrelated appeals were filed. CCED did not appeal.
On December 13, 2018, the city planning commission (CPC)
approved the MCUP and site plan review and recommended that
the city approve the GPA, zone change, and height district
change. The parties in the unrelated appeals further appealed to
the city council.
On January 18, 2019, the CPC denied the unrelated
appeals. It also recommended that the city council approve the
GPA, zone change, and height district change. The parties
appealed the CPC’s denial of their appeals and the VTTM,
MCUP, site plan review and certification of the EIR to the city
council.
On March 19, 2019, the city council’s Planning and Land
Use Management (PLUM) committee heard the appeals. It also
considered the requested GPA and zone and height district
changes, and Atlas’s request for clarification of various
corrections to the project’s conditions of approval, including the
removal of the affordable housing condition.
Following the hearing the PLUM committee recommended
that the city council approve a modified version of the CPC’s
6
recommendation. Specifically the PLUM committee
recommended that the city council (1) uphold certification of the
EIR and adopt the findings of the PLUM committee as the
findings of the city council; (2) approve the GPA resolution; (3)
present and adopt a new ordinance dated March 20, 2019, for the
zone and height district changes subject to conditions of approval
modified by the PLUM committee; and (4) deny the CPC appeals
and sustain approval of the VTTM, MCUP and site plan review
subject to conditions of approval modified by the PLUM
committee. When considering the CPC’s recommendation on the
zone change, the PLUM committee adopted modified conditions
of approval that removed the affordable housing requirement.
On March 22, 2019, the city council adopted the PLUM
committee’s report in full and approved the project.
PROCEDURAL HISTORY
CCED filed its verified petition in the trial court on May 8,
2019. The city and Atlas filed their answers on September 13,
2019.
On January 3, 2020, CCED filed its memorandum of points
and authorities in support of its petition. On February 10, 2020,
the city and Atlas each filed opposition briefs. CCED filed its
reply on February 25, 2020.
A court trial was held on March 11, 2020. On April 29,
2020, the trial court issued a written order denying CCED’s
petition in full. The trial court resolved CCED’s challenge under
Measure JJJ by analyzing relevant Government Code sections as
7
applied to undisputed facts.4 Based on its analysis the trial court
concluded that the city properly determined that Measure JJJ
did not apply to the project.
Among many other issues the trial court also addressed
CCED’s claim that the EIR’s conclusion that the soil
contamination on the site would not result in significant soil
contamination-related impacts was not supported by substantial
evidence. After analyzing the evidence the trial court concluded
that CCED did not meet its burden of demonstrating that
insufficient evidence supported the city’s finding of a less than
significant hazard from soil contamination.
The trial court also addressed CCED’s claims regarding
recirculation of the EIR. Specifically the CCED argued that
recirculation was required due to (1) the city’s post-DEIR
disclosure of the methane mitigation plan and (2) the city’s post-
DEIR removal of Footnote 12’s application to the project.
As to the methane mitigation plan, the court found that the
DEIR had disclosed the existence of methane at the site. The
DEIR had also disclosed that LAMC section 91.7103, the Los
Angeles Methane Seepage Regulations (Methane Code), would
apply to the project and would be incorporated into the project’s
design. The court found that the additional information
regarding methane mitigation in the final EIR “merely amplifies
the information provided by the DEIR,” providing more specifics
related to the regulatory compliance identified in the DEIR.
4 The trial court referenced Government Code sections
65943, 66418.1, 66474.2, and 66498.1.
8
Thus, the trial court concluded the city was not required to
recirculate the DEIR under the CEQA guidelines.
As to the removal of Footnote 12, the trial court found that,
because CCED made no argument as to any environmental
impact resulting from this change, CEQA does not require
recirculation on this issue. Instead the court found that the
change was only a clarification of the legal requirements
applicable to the project.
Judgment denying CCED’s petition was entered on
June 16, 2020.
CCED filed a notice of appeal from the judgment on
August 10, 2020.
DISCUSSION
I. Applicable law and standards of review
“The standard of review in a CEQA case . . . is abuse of
discretion.” (Sierra Club v. County of Fresno (2018) 6 Cal.5th
502, 512.) An agency may abuse its discretion under CEQA by
either “failing to proceed in the manner CEQA provides or by
reaching factual conclusions unsupported by substantial
evidence.” (Sierra Club, at p. 512.) We “determine de novo
whether the agency has employed the correct procedures,” but
“accord greater deference to the agency’s substantive factual
conclusions.” (Ibid.) Our review of the administrative record in a
CEQA case is the same as the trial court’s—we review “the
agency’s action, not the trial court’s decision.” (Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
(2007) 40 Cal.4th 412, 427 (Vineyard).) Thus we independently
determine whether the administrative record demonstrates legal
9
error or contains substantial evidence to support the agency’s
factual determinations. (Ibid.)
At issue on appeal is whether the city was required to apply
the requirements of Measure JJJ to the project. In resolving this
issue, we must consider whether the Subdivision Map Act (Gov.
Code, § 66410 et seq.) barred application of Measure JJJ to the
project. Our review of the statutory scheme and its application to
undisputed facts is de novo. (Tarbet v. East Bay Municipal
Utility Dist. (2015) 236 Cal.App.4th 348, 354.)
In reviewing the agency’s approval of an EIR, we must
determine whether the approval is “‘supported by substantial
evidence in the record.’” (Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 392-
393.) Substantial evidence is defined 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.’” (Id. at p. 393.)
Courts are “not to determine whether the EIR’s ultimate
conclusions are correct but only whether they are supported by
substantial evidence in the record and whether the EIR is
sufficient as an information[al] document.”(Association of
Irritated Residents v. County of Madera (2003) 107 Cal.App.4th
1383, 1391.) We review the administrative agency’s findings to
determine whether they are supported by substantial evidence,
then determine whether those findings support the
administrative order or decision. (Antelope Valley Press v.
Poizner (2008) 162 Cal.App.4th 839, 851.) Under the substantial
evidence standard of review, we must resolve reasonable doubts
in favor of the administrative finding and decision. (Laurel
10
Heights Improvement Assn. v. Regents of University of California
(1993) 6 Cal.4th 1112, 1135 (Laurel Heights).)5
When an EIR is challenged as inadequate we presume the
agency’s decision to certify the EIR is correct. The party
challenging the EIR bears the burden of establishing otherwise.
(Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530.)
II. Applicability of Measure JJJ
A. Measure JJJ
On November 8, 2016, the voters in the city approved
Measure JJJ pursuant to a special municipal election. The city
voters were asked:
“Shall an ordinance: 1) requiring that certain
residential development projects provide for
affordable housing and comply with prevailing wage,
local hiring and other labor standards; 2) requiring
the city to assess the impacts of community plan
changes on affordable housing and local jobs; 3)
creating an affordable housing incentive program for
developments near major transit stops; and 4)
making other changes; be adopted?”
On December 13, 2016, the city council adopted the city
clerk’s certification of the election results. Pursuant to Elections
Code section 9217, the approved measure went into effect 10 days
after certification of the election results.
Also on December 13, 2016, the city council adopted
ordinance No. 184745, which revised and added to certain
5 “There is no practical difference between the standards of
review applied under traditional or administrative mandamus.”
(Friends of the Old Trees v. Department of Forestry & Fire
Protection (1997) 52 Cal.App.4th 1383, 1389.)
11
provisions of the LAMC and Los Angeles Administrative Code
(LAAC) as approved by city voters. LAMC sections 11.5.6, 11.5.8,
11.5.11, 12.22 and LAAC section 5.522 contain the amendments
approved through Measure JJJ.
The LAMC changes permitted the city to approve “a
discretionary [GPA] or any zone change or height-district change
that results in increased allowable residential floor area, density
or height, or allows a residential use where previously not
allowed” for a residential multiunit rental project where the
project meets certain “on-site affordability provisions” and
compliance with enumerated job standards. (LAMC, § 11.5.11,
subd. (a).)
Specifically if the “[GPA], zone change or height district
change allows a residential use where not previously allowed,
then the Project shall provide no less than 5 [percent] of the total
units at rents affordable to Extremely Low Income households,
and either 11 [percent] of the total units at rents affordable to
Very Low Income households or 20 [percent] of the total units at
rents affordable to Lower Income households . . . .” (LAMC,
§ 11.5.11, subd. (a)1.(iii).)
Measure JJJ went into effect on December 23, 2016.
B. Proceedings below and CCED’s argument on
appeal
CCED argues that the project was approved in violation of
Measure JJJ. This argument was also made in the trial court.
Specifically CCED argued that the city erred in granting land
entitlements—“a [GPA] changing the Project site’s General Plan
designation from Hybrid Industrial to Regional Center
Commercial, a zone change, a height district change, and an
increase in floor area ratio—without requiring compliance with
12
Measure JJJ.” CCED argued that Measure JJJ applied to the
project because at the time the city approved these entitlements,
the voters had approved the measure.
The city responded that Measure JJJ was not applicable to
the project because the project was filed and deemed complete
prior to the adoption of Measure JJJ. Atlas submitted its VTTM
on May 13, 2016. On June 13, 2016, the VTTM application was
deemed complete by operation of law. Measure JJJ did not go
into effect until December 2016. After analyzing the relevant
Government Code provisions the trial court determined that upon
conditional approval of its VTTM application, Atlas had a vested
right to develop the property in substantial compliance with the
“pre-Measure JJJ ordinances, policies, and standards.” The trial
court rejected appellant’s argument that the city was required to
impose Measure JJJ conditions on the project “given [Atlas’s
VTTM] application was deemed complete six months prior to
Measure JJJ’s effective date.”
CCED argues that the trial court erred in construing the
city’s approval of the VTTM to grant Atlas a vested right to
proceed with the project given that the VTTM application was
conditioned upon the city council ultimately legislatively
approving the project’s GPA and zoning and height district
changes. CCED argues that the project was inconsistent with the
city’s general plan as well as permitted zoning and height district
restrictions and as a result was contingent upon the city
legislatively modifying the land use restrictions that applied to
the project site. CCED argues that the trial court erred in
finding that the vesting provisions of the Subdivision Map Act,
Government Code section 66474.2, exempted the project’s
legislative approvals from Measure JJJ.
13
C. Applicable Government Code sections
The Subdivision Map Act regulates and controls the
division of units of land. (Gov. Code, §§ 66411, 66424.)
The relevant Government Code provisions include the
following:
Government Code section 65943, subdivision (a), which
states, in relevant part:
“Not later than 30 calendar days after any
public agency has received an application for a
development project, the agency shall determine in
writing whether the application is complete and shall
immediately transmit the determination to the
applicant for the development project. If the
application is determined to be incomplete, the lead
agency shall provide the applicant with an
exhaustive list of items that were not complete. If
the written determination is not made within 30 days
after receipt of the application, and the application
includes a statement that it is an application for a
development permit, the application shall be deemed
complete for purposes of this chapter.”
Government Code section 66418.1 provides:
“‘Development’ means the uses to which the
land which is the subject of a map shall be put, the
buildings to be constructed on it, and all alterations
of the land and construction incident thereto.”
Government Code section 66474.2, subdivision (a) provides,
in relevant part:
“Except as otherwise provided in subdivision
(b) or (c), in determining whether to approve or
disapprove an application for a tentative map, the
local agency shall apply only those ordinances,
policies, and standards in effect at the date the local
14
agency has determined that the application is
complete pursuant to Section 65943 of the
Government Code.”
Government Code section 66498.1 provides, in relevant
part:
“(b) When a local agency approves or
conditionally approves a vesting tentative map, that
approval shall confer a vested right to proceed with
development in substantial compliance with the
ordinances, policies, and standards described in
Section 66474.2. . . .
“(c) Notwithstanding subdivision (b), the local
agency may condition or deny a permit, approval,
extension, or entitlement if it determines any of the
following:
“(1) A failure to do so would place the residents
of the subdivision or the immediate community, or
both, in a condition dangerous to their health or
safety, or both.”
D. Analysis
CCED admits that Measure JJJ became effective in
December 2016, approximately six months after the project’s
VTTM was deemed complete by operation of law. (Gov. Code,
§ 65943, subd. (a).)
The vesting provisions of the Subdivision Map Act, quoted
above, limit a public agency’s ability to apply ordinances, policies
and standards to proposed development projects. CCED does not
dispute that, as set forth in the above statutes, a public agency
may only apply those ordinances, policies and standards that are
in effect when the agency deems a filed application for a VTTM to
be complete. (Gov. Code, §§ 65943, 66474.2, 66498.1.)
“[Government Code] [s]ection 66498.1 et seq. were intended to
15
create a vested right affording greater protection and arising
earlier in the development process than the right available under
the common law doctrine.” (Kaufman & Broad Central Valley,
Inc. v. City of Modesto (1994) 25 Cal.App.4th 1577, 1588
(Kaufman).) The purpose of this section is to “‘offer[] developers a
degree of assurance, not previously available, against changes in
regulations.’” (Ibid.) “It effectively freezes in place the
ordinances, policies, and standards in effect at the time the
vesting tentative map application is determined to be complete.”
(Ibid.; see Bright Development v. City of Tracy (1993) 20
Cal.App.4th 783, 793 (Bright) [noting that in enacting the vesting
tentative map statutes, the Legislature intended that “‘[t]he
private sector should be able to rely upon an approved vesting
tentative map prior to expending resources and incurring
liabilities without the risk of having the project frustrated by
subsequent action by the approving local agency’”].)
CCED does not dispute the law stated above. However, it
claims that the trial court erred in construing the city’s approval
of the project’s VTTM to grant a vested right to proceed with the
project in this case because the project was conditioned on the
city council ultimately approving the project’s GPA and zoning
and height district changes. CCED cites no specific law or
authority suggesting that the Subdivision Map Act’s vesting
provisions are inapplicable in cases where the applicant requests
amendments or zone changes.6
6 Indeed counsel for CCED conceded the absence of legal
authority for this argument at oral argument of the matter.
16
In fact the Subdivision Map Act expressly permits an
applicant to file a VTTM application while concurrently seeking
“changes in applicable ordinances, policies or standards in
connection with the same development project.” (Gov. Code,
§ 66474.2, subd. (c).) The statute specifies that “any ordinances,
policies or standards adopted pursuant to the applicant’s request
shall apply.” (Ibid.) Nothing in the statutory language suggests
that the general rule—that ordinances, policies or standards
enacted after a VTTM application is deemed complete may not be
retroactively imposed on a project—is any different when an
applicant seeks changes such as GPA’s or zoning changes. (See
Bright, supra, 20 Cal.App.4th at p. 788 [“The most notable
feature of a vesting tentative map is that on its approval or
conditional approval, the right vests in the subdivider to proceed
with development in ‘substantial compliance with the ordinances,
policies and standards’ in effect on the date on which the
subdivider’s application was deemed complete.”].)
CCED further argues that Measure JJJ was not a general
plan, specific plan, zoning, or subdivision ordinance. Instead
CCED argues it was a voter initiative that imposes substantive
requirements on the city’s process for legislatively amending the
city’s general plan or zoning changes. CCED attempts to
distinguish Kaufman, supra, 25 Cal.App.4th 1577 and Bright,
supra, 20 Cal.App.4th 783 on the ground that those cases
involved generally applicable ordinances, while this case involves
“conditions placed upon legislative changes to land use
ordinances.” CCED claims that Atlas did not have a vested right
to approval of its requests and the city’s voters were free to
impose additional conditions such as Measure JJJ’s affordability
and labor standards as part of its approval of those conditions.
17
Again CCED’s argument lacks any legal support. There is
no suggestion in any of the statutes that a later-imposed
restriction—regardless of what aspect of the process it applies
to—may be imposed after the developer’s VTTM is deemed
complete. CCED is essentially asking for a change in the law
that permits the relevant agencies to impose additional
conditions after approval of the VTTM’s if those conditions have
to do with the developer’s requested amendments to the general
plan or zoning or height district changes. We are not inclined to
carve out such an exception in the absence of precedent.
Further there is no reason to categorize Measure JJJ and
the subsequent amendments to the LAMC as anything other
than changes in standards that the Subdivision Map Act
intended to cover. Contrary to CCED’s argument Measure JJJ
was proposed as an ordinance from its inception. Measure JJJ
was described as “Initiative Ordinance JJJ.” CCED admits that
Measure JJJ was enacted through amendments to the LAMC,
including LAMC section 11.5.11. Thus regardless of its origin
once it, as a voter initiative, was enacted by the city in December
2016 through ordinance No. 184745, it became a generally
applicable land use ordinance.
Under the governing provisions of the Government Code
the relevant two-part question is: (1) whether the conditions
imposed by Measure JJJ, as enacted through the LAMC,
constituted an ordinance, policy or standard; and (2) whether it
was in effect at the time that the VTTM application for the
project was deemed complete. (Kaufman, supra, 25 Cal.App.4th
at p. 1590 [“the critical point in the process for the purposes of
the vesting tentative map statutes is the date on which the map
application is complete”]; see Bright, supra, 20 Cal.App.4th at
18
p. 795 [“We consider whether the record establishes the City had
an ordinance, policy, or standard in effect at the time plaintiff’s
vesting tentative map application was deemed complete.”].) The
two-part answer is: (1) yes, Measure JJJ and the subsequent
amendments to the LAMC are properly categorized as an
ordinance, policy or standard under the vesting tentative map
statutes; and (2) no, it was not in effect at the time the VTTM
application for the project was deemed complete.
In short, the city and the trial court properly concluded
that Measure JJJ was inapplicable to the project.
III. CEQA challenges
A. CEQA
The purpose of CEQA is to inform decisionmakers and the
public about the potential significant environmental effects of a
project. (Cal. Code Regs., tit. 14, § 15002, subd. (a)(1).) To that
end an EIR may be required “to provide public agencies and the
public in general with detailed information about the effect which
a proposed project is likely to have on the environment; to list
ways in which the significant effects of such a project might be
minimized; and to indicate alternatives to such a project.” (Pub.
Resources Code, § 21061.) An EIR must “‘include a detailed
statement setting forth . . . [¶] . . . [a]ll significant effects on the
environment of the proposed project.’ ([Pub. Resources Code,]
§ 21100, subd. (b)(1).)” (Vineyard, supra, 40 Cal.4th at p. 428.)
The EIR has been described as an “‘“environmental ‘alarm bell’
whose purpose it is to alert the public and its responsible officials
to environmental changes before they have reached ecological
points of no return.”’” (Save Round Valley Alliance v. County of
Inyo (2007) 157 Cal.App.4th 1437, 1446.)
19
CCED challenges the project’s EIR in several respects. We
discuss each issue separately below and conclude that for each
issue the city did not commit a prejudicial abuse of discretion.
(Pub. Resources Code, § 21168.5.)
B. Substantial evidence supported the EIR’s
conclusion that soil contamination created a
less than significant hazard impact
The EIR concluded that the project would result in a less
than significant impact—that it would not expose persons to
substantial risk—from reasonably foreseeable conditions
involving the release of hazardous materials in the environment.
CCED contends that substantial evidence does not support this
conclusion.
Specifically CCED contends that the groundwater and soil
contamination could have significant impacts on outdoor workers
and construction workers because the project departs from
proposed uses initially assumed by a 2003 “No Further Action”
determination letter (No Further Action letter) issued by the Los
Angeles Regional Water Quality Control Board (LARWQCB).
The No Further Action letter prohibited residential use of the
ground floor. It also noted that at that time the project included
no underground structures, green areas, or unpaved areas.
CCED claims that the present project presently departs from the
proposed use of the land at the time of the 2003 determination,
therefore the EIR could no longer rely on the 2003 No Further
Action letter. Because there was no recent sampling or
investigation, CCED contends that the EIR’s reliance on the No
Further Action letter was insufficient.
20
1. The evidence
The city’s hazards impact determination was based largely
on section 4.5 of the EIR, captioned “Hazards and Hazardous
Materials.” The EIR’s review of the history of the project site and
the prior testing and remediation work was included in appendix
E and spanned over 300 pages of technical documentation.
The project site was “developed as far back as 1905 when
the property was part of a rail freight yard.” Structures on the
site included “two freight houses, multiple rail lines, a wood yard,
a coal yard, oil warehouses, small businesses, and dwelling
units.” Prior to 1970 the site was owned by the Union Pacific
Railroad. In 1970 it was acquired by the Los Angeles
Metropolitan Transit Authority (MTA) to support an expansion of
MTA train service to Pasadena. All on-site buildings were
demolished in the 1980’s.
The project site was subject to a number of hazardous
materials investigations between 1989 and 2002, which were
listed in section 4.5 of the EIR.7 An environmental site
7 The hazardous materials investigations included: Final Site
Report Underground Storage Tank Removal, prepared by
Canonie Environmental in 1989; Workplan for Los Angeles
County Metropolitan Transportation Authority Phase II
Environmental Site, prepared by Weston in 1995; Phase I
Environmental Assessment for Parcel PA-018, Metro Pasadena
Blue Line prepared by Weston in 1996; Workplan for Parcel PA-
018 Further Investigation, prepared by Montgomery Watson in
1999; Report of Environmental Soil and Groundwater
Assessment, prepared by LAW Gibb Group in 2000; Remedial
Action Plan, prepared by England Geosystems in 2001; Updated
21
assessment was prepared in 1996, which stated that four
underground storage tanks and approximately 30 cubic yards of
impacted soil were removed from the project site in 1989.
Ultimately, the MTA submitted a remedial action plan (RAP)
that was submitted to, and approved by, the LARWQCB in 2001.
The RAP was implemented, and all remaining contaminated soil
was removed. Following the implementation of the RAP, the
LARWQCB issued the No Further Action letter in 2003. The
2003 No Further Action letter indicated that “past contamination
on the Project Site has been fully identified and remediated to
targeted cleanup levels. As a result, the Project Site itself is not
included on the lists of hazardous materials sites compiled
pursuant to Government Code Section 65962.5 and is not part of
the Pacific Pipeline 2000 cleanup site.”
However, the No Further Action letter stipulated a deed
restriction prohibiting the development of ground-level
residential uses on the project site. The deed restriction was
recorded on April 15, 2003.8
Remedial Action Plan, prepared by England Geosystems in 2001;
Remedial Action Plan Implementation Summary and Site
Closure Request, Parcel PA-018, prepared by England
Geosystems in 2002; and Response to OEHHA Comments,
Updated Remedial Action Plan Parcel PA-018, prepared by
England Geosystems, 2002.
8 CCED asserts that the No Further Action letter “contains
institutional controls of no underground structures, green areas,
or unpaved areas.” In fact, the No Further Action letter does not
mention these as “institutional controls.” Instead, the No
Further Action letter merely describes the proposed project,
22
The EIR documented that since the issuance of the No
Further Action letter no uses have occurred at the project site
that would warrant reconsideration of the letter, and no
commenter offered any contrary evidence.
Based on a review of the reports of the various hazards
materials investigations on the site dating back to 1989 and the
stating: “The site is planned for development of a four-story
building, with commercial, retail business on the lower level and
housing on the other three floors. There are no planned
underground structures, green areas, or unpaved areas at the
Site.” There is no suggestion in the No Further Action letter that
underground structures, green areas or unpaved areas are
restricted or disallowed. CCED has provided a link to an
explanation of the term “institutional controls”:
(as of Nov. 29,
2021), archived at . The link
does not suggest that the above description of the project may be
considered an “institutional control.” Instead, institutional
controls are “administrative and legal controls,” which “limit[]
land or resource use and guide human behavior.” As an example,
the Web site explains, “zoning restrictions prevent land uses—
such as residential uses—that are not consistent with the level of
cleanup.” The only zoning restriction imposed on the project was
the restriction against development of ground-level residential
uses at the project site. CCED misrepresents the record by
referring to the above description of the plan as imposing
“institutional controls.” We decline to view them as such when
the LARWQCB could easily have included restrictions on
underground parking and open spaces in its recorded deed
restriction. Instead LARWQCB declined to impose such
restrictions.
23
prior testing and remediation work at the project site that
culminated in the No Further Action letter, the EIR concluded
“the Project Site has been adequately investigated and all known
soil contamination has been remediated (soil excavated, removed,
and disposed of) to the required cleanup levels.” The EIR
explained, “The Project would have no ground-level residential
uses; all residential uses would be built atop subterranean
parking or the podium parking structure.” The EIR further
concluded that “[c]onstruction activities, including excavation of
on-site soils and site preparation, would not involve unusual or
acutely hazardous materials and would not create a hazard to the
public through the release of hazardous materials related to soil
contamination and related impacts would be less than
significant.”
In discussing the cumulative impact of the project, the EIR
determined that because “the Project Site has been subject to the
issuance of a regulatory clearance as a result of the remediation
of any onsite subsurface contamination, the Project would not
result in a cumulatively considerable contribution to any
unidentified cumulatively significant impacts.” The EIR
concluded that “Project-level and cumulative impacts with
respect to hazards and hazardous materials would be less than
significant.”
On September 26, 2018, Milena Zasadzien of the
environmental analysis division of the Los Angeles Department
of City Planning, e-mailed Jeanette Liu and David Young of the
24
California State Water Resources Control Board (water board)9
stating, “The City of Los Angeles, Department of City Planning is
currently reviewing a project proposal for a site located at 924
N. Spring Street. The [LARWQCB] previously issued a No
Further Action letter on the site in 2003. Would you have any
availability this week for a phone call to discuss the letter and
site?” On October 2, 2018, Young responded, “we closed the
referenced site back in 2003 with the only restrictions being that
you must notify the [LARWQCB] if 1) additional contamination is
encountered during future activities at the site; or 2) there is a
change of the proposed land use. Our oversight with respect to
this project is complete, unless you are providing notice regarding
items 1 & 2 (above).” Zasadzien replied, “No additional
contamination has been found, but the project has slightly
changed. The original proposal was for a mixed use commercial
and residential project. The current proposal is the same but also
includes subterranean parking, but not deeper than the level of
soil that was reviewed previously. Would the underground
component require any additional water board review?” Young
responded, “unless additional contamination is encountered
during future activities at the site (such as during the excavation
work for the subterranean parking structure), no further review
is needed from the [LARWQCB].”
9 The water board is a branch of the California
Environmental Protection Agency. (About the California Water
Boards at p. 3 [as of
Nov. 29, 2021], archived at .)
25
The evidence described above constitutes substantial
evidence supporting the city’s less than significant hazards
conclusion regarding soil contamination.
2. CCED has failed to show a significant
departure from the proposed use of the land
since the time of the 2003 No Further Action
letter
CCED claims that modifications to the final EIR have
caused a departure from the proposed use of the land such that
the No Further Action letter no longer supports the EIR’s
conclusion of less than significant hazards resulting from soil
contamination. Specifically CCED contends that the project now
contains subterranean parking and open space, which departs
from the assumptions made in the No Further Action letter.
CCED relies on Citizens for Responsible Equitable
Environmental Development v. City of Chula Vista (2011) 197
Cal.App.4th 327, 332, for the proposition that disturbing
contaminated soil can be a physical change in the environment.
CCED asserts that it is undisputed that the project site contains
contamination that would be disturbed and that the project
departs from the proposed uses assumed by the 2003 No Further
Action letter. Therefore, CCED claims the EIR could no longer
rely on the 2003 No Further Action letter. In addition CCED
contends the DEIR did not contain any recent investigations or
sampling. CCED claims that the city should have conducted
additional investigations to determine the hazards with the new
proposals of underground parking and open space.
CCED’s argument is based on the language in the No
Further Action letter stating:
“Therefore, it was concluded by OEHHA [(Office of
Environmental Health Hazard Assessment)] that the
26
Site will not pose any significant health threat to
humans following the development of the property.
OEHHA also noted that as long as the nature, extent,
and severity of the contamination does not
significantly depart from those identified at this Site,
and the use of the land does not depart from the
proposed use, the health risks associated with
residual contamination left in soils at the Site will
not exceed—and most likely will be less than—those
estimated for the protection of human health.”
CCED interprets this to mean that any proposed design
change constitutes a departure from the proposed use. CCED
presents no legal authority that design changes, such as the
addition of underground parking and open space, constitute a
departure from the proposed use of the property that was
contemplated in 2003. As the city points out, both the 2003
project and the current project present the same proposed use—
mixed-use developments with commercial, retail businesses on
the ground floor and housing on the upper floors. Neither the No
Further Action letter nor the recorded deed restriction prohibit
underground parking or outdoor open space. The No Further
Action letter did not suggest that design changes such as those
challenged here would present obstacles or change the conclusion
of the No Further Action letter that “the health risks associated
with residual contamination left in soils at the Site will not
exceed—and most likely will be less than—those estimated for
the protection of human health.”
Further, there is evidence in the record that the city
provided written notice to the water board that the project had
been revised to include underground parking. The city received
written reassurance in response that “unless additional
contamination is encountered during future activities at the site
27
(such as during the excavation work for the subterranean
parking structure), no further review is needed from the
[LARWQCB].” This written exchange provides further support
for the city’s position that any soil contamination presented a less
than significant hazard and undermines CCED’s position that
the evidence of prior investigations and remediation of soil
contamination were insufficient.10
C. CCED has failed to show that recirculation of
the EIR was required
CCED argues that the city was required to recirculate the
EIR for two reasons: first, because the city revised the final EIR
to include a methane mitigation plan to mitigate methane
hazards from the project; and second, because the city revised the
EIR to remove the project’s Footnote 12 designation and the
10 As the city points out in its respondents’ brief, CCED did
not directly address the evidence of written e-mails between the
city and the water board concerning the revisions to the plan
including subterranean parking. Instead CCED claims, “nothing
in the record . . . indicates that either the City or the Applicant
notified the [LARWQCB] in writing of the significant change in
the project since 2003.” “As with all substantial evidence
challenges, an appellant challenging an EIR for insufficient
evidence must lay out the evidence favorable to the other side
and show why it is lacking.” (Defend the Bay v. City of Irvine
(2004) 119 Cal.App.4th 1261, 1266.) CCED’s failure to present a
fair and adequate statement of the evidence that CCED claims is
insufficient may be “‘“‘deemed tantamount to a concession that
the evidence supports the findings.’”’” (Markley v. City Council
(1982) 131 Cal.App.3d 656, 673.) Despite this omission we have
examined the evidence and found it sufficient to constitute
substantial evidence to support the findings.
28
associated GPA, which would have addressed the city’s
inconsistency with Footnote 12.
For the reasons set forth below, we find that CCED has
failed to show that recirculation was required for either reason.
1. Recirculation requirement
Public Resources Code section 21092.1 provides: “When
significant new information is added to an environmental impact
report after notice has been given pursuant to Section 21092 and
consultation has occurred pursuant to Sections 21104 and 21153,
but prior to certification, the public agency shall give notice again
pursuant to Section 21092, and consult again pursuant to
Sections 21104 and 21153 before certifying the environmental
impact report.”
Under this statute, “when a lead agency adds ‘significant
new information’ to an EIR after completion of consultation with
other agencies and the public [citations] but before certifying the
EIR, the lead agency must pursue an additional round of
consultation.” (Vineyard, supra, 40 Cal.4th at p. 447.) New
information is “significant” only if “the EIR is changed in a way
that deprives the public of a meaningful opportunity to comment
upon a substantial adverse environmental effect of the project or
a feasible way to mitigate or avoid such an effect.” (Laurel
Heights, supra, 6 Cal.4th at p. 1129.)
“The [CEQA] Guidelines describe the types of ‘significant
new information’ requiring recirculation of a draft EIR.”
(Citizens for a Sustainable Treasure Island v. City and County of
San Francisco (2014) 227 Cal.App.4th 1036, 1063.) These include
“disclosure of ‘[a] new significant environmental impact,’ ‘[a]
substantial increase in the severity of an environmental impact,’
and the addition of a ‘feasible project alternative or mitigation
29
measure considerably different from the others previously
analyzed.’” (Ibid.) Recirculation is also required where “[t]he
draft EIR was so fundamentally and basically inadequate and
conclusory in nature that meaningful public review and comment
were precluded.” (Cal. Code Regs., tit. 14, § 15088.5, subd. (a)(4).)
Recirculation is not required “where the new information
added to the EIR merely clarifies or amplifies or makes
insignificant modifications in an adequate EIR.” (Cal. Code
Regs., tit. 14, § 15088.5, subd. (b).) However, the decision not to
recirculate an EIR must be supported by substantial evidence.
(Laurel Heights, supra, 6 Cal.4th at p. 1135.)
2. Substantial evidence supports the agency’s
decision that recirculation was not required due
to inclusion of the methane mitigation plan
CCED explains that the methane mitigation plan was
developed in July 2017 to mitigate the methane hazards resulting
from the project. Although the DEIR was released in March
2018, the city did not include the methane mitigation plan in the
DEIR. It was only after commenters objected that the city added
the methane mitigation plan to the final EIR, which was not
recirculated for public comment.
CCED must show not only that the methane mitigation
plan was new, but that it provided “significant new information”
as defined under the law. (Pub. Resources Code, § 21092.1,
italics added.) CCED argues that the methane mitigation plan
constituted significant new information because none of this
information was made available and disclosed to the public
during the public review process. More importantly, CCED
argues, the DEIR did not adequately disclose, analyze, or
mitigate the project’s potentially significant methane-related
30
impacts. CCED argues that this omission rendered the DEIR “so
fundamentally and basically inadequate and conclusory in nature
that meaningful public review and comment were precluded.”
(Cal. Code Regs., tit. 14, § 15088.5, subd. (a)(4).)
The record shows that several public comments on the
DEIR concerned its failure to describe in detail the project’s
methane mitigation system. The city provided comprehensive
responses to these comments. The city explained that the DEIR
acknowledged that the project site is located in a city-designated
methane zone, which means that methane is a condition of the
existing setting, not an impact of the project. As such the
methane need not be mitigated by the project. Instead, this
condition, which existed in the setting, must be addressed
through regulatory compliance. The EIR explained that the “Los
Angeles Methane Seepage Regulations or Methane Code
(Methane Code) establishes requirements for buildings and paved
areas located in methane zones and methane buffer zones.” The
city further explained that “[a]s noted in Section 4.5 of the Draft
EIR, compliance with the Methane Code, as well as all other
applicable federal, state, and local regulations, is required and
would therefore be implemented as part of the Project.”
The purpose of the EIR is to inform the public of the
potential significant environmental effects of a project. (Cal.
Code Regs., tit. 14, § 15002, subd. (a)(1).) Therefore, an EIR must
“‘include a detailed statement setting forth . . . [¶] . . . [a]ll
significant effects on the environment of the proposed project.’
([Pub. Resources Code,] § 21100, subd. (b)(1).)” (Vineyard, supra,40 Cal.4th at p. 428.) The methane mitigation program—which
was developed as a result of existing conditions and in
compliance with the Methane Code—does not qualify as an
31
environmental effect of the project. (California Building Industry
Assn. v. Bay Area Air Quality Management Dist. (2015) 62
Cal.4th 369, 386 (California Building) [“CEQA generally does not
require an analysis of how existing environmental conditions will
impact a project’s future users or residents”].) Therefore it was
not required to be detailed in the EIR. It follows that the DEIR
was not “so fundamentally and basically inadequate and
conclusory in nature that meaningful public review and comment
were precluded.” (Cal. Code Regs., tit. 14, § 15088.5, subd. (a)(4).)
An EIR cannot be declared inadequate based on information that
was not required to be included. (California Building, supra, at
p. 386.)
Further, “[a]n agency may rely on generally applicable
regulations to conclude an environmental impact will not be
significant and therefore does not require mitigation.” (San
Francisco Beautiful v. City and County of San Francisco (2014)
226 Cal.App.4th 1012, 1033.) San Francisco involved the
installation of metal utility boxes housing telecommunications
equipment on San Francisco sidewalks. (Id. at p. 1017.) The
utility boxes were subject to the requirements for excavation
permits found in a city public works order, which was “generally
applicable to excavation permits for surface-mounted facilities.”
(Id. at p. 1033.) The agency was entitled to rely on the generally
applicable order in reaching its conclusion that the
environmental impact would not be significant. (See Tracy First
v. City of Tracy (2009) 177 Cal.App.4th 912, 934 [“the City did not
fail to proceed in the manner required by law when it relied on
the California Building Energy Efficiency Standards in
determining that the project would not have a significant energy
impact”].)
32
The cases cited by CCED are distinguishable. In Mountain
Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043,
1050, “the draft EID [(environmental impact document)] that was
circulated to the public to inform them of the environmental
consequences of the proposed 1988 mountain lion hunt was
woefully inadequate.” It did not meaningfully address the impact
of the proposed hunt on the national parks or forests. Instead,
the document only stated a conclusion that “‘the proposed action
will not significantly affect State and federal park land uses.”
(Ibid.) The wildfire analysis was similarly only one sentence
long. (Ibid.) The environmental impact document did not
explain “in even minimum detail how it arrived” at its conclusion.
(Ibid.) Unlike the present matter, Mountain Lion did not address
an environmental issue that was subject to generally applicable
regulations.
In Ukiah Citizens for Safety First v. City of Ukiah (2016)
248 Cal.App.4th 256, the issue was whether a subsequent
addendum addressing the energy impacts of a project cured the
prior approval of an inadequate EIR. (Id. at pp. 265-266.) The
city recognized the deficiencies in its EIR and adopted an
addendum. (Id. at p. 265.) The Ukiah court concluded that
“[b]ecause the EIR certified in this case was inadequate in its
analysis of energy impacts of the project, recirculation and
consideration of public comments concerning the energy analysis
will be necessary before the EIR may be certified and the project
approved.” (Id. at pp. 266-267.) Here, unlike in Ukiah, the city
does not concede any inadequacies in its DEIR related to the
methane mitigation plan. Instead, the city takes the position
that its compliance with the Methane Code negated its obligation
to include the methane mitigation plan in the DEIR. The city’s
33
position is supported in the law. Therefore, the DEIR in this case
was not inadequate.
Finally CCED cites Save Our Peninsula Committee v.
Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99,
131. In Save Our Peninsula, the issue of riparian rights “arose
late in the environmental review process” and suffered from a
“lack of analysis.” (Ibid.) “Neither the draft EIR nor the revised
EIR had mentioned such a right.” (Id. at pp. 131-132.) Here, in
contrast, the DEIR acknowledged that the project site is located
in a city-designated methane zone, which means that methane is
a condition of the existing setting, not an impact of the project.
The EIR explained that the “Los Angeles Methane Seepage
Regulations or Methane Code (Methane Code) establishes
requirements for buildings and paved areas located in methane
zones and methane buffer zones.” The city further explained that
“[a]s noted in Section 4.5 of the Draft EIR, compliance with the
Methane Code, as well as all other applicable federal, state, and
local regulations, is required and would therefore be implemented
as part of the Project.” Unlike Save Our Peninsula, the subject of
methane mitigation was raised and adequately addressed
through reference to the project’s compliance with the Methane
Code.
CCED argues that the new information regarding the
methane mitigation plan was significant under CEQA guidelines
because “CEQA calls upon an agency to evaluate existing
conditions in order to assess whether a project could exacerbate
hazards that are already present” and “‘any potentially
significant impacts of locating development in . . . areas
susceptible to hazardous conditions . . . .’” (California Building,
supra, 62 Cal.4th at p. 388.) CCED argues that the project
34
acknowledges the dangers methane can pose, and the adoption of
the methane mitigation plan is an admission that mitigation is
necessary to ensure that the project’s hazards impacts from
methane would be less than significant.
We disagree. The information contained in the final EIR
“‘“merely clarifie[d] or amplifie[d]”’” the adequate information
already contained in the DEIR. (Silverado Modjeska Recreation
& Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 302
[“[R]ecirculation of an uncertified EIR under [Public Resources
Code] section 21092.1, is ‘not required where the new information
added to the EIR “merely clarifies or amplifies [citations] or
makes insignificant modifications in [citation] an adequate
EIR.”’”]; see High Sierra Rural Alliance v. County of Plumas
(2018) 29 Cal.App.5th 102, 127 [addition of maps and additional
building standards merely clarified DEIR’s information]; Clover
Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200,
223 [new information in final EIR added narrative detail about
the cultural resources’ characteristics where the DEIR already
provided sufficient analysis regarding the cultural impacts].) The
DEIR explained that the presence of methane is an existing
condition of the project site, therefore the Methane Code applies.
The DEIR explained that “[r]equirements for new construction
within such zones include methane gas sampling and, depending
on the detected concentrations of methane and gas pressure at
the site, application of design remedies for reducing potential
methane impacts.” The DEIR noted that the particular
mitigation system would be based on the “site Design Level” with
more involved systems “required at the higher Site Design
Levels.” The DEIR concluded that upon compliance with the
35
applicable laws there was no substantial risk to people using the
site.
The additional information in the final EIR merely clarified
and amplified this information. In response to public requests
the city provided details regarding the methane mitigation plan
required by the Methane Code, as well as available testing
results. Based on the testing results the project site was
determined to be “Site Design Level II (on a scale from I to V,
with Site Design Level V being the highest level), in accordance
with the Minimum Methane Mitigation Requirements set forth in
the Methane Code.” The final EIR further explained, “Under a
Site Design Level II, the Project Site’s methane gas mitigation
system must, at a minimum, consist of: a 2-inch permeable
aggregate layer on the subgrade; a drainage collection system
drained to a sump; an impermeable methane gas barrier
membrane above the aggregate layer; trench plus; and sealed
conduits. A detailed Methane Gas Mitigation Plan is provided in
Appendix E of the Final EIR.” The document concluded, “A
passive Methane Mitigation System is required for compliance
with the City’s Methane Code, and with regulatory compliance,
impacts related to methane would be less than significant.”
This information, which merely provided further detail
regarding the site’s design level and the relevant Methane Code
requirements, did not provide significant new information. (See
Laurel Heights, supra, 6 Cal.4th at p. 1140 [“addition of the
discussion of night-lighting glare is an insignificant modification
to the EIR that does not disclose a new adverse environmental
impact”].) CCED points to no evidence that compliance with the
Methane Code would not ensure that the project would not
exacerbate the hazards already present due to methane, or
36
otherwise adversely impact the existing conditions. Under the
circumstances, recirculation was not required.
3. Recirculation was not required based on
elimination of the GPA to deviate from Footnote
12
CCED argues that the recirculation requirement was also
triggered when the city revised the DEIR to remove the project
site’s Footnote 12 designation and the GPA, which would have
addressed the project’s inconsistency with Footnote 12.
The DEIR stated that Footnote 12 applied to the site and
set forth the affordable housing requirements of Footnote 12. In
its permit application filed in 2015, Atlas sought a GPA for
deviation from Footnote 12. The developer argued that the GPA
would allow for more retail space; employment positions;
localized spending and activity; and more dwelling units for the
city.
The final EIR deleted the GPA request seeking deviation
from Footnote 12. The EIR explained:
“The original Project entitlement application included
a request for a General Plan Amendment seeking
relief from Footnote 12 of the Central City North
Community Plan Land Use Map, relating to
affordable housing. After the publication of the Draft
EIR, the City determined that Footnote 12 was never
formally adopted by the City (see Council File 07-
3868 for reference), and thus is not an effective
regulation. The City is in the process of correcting
the Central City North Community Plan Land Use
Map to reflect the inapplicability of Footnote 12.”
As set forth above recirculation of an EIR is required only if
“the EIR is changed in a way that deprives the public of a
meaningful opportunity to comment upon a substantial adverse
37
environmental effect of the project or a feasible way to mitigate or
avoid such an effect.” (Laurel Heights, supra, 6 Cal.4th at
p. 1129; see Cal. Code Regs., tit. 14, § 15088.5, subd. (a).) Here,
the deletion of the GPA request for deviation from Footnote 12
does not relate to either a “substantial adverse environmental
effect of the project or a feasible project alternative or mitigation
measure that would clearly reduce such an effect.” (Laurel
Heights, supra, at p. 1120.) Instead, it relates to an affordable
housing proposal that was never formally adopted by the city.
Removing a request to deviate from an inapplicable legal
requirement regarding affordable housing does not concern an
environmental effect and therefore is not “‘significant new
information’” requiring recirculation under the applicable law.
(Id. at p. 1129; see Cal. Code Regs., tit. 14, § 15088.5, subd. (a).)
DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs of appeal.
___________________________
CHAVEZ, J.
We concur:
_______________________________
ASHMANN-GERST, Acting P. J.
_______________________________
HOFFSTADT, J.
38