Westwood Neighbors etc. v. City of Los Angeles CA2/2 ( 2024 )

Filed 7/19/24 Westwood Neighbors etc. v. City of Los Angeles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
WESTWOOD NEIGHBORS FOR B329768
SENSIBLE GROWTH,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.
22STCP00646)
v.
CITY OF LOS ANGELES,
Defendant and Respondent;
BELMONT VILLAGE L.P. et al.,
Real Parties in Interest and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mary H. Strobel, Judge. Affirmed.
Corin L. Kahn for Plaintiff and Appellant.
Hydee Feldstein Soto, City Attorney, Amy Brothers,
Kathryn C. Phelan, Clarissa Padilla, Deputy City Attorneys; Best
Best & Krieger, Trevor L. Rusin and Ali Tehrani for Defendant
and Respondent.
Armbruster Goldsmith & Delvac and Damon P. Mamalakis
for Real Parties in Interest and Respondents.
___________________________________________
The City of Los Angeles (City) approved construction on
Wilshire Boulevard in Westwood, where Belmont Village, L.P.
(Belmont) plans to build an eldercare facility and Westwood
Presbyterian Church (Church) plans to build a childcare facility
(the Project).1 Appellant Westwood Neighbors for Sensible
Growth (WNSG) opposes the Project. The trial court denied
WNSG’s petition to set aside City’s approval of the Project. (Code
Civ. Proc., § 1094.5.) WNSG challenges City’s deviation from
zoning laws when it approved the Project.
City need not strictly apply land use regulations if it finds
that “practical difficulties or unnecessary hardships” would
prevent construction of an eldercare facility. (Los Angeles Mun.
Code, § 14.3.1 (section 14.3.1). Substantial evidence supports
City’s decision, which cited expert reports showing that financial
hardship and site-specific characteristics justify deviations from
land use regulations. We affirm.
FACTS AND PROCEDURAL HISTORY
Nature of the Project
Church owns a 1.62-acre property in the Westwood
Corridor containing a church, administrative office, fellowship
hall, preschool, and parking lot; the improvements cover
1 Belmont and Church are the real parties in interest
(RPI’s) in this litigation.
2
95 percent of the site. RPI’s intend to preserve the church and
demolish the other improvements to build the Project. WNSG
writes that Church’s property is currently “underutilized.”
At the north end of the site, on Wilshire Boulevard,
Belmont plans to construct a 12-story eldercare facility with 53
independent living units; 77 assisted living rooms; 46 Alzheimer
or dementia care rooms; and amenities for residents. By offering
increasing levels of care, the facility will allow residents to age in
place. It will have a 99-year lease from Church. The eldercare
facility will have a fellowship hall fronting Wilshire for Church’s
use. A parking lot now covers the area slated for the eldercare
facility.
At the south end of the site, near single family dwellings,
Church plans to construct a two-story building with a preschool;
administrative space; and multipurpose area. Preschool
enrollment will increase from its current 80 children to a
maximum of 105. There will be surface and subterranean
parking, and 70 spaces for bicycles.
RPI’s Apply for Development Permits
The irregularly-shaped Project site is zoned R-5 (high
density with a six-story height limit) and R-1 (single family
dwelling). RPI’s submitted applications to City in 2018, seeking
zoning deviations. Deviations include reduced yard setbacks;
increased building height and floor space limits; construction of a
preschool and more than 50 dwelling units; and parking that
varies from the City’s specific plan. RPI’s applied for
environmental approval under the California Environmental
Quality Act (CEQA).
Church’s property committee co-chair told City that the
Project will endow its work, which includes programs to assist
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unhoused persons. Other developers wanted to build luxury
condominiums on the site; Church chose Belmont because it has
a presence in the community, serves seniors, and will have the
least impact on traffic.
Administrative Approvals
Over WNSG’s opposition, City’s zoning office allowed the
Project’s deviations from zoning laws and approved permits for
the Project in July 2021—an Eldercare Permit under section
14.3.1, and a Conditional Use Permit for the preschool. WNSG
appealed to the City Planning Commission (CPC). CPC heard
testimony from WNSG and others. It recommended denial of the
appeal in November 2021 and issued letters of determination in
December 2021.
The permits allow zoning deviations that increase
maximum building height from six to 12 stories and width from
75 feet to 100 feet for the eldercare facility; increase building
height from 28 to 33 feet for the childcare facility; reduce parking
requirements; reduce yard setbacks to zero; and increase interior
common open space. CPC wrote that City “has historically
facilitated the construction of numerous residential high-rise
buildings of twenty stories or more along this portion of the
Wilshire corridor,” including the 24-story “Californian”
condominium tower next to the Project site.2
WNSG appealed to the City Council. The City Council
adopted the CPC recommendation. In approving the Project, City
found a significant need for an aging-in-place facility, given
increasing demand for senior housing. City found that the
2 A height comparison study shows the eldercare facility
will be one of the lower structures on that part of Wilshire.
4
Project falls within the scope of its eldercare ordinance, which
facilitates applications for all types of senior housing—
independent living, assisted living, skilled nursing, and dementia
care. (§ 14.3.1.)
Environmental Assessment
No environmental impact report (EIR) was prepared for the
Project. Instead, City found that the Project qualifies as a
“transit priority project” (TPP). Under state law, if a project is a
TPP, an agency may prepare a Sustainable Communities
Environmental Assessment (SCEA) in lieu of an EIR.3
WNSG Petitions for a Writ of Mandate
WNSG is a nonprofit corporation formed in 2018 by local
residents. In February 2022, WNSG asked the trial court to set
aside City’s approval of the Project, challenging the deviations
from zoning and environmental laws. WNSG alleged that RPI’s
did not present evidence of hardship or difficulty if they comply
with land use regulations; or that the Project will not cause an
adverse impact on street access or circulation in the
neighborhood; or that the Project’s location, size, height, and
operations are compatible with adjacent properties, the
neighborhood, or public health, safety and welfare. WNSG
claimed that City’s findings are unsupported by substantial
evidence, violate state and local law, and that City’s approval of
the Project was arbitrary and capricious.
The Trial Court’s Ruling
The court found that City’s detailed findings support its
determination that strict application of land use regulations on
3 The TPP finding and SCEA are the focus of a related
appeal, Zinderman v. City of Los Angeles et al., B329765.
5
the Project would result in practical difficulties and unnecessary
hardships. The court also rejected WNSG’s CEQA claim. It
denied WNSG’s petition and entered judgment for City and RPI’s.
DISCUSSION
1. Appeal and Review
Appeal is taken from the judgment denying WNSG’s
petition for a writ of mandate. (Code Civ. Proc., § 1094.5.)
Agency decisions may be challenged for an abuse of discretion.
(Id., subd. (b).) “[A]buse of discretion is established if the court
determines that the findings are not supported by substantial
evidence in the light of the whole record.” (Id., subd. (c); Topanga
Assn. for a Scenic Community v. County of Los Angeles (1974) 11
Cal.3d 506, 514 (Topanga) [administrative record must support
the agency’s findings and decision]; Walnut Acres Neighborhood
Assn. v. City of Los Angeles (2015) 235 Cal.App.4th 1303, 1312–
1313 (Walnut).)
We “must resolve reasonable doubts in favor of the
administrative findings and decision” (Topanga, supra, 11 Cal.3d
at p. 514), viewing the evidence “in the light most favorable to the
agency’s findings, drawing all inferences in support of those
findings.” (Akella v. Regents of University of California (2021) 61
Cal.App.5th 801, 814.) City’s findings “ ‘ “ ‘ “come before us ‘with
a strong presumption as to their correctness and
regularity.’ ” ’ ” ’ ” (Schreiber v. City of Los Angeles (2021) 69
Cal.App.5th 549, 558.) “ ‘We may not substitute our judgment for
the City’s and reverse because we believe a contrary finding
would have been equally or more reasonable.’ ” (Walnut, supra,
235 Cal.App.4th at pp. 1312–1313.)
An agency “ ‘must set forth findings to bridge the analytic
gap between the raw evidence and ultimate decision or order,’ ”
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which “do not need to be extensive or detailed. ‘ “[W]here
reference to the administrative record informs the parties and
reviewing courts of the theory upon which an agency has arrived
at its ultimate finding and decision it has long been recognized
that the decision should be upheld if the agency ‘in truth found
those facts which as a matter of law are essential to sustain its
. . . [decision].’ ” ’ ” (Environmental Protection Information Center
v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th
459, 516–517 (EPIC).) “We review the record de novo and are not
bound by the trial court’s conclusions.” (Id. at p. 479.)
2. Exhaustion of Remedies
RPI’s argue that WNSG did not exhaust its remedies by
raising all claims or legal arguments at administrative hearings.
“Judicial review in an administrative mandamus action [under]
Code of Civil Procedure section 1094.5 is limited to issues raised
in the proceedings before the administrative agency.” (Dobos v.
Voluntary Plan Administrators, Inc. (2008) 166 Cal.App.4th 678,
688.) “[T]he exhaustion of remedies doctrine applies equally to
questions of law and fact.” (Robinson v. Department of Fair
Employment & Housing (1987) 192 Cal.App.3d 1414, 1417.)
“ ‘It was never contemplated that a party to an
administrative hearing should withhold any defense . . . or make
only a perfunctory or “skeleton” showing in the hearing and
thereafter obtain an unlimited trial de novo, on expanded issues,
in the reviewing court.’ ” (City of Walnut Creek v. County of
Contra Costa (1980) 101 Cal.App.3d 1012, 1020; Pegues v. Civil
Service Com. (1998) 67 Cal.App.4th 95, 104.) Courts cannot
grant relief “based on a legal theory never presented during the
administrative proceedings.” (NBS Imaging Systems, Inc. v.
State Bd. of Control (1997) 60 Cal.App.4th 328, 337.)
7
Issues WNSG raises here for the first time are the need for
a property interest to obtain an eldercare permit; Belmont’s lack
of a property interest in the Project site; Church’s failure to show
practical difficulty or financial hardship to support the eldercare
permit; City’s consideration of financial hardship; the significance
of Belmont’s role as developer, owner, and operator; the need to
“narrowly construe” the grant of an eldercare permit; and the
need to judicially interpret City’s legislative intent.
After WNSG failed to file a reply brief, we offered it an
opportunity to show where, in the 20,431-page administrative
record, it raised the factual or legal issues listed above; we
warned WNSG that failure to reply would be deemed a
concession that the issues were not preserved. WNSG did not
reply, giving no answer to respondents’ claim of waiver. As a
result, we cannot act in excess of our jurisdiction by reaching
these issues for the first time on appeal. (Robinson v.
Department of Fair Employment & Housing, supra, 192
Cal.App.3d at p. 1416.)
3. Requirements of Section 14.3.1
City streamlined development of senior housing in 2006, to
“create a single process for approvals and facilitate the processing
of applications [for] Eldercare Facilities. These facilities provide
much needed services and housing for the growing senior
population of the City of Los Angeles.” (§ 14.3.1.A.) The
ordinance allows City to approve eldercare facilities that do “not
meet the use, area, or height provisions” of a particular zone.
(§ 14.3.1.B.)
City cannot approve an eldercare facility unless the zoning
administrator “find[s] that the strict application of the land use
regulations on the subject property would result in practical
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difficulties or unnecessary hardships inconsistent with the
general purpose and intent of the zoning regulations.”
(§ 14.3.1.E.) The zoning administrator must find that the project
provides services to the elderly such as housing, medical services,
social services, or long term care to meet citywide demand; does
not have an adverse impact on neighboring properties, street
access and circulation; is compatible with the scale and character
of adjacent properties; and substantially conforms with the
purposes, intent and provisions of City’s general plan.
(§ 14.3.1.E.1–5.)4
If City makes a negative finding as to any part of section
14.3.1.E, it cannot approve an eldercare facility. (Levi Family
Partnership, L.P. v. City of Los Angeles (2015) 241 Cal.App.4th
123, 134.) Here, City made no negative findings. On appeal,
WNSG challenges only the finding that strict application of the
land use regulations on the Project would result in practical
difficulties or unnecessary hardships.
4. Substantial Evidence Supports City’s Findings
City found that the local senior population is increasing.
Residents over age 75 increased at an average of 410 people per
year from 2010–2020; this was expected to increase to 1,200
people per year from 2020–2025. The area has a shortage of
senior housing, with a total of only 2,218 units available. By
2030, 100,000 dementia patients are expected to live in Los
Angeles. Eldercare facility growth was “stagnant,” with only 285
units added in the last ten years.
4 We are using the version of section 14.3.1 in effect when
RPI’s applied for a permit; the ordinance was later amended.
9
An eldercare facility cannot be approved unless “strict
application of the land use regulations on the subject property
would result in practical difficulties or unnecessary hardships
inconsistent with the general purpose and intent of the zoning
regulations.” (§ 14.3.1.E.) City concluded that deviations from
height, width, setback, and other regulations are justified to meet
citywide needs for living accommodations for the elderly, which
cannot be achieved within local zoning laws. It noted, “An
Eldercare Facility has many specific requirements and operating
elements that are not shared with standard multifamily
developments and contribute to practical difficulties or
unnecessary hardships.”
As described below, City’s findings identify pertinent
evidence of financial hardship and special features of the Project.
Coupled with evidence of increasing numbers of senior citizens
and its shortfall of senior housing, the findings support City’s
decision to approve the Project. City’s findings are based on
detailed, credible reports in the record.5 (EPIC, supra, 44 Cal.4th
at pp. 516–517.) WNSG cannot show that City’s action “was
arbitrary, capricious, in excess of its jurisdiction, entirely lacking
in evidentiary support, or without reasonable or rational basis as
a matter of law.” (San Franciscans Upholding the Downtown
5 City relied upon expert reports, including a Financial
Feasibility Analysis (FFA) and market feasibility analysis from
RCLCO Real Estate Advisors; a landscape architect’s report; a
shade and shadow study; an air quality and greenhouse gas
study; a history resource report; a geology and soils report; an
environmental site assessment; a water resources technical
report; a utilities memorandum; a noise and vibration report;
transportation reports; public service analyses; and a tribal
cultural report.
10
Plan v. City & County of San Francisco (2002) 102 Cal.App.4th
656, 673–674.)
a. Financial Hardship
The Project FFA states, “Without the requested building
height and zoning deviations, the project could not be built.
Therefore, the requests are not designed merely to increase
profitability or enhance returns — but instead are essential to
enable the construction and viability of an eldercare facility.”
“[F]inancial hardship may be sufficient for purposes of obtaining
a permit under section 14.3.1. to show unnecessary hardship.”
(Walnut, supra, 235 Cal.App.4th at p. 1315.)6
City cited the FFA in approving the Project. It found that
the FFA analysis of various development scenarios “adequately
demonstrates . . . that the development alternatives for a by-right
eldercare facility is not viable since the strict application of the
land use regulations on the subject property would result in
practical difficulties or unnecessary hardships inconsistent with
. . . the City’s objective to promote and facilitate needed housing
and services for the elderly.”
WNSG claims that the FFA is based on “assumptions” that
lack “supporting facts” and are “conjecture.” The claim is
incorrect. Conclusions in the FFA are supported by factual detail
describing site constraints, rentable area, project development,
and operational costs. This, in turn, is supported by exhibits.
As shown in the FFA, eldercare facilities require oversized
corridors and elevators to accommodate wheelchairs, walkers,
and gurneys, as well as administrative space and public rest
6 WNSG’s trial brief stated, “Financial hardship may be
sufficient for purposes of obtaining a permit under LAMC
§14.3.1,” barring its contrary argument on appeal.
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rooms. For residents who cannot live alone or travel into town,
the facility provides lodging and amenities: dining areas,
kitchens, recreation rooms, an indoor pool, a movie room,
lounges, a salon, and laundry and housekeeping services. Out of
176 units, 123 of them (70 percent) are dependent on food service.
Staff is required for resident care and activities, food service,
housekeeping, transport, and administration.
WNSG cites evidence showing that of the facility’s 176,580
total square feet, only 104,220 square feet is housing—for
independent living, assisted living, and memory care. This
evidence supports RPI’s, because it demonstrates how onerous it
is to build housing for seniors when much of the building needed
to support them is not rentable space. WNSG writes that this
kind of eldercare—which provides “wellness via socialization,”
not just warehouse conditions for the elderly—is “important” for
families and the community at large.
As City found, “Without providing these centralized
services, which increase the non-rentable floor area of the
Eldercare Facility, a hardship would occur as . . . many of the
facility’s residents require assistance with normal living
activities and cannot live independently.” It concluded,
“[W]ithout the proposed residential density . . . the facility cannot
operate, nor achieve financial stability when considering staff,
medical care, equipment, food, and other costs. Eldercare
projects require substantial support services and common areas
to provide a healthy environment for a senior population to age in
place with dignity.” The evidence supporting this conclusion is
legally sufficient.
12
b. Special Features Hardship
City determined that Project site features create a
hardship: It is irregular—180 feet wide in its northern section
and 88 feet wide farther south. Its odd shape and Gothic Revival
church hamper development. The site has split zoning: The
northern section is zoned for a six-story eldercare facility “by
right,” but the southern portion only allows homes. The record
shows that Belmont must build alongside Church’s sanctuary,
which covers a large part of the R-5 lot, and construct parking for
Church and the eldercare facility on land zoned R-1.
Given the constraints, City found that the site’s “unique lot
arrangement . . . is not common among other parcels subject to
the same Specific Plan regulations.” This “makes strict
compliance with building height and width, setbacks, open space,
and location, utilization, and access between accessory and main
buildings and uses practically difficult or unnecessarily hard.”
City’s findings are not arbitrary, capricious, or unreasonable.
Another hardship is a street that dead ends at the site. As
a result, the Project requires a driveway connected to Wilshire
Boulevard to allow emergency access—“space that could have
potentially otherwise been utilized for a lower scale eldercare
building, resulting in a taller eldercare structure.” This supports
City’s hardship finding.
c. City Was Not Required to Accept WNSG’s Report
WNSG submitted a report from The Concord Group (TCG)
claiming the Project is financially feasible if built within existing
limitations, i.e., a six-story eldercare facility. TCG cited other
projects in Southern California for its conclusion.
RCLCO, the company that created the FFA, replied that
the costs it cited are specific to this site, which requires
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preserving Church’s sanctuary and building subterranean
parking in the narrow part of the site for Church members and
the eldercare facility. Other eldercare facilities did not face
similar strictures. Moreover, TCG wrongly compared the cost of
constructing a wood-frame building to that of an eldercare facility
requiring costly, noncombustible concrete or steel construction to
protect dementia and non-ambulatory residents.
Faced with two reports, City was entitled to accept the FFA
submitted by RPI’s. As a CPC member observed during the
November 2021 public meeting, TCG “uses general assumptions
and not specific data concerning this site, which is very important
in order to determine feasibility. We’re not talking about
something that’s being built 30 miles away.”
“When the evidence on an issue conflicts, the
decisionmaker is ‘permitted to give more weight to some of the
evidence and to favor the opinions and estimates of some of the
experts over the others.’ ” (Association of Irritated Residents v.
County of Madera (2003) 107 Cal.App.4th 1383, 1397.) Courts do
not reweigh evidence, and may reverse “ ‘only if, based on the
evidence before the agency, a reasonable person could not reach
the conclusion reached by the agency.’ ” (Sierra Club v.
California Coastal Com. (1993) 12 Cal.App.4th 602, 610.) WNSG
has not shown that no reasonable person could rely on the FFA.
The TCG report did not refute the FFA’s feasibility analysis for
this site, but only suggested that projects elsewhere in Los
Angeles were done differently. We cannot substitute our
judgment for City’s. (Walnut, supra, 235 Cal.App.4th at pp.
1312–1313.)
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d. The Walnut Case is Distinguishable
In Walnut, City approved a 60-room eldercare facility, in a
neighborhood of single-family homes. (Walnut, supra, 235
Cal.App.4th at p. 1308.) City cited the applicant’s opinion that it
would not be feasible to limit the facility to 16 rooms to conform
to zoning laws. (Id. at p. 1309.) The trial court overturned City’s
approval, finding no evidence of unnecessary hardship or citywide
demand for senior housing, only that the applicant would have
“reduced profits.” (Id. at p. 1312.)
The court agreed that evidence of unnecessary hardship
was absent. “There was no evidence that a facility with 16 rooms
could not be profitable,” and some “apparently include small
homes with four to 10 beds”; nothing showed profit was so low as
to amount to unnecessary hardship. (Walnut, supra, 235
Cal.App.4th at p. 1315.) The determining factor was, “No report
presented either by appellants or by City staff documented the
consequence of limiting the development to 16 rooms.” (Ibid.)
The applicant presented no evidence that “the property had
special features” and its “only stated basis for an unnecessary
hardship” was the need to enhance profit. (Id. at p. 1316.) The
court wrote, however, that the administrative record “documents
the increasing senior population” and citywide demand for more
eldercare facilities. (Ibid.)
As in Walnut, the record in this case documents City’s
growing senior population and need for housing. Unlike Walnut,
the FFA demonstrated the consequences of limiting the Project,
and City identified “special features” such as the church on the
property and irregular lot shape, justifying deviations from local
regulations. In particular, the FFA looked at various scenarios
and concluded that without deviations, “the project could not be
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built.” In Walnut, “no report” documented any consequence of
limiting facility size. Here, by contrast, the consequence of
limiting size would be no eldercare facility, exacerbating City’s
growing shortage of senior housing. Also, Belmont’s facility is
among skyscrapers on Wilshire Boulevard, unlike the single-
family homes in Walnut, allowing greater conformity with the
neighborhood.
DISPOSITION
The judgment is affirmed. Respondent City of Los Angeles
and real parties in interest Belmont Village L.P. and Westwood
Presbyterian Church are entitled to recover their costs on appeal
from appellant.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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