Preservation Action Council etc. v. City of San Jose etc. CA6 ( 2022 )

Filed 8/30/22 Preservation Action Council etc. v. City of San Jose etc. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PRESERVATION ACTION COUNCIL H048953
OF SAN JOSE, (Santa Clara County
Super. Ct. No. 20CV363696)
Plaintiff and Appellant,
v.
CITY OF SAN JOSE AND CITY
COUNCIL OF CITY OF SAN JOSE,
Defendants and Respondents;
ALMADEN CORNER, LLC,
Real Party in Interest and
Respondent.
I. INTRODUCTION
This CEQA 1 action arises from the proposal of real party in interest Almaden Corner,
LLC (Almaden Corner) to build a 19-story hotel in downtown San Jose directly adjacent to
the historic DeAnza Hotel. After preparing an initial study and a final supplemental
environmental impact report (SEIR) pursuant to CEQA concerning the proposed hotel
project and holding a hearing, the City of San Jose’s City Council (hereafter, collectively
City) approved the project.
1 California Environmental Quality Act (Cal. Pub. Res. Code, § 21000, et. seq.)
Preservation Action Council of San Jose (PAC-SJ), a nonprofit California
corporation concerned with “the promotion of protection and adaptive reuse of the city’s
historic resources” challenged City’s approval of the Almaden Corner hotel project by filing
a petition for writ of mandamus alleging violations of CEQA’s requirements for
environmental review. The trial court denied the petition for writ of mandamus and on
December 3, 2020, judgment was entered in favor of respondents.
In its appeal, PAC-SJ contends that the trial court erred because (1) City violated
CEQA by certifying the final SEIR although the final SEIR did not analyze the potentially
significant visual and aesthetic impacts of the proposed hotel project; (2) the responses to
certain comments in the final SEIR were inadequate; and (3) the hotel project objectives
would allow a reduced-size project alternative.
For the reasons stated below, we find no merit in these contentions and we will
affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The project applicant, Almaden Corner, intends to develop a 19-story hotel with 272
rooms on the corner of Almaden Boulevard and West Santa Clara Street in downtown San
Jose. The proposed project is known as the Almaden Corner Hotel project. As proposed,
the hotel would also include a lobby, restaurants, and bars on the ground floor, as well as a
bar and open-air patio on the nineteenth floor. The project site is currently used as a parking
lot and is directly adjacent to the DeAnza Hotel, which is listed in the National Register of
Historic Places. The parking proposed for the hotel project will be off-site in a City garage
with valet service.
The environmental review process for the proposed Almaden Corner Hotel project
included an initial study,2 in which City analyzed the site-specific environmental impacts of
2
“[A]n initial study is the preliminary environmental analysis (see Guidelines,
§ 15365) and its purposes include ‘[p]rovid[ing] the lead agency with information to use as
the basis for deciding whether to prepare an EIR or negative declaration, . . .” (Lighthouse
2
the project that were not previously disclosed in a prior program level EIR, the Downtown
Strategy 2040 final environmental impact report (FEIR). City concluded in the initial study
that a supplemental EIR (SEIR) was required to provide subsequent project level
environmental review for the hotel project. The draft SEIR for the hotel project was tiered
from the Downtown Strategy 2040 FEIR and circulated in 2019.3 The initial study is
attached as Appendix A to the draft SEIR.
The many environmental impacts addressed in the draft SEIR and the initial study
included the hotel project’s impact on a historical resource, the DeAnza Hotel. The draft
SEIR described the architectural context of the DeAnza Hotel as follows: “Prominently
built at the end of a street that has evolved over time into a wide boulevard with a
landscaped median, the De Anza Hotel presents a generally symmetrical heavily vertical
massing along West Santa Clara Street. The hotel was designed by the regionally
significant William H. Weeks, a prominent institutional designer, and was constructed in
1931. The NRHP [National Register of Historic Places] nomination identified the hotel as
significant based on its architectural style, for its elaborate Spanish Colonial Revival interior
design motifs, and for its historical association to the City since its construction was funded
by the local business community.”
Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1180; Guidelines,
§ 15063.) “The regulations that guide the application of CEQA are set forth in title 14 of
the California Code of Regulations and are often referred to as the CEQA Guidelines.
[Citation.]” (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1561,
fn. 5; hereafter CEQA Guidelines or Guidelines.)
3
“ ‘ “Tiering” refers to using the analysis of general matters contained in a broader
EIR (such as one prepared for a general plan or policy statement) with later EIRs and
negative declarations on narrower projects; incorporating by reference the general
discussions from the broader EIR; and concentrating the later EIR or negative declaration
solely on the issues specific to the later project.’ ” (Friends of College of San Mateo
Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 959, brackets
omitted.)
3
The draft SEIR determined, based on an analysis of the proposed hotel building
design by its historical architecture consultant, Archives & Architecture, that “[t]he
proposed project design would be compatible with the De Anza Hotel . . . and, while the
setting would be altered, the historic setting of the De Anza Hotel is negligible with regard
to the hotel’s significance over time. Furthermore, the feeling and association of the
De Anza Hotel would remain intact and the proposed project would not alter the character-
defining features of the building. As a result, the project would have a less than significant
indirect impact to historic resources.” The draft SEIR also concluded that “[a]ll significant
impacts of the proposed project would be reduced to a less than significant level with the
implementation of mitigation measures identified in this SEIR.”
The final SEIR for the Almaden Corner Hotel project, dated December 2019, was
comprised of the draft SEIR, the first amendment to the draft SEIR, responses to comments
on the draft SEIR, and various appendices. After holding a public hearing, the City Council
voted to certify the SEIR and approved the project in Resolution No. 79373.
A. Writ Proceedings
1. Petition for Writ of Mandamus
PAC-SJ and the owner of the DeAnza Hotel, ML San Jose Holding, LLC, filed a
verified petition for writ of mandamus setting aside City’s approval of the Almaden Corner
Hotel project. The petition named City and City Council as respondents, and Almaden
Corner as real party in interest (hereafter, collectively City).
Petitioners raised several claims of CEQA violations, including the SEIR’s
inadequate responses to comments and failure to properly analyze environmental impacts,
mitigation measures, and alternatives. In their opening brief, petitioners argued that
(1) City’s responses to several comments did not satisfy CEQA’s requirements because the
responses were conclusory; (2) the project objectives allowed a reduced-size alternative; and
(3) the SEIR improperly determined that aesthetics impact of the hotel project on the
historic DeAnza Hotel was not significant.
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2. The Trial Court’s Order
The trial court rejected all of petitioners’ claims of CEQA violations and denied the
petition for writ of mandamus in the November 24, 2020 order. Specifically, the trial court
ruled that petitioners’ claim that City’s responses to comments were inadequate was barred,
since petitioners had failed to exhaust their administrative remedy by informing City that the
responses were inadequate before City certified the final SEIR and approved the hotel
project. The trial court also determined that petitioners had failed to meet their burden to
show that the SEIR did not adequately discuss either the project’s impacts to the Hotel
DeAnza or the reduced height alternative project. The judgment denying the petition for
writ of mandamus was entered on December 3, 2020.
III. DISCUSSION
PAC-SJ raises three CEQA issues on appeal: (1) City violated CEQA by certifying
the final SEIR although the final SEIR did not analyze the potentially significant visual and
aesthetic impacts of the proposed hotel project; (2) the responses to certain comments in the
final SEIR were inadequate; and (3) the hotel project objectives would allow a reduced-size
project alternative.4
We will begin our evaluation with an overview of the principles that guide our
review of the CEQA issues.
A. Overview of CEQA Principles
The California Supreme Court has provided an overview of CEQA principles:
“ ‘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.” ’ [Citations.] ‘With narrow
4
PAC-SJ’s opening brief also includes a brief paragraph with the heading “Approval
Findings are Unsupported,” followed by conclusory assertions that we need not address.
“We are not bound to develop appellants’ argument for them. [Citation.] The absence of
cogent legal argument or citation to authority allows this court to treat the contention as
waived.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)
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exceptions, CEQA requires an EIR whenever a public agency proposes to approve or to
carry out a project that may have a significant effect on the environment. [Citations.]’
[Citation; see Guidelines, § 15002, subd. (f).) The basic purpose of an EIR is to ‘provide
public agencies and the public in general with detailed information about the effect [that] 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; see Guidelines, § 15003, subds. (b)-(e).) ‘Because the EIR
must be certified or rejected by public officials, it is a document of accountability. If 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 to action with which it disagrees.’ [Citation.] The EIR
“protects not only the environment but also informed self-government.’ [Citation.]” (Sierra
Club v. City of Fresno (2018) 6 Cal.5th 502, 511-512, fn. omitted (Sierra Club).)
Thus, “[a]s this court has observed, ‘the overriding purpose of CEQA is to ensure
that agencies regulating activities that may affect the quality of the environment give
primary consideration to preventing environmental damage. [Citation.]’ [Citation.]” (Save
Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th
677, 687.)
B. Standard of Review
“In a CEQA case, the appellate court’s review ‘is the same as the trial court’s: [It]
reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial
review under CEQA is de novo.’ [Citation.]” (Protecting Our Water and Environmental
Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 495 (Protecting Our Water).)
Accordingly, “[t]he reviewing court independently determines whether the record
‘demonstrates any legal error’ by the agency and deferentially considers whether the record
‘contains substantial evidence to support [the agency’s] factual determinations.’ [Citation.]”
(Protecting Our Water, supra, 10 Cal.5th at p. 495.) “ ‘Substantial evidence challenges are
6
resolved much as substantial evidence claims in any other setting: a reviewing court will
resolve reasonable doubts in favor of the administrative decision, and will not set aside an
agency’s determination on the ground that the opposite conclusion would have been equally
or more reasonable. [Citations.]’ ” (Sierra Club, supra, 6 Cal.5th at p. 515.) “If the
agency’s determination ‘involves pure questions of law, we review those questions de
novo.’ [Citation.]” (Protecting Our Water, at p. 495.)
“ ‘Where an EIR is challenged as being legally inadequate, a court presumes a public
agency’s decision to certify the EIR is correct, thereby imposing on a party challenging it
the burden of establishing otherwise.’ [Citation.]” (California Native Plant Society v. City
of Santa Cruz (2009) 177 Cal.App.4th 957, 987 (Native Plant Society II).)
C. Aesthetics
PAC-SJ contends that City violated CEQA by certifying the SEIR although the SEIR
“failed to analyze the potentially significant aesthetic/visual impacts of the proposed new
hotel.” We also understand PAC-SJ to contend that the aesthetics discussion in the initial
study attached as Exhibit A to the SEIR is insufficient to satisfy CEQA.5 We begin our
evaluation of PAC-SJ’s contentions with an overview of CEQA’s requirements for the
analysis of aesthetics impacts.
1. Aesthetic Impact under CEQA
Public Resources Code section 21001, subdivision (b) provides in part that “[t]he
Legislature further finds and declares that it is the policy of the state to: [¶] . . . [¶] Take all
action necessary to provide the people of this state with . . . enjoyment of aesthetic, natural,
scenic, and historic environmental qualities[.]” (Italics added.) Accordingly, it has been
5
PAC-SJ’s opening brief includes a heading that appears to indicate that PAC-SJ is
also contending that the SEIR is inadequate due to failure to discuss the hotel project’s
inconsistency with “city plans.” We need not address this issue since it was not discussed in
the opening brief. “ ‘[E]very brief should contain a legal argument with citation of
authorities on the points made. If none is furnished on a particular point, the court may treat
it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v.
Stanley (1995) 10 Cal.4th 764, 793.)
7
recognized that “aesthetic issues are properly studied under CEQA . . . .” (Preserve Poway
v. City of Poway (2016) 245 Cal.App.4th 560, 577; see also Protect Niles v. City of Fremont
(2018) 25 Cal.App.5th 1129, 1141 (Protect Niles) [CEQA defines “ ‘ “environment” ’ to
include ‘objects of historic or aesthetic significance’ ”].)
Appendix G to the CEQA Guidelines provides an aesthetics checklist that
recommends the lead agency consider whether the proposed project would (1) “Have a
substantial adverse effect on a scenic vista?”; (2) “Substantially damage scenic resources,
including, but not limited to, trees, rock outcroppings, and historic buildings within a state
scenic highway?; (3) “Substantially degrade the existing visual character or quality of public
views of the site and its surroundings? If the project is in an urbanized area, would the
project conflict with applicable zoning and other regulations governing scenic quality?”; and
(4) “Create a new source of substantial light or glare which would adversely affect day or
nighttime views in the area?” (Guidelines, § 15000 et seq.; Ocean View Estates
Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 401.)
“However, a lead agency has the discretion to determine whether to classify an
impact described in an EIR as ‘significant,’ depending on the nature of the area affected.
(Guidelines, § 15064, subd. (b); [citations.]”.) (Eureka Citizens for Responsible
Government v. City of Eureka (2007) 147 Cal. App.4th 357, 375 (Eureka Citizens).)
“ ‘Where the agency determines that a project impact is insignificant, an EIR need only
contain a brief statement addressing the reasons for that conclusion. (CEQA Guidelines,
§ 15128.)’ [Citation.]”.) (Id. at p. 376; see also § 21100, subd. (c) [EIR “shall also contain a
statement briefly indicating the reasons for determining that various effects on the
environment of a project are not significant and consequently have not been discussed in
detail in the environmental impact report.”].) “[A] bare conclusion” that an impact is less
than significant does not constitute an adequate statement of reasons. (Protect the Historic
Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1111 (Amador
Waterways).)
8
2. Standard of Review
The standard of review that applies to an EIR’s conclusions regarding the
environmental impact of a project is substantial evidence. (Banning Ranch Conservancy v.
City of Newport Beach (2012) 211 Cal.App.4th 1209, 1230.) In the CEQA context,
“ ‘[s]ubstantial 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.’ [Citation.] ‘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.]” (Ibid.)
The party challenging the agency’s findings in the EIR must affirmatively show that
there is no substantial evidence in the record to support the agency’s findings. (California
Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 626 (Native
Plant Society).) This requires setting forth all of the evidence material to the agency’s
finding, then showing that the evidence could not reasonably support the finding. (Ibid.)
3. Analysis
PAC-SJ contends that City violated CEQA because the SEIR did not analyze the
aesthetic and visual impact of the hotel project. According to PAC-SJ, the finding of no
significant aesthetics impact in the initial study attached as Exhibit A to the SEIR is
insufficient because it is conclusory. Analysis in the SEIR is required, PAC-SJ argues,
because a fair argument could be made, on the basis of public comments regarding the
negative impact of the hotel project on the visual character of the historic Hotel DeAnza,
that the aesthetic and visual impact of the hotel project is potentially significant.
City responds that CEQA excludes consideration of aesthetics impacts from infill
projects, such as the hotel project, pursuant to section 21099, subdivision (d)(1), which
provides: “(d)(1) Aesthetic and parking impacts of a residential, mixed -use residential, or
9
employment center project on an infill site within a transit priority area shall not be
considered significant impacts on the environment.” Although section 21099, subdivision
(d)(2)(B) further provides that “[f]or the purposes of this subdivision, aesthetic impacts do
not include impacts on historical or cultural resources,” City argues that this provision does
not apply here because PAC-SJ has not argued an aesthetics impact on the DeAnza as an
historical resource.
Alternatively, City argues that the initial study’s finding of no significant aesthetics
impact is supported by substantial evidence, including a review of the Appendix G aesthetic
checklist items. City also points to the SEIR’s discussion of the hotel project’s impacts on
the DeAnza hotel as a historic resource, which was based on two reports by City’s
consultant that concluded the hotel project was compatible with City’s historic design
guidelines for the downtown area.
We need not determine whether the provision of 21099, subdivision (d)(1) exempting
proposed infill projects from consideration of aesthetic impacts applies in this case. The
initial study for the proposed hotel project included City’s conclusion that the aesthetic
impact of the hotel project on the visual character of the city was less than significant for
several reasons. Guided by the Appendix G aesthetics checklist, the initial study determined
that (1) the project site was not located on a state scenic highway; (2) the project “would
contribute to the visual presence of the Downtown area, but would not substantially block
scenic views or modify existing scenic resources”; and (3) the proposed hotel tower would
be similar in scale and appearance to other modern structures in the site vicinity.
Regarding the aesthetics impact on the Hotel DeAnza, the initial study stated: “A
historic analysis completed for the project determined that the massing and aesthetics of the
proposed tower would not adversely change the historic integrity or significance of the
adjacent DeAnza Hotel (refer to Section 3.1 Cultural Resources of the SEIR). Construction
of the proposed hotel would, however, block views of the rooftop Hotel De Anza sign for
persons traveling by car eastbound on Santa Clara Street. Views of the [Hotel DeAnza roof]
10
sign are currently blocked to persons traveling by car in the westbound direction due to
existing buildings and partially to completed [sic] blocked in the eastbound direction at
various points due to the palm trees along the roadway (between SR 87 and the project site)
and State Route (SR) 87, which is elevated near the site. Pedestrian views vary but are most
prominent from the south side of Santa Clara Street. While the project would further limit
viewpoints of the roof sign for all eastbound automobile traffic and some eastbound
pedestrian traffic, it would not substantially change the visual character of the area.”
In determining whether the initial study’s finding that aesthetics impact of the hotel
project was less than significant complies with CEQA, the decision in Eureka Citizens,
supra, 147 Cal.App.4th 357 is instructive. In that case, the initial study applied the
Appendix G aesthetics checklist and determined that the proposed project, a school
playground, would not have an adverse aesthetics impact. (Id. at p. 376.) The Eureka
Citizens court concluded that “the City [of Eureka] determined that the Project’s aesthetic
impacts would be insignificant, and EIR contained, as required, statements addressing the
reasons for that conclusion. (Guidelines, § 15128.) The EIR therefore adequately dealt with
this issue.” (Ibid.)
We reach a similar result in the present case. As noted above, the initial study stated
several reasons for City’s conclusion that the hotel project’s aesthetics impact would be less
than significant, including a discussion of whether the hotel project would have any impact
on the visual character of the DeAnza Hotel and surrounding area. The statement of reasons
was more than “a bare conclusion,” and consequently a more detailed discussion was not
required under CEQA. (See Amador Waterways, supra, 116 Cal.App.4th at p. 1111; CEQA
Guidelines, § 15128; § 21100, subd. (c).)
To the extent that PAC-SJ argues that a statement of reasons in an initial study do not
suffice under CEQA, we disagree. An initial study that includes statements addressing the
agency’s reasons for finding an environmental impact to be less than significant may be
11
incorporated in the EIR, which need not discuss the impact further. (Ocean Street Extension
Neighborhood Assn. v. City of Santa Cruz (2022) 73 Cal.App.5th 985, 1005 (Ocean Street).)
Moreover, PAC-SJ has not met its burden to show that City’s findings in the initial
study were not supported by substantial evidence, since PAC-SJ made no attempt to set
forth all of the evidence material to City’s finding of a less than significant aesthetics impact
or show that the evidence could not reasonably support the findings. (See Native Plant
Society, supra, 172 Cal.App.4th at p. 626.) We observe that City’s statements in the initial
study addressing the visual and aesthetics impact on the DeAnza Hotel were supported by
two reports from Archives & Architecture, including a September 2018 review and a May
2019 supplemental review. The reports were authored by Leslie A.G. Dill, a historical
architect and architectural historian, in collaboration with Franklin Maggi, a historical
architect and preservation planner. Both reports were attached as Exhibit C to the SEIR.
We therefore determine that the discussion of the visual and aesthetics impact of the hotel
project on the Hotel DeAnza and surrounding area was adequate as an informational
document under CEQA. (See Ocean Street, supra, 73 Cal.App.5th at p. 1005.)
PAC-SJ relies on the decisions in Protect Niles, supra, 25 Cal.App.5th 1129, and
Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App.5th 358(Georgetown) for a contrary conclusion. We understand PAC-SJ to argue that the decisions
in Protect Niles and Georgetown support its contention that a fair argument can be made,
based on public comments, that the visual and aesthetic impacts of the hotel project are
potentially significant and therefore a revised EIR analyzing these potential impacts is
required. PAC-SJ’s reliance is misplaced, since both decisions applied the fair argument
standard in the context of a mitigated negative declaration where no EIR had been prepared .
In Protect Niles, the City of Fremont approved a townhome development after
determining that the project would have no significant environmental impacts and adopting
a mitigated negative declaration in lieu of an EIR. (Protect Niles, supra, 25 Cal.App.5th at
p. 1137.) The appellate court applied the fair argument standard to determine whether an
12
EIR is required: “ ‘If there is substantial evidence in the whole record supporting a fair
argument that a project may have a significant nonmitigable effect on the environment, the
lead agency shall prepare an EIR, even though it may also be presented with other
substantial evidence that the project will not have a significant effect. ([§ 21151, subd. (a);
[CEQA Guidelines], § 15064, subd. (f)(1), (2); [citations].)” (Protect Niles, at p. 1139.)
Under this standard, the appellate court concluded that fact-based public comments had
provided substantial evidence supporting “a fair argument that the Project would have
significant adverse aesthetic and traffic impacts,” and therefore preparation of an EIR was
required. (Id. at p. 1153.) The appellate court in Georgetown similarly concluded that “lay
opinions can provide substantial evidence to support a fair argument that a project may have
a significant aesthetic impact on the environment, triggering the need to prepare an
environmental impact report (EIR) pursuant to [CEQA].” (Georgetown, supra, 30
Cal.App.5th at p. 363.)
The fair argument standard applied in Protect Niles, supra, 25 Cal.App.5th 1129 and
Georgetown, supra, 30 Cal.App.5th 358 is not applicable in the present case, where an EIR
has been prepared for the hotel project. As the court noted in Protect Niles, where an EIR
has been prepared, the issue is “whether the city’s finding of no significant environmental
impact after mitigation was supported by substantial evidence, regardless of any substantial
evidence to the contrary; here, where the city relied on [a mitigated negative declaration],
the question before us is whether there was any substantial evidence in the record of a
significant environmental impact, regardless of substantial evidence supporting the city's
finding of no significant impact. ‘[T]his distinction is crucial for purposes of our review.’
[Citation.]” (Protect Niles, at p. 1144.)
For these reasons, we find no merit in PAC-SJ’ contention that City violated CEQA
because the SEIR failed to analyze the potential visual and aesthetic impacts of the proposed
hotel project.
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D. Response to Comments
PAC-SJ contends that City’s responses to several comments in the final SEIR were
inadequate under CEQA. City responds that the trial court properly determined that PAC-
SJ’s claims of inadequate responses to comments are barred by PAC-SJ’s failure to exhaust
its administrative remedies by objecting to the inadequate responses during the January 14,
2020 public hearing on the final SEIR. We will begin our evaluation with an overview of
CEQA’s requirements for the exhaustion of administrative remedies.
1. Exhaustion of Administrative Remedies
As this court has noted, “ ‘ “[e]xhaustion of administrative remedies is a
jurisdictional prerequisite to maintenance of a CEQA action.” [Citation.]’ ” (Friends,
Artists & Neighbors of Elkhorn Slough v. California Coastal Com. (2021) 72 Cal.App.5th
666, 708 (Elkhorn Slough).) The requirement is set forth in section 21177, which provides:
“An action or proceeding shall not be brought pursuant to Section 21167 [commencement of
actions] unless the alleged grounds for noncompliance with this division [§ 21000 et seq.]
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).)
City contends that if PAC-SJ had objected to the adequacy of City’s responses to
comments during the administrative proceedings, City “could have remedied any perceived
deficiencies at the time, before PAC-SJ commenced this litigation.” However, City points
to no authority explicitly creating the requirement it would impose on PAC-SJ to exhaust its
administrative remedies with regard to the adequacy of City’s responses to comments, and
we decline to do so here. (See section 21083.1 [constraining the imposition of procedural
or substantive requirements beyond those explicitly stated in CEQA].) We will therefore
consider the merits of PAC-SJ’s contentions as to the adequacy of the City's responses to
comments on the Draft SEIR.
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2. Requirements for Response to Comments
We begin our evaluation of PAC-SJ’s claims with an overview of CEQA’s
requirements for an agency’s responses to comments. CEQA requires a public review
period of at least 30 days for a draft EIR. (§ 21091, subd. (a).) CEQA further requires that
“ ‘[t]he lead agency shall consider comments it receives on a draft [EIR] if those comments
are received within the public review period.’ (§ 21091, subd. (d)(1).) ‘[T]he lead agency
shall evaluate comments on environmental issues . . . and shall prepare a written response.’
(§ 21091, subd. (d)(2)(A).) The agency’s written response must describe the disposition of
each significant environmental issue raised in the comments. (§ 21091, subd. (d)(2)(B).)”
(King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 879.)
Regarding the adequacy of responses to comments, this court has stated that
“[r]esponses to comments need not be exhaustive; they need only demonstrate a ‘good faith,
reasoned analysis.’ (Guidelines, § 15088, subd. (c);6 [Citation.] ‘ “ ‘[T]he determination of
the sufficiency of the agency’s responses to comments on the draft EIR turns upon the detail
required in the responses. [Citation.] Where a general comment is made, a general response
is sufficient.’ ” ’ [Citation]. Satisfactory responses to comments ‘ “ ‘may be provided by
reference to the EIR itself.’ [Citation.]” (Gilroy Citizens for Responsible Planning v. City
of Gilroy (2006) 140 Cal.App.4th 911, 937 (Gilroy Citizens).) “Agencies generally have
6 Section 15088, subdivision (c) provides: “The written response shall describe the
disposition of significant environmental issues raised (e.g., revisions to the proposed project
to mitigate anticipated impacts or objections). In particular, the major environmental issues
raised when the lead agency’s position is at variance with recommendations and objections
raised in the comments must be addressed in detail giving reasons why specific comments
and suggestions were not accepted. There must be good faith, reasoned analysis in
response. Conclusory statements unsupported by factual information will not suffice. The
level of detail contained in the response, however, may correspond to the level of detail
provided in the comment (i.e., responses to general comments may be general). A general
response may be appropriate when a comment does not contain or specifically refer to
readily available information, or does not explain the relevance of evidence submitted with
the comment.”
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considerable leeway regarding such response.” (Environmental Protection Information
Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 487, fn. 9
(EPIC).)
In the present case, PAC-SJ contends that City’s responses to several comments were
inadequate under CEQA, including responses to comments regarding the proposed valet
parking, City’s design guidelines, and the impact on the DeAnza Hotel. We will address
each category of comment in turn.
Comments on Valet Parking
In comment B.2, the Valley Transportation Authority (VTA) stated its concerns that
the proposed valet parking on Santa Clara Street would be unsafe and was inconsistent with
the concept of public service lanes. City’s response to comment B.2 referred to a local
transportation analysis (LTA) attached to the initial study that concluded the proposed valet
parking was adequate for operational purposes, stated that VTA’s opposition to the valet
parking was acknowledged, and noted that the comment did not result in significant
environmental impacts or mitigation measures not previously analyzed in the draft SEIR or
its appendices.
In comment F.2, a member of the public stated that five valet parking places was
insufficient to manage hotel parking and would result in traffic and safety problems, noting
also that the plan for the presence of dumpsters for waste removal would impact traffic
safety. City responded that an analysis of the five valet parking spaces was included in the
LTA and found to be adequate for hotel operations, and that “[r]egarding the garage service
comments, a condition to restrict truck access to the loading spaces during garbage pick-up
days to provide space for waste bins at the loading dock entrance will be part of the project.”
PAC-SJ argues that City’s responses to comment B.2 and F.2 are inadequate because
the responses are conclusory and did not respond to the questions raised in the comments or
provide an analysis. City maintains that its responses to comments B.2 and F.2 were
sufficient because the comment referred to the LTA that analyzed the operational and safety
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impacts of the valet parking proposal, and because a general response to a general comment
is sufficient. We agree. A response to a comment is adequate where the response refers to a
more extensive discussion in the EIR; here, City’s responses to comments referenced the
LTA’s analysis of the valet parking proposal that is attached to the initial study and included
draft SEIR. No further response was required under CEQA. (See City of Irvine v. County of
Orange (2015) 238 Cal.App.4th 526, 550 [response may refer to parts of the draft EIR that
analyzes the environmental impacts raised by the comment]; Eureka Citizens, supra, 147
Cal.App.4th at p. 378 [same].)
Comments on Design Guidelines
In comment H.6, the commenter stated that an urban design review by Skidmore,
Owings, and Merrill included significant design revisions to the hotel project that were not
addressed. City responded that “[a]n analysis of the project design was completed by a
qualified historic consultant in consultation with City staff and the City concluded that the
proposed design of the building is consistent with the City’s applicable design guidelines
and does not result in a substantial adverse change to the integrity of the De Anza Hotel.
Refer to Response H.20 for more additional responses to materials.” Response H.20 is a
detailed response to another comment regarding the Skidmore, Owings, and Merrill urban
design review that states, among other things, that “[a]fter review of the [Skidmore, Owings,
and Merrill] conclusions and the historic assessment, City staff worked with the applicant
over several months to revise the design of the building to be more consistent with the
City’s Historic Design Guidelines.”
PAC-SJ argues that City’s response to comment H.6 is inadequate because it does not
address specific suggestions to reduce impacts to the DeAnza Hotel and merely references
City’s consultant without discussion. This argument is not convincing, since the California
Supreme Court has instructed that “[w]hen an agency adequately addresses an
environmental issue in response to one commenter, it may refer to the prior response when
addressing other commenters, and a failure to respond to a particular comment is not
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prejudicial error when the issue raised by the comment is adequately addressed elsewhere.
[Citation.]” (EPIC, supra, 44 Cal.4th at p. 487, fn. 9.) Here, City’s detailed response to
comment H.20, which PAC-SJ contends is also inadequate for the same reasons, adequately
addressed commenters’ concerns regarding City’s utilization of the Skidmore, Owings, and
Merrill urban design review in revising the design of the hotel project to be more consistent
with City’s historic design guidelines.
Comment I.25 similarly asserts that the project applicant did not address the revisions
to the hotel project that were suggested in the Skidmore, Owings and Merrill urban design
review. Comment 1.25 concludes, “[C]ity must be sure that the project conforms to its own
design requirements and incorporates the design recommendations from the peer review. In
addition, they must apply their own regulations consistently especially for impacts to
precious and diminishing cultural resources.” City’s response to comment 1.25 states:
“Refer to Response H.20.” Again, City’s response is adequate, because referring to City’s
detailed response to comment H.20 regarding the same design issue is appropriate under
CEQA. (See EPIC, supra, 44 Cal.4th at p. 487, fn. 9.)
Comment H.23 states: “[t]he SEIR states (on page 30) that ‘[t]he detailing meets the
intent, but not the letter, of the guidelines that a new building be “broken down” in scale to
be compatible with nearby historic resources.’ There is no substantiation as to the intent,
and we do not agree that the detailing meets the intent. The [Skidmore, Owings and Merrill]
sketch above shows what we believe is the intent when the guideline uses the term ‘broken
down.’ ” City’s response acknowledges the commenter’s opinion regarding City’s historic
guidelines, and notes that “[t]he professional judgement [sic] of a qualified historic
consultant, as well as the City’s professional staff, evaluat[ed] proposed project plans.”
City’s response is adequate under CEQA, since “ ‘ “[w]here a general comment is made, a
general response is sufficient.” ’ [Citation].” (Gilroy Citizens, supra, 140 Cal.App.4th at
p. 937.)
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PAC-SJ also contends that City’s responses to the comments L.1-L.9 by City’s
Historic Landmarks Commission, which PAC-SJ acknowledges “similarly address ways in
which the project is inconsistent with the Downtown Historic Design Guidelines, Historic
Preservation Ordinance, and fails to follow the Secretary’s Standards to mitigate impacts to
the De Anza” is inadequate. Our review of comments L.1-L.9 shows that the Historic
Landmarks Commission’s comments express disagreement with City that the proposed hotel
project’s height, massing, and materials comply with historic design guidelines. City
responded to comment L.3 by stating in part that “[p]ursuant to the analysis in the Draft
SEIR, the analysis conducted by the City’s historic consultant was completed consistent
with City standards and the findings were confirmed by City staff and the City’s Historic
Preservation Officer. While the commenter may have a different opinion than those
disclosed in the Draft SEIR and request additional redesign to further comply with previous
comments, the professional judgement of a qualified historic consultant evaluating proposed
project plans is considered substantial evidence under CEQA (Guidelines Section 15384).”
City references its response to comment L.3 in responding to several of the L.1-L.9
comments.
In responding to the Historic Landmark Commission’s comments City also
references its response to comment K.1 regarding application of the Secretary of the Interior
Standard for Historic Rehabilitation. The detailed response to comment K.1 concludes that
“the City’s Historic Design Guidelines are modeled after the Secretary of the Interior
Standards and the project was found to be consistent with the City’s guidelines. Hence, in
order to determine the impact of the proposed project to the De Anza Hotel, these guidelines
were utilized to inform the analysis of the seven aspects of historic integrity, as indicated by
the National Register and State of California’s definition of authenticity of a resource. The
historic assessment also determined that the historic integrity of the DeAnza Hotel would
not be impacted by the project.” We find City’s responses to comments L.1-L.9 to be
adequate under CEQA, since “[r]esponses to comments need not be exhaustive; they need
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only demonstrate a ‘good faith, reasoned analysis.’ (Guidelines, § 15088, subd. (c) . . . .)”
(Gilroy Citizens, supra, 140 Cal.App.4th at p. 937.)
Comments Regarding Impact on DeAnza Hotel
Comment H.22 generally states that the draft SEIR’s conclusions are subjective and
there should be more evidence and a “robust” discussion of how conclusions were reached.
Noting that the commenter did not provide any evidence to refute the analysis in the SEIR,
City’s response to comment H.22 also states in part that “[t]he historic consultant and City
planning staff had a variety of plans and renderings on file at the City by which to make
their determination that the proposed structure is consistent with the City’s historic design
guidelines, including the proposed materials. Furthermore, the analysis conducted by the
City’s historic consultant was completed consistent with City standards and the findings
were confirmed by City staff and the City’s Historic Preservation Officer.” We find City’s
response to comment H.22 to be adequate under CEQA, since “[w]hen responding to
comments, lead agencies need only respond to significant environmental issues and do not
need to provide all information requested by reviewers, as long as a good faith effort at full
disclosure is made in the EIR.” (CEQA Guidelines, § 15204, subd. (a).) “A project
opponent or reviewing court can always imagine some additional study or analysis that
might provide helpful information. It is not for them to design the EIR. That further study
. . . might be helpful does not make it necessary.’ ” (Laurel Heights Improvement Assn. v.
Regents of University of California (1989) 47 Cal.3d 376, 415.)
In comment H.35, the commenter asserted that the proposed hotel project will block
views of the DeAnza Hotel and its iconic neon sign, which would not occur if a six-story
building was constructed. City provided a detailed response to comment H.35 summarizing
the aesthetics analysis in the initial study, noting that due to the public concern regarding the
aesthetics of the hotel project, City “chose to include a full analysis of this resource area.”
Comment H.36 similarly states that a six-story building would not obscure the Hotel
DeAnza’s iconic neon sign or shade the DeAnza Hotel. In response to comment H.36, City
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noted that reduced visibility of the DeAnza sign is not considered a significant impact and
refers to City’s response to comment H.14 regarding shading. The response to comment
H.14 states in part: “[t]he western façade and northern end of the De Anza have no such
features which could be impacted by shading from the project and, as such, new shadows
were not identified as an impact to the historic integrity of the building. Full analysis of the
De Anza Hotel is disclosed in Section 3.1 of the Draft SEIR.” City’s responses to
comments H.35 and H.36 are adequate under CEQA since, as we have discussed,
“ ‘[r]esponses to comments need not be exhaustive; they need only demonstrate a ‘good
faith, reasoned analysis.’ (Guidelines, § 15088, subd. (c) . . . .)” (Gilroy Citizens, supra,
140 Cal.App.4th at p. 937.)
Finally, PAC-SJ submitted comments K.1 and K.2 expressing concerns that the hotel
project does not comply with the Secretary of the Interior Standards for Historic
Rehabilitation and, in particular, the standard that a building adjacent to a historic building
should not be much larger than the historic building. As we have discussed, City’s detailed
response to comment K.1 stated that “the City’s Historic Design Guidelines are modeled
after the Secretary of the Interior Standards and the project was found to be consistent with
the City’s guidelines.” In response to comment K.2, City stated in part that “[f]or projects
which do not directly modify, add to, or demolish any portion of a historic structure, the
City’s Historic Preservation Ordinance (City Code Chapter 13.48) does not require an
analysis pursuant to the Secretary of the Interior Standards.” Again, we find City’s
responses to comments K.1 and K.2 to be adequate under CEQA, since “[r]esponses to
comments need not be exhaustive; they need only demonstrate a ‘good faith, reasoned
analysis.’ (Guidelines, § 15088, subd. (c) . . . .)” (Gilroy Citizens, supra, 140 Cal.App.4th
at p. 937.)
For these reasons, we find no merit in PAC-SJ’s contentions that City’s responses to
certain comments were inadequate under CEQA.
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E. Alternatives Analysis
PAC-SJ contends that the EIR’s analysis of alternatives is inadequate because project
objectives allow a reduced-size alternative, and lower profits do not render an alternative
infeasible. We will begin our evaluation of PAC-SJ’s contentions with an overview of
CEQA’s requirements for the alternatives analysis in an EIR.
The California Supreme Court has instructed that “[t]he EIR must set forth not only
environmental impacts and mitigation measures to be reviewed and considered by state and
local agencies, but also project alternatives [citations]—including a ‘no project’ alternative.
([Guidelines,] § 15126.6.)” (Friends of the Eel River v. North Coast Railroad
Authority (2017) 3 Cal.5th 677, 713, italics omitted.)
Our Supreme Court has also stated the specific requirements for the alternatives
analysis in an EIR: “The CEQA Guidelines state that an EIR must ‘describe a range of
reasonable alternatives to the project . . . which would feasibly attain most of the basic
objectives of the project but would avoid or substantially lessen any of the significant effects
of the project . . . .’ ([Guidelines,] § 15126.6, subd. (a).) An EIR need not consider every
conceivable alternative to a project or alternatives that are infeasible. [Citations.]” (In re
Bay-Delta etc. (2008) 43 Cal.4th 1143, 1163 (Bay-Delta).)
Moreover, as stated in the Guidelines, “ ‘[t]here is no ironclad rule governing the
nature or scope of the alternatives to be discussed other than the rule of reason.’ ”
(Guidelines, § 15126.6.) “The rule of reason ‘requires the EIR to set forth only those
alternatives necessary to permit a reasoned choice’ and to ‘examine in detail only the ones
that the lead agency determines could feasibly attain most of the basic objectives of the
project.’ (Id., § 15126.6, subd. (f).)” (Bay-Delta, supra, 43 Cal.4th at p. 1163.) “[W]hether
to reject or approve any of the alternatives is a decision only for the decisionmakers.
[Citation.] They may reject alternatives that are undesirable from a policy standpoint
[citations] as well as alternatives that fail to meet project objectives [citation].” (Ocean
Street, supra, 73 Cal.App.5th at p. 1016.)
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In the present case, the SEIR identified six project alternatives, including (1) a
location alternative; (2) a building materials alternative; (3) a site layout alternative; (4) a
land use alternative-office building; (5) a no-project alternative; and (6) a reduced height
and massing alternative. The SEIR concluded that the reduced height and massing
alternative of seven to eight stories “would not allow for new high-density development to
be constructed on the project site consistent with the General Plan but would result in a mid-
rise structure that would not be the highest and best use of the site based on the General Plan
land use designation. This alternative meets some of the objectives of the proposed project
and is generally consistent with the General Plan policies.”
PAC-SJ makes conclusory assertions that the SEIR’s analysis of alternatives is
inadequate because a reduced size alternative is feasible and would be allowed under the
project objectives, and because reduced profits do not render an alternative infeasible.
However, “conclusory assertions of error are ineffective in raising issues on appeal.
[Citation.]” (Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 523.)
Moreover, we reiterate “ ‘[w]here an EIR is challenged as being legally inadequate, a court
presumes a public agency’s decision to certify the EIR is correct, thereby imposing on a
party challenging it the burden of establishing otherwise.’ [Citation.]” (Native Plant
Society II, supra, 177 Cal.App.4th at p. 987.) Here, PAC-SJ has not met that burden with
regard to its contention that the SEIR’s alternatives analysis is inadequate. PAC-SJ merely
states conclusory assertions regarding a reduced-size alternative, without citations to the
record. This deficiency is fatal to PAC-SJ’s claims.
“An appellant must ‘[s]upport any reference to a matter in the record by a citation to
the volume and page number of the record where the matter appears.’ (Cal. Rules of Court,
rule 8.204(a)(1)(C).) ‘ “The appellate court is not required to search the record on its own
seeking error.” [Citation.]’ ” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36
Cal.App.5th 142, 156.) Where a party fails to support an argument with the necessary
citations to the record, the argument will be deemed to be waived. (Ibid.) Here, PAC-SJ
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has failed to include any citations to the record showing that City determined a reduced size
alternative was infeasible due to lower profits. Our review of the record shows that the City
Council did not choose the reduced height and massing alternative, although it was found to
be feasible, because that alternative did not allow for high-density development on the
project site consistent with City’s general plan, and would not be the highest and best use of
the site.
Accordingly, we determine that PAC-SJ’s contention that the SEIR’s alternatives
analysis is inadequate under CEQA lacks merit.
IV. DISPOSITION
The December 3, 2020 judgment is affirmed.
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_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Grover, J.
______________________________________
Lie, J.
Preservation Action Council of San Jose v. City of San Jose.
H048953