West Adams Heritage Assn. v. City of Los Angeles CA2/1

Filed 8/31/23 West Adams Heritage Assn. v. City of Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
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. ORDER MODIFYING
OPINION AND DENYING
CITY OF LOS ANGELES, PETITION FOR REHEARING
Defendant and Respondent; [NO CHANGE IN JUDGMENT]
ROBERT CHAMPION et al.,
Real Parties in Interest and
Respondents.
THE COURT:
The opinion in the above-entitled matter filed on
August 10, 2023 is modified as follows:
1. On page 5, third full paragraph, fourth
sentence, “were ‘atypical’ of the area and could ‘overwhelm’
neighboring apartment buildings with ‘noise and music’ ”
shall be changed to “ ‘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 . . . .’ ”
2. On page 11, second full paragraph, fourth and
fifth sentences, “ ‘The open areas being placed on the
rooftop 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.’ ‘[T]hough not deviating from the [building code],
the rooftop amenity would overwhelm those multi-family
structures immediately abutting the subject project on
Severance Street . . . .’ ” shall be replaced with “ ‘The open
areas being placed on the rooftop 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. [¶] The project’s scale and massing, in
addition to the podium level add to a development that
would not be comparable to any residential project in the
immediate area. In addition to the height and massing,
though not deviating from the [building code], the rooftop
amenity would overwhelm those multi-family structures
2
immediately abutting the subject project on Severance
Street, as shown on the Overall Elevations of
“Exhibit A” . . . . As such, the finding that the arrangement
of the building and associate components of this finding
cannot be made.’ ”
3. On page 13, last paragraph, first sentence, “It
is immaterial” shall be replaced with “It does not affect our
conclusion”.
4. On page 14, first paragraph, second sentence,
“addressed the noise concern” shall be replaced with “would
‘ensure noise f[ro]m the rooftop will not be disruptive to
surrounding uses.’ ”
5. On page 15, last paragraph, fourth sentence
(continuing on to p. 16), “instead concluding project
revisions and conditions sufficiently mitigated the concern”
shall be replaced with “instead concluding project revisions
and conditions sufficiently mitigated the concern by
‘ensur[ing] noise f[ro]m the rooftop will not be disruptive to
surrounding uses.’ ”
There is no change in judgment. Respondents’ petition for
rehearing is denied.
NOT TO BE PUBLISHED.
____________________________________________________________
BENDIX, Acting P. J. CHANEY, J. WEINGART, J.
3
Filed 8/10/23 West Adams Heritage Assn. v. City of Los Angeles CA2/1 (unmodified
opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
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 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, Parissh A.
Knox, Deputy City Attorney; Meyers Nave, Amrit S. Kulkarni
and Shaye Diveley for Defendant and Respondent.
DLA Piper, A. Catherine Norian, Kyndra Joy Casper and
Andrew Brady for Real Parties in Interest and Respondents.
____________________________
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
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 the project’s rooftop decks would not cause significant
1 The respondents’ brief 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
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. We agree with the trial
court that appellants have 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 agree with appellants, however, that the City
improperly relied on mitigation measures when concluding the
project’s rooftop decks would not cause significant noise impacts.
Appellants, therefore, are entitled to a writ of mandate setting
aside the City’s exemption finding.
Having concluded the noise impacts from the rooftop decks
bar application of the Class 32 exemption, we do not reach
appellants’ alternative argument that the decks trigger the
“unusual circumstances” exception to the exemption. We also
decline to reach the question of redevelopment plan consistency,
which the parties have not briefed adequately.
Accordingly, we reverse, and direct the trial court to issue a
writ of mandate.
3
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.
“Adjacent land uses include a four-story 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.2 Five of the units would be restricted affordable
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.
4
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.
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,” were “atypical” of the area and could “overwhelm”
neighboring apartment buildings with “noise and music.”
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
5
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
“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’ 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
6
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 the 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 in
full. When appropriate, we note in our Discussion, post, the trial
court’s ruling on particular issues.
Appellants timely appealed.
DISCUSSION
Appellants do not challenge the trial court’s rejection of
their claims under the state planning and zoning law and
municipal code. Their arguments on appeal pertain solely to the
City’s application of the Class 32 CEQA exemption. As we
explain, one of their challenges has merit, and thus reversal is
appropriate.
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,
7
945.) “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 [EIR] 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).)
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 15332.3 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
3 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.)
8
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)).
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
9
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 discuss the standard of review for the City’s findings
regarding the various exceptions to the exemption in the
applicable sections, post.
C. The City Improperly Relied on Mitigation Measures
To Conclude the Project Would Not Result in
Significant Noise
Appellants argue the project does not qualify for a Class 32
exemption because the City’s conclusion the project would not
create significant noise improperly depended on mitigation
measures. We agree.
1. Additional background
A consultant provided the City with a memorandum dated
August 23, 2018, evaluating the proposed project for noise and
groundborne vibration. As relevant here, the memorandum
stated the project’s pool deck “would be most likely to generate
audible noise levels at nearby sensitive receptors. The other
outdoor activity areas would be internally oriented and unlikely
to produce substantial noise levels at nearby receptors. As such,
the project would include operational restrictions to limit
excessive noise from pool deck activities. Such restrictions would
include limiting the hours of use to between 7:00 a.m. and 10:00
p.m. (to correspond with the daytime hours specified by the City’s
noise ordinance), enforcing all applicable capacity limits on the
number of residents using each area (for example, as required by
fire of safety codes), and restricting the exterior use of amplified
music. Building management staff would be required to ensure
10
that operations remain in compliance with the daytime noise
limits set forth in the [Los Angeles Municipal Code].”
As noted previously, on May 17, 2019, the City zoning
administrator issued a determination letter finding the project
was subject to a Class 32 CEQA exemption. In finding the
exemption applied, the zoning administrator cited, inter alia, the
August 23, 2018 memorandum, and concluded “noise from the
Project’s outdoor residential amenity spaces would comply with
noise limits set forth in the [Los Angeles Municipal Code],” and
“the Project would not result in any significant noise or
groundborne vibration impacts.”
In that same determination letter, however, the zoning
administrator denied a site plan review, finding the project as
proposed was not compatible with surrounding uses. The project
was “unique in size” and was “not . . . comparable to any
residential project in the immediate area.” The zoning
administrator noted that no nearby buildings “include the
abundant rooftop decks” present in the proposed project. “The
open areas being placed on the rooftop 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.” “[T]hough not deviating from the [building code], the
rooftop amenity would overwhelm those multi-family structures
immediately abutting the subject project on Severance
Street . . . .”
The project applicants appealed the denial of the site plan
review. While the appeal was pending, the project applicants
revised the plans to, inter alia, move the “rooftop amenities away
from the perimeter of the building to minimize impacts on
11
neighboring properties.” The noise consultant issued another
memorandum reiterating its earlier conclusion that the project
would not create significant noise, and finding the project
revisions did not alter that conclusion.
The City planning department issued a report responding
to the project applicants’ appeal, stating, “With revisions to the
project, the Zoning Administrator believes the project would now
be compatible with surrounding uses.” Although the zoning
administrator believed “the Site Plan Review was not denied in
error,” the zoning administrator nonetheless “supports sustaining
the appeal as the revised project plans fully address their
concerns regarding [the] project’s physical compatibility with the
existing neighborhood.”
In light of the revisions to the project, the planning
commission overturned the zoning administrator’s earlier denial
of a site plan review. Regarding the rooftop decks, the planning
commission imposed a condition on the project limiting use of the
decks to certain hours, specifically 7:00 a.m. to 10:00 p.m. Sunday
through Thursday and 7:00 a.m. to 12:00 midnight Friday and
Saturday. The planning commission found, “The project provides
design features, such as locating accessible rooftop gathering
areas . . . away from the perimeters of the buildings to ensure
noise will not affect surrounding uses. In addition, the City
Planning Commission imposed an additional condition restricting
the hours of the outdoor rooftop deck to ensure noise f[ro]m the
rooftop will not be disruptive to surrounding uses.”
2. Analysis
To qualify for a Class 32 CEQA exemption, a project must
“not result in any significant effects relating to traffic, noise, air
quality, or water quality.” (§ 15332, subd. (d).) Here, the zoning
12
administrator found the project would not create significant noise
impacts for purposes of CEQA. In the same determination letter,
however, the zoning administrator denied a site plan review,
concluding the “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 cannot reconcile these contradictory findings. Surely,
music and other noise that will “overwhelm” neighboring
properties is a “significant effect[ ] relating to . . . noise.”
(§ 15332, subd. (d); see Make UC A Good Neighbor v. Regents of
University of California (2023) 88 Cal.App.5th 656, 685 [CEQA
applies to noise from “crowds of people talking, laughing,
shouting, and playing music that disturbs neighboring residents”
of university student housing], review granted May 17, 2023,
S279242; Keep Our Mountains Quiet v. County of Santa Clara
(2015) 236 Cal.App.4th 714, 732–734 [EIR required to assess
noise impacts from crowds and music at wedding venue].) The
City cites no authority to the contrary.
It is immaterial that the zoning administrator’s findings
were part of a site plan review rather than a CEQA exemption
evaluation. One purpose of site plan review is to “evaluate and
mitigate significant environmental impacts.” (LAMC 16.05,
subd. (A).) Although the zoning administrator may not have
characterized the noise from the rooftop decks as an
environmental concern, and indeed concluded in the separate
CEQA review the project would not create significant noise
effects, again, such findings cannot be reconciled with the site
plan review finding that the rooftop decks “would overwhelm”
neighboring properties with noise.
13
Nor did the planning commission or city council at any
point reject the zoning administrator’s finding that the rooftop
decks posed a noise problem. Rather, the planning commission
concluded project revisions, namely moving the rooftop decks
away from the project perimeter, along with restrictions on the
hours in which the decks could be used, addressed the noise
concern.
It is well established, however, that an agency may not rely
on mitigation measures to support a categorical exemption.
(Salmon Protection & Watershed Network v. County of Marin
(2004) 125 Cal.App.4th 1098, 1102; see Citizens for
Environmental Responsibility v. State ex. rel. 14th Dist. Ag. Assn.
(2015) 242 Cal.App.4th 555, 568; Azusa Land Reclamation Co. v.
Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th
1165, 1199–1200 (Azusa).)
The reason for this rule is that the CEQA guidelines
governing preliminary review of a project—the stage at which an
agency determines whether an exemption applies—“do not
contain any requirements that expressly deal with the evaluation
of mitigation measures.” (Azusa, supra, 52 Cal.App.4th at
p. 1200.) Instead, “the standards for evaluating proposed
mitigation measures are covered by the Guideline regarding a
mitigated negative declaration,” a more complex phase of
environmental review. (Ibid.) A mitigated negative declaration
determines whether “potentially significant environmental
effects” “can be fully mitigated by changes in the project” to
which the project applicant has agreed. (Union of Medical
Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th
1171, 1186–1187.)
14
“The Guidelines dealing with the second phase [i.e., the
mitigated negative declaration phase] of the environmental
review process contain elaborate standards—as well as
significant procedural requirements—for determining whether
proposed mitigation will adequately protect the environment and
hence make an EIR unnecessary.” (Azusa, supra, 52 Cal.App.4th
at p. 1200.) “[A]n agency should not be permitted to evade these
standards by evaluating proposed mitigation measures in
connection with the significant effect exception to a categorical
exemption.” (Id. at p. 1201.)
“Mitigation,” as defined in the CEQA Guidelines, includes
“[a]voiding the impact altogether by not taking a certain action or
parts of an action,” and “[m]inimizing impacts by limiting the
degree or magnitude of the action and its implementation.”
(§ 15370, subds. (a), (b).) The project revisions and conditions in
the instant case, which no longer place rooftop decks on the
project perimeter, instead moving them to the interior, and limit
the hours in which they may be used, fit this definition and
constitute mitigation. Thus, the City could not rely on those
measures to approve the project without preparing a mitigated
negative declaration.
Respondents argue, and the trial court agreed, that the
noise consultant’s memorandum provided the necessary
substantial evidence to establish the project would not create any
significant noise impacts. The City, however, implicitly rejected
the noise consultant’s conclusions insofar as they applied to the
rooftop decks. The zoning administrator, contrary to the
consultant’s conclusions, found the rooftop decks could
“overwhelm” the neighboring buildings with noise. The planning
commission and city council never reversed the zoning
15
administrator’s finding, instead concluding project revisions and
conditions sufficiently mitigated the concern. Thus, the City has
never found that the project would not cause significant noise in
the absence of mitigation measures. The noise consultant’s
contrary opinion cannot be substantial evidence when the City
implicitly rejected it.
Respondents contend that “design modifications
undertaken to address potential neighborhood issues do not
constitute substantial evidence of a CEQA impact.” In support,
respondents cite Clews Land & Livestock, LLC v. City of
San Diego (2017) 19 Cal.App.5th 161, 196. This citation does not
appear to be correct, because the cited page does not discuss
design modifications—rather, it assesses whether the particular
noise impacts at issue in that case were significant for CEQA
purposes. In any event, our conclusion that the project would
have significant noise impacts is not based on the fact that the
project applicants revised the project, but the fact that the zoning
administrator identified those noise impacts in the first place.
Respondents further argue the condition limiting use of the
rooftop decks to certain hours merely affirmed the City’s
generally applicable noise ordinance, and therefore did not
constitute a mitigation measure. Respondents, however, do not
cite the noise ordinance to which the condition purportedly
corresponds. Assuming arguendo respondents are factually and
legally correct on this point, the project revisions moving the
decks away from the perimeter constitute sufficient mitigation to
bar application of a Class 32 exemption.
Appellants argue in the alternative that the rooftop decks,
which the zoning administrator found were “atypical” of the
neighborhood, trigger the “unusual circumstance” exception to
16
the Class 32 exemption. (See § 15300.2, subd. (c).) Given our
conclusion that the City’s findings regarding the rooftop decks
bar application of the exemption in the first place, it is
unnecessary to reach this alternative argument.
D. We Decline to Reach the Issue of Redevelopment
Plan Consistency
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 a
redevelopment plan applicable to the project site. They further
contend the project does not comply with the redevelopment
plan’s density limitations. For the reasons that follow, we decline
to reach these issues.
It is undisputed the project site is within an area subject to
the Exposition/University Park Redevelopment Plan (the
redevelopment plan). It is further undisputed the redevelopment
plan sets a lower base density than the general zoning provisions
of the Los Angeles Municipal Code (LAMC), and the City relied
on the latter, not the former, when calculating the project’s
density bonus.
Section 15332, subdivision (a) requires that a Class 32
exempt project be “consistent with the applicable general plan
designation and all applicable general plan policies as well as
with applicable zoning designation and regulations.” The
question presented by appellants’ argument is whether the
redevelopment plan provides the “applicable zoning designation
and regulations” for the project site, as opposed to the generally
applicable zoning provisions of the municipal code.
In arguing the redevelopment plan’s provisions control,
appellants rely primarily on LAMC section 11.5.14,
17
subdivision (B)(2), which provides that, “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.” “Chapter 1 of this Code”
includes the zoning provisions upon which the City based the
project’s density bonus. (See LAMC, § 12.09.1, subd. (B)(4) [base
density requirements for zone RD1.5]; id., § 12.22, subd. (A)(25)
[density bonus provision].) Thus, appellants argue, to the extent
the redevelopment plan and the zoning provisions conflict, the
City follows the redevelopment plan, and the redevelopment
plan, not the zoning provisions, become the “applicable zoning
designation and regulations” for purposes of section 15332,
subdivision (a).
The difficulty with appellants’ argument is that LAMC
section 11.5.14 became effective November 11, 2019, and thus
was not in effect at the time of project application or when the
planning department and planning commission made their
CEQA and density bonus determinations. It was, however, in
effect when the city council denied the Childs appeal, adopted the
findings of the planning commission, and determined that the
project qualified for a Class 32 CEQA exemption.
The parties’ briefing does not address the effect of an
ordinance enacted after a project has been deemed exempt from
CEQA, but before the city council has addressed an appeal from
that exemption finding. Appellants assume, without citation to
authority, that LAMC section 11.5.14 applies or, alternatively,
the redevelopment plan controls regardless. Respondents in their
briefing do not appear to have questioned the applicability of
18
LAMC section 11.5.14. Instead, respondents argue that the City
adequately addressed any need for redevelopment plan
consistency by imposing a condition that prior to issuance of
building permits, the project applicants obtain a consistency
determination from the community redevelopment agency or the
City as the agency’s successor.4
The briefing also does not meaningfully address the
interplay of the state density bonus law and the redevelopment
plan. We observe, for example, that the state density bonus law
defines “ ‘density bonus,’ ” in relevant part, as “a density increase
over the otherwise maximum allowable gross residential density
as of the date of application by the applicant to the city, county, or
city and county . . . .” (Gov. Code, § 65915, subd. (f), italics
added.) Assuming arguendo LAMC 11.5.14 is retroactive
generally, as appellants maintain, it nonetheless may still be
analytically significant that LAMC 11.5.14 was not in effect at
the time of project application, and therefore, arguably, the
redevelopment plan’s density provisions would not supersede the
zoning ordinance for purposes of the density bonus.
We hesitate to reach the parties’ arguments without deeper
analysis of the applicability of LAMC section 11.5.14 and the
interplay of the state density bonus law and the redevelopment
plan. Because, however, we have held that the rooftop deck noise
issue entitles appellants to a writ of mandate setting aside the
City’s Class 32 exemption finding, it is unnecessary to consider
appellants’ arguments regarding plan consistency, or the
4 It was not until oral argument that the City contended
LAMC section 11.5.14 was inapplicable because it was not in
effect at the time the project applicants sought and obtained the
CEQA exemption.
19
questions we have raised here regarding the redevelopment plan,
LAMC 11.5.14, and the state density bonus law. We leave these
questions for another day, should they arise, to enable the parties
to brief these issues. We thus express no opinion as to the
applicability of LAMC section 11.5.14, the redevelopment plan, or
the state density bonus law to future proceedings in this matter.
E. Substantial Evidence Supports the Conclusion That
the Project Will Not Have Significant Traffic Effects
We address appellants’ remaining challenges, the
resolution of which could provide guidance in future proceedings
concerning the project.
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.”
20
The record also contains a parking demand study dated
May 3, 2018. The study stated the project would provide
approximately 2595 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
5 The revised project reduced the number of parking
spaces to 255.
21
increase in traffic supports the inference that there will be no
significant increase in traffic dangers either.
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).)
22
Appellants concede the project meets criteria under the
state density bonus law such that it does not have to comply with
the NSO parking requirements.6 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.
F. 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).)
6 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.
23
A resource is historical if it is “listed in, or determined to be
eligible by the State Historical Resources Commission, for listing
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
agency7 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).)
7 “ ‘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.)
24
“Substantial adverse change in the significance of an
historical resource means physical demolition, destruction,
relocation, or alteration of the resource or its immediate
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
25
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
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
26
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
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
27
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.
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.”
28
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
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
29
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
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.
30
(Eureka Citizens, supra, 147 Cal.App.4th at p. 374.)8 The study
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.
8 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
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.
31
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
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
32
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
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.
G. 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
33
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
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
34
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
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.
35
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
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
36
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.
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.
H. A Narrow Writ of Mandate Is Appropriate
Appellants request a writ of mandate “requir[ing]
environmental review under CEQA for the project.” Our holding
that the City abused its discretion in finding the project qualified
for a Class 32 exemption entitles appellants to a writ of mandate
setting aside that finding, but nothing more. Whether and what
further proceedings are required we leave to the City to
determine in the first instance. (See Berkeley Hillside, supra,60 Cal.4th at p. 1122.)
We note that our holdings in this case are based on the
standards of review applicable to CEQA exemptions and the
exceptions to those exemptions. It is conceivable different
standards of review will apply to future proceedings in this case,
which may involve, for example, a negative declaration or EIR.
Should a different standard of review apply in a future
proceeding, nothing in our opinion should be construed to
preclude arguments raised under that different standard.
37
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 finding that the subject project
qualifies for a Class 32 CEQA exemption. Appellants are
awarded their costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
WEINGART, J.
38