Archive for October, 2015


Beverly Hills Unified School Dist. v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627

The court affirmed the trial court’s denial of the Beverly Hills Unified School District’s (“School District”) and City of Beverly Hills’ (“City”) petitions. The court found substantial evidence supported the Los Angeles Metropolitan Transportation Authority’s (“Metro”) decision not to recirculate the EIS/EIR; that the EIS/EIR adequately discussed air pollution and public health impacts; and that Metro did not violate statutory requirements in conducting its transit hearing, the City received a full and fair hearing, and substantial evidence supported Metro’s decision and findings. RMM attorneys Whit Manley, Tiffany Wright and Laura Harris represented Metro.

Factual and Procedural Background

Metro developed a draft EIS/EIR for a new subway line connecting the Westside of Los Angeles and Downtown. The EIS/EIR analyzed two potential stations in Century City at an equal level of review: the Santa Monica station and the Constellation station. The EIS/EIR found that the Santa Monica station would be compromised by its close proximity to the Santa Monica fault, and that the Constellation site would have a lower seismic risk because it was farther away. The Constellation site was also more centrally located and accessible.

After the end of the comment period on the EIS/EIR, during which Metro received nearly 2,000 comments, Metro’s Board directed that both the Santa Monica and Constellation station options be carried forward for further study. Metro then conducted a tunneling safety investigation that concluded tunneling could be safely carried out beneath Beverly Hills High School and residential neighborhoods using closed-face tunnel boring machines. Metro also conducted additional seismic and geophysical studies that ruled out the Santa Monica station due to its proximity to an active fault zone. The final EIS/EIR therefore recommended that the Century City station be located at the Constellation location.

Three days before the board was scheduled to approve the project and certify the EIS/EIR, the City requested a transit hearing under the Public Utilities Code. Metro held the hearing, at which it submitted documentary evidence to the City and gave the City the floor to speak. The City argued there had not been sufficient investigation and facts for the board to make its siting decision. At its next meeting Metro adopted the findings for the transit hearing and approved the project and certified the EIS/EIR. The City and School District sued.

Court of Appeal Decision

On appeal, the School District contended Metro abused its discretion by refusing to recirculate the EIS/EIR because the final version contained significant new information regarding seismic risks and environmental issues arising from tunneling under the high school. The City challenged the procedural validity of the transit hearing, and also argued that Metro was required to recirculate the EIS/EIR because of significant new air quality impacts disclosed in the final EIS/EIR, and that the EIS/EIR’s analysis of localized air quality and health impacts was inadequate.

The court disagreed. Giving substantial deference to Metro in its decision not to recirculate, the court found the EIS/EIR’s designation of the Santa Monica station as the “base” station and the Constellation station as the “option” immaterial, given that the agency had evaluated both locations equally. The court also found the EIS/EIR had discussed the potential environmental impacts of both stations, including the impacts of tunneling under the high school, and the public had been given an opportunity to comment on those impacts. The elimination of the Santa Monica station in the final EIS/EIR was not “significant new information,” but rather eliminated a potential source of seismic hazard.

The City did not cite to any law supporting its assertion that the EIS/EIR was required to include analysis showing how the actual construction emissions would specifically impact public health. The court also rejected the City’s argument that the EIS/EIR had to be recirculated because of the originally-reported increase in emissions. Metro had already adopted an addendum to the final EIS/EIR that corrected the original overstatement.

The court also rejected contentions related to the alleged unlawfulness of the transit hearing. The court noted that the decision on the station location and alignment was legislative, not adjudicative, and that the City did not need to cross-examine Metro’s witnesses because the dispute pertained to the information contained in the submitted documents. No right to cross-examine Metro witnesses existed after the hearing. Furthermore, the documentary evidence was not hearsay as it was not used as proof of the matter asserted, but simply to show that the evidence existed.

The First District Court of Appeal reversed its prior holding and, under the substantial evidence standard established by the Supreme Court, upheld the City of Berkeley’s determination that exemptions applied to a single-family home project, and that no exception applied to those exemptions. The court therefore affirmed the denial of appellants’ petition. (Berkeley Hillside Preservation v. City of Berkeley (2015) ___Cal.App.4th___ , Case No. A131254.)

The case was discussed in our previous post, found here.

The decision on remand highlights the effect of the deferential substantial evidence standard. The court also importantly distinguished the Salmon Protection & Watershed Network (SPAWN) and Lotus decisions.

On remand, the Court of Appeal noted it had previously—incorrectly—held that where there is a fair argument that a proposed activity may have an effect on the environment, that in itself is an unusual circumstance triggering an exception to CEQA’s categorical exemptions. The Supreme Court held this reasoning was inconsistent with the Legislature’s purpose in creating categorical exemptions which, by definition, encompass classes of projects that are found not to have a significant effect on the environment. The Court held, however, that showing the project will have a significant effect on the environment does tend to prove that the project is unusual in some way. Thus, the court must find both substantial evidence of unusual circumstances and a fair argument that there is a reasonable probability of potentially significant effects due to those unusual circumstances.

On remand, the court noted that despite acknowledging that substantial evidence supported application of the exemptions, appellants continued to argue that the home would nevertheless be “unusual.” Appellants “fail[ed] to come to terms with the stringent standard of review that Berkeley Hillside directs us to apply” and similarly failed come to terms with evidence pointing against their contention. Where there is substantial evidence supporting an agency’s exemption determination, the court must affirm the finding even if contradictory evidence exists.

The court also found the project’s traffic control measure was not a proposed subsequent action taken to mitigate any significant effect of the project, and therefore was not a mitigation measure precluding application of the categorical exemptions. In SPAWN, the project was specifically conditioned on measures intended to mitigate impacts to threatened species habitat, which precluded application of a categorical exemption. In Lotus, the project EIR improperly compressed environmental impacts and mitigation measures into a single issue, rendering it impossible to determine whether the project would have a significant effect on the environment absent mitigation. The court here found the construction traffic management plan distinguishable. It noted that “managing traffic during the construction of a home is a common and typical concern in any urban area, and especially here given the narrow roads in the area and the volume of dirt to be removed.” Thus, the plan did not constitute mitigation that would otherwise preclude application of a categorical exemption or improperly entwine mitigation measures and project features.

Governor Signs Planning and Zoning Law Bill

October 13th, 2015 by Gwynne Hunter

On October 9, 2015, Governor Brown signed into law a number of “hot” bills covering a range of topics. One bill was relevant to planning and zoning practice:

AB 744 (Chau) is a density bonus law that pertains to what kind of parking restrictions and space demands agencies can impose on projects meeting certain criteria (proximity to transit, affordability). This will be important for future affordable housing projects.

The bill notes that currently, “Planning and Zoning Law requires, when a developer of housing proposes a housing development within the jurisdiction of the local government, that the city, county, or city and county provide the developer with a density bonus and other incentives or concessions for the production of lower income housing units or the donation of land within the development if the developer, among other things, agrees to construct a specified percentage of units for very low, low-, or moderate-income households or qualifying residents. Existing law requires continued affordability for 55 years or longer, as specified, of all very low and low-income units that qualified an applicant for a density bonus. Existing law prohibits a city, county, or city and county from requiring a vehicular parking ratio for a housing development that meets these criteria in excess of specified ratios. This prohibition applies only at the request of the developer and specifies that the developer may request additional parking incentives or concessions.”

AB 744 will “additionally prohibit, at the request of the developer, a city, county, or city and county from imposing a vehicular parking ratio, inclusive of handicapped and guest parking, in excess of 0.5 spaces per bedroom on a development that includes the maximum percentage of low- or very low income units, as specified, and is located within1/2 mile of a major transit stop, as defined, and there is unobstructed access to the transit stop from the development.”

The bill also prohibits a local government “from imposing a vehicular parking ratio, inclusive of handicapped and guest parking, in excess of specified amounts per unit on a development that consists solely of units with an affordable housing cost to lower income households, as specified, if the development is within 1/2 mile of a major transit stop and there is unobstructed access to the transit stop from the development, is a for-rent housing development for individuals that are 62 years of age or older that complies with specified existing laws regarding senior housing, or is a special needs housing development, as those terms are defined. The bill would require a subject development that is a for-rent housing development for individuals that are 62 years of age or older or a special needs housing development to have either paratransit service or unobstructed access, within 1/2 mile, to fixed bus route service that operates at least 8 times per day. The bill would authorize a city, county, or city and county to impose a higher vehicular parking ratio based on substantial evidence found in an areawide or jurisdictionwide parking study, as specified.”

The text of the bill is available at: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB744

On October 9, 2015, the Fourth District ordered partial publication of North County Advocates v. City of Carlsbad (Sept. 10, 2015) ___Cal.App.4th___, Case No. D066488), excluding Sections III, IV, and V. The published section of the Opinion provides guidance on the proper use of an historic baseline by lead agencies for certain common types of urban land use projects with potentially fluctuating future impacts.

Westfield proposed to renovate a shopping center in Carlsbad that had originally been built more than 40 years prior. The city approved Westfield’s request to renovate a former Robinsons-May store and other small portions of the shopping center. Petitioners challenged the city’s approval, arguing that the project’s EIR used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it had been only periodically occupied for the past six years. The trial court rejected petitioners’ contentions, and the Court of Appeal affirmed.

The Court of Appeal started by discussing the rule stated in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 457, that an agency’s decision to deviate from the normal rule for determining a baseline cannot be disturbed by a reviewing court if substantial evidence supports the agency’s “determination that an existing conditions impacts analysis would provide little or no relevant information or would be misleading as to the project’s true impacts.”

The Court then provided an overview of cases that have dealt with the issue of a historic baseline. In Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310, 322, the California Supreme Court disapproved of the air district’s selection “as the project’s baseline for nitrogen oxide emissions the amount the boilers would emit if they operated at the maximum level allowed under ConocoPhillips’s existing permits,” because “ConocoPhillips had never operated them at that level” in the past. The Court in Communities for a Better Environment explained that the deviation from the normal rule was impermissible because the district’s selected baseline was hypothetical and based on maximum permitted operating conditions that were not the norm and had never before occurred at the facility. In contrast, the Court of Appeal in Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 340, upheld the City of Beaumont’s use of a historic baseline derived from fluctuating historical water use of past agricultural operations on the project site.

Here, the Court upheld the City of Carlsbad’s selection of a traffic baseline that assumed full occupancy of the shopping center as opposed to the “existing conditions” of the shopping center with recent key vacancies. The Court found that the baseline derived from the “fluctuating occupancy” of the shopping center over the past few decades was more like the baseline derived from historical water use in Cherry Valley Pass Acres than the entirely hypothetical baseline in Communities for a Better Environment. Concluding that substantial evidence of actual historical operations of the shopping center space over a 30-year period supported the City’s selection of a historic baseline, the Court distinguished Communities for a Better Environment.

The unpublished portions of Opinion addressed whether substantial evidence supported the City’s selected traffic mitigation measure (Section III), whether the City adequately responded to comments on the Draft EIR (Section IV), and whether the trial court erred by awarding the city all of its requested costs (Section V).