West Adams Heritage Assn. v. City of Los Angeles ( 2024 )

Filed 10/31/24; On remand
CERTIFIED FOR PARTIAL PUBLICATION†
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
WEST ADAMS HERITAGE B319121
ASSOCIATION et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. 20STCP00916)
v.
CITY OF LOS ANGELES,
Defendant and Respondent;
ROBERT CHAMPION et al.,
Real Parties in Interest and
Respondents.
†Pursuant to California Rules of Court, rules 8.1105(b)
and 8.1110, this opinion is certified for publication, with the
exception of parts F, G, and H of the Discussion.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kevin Clement Brazile, Judge. Reversed
and remanded with instructions.
Chatten-Brown, Carstens & Minteer, Carstens, Black &
Minteer, Douglas P. Carstens, Amy Minteer, Michelle N. Black
and Sunjana Supekar for Plaintiffs and Appellants.
Hydee Feldstein Soto, City Attorney, John W. Heath and
Terry P. Kaufmann Macias, Assistant City Attorneys, Valerie L.
Flores, Chief Deputy City Attorney, Parissh A. Knox, Deputy City
Attorney; Meyers Nave, Amrit S. Kulkarni, Shaye Diveley and
Mina Arasteh for Defendant and Respondent.
DLA Piper, A. Catherine Norian, Kyndra Joy Casper and
Andrew Brady for Real Parties in Interest and Respondents.
____________________________
This case is before us on transfer from the Supreme Court
with instructions to vacate our decision and reconsider the cause
in light of Assembly Bill No. 1307 (Stats. 2023, ch. 160, § 1) and
Make UC A Good Neighbor v. Regents of University of California
(Resources for Community Development) (2024) 16 Cal.5th 43(Make UC II).
West Adams Heritage Association and Adams Severance
Coalition (collectively, appellants) appeal from the denial of a
writ of mandate. Appellants sought to set aside a determination
by the City of Los Angeles (the City)1 that a proposed residential
1 The respondents’ briefing in this matter was filed jointly
by the City of Los Angeles and real parties in interest Robert
Champion, Champion Real Estate Company, and 806 West
Adams Property, LLC. We refer to the City and real parties
collectively as “respondents.”
2
housing development (the project) near the University of
Southern California (USC) was exempt from environmental
review under the California Environmental Quality Act
(Pub. Resources Code, § 21000 et seq.; CEQA).
The City found the project was subject to a Class 32
exemption for urban in-fill developments. Appellants argue this
finding was an abuse of discretion because the City failed to find
the project was consistent with the applicable redevelopment
plan for the project area; the City relied on mitigation measures
to conclude residents congregating and listening to music on the
project’s rooftop decks would not cause significant noise impacts;
and the record fails to show the project would not have significant
adverse impacts on traffic safety.
Appellants further argue several exceptions to the Class 32
exemption apply, because the project would adversely impact
nearby historical resources, the rooftop decks constitute an
unusual circumstance that will have a significant effect on the
environment, and the cumulative environmental impact of the
project and similar projects is significant.
The trial court rejected all of appellants’ challenges to the
project and denied their writ petition. Our original decision
reversed the trial court, holding the City improperly relied on
mitigation measures when concluding the project’s rooftop decks
would not cause significant noise impacts. We agreed with the
trial court, however, that appellants had failed to demonstrate
the City abused its discretion in concluding the project will not
have significant impacts on traffic or historical resources, either
by itself or cumulatively with other similar projects. We did not
reach appellants’ arguments regarding redevelopment plan
consistency or the unusual circumstance exception.
3
Assembly Bill No. 1307 enacted Public Resources Code
section 21085, which provides that when evaluating “residential
projects” under CEQA, “the effects of noise generated by project
occupants and their guests on human beings is not a significant
effect on the environment.” Make UC II applied that section to
reverse a lower court holding that an environmental impact
report for a student housing project and development plan was
deficient for failure to consider the environmental impact of noise
generated by student residents. (Make UC II, supra, 16 Cal.5th
at pp. 48–49.)
Applying these new authorities, we hold the noise concerns
advanced by appellants do not constitute a significant
environmental effect impeding application of the Class 32
exemption. Appellants’ invocation of the unusual-circumstance
exception similarly is premised on noise from the rooftop decks,
and Public Resources Code section 21085 and Make UC II defeat
that challenge as well.
Because occupant noise no longer is a reason to reject the
Class 32 exemption, we reach appellants’ alternative contention
that the City has failed to assess whether the project is consistent
with the applicable redevelopment plan. A project is entitled to a
Class 32 exemption only if it is consistent with the applicable
zoning regulations. Appellants argue the redevelopment plan
provides the zoning regulations for the project at issue here.
Make UC II counsels we apply current law in this writ
proceeding. Under Los Angeles Municipal Code (LAMC) section
11.5.14, which was enacted in 2019 after the City granted the
Class 32 exemption at issue in this case, the redevelopment plan
supersedes any conflicting provisions of the generally applicable
zoning ordinance. LAMC section 11.5.14 thus effectively
4
incorporates the redevelopment plan into the zoning ordinance to
the extent the plan and the ordinance conflict. The City therefore
cannot grant a Class 32 exemption without first finding the
project is consistent not only with the generally applicable zoning
ordinance, but also with the redevelopment plan.
The City has yet to determine whether the project is
consistent with the redevelopment plan. Appellants therefore are
entitled to a writ setting aside the grant of the Class 32
exemption pending that determination, which the City has
represented it must do anyhow to approve a building permit for
the project. We reverse the trial court and remand solely for the
purpose of the City conducting that analysis.
Appellants further ask us to hold the project is ineligible for
a Class 32 exemption because the City calculated the project’s
allowable density and density bonus based on the generally
applicable zoning ordinance rather than the redevelopment plan,
which is more restrictive. Respondents contend the City correctly
concluded the zoning ordinance, not the redevelopment plan, was
the controlling land use provision for purposes of calculating
density and the density bonus.
We agree with respondents. Under the current version of
the state density bonus law, the City must apply the bonus to the
greatest maximum residential density allowed under the City’s
general plan, specific plan, or zoning ordinance at the time the
developer applies for the density bonus. Although we conclude
LAMC section 11.5.14 incorporates the redevelopment plan into
the zoning ordinance, that provision was not in effect when
respondent developers applied for the density bonus in this case.
Under state law, then, the City’s zoning ordinance, which
provides a higher maximum allowable density than the
5
redevelopment plan, is the applicable zoning for purposes of the
density bonus. The fact the project’s density bonus is
inconsistent with the redevelopment plan is thus not grounds to
deny a Class 32 exemption. We further conclude the state
density bonus law preempts the redevelopment plan to the extent
the plan imposes additional requirements before the City can
grant a density bonus.
We also reject appellants’ argument, raised in their
supplemental brief following transfer from the Supreme Court,
that respondents’ representations concerning the subject property
in a separate lawsuit have mooted this appeal.
Assembly Bill No. 1307 or Make UC II do not affect our
holdings in our original opinion rejecting appellants’ arguments
concerning traffic, historical resources, and cumulative impact.
The parties do not contend otherwise. In the unpublished section
of this opinion, we reiterate those holdings.
BACKGROUND
We provide here general background facts. We provide
additional relevant background in each issue’s respective section
of our Discussion, post.
The project site is a 2.8 acre lot on the southeast corner of
West Adams Boulevard and Severance Street, less than one mile
from the USC campus. At the time of the City’s approvals, the
project site was occupied by a parking lot and a two-story
building used by USC as an office, childcare, and classroom
facility. The site is zoned RD1.5-1 with a Low Medium II
Residential land use designation under the South Los Angeles
Community Plan.
As described in the City’s notice granting the Class 32
CEQA exemption, “Adjacent land uses include a four-story
6
residential building to the west across Severance Street, a three-
story residential building to the north across Adams Boulevard, a
two-story commercial building on the adjacent property to the
east, and two and one-story residential and educational buildings
to the south owned by [USC].”
The proposed project would demolish the existing building
and parking lot and replace them with a residential apartment
complex consisting of seven buildings. Six of the buildings would
be three-story buildings atop a single-level podium parking
structure, for a total of four stories. Combined, the six buildings
would contain 100 five-bedroom apartments and 2 three-bedroom
apartments for a total of 102 units.2 Five of the units would be
restricted affordable units for very low income households. The
seventh building would be a four-story clubhouse providing “a
variety of resident-serving amenities.”
The project would include outdoor amenity spaces including
a swimming pool on top of the podium parking structure, and
“private amenity spaces” on the building roofs “that would
include landscaping and outdoor lounge and cooking areas.”
Following evaluation of the project and a public hearing, a
City zoning administrator issued a determination letter on
May 17, 2019 finding the project was subject to a Class 32
exemption from CEQA, and no exceptions to the exemption
applied. The zoning administrator also approved a conditional
use permit and a density bonus.
2 An earlier version of the proposed project consisted of
99 five-bedroom units and no three-bedroom units. Some City
approvals were based on that earlier design. The difference is
not material to this appeal.
7
The zoning administrator denied a site plan review,
however, finding the project as proposed was not compatible with
surrounding uses. The project was “unique in size” for the area
and the “scale and massing, in addition to the podium level [i.e.,
the parking structure] add to a development that would not be
comparable to any residential project in the immediate area.”
The zoning administrator had concerns about the aesthetics and
architectural limitations created by the podium parking. The
zoning administrator also found the private rooftop amenity
spaces, which the zoning administrator referred to as “rooftop
decks,” “would create uses that would be atypical of surrounding
development, and bring in active uses on the rooftops of each of
the seven buildings that would potentially affect surrounding
uses through noise and music. [¶] . . . In addition to the height
and massing [of the project], though not deviating from the
[building code], the rooftop amenity would overwhelm those
multi-family structures immediately abutting the subject project
on Severance Street . . . .”
Jim Childs, a member of the public who objected to the
project, filed an appeal to the City planning commission
challenging the zoning administrator’s grant of the CEQA
exemption, conditional use permit, and density bonus. The
project applicants also appealed, challenging the denial of a site
plan review.
While the appeals were pending, the project applicants
submitted revised plans to address the zoning administrator’s
concerns. Among other things, the revised plans changed the
architectural style from modernist to craftsman, and added
features “to more fully screen the parking podiums from the
abutting pub[l]ic right-of-ways.” The revisions also moved the
8
“rooftop amenities away from the perimeter of the building to
minimize impacts on neighboring properties.” In light of these
revisions, the zoning administrator stated that, although the
earlier denial of a site plan review was not in error, the revised
plans fully addressed the concerns regarding the project’s
compatibility with the neighborhood.
The planning commission granted the project applicants’
appeal and overturned the zoning administrator’s earlier denial
of a site plan review, concluding, as had the zoning
administrator, that the revised project “would be compatible with
current uses in the immediate area.”
On October 10, 2019, the planning commission denied
Childs’s appeal, determining the project was subject to a Class 32
CEQA exemption, and the zoning administrator had correctly
granted a conditional use permit and density bonus.
Childs appealed to the city council. On February 4, 2020,
the city council denied the appeal, determined the project was
subject to a Class 32 CEQA exemption, and adopted the findings
of the planning commission.
Appellants, two organizations representing, inter alia,
households, businesses, and others in the project area, filed a
petition in the trial court for a writ of mandate reversing the
City’s approval of the project, and naming as real parties in
interest the project applicants. The petition alleged that the City
had failed to establish the project was exempt from CEQA, and
that the approvals did not comply with state planning and zoning
law or the City’s municipal code.
The trial court denied the petition. Because our review is
of the City’s decision, not the trial court’s ruling, we deem it
unnecessary to summarize the basis of the trial court’s ruling.
9
Appellants timely appealed. We reversed the trial court in
an unpublished opinion, concluding the zone administrator’s
noise findings precluded application of the Class 32 exemption.
(West Adams Heritage Association v. City of Los Angeles (Aug. 10,
2023, B319121) [nonpub. opn.].) The Supreme Court granted
review, and ordered us to vacate our decision and reconsider the
cause in light of Assembly Bill No. 1307 and the Make UC II
decision.3
DISCUSSION
Appellants do not challenge the trial court’s rejection of
their claims that the project approvals did not comply with state
planning and zoning law or the municipal code. Appellants’
arguments on appeal pertain solely to the City’s application of
the Class 32 CEQA exemption. As we explain, our original
conclusion that noise concerns barred application of the
exemption is no longer valid in light of a statute and Supreme
Court authority postdating our opinion. We agree, however, with
appellants’ alternative contention that the City failed to conduct
the required redevelopment plan consistency analysis before
granting the Class 32 exemption, and appellants are entitled to a
writ on that sole basis.4
3 After transfer from the Supreme Court, the parties have
requested we take judicial notice of numerous documents. We
grant respondents’ August 8, 2024 and appellants’ August 22,
2024 requests for judicial notice in full. We grant respondents’
September 10, 2024 request for judicial notice as to exhibits B
through G, but deny the request as to exhibit A.
4 As set forth in Discussion, part E(5), post, the City
did not err in determining that the zoning ordinance in effect at
10
A. Applicable Law
CEQA “establishes a comprehensive scheme to provide
long-term protection to the environment. It prescribes review
procedures a public agency must follow before approving or
carrying out certain projects.” (Berkeley Hillside Preservation v.
City of Berkeley (2015) 60 Cal.4th 1086, 1092 (Berkeley Hillside).)
“Under CEQA and its implementing guidelines, an agency
generally conducts an initial study to determine ‘if the project
may have a significant effect on the environment.’
[Citation.]” (Friends of College of San Mateo Gardens v. San
Mateo County Community College Dist. (2016) 1 Cal.5th 937, 945
(San Mateo Gardens).) “If there is substantial evidence that the
project may have a significant effect on the environment,” then
the agency must prepare an environmental impact report before
approving the project. (Ibid.)
“For policy reasons, the Legislature has expressly exempted
several categories of projects from review under CEQA.
[Citation.] By statute, the Legislature has also directed the
Secretary of the Natural Resources Agency . . . to establish ‘a list
of classes of projects that have been determined not to have a
significant effect on the environment and that shall be exempt
from’ CEQA.” (Berkeley Hillside, supra, 60 Cal.4th at p. 1092,
quoting Pub. Resources Code, § 21084.) “If an exemption applies,
the project is excused from environmental review.” (Arcadians
for Environmental Preservation v. City of Arcadia (2023)
88 Cal.App.5th 418, 429 (Arcadians).)
the time the project was approved, and not the redevelopment
plan, governed the density and density bonus calculation for the
project.
11
In the instant case, the City concluded the project qualified
for a Class 32 CEQA exemption, defined under California Code of
Regulations, title 14, section 15332.5 The Class 32 exemption
applies to “in-fill development” meeting certain conditions,
specifically: “(a) The project is consistent with the applicable
general plan designation and all applicable general plan policies
as well as with applicable zoning designation and regulations.
[¶] (b) The proposed development occurs within city limits on a
project site of no more than five acres substantially surrounded
by urban uses. [¶] (c) The project site has no value, as habitat
for endangered, rare or threatened species. [¶] (d) Approval of
the project would not result in any significant effects relating to
traffic, noise, air quality, or water quality. [¶] (e) The site can be
adequately served by all required utilities and public services.”
(§ 15332.)
The Class 32 exemption is subject to certain exceptions.
(§ 15300.2.) As relevant to this appeal, the exemption does not
apply if “the cumulative impact of successive projects of the same
type in the same place, over time is significant” (id., subd. (b)); if
“there is a reasonable possibility that the activity will have a
significant effect on the environment due to unusual
circumstances” (id., subd. (c); or if the project “may cause
substantial adverse change in the significance of a historical
resource” (id., subd. (f)).
5 Further unspecified citations are to title 14 of the
California Code of Regulations. Section 15000 et seq. of that title
are also referred to as the “CEQA Guidelines.” (Muzzy Ranch Co.
v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372,
380, fn. 2 (Muzzy Ranch Co.).)
12
B. Standard of Review
“On appeal from denial of a petition for writ of
administrative mandamus, we review the agency’s decision, not
the superior court’s, to determine whether the agency has
prejudicially abused its discretion. [Citation.] An abuse of
discretion is established if the agency has not proceeded in a
manner required by law or if the determination is not supported
by substantial evidence. [Citations.] We exercise our
independent judgment to determine whether the agency
employed proper procedures and review the agency’s factual
findings for substantial evidence.” (Arcadians, supra,
88 Cal.App.5th at p. 428.)
We review an agency’s factual determination that a project
falls within a statutory or categorical CEQA exemption for
substantial evidence. (Holden v. City of San Diego (2019)
43 Cal.App.5th 404, 410.) “In applying the substantial evidence
standard of review, all conflicts in the evidence are resolved in
favor of the prevailing party and all legitimate and reasonable
inferences are made to support the agency’s decision.” (Ibid.)
We review questions of statutory interpretation de novo.
(Make UC II, supra, 16 Cal.5th at p. 55.) We “ ‘ “adopt the
construction that best gives effect to the Legislature’s intended
purpose.” [Citation.] . . . .’ [Citation.]” (Ibid.) “ ‘ “We consider
first the words of a statute, as the most reliable indicator of
legislative intent.” [Citation.] In doing so, we give the words
“their usual and ordinary meaning,” viewed in the context of the
statute as a whole. [Citation.] . . . .’ [Citation.]” (Ibid.) “ ‘When
the language of a statute is ambiguous—that is, when the words
of the statute are susceptible to more than one reasonable
meaning, given their usual and ordinary meaning and considered
13
in the context of the statute as a whole—we consult other indicia
of the Legislature’s intent, including such extrinsic aids as
legislative history and public policy. . . . [Citations.]’ [Citation.]”
(Ibid.)
We discuss the standard of review for the City’s findings
regarding the various exceptions to the exemption in the
applicable sections, post.
C. This Appeal Is Not Moot
Appellants contend that assertions made by respondents in
separate litigation render this appeal “arguably moot.” We reject
this argument.6
During the pendency of the instant appeal, the project
developers alternatively sought approval from the City for a
smaller 52-unit development constructed on only one of the two
parcels intended for the larger 102-unit development at issue in
this case. The City concluded the smaller project was exempt
from CEQA review under the exemption for ministerial projects.
Appellants challenged that decision by writ petition just as they
have in the instant matter. (See Super. Court Los Angeles
County, case No. 23STCP01363.) Appellants argued, inter alia,
that the developers still intended to build the larger project, but
6 On our own motion, we take judicial notice of the trial
court’s May 31, 2024 judgment in West Adams Heritage
Association et al. v. City of Los Angeles (Super. Ct. Los Angeles
County) case No. 23STCP01363, which sets forth the factual and
procedural history of that case. The trial court denied appellants’
writ, and appellants have appealed in case No. B339952, in
which briefing has yet to commence. The judge in case
No. 23STCP01363 was not the same judge who ruled on the writ
petition in the instant case.
14
were improperly segmenting it into smaller projects to evade
CEQA review.
Respondents in this case (the developers and the City)
opposed the writ petition in case No. 23STCP01363. In
responding to the segmentation argument, respondents
contended the original 102-unit project and the proposed 52-unit
project were mutually exclusive of one another, and if one were
built the other could not be built. The trial court agreed there
was no improper segmenting finding, “(1) Both projects cannot be
built; (2) There are significant design differences between the two
projects; (3) There is no evidence in the record of any coordinated
or future development of the adjacent parcel; and (4) The
procedural history does not support any claim of segmenting.”
In the instant matter, appellants base their mootness
argument on two statements by respondents in opposing the writ
petition in case No. 23STCP01363. First, respondents asserted
they had severed the “lot tie” connecting the two parcels, and
therefore “the 102-Unit Development could not be built because it
would span two different, individually sellable lots.”
Respondents also asserted the two projects “are separate
developments that differ in virtually every aspect of design,
including, among others, their location on the site, building
typology, site plan, number of buildings, building footprints and
layouts, number of units, unit design and configuration, unit
sizes and bedroom counts, parking design and number of spaces,
vehicular access and circulation, and open space areas and
design.”
Appellants argue the current appeal is moot because, first,
“[d]ue to termination of the lot tie, the 102-unit Project at issue in
this action can no longer be developed,” and second, “because
15
Respondents claimed in a court filing that the 102-unit Project
can no longer be constructed, they are judicially estopped from
arguing the 102-unit Project can still move forward.”
We disagree with appellants’ characterization of
respondents’ statements. Respondents were answering
appellants’ contention of improper segmenting by arguing
construction of the 52-unit project would make it impossible to
expand it into the original 102-unit project or something similar.
Respondents were not arguing it was impossible, as a general
matter, to build the 102-unit project, just that the two proposed
projects were mutually exclusive. Whether as a legal matter
severance of the lot tie makes the larger project impossible is not
an issue properly before us, but appellants cite nothing that
persuades us respondents have given up on the 102-unit project
or made such a representation to the trial court. Thus, the
instant appeal is not moot.
D. Under Assembly Bill No. 1307 and Make UC II, the
Noise Issues Identified by the Zoning Administrator
Do Not Constitute a Significant Effect on the
Environment
Our original opinion noted the zoning administrator’s
finding that the project’s “abundant” and “atypical” roof decks
“would potentially affect surrounding uses through noise and
music,” and “overwhelm those multi-family structures
immediately abutting the subject project.” We concluded this was
effectively a finding that the project would “result in . . .
significant effects relating to . . . noise” (§ 15332, subd. (d)), thus
16
barring application of the Class 32 exemption.7 We relied in part
on Make UC A Good Neighbor v. Regents of University of
California (2023) 88 Cal.App.5th 656 (Make UC I), reversed by
Make UC II, supra, 16 Cal.5th 43, which at the time, was pending
review before the Supreme Court.
As we explain, our original holding cannot stand in light of
Assembly Bill No. 1307 and Make UC II.
1. The Make UC decisions and Assembly Bill
No. 1307
Make UC I concerned the adequacy of an environmental
impact report (EIR) covering both a student housing project at
the University of California, Berkeley and the university’s long
range development plan. (Make UC I, supra, 88 Cal.App.5th at
pp. 664–665.) Opponents of the project and development plan
argued, inter alia, that the EIR “failed to analyze potential noise
impacts from loud student parties in residential areas near the
campus, where student parties have been a problem for years.”
(Id. at p. 685.)
The First District Court of Appeal agreed the EIR was
inadequate. The court noted the University of California Regents
“concede[d] that CEQA applies to the type of noise at issue here—
crowds of people talking, laughing, shouting, and playing music
that disturbs neighboring residents.” (Make UC I, supra,
7 We recognized in our original opinion that the zoning
administrator in fact granted the CEQA exemption, and raised
the noise concerns in the separate context of a site plan review.
We concluded the grant of the CEQA exemption could not be
reconciled with the noise findings, whatever the context in which
those findings arose.
17
88 Cal.App.5th at p. 685.) The court further observed the record
indicated noise from student parties was “a long-standing
problem,” citing findings by the City of Berkeley and efforts by
the City of Berkeley and the university to deal with the issue
over the years. (Id. at p. 686.) Given this record, the court
rejected the Regents’ argument that the noise concern was based
on speculation and “antistudent bias.” (Id. at pp. 687, 689.) The
court held the Regents “must analyze the potential noise impacts
relating to loud student parties,” and “determine whether the
potential noise impacts are in fact significant, and, if so, whether
mitigation is appropriate.” (Id. at p. 690.)
Our Supreme Court granted review. While review was
pending, the Legislature passed Assembly Bill No. 1307, which
enacted Public Resources Code section 21085. (Stats. 2023,
ch. 160, § 1.) That section provides, “For purposes of this
division, for residential projects, the effects of noise generated by
project occupants and their guests on human beings is not a
significant effect on the environment.” (Pub. Resources Code,
§ 21085.) “[T]his division” refers to division 13 of the Public
Resources Code, which codifies CEQA. (Del Cerro Mobile Estates
v. City of Placentia (2011) 197 Cal.App.4th 173, 183.)
The Supreme Court then issued its decision in Make UC II.
The project opponents conceded Assembly Bill No. 1307 applied
to the case, and that under the new law, the EIR did not have to
analyze the impact of “ ‘social noise’ ” created by the housing
project. The Supreme Court understood the project opponents to
“use the term ‘social noise’ to refer to noise generated by human
voices during social interactions.” (Make UC II, supra, 16 Cal.5th
at p. 49 & fn. 2.)
18
The Supreme Court accepted these concessions. It stated,
first, that “[i]n mandamus proceedings, a reviewing court applies
the law that is current at the time of judgment in the reviewing
court,” there, the newly enacted Public Resources Code section
21085. (Make UC II, supra, 16 Cal.5th at p. 55.) It further held,
“It cannot be said that the 2021 EIR is inadequate for having
failed to study the effects of social noise associated with [the
student housing project], when no such analysis is required under
[Public Resources Code] section 21085.” (Make UC II, at p. 57.)
Although the project opponents conceded Assembly Bill
No. 1307 defeated their noise challenge to the housing project,
they argued the university’s long range development plan was
not a “residential project” within the meaning of Public Resources
Code section 21085, and therefore the EIR must consider “the
environmental impacts of social noise resulting more broadly”
from the development plan. (Make UC II, supra, 16 Cal.5th at
p. 57.)
The Supreme Court rejected this argument, concluding “the
Legislature intended for [Public Resources Code] section 21085 to
apply to the 2021 EIR’s evaluation of the residential aspects of
the [long range development plan]”. (Make UC II, supra,
16 Cal.5th at p. 61.) The court observed, “The legislative history
of Assembly Bill 1307 overwhelmingly establishes that the
Legislature enacted the new law to abrogate the [Make UC I]
decision.” (Make UC II, at p. 60.) The court further noted, “[T]he
Legislature was aware that the 2021 EIR evaluated both the
2021 [long range development plan] and [the student housing
project], and that both were at issue in [Make UC I],” yet there
was no indication in the legislative history the Legislature
intended Public Resources Code section 21085 to apply solely to
19
the housing project. (Make UC II, at pp. 61–62.) The court also
reasoned that, as a matter of public policy, “we find it untenable
that the Legislature would preclude the consideration of social
noise impacts under CEQA only for projects designed to add
residential units to a specific location (such as [the student
housing project]) while potentially requiring the same analysis of
social noise when an agency makes broader land use planning
decisions (such as the [2021 long range development plan]) that
encompass the specific projects.” (Id. at p. 63.)
2. Analysis
We based our original opinion on the zoning
administrator’s concern that noise and music from rooftop decks
would overwhelm neighboring properties, which as discussed
below, is akin to the “crowds of people talking, laughing,
shouting, and playing music that disturbs neighboring residents”
at issue in Make UC I. (Supra, 88 Cal.App.5th at p. 685.) Under
Assembly Bill No. 1307 and Make UC II, such noise, i.e., “noise
generated by project occupants and their guests,” is not a
significant environmental effect for purposes of CEQA. The
zoning administrator’s noise concerns therefore do not preclude
application of a Class 32 CEQA exemption.
Appellants attempt to distinguish Make UC II on the basis
that that decision concerned “social noise,” defined as “noise
generated by human voices during social interactions” (Make UC
II, supra, 16 Cal.5th at p. 49 & fn. 2), whereas the instant case
“involves rooftop decks that could have amplified music.”
Appellants further contend Assembly Bill No. 1307 “addresses
only unamplified ‘social noise’ caused by human voices, not
amplified sounds.” We reject this argument for several reasons.
20
First, the Supreme Court, in defining “social noise,”
was not interpreting the meaning of the word “noise” as used in
Public Resources Code section 21085, but rather interpreting how
the project opponents in that case were using that term. (See
Make UC II, supra, 16 Cal.5th at p. 49, fn. 2.) The court gave no
indication it was limiting Public Resources Code section 21085 to
the project opponents’ definition of “social noise.”
Second, when concluding the Legislature intended
Assembly Bill No. 1307 to abrogate Make UC I, the Supreme
Court in Make UC II quoted Make UC I’s holding that CEQA
applied to “ ‘crowds of people talking, laughing, shouting, and
playing music that disturbs neighboring residents.’ ” (Make UC
II, supra, 16 Cal.5th at p. 60, quoting Make UC I, supra,
88 Cal.App.5th at p. 685, italics added).8 Thus, the Supreme
Court recognized that the holding the Legislature intended
Assembly Bill No. 1307 to abrogate includes music as well as
voices.
8 The full quotation is: “[I]t is quite clear that, in enacting
section 21085, the Legislature was focused on rejecting the [Make
UC I] court’s central underlying conclusion that social noise from
residential users may constitute a significant effect on the
environment. (Compare Make UC [I], supra, 88 Cal.App.5th at
p. 685, 304 Cal.Rptr.3d 834 [‘CEQA applies to the type of noise at
issue here—crowds of people talking, laughing, shouting, and
playing music that disturbs neighboring residents’] with Sen.
Com. on Environmental Quality, Analysis of Assem. Bill No.
1307, supra, p. 1 [broadly stating that the bill ‘specifies that noise
from residents does not constitute a significant environmental
effect under the California Environmental Quality Act’].)” (Make
UC II, supra, 16 Cal.5th at p. 60.)
21
Third, the legislative history of Assembly Bill No. 1307
indicates the Legislature considered limiting Public Resources
Code section 21085 to unamplified human voices, but ultimately
rejected that approach. As originally proposed, Public Resources
Code section 21085 read, “For purposes of this division, noise
generated by the unamplified voices of residents is not a
significant effect on the environment for residential projects.”
(Assem. Bill No. 1307 (2023–2024 Reg. Sess.), as amended
Mar. 16, 2023.) That limitation does not appear in the enacted
version of Public Resources Code section 21085, which applies
more broadly to “noise generated by project occupants and their
guests.” “ ‘The rejection by the Legislature of a specific provision
contained in an act as originally introduced is most persuasive to
the conclusion that the act should not be construed to include the
omitted provision.’ [Citation.]” (People v. Soto (2011) 51 Cal.4th
229, 245.9
Finally, limiting Public Resources Code section 21085
solely to the noise of unamplified human voices would undercut
one of the purposes of Assembly Bill No. 1307, which is “to
‘remove the potential for litigants to challenge residential
development based on the speculation that the new residents will
create unwanted noises.’ ” (Make UC II, supra, 16 Cal.5th at
9 We acknowledge some of the legislative reports analyzing
the proposed Assembly Bill No. 1307 stated an intent that “minor
and intermittent noise nuisances, such as from unamplified
human voices, be addressed through local nuisance ordinances
and not via CEQA.” (See, e.g., Sen. Com. on Environmental
Quality, Analysis of Assem. Bill No. 1307, p. 3.) Again, however,
the Legislature did not enact the original bill language limiting
its reach to unamplified human voices, instead broadening it to
all noise generated by project occupants and their guests.
22
p. 60, quoting Sen. Com. on Environmental Quality, Analysis of
Assem. Bill No. 1307, p. 3.) Residents inevitably make noises
beyond merely speaking, including walking about, cooking and
cleaning, exercising, watching television, and listening to music.
If those noises remained an “environmental effect” for purposes of
CEQA, Assembly Bill No. 1307 would do nothing to stem future
litigation, because project opponents could always claim the
influx of new residents would create noise impacts aside from
their voices. The Legislature could not have intended this result.
Appellants cite Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, which
stated, “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.’ [Citation.]” (Id.
at p. 390.) Appellants argue this principle compels us to
interpret Public Resources Code section 21085 narrowly to apply
solely to unamplified noises. We conclude limiting Public
Resources Code section 21085 to unamplified human voices is not
“ ‘within the reasonable scope of the statutory language,’ ” when
the Legislature expressly rejected that limitation during the
drafting process, and the limitation would undercut the purpose
of Assembly Bill No. 1307.
Appellants note our original opinion relied not only on
Make UC I, but also Keep Our Mountains Quiet v. County of
Santa Clara (2015) 236 Cal.App.4th 714, a case holding that an
EIR was required to assess noise impacts from crowds and music
at a wedding venue. (Id. at pp. 732–734.) Because Assembly Bill
No. 1307 distinguishes residential from nonresidential noise
impacts for purposes of CEQA, Keep Our Mountains Quiet, which
23
concerned a nonresidential project, is not instructive on the
interpretation of Public Resources Code section 21085.
Appellants argue Make UC II is distinguishable because it
“involved a university’s plan to provide housing for its students,”
whereas the instant case “involves a private proponent’s project
near a university, wherein the university itself opposed the
proposal.” Appellants identify nothing in the language or
legislative history of Public Resources Code section 21085
indicating its application depends on the purpose of a particular
residential project or the identities of the parties supporting or
opposing it.
For similar reasons, we disagree with appellants that this
case is distinguishable because the noise concern arose from a
particular feature of the project’s design—the rooftop decks—as
opposed to the general concern of occupant noise in Make UC I
and II. Again, appellants identify nothing in the language or
legislative history of Public Resources Code section 21085
indicating its application depends on where the occupants are
located within a residential project when they generate noise.
The Legislature did not, for example, provide that outside noise
should be treated differently than inside noise.
Appellants argue Assembly Bill No. 1307 does not address
CEQA exemptions, but instead addresses only the analysis
required “in EIRs, negative declarations, and [mitigated negative
declarations].” “A negative declaration is a written statement
that briefly explains why a project will not have a significant
environmental impact and therefore will not require an EIR.”
(Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 330.) “A
mitigated negative declaration is proper . . . if project revisions
24
would avoid or mitigate the potentially significant effects
identified in an initial study . . . .” (Id. at p. 331.)
In making this argument, we presume appellants are
referring to the Legislative Counsel’s digest included in Assembly
Bill No. 1307, which provides a short description of CEQA
proceedings, including that agencies prepare EIRs or,
alternatively, negative declarations or mitigated negative
declarations, with no reference to CEQA exemptions.10
We reject appellants’ interpretation of the Legislative
Counsel’s digest. The digest does not state the scope of the bill is
limited to EIRs and negative declarations. In summarizing
Public Resources Code section 21085, the digest states, “This bill
would specify that the effects of noise generated by project
occupants and their guests on human beings is not a significant
effect on the environment for residential projects for purposes of
CEQA,” without limiting that description to particular
proceedings within CEQA. As noted, Public Resources Code
10 The paragraph of the digest to which appellants
apparently refer states, “The California Environmental Quality
Act (CEQA) requires a lead agency, as defined, to prepare, or
cause to be prepared, and certify the completion of an
environmental impact report (EIR) on a project that it proposes
to carry out or approve that may have a significant effect on the
environment or to adopt a negative declaration if it finds that the
project will not have that effect. CEQA also requires a lead
agency to prepare a mitigated negative declaration for a project
that may have a significant effect on the environment if revisions
in the project would avoid or mitigate that effect and there is no
substantial evidence that the project, as revised, would have a
significant effect on the environment.” (Assem. Bill No. 1307
(2023–2024 Reg. Sess.) Legislative Counsel’s Digest.)
25
section 21085 itself states it pertains to “this division,” referring
to division 13 of the Public Resources Code, i.e., CEQA, without
limitation to any particular part of CEQA. We therefore do not
infer from the digest’s lack of reference to CEQA exemptions that
the Legislature did not intend Assembly Bill No. 1307 to apply to
CEQA exemptions.
Appellants note Assembly Bill No. 1307 did not change the
Class 32 exemption itself, which still requires that the project
“not result in any significant effects relating to . . . noise.”
(§ 15332, subd. (d).) This is so, but what the bill does establish is
that the effect of noise generated by occupants and guests of
residential projects on human beings is not a “significant effect.”
Section 15332’s concern with noise would appear to remain
salient in other circumstances, such as in nonresidential projects,
or residential projects in which there are significant noise effects
apart from the effects of noise generated by occupants and their
guests on human beings.
Appellants argue we should apply Assembly Bill No. 1307
only prospectively, given the presumption against retroactive
application of legislation. (See McClung v. Employment
Development Dept. (2004) 34 Cal.4th 467, 475.) Appellants do not
address the Supreme Court’s statement in Make UC II that “[i]n
mandamus proceedings, a reviewing court applies the law that is
current at the time of judgment in the reviewing court.” (Supra,
16 Cal.5th at p. 55.) The Supreme Court applied that principle to
reject the Make UC project opponents’ CEQA challenge, although
the EIR at issue predated Assembly Bill No. 1307. Other courts
have done similarly in analogous circumstances. (See, e.g.,
Citizens for Positive Growth & Preservation v. City of Sacramento
(2019) 43 Cal.App.5th 609, 626 (Citizens for Positive Growth)
26
[rejecting a traffic challenge to 2015 EIR after 2018 statutory and
regulatory amendments declared certain traffic impacts do not
constitute significant impacts on the environment for purposes of
CEQA].) In line with these authorities, we apply current law,
under which appellants’ noise challenge necessarily fails.
Appellants argue to the extent Assembly Bill No. 1307
applies retroactively, it should do so only as to the Make UC I
decision, which the Supreme Court identified as the target of
Assembly Bill No. 1307. Appellants contend, “[T]here is no
similar expression of legislative intent to apply” that bill to our
original opinion, and therefore the Legislature “did not include
[our prior opinion] within the scope of AB 1307.” Whether or not
the Legislature had our original opinion in mind when it enacted
Assembly Bill No. 1307, that bill has established as a matter of
current law that the effects of noise generated by occupants of
residential projects and their guests on human beings are not
significant environmental effects for purposes of CEQA.
Make UC II compels us to apply that current law in this
mandamus proceeding.
Appellants note our original opinion declined to reach their
argument concerning the “unusual circumstances” exception to
the CEQA exemption (§ 15300.2, subd. (c)), and ask that we
consider it now. That exception precludes application of a CEQA
exemption if “there is a reasonable possibility that the activity
will have a significant effect on the environment due to unusual
circumstances.” (Ibid.) Appellants argued in their original
briefing that the project’s rooftop decks are an unusual
circumstance that “may result in adverse noise impacts.”
Assuming arguendo the rooftop decks are an unusual
circumstance, the exception nonetheless would not apply because
27
the only environmental impact appellants identify is neighbors
being bothered by noise from people congregating and listening to
music on the decks. Under Public Resources Code section 21085,
that noise cannot constitute “a significant effect on the
environment,” and thus the requirements of the “unusual
circumstances” exception are not met.
E. Current Law Requires The City To Find the Project
Is Consistent With the Applicable Redevelopment
Plan Before Granting a Class 32 CEQA Exemption
Appellants contend substantial evidence does not support
the City’s application of the Class 32 exemption because the City
never determined whether the project was consistent with the
redevelopment plan applicable to the project site. They further
argue that the project is inconsistent with the redevelopment
plan’s density limitations.
In our original opinion, we declined to reach these
arguments given our holding that appellants prevailed on the
alternative basis of noise impacts. We observed the parties’
briefing had not sufficiently addressed questions we deemed
pertinent to the question of redevelopment plan consistency,
including the relationship of the state density bonus law and the
redevelopment plan, and the retroactivity of LAMC
section 11.5.14, which effectively incorporated the redevelopment
plan into the code chapter containing the City’s zoning ordinance,
but which was not yet in effect when the City granted the CEQA
exemption in this case. We stated, “We leave these questions for
another day, should they arise, to enable the parties to brief these
issues.” (West Adams Heritage Association v. City of Los Angeles,
supra, B319121.)
28
Having concluded herein that our original holding
concerning noise is no longer valid, we address appellants’
arguments concerning redevelopment plan consistency. As set
forth below, we agree with appellants that before granting the
Class 32 exemption, the City must determine whether the project
is consistent with the redevelopment plan. The grant of the
exemption must be set aside until the City does so.
On the particular issue of density, however, we hold state
law requires the City to calculate the project’s allowable density
based on the generally applicable zoning ordinance rather than
the redevelopment plan, because the former allows greater
density than the latter. The City’s deviation from the
redevelopment plan’s density limitations therefore is correct
under state law, and does not preclude application of the Class 32
exemption.
1. The question of redevelopment plan
consistency properly is before us
As an initial matter, respondents have moved to strike
appellants’ arguments concerning redevelopment plan
consistency as violating the California Rules of Court concerning
transfers from the Supreme Court. We conclude the issue of
redevelopment plan consistency is properly before us after the
Supreme Court’s transfer.
California Rules of Court,11 rule 8.200(b)(1) provides,
“Within 15 days after finality of a Supreme Court decision
remanding or order transferring a cause to a Court of Appeal for
further proceedings, any party may serve and file a supplemental
11 Unspecified rule citations are to the California Rules of
Court.
29
opening brief in the Court of Appeal. Within 15 days after such a
brief is filed, any opposing party may serve and file a
supplemental responding brief.” Rule 8.200(b)(2) provides,
“Supplemental briefs must be limited to matters arising after the
previous Court of Appeal decision in the cause, unless the
presiding justice permits briefing on other matters.”
In this case, respondents filed the first supplemental brief
exactly 15 days after the transfer from the Supreme Court. That
supplemental brief addressed our previous holding concerning
noise but no other issues. Appellants then filed their own
supplemental brief addressing the noise issue as well as
additional issues, including redevelopment plan consistency.
Respondents moved to strike appellants’ supplemental brief. We
invited respondents to file an additional brief responding to
appellants’ supplemental brief, which they did.
In their motion to strike, respondents argue appellants, as
the party bearing the burden on appeal to show error, should
have filed the first supplemental brief, and by not doing so
“sandbag[ged] Respondents with all new arguments with no
opportunity to respond.” Respondents further argue under rule
8.200(b)(2), the only matter properly before this court following
transfer is the noise issue, and appellants may not “reargu[e] old
issues in a supplemental brief.”
Addressing respondents’ second argument first, we
disagree the Supreme Court’s transfer order limits us to the noise
issue. Rule 8.200(b)(2) limits the parties’ briefing to “matters
arising after the previous Court of Appeal decision.” Our
previous decision expressly noted our noise holding made it
unnecessary to address the redevelopment plan consistency
issues, and we therefore would leave those latter issues “for
30
another day, should they arise.” That day has now arrived, as a
result of new authorities invalidating our previous noise holding.
The necessity of addressing the redevelopment plan consistency
issue thus is a “matter[ ] arising after the previous Court of
Appeal decision.” (Rule 8.200(b)(2).)
Given that our original opinion expressly and conspicuously
deferred the redevelopment plan consistency question “for
another day,” it is disingenuous for respondents to claim they
were “sandbag[ged]” when appellants addressed that question in
their supplemental brief. Respondents could have, and should
have, addressed that issue in their first supplemental brief.12
Although they contend appellants should have filed their brief
first, rule 8.200 has no such requirement, instead stating that
“any party may serve and file a supplemental opening brief,”
after which “any opposing party” may file a responding brief.
(Rule 8.200(b)(1).) Respondents’ characterization of appellants’
supplemental brief as a “reply” brief improperly raising new
arguments is not consistent with the Rules of Court.
In any event, at our invitation, respondents have now filed
an additional brief, and thus have had full opportunity to address
the arguments appellants raise in their supplemental brief. This
ameliorates any prejudice respondents claim they have suffered
12 Appellants argue respondents forfeited their
redevelopment plan consistency arguments by failing to raise
them in their initial supplemental brief. The court benefits from
all parties’ perspectives on these complex issues, and therefore
allowed respondents additional briefing.
31
from the order in which the briefs were filed. We now turn to the
merits of the parties’ arguments.13
2. Additional legal and procedural background
a. The redevelopment plan
“In the aftermath of World War II, the Legislature
authorized the formation of community redevelopment agencies
in order to remediate urban decay.” (California Redevelopment
Assn. v. Matosantos (2011) 53 Cal.4th 231, 245.) These agencies
typically were “governed by the sponsoring community’s own
legislative body.” (Id. at p. 246.) Agencies were “authorized to
‘prepare and carry out plans for the improvement, rehabilitation,
and redevelopment of blighted areas.’ [Citation.]” (Ibid.) “ ‘As
the fundamental document governing a redevelopment agency’s
activities, a redevelopment plan basically acts as the agency’s
charter. Adopted by the local legislative body (a city council or
county board of supervisors), the plan establishes long-term
planning goals as well as implementation policies and
procedures for the redevelopment of a designated project
area. . . .’ [Citation.]” (Friends of Mammoth v. Town of
Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th
511, 529.)
The redevelopment plan at issue in the instant case
originally was entitled the “Redevelopment Plan for the Hoover
Redevelopment Project,” but the City refers to it today as the
13 Respondents’ motion to strike also seeks to strike
appellants’ mootness argument, an argument we have resolved
on the merits in respondents’ favor. (See Discussion, part C,
ante.) Respondents’ motion to strike is denied.
32
Exposition/University Park Redevelopment Plan. (See
<https://planning.lacity.gov/plans-
policies/overlays/expositionuniversity-park> [as of Oct. 30, 2024].)
The Los Angeles City Council adopted the plan by ordinance in
1966. (Los Angeles Ordinance No. 131730.) The most recent
version is the fifth amended version, adopted by the city council
in 1989. (Los Angeles Ordinance No. 164850; Redevelopment
Plan for the Expanded Project Area of the Hoover Redevelopment
Project as Amended by the Fifth Amendment to the
Redevelopment Plan for the Hoover Redevelopment Project,
adopted May 9, 1989 (Hoover Redevelopment Plan).)
Section XIII of the redevelopment plan is entitled “Land
Uses Permitted in Project Area” (underscoring & some
capitalization omitted), and includes, inter alia, density limits
and provisions for a density bonus. (Hoover Redevelopment Plan,
supra, §§ 1302–1306.)
The Legislature dissolved all redevelopment agencies
effective February 1, 2012. (See City of Galt v. Cohen (2017)
12 Cal.App.5th 367, 374.) The Legislature provided that “all land
use related plans and functions of the former redevelopment
agency” could be “transferred to the city, county, or city and
county that authorized the creation of a redevelopment agency”
should the locality so request. (Health & Saf. Code, § 34173,
subd. (i).) The South Los Angeles Community Plan, a component
of the City’s general plan land use element, states, “[T]he land
use authorities granted in the Redevelopment Project Area
Plans,” including the Exposition/University Park redevelopment
plan, “remain effective and will continue to be administered by
the Department of City Planning.” (South Los Angeles
Community Plan, Nov. 2017, at p. 1–13; see id. at p. 3–29.)
33
Effective November 11, 2019, the city council passed
Ordinance No. 186325 “to effectuate the transfer of land use
related plans and functions of the former local Community
Redevelopment Agency (CRA) to the City of Los Angeles.”
(Los Angeles Ordinance No. 186325, at p. 1.) The ordinance,
inter alia, added section 11.5.14 to Chapter 1 of the Los Angeles
Municipal Code, the chapter governing zoning. (Los Angeles
Ordinance No. 186325, at p. 2.) The objective of LAMC
section 11.5.14 is “to establish uniform citywide procedures,
standards, and criteria for reviewing and processing
Redevelopment Plan Projects,” including “Administrative
Review” and “Project Compliance.” (LAMC, § 11.5.14, subd. (A).)
The section requires the City’s planning department to review
project applications “for compliance with the relevant standards
of [the LAMC] and the appropriate Redevelopment Plan.” (Id.,
subd. (D)(4)(e).)
LAMC section 11.5.14, subdivision (B)(1) provides,
“Whenever the Redevelopment Regulations conflict with
provisions contained in Chapter 1 of this Code or any other
relevant City ordinances, the Redevelopment Regulations shall
supersede those provisions, unless the applicable Redevelopment
Regulations specifically provide otherwise or are amended.”
(Italics added.) “Redevelopment Regulations” are defined as “all
the land use provisions of the Redevelopment Plans and design
for development guidelines adopted pursuant to such
Redevelopment Plans that govern land use or development . . . .”
(LAMC, § 11.5.14, subd. (C), boldface omitted.)
b. Redevelopment plan proceedings in this case
The zoning administrator’s May 17, 2019 determination
letter finding the project eligible for a Class 32 exemption did not
34
include a redevelopment plan consistency analysis, although the
zoning administrator determined the project was consistent with
other land use provisions, specifically the South Los Angeles
Community Plan and the North University Park-Exposition
Park-West Adams Neighborhood Stabilization Overlay District.
The only mention of the redevelopment plan in the determination
letter was in a summary of public comments from project
objector, Jim Childs, in which Childs commented that the
project’s density should be set according to the redevelopment
plan. The letter contains no response to Childs’s comment.
The notice of exemption dated September 12, 2019 granting
the Class 32 exemption similarly discussed the findings
concerning the community plan and overlay district, but did not
mention the redevelopment plan.
In response to the administrative appeals filed by Childs
and the project applicants, the City’s Department of City
Planning prepared an appeal recommendation report. The report
noted that one of Childs’s contentions in the appeal was that the
project did not conform to the redevelopment plan. The report
acknowledged, “[T]he project site is subject to the
Exposition/University Park Redevelopment Plan,” but concluded
that “under the State and City Density Bonus provisions, projects
that request and qualify for a Density Bonus base the bonus on
the zoning code or general plan density, not on a redevelopment
plan.”
The planning commission denied Childs’s administrative
appeal on October 10, 2019. The commission then issued a
corrected letter of determination on December 11, 2019 imposing
conditions of approval on the project, including, “Prior to the
issuance of a building permit, the Applicant shall obtain approval
35
from . . . the Department of City Planning, as the successor to the
Community Redevelopment Agency, as approved by Ordinance
186,325.” Again, that ordinance enacted LAMC section 11.5.14,
which requires the planning department to determine whether a
project complies with the relevant redevelopment plan. (Id.,
subd. (D)(4)(e).)
After receiving public comment, the city council’s planning
and land use management committee recommended the council
adopt the planning commission’s findings and deny Childs’s
appeal. The committee’s report did not mention the
redevelopment plan. The city council adopted the committee’s
report and denied the appeal.
3. Current city law requires redevelopment plan
consistency before granting a Class 32 CEQA
exemption
To receive a Class 32 CEQA exemption, a project must be
“consistent with the applicable general plan designation and all
applicable general plan policies as well as with applicable zoning
designation and regulations.” (§ 15332, subd. (a).) Appellants
contend this requires the City to find the project consistent with
the redevelopment plan before granting a Class 32 exemption.
We agree.14
14 We note that the only inconsistency between the project
and the redevelopment plan appellants identify on appeal is that
the City’s calculation of the project’s allowable density and
density bonus resulted in more units than would otherwise be
permitted under the redevelopment plan. We address that
contention in Discussion, part E(5), post.
36
With the enactment in 2019 of LAMC section 11.5.14,
subdivision (B)(2), the city council effectively has incorporated
the land use requirements of the redevelopment plan into the city
zoning ordinance. To recap, that section provides
“Redevelopment Regulations,” which include “all the land use
provisions of the Redevelopment Plans,” “supersede” any
conflicting provisions of the zoning ordinance “or any other
relevant City ordinances.” (LAMC, § 11.5.14, subds. (B)(2), (C).)
Thus, when the City determines if a project is
“consistent . . . with applicable zoning designation and
regulations” for purposes of a Class 32 exemption (§ 15332,
subd. (a)), the City must evaluate the project not only under the
general zoning provisions relevant to the project area, but under
the applicable redevelopment plan as well, to ensure the general
zoning provisions do not conflict with the redevelopment plan as
applied to the particular project.
We recognize LAMC section 11.5.14, effective November 11,
2019, was not in effect when the City’s planning department
granted the Class 32 exemption or when the planning
commission denied Childs’s administrative appeal. It was in
effect, however, when the planning commission issued its
corrected letter of determination, which referenced the ordinance
enacting LAMC section 11.5.14, and when the city council denied
Childs’s administrative appeal. Also, in this mandamus
proceeding we “appl[y] the law that is current at the time of
judgment in the reviewing court.” (Make UC II, supra, 16 Cal.5th
at p. 55.) One purpose of this rule “is to prevent the appellate
courts from issuing orders for the construction of improvements
contrary to presently existing legislative provisions.” (Fairbank
v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1257, fn. 12
37
(Fairbank).) We therefore conclude current law requires the City
to find the project is consistent with the redevelopment plan
before granting the Class 32 exemption.
Respondents cite authority that courts may not apply a law
retroactively unless “ ‘it contains express language of
retroactivity or if other sources provide a clear and unavoidable
implication that [the legislative body] intended retroactive
application.” (Myers v. Philip Morris Companies, Inc. (2002)
28 Cal.4th 828, 844; see City of Monte Sereno v. Padgett (2007)
149 Cal.App.4th 1530, 1539 [new laws apply retroactively only
when they “have no effect on substantive rights or liabilities, but
which affect only modes of procedure to be followed in future
proceedings”].) None of these cases involved writs of mandamus,
the context in which Make UC II declared courts should apply
current law. Further, Make UC II did not indicate its rule
depended on legislative intent of retroactivity.
Respondents argue the rule applying current law in
mandamus proceedings “is appropriate only if there are no vested
rights or administrative finality involved.” (See Fairbank, supra,75 Cal.App.4th at p. 1257, fn. 12 [“at least where no vested rights
will be impaired, it is appropriate for an appellate court to apply
the law in existence at the time of its decision rather than at the
time an approval was issued”].) They contend, “[T]he Project
approvals were final and not subject to appeal.”
“The doctrine of vested rights is ordinarily applied when a
local agency attempts to prevent the completion or use of a
project on the grounds that the project, while lawful at the time a
permit was issued, had been rendered unlawful by an intervening
change in the law.” (Attard v. Board of Supervisors of Contra
Costa County (2017) 14 Cal.App.5th 1066, 1076.) “In California,
38
the developer’s right to complete a project as proposed does not
vest until a valid building permit, or its functional equivalent,
has been issued and the developer has performed substantial
work and incurred substantial liabilities in good faith reliance on
the permit.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309,
321; see South Lake Tahoe Property Owners Group v. City of
South Lake Tahoe (2023) 92 Cal.App.5th 735, 747 [“The requisite
permit on which a vested right may be based is a valid building
permit or its functional equivalent”].) California courts apply the
requirement of a building permit or functional equivalent “most
strictly,” “regardless of the property owner’s detrimental reliance
on local government actions and regardless of how many other
land use and other preliminary approvals have been granted.”
(Toigo, at p. 322.)
Respondents do not contend the City has issued a building
permit or its functional equivalent for this project. To the
contrary, in their briefing they concede the planning commission
conditioned issuance of a building permit on a future
redevelopment plan consistency analysis. Absent a building
permit or its functional equivalent, respondents cannot invoke
the doctrine of vested rights.
Respondents rely on Russian Hill Improvement Assn. v.
Board of Permit Appeals (1967) 66 Cal.2d 34 for their contention
that “administrative finality” precludes application of current law
to the approvals in this case. Russian Hill involved a provision of
San Francisco’s city planning code providing that once the city
issued a lawful permit, the project could be completed in
accordance with the approved plans even if there were a
subsequent change to the zoning laws. (Id. at pp. 36 & fn. 1, 39.)
The effect of this provision was to modify the common law vested
39
rights doctrine to no longer require that developers perform
substantial work in reliance on the permit to obtain immunity
from revocation of the permit based on changes in the law. (See
id. at p. 39.) In that particular case, the Court of Appeal
concluded the developer could not rely on the provision because
the permit application was pending before the Board of Permit
Appeals, and therefore had yet to be granted. (Id. at p. 36.)
Russian Hill does not help respondents for two reasons.
First, the developer in that case relied on a San Francisco law
modifying the vested rights doctrine, but respondents identify no
equivalent provision in the Los Angeles Municipal Code. We
decline to scour that code for pertinent authority on respondents’
behalf.
Second, although modifying the vested rights doctrine, the
San Francisco law required a lawfully issued building permit,
which, as discussed above, has not been issued in this case.
Notably, the developer in Russian Hill was denied immunity
from changes in the law because the developer’s application was
pending administrative appeal. Similarly, here the city council
enacted LAMC section 11.5.14 while an administrative appeal
was pending before the council, and therefore that municipal code
provision was in effect before there was “administrative finality.”
Respondents cite authority for the purported proposition
that “CEQA employs a strong policy in favor of certainty and
finality that militates against any requirement that the City
Council would be obligated to apply [Los Angeles Ordinance
No. 186325]—and restart the entire Project entitlement CEQA
review processes—at that late date.”
As an initial matter, we do not hold or suggest the City
must “restart the entire Project entitlement CEQA review
40
processes.” We merely hold the City must assess whether the
project complies with the redevelopment plan to the extent the
plan conflicts with relevant provisions of the municipal code.15
Our holding leaves untouched the City’s other findings regarding
the Class 32 exemption.
Respondents’ authorities are also inapposite. Long Beach
Sav. & Loan Assn. v. Long Beach Redevelopment Agency (1986)
188 Cal.App.3d 249 noted the CEQA Guidelines had been
extensively revised since “the original adoption of the
redevelopment project” at issue in that case. (Id. at p. 261,
fn. 12.) The Court of Appeal concluded that “[f]airness and the
need for finality” dictated that the agency’s environmental review
process should “be measured against those regulations in effect
as of . . . the date when respondents presented the negative
declaration for public review.” (Ibid.) The court observed that
the drafters of the CEQA Guidelines had “recognized” “this rule
of reason” through section 15007, although the relevant
provisions were not in effect at the time of the approvals in that
case. (Long Beach Sav. & Loan Assn., at p. 261, fn. 12.) Those
relevant provisions provide that “[a]mendments to the guidelines
apply prospectively only,” and “[i]f a document meets the content
15 As we address in Discussion, part E(5), post, under the
particular circumstances of this case, state law dictates that the
project’s maximum allowable density and density bonus are
determined according to the City’s generally applicable zoning
ordinance rather than the redevelopment plan. Inconsistency
between the project’s density and the redevelopment plan
therefore does not preclude application of the Class 32 exemption.
We have no occasion to address whether state law otherwise
affects analysis of the project’s consistency with the
redevelopment plan, and we express no opinion on that question.
41
requirements in effect when the document is set out for public
review, the document shall not need to be revised to conform to
any new content requirements in guideline amendments taking
effect before the document is finally approved. (§ 15007, subds.
(b), (c).)
Citizens for Positive Growth, supra, 43 Cal.App.5th 609,
similarly acknowledged that under section 15007, an agency
did not have to comply with CEQA Guidelines regarding traffic
impacts enacted after completion of the EIR. (Id. at pp. 625–
626.)
These cases do not assist respondents, because the case
before us does not involve a change to the CEQA Guidelines, but
a change to the Los Angeles Municipal Code affecting land use
requirements for the project area. Simply put, section 15007’s
rule of prospective application is inapplicable.
Respondents’ argument is also inconsistent with the
Supreme Court’s retroactive application in Make UC II of
statutory changes to CEQA’s treatment of noise for residential
projects. Given that authority, respondents cannot credibly
argue that courts do not apply current law in mandamus
proceedings concerning CEQA. Respondents in fact rely on that
rule to invoke Assembly Bill No. 1307 in their favor on the noise
issue. It would be anomalous for us to hold that a developer may
benefit retroactively from a change in the law affecting a CEQA
determination, but a project opponent may not.
In arguing against applying current law to the
redevelopment plan consistency issue, respondents also cite San
Mateo Gardens, supra, 1 Cal.5th 937. That case addressed
whether “CEQA’s subsequent review provision, [Public Resources
Code] section 21166, applies only to projects for which an initial
42
EIR was prepared,” but not projects for which a negative
declaration was prepared.16 (San Mateo Gardens, at pp. 953–
954.) In that case, a community college district in 2011 proposed
changes to a facilities improvement plan the district approved in
2006 through a mitigated negative declaration. (Id. at p. 946.)
Objectors challenged the plan change, contending, inter alia, that
the district could not rely on Public Resources Code section 21166
to avoid preparing an EIR because the district had never
prepared an initial EIR. (San Mateo Gardens, at pp. 953–954.)
The Supreme Court held Public Resources Code section
21166 applied equally when the agency had prepared a negative
declaration as opposed to an EIR. The court stated, “Limiting
agencies’ postapproval review obligations for projects that were
initially approved via negative declaration is wholly consistent
with a statutory scheme in which negative declarations, no less
than EIRs, are entitled to a presumption of finality once
adopted.” (San Mateo Gardens, supra, 1 Cal.5th at p. 956.) The
Supreme Court explained, “ ‘In a case in which an initial EIR has
16 Public Resources Code section 21166 provides, “When an
environmental impact report has been prepared for a project
pursuant to this division, no subsequent or supplemental
environmental impact report shall be required by the lead agency
or by any responsible agency, unless one or more of the following
events occurs: [¶] (a) Substantial changes are proposed in the
project which will require major revisions of the environmental
impact report. [¶] (b) Substantial changes occur with respect to
the circumstances under which the project is being undertaken
which will require major revisions in the environmental impact
report. [¶] (c) New information, which was not known and could
not have been known at the time the environmental impact
report was certified as complete, becomes available.”
43
been certified, [Public Resources Code] section 21166 comes into
play precisely because in-depth review of the project has already
occurred, the time for challenging the sufficiency of the original
CEQA document has long since expired, and the question before
the agency is whether circumstances have changed enough to
justify repeating a substantial portion of the process. [Citations.]
These same principles apply with even greater force in a case
such as this,’ in which the project ‘initially raised so few
environmental questions that an EIR was not required, but a
negative declaration was found to satisfy the environmental
review requirements of CEQA.’ . . . . [Citation.]” (San Mateo
Gardens, at p. 956.) The Supreme Court observed, “The
alternative that plaintiff proposes—which would restart the
CEQA process every time plans or circumstances change, or
whenever new information comes to light—‘would render agency
decisionmaking intractable, always awaiting updated
information only to find the new information outdated by the
time a decision is made.’ [Citations.]” (Ibid.)
Unlike in San Mateo Gardens, the instant case does not
involve a situation “ ‘in which an initial EIR [or negative
declaration] has been certified, . . . the time for challenging the
sufficiency of the original CEQA document has long since expired,
and the question before the agency is whether circumstances
have changed enough to justify repeating a substantial portion of
the process.’ ” (San Mateo Gardens, supra, 1 Cal.5th at p. 956.)
Rather, the issue in this case is whether the City complied with
prerequisite CEQA obligations in granting the Class 32
exemption. Public Resources Code section 21166, and the policy
behind it, do not apply here.
44
Appellants contend the redevelopment plan provided the
relevant zoning designation and regulations for the project area
for purposes of the Class 32 exemption even before enactment
of LAMC section 11.5.14. Because we conclude LAMC
section 11.5.14 applies in this mandamus proceeding, we do not
reach this contention.
4. The City cannot rely on a future redevelopment
plan consistency analysis to justify its prior
approval of the Class 32 exemption
As set forth in Discussion, part E(2)(b), ante, the City has
yet to determine whether the project is consistent with the
redevelopment plan. Respondents argue, however, the City
adequately addressed any need for redevelopment plan
consistency by imposing the condition that prior to issuance of a
building permit, the project applicant seek approval from the
community redevelopment agency or the City as the agency’s
successor. Respondents contend, “This condition assured that the
Project’s consistency with the Redevelopment Plan would be
formally determined, providing the requisite substantial
evidence” in support of the CEQA exemption. “If, for some
reason, [the applicant] were unable to obtain the required
Redevelopment Plan consistency determination, then the City
would not issue building permits for the Project until and unless
consistency could be established.” In other words, although
respondents concede the City had yet to determine
redevelopment plan consistency when it granted the Class 32
exemption, respondents claim the City has ensured such a
determination will be made or the project will not proceed.
We reiterate that under the applicable standard of review,
we may uphold the City’s exemption determination only if it is
45
supported by substantial evidence. A determination that has yet
to be made cannot provide substantial evidence of anything,
CEQA exemption or otherwise. Respondents cite no authority
allowing us to rely on future events to supply prerequisite
findings.
Respondents maintain the City’s practice of deferring
redevelopment consistency determinations is “longstanding,” and
particularly warranted in this case because at the time of the
relevant approvals, the City was transitioning authority over
redevelopment plans from the Community Redevelopment
Agency to the City itself. Respondents contend, “The City’s
condition that Real Parties obtain a future Redevelopment Plan
consistency determination . . . was a reasonable approach to
dealing with this procedural transition and was consistent
with . . . past practice.” Respondents further argue that “no
provision of CEQA or other law prohibits the City’s
Redevelopment Plan approach here.”
Longstanding practice or administrative convenience
cannot override the fact that under LAMC section 11.5.14, the
redevelopment plan’s zoning provisions are now part of the City’s
zoning ordinance. In the absence of a redevelopment plan
consistency determination, then, there is no substantial evidence
of zoning consistency, a required element of a Class 32
exemption. Given the substantial evidence requirement, we
disagree that CEQA allows the City’s deferred approach.
Respondents cite case law and provisions of CEQA to argue
that CEQA does not require agencies to conduct all regulatory
review simultaneously with CEQA review, and CEQA encourages
environmental analysis early in the approval process, which
therefore of necessity may take place before other regulatory
46
approvals. Application of a Class 32 CEQA exemption requires
an agency to make specified findings. The fact that those
findings arguably might also be relevant to a non-CEQA approval
does not obviate the need for the agency to make those findings
before applying the exemption.
Respondents argue, “[F]ormal findings are not required for
categorical exemption determinations.” They cite Muzzy Ranch
Co., supra, 41 Cal.4th 372, which stated that the grant of a
CEQA exemption “need not necessarily be preceded by detailed or
extensive factfinding,” but rather “[e]vidence appropriate to the
CEQA stage in issue is all that is required.” (Id. at p. 388.)
Respondents also cite World Business Academy v. State Lands
Com. (2018) 24 Cal.App.5th 476, which stated, “ ‘The findings of
an administrative agency can be informal so long as they serve
the purposes of enabling the parties to determine whether and on
what basis to appeal and enabling a reviewing court to determine
the basis for the decision. [Citation.] . . . . [Citation.]’ [Citation.]”
(Id. at p. 496.) Further, “ ‘[A]n agency’s finding that a particular
proposed project comes within one of the exempt classes
necessarily includes an implied finding that the project has no
significant effect on the environment.’ [Citation.]” (Ibid.)
The fact that findings in support of a CEQA exemption
need not be formal or detailed does not negate the requirement
that findings must be made in the first place. Here, the record
reflects, and respondents concede, the City has not made any
findings regarding redevelopment plan consistency, apart from
concluding the redevelopment plan does not apply when
calculating allowable density. They therefore have failed to find
that the project is consistent with the applicable zoning for the
area, as required for the Class 32 exemption.
47
5. The Redevelopment Plan’s Density Provisions
Do Not Apply to the Project
Appellants argue the project already is inconsistent with
the redevelopment plan because the City calculated the project’s
allowable density based on the City’s generally applicable zoning
ordinance as opposed to the redevelopment plan.
As we explain below, we conclude under the circumstances
of this case, the state density bonus law requires the City to
determine the project’s maximum allowable density based on the
general zoning ordinance rather than the redevelopment plan,
despite the enactment of LAMC section 11.5.14. Thus, although
as a general matter, the project must be consistent with the
redevelopment plan to qualify for a Class 32 CEQA exemption
(see Discussion, part E(3), ante), here state law mandates that,
on the particular issue of density, the general zoning provision
provides the density requirements for the project. The
redevelopment plan’s density provisions therefore do not
constitute “applicable zoning designation and regulations”
(§ 15332, subd. (a)) to which the project must conform to qualify
for the Class 32 CEQA exemption. (See Wollmer v. City of
Berkeley (2011) 193 Cal.App.4th 1329, 1348–1349 [when city
waives zoning requirements as directed under state density
bonus law, the waived requirements do not constitute “applicable
zoning” for purposes of § 15332, subd. (a)].)
We further conclude the state density bonus law preempts
the redevelopment plan to the extent the plan imposes conditions
on density bonuses not required under state law.
48
a. Additional legal and procedural background
i. The state density bonus law
The state density bonus law (Gov. Code, § 65915) “requires
that cities and counties allow increased building density for
development projects that dedicate” a percentage of the dwelling
units to low- or very-low-income households.17 (Schreiber v. City
of Los Angeles (2021) 69 Cal.App.5th 549, 554–555 (Schreiber).)
“[Government Code] section 65915 imposes a clear and
unambiguous mandatory duty on municipalities to award a
density bonus when a developer agrees to dedicate a certain
percentage of the overall units in a development to affordable
housing.” (Latinos Unidos Del Valle De Napa Y Solano v. County
of Napa (2013) 217 Cal.App.4th 1160, 1167.) “A local ordinance
is preempted if it conflicts with the [state] density bonus law by
increasing the requirements to obtain its benefits.” (Schreiber, at
p. 558.)
The Legislature has amended Government Code section
65915 multiple times since the City granted the density bonus in
this case. In this mandamus proceeding, we apply the current
version of the statute. (Make UC II, supra, 16 Cal.5th at p. 55.)
Government Code section 65915, subdivision (f), defines
“ ‘density bonus’ ” as “a density increase over the otherwise
maximum allowable gross residential density as of the date of
17 In addition to housing for low- and very-low-income
households, the state density bonus law awards bonuses for
construction of other types of housing, including, inter alia, senior
citizen housing, moderate-income housing, transitional foster
youth housing, and student housing. (Gov. Code, § 65915,
subds. (b)(1)(C)–(F).)
49
application by the applicant to the city, county, or city and
county.” (Italics added.) As relevant here, subdivision (o)(6)
defines “ ‘maximum allowable residential density’ or ‘base
density’ ” as “the greatest number of units allowed under the
zoning ordinance, specific plan, or land use element of the general
plan . . . .”18 The density bonus is calculated as a percentage of
the maximum allowable residential density. (See, e.g., Gov.
Code, § 65915, subd. (f)(1), (2).) The Legislature further directs,
“This chapter [i.e., the chapter governing density bonuses] shall
be interpreted liberally in favor of producing the maximum
number of total housing units.” (Gov. Code, § 65915, subd. (r).)
The density bonus law requires cities to “adopt an
ordinance that specifies how compliance with this section will be
implemented,” although failure to do so “shall not relieve a
city . . . from complying with this section.” (Gov. Code, § 65915,
subd. (a)(1).)
ii. Municipal Code and redevelopment plan
density provisions
As noted in our Background, ante, the project site is zoned
RD1.5-1 with a Low Medium II Residential land use designation
under the South Los Angeles Community Plan, which itself is a
component of the City’s general plan. Under the generally
applicable density provisions of the Los Angeles Municipal Code,
18 For purposes of this appeal, we discern no difference
between “maximum allowable gross residential density” as used
in Government Code section 65915, subdivision (f) and
“ ‘[m]aximum allowable residential density’ ” as used in
subdivision (o)(6) of that same section, and the parties do not
argue otherwise.
50
RD1.5 zoning allows one dwelling unit per 1,500 square feet, or
approximately 29 units per gross acre. (LAMC, § 12.09.1,
subd. (B)(4).)
The redevelopment plan sets a lower maximum density
than the municipal code’s generally applicable density provisions,
stating, “New housing developed within the areas designated
Low Medium II Residential[ ] shall not exceed twenty-four (24)
dwelling units per gross acre.” (Hoover Redevelopment Plan,
supra, § 1304.)
In accordance with Government Code section 65915,
subdivision (a)(1), the City has enacted a density bonus
ordinance, LAMC section 12.22, subdivision (A)(25), “to establish
procedures for implementing State Density Bonus
requirements . . . and to increase the production of affordable
housing, consistent with City policies.” (LAMC, § 12.22,
subd. (A)(25)(a).) The ordinance defines “Density Bonus” as “a
density increase over the otherwise maximum allowable
residential density under the applicable zoning ordinance and/or
specific plan granted pursuant to this subdivision.” (Id.,
subd. (A)(25)(b), boldface omitted.)
Section 1306 of the redevelopment plan also provides for
density bonuses, stating, in relevant part, “[T]he Agency may, but
is not required to, . . . authorize new housing to be developed at
higher densities than otherwise permitted by [the redevelopment
plan].” Section 1306 then lists criteria for agency approval of a
density bonus, specifically that the bonus shall “1. Contribute to
the revitalization goals of the Plan. [¶] 2. Contribute to a
desirable residential environment, neighborhood stability, and
not adversely impact the neighboring environment. [¶]
3. Provide units with adequate living area and avoid excessively
51
dense development. [¶] 4. Provide appropriate parking.”
(Hoover Redevelopment Plan, supra, § 1306.)
iii. Density bonus proceedings
The project allocated six percent of its units to very-low-
income-housing, which under the state and city density bonus
laws entitled the project to a 22.5 percent density bonus over the
otherwise maximum allowable residential density. (Gov. Code,
§ 65915, subd. (f)(2); LAMC, § 12.22, subd. (A)(25)(c)(1).) The
parties do not dispute the City applied that bonus to a maximum
allowable residential density of 29 units per gross acre, the
density allowed under the generally applicable zoning ordinance,
as opposed to the 24 units per acre allowed under the
redevelopment plan.
As noted, when Childs objected that the density bonus was
inconsistent with the redevelopment plan, the City’s appeal
recommendation report concluded that “under the State and City
Density Bonus provisions, projects that request and qualify for a
Density Bonus base the bonus on the zoning code or general plan
density, not on a redevelopment plan.”
b. The zoning ordinance, not the redevelopment
plan, sets the maximum allowable density for
the project
The question before us is whether the maximum allowable
residential density to which the project’s density bonus is applied
is determined under the redevelopment plan or the City’s
generally applicable zoning ordinance. Under current City law,
as discussed in Discussion, part E(3), ante, the redevelopment
plan supersedes conflicting provisions in the zoning ordinance.
(LAMC, § 11.5.14, subd. (B)(1).) The state density bonus law,
52
however, directs that maximum allowable residential density is
calculated “as of the date of application by the applicant to the
city.” (Gov. Code, § 65915, subd. (f).) This provision effectively
freezes in time the local law setting maximum allowable
residential density as of the date the developer applies for the
density bonus.19 LAMC section 11.5.14 was enacted in
November 2019 while Childs’s administrative challenges to the
project were pending, well after the date of project application on
April 30, 2018. State law therefore requires we determine the
project’s maximum allowable residential density without regard
to LAMC section 11.5.14.
As previously noted, appellants contend the redevelopment
plan constituted the applicable zoning ordinance for the project
area even before the enactment of LAMC section 11.5.14. They
cite, inter alia, the fact that the City’s general plan states, “[T]he
land use authorities granted in the Redevelopment Project Area
Plans,” including the Exposition/University Park redevelopment
plan, “remain effective [despite the dissolution of the
redevelopment agency] and will continue to be administered by
the Department of City Planning.” (South Los Angeles
Community Plan, Nov. 2017, at p. 1–13; see id. at p. 3–29.)
Appellants argue the redevelopment plan therefore sets the
19 We note Government Code section 65915, subdivision (f)
would not prevent a locality from increasing the maximum
allowable residential density for a project after the date of
application, because the state density bonus law also provides, “If
permitted by local ordinance, nothing in this section shall be
construed to prohibit a city, county, or city and county from
granting a density bonus greater than what is described in this
section for a development that meets the requirements of this
section.” (Id., subd. (n).)
53
maximum allowable residential density for the project regardless
of LAMC section 11.5.14.
Respondents disagree, observing the state density bonus
law determines maximum allowable residential density “under
the zoning ordinance, specific plan, or land use element of the
general plan” (Gov. Code, § 65915, subd. (o)(6)), without reference
to redevelopment plans. Respondents argue this indicates
redevelopment plans have no bearing whatsoever on density
determinations.20
We need not reach respondents’ argument. Assuming
arguendo redevelopment plans can set the maximum allowable
residential density for an area under certain circumstances, as
appellants contend, we nonetheless conclude in this case, the
state density bonus law requires the City to calculate the
project’s density using the generally applicable zoning ordinance
rather than the redevelopment plan. The Legislature has defined
“ ‘[m]aximum allowable residential density’ ” as, in relevant part,
“the greatest number of units allowed under the zoning
ordinance, specific plan, or land use element of the general plan.”
(Gov. Code, § 65915, subd. (o)(6), italics added.) The disjunctive
“or” indicates that when a locality has multiple land use
provisions governing density that conflict with one another, the
locality should look to the provision that allows the greatest
number of units to be constructed. This is consistent with the
Legislature’s guidance that the density bonus law “shall be
20 Appellants do not contend the redevelopment plan is a
“specific plan” as that term is used in the Government Code. (See
Gov. Code, § 65450 [allowing local planning agencies to “prepare
specific plans for the systematic implementation of the general
plan”].)
54
interpreted liberally in favor of producing the maximum number
of total housing units.” (Id., subd. (r).)
At the time of project application, which occurred before
enactment of LAMC section 11.5.14, the generally applicable
zoning ordinance and the redevelopment plan were separate land
use provisions, the former of which allowed more density than
the latter. Government Code section 65915, subdivision (o)(6)
makes clear that when determining allowable density for
purposes of awarding a density bonus, the City’s zoning
ordinance, as the land use provision allowing the greatest
number of units, prevails over any competing land use
provision.21
Appellants’ interpretation, under which the redevelopment
plan, even before the enactment of LAMC section 11.5.14, would
supersede and effectively eliminate the general zoning provisions
for the project area, would lead to fewer units being constructed
than are allowed under the City’s zoning ordinance. That is
inconsistent with the Legislature’s directive to interpret the
density bonus law “liberally in favor of producing the maximum
number of total housing units.” (Gov. Code, § 65915, subd. (r).)
We therefore decline to read “zoning ordinance,” as used in the
density bonus law, not to include a general zoning ordinance
merely because there is a redevelopment plan that conflicts with
it. Rather, we conclude the City’s general zoning ordinance is one
of several land use provisions the City must look to when
determining which provision allows the greatest residential
density. In this case, at the time the developer applied for the
21 The parties do not dispute the general plan itself
does not define the maximum allowable density for the area, nor
do they identify a specific plan that does so.
55
density bonus, the zoning ordinance allowed a greater number of
units than the redevelopment plan, and therefore the City
correctly calculated the density bonus based on the zoning
ordinance.22
Appellants cite PR/JSM Rivara LLC v. Community
Redevelopment Agency (2009) 180 Cal.App.4th 1475 (Rivara),
which held that a redevelopment agency’s design guidelines
setting a lower maximum allowable density than the City’s
zoning ordinance did not conflict with the state density bonus
law. (Id. at pp. 1485–1486.) The Court of Appeal reached this
conclusion “because the Los Angeles Municipal Code allows a
redevelopment plan to adopt a base density that is lower than the
‘maximum allowable residential density’ under the applicable
zoning ordinance.” (Ibid.)23
Rivara is inapposite because the version of the state
density bonus law applied in that case provided that “ ‘maximum
allowable residential density’ ” was set “under the applicable
zoning ordinance,” without the language in the current version of
the statute requiring localities to set density based on the
22 We express no opinion whether, if a redevelopment plan
allowed greater density than a zoning ordinance, the
redevelopment plan would control for purposes of the state
density bonus law.
23 Rivara cites LAMC section 12.21.3, subdivision (F) for
the proposition that redevelopment plans may set lower densities
than the zoning ordinance. (Rivara, supra, 180 Cal.App.4th at
p. 1485.) That subdivision, which was enacted in 1986, does not
expressly refer to density. Rather, it states, “Additional
limitations on the height and/or floor area of any building or
structure may be required as set forth in each applicable
Community Redevelopment Plan.” (LAMC, § 12.21.3, subd. (F).)
56
“greatest” density permitted among competing land use
documents. (Rivara, supra, 180 Cal.App.4th at p. 1485; see Gov.
Code, former § 65915, subd. (g) (Stats. 2005, ch. 496, § 2).)24 The
version of Government Code section 65915 applied in Rivara also
lacked a subdivision equivalent to subdivision (r) of the current
statute directing us to interpret the state density bonus law
“liberally in favor of producing the maximum number of total
housing units.” Given these changes in the law, we do not find
Rivara instructive on the issue before us.
We address a final point raised in the parties’ last round of
supplemental briefing. The City appears to assume that, because
the state density bonus law determines maximum allowable
density “as of the date of application” (Gov. Code, § 65915,
subd. (f)), we should apply not only the City’s density limits as
they existed when the developer applied for the project’s density
bonus, but also the version of the state density bonus law in effect
at the time, that is, the 2018 version. As relevant to this case,
the current version and the 2018 version differ in their
definitions of “maximum allowable residential density.” Under
the version in effect in 2018, maximum allowable residential
density was defined, in relevant part, as “the density allowed
under the zoning ordinance and land use element of the general
plan . . . . Where the density allowed under the zoning ordinance
is inconsistent with the density allowed under the land use
element of the general plan, the general plan density shall
prevail.” (Gov. Code, § 65915, former subd. (o)(2), Stats. 2016, ch.
24 Based on the quoted statutory language and citation in
Rivara, it appears the court in that case did not apply the then-
current version of Government section 65915 (Stats. 2008,
ch. 454, § 1), but rather the version in effect the year prior.
57
761, § 1.7.) In other words, the 2018 version did not direct cities
to apply the greatest density permitted under competing land use
provisions, instead directing only that the general plan would
prevail over the zoning ordinance to the extent they conflicted.
We disagree with the City’s assumption that the 2018
version of the state density bonus law applies to this case.
Although we have concluded Government Code section 65915,
subdivision (f) freezes in time the local law setting maximum
allowable residential density as of the date the developer applies
for the density bonus, we do not read that subdivision as also
freezing in time the applicable state density bonus law such that
we would not apply the current definition of maximum allowable
residential density under the statute.
To reiterate, Government Code section 65915,
subdivision (f) provides, “ ‘[D]ensity bonus’ means a density
increase over the otherwise maximum allowable gross residential
density as of the date of application . . . .” Subdivision (o)(6) then
supplies the definition of “ ‘[m]aximum allowable residential
density’ ” as “the greatest number of units allowed under the
zoning ordinance, specific plan, or land use element of the general
plan . . . .”
When the definition from Government Code section 65915,
subdivision (o)(6) is substituted for “maximum allowable gross
residential density” in subdivision (f), subdivision (f) reads as
follows: “ ‘[D]ensity bonus’ means a density increase over the
otherwise greatest number of units allowed under the zoning
ordinance, specific plan, or land use element of the general plan
as of the date of application.” This makes clear the phrase “as of
the date of application” refers to the “greatest number of units
allowed” under the listed land use provisions, not the state law
58
definition of “maximum allowable residential density” itself.
Accordingly, we reject the City’s assumption that we should not
apply the current state density bonus law.
In sum, under state law the general zoning ordinance, not
the redevelopment plan, is the “applicable zoning” (§ 15332,
subd. (a)) for this particular project on the issue of density. The
City’s reliance on the zoning ordinance rather than the
redevelopment plan when determining the project’s maximum
allowable density therefore is not grounds to deny a Class 32
CEQA exemption.25
c. State law preempts the redevelopment plan’s
density bonus requirements
After consideration of additional briefing we requested from
the parties, we conclude the state density bonus law preempts
the redevelopment plan to the extent the plan requires the City
to make the findings under section 1306 of the plan before
granting a density bonus under the state and City density bonus
laws. In their additional briefing, appellants and respondents
agree with this conclusion.26
25 We emphasize our holding is based on City law as it
existed as the time of project application. We express no opinion
whether the analysis would be different for projects applying for
a density bonus after enactment of LAMC section 11.5.14, an
issue that is not before us.
26 In their original briefs and their supplemental briefs
following transfer from the Supreme Court, the parties did not
raise or address whether the state density bonus law preempts
the redevelopment plan’s density bonus provision. Rather,
appellants argued the City had failed to determine the project
59
Section 1306 of the plan allows a density bonus of an
unspecified quantity if certain findings are made regarding, inter
alia, the project’s contribution to the plan’s “revitalization goals,”
whether the project will contribute to “neighborhood stability”
and “avoid excessively dense development,” and whether the
project provides “appropriate parking.” (Hoover Redevelopment
Plan, supra, § 1306.)
Government Code section 65915, subdivision (a)(2)
provides, “A local government shall not condition the submission,
review, or approval of an application pursuant to this chapter on
the preparation of an additional report or study that is not
otherwise required by state law, including this section.” This
language on its face prohibits a locality from requiring findings
beyond what state law requires to grant a density bonus. In
Schreiber, supra, 69 Cal.App.5th 549, for example, the Court of
Appeal held state law preempted a city ordinance requiring a
density bonus applicant to prove the economic necessity of an
incentive requested under the state density bonus law, a
requirement not in the state density bonus law itself. (Id. at
p. 558.) Here, also, the redevelopment plan requires findings in
support of a density bonus that are not required under state law.
Because the redevelopment plan “increas[es] the requirements to
obtain [the state density bonus law’s] benefits,” it is preempted.
(Ibid.)
Our preemption analysis is confined to the issue before us,
where an applicant seeks a mandatory density bonus under the
state and/or City density bonus provisions. We express no
satisfied section 1306 of the redevelopment plan, and respondents
argued other findings by the City effectively satisfied that
section.
60
opinion whether an applicant seeking a greater density bonus
from the City beyond the bonus mandated under the state
density bonus law must meet the criteria in the redevelopment
plan.
6. The Class 32 Exemption Must Be Set Aside
Until the City Determines Redevelopment Plan
Consistency
In conclusion, under current City law as reflected in LAMC
section 11.5.14, the City cannot grant a Class 32 CEQA
exemption unless it determines the project is consistent with the
redevelopment plan. The Supreme Court has directed that we
apply current law in mandamus proceedings (Make UC II, supra,
16 Cal.5th at p. 55), a rule intended to “prevent the appellate
courts from issuing orders for the construction of improvements
contrary to presently existing legislative provisions.” (Fairbank,
supra, 75 Cal.App.4th at p. 1257, fn. 12.)
We recognize that based on the state density bonus law, we
have ruled in respondents’ favor on the only inconsistency
appellants have identified on appeal, that is, the inconsistency
between the project and the redevelopment plan’s density
limitations. We have also rejected appellants’ other challenges to
the City’s approval of the Class 32 exemption. In a non-CEQA
case, these circumstances might normally lead to a straight
affirmance.
CEQA, however, requires a different disposition when an
agency has failed to make a determination required by CEQA.
As our Supreme Court has counseled, “ ‘[W]hen an agency fails to
proceed [as CEQA requires], harmless error analysis is
inapplicable. The failure to comply with the law subverts the
purposes of CEQA if it omits material necessary to informed
61
decisionmaking and informed public participation. Case law is
clear that, in such cases, the error is prejudicial. [Citations.]’ ”
(Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 515.) An
agency may overcome that showing of prejudice by demonstrating
the omitted information was immaterial, but the burden is on the
agency to do so. (See Environmental Protection Information
Center v. California Dept. of Forestry & Fire Protection (2008)
44 Cal.4th 459, 488 [“it is the burden of the agency that
erroneously omitted the [information] to establish [the
information is] merely duplicative]”].)
As discussed, respondents argue we should affirm and not
remand for any further findings because the redevelopment plan
does not apply to the Class 32 exemption analysis in this case, or
alternatively, a future redevelopment plan consistency analysis
conducted as part of the building permit process will retroactively
satisfy CEQA’s requirements. We have rejected both arguments.
Consistent with Supreme Court authority, we thus instruct the
trial court to grant a writ setting aside the Class 32 exemption
and directing the City to determine redevelopment plan
consistency before reinstating the exemption.
The scope of remand is cabined by our holdings in this
opinion. The sole issue upon which the City must make further
findings before reinstating the Class 32 exemption is
redevelopment plan consistency. Appellants may not raise
challenges to the Class 32 exemption beyond redevelopment plan
consistency, nor may they relitigate the challenges we have
rejected herein. Our opinion further forecloses argument that the
project’s inconsistency with the redevelopment plan’s base
density or density bonus requirements precludes application of
the Class 32 exemption.
62
As noted, the City has imposed as a condition of approval
that the planning department determine redevelopment plan
consistency before granting the project a building permit. Our
limited remand thus should not impose any additional burden or
delay.
F. Substantial Evidence Supports the Conclusion That
the Project Will Not Have Significant Traffic Effects
Appellants argue the record lacks substantial evidence that
the project would not create significant traffic effects, one of the
criterion for the Class 32 exemption to apply under section 15332,
subdivision (d). Specifically, appellants contend there is no
evidence the project will not cause safety hazards due to
increased traffic and insufficient parking. We disagree.
The record contains a transportation impact study dated
June 2018. The study found the project “is estimated to generate
a total 1,126 net new daily weekday trips, including 12 morning
peak hour trips and 75 afternoon peak hour trips.” The study
concluded, “Based on [Los Angeles Department of
Transportation] significance criteria, the Project is not
anticipated to result in a significant impact at any of the six
study intersections . . . . Therefore, no mitigation measures are
required.” The study reached a similar conclusion regarding
future traffic conditions. The study found “[t]he Project provides
adequate internal circulation to accommodate vehicular traffic
without impeding through traffic movements on City streets.”
The record also contains a parking demand study dated
May 3, 2018. The study stated the project would provide
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approximately 25927 parking spaces for an estimated 584 to 990
tenants. The study compared the project’s proposed number of
parking spaces with “observed parking demand” at comparable
nearby housing locations as well as municipal code requirements.
The study concluded the project provided 34% more parking
spaces than required under the municipal code. The project also
provided more spaces per bedroom than were observed at three
existing housing locations, all of which were observed to have
sufficient parking based on “the maximum observed weekday
parking occupancy.”
These studies are substantial evidence in support of the
City’s finding that the project would not result in significant
traffic effects.
Appellants’ primary argument to the contrary is that the
studies did not account for public comments indicating the
project’s neighborhood already suffers from insufficient parking
and hazards caused by, for example, vehicles double parking or
circling while looking for parking. Appellants also argue the
traffic study focused solely on congestion, without evaluating
traffic safety. Implicit in the parking study’s conclusion,
however, that the project provides sufficient parking, is that the
project will not appreciably increase the number of motorists
searching for on-street parking. Similarly, the traffic study’s
conclusion that the project would not result in a significant
increase in traffic supports the inference that there will be no
significant increase in traffic dangers either.
27 The revised project reduced the number of parking
spaces to 255.
64
We acknowledge that the traffic study concluded the project
will result in some increase in traffic, but to negate a Class 32
exemption, that increase would have to be significant. The study
concluded the increase would not be significant under the
applicable standards. Again, this is substantial evidence in
support of the City’s finding of CEQA exemption.
Appellants question the validity of the parking study,
noting the discrepancy between 990 tenants and 259 parking
spaces and citing, inter alia, a statement by the Land Use and
Planning Executive Director for USC that the study
underestimates the project’s parking needs and likely traffic
impacts. It is not our role in conducting substantial evidence
review to assess the credibility of evidence, or reweigh it against
contrary evidence. The City had the full study and could
evaluate how much weight to afford it. For the same reason,
appellants’ citations to statements and evidence regarding traffic
concerns from other parties opposed to the project do not carry
the day given the applicable standard of review.
Appellants argue the City has acknowledged the hazards
created by the lack of parking in the project area because the
project falls within a neighborhood stabilization overlay district
(NSO) pursuant to LAMC section 13.12. NSOs are intended to
address impacts caused by “multi-habitable room projects” in
neighborhoods “proximate to colleges and universities.” (LAMC,
§ 13.12, subd. (A).) Among other things, projects within NSOs
must provide additional parking beyond the City’s general
parking requirements. (Id., subd. (C)(2).)
Appellants concede the project meets criteria under the
state density bonus law such that it does not have to comply with
65
the NSO parking requirements.28 Instead, they argue the City
nonetheless must address the impacts the NSO’s parking
requirements are intended to ameliorate. Substantial evidence
supports that the City did so. The parking study expressly
concluded the project has sufficient parking, not based merely on
the project’s compliance with the municipal code, but also on
observed parking needs at other residential buildings the study
deemed comparable. Assuming arguendo the project area has
existing problems with insufficient parking, the parking study is
substantial evidence that the project will not significantly
exacerbate that problem.
G. The Record Lacks Substantial Evidence the Project
May Adversely Impact a Historical Resource
Appellants argue the project may adversely impact various
nearby historical resources, thus falling within an exception to
the Class 32 exemption. We disagree because appellants’
supporting evidence is insufficient to support a fair argument
that the project would adversely impact a historical resource.
1. Applicable law
As previously noted, a project otherwise subject to a
Class 32 exemption nonetheless must undergo environmental
review if the project “may cause a substantial adverse change in
the significance of a historical resource.” (§ 15300.2, subd. (f).)
A resource is historical if it is “listed in, or determined to be
eligible by the State Historical Resources Commission, for listing
28 We accept appellants’ concession for purposes of this
appeal, and express no opinion as to the interplay of the NSO and
state density bonus law.
66
in the California Register of Historical Resources.” (§ 15064.5,
subd. (a)(1).) A resource is presumptively historical if it is
included in a local register of historical resources, or identified as
significant in a historical resource survey, absent a
preponderance of evidence to the contrary. (Id., subd. (a)(2).) If
an “object, building, structure, site, area, place, record, or
manuscript” does not meet either of the above criteria, a lead
agency29 may nonetheless determine it is a historical resource if
that determination is supported by substantial evidence.
(§ 15064.5, subd. (a)(3)–(4).)
“Generally, a resource shall be considered by the lead
agency to be ‘historically significant’ if the resource meets the
criteria for listing on the California Register of Historical
Resources [citation] including the following: [¶] (A) Is associated
with events that have made a significant contribution to the
broad patterns of California’s history and cultural heritage; [¶]
(B) Is associated with the lives of persons important in our past;
[¶] (C) Embodies the distinctive characteristics of a type, period,
region, or method of construction, or represents the work of an
important creative individual, or possesses high artistic values;
or [¶] (D) Has yielded, or may be likely to yield, information
important in prehistory or history.” (§ 15064.5, subd. (a)(3).)
“Substantial adverse change in the significance of an
historical resource means physical demolition, destruction,
relocation, or alteration of the resource or its immediate
29 “ ‘Lead agency’ means the public agency which has the
principal responsibility for carrying out or approving a project.
The lead agency will decide whether an EIR or negative
declaration will be required for the project and will cause the
document to be prepared.” (§ 15367.)
67
surroundings such that the significance of an historical resource
would be materially impaired.” (§ 15064.5, subd. (b)(1).)
Material impairment of a historical resource occurs when a
project “[d]emolishes or materially alters in an adverse manner
those physical characteristics of an historical resource that
convey its historical significance” and entitle it to be included in
the California Register of Historical Resources or similar local
registers. (Id., subd. (b)(2).)
When reviewing a determination that the historical
resources exception does not apply, we apply a bifurcated
standard. We review for substantial evidence an agency’s
determination that a resource is or is not a historical resource.
(Friends of Willow Glen Trestle v. City of San Jose (2016)
2 Cal.App.5th 457, 473.) If a resource is determined to be a
historical resource, “the fair argument standard applies to the
question whether the proposed project ‘may cause a substantial
adverse change in the significance of an historical resource’
[citation] . . . .” (Valley Advocates v. City of Fresno (2008)
160 Cal.App.4th 1039, 1072; see Berkeley Hillside, supra,60 Cal.4th at p. 1117 [citing Valley Advocates to support a
bifurcated standard of review for the unusual circumstances
exception].)
The fair argument standard “presents a legal question, i.e.,
the sufficiency of the evidence to support a fair argument” that
the project would have a significant environmental impact.
(Lucas v. City of Pomona (2023) 92 Cal.App.5th 508, 537.)
“[U]nder this standard, deference to the agency’s determination
is not appropriate and its decision [not to conduct further
environmental review] can be upheld only when there is no
credible evidence to the contrary.” (Ibid.) “The fair argument
68
standard thus creates a low threshold for requiring an EIR,
reflecting the legislative preference for resolving doubts in favor
of environmental review.” (Covina Residents for Responsible
Development v. City of Covina (2018) 21 Cal.App.5th 712, 723.)
2. Additional background
a. City’s findings and supporting evidence
The City found the project site was “not located in a
designated Historic Preservation Overlay Zone or on a site
designated as historic on any federal, state, or local database.”
The City noted the sole structure on the site was built in 1971,
and according to a study conducted by the Historic Resources
Group, “is not eligible for historic designation at the local, state,
or national level.” The City concluded, “The Project would not
cause a substantial adverse change in the significance of a
historical resource.”
A second report by the Historic Resources Group assessed
potential impacts on nearby historical resources. The report
identified as nearby historical resources two historic districts, one
historic preservation overlay zone, and 14 historical structures.
The southern border of the historic preservation overlay zone is
immediately across the street from the project site. The two
historic districts lie within the historic preservation overlay zone,
with the southern border of one district across the street
diagonally from the project site, and the other a block away.
Several of the historical buildings are on lots immediately
adjacent to the project site. The other buildings are across the
street or within a block or so of the project site.
The report stated, “Because the Project would add height
and density on parcels that are currently occupied by a two-story
69
institutional building and an associated surface parking area, the
immediate surroundings of the adjacent historical resources
identified in this report would be altered.”
The report then discussed each identified historical
resource, concluding any alteration to the surroundings caused by
the project would not materially impair the integrity or
significance of the resource. The report noted the project was
physically separated from the historic zone and districts by
West Adams Boulevard and therefore would not affect them
apart from being somewhat visible from certain locations within
those historic areas. The project would not alter or obscure the
historic primary facades of the immediately adjacent structures.
The remaining historical structures are “separated from the
Project by streets and other developed parcels,” and thus “there is
no potential impact from the proposed Project on their historic
integrity or ability to convey significance.”
b. Appellants’ evidence
In their appellate briefing, appellants identify the following
evidence as supporting a fair argument that the project will have
an adverse impact on historical resources.
Jim Childs, the appellant in the administrative appeals
challenging the City’s approvals, submitted a letter identifying
historic buildings and monuments neighboring, or close to the
project. In addition to the historical zones and districts discussed
above, Childs identified two other designated historic districts
“[l]ess than two blocks to the west” of the project, and a district
south of the project that Childs claimed was eligible for historical
designation. Childs contended the project did not satisfy any of
the “specific guidelines” for the historic overlay zones he
identified.
70
In another letter, Childs stated the project “is a negative
intrusion to the character[-]defining historic streetscape of West
Adams Boulevard,” and “does not respect the historic streetscape
of Severance Street.” Childs cited in particular the project’s
podium parking, which raised the project to a “non-compatible 4-
story height.” In another letter, Childs noted the ”very generous
depth of front setback” on nearby properties, which the project
itself did not have.
Mitzi March Mogul, who identified herself as a historic
preservation consultant, submitted a letter acknowledging the
project site contained no historic resources and was not within a
historical preservation zone, but objecting that the City had not
adequately considered the project’s impact on surrounding
historical resources. Mogul contended the nearby historical
resources “would be substantially damaged in terms of their
context, ambiance, environment (ie shade/shadow) and in some
cases, quality of life.” “A 4-story contemporary building looming
over a 2-story historic building is a major impact,” and “traffic,
noise, and other human-induced actions and effects will alter the
quality of life for those occupying the historic structures as well
as the way that others will experience the historic structures.” In
a second letter, Mogul contended, “The oversized and
incompatible development could adversely impact the historic
significance of the surrounding historic resources, both at a
project level and cumulatively.”
The Board of the University Park Historic Preservation
Overlay Zone (HPOZ Board) submitted a letter contending the
project, although not within the preservation zone, would be
immediately adjacent to the zone and therefore “will impact the
Zone in its character, compatibility and traffic. You cannot
71
visually separate one side of the street from the other in terms of
impacts to aesthetics, population and land use, and traffic.” “The
design of the project is completely inappropriate for Adams
Boulevard, which was developed as an attractive residential
streetscape and remains an important boulevard for the
neighborhood.”
The HPOZ Board stated that the project’s setback was not
consistent with “the pattern of development along this Scenic
Highway,” and was “extremely over-built for the community.”
The board objected to the podium parking, which “rarely exists in
University Park.”
A commenter identifying herself as a member of the local
neighborhood council stated the project was within “a legacy
neighborhood” with historic buildings and monuments, and the
project would “affect[ ] . . . the feeling and association and
location of these historic buildings.” The owner of a nearby
“housing community” stated, “The historic character of the
surrounding neighborhood begs for something different than the
‘glass and brass’ building” contemplated by the project. A realtor
noted the “significant landmark properties” along Adams
Boulevard near the project site, and argued the project was
incompatible in terms of size, podium parking, and lack of
sufficient setback. The North University Park Community
Association submitted a letter objecting that the project’s position
relative to Adams Boulevard, including its setback, was “not in
keeping with the pattern of development along this Scenic
Highway.”
3. Analysis
The reports by the Historic Resources Group are
substantial evidence in support of the City’s finding that the
72
project site itself does not contain historical resources and is not
within a historical preservation overlay zone or designated
historic district. Appellants concede as much, stating the project
site’s “history is not the subject of this litigation.”
Appellants contend, however, that the project site is within
the “immediate surroundings” of historical resources (§ 15064.5,
subd. (b)(1)), and “there is substantial evidence of a fair argument
that the Project would materially impair the integrity of the
setting of these historic resources.”
We accept arguendo the properties and historical zones and
districts identified by the Historic Resources Group and in
appellants’ cited evidence constitute historical resources for
purposes of CEQA. We nonetheless conclude appellants’ cited
evidence is insufficient to support a fair argument the project will
materially impair those resources.
Instructive is Eureka Citizens for Responsible Government
v. City of Eureka (2007) 147 Cal.App.4th 357 (Eureka Citizens),
which concerned the adequacy of an EIR evaluating an outdoor
playground. (Id. at p. 363.) Among other arguments, the
appellants, a group objecting to the playground, contended the
city “failed to analyze the impact of the Project on the ‘historic
character’ of the neighborhood.” (Id. at p. 374.) In support, the
appellants cited an expert study they had commissioned. (Ibid.)
The Court of Appeal held the study did not establish the
playground had materially impaired a historical resource.
(Eureka Citizens, supra, 147 Cal.App.4th at p. 374.)30 The study
30 The published portion of Eureka Citizens does not
specify the standard of review the appellate court applied to the
historical resource impact argument. It appears, however, the
73
identified “53 historically significant structures in the 30 block
general neighborhood of the Project,” but “posits no damage to, or
impairment of, any of them. Certainly it does not, and could not,
suggest that the Project contemplated any demolition of, or
material alteration of, the physical characteristics of the
identified historically significant structures. Contrary to
appellants’ argument, the only conclusion expressed in the study
was that the prairie addition neighborhood [comprised of
20 residences surrounding the subject playground] was
‘culturally significant,’ and that ‘The size, bright color, and lack
of setbacks . . . create a neighborhood intrusion.’ ” (Eureka
Citizens, at pp. 364–365, 374–375.)
The court continued, “Nothing in the study indicates that
the neighborhood, as opposed to individual structures within it,
meets the Guidelines definition for a ‘historical resource,’ and it
was never identified as such by the City as the lead agency.”
(Eureka Citizens, supra, 147 Cal.App.4th at p. 375.) The court
agreed with the city that “the evidence cited by appellants ‘simply
does not create the possibility that the Project will in some way
make any structure less historic . . . .’ ” (Ibid.)
The evidence cited by appellants in the instant case is
analogous to the evidence found wanting in Eureka Citizens.
The crux of the public comments cited by appellants is that the
project does not look like other properties in the neighborhood,
noting that it is larger, with smaller setbacks, and with an above-
ground podium parking structure. These comments are akin to
court evaluated the argument under a de facto fair argument
standard, because the court looked to whether the appellants’
cited evidence, i.e., their commissioned study, demonstrated a
possibility of an adverse impact on a historical resource.
74
the evidence in Eureka Citizens that the playground’s “ ‘size,
bright color, and lack of setbacks . . . create a neighborhood
intrusion.’ ” (Eureka Citizens, supra, 147 Cal.App.4th at p. 375.)
Absent from appellants’ cited evidence is virtually any
discussion of how the fact that the project does not look like
nearby buildings somehow “[d]emolishes or materially alters in
an adverse manner those physical characteristics of an historical
resource that convey its historical significance” and entitle it to
be included in the California Register of Historical Resources or
similar local registers. (§ 15064.5, subd. (b)(2).) Appellants offer
no evidence that construction of a contemporary building “ ‘will in
some way make any [nearby] structure less historic . . . .’ ”
(Eureka Citizens, supra, 147 Cal.App.4th at p. 375.)
Nor does the evidence suggest the project will obscure
nearby historical buildings. At best, commenter Mogul stated
generally that the project would “shade” or “shadow” nearby
buildings, and “[a] 4-story contemporary building looming over a
2-story historic building is a major impact.” These unspecific,
conclusory comments, without discussion of particular structures
and how the project’s alleged “looming” over them affects their
ability to convey their historical significance, are insufficient to
support a fair argument of material impact.
Also unavailing are the public comments suggesting the
project will materially impair the historical protection zone and
districts across the street. Here, again, the contention is that the
project adversely impacts the zone and districts because it is
visually incompatible with them. Were we to accept this
contention, we would effectively extend the protections of the
historic zone and districts to include areas outside the zone and
districts that are nonetheless visible to those within or near to
75
the zone and districts. If advocates wish to increase the borders
of the zone and districts, they may of course petition the
appropriate agencies. We, however, will not do so under the
guise of a CEQA evaluation, at least not based on the conclusory
statements cited by appellants.
To the extent the comments cited by appellants suggest the
area encompassing the project site itself, as opposed to certain
structures within it, is of historical significance, those comments,
again, are conclusory, and lack any argument or authority
suggesting the project site is within an area eligible for historical
designation. The mere fact that the area contains structures that
are themselves historical does not establish the neighborhood
itself is historical.
The City contends none of the public commenters is an
expert qualified to opine on historical resources impact. Given
our conclusion that the comments, expert or not, are insufficient
to support a fair argument of historical resource impact, we do
not reach this argument.
H. Cumulative Impact
Finally, appellants argue the Class 32 exemption does not
apply because “the cumulative impact of successive projects of the
same type in the same place, over time is significant.” (§ 15300.2,
subd. (b).) Appellants’ cumulative impact argument reasserts
their arguments that the project will exacerbate existing traffic
and parking problems, and along with similar projects, would
adversely impact the immediate surroundings of historical
resources.
Aptos Residents Assn. v. County of Santa Cruz (2018)
20 Cal.App.5th 1039 (Aptos Residents) held that the cumulative
impact exception is subject to a bifurcated standard of review
76
similar to that discussed above for the historical resource impact
exception. (Id. at p. 1048.) Aptos Residents analogized its
standard of review to the standard of review the Supreme Court
applied to the unusual circumstances exception in Berkeley
Hillside. (Aptos Residents, at pp. 1048–1049.) Under that
standard, we review an agency’s determination that unusual
circumstances do or do not exist for substantial evidence.
(Berkeley Hillside, supra, 60 Cal.4th at p. 1114; Aptos Residents,
at p. 1048.) Whether an unusual circumstance will produce a
significant effect, however, is evaluated under the fair argument
standard. (Berkeley Hillside, at p. 1115; Aptos Residents, at
pp. 1048–1049.)
Aptos Residents does not specify to what finding we apply
the substantial evidence standard when evaluating the
cumulative impact exception. The Aptos Residents court merely
stated, “[W]here an exception is predicated on a factual issue,
we apply a traditional substantial evidence standard.” (Aptos
Residents, supra, 20 Cal.App.5th at p. 1049.)
Appellants contend we should review for substantial
evidence whether there is an existing cumulative impact in the
area of the project site; if there is, we should assess under the fair
argument standard whether the project would contribute to that
impact. Respondents offer a somewhat different formulation, in
which we review for substantial evidence whether there is
“cumulative impact of successive projects of the same type in the
same place, over time,” (§ 15300.2, subd. (b)) and if so, evaluate
for fair argument whether that cumulative impact is significant.
We will accept arguendo appellants’ position that at the
first step of our analysis we review whether substantial evidence
supports a finding of no existing cumulative impacts. We agree
77
with respondents that the definition of “cumulative impact[s]”
refers to “impact[s from] successive projects of the same type [as
the subject project] in the same place over time.” (§ 15300.2,
subd. (b).)
Appellants argue the City already has acknowledged the
existence of cumulative parking impacts by designating the area
containing the project as a neighborhood stabilization overlay
district (NSO), which, again, is intended to address impacts
caused by “multi-habitable room projects” in neighborhoods
“proximate to colleges and universities,” including by requiring
additional parking. (LAMC, § 13.12, subds. (A), (C)(2).)
To establish an NSO, the City must determine, inter alia, that
the area to which the NSO will apply “is negatively impacted by
excessive on-street parking resulting from residential units
designed for student housing, which do not provide adequate
off-street parking.” (Id., subd. (B)(5).)
The City found, however, in reliance on the parking study,
that the project did provide adequate off-street parking. Thus, it
is not a project of the “same type” (§ 15300.2, subd. (b)) as that
addressed by the NSO, that is, student housing that does not
provide adequate off-street parking. Put another way, although
the NSO arguably is evidence of cumulative impact by student
housing with inadequate parking, that category does not include
the project in the instant case.
Appellants argue the project does not in fact provide
adequate parking under the NSO, which requires “one additional
parking space for each habitable room at or above five habitable
rooms.” (LAMC, § 13.12, subd. (C)(2).) Again, appellants concede
the project is exempt from the NSO by virtue of providing a
certain number of affordable units in accordance with the state
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density bonus law. Appellants argue, however, “Regardless of
whether the inclusion of a few affordable units overrides the
specific parking requirements of the NSO, it does not eliminate
the cumulative impacts the NSO was adopted to address.”
As previously discussed, however, the parking study on
which the City relied did not find the project’s parking is
adequate merely because it satisfies legal requirements. The
study also evaluated parking at other, similar residential
complexes and concluded the project provided sufficient parking
based on that comparison. The study is substantial evidence that
the project has adequate parking, and is not the “same type” of
project covered by the NSO.
Appellants further argue the City’s designation of Adams
Boulevard and other nearby streets as “High Injury” streets is
evidence of cumulative traffic safety impacts. Even, for
argument’s sake, were we to accept this contention as true, it
would not be evidence that the streets are dangerous because of
student housing. The traffic study, moreover, considered not only
present traffic conditions, but also future predicted conditions,
based on “related present and future development projects that
are proposed, approved, or under construction,” as well as
“regional growth projections.” The traffic study therefore
addressed potential cumulative impacts caused by the project and
“related present and future development projects,” and concluded
there would not be significant impacts. This is substantial
evidence there is not a cumulative impact on traffic safety caused
by developments like the project at issue in the instant case.
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We reject appellants’ argument that the project and others
like it cumulatively will adversely impact historical resources. As
previously discussed, even under the deferential fair argument
standard, appellants have failed to explain how the project will
have any adverse impact on nearby historical resources. In the
absence of evidence of any adverse impact at all, we cannot
conclude additional, similar projects would lead to a cumulative
impact.
DISPOSITION
The judgment is reversed. The matter is remanded and the
trial court is instructed to issue a writ of mandate directing the
City of Los Angeles to set aside its grant of a Class 32 CEQA
exemption to the subject project, and further directing the City
not to reinstate the exemption without first determining the
project is consistent with the Exposition/University Park
Redevelopment Plan in accordance with the holdings in this
opinion. The trial court shall retain jurisdiction over the
proceedings by way of a return to the writ. The parties shall bear
their own costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. WEINGART, J.
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