AIDS Healthcare foundation; livable la, Petitioners, v. City of los angeles; community redevelopment agency of los angeles, Respondents.
Case No.: 19STCP00520
Hearing Date: June 10, 2019
[TENTATIVE] order RE:
1) Petition for writ of mandate
2) Motion for Judgment on the pleadings
Petitioners AIDS Healthcare Foundation (“AHF”) and Livable LA (“LLA”) commenced this proceeding on February 19, 2019 against Respondents City of Los Angeles (“City”) and Community Redevelopment Agency of Los Angeles (“CRA”) and Real Party-in-Interest CRE-HAR Crossroads SPV, LLC (“Real Party”). The operative pleading is the verified First Amended Petition (“FAP”) filed on February 28, 2019. The FAP assert causes of action for (1) violations of the California Environmental Quality Act (“CEQA”); (2) violations of Planning and Zoning Law (“PZL”) and Community Redevelopment Law (“CRL”) requirements; (3) violations of the CRL for failure to provide sufficient affordable housing in the Hollywood Redevelopment Area; (4) writ of mandate to compel compliance with the CRL; and (5) declaratory relief. The FAP alleges in pertinent part as follows.
On January 22, 2019, the City certified an Environmental Impact Report (“EIR”), approved a Statement of Overriding Considerations, and approved various entitlements for the Crossroads expansion project in the City’s Hollywood Section (“Project”). (FAP ¶1.) The Project involves the demolition of 84 units of existing rent stabilized housing and the construction of eight mixed-use buildings with residential, hotel, commercial/retail, office, entertainment, and restaurant uses. (Ibid.)
The Project’s Draft Environmental Impact Report (“DEIR”) identified significant impacts to the environment in the areas of traffic, noise, and air quality as a result of the addition of new facilities, remodeling of existing facilities, and intensification of site use. (FAP ¶2.) However, the DEIR understated these impacts by failing to recognize that the Project will significantly burden not only the nearby community but also the entire Hollywood area of Los Angeles. (FAP ¶3.)
The Project also fails to provide a sufficient amount of affordable housing in compliance with the requirements of the Hollywood Redevelopment Plan (“HRP”) and CRL. (FAP ¶4.) The CRL and HRP require that 15% of new residential units built in the area be affordable units. (Ibid.) The City has failed on an areawide basis to provide the required number of affordable units, and its approval of the Project worsens that shortfall by providing fewer affordable units than would be necessary to meet areawide affordably housing goals. (Ibid.)
The Project will result in the demolition of the Selma-Law Palmas Courtyard Apartments (“Selma Apartments”) which were constructed around 1939 and include 84 rent stabilized units. (FAP ¶5.) One of the Project alternatives presented in the EIR was Alternative 5 which would have supported additional growth while at the same time preserving historic onsite properties like the Selma Apartments. (FAP ¶6.) In approving the Project, the City failed to seriously consider Alternative 5, erroneously characterizing the alternative as economically infeasible. (FAP ¶6.)
Petitioners pray for issuance of a writ of mandate directing the City to set aside and vacate (1) its certification of the EIR, Findings of Fact, and Statement of Overriding Considerations supporting the Project’s approval and (2) any Project approvals based upon the EIR, Findings of Fact, and Statement of Overriding Considerations. Petitioners pray for an injunction enjoining Respondents and Real party from taking any action to construct any portion of the Project that could result in a significant adverse impact to the environment until Respondents prepare and consider an adequate EIR. Petitioners also pray for an order ensuring that Respondents provide adequate affordable housing in the Hollywood Redevelopment Area as required by the Hollywood Redevelopment Plan.
REQUESTS FOR JUDICIAL NOTICE
Petitioners’ requests for judicial notice are GRANTED as to Exhibits A-C and DENIED as to Exhibits D-I.
Respondents’ and Real Party’s requests for judicial notice are GRANTED in full (Exs. A-G).
Petitioners’ requests for judicial notice in reply are DENIED in full (Exs. J-T).
A. Exhaustion of Administrative Remedies
1. Issue Exhaustion
Respondents argue that Petitioners have failed to exhaust administrative remedies as to several of their claims by failing to raise those specific claims before the City during the administrative proceedings. (Opp. at 15-17.)
The exhaustion of administrative remedies is a jurisdictional prerequisite to resort to courts. (Thomas v. Shewry (2009) 170 Cal.App.4th 1480, 1485; Kaiser Foundation Hospitals v. Sacramento County Superior Court (2005) 128 Cal.App.4th 85, 100.) To satisfy the exhaustion requirement, the exact factual issues and legal theories must have been presented to the administrative agency. (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1394.) While this requirement demands less specificity than an appeal from a judicial proceeding, the presentation must nevertheless consist of more than a relatively few bland and general references (id., at 1396) or a perfunctory or “skeleton” showing at the administrative hearing. (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197.) Rather, the presentation must provide the agency with an opportunity to receive and respond to articulated factual issues and legal theories before its action are subjected to judicial review. (Mani, supra, 153 Cal.App.4th at 1396; see also Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 510 (“Administrative agencies must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which they have jurisdiction to act before those issues are raised in a judicial forum.”).)
a. Exhaustion of CRL Claim
In their Opening Brief (“OB”), Petitioners argue that Respondents have not complied with Health and Safety Code section 33413 by failing to ensure that at least 15% of all new housing units developed within the Hollywood Redevelopment Area (“HRA”) are affordable ones. (OB at 17-23.) Respondents argue that Petitioners did not administratively exhaust this argument because they failed to identify Health and Safety Code section 33413 as their basis for demanding additional affordable housing. (Opp. at 15.)
The Court disagrees. As Petitioners point out, they transmitted a letter to the City Council during the Project’s administrative appeal process. (AR 73925.) In that letter, Petitioners contended that the Project failed to meet the 15% affordable housing unit requirement set forth in the HRP and CRL. (Ibid.) At the Planning and Land Use Management Committee (“PLUMC”) meeting, the Project proponent responded to this letter, arguing that this percentage does not apply to individual projects but is rather an agency-wide issue. (AR 45334.) A City representative concurred. (AR 45348.) Petitioners have shown that this legal issue was, in fact, raised during the administrative appeal process and that the agency responded to the same. While it is true that Petitioners did not expressly cite Health and Safety Code section 33413, such an omission is not fatal where, as here, Petitioners’ legal theory concerning underdevelopment of affordable housing was substantively articulated and responded to.
b. Exhaustion of CEQA Claims
Respondents also argue that Petitioners did not administratively exhaust their CEQA claims challenging whether (1) traffic mitigation measure TRA-MM-6 is deferred mitigation, (2) air quality mitigation measure AIR-MM-6 is sufficiently stringent, (3) the EIR should have conducted a cumulative health risk analysis, and (4) a modified Alternative 5 is economically infeasible. (Opp. at 16-17.)
Petitioners challenge TRA-MM-6 in two respects: (1) they argue that it constitutes deferred mitigation without implementation of specific performance standards (OB at 33) and (2) they argue that the mitigation measure’s $500,000 cap is unsupported by substantial evidence (OB at 32-33). Respondents argue that Petitioners did not raise the former challenge regarding deferred mitigation. (Opp. at 16.)
The Court agrees. In reply, Petitioners point to a comment letter incorporating a traffic expert’s opinion that the mitigation measures were inadequate. (AR 73989-90.) The traffic expert notes that the $500,000 in funding to implement TRA-MM-6 is “extremely low to implement meaningful traffic calming and roadway segment improvements in the six (6) affected neighborhoods.” (AR 73990.) This comment, though certainly exhausting Petitioners’ second challenge, does not address deferred mitigation. Furthermore, actually raising this specific issue appears particularly important where, as here, the City could have resolved this purported issue without much difficulty if the issue been sufficiently articulated. Because Petitioners did not provide Respondents with an opportunity to receive and respond to this pointed legal theory before initiating this judicial review (Mani, supra, 153 Cal.App.4th at 1396), Petitioners did not exhaust this issue.
Petitioners challenge AIR-MM-6 on the ground that this mitigation measure applicable to diesel trucks hauling soil and demolition debris to and from the Project site is not equally as stringent as AIR-MM-5, the mitigation measure applicable to off-road diesel-powered construction equipment. (OB at 34.) Respondents implemented AIR-MM-6 in response to a South Coast Air Quality Management District (“SCAQMD”) comment recommending implementation of a similar, though more stringent, mitigation measure. (AR 1452.) Respondents contend that Petitioners failed to exhaust this argument by failing to specifically challenge AIR-MM-6 after its incorporation in the FEIR. (Opp. at 16.)
The Court disagrees. “Any person who objected to a CEQA approval on some ground may also raise issues presented to the agency by any other person who objected.” (Paulek v. Department of Water Resources (2014) 231 Cal.App.4th 35, 42.) In other words, in this proceeding, Petitioners can raise issues presented to the City by SCAQMD. During the comment period, SCAQMD recommended that the City further reduce significant construction and operational impacts from nitrogen oxide emissions by adopting a mitigation measure requiring use of 2010 diesel haul trucks and 2007 diesel haul trucks, at a minimum, where 2010 ones could not be obtained. (AR 1452.) The City adopted an admittedly lesser mitigation measure in response. (AR 1456.) In short, SCAQMD raised this issue to the City, the City had an opportunity to respond, and the City did respond by implementing a weaker measure. This satisfies the administrative exhaustion requirement because SCAQMD’s objection was implicitly and necessarily an objection to AIR-MM-6.
iii. Cumulative Health Risk Analysis
Petitioners challenge the City’s EIR on the ground that the City should have conducted and included a cumulative health risk analysis. (OB at 36.) Respondents argue that no such challenge was raised at the administrative level. (Opp. at 16.)
The Court finds that this issue was sufficiently raised. During the comment period, it was argued that the DEIR (1) fails to state how diesel particulate matter from delivery trucks would have a cumulative impact on residents and children at four neighboring schools and (2) should not solely adhere to SCAQMD CEQA guidance regarding whether a health risk analysis is necessary. (AR 2655.) This comment raised the issue of whether the City should conduct a health risk analysis regardless of SCAQMD CEQA guidance in light of the dangers posed by cumulative diesel particulate matter exposure to surrounding residents.
iv. Alternative 5
Petitioners challenged the EIR’s Project Alternatives analysis on the grounds that (1) the EIR’s rejection of Alternative 5 for economic infeasibility was unsupported, (2) the EIR should have analyzed a modified version of Alternative 5 that preserved the Selma Apartments, and (3) the EIR does not support a conclusion that Alternative 5, so modified, was economically infeasible. (OB at 37-38.) Respondents argue that Petitioners failed to exhaust the third argument — that the City lacks evidence of economic infeasibility of an alternative that would preserve the Selma Apartments alone. (Opp. at 17.) The Court concurs. This argument was not raised at the administrative level, nor would it make sense to raise it there. The threshold step before raising such an issue would be the City’s consideration of a project alternative preserving the Selma Apartments alone.
2. Pursuit of Available Administrative Remedies
Apart from requiring petitioners to raise specific issues before the agency decision-maker prior to bringing those issues before the courts, the administrative exhaustion doctrine requires Petitioners to exhaust the administrative remedies that the City made available. “If the administrative proceeding includes a right to appeal an allegedly improper action, a plaintiff must generally pursue that administrative appeal in order to exhaust his or her administrative remedies.” (Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 184.)
Respondents argue that Petitioner AHF is barred from bringing suit because it failed to file available and required administrative appeals of Project approvals issued by the Advisory Agency and the City Planning Commission (“CPC”). (Opp. at 17.) Respondents concede that Petitioner LLA filed such appeals and satisfied this component of the administrative exhaustion requirement. (See Opp. at 13-14.)
The Court is unpersuaded. As Petitioners note in reply (Reply at 12), Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, is instructive. There, the trial court granted respondent city’s motion to dismiss on the ground that petitioner failed to exhaust administrative remedies. (Citizens for Open Government, supra, 144 Cal.App.4th at 872.) The trial court reasoned that petitioner should have appealed the city planning commission’s final decision pursuant to the city’s municipal code. (Id. at 873.) The trial court rejected, and the appellate court considered on appeal, whether the fact that other parties appealed the planning commission’s decision exhausted petitioner’s administrative remedies. (Ibid.) The appellate court found in the affirmative. The appellate court noted that, under CEQA, the lead agency does not act “in the role of a reviewing body in the sense of a traditional appellate proceeding (where the party entitled to relief is normally the appellant, i.e., the party who filed the notice of appeal, and the issues generally are restricted to those raised by the appellant).” (Id. at 876.) Rather, the public hearing before the city council was a “new consideration of the FEIR and the project at which all interested members of the public were entitled to comment and object.” (Ibid.) Turning to the relevant city municipal code section, the appellate court noted that its language did “not require an appeal to be filed by ‘each’ or ‘every’ person claiming to be directly and adversely affected in order for such person to appear before the City Council” and therefore condoned petitioner’s participation. (Id. at 876.) For these reasons, the appellate court concluded that the city municipal code did not require each and every person adversely affected by the planning commission’s decision to file an appeal before the City Council in order to pursue a remedy in the courts and, furthermore, that petitioner’s participation and objection regarding the city’s approval of the land use decision were sufficient. (Id. at 878.)
Here, Petitioner AHF participated in the administrative process and pursued the administrative appeal process to some extent. (See, e.g., AR 72897 (appeal), 63931 (objections to FEIR).) Respondents direct the Court to Los Angeles Municipal Code (“LAMC”) section 12.36.C which, inter alia, dictates the initial municipal decision-making body and municipal appellate body with respect to projects requiring multiple approvals. (Resp. RJN Ex. E.) Similar to the municipal code examined in City of Open Government, the LAMC states that such appeals may be filed by an “applicant or any other person claiming to be grieved by an action or determination.” (LAMC §§ 17.54(A) (Advisory Agency); 12.24(I) (CPC).) For the reasons articulated in City of Open Government and applicable here, the Court concludes that AHF is not barred from bringing this suit.
B. CRL Claim
1. Legal Standard re: CRL Claim
CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. (Topanga Ass’n for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514 15.)
CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811.) In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c).) The administrative decision at issue granted Real Party discretionary project entitlements. Where, as here, a land use decision is challenged by administrative mandamus, courts are to apply the substantial evidence standard of review. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)
“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 305, n.28). The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole record. (Young v. Gannon (2002) 97 Cal.App.4th 209, 225.) The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision. (California Youth Authority, supra, 104 Cal.App.4th at 585.)
2. Compliance with CRL
Petitioners contend that Respondents have violated the CRL by exacerbating the affordable housing shortage in the HRA. (OB at 17.)
The purpose of the CRL (H&S Code §33000, et seq.) is the sound development and redevelopment of blighted urban areas. (Redevelopment Agency of City of Chula Vista v. Rados Bros. (2001) 95 Cal.App.4th 309, 314 (citing H&S Code §33037).) Under the CRL, a fundamental purpose of redevelopment is “to expand the supply of low- and moderate-income housing, to expand employment opportunities for jobless, underemployed, and low-income persons, and to provide an environment for the social, economic, and psychological growth and well-being of all citizens.” (H&S §33071.)
The CRL’s dictates are effectuated through redevelopment agencies. (H&S §§ 33100, 33122.) The very function of a redevelopment agency is to restore to productive use properties suffering from “blight,” which can only be developed to productive use with public assistance. (Emeryville Redevelopment v. Harcros Pigments, Inc. (2002) 101 Cal.App.4th 1083, 1105.) To this end, each redevelopment shall select a project area for redevelopment and prepare a redevelopment plan for each project area. (See H&S §§ 33320.1, 33330.)
The CRL sets forth specific requirements on the relocation of low- and moderate-income persons displaced by redevelopment projects and on the accommodations that redevelopment agencies must afford them. Petitioners rely on the statutory requirements set forth at Health and Safety Code section 33413(b)(2)(A)(i): “Prior to the time limit on the effectiveness of the redevelopment plan established pursuant to Sections 33333.2, 33333.6, and 33333.10 at least 15 percent of all new and substantially rehabilitated dwelling units developed within a project area under the jurisdiction of an agency by public or private entities or persons other than the agency shall be available at affordable housing cost to, and occupied by, persons and families of low or moderate income. Not less than 40 percent of the dwelling units required to be available at affordable housing cost to, and occupied by, persons and families of low or moderate income shall be available at affordable housing cost to, and occupied by, very low income households.” This statutory provision explicitly directs that new residential developments within redevelopment areas include affordable housing units. (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 445.)
Petitioners appear to acknowledge that, on its face, Health and Safety Code section 33413(b)(2)(A)(i) does not require Respondents to make available to low or moderate income persons at affordable housing cost at least 15% of the Project’s 950 dwelling units (approximately 143 dwelling units). (Reply at 14.) “The requirements of [Health and Safety Code section 33413(b)] shall apply, in the aggregate, to housing made available pursuant to paragraphs (1) and (2), respectively, and not to each individual case of rehabilitation, development, or construction of dwelling units, unless an agency determines otherwise.” (H&S §33413(b)(3) (emphasis added).) In other words, section 33413(b)(2)(A)(i) requires that the City make available approximately 143 dwelling units to low or moderate income persons in the HRA — the redevelopment agency’s “project area” — not in the Project site as a result of the Project’s creation of 950 new and substantially rehabilitated dwelling units.
Instead, Petitioners argue that Respondents have violated this 15% requirement because the City has repeatedly failed to meet this requirement with every individual private residential project that it has approved, including this Project, and by failing to take prompt remedial actions. (Reply at 14.) Petitioners contend that approving this Project moves the City further away from meeting the 15% requirement because only 11% of the Project’s residential units (105 units) will be available to low- and moderate-income persons, exacerbating the affordable housing shortage by 37 units. (OB at 20.) Petitioners argue that the City maintains a practice of widening the gap between affordable housing required in the HRA and the affordable housing presently available. (Reply at 15.)
Petitioners’ evidence of affordable housing shortages in the HRA is lacking. First, Petitioners cite the City’s Housing Element for 2013-2021 adopted in December 2013. Therein, the City noted that its Regional Housing Needs Assessment “calls for about 5,700 units/year affordable to moderate income households or below” and that it has been producing an average of 1,100 affordable units/year since 2006.” (AR 27565.) For 2014 to 2021, the City projected that the City would need to create 32,861 more affordable units for low- to extremely low-income households. (AR 27652.) However, this Housing Element, though evidence of a city-wide affordable housing shortage, does not address the housing shortage in the HRA specifically. For this reason, this is poor evidence of a severe housing shortage in the HRA.
Petitioners cite to the CRA’s Hollywood Redevelopment Project’s Implementation Plan for 2009-2013. Therein, the CRA projected that section 33413(b)(2)(A)(i) would require the agency to establish 286 very-low income units and 429 low- to moderate-income units over the life of the HRP. (AR 73867-68.) The CRA projected that, by 2014, over 1,300 very low-income housing units and 98 low- to moderate-income housing units would be generated, leading to a total surplus of 986 affordable housing units. (AR 73968.) Petitioners cite the Implementation Plan’s finding that a deficit of 331 low- to moderate-income units would exist by 2014, but overlook the total surplus of affordable housing units created by the extra 1,317 very low-income housing units. (AR 73968.) For this reason, the CRA concluded that it anticipated satisfying section 33413(b)’s affordable housing production requirements. (Ibid.)
Petitioners also cite to data purportedly showing that at least 6,690 residential units were developed within the HRA since 2008. (OB at 21-22; AR 10604-07.) According to Petitioners, this new development requires the City to create 1,003 more affordable units. (OB at 22.) However, this data does not show that these residential units are within the HRA and does not indicate whether any of these residential units are affordable ones. This data is therefore not helpful.
In any event, even if Petitioners substantiated a severe affordable housing shortage in the HRA, they have not established that this entitles them to writ relief in this action. Notwithstanding an affordable housing shortage, Health and Safety Code section 33413 did not compel the City to condition the Project’s approvals on the inclusion of more affordable housing. That statute mandates that such shortages be resolved “prior to the time limit on the effectiveness of the redevelopment plan.” (H&S §33413(b)(2)(A)(i).) How the City satisfies this requirement — e.g., imposition of strict affordable housing conditions on other developments or developments dedicated solely to affordable housing — is inferably a matter of discretion. Petitioners have failed to show that the City has abused its discretion. (Poncio v. Department of Resources Recycling and Recovery (2019) 34 Cal.App.5th 663 (“It is only when an exercise of a discretionary power becomes so abusive that it is the equivalent of arbitrary or capricious action that it may be subjected to judicial review.”).)
Here, the City approved a single development project of which 11% of its units will be available to low-income persons at an affordable cost. If this project exacerbates the HRA’s affordable housing shortage, it does so by only 37 units. While such a shortfall would be antithetical to the CRL, the Project serves other ends of the CRL. The CRL exists, in part, “to expand employment opportunities for jobless, underemployed, and low-income persons, and to provide an environment for the social, economic, and psychological growth and well-being of all citizens.” (H&S §33071.) To these ends, the Project will create 5,420 annual jobs and revitalize the Project Site with hotel, residential, retail, entertainment and dining uses serves these other CRL goals. (AR 1339-40.)
In sum, under these circumstances, the CRL does not compel the City to set aside more affordable units at the Project Site.
C. PZL Claims
1. Standard of Review Re: PZL
Every county and city must adopt a comprehensive, long-term general plan for the physical development of the county or city.” (Gov. Code §65300.) The general has been aptly described as the “constitution for all future developments” within the city or county. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 570.) The general plan “shall consist of a statement of development policies and shall include a diagram or diagrams and text setting forth objectives, principles, standards, and plan proposals.” (Gov. Code §65302.)
The propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements. (Ibid.) A project is consistent with the general plan “if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment.” (Families Unafraid to Uphold Rural El Dorado County v. El Dorado County Bd. of Sup'rs (1998) 62 Cal.App.4th 1332, 1336.) A given project need not be in perfect conformity with each general plan policy. (Ibid.) To be consistent, a project must be “compatible with” the objectives, policies, general land uses and programs specified in the general plan. (Ibid.)
A city’s determination that a project is consistent with its general plan comes to the court with a strong presumption of regularity. (San Francisco Tomorrow v. City and County of San Francisco (2014) 228 Cal.App.4th 1239, 514.) To overcome this presumption, an abuse of discretion must be shown. (Ibid.) An abuse of discretion is established only if the City has not proceeded in a manner required by law, its decision is not supported by findings, or the findings are not supported by substantial evidence. (Ibid. (citing CCP §1094.5(b).) A city’s determination of general plan consistency can be reversed only if it is based on evidence from which no reasonable person could have reached the same conclusion. (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1563.)
2. Consistency with the HRP
The HRP sets forth numerous redevelopment plan goals including the following:
(9) Provide housing choices and increase the supply and improve the quality of housing for all incomes and age groups, especially for persons with low and moderate incomes; and to provide home ownership opportunities and other housing choices which meet the needs of the resident population.
(11) Recognize, promote and support the retention, restoration and appropriate reuse of existing buildings, groupings of buildings and other physical features especially those having significant historic and/or architectural value and ensure that new development is sensitive to these features through land use and development criteria.
(16) To the maximum extent feasible, seek to build replacement housing within the Project Area prior to the destruction or removal of dwelling units which house low and moderate income people. The Agency shall make a good faith effort to relocate displacees within the Project Area unless they choose to relocate elsewhere. Project displacees shall be provided a priority for occupancy in housing which the Agency has facilitated. (AR 20534-35.)
Similarly, the City Plan for a Healthy Los Angeles lists as one of its Housing Element Policies: “Expand affordable rental housing for all income groups that need assistance.” (AR 24333.)
The City found that the Project is consistent with the HRP’s goals. (AR 449.) The City noted: “The Project meets the needs of the residential, commercial, arts, and entertainment sectors. In addition, the Project provides new housing opportunities, including affordable housing units, and office, hotel, entertainment, and commercial/retail uses.” (Ibid.)
Petitioners contend that the City fails to meet the HRP’s ninth goal because it provides insufficient affordable housing, does not protect existing affordable units, and does not ensure the provision of replacement housing. (OB at 24.) The Court disagrees. The Project involves the creation of 950 new residential units, 105 of which are for very low income households to replace the 82 residential units subject to the City’s Residential Stabilization Ordinance (“RSO”). (AR 299.) The Project thus “[p]rovide[s] housing choices and increases the supply and improve the quality of housing for all incomes and age groups, especially for persons with low and moderate incomes.”
Petitioners argue that the City fails to comply with the HRP’s eleventh goal because it allows demolition of the historical Selma Apartments. (OB at 24.) As Respondents note (Opp. at 26-27), this policy is sufficiently served by retention of historic buildings such as the Crossroads of the World, the former Hollywood Reporter Building, and the Bullinger Building. (AR 59.) The demolition of one building potentially possessing historic value does not render the Project inharmonious with this policy goal or the HRP in toto.
Petitioners argue that the Project is inconsistent with the HRP’s sixteenth goal because, to the maximum extent feasible, the Project does not require replacement housing in the Project Area prior to the destruction and removal of units housing low and moderate income people. (OB at 24-25.) As Respondents note (Opp. at 27), this argument is based on the flawed premise that those housed in the 82 units are low- and moderate-income people because those units are subject to the RSO. The RSO does not apply solely to those with a low- or moderate-income. (LAMC § 151, et seq.) Hence, to the extent that those displaced do not have low- or moderate-incomes, the sixteenth goal is inapplicable. Further, the City has evidenced some consistency with this policy by offering 40 residential units reserved for very low income households to those displaced and duly qualified. (AR 636-37.) Petitioners have failed to show that offering more units was feasible and, more broadly, that the City’s actions were impermissibly inconsistent with this HRP goal.
3. Consistency with General Plan
a. Internal Consistency of General Plan
The Hollywood Community Plan (“HCP”), a land use element of the City’s General Plan, was adopted in 1988 to serve as “an official guide to the future development of the [Hollywood] Community.” (AR 20520-21.) Among the HCP’s several objectives is to “further the development of Hollywood as a major center of population, employment, retail services, and entertainment,” “designate lands at appropriate locations for the various private uses and public facilities in the quantities and at densities required to accommodate population and activities projected to the year 2010,” and “make provision for the housing required to satisfy the varying needs and desires of all economic segments of the Community.” (AR 20521.) The HCP expressly notes that it was “designed to accommodate the anticipated growth in population and employment of the Community to the year 2010.” (AR 20522.)
The HCP projected Hollywood’s 2010 population to be “approximately 219,000 persons, an increase of 38,000 over the 1980 population.” (AR 20523.) The HCP notes: “Additional low and moderate-income housing is needed in all parts of this Community. Density bonuses for provision of such housing through Government Code 65915 may be granted in the Low-Medium I or less restrictive residential categories.” (AR 20523.)
Petitioners argue that the HCP is deficient as a planning document because it contains outdated population projects and densities and is not correlated with the City’s Housing Element to designate sites for affordable housing. (OB at 26-27.) Petitioners contend that, given these deficiencies, the HCP cannot serve as a valid planning document to support a finding of general plan consistency. (OB at 26.) Petitioners cite to Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, and Buena Vista Gardens Apartments Assn. v. City of San Diego Planning Dept. (1985) 175 Cal.App.3d 289, 296 which hold that a party can move under CCP section 1085 to enjoin a project when the general plan either lacks a relevant element or the element is inadequate. In Camp, the appellate court held that a municipal agency could not make general plan consistency findings using a general plan’s housing element that is deficient with respect to housing needs and obsolete in point of time.
The Court finds Petitioners’ points unavailing. The HCP, despite its outdated information, still serves the core objectives of a land use element — it designates “the proposed general distribution and general location and extent of the uses of the land” and “include[s] a statement of the standards of population density and building intensity recommended for the various districts and other territory covered by the plan.” (Gov. Code §65302(a).) To mitigate the HCP’s dated information, the City evaluated more recent demographic data in assessing the Project’s environmental impacts. (AR 6470-73.) These actions reflect deliberative consistency with the HCP’s core objectives and satisfy the City’s general plan review obligations.
b. Consistency with HCP’s Infrastructure Adequacy Provisions
The HCP provides: “No increase in density shall be effected by zone change or subdivision unless it is determined that the local streets, major and secondary highways, freeways, and public transportation available in the area of the property involved, are adequate to serve the traffic generated.” (AR 20524.)
Petitioners argue that the City violated this infrastructure provision of the HCP by providing Real Party with a 35% density bonus increase on the Project Site even though local streets will not be able to handle the increased traffic generated. (OB at 28; AR 72567.) Petitioners point to comments asserting that the Project “will create more traffic” (see, e.g., AR 26665) and the DEIR’s own acknowledgment that, even with mitigation measures, traffic impacts at several intersections will “remain significant and unavoidable.” (AR 6743.)
Respondents direct the Court to the DEIR’s evaluation of this HCP policy. (Opp. 28-29; AR 6333-34.) In the DEIR, the City found the Project to be “partially consistent” with this policy. (AR 63333.) The City noted that the Project requires a zone change and will “increase the FAR of the Project Site compared to existing conditions.” (AR 6334.) The City notes its traffic analysis findings: (1) 49 of 111 intersections studied will operate at a level of service (“LOS”) D or worse during peak hours with or without Project traffic, (2) Project traffic will significantly impact 22 of these 49 intersections, and (3) the implementation of mitigation measures will reduce the significant impacts of 17 of these 22 intersections. (AR 6334.) As a whole, the DEIR concludes that “Project-related impacts would be less than significant and that adequate capacity is available to serve the traffic and transit ridership generated by the Project.” (AR 6334.)
The Court finds that substantial evidence supports the City’s conclusion that the Project’s impacts on traffic are, in toto, less than significant and that the Project is thus mostly consistent with this infrastructure policy.
c. Consistency with General Plan’s Safety Element
Every general plan must consist of a safety element. (Gov. Code §65302(g)(1). The safety element exists for the protection of the community from any risks associated with seismic and geologic hazards, including liquefaction. (Ibid.)
The City’s 1996 General Plan Safety Element classifies the Project Site as susceptible to liquefaction. (Pet. RJN Ex. C, p.49; AR 1384.) Public comments objected based on the Project’s liquefaction potential. (AR 2657, 63527.) In the FEIR, the City characterizes the information supporting this the Safety Element’s classification of the Project Site as “outdated.” (AR 1384.) The FEIR notes:
“The City’s Zoning Information and Map Access System indicates that the Project Site is not located in an area that has been identified by the State of California as being potentially susceptible to liquefaction. In addition, the Seismic Hazard Zones Map for the Hollywood Quadrangle, which was released by the State Division of Mining and Geology (now the CGS) in March 1999, does not classify the Project Site as part of a Liquefaction Hazard Zone. CGS prepares these maps based on groundwater depth records, soil types, depositional environments, and distance to a fault capable of producing a substantial earthquake. In addition, the 1999 Seismic Hazard Zones Map was re-released by CGS in November 2014 as part of the current official Earthquake Zones of Required Investigation Map for the Hollywood Quadrangle. This most recent and authoritative Seismic Hazard Zones Map, which is determinative as to whether a site in the Hollywood area is susceptible to liquefaction, reconfirms that the Project Site is not located in an area classified as a Liquefaction Hazard Zone. The Grading Division of the Department of Building and Safety (DBS) has reviewed the Vesting Tentative Tract Map for the Project and has confirmed that the Project Site is located outside a State of California liquefaction, earthquake induced landslide, or fault rupture hazard zone.” (AR 1384-85.)
Petitioners argue that the City lacks an adequate Safety Element because the aforementioned information is “outdated.” (OB at 29.) Petitioners contend that the City could therefore not make a valid finding that the Project was consistent with the City’s Safety Element. (Ibid.)
The Court disagrees. A project is consistent with the general plan “if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment.” (Families Unafraid to Uphold Rural El Dorado County, supra, 62 Cal.App.4th at 1336.) The Project serves the Safety Element’s objectives and policies and does not obstruct their attainment by considering the Project Site’s liquefaction potential. Using updated information and, in so doing, arriving at a contrary conclusion to the Safety Element’s map attains the Safety Element’s objectives better than adhering to outdated information.
d. CRA Review
HRP section 407.1.4 provides: “All development plans (whether public or private) shall be subject to review and approval by the [Redevelopment] Agency.” (AR 20544.) Similarly, the HCP provides: “All building permits must be submitted to and approved by the CRA for development within the Redevelopment Project area.” (AR 20527.)
Petitioners contend that, contrary to these provisions in the HRP and HCP, the City failed to ensure that the CRA reviewed and approved the Project. (OB at 30.) Petitioners assert that the CRA maintains continuing jurisdiction over unexpired redevelopment plans, including the HRP, and the projects being developed in the corresponding redevelopment areas. (Ibid.)
In opposition, Respondents argue that the only statutory function of the CRA, the successor agency to the City’s former redevelopment agency, is to wind up and extinguish the affairs of the former agency. (Opp. at 31.) Respondents contend that the CRA cannot take on new obligations or responsibilities precluding the CRA from acting as lead agency on the Project. (Ibid.)
Effective February 1, 2012, the state legislature passed laws dissolving all redevelopment agencies under the CRL. (H&S Code §34172(a).) The legislature withdrew from the redevelopment agencies all authority to transact business or exercise powers granted under the CRL. (H&S §34172(b).) In their place, successor agencies were created “as successor entities to the former redevelopment agencies.” (H&S §34173(a).) The successor agencies’ purpose is “to expeditiously wind down the affairs of the dissolved redevelopment agencies and to provide the successor agencies with limited authority that extends only to the extent needed to implement a winddown of redevelopment agency affairs.” (Resp. RJN Ex. B.) “Except for those provisions of the [CRL] that are repealed, restricted, or revised pursuant to the act adding this part, all authority, rights, powers, duties, and obligations previously vested with the former redevelopment agencies, under the [CRL], are hereby vested in the successor agencies.” (H&S §34173(b).)
Respondents’ counterargument is mostly persuasive. To be sure, Petitioners are not claiming that the CRA is the Project’s lead agency; Petitioners are claiming that the CRA must furnish its Project approval in accordance with the HRP and HCP. In this sense, Petitioners are claiming that the CRA is a “responsible agency,” viz., an agency with responsibility for approving the project. (PRC §21069.) But, even so, the Court finds that the CRA’s approval of the Project is not necessary for two reasons. First, the CRA’s role is limited to winding down the former redevelopment agency’s affairs. Winding down the former redevelopment agency’s affair cannot reasonably encompass the successor agency’s involvement with new development projects. In this case, Real Party submitted an application for the Project in May 2015, well after the former agency’s dissolution. (AR 74924.) Accordingly, the Project’s approvals did not fall in the successor agency’s purview. Second, the redevelopment agency dissolution laws provide for delegation of the former redevelopment agency’s land use authority: “At the request of the city…, all land use related plans and functions of the former redevelopment agency are hereby transferred to the city … that authorized the creation of a redevelopment agency.” (H&S §34173.) By declaring that the “City of Los Angeles maintains all of the responsibility for supervising and approving the Project as a whole” (AR 1402), the Court finds that the City effectuated the transfer of the CRA’s land use authority with respect to the Project.
D. CEQA Claim
1. Standard of Review re: CEQA
In an action challenging an agency’s decision under CEQA, the trial court reviews the agency’s decision for a prejudicial abuse of discretion. (PRC § 21168.5.) “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (Ibid.; see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.) Challenges to an agency’s failure to proceed in a manner required by CEQA are subject to a less deferential standard than challenges to an agency’s factual conclusions. (Vineyard, supra at 435.) In reviewing these claims, the Court must “determine de novo whether the agency has employed the correct procedures.” (Ibid.; see Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26.)
In actions challenging an agency’s factual determinations, substantial evidence is defined as “enough relevant evidence and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (14 CCR § 15384(a).) “A court may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable.” (Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376, 393.) “The reviewing court must resolve reasonable doubts in favor of the administrative finding and decision.” (Ibid.)
An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the EIR is legally inadequate and that the agency abused its discretion in certifying it. (See South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1612; Cherry Valley Pass Acres and Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 327-28.)
2. Analysis and Mitigation of Impacts to Displaced Persons
“A lead agency shall find that a project may have a significant effect on the environment and thereby require an EIR to be prepared for the project where there is substantial evidence, in light of the whole record, that … [t]he environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.” (14 CCR §15065(a); PRC §21083(b)(3).) CEQA Guidelines recommend that a public agency examine if a project will “[d]isplace substantial numbers of existing people or housing, necessitating the construction of replacement housing elsewhere.” (App. G, Sect. XIV(c).)
In Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 837, the EIR at issue recognized that the project “would cause a significant loss of affordable housing in the local area and there would be a significant cumulative loss of affordable housing in South Central Los Angeles.” In Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1039, the EIR recognized a significant impact from the loss of 41 apartment units and recommended mitigation measures to alleviate the loss’s impact on downtown Sacramento housing, including (1) establishing an aggressive program to locate appropriate replacement housing for the displaced tenants and (2) providing monetary relocation benefits for displaced tenants.
The Project proposes the demolition of 84 existing residential units subject to the RSO. (AR 105, 109, 1387.) Project construction is expected to occur in phases over approximately 48 months. (AR 4882.)
In the DEIR’s Housing Section, the City evaluated the Project’s housing impacts individually and together with cumulative household growth. (AR 6463.) As to significance thresholds, the City determined that the Project would have a significant impact on housing if, inter alia, the Project “would result in a net loss of rental units and/or fail to comply with the noticing and relocation requirements of the RSO.” (AR 6475.)
The DEIR notes in pertinent part that the Project “would remove all existing on-site dwelling units and construct a total of 950 residential units, including 84 affordable rental units to replace the existing 84 rent-stabilized units … that would be removed. Existing tenants would be provided relocation assistance in accordance with the RSO and Ellis Act. As the Project proposes a one to one replacement of the existing units, the Project would comply with the RSO and the Ellis Act.” (AR 6479.) More broadly, the DEIR found that Project-level and cumulative impacts related to housing would be “less than significant.” (AR 6483.)
One commenter complained that the EIR “fails to disclose the inconsistency of the permanent loss of 82 RSO units, and the two-year gap between eviction and construction of new housing, with” the Plan for a Healthy Los Angeles’ policy calling for “expanding and preserving existing housing opportunities available to low-income residents; preserving cultural and social resources; and creating and implementing tools to evaluate and mitigate the potential displacement caused by large-scale investment and development.” (AR 73696.) The commenter also complained that the (initially) two-year gap between eviction and construction of new housing was disingenuous: the construction of the project could last seven years or longer. (AR 73701.) The commenter listed adverse health effects from housing displacement, including overcrowding in replacement housing, increased susceptibility to communicable diseases, and increased stress and anxiety. (AR 73702-03.)
In response, the City characterized the existence of adverse human health impacts from housing displacement and the examples listed as “speculative” and therefore not cognizable as environmental impacts. (AR 73650.)
Per this commenter’s line of reasoning, Petitioners contend that the City inadequately analyzed and mitigated displacements of persons from these rent-stabilized, affordable housing units. (OB at 31.)
In opposition, Respondents note that existing tenants will receive relocation assistance in accordance with the RSO and Ellis Act thereby lessening this purported burden. (AR 6479.) Respondents also note that one condition of Project approval is first right of refusal to displaced tenants for a minimum of 40 units. Specifically, the Project approvals state that “qualified tenants residing in the [Selma Apartments] are given first right of refusal to return to a new unit once the proposed development has been constructed. Returning tenants, if qualified, shall be offered a unit reserved for Very Low Income Households. All other qualified tenants shall be offered a new unit at a rate no higher than their last rent payment in their RSO unit at the site with allowable 3% increase per year.” (AR 636.)
The Court finds that the City sufficiently analyzed the displacement of persons from the 82 rent-stabilized units and that substantial evidence supports its conclusion that the impacts of this displacement are “less than substantial.” Unlike the cases cited ante, the Project involves the addition, not loss, of affordable housing in the area. The Project therefore does not raise the same concerns about loss of affordable housing that those cases addressed. Further, while displacement of the Selma Apartment residents during and after the Project’s construction is a cognizable impact, the Court agrees with the City that this impact is less than significant in light of the relocation assistance afforded to those who need it under the RSO and the proffered first right of refusal to the apartments. Arguments and evidence in the record that these measures are insufficient are speculative.
3. Analysis and Mitigation of Traffic Impacts
In the DEIR’s Traffic, Access, and Parking Section, the City analyzed the Project’s potential impacts on traffic, access, and parking based on a traffic study prepared by Gibson Transportation Consulting, Inc. (“Gibson”) dated June 2016. (AR 6607.) The traffic study encompassed a geographic area approximately 2.5 miles (north-south) by approximately 3 miles (east-west) and analyzed a total of 111 signalized and 12 unsignalized intersections. (AR 6613.)
In analyzing Project impacts, the City assessed a range of issues including “the potential for, and impacts as a result of, traffic from the Project to use local residential streets in lieu of major streets (cut-through traffic).” (AR 6657.) The City noted that if traffic congestion is severe, “travel along arterial streets is generally faster than through neighborhoods since arterial streets typically provide greater capacities, higher travel speeds, less driveways, fewer stop signs, etc.” (AR 6713.) The City identified and examined arterial corridors to Highland Avenue, Hollywood Boulevard, and Sunset Boulevard based on the high level of LOS of those streets. (AR 6714-15.) The City also identified and examined six neighborhoods that may be subject to significant neighborhood intrusion impacts as a result of the traffic generated by the arterial corridor usage. (AR 6716-17.) The City found that the impact of the added traffic attributable to the Project would be significant (AR 6717) and cumulatively significant (AR 6732) in these neighborhoods.
To address neighborhood intrusion impacts, the City proposed the development of a Neighborhood Traffic Management (“NTM”) Plan for the six neighborhoods in an amount up to $500,000 (“TRA-MM-6”). (AR 6736; see AR 1997 (renumbering mitigation measure).) The DEIR provides:
“The Project Applicant shall submit a NTM Implementation Plan to LADOT that sets key milestones and identifies a proposed process in developing a NTM plan for the six identified neighborhoods above. This implementation plan shall be formalized through an agreement between the Project Applicant and LADOT prior to the issuance of the first building permit for this Project. The agreement shall include a funding guarantee, an outreach process and budget for each of the identified neighborhoods, selection and approval criteria for any evaluated NTM measures, and an implementation phasing plan. The final NTM plan, if consensus is reached among the stakeholders, should be completed to the satisfaction of LADOT and should consider and evaluate neighborhood improvements that can offset the effects of added traffic, including street trees, sidewalks, landscaping, neighborhood identification features, and pedestrian amenities. It will be the Project Applicant's responsibility to implement any approved NTM measures through the Bureau of Engineering’s B-permit process.” (AR 6736.)
In the traffic study attached to the DEIR, Gibson opines about the highly variable nature of the forecasted neighborhood intrusion traffic:
“It is not possible to predict with a reasonable degree of certainty whether such neighborhood intrusion traffic will occur at a level sufficient to result in a significant adverse impact in any of the identified neighborhoods as the changes in traffic patterns are based on a number of factors…. Nor is it possible to predict in which neighborhoods or on which streets within each neighborhood any such potentially significant neighborhood intrusion traffic impacts might occur. In addition, because of the fact that such assessments cannot be made at this time, it also cannot be specifically determined to what degree feasible mitigation measures would lessen or eliminate such potentially significant impacts or determine what neighborhood measures the local community would prefer over the potentially significant neighborhood traffic intrusions.
A potentially significant neighborhood traffic intrusion impact on a particular residential neighborhood can only be determined after a project or portions of a project are completed and operating. Prior to a project becoming operational it is virtually impossible to quantify potential impacts. Once a project is operational, a neighborhood can be re-assessed to determine if any impacts are occurring, the nature of the impacts, and whether those impacts can be addressed through a Neighborhood Traffic Management Plan.” (AR 10920-21.)
Gibson identifies “a range of calming measures that can be implemented that have been shown to reduce neighborhood intrusion traffic to a point of insignificance.” (AR 10921.) Those measures include “non-restrictive traffic control measures such as traffic circles, speed humps, roadway narrowing (e.g., raised medians and traffic chokers), landscaping features, roadway striping changes (e.g., bicycle lanes or parking striping to reduce the perceived width of the roadway), stop signs, new sidewalks, and new pedestrian amenities” and “more restrictive physical/operational improvements such as turn restrictions, cui-de-sacs, traffic diverters, street blockers, and signal metering.” (Ibid.)
The DEIR ultimately concludes: “Once the Project is operational, a neighborhood can be reassessed to determine if any impacts are occurring, the nature of the impacts, and whether those impacts can be addressed through a [NTM] Plan, as described in Mitigation Measure L-4, which would fund and coordinate implementation of LADOT’s [NTM] Plan process for the Project, in an amount up to $500,000.” (AR 6746.) The City acknowledged that, even after the implementation of all feasible mitigation measures, impacts to residential street segments would remain significant. (Ibid.)
Petitioners submitted a traffic review report from RK Engineering Group, Inc. (“RK”) evaluating Gibson’s updated Traffic Impact Analysis Report and opining on the FEIR’s traffic impact analysis. (AR 73984-85.) RK noted that proposed funding of $500,000 results in only $83,330 in funding per neighborhood. (AR 73990.) “This seems extremely low to implement meaningful traffic calming and roadway segment improvements in the six (6) affected neighborhoods. Speed humps and cushions with signage and markings can cost $1,000 to $6,900 each. Speed Tables can cost $2,000 to $20,000 each. Mini roundabouts can cost as low as $20,000 to $50,000 or upward to $250,000 to $350,000 each. The size of the six (6) neighborhoods is very large and will require hundreds of these devices. The financial contribution should be increased for the local neighborhood street improvements given the significant size of the development.” (Ibid.)
Petitioners argue that TRA-MM-6 is not a feasible mitigation measure because, according to RK, $500,000 is an insufficient amount of funding. (OB at 32.)
For purposes of CEQA review, “feasible” means “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (PRC §21061.1.) “An EIR is required to describe feasible mitigation measures that will minimize significant environmental effects identified in an EIR.” (Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 495 (citing 14 CCR §15126.4(a)(1)).) “[W]here substantial evidence supports the approving agency’s conclusion that mitigation measures will be effective, courts will uphold such measures against attacks based on their alleged inadequacy.” (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027.)
The Court finds Petitioner’s argument unpersuasive. As Respondents note, the City Department of Transportation (“DOT”) found that $500,000 “is commensurate with the size of the project and with the level of residential street impacts that are expected” and is therefore “acceptable to DOT.” (AR 13357.) Given the DOT’s expertise in this matter, this expert opinion constitutes substantial evidence in support of the mitigation measure’s feasibility. (Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 205 (noting that substantial evidence includes the opinion of a city’s “expert planning personnel” on matters within their expertise, even in the absence of additional evidence or consultation).)
Petitioners also argue that TRA-MM-6 constitutes an improper deferred mitigation measure. (OB at 33.) Petitioners state that TRA-MM-6 fails to adopt specific performance standards as to what the NTM Plan will achieve. (OB at 33.)
In opposition, Respondents point to the EIR’s findings articulated ante. (Opp. at 38-39.) Respondents emphasize the expert traffic agency’s conclusion that actual neighborhood traffic impacts are highly uncertain which, in turn, problematizes implementation of TRA-MM-6 at the project approval stage. (Ibid.)
CEQA Guidelines prohibit deferring formulation of mitigation measures: “Formulation of mitigation measures shall be not be deferred until some future time.” (14 CCR §15126.4(a)(1)(B).) However, “the specific details of a mitigation measure … may be developed after project approval when it is impractical or infeasible to include those details during the project’s environmental review provided that the agency (1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can feasibly achieve that performance standard and that will considered, analyzed, and potentially incorporated in the mitigation measure.” (Ibid.)
Essentially, the rule prohibiting deferred mitigation prohibits “loose or open-ended performance criteria. Deferred mitigation measures must ensure that the applicant will be required to find some way to reduce impacts to less than significant levels. If the measures are loose or open-ended, such that they afford the applicant a means of avoiding mitigation during project implementation, it would be unreasonable to conclude that implementing the measures will reduce impacts to less than significant levels.” (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 945.)
As noted ante, Petitioners did not administratively exhaust this issue so this argument is without merit. Assuming arguendo that Petitioners did exhaust this issue, the same result obtains. TRA-MM-6 unquestionably commits Respondents to mitigation. The DEIR provides that Real Party “shall fund and coordinate implementation of LADOT’s [NTM] Plan process for the Project, in an amount up to $500,000.” (AR 6736.) TRA-MM-6 also has “specific performance standards” — an agreement with LADOT and “consensus” with stakeholders — that are deliberately broadly defined in order to allow the NTM Plan crafted to accommodate the six identified neighborhoods. As Rialto cautions, these performance standards do not afford Real Party a means of avoiding mitigation because they still commit Real Party to submit a NTM Implementation Plan to LADOT and to formalize an agreement with LADOT prior to the issuance of a building permit for the Project. (AR 6736.) Finally, the DEIR identifies, by reference, types of actions that can feasibly achieve this performance standard. (AR 6746, 10921.)
b. Traffic Mitigation Agreement
During the comment period, the California Department of Transportation (“Caltrans”) provided input. (AR 1424.) Caltrans noted that on June 6, 2017, the Project’s traffic consultant presented a proposal regarding traffic impact locations and potential mitigation measures for Caltrans’ consideration. (AR 1429.) According to Caltrans, Real Party agreed “to sign a Traffic Mitigation Agreement [“TMA”] with Caltrans prior to circulation of the FEIR.” (Ibid.)
In the FEIR, while acknowledging that the Project, even with mitigation, would have a significant unavoidable cumulative impact on Caltrans facilities (AR 1429-30), the City responded that it was not provided substantial evidence showing that a TMA is a legally defensible mitigation measure. (AR 1429.) “Any mitigation measure warranted by the Project needs to be included in the Draft EIR and supported with substantial evidence. To consider including the TMA as a mitigation measure in the EIR to be adopted and enforced on the Project, Caltrans would need to share the methodology used to identify the mitigation measure, the threshold it relied on in identifying the impacts for which it is requiring the TMA, the basis for finding that it is reasonably foreseeable, and that the mitigation measure will reduce the identified significant impacts and provide substantial evidence to support all of the above. As the lead agency, the City reserves its discretion to select the appropriate thresholds of significance and methodologies for the preparation of its EIRs.” (AR 1429.)
Petitioners argue that the City was required to find the TMA to be legally or otherwise infeasible, not legally indefensible. (OB at 34.) Petitioners contend that, by not making this finding, the City failed to properly dispense with this mitigation measure and that its statement of overriding considerations is therefore defective. (Ibid.)
Respondents persuasively show to the contrary. (Opp. at 40.) A public agency may elect not to adopt a mitigation measure with respect to a significant environmental impact where specific “legal” considerations make the mitigation measure infeasible. (PRC §21081(a)(3).) Petitioners cite to no evidence, and Caltrans provided no evidence, providing a factual or legal basis for the TMA or showing its efficacy so as to warrant its imposition. (Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912 (“The agency must be able to find, based on substantial evidence, that the adopted mitigation measures are ‘required or incorporated into the project’ and that those measures will ‘mitigate or avoid significant effects on the environment.’”); City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 365 (“[A] commitment to pay fees without any evidence that mitigation will actually occur is inadequate.”)
4. Analysis and Mitigation of Air Quality Impacts
In the DEIR’s Air Quality Section, the City addressed the air emissions generated by construction and operation of the Project, specifically whether the Project-generated air emissions cause an exceedance of an ambient air quality standard or South Coast Air Quality Management District (“SCAQMD”) significance threshold. (AR 5973.)
The DEIR notes that the Project is located within the South Coast Air Basin. (AR 5973.) SCAQMD conducts air toxics studies (“MATES-IV”) in the South Coast Air Basin to estimate the cancer risk from toxic air emissions throughout the Basin. (AR 5989.) According to the MATES-IV model, the calculated cancer risk in the Project area is approximately 1,155 in a million. (AR 5990.) This cancer risk predominantly derives from nearby sources of diesel particulate. (Ibid.)
The DEIR notes that the Project will produce air pollutant emissions during its construction and operation. (AR 5996-97.) Emissions resulting from the Project’s construction are expected to exceed the SCAQMD’s daily regional significance thresholds for nitrogen oxide (“NOx”) during periods of heavy construction equipment use and export of soil. (AR 6005.) Similarly, emissions from the operation of the Project at its projected buildout are expected to exceed the SCAQMD’s daily regional operational thresholds for NOx. (AR 6008.) NOx is a byproduct of internal combustion engine exhaust and is a precursor to ozone which, in turn, can irritate lungs and breathing passages and increase susceptibility to respiratory functions. (AR 5974.) For these reasons, the DEIR finds air quality impacts resulting from the Project during construction and operation to be significant. (AR 6005, 6008.)
In response to air quality impacts, the DEIR proposes implementation of five mitigation measures. (AR 6027.) One such measure, Mitigation Measure B-5 (“AIR-MM-5”), proposes the use of Tier III-standard equipment at the Project Site to reduce off-road diesel-powered equipment NOx emissions. (AR 1453; 6028.)
SCAQMD submitted a comment during the comment period. (AR 1451.) SCAQMD noted that the “most significant air quality change in the [South Coast Air] Basin is to reduce an additional 45 percent reduction in [NOx] emissions in 2023 and an additional 55 percent reduction in NOx beyond 2031 levels for ozone attainment.” (Ibid.) SCAQMD noted that achieving NOx emission reductions in a timely manner is “critical” to attaining National Ambient Air Quality Standard for ozone before the 2023 and 2031 deadlines. (Ibid.)
To reduce the construction and operational impacts from NOx emissions, SCAQMD staff recommended that the City adopt several additional mitigation measures, including the following:
Require the use of 2010 model year diesel haul trucks that conform to 2010 EPA truck standards or newer diesel haul trucks (e.g., material delivery trucks and soil import/export), and if the Lead Agency determines that 2010 model year or newer diesel haul trucks cannot be obtained, the Lead Agency shall use trucks that meet EPA 2007 model year NOx emissions requirements, at a minimum. Additionally, consider other measures such as incentives, phase-in schedules for clean trucks, etc. during the five-year construction period.
Require all off-road construction equipment with a horsepower (HP) greater than 50 be USEPA certified Tier 4 interim engines or engines that are certified to meet or exceed the emission ratings for USEPA Tier 4 engines. In the event that all construction equipment cannot meet the Tier 4 engine certification, the applicant must demonstrate through future study with written findings supported by substantial evidence that is approved by the Lead Agency before using other technologies/strategies. Alternative measures may include, but would not be limited to, reduction in the number and/or horsepower rating of construction equipment, limiting the number of daily construction haul truck trips to and from the proposed project, using cleaner vehicle fuel, and/or limiting the number of individual construction project phases occurring simultaneously. (AR 1452.)
In the FEIR, the City responded to SCAQMD’s proposed measure #1 with the following:
“Use of diesel trucks meeting 2007 or 2010 model year engine standards (2007 or 2010 trucks) or alternatively fueled trucks could potentially be an effective measure to reduce air pollution for facilities that have dedicated truck fleets (e.g., distribution facilities, such as those operated by Federal Express). The CARB EMFAC 2017 model indicates that trucks meeting 2010 engine standards are available in approximately 50 percent of the population. However, certain phases of Project construction such as soil export activities would require approximately 250 truck trips per day, and, in addition, soil export activities typically rely on a mix of small independent contractors and a few companies with larger fleets.” (AR 1456.)
The City therefore adopted an additional mitigation measure (“AIR-MM-6”): “During construction, the Project shall give preference to contractors for soil import/export that have haul trucks meeting EPA Model Year 2007/2010 NOx emissions levels when such trucks are reasonably available.” (Ibid.)
The City responded that SCAQMD’s proposed mitigation measure #2 may not be feasible because, inter alia, Tier IV construction equipment may not be readily available when proposed construction activities commence. (AR 1454.) Still, the City revised AIR-MM-5 to require off-road diesel-powered equipment to “meet Tier 4 standards to the extent such equipment is commercially available, but if such equipment meeting Tier 4 standards is not commercially available, then such equipment shall meet Tier 3 standards.” (AR 1455.)
Petitioners contend that the AIR-MM-6, the mitigation measure for diesel trucks hauling soil and demolition debris to and from the Project site, is not equally as stringent as AIR-MM-5, the mitigation measure applicable to off-road diesel-powered construction equipment. (OB at 34.) The DEIR and LA CEQA Thresholds Guide both acknowledge that soil export on- and off-site are causes for emission pollution. (AR 6001, 6004-05.) The Project’s Construction Equipment and Haul Plan forecasts 840 daily truck trips, or about 106 trips per hour, to occur during the Project’s excavation and grading period. (AR 8683.) Petitioners reason that AIR-MM-6 virtually has no teeth — it requires that Real Party give “preference” to 2007/2010 trucks where such trucks are “reasonably available.” (OB at 35-36.) Petitioners argue that the City’s failure to adopt a more stringent mitigation measure, in line with AIR-MM-6, is improper. (OB at 36.)
Petitioners’ argument is unavailing. The City’s response to SCAQMD’s comment provides good-faith, reasoned analysis for its adoption of a modified version of the mitigation measure proposed. That is, SCAQMD proposed that the City require Real Party to use 2010 diesel haul trucks and to use 2007 trucks, “at a minimum,” where 2010 haul trucks “cannot be obtained.” The City responded to SCAQMD’s concerns by modifying its mitigation measure to require that Real Party “give preference to contractors for soil import/export that have haul trucks meeting EPA Model Year 2007/2010 NOx emissions levels when such trucks are reasonably available.” The City reasoned that modification was necessary because haul trucks meeting these standards are not sufficiently available to meet the needs of the Project soil import/export. The Court finds that this reasoning is sensible and supported by substantial evidence.
Further, the Court finds that AIR-MM-6 does not leave Real Party “subject to virtually no standards.” (OB at 36.) Real Party must give “preference” to the 2007/2010 haul trucks when they are “reasonably available.” In other words, when using such haul trucks would not impose undue burden, Real Party must use them.
b. Cumulative Air Pollution Impact Analysis
An EIR shall discuss “cumulative impacts” of a project when the project’s incremental effect is “cumulatively considerable.” (14 CCR §15130(a).) “Cumulative impacts” refer to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts. (14 CCR §15355.) “Cumulatively considerable” means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects. (14 CCR §15065(a)(3).) If the cumulative impact is significant or the project’s incremental contribution to the impact no cumulatively considerable, the lead agency is not required to conduct a full cumulative impacts analysis, but the EIR must include a brief explanation of the basis for the agency’s findings. (San Francisco Baykeeper, Inc. v. State Lands Com. (2015) 242 Cal.App.4th 202, 222.)
Appendix G of the CEQA Guidelines asks lead agencies to consider whether the project “[r]esult[s] in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard.” According to SCAQMD, individual construction projects that exceed the SCAQMD’s recommended daily thresholds for project-specific impacts would cause a cumulatively considerable increase in emissions for those pollutants for which the Air Basin in in non-attainment. (AR 6025.)
The DEIR evaluated cumulative air quality impacts resulting from the Project. (AR 6025-27.) The DEIR found that, with respect to toxic air contaminants (“TACs”), cumulative emission impacts during construction are less than significant. (AR 6025.) The DEIR reasons that the greatest potential for TAC emissions is diesel particulate matter (“DPM”) emissions associated with heavy equipment operations during demolition and grading/excavation activities. (Ibid.) Such construction activities for the Project would last approximately five months and thus, according to the DEIR, not result in a long-term substantial source of TAC emissions. (AR 6007; 6025.) The DEIR also noted that SCAQMD recommends Health Risk Assessments (“HRA”) for substantial sources of DPM. (AR 6015.) Because SCAQMD CEQA guidance does not require a HRA for short-term construction emissions, the City reasoned that the Project must not be a substantial source of DPM warranting a cumulative impact analysis in this respect. (AR 6015, 74889.)
One commenter complained that the City should have conducted a cumulative HRA for emissions from Project construction. (See AR 2655.) The commenter noted that the City failed to recognize other relevant sources in declining to conduct a HRA on the ground that “SCAQMD CEQA guidance does not require a HRA for short-term construction emissions.” (Ibid.)
In the FEIR, the City’s expert conducted a HRA to determine the “potential risks and hazards to individuals through inhalation of Project construction DPM emissions.” (AR 5483.) The HRA found that such emissions created a maximum off-site individual cancer risk of 4.7 in a million. (AR 5483.) SCAQMD’s CEQA Air Quality Handbook states that there is a significant toxic air contaminant impact if the project results in the exposure to carcinogenic air contaminants that exceed the maximum incremental cancer risk of ten in one million. (AR 6003.) The HRA therefore concluded that Project-related toxic emissions would be less than significant. (AR 5483.)
Petitioners argue that the FEIR’s findings ignore the preexisting cancer risk at the Project Site and surrounding area of 1,155 in one million. (OB at 36; AR 5990.) Petitioners contend that, given this increased risk in the surrounding area, the Project’s further contributions of DPMs are cumulatively considerable requiring a cumulative impact analysis. (OB at 36.)
“The relevant question to be addressed in the EIR is not the relative amount of precursors emitted by the project when compared with preexisting emissions, but whether any additional amount of precursor emissions should be considered significant in light of the serious nature of the ozone problems in this air basin.” (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 718.)
The Court finds Petitioners’ argument unpersuasive. Substantial evidence supports the City’s determination that the cumulative impacts of the Project’s DPM emissions are not cumulatively considerable because these emissions (1) do not reach half the maximum incremental cancer risk cap set by SCAQMD, (2) are released over a short period of time (five months) (14 CCR §15355 (“Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time”)), and (3) are ostensibly not viewed by SCAQMD as a substantial source of DPM.
5. Analysis and Mitigation of Historic Resources Impacts
The Selma Apartments are a complex of three, two-story courtyard apartment buildings located on the eastern portion of Development Parcel B. (AR 6131.) The Selma Apartments were constructed in 1939 and consist of buildings designed in a Regency Revival style. (Ibid.) According to the DEIR, all three buildings are excellent examples of the courtyard apartment property type and representative of Hollywood’s transition to higher-density housing that began in the 1920s. (Ibid.) The apartment complex was found eligible for listing in the California Register in the 2010 Hollywood Redevelopment Project Area Historic Resources Survey. (Ibid.)
The Project involves the demolition of the Selma Apartments. (AR 6149.) In the DEIR, the City acknowledges that demolishing this building will result in significant impacts to historic resources that cannot be mitigated to less-than-significant level. (Ibid.)
Because of the Project’s significant impacts to historic resources, the DEIR proposes a historic preservation alternative (“Alternative 5”). (AR 6912.) “An EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.” (14 CCR § 15126.6(a).)
Alternative 5 proposes development of residential, retail, and office uses, while preserving the historic uses on-site. (AR 7122.) Alternative 5 proposes retaining the Selma Apartments and retaining their current use. (AR 7125.)
The DEIR finds that Alternative 5 would (1) reduce, but not eliminate, the Project’s significant environmental impacts related to air quality during construction and traffic during construction; (2) eliminate the Project’s significant environmental impacts related to air quality during operation, the demolition of historic resources, and traffic during operation; and (3) reduce many of the Project’s less-than-significant impacts. (AR 7177.) However, the DEIR also found that Alternative 5 would have greater impacts to (1) adjacent new construction to historic resources since a greater number of historic resources would be potentially impacted, (2) surface water quality during operation because this alternative would not implement lesser rainfall runoff practices, and (3) construction noise and vibration since this alternative would affect a greater number of sensitive receptors. (Ibid.)
The DEIR concludes that Alternative 5 does not achieve numerous of the Project objectives rendering Alternative 5 an inadequate substitute. (AR 7178.) Specifically, the DEIR notes that Alternative 5 eliminates hotel uses and condominiums, considerably reduces land use density, preserves historic uses without rehabilitation, reduces types and mix of uses proposed, and lacks realignment of Las Palmas Avenue. (Ibid.) The DEIR reasons that, as a result of these changes, this alternative fails to meet Project objectives such as (1) the construction of a high-density, mixed-use development consistent with the uses and density envisioned for the Regional Center and Hollywood Center designation of the Project Site, (2) the retention and revitalization of the Crossroads of the World, and (3) the creation of an open-air pedestrian district with a mix of shopping, dining, and entertainment uses. (Ibid.)
In the FEIR, the City responded to comments that the DEIR should have considered additional alternatives that include preservation and rehabilitation of some or all the historical resources on the Project Site. (AR 1371.) The City noted that these commenters fail to recognize that the Project already proposes to preserve and rehabilitate certain on-site historical resources, e.g. the Crossroads of the World and the former Hollywood Reporter Building. (AR 1372.) The City noted that only an alternative preserving all the on-site historical resources would avoid the Project’s impacts to historical resources to a less-than-significant level. In addition, the City stated that a central goal of the Project is to balance new development and historic preservation; accordingly, this purported alternative would not be meaningfully distinct from the Project. (AR 1372-73.)
In the FEIR, the City also responded to comments that Alternative 5 should have included the rehabilitation of all historic resources it preserves. (AR 1375.) The City posited that Alternative 5’s reduced development, necessitated by retention of the historical resources, would not create the financial ability to rehabilitate those resources. (AR 1375, 1377.) The City cited to a study conducted by Kosmont Companies (“Kosmont Study”) which assessed the economic feasibility of the Project and Alternative 5. (AR 3014.) The Kosmont Study based its evaluation of the Project on (1) the cost of the underlying land / the Site, (2) the cost of constructing each project, and (3) a reasonable developer return, versus the value upon completion of each project. (Ibid.) The Kosmont Study found that the Project appears economically feasible as it is “projected to provide an economic return sufficient to warrant a prudent developer proceeding.” (AR 3020.) Conversely, the study found that Alternative 5 “is projected to result in a net loss even given substantial increases in development value and/or substantial decreases in development costs.” (Ibid.) The Kosmont Study concluded that Alternative 5 appears “economically infeasible as no prudent developer would proceed with” that option. (Ibid.) The City also set forth in the FEIR a peer review study from HR&A Advisors, Inc. (“HR&A”) (“Peer Review”) of the Kosmont Study. (AR 3031.) In the Peer Review, HR&A concurs with the Kosmont Study’s conclusion that the Project is financially feasible whereas Alternative 5 is not. (AR 3032.)
Petitioner AHF provided comments in response to the economic feasibility study asserting that insufficient evidence supported the City’s rejection of Alternative 5. (AR 5244.) “An environmentally superior alternative that avoids significant impacts may not be rejected merely because it would cost more and create a lower rate of return for a project. Rather, evidence is required showing the alternative would be impracticable.” (Ibid.) Furthermore, Petitioner AHF presented the economic analysis from another expert claiming that the City’s economic feasibility study was defective for several reasons including (1) the estimated land cost should have been lower; (2) the estimated construction costs for Alternative 5 possessed an unreasonably high mark-up for general allowances and soft costs; (3) the feasibility review improperly assumed a loss of 2/3 of usable space due to historic preservation; (4) the feasibility review underestimated the lease revenue associated with a historic preservation alternative; and (5) the feasibility review model assumes no debt financing with beneficial tax breaks and a higher return on equity that a developer could receive under Alternative 5. (AR 5245.)
Petitioners argue that the City should have analyze a modified version of Alternative 5 that would preserve the Selma Apartments. (OB at 38.) Petitioners also argue that the City presented no evidence that Alternative 5 or this proposed modified alternative is economically infeasible. (Ibid.)
The Court finds that these arguments have no merit.
a. Analysis of Project Alternative Preserving Selma Apartments
“An EIR shall describe a range of reasonable alternatives to the project … which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives. An EIR need not consider every conceivable alternative to a project. Rather, the lead agency must consider a reasonable range of potentially feasible alternatives informed decisionmaking and public participation.” (14 CCR § 15126.6(a).) The rule of reason governs. (Ibid.)
Here, the City designated six potentially feasible alternatives, analyzed each, and rejected each in favor of the Project. In the FEIR, the City explained that it did not analyze a project alternative similar to the one posited by Petitioners for two reasons. First, adopting such an alternative would not negate the Project’s impacts to historical resources. Second, the Project was conceived as a balance of part-new development and part-historic preservation. The proposed alternative was, to the City, an immaterial variation. Given the scope of the Project, the six elaborate alternatives assessed, and the near-infinite possible variations to which the Project is subject, the Court finds that the City acted reasonably in disregarding the proposed alternative.
b. Finding re: Alternative 5’s Economic Infeasibility
Public agencies must refrain from approving projects with significant environmental impacts if there are feasible alternatives that can substantially lessen or avoid those effects. (Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 597.) Feasible for purposes of CEQA means “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (PRC §21061.1.) With respect to economic factors, “[t]he fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project.” (Uphold Our Heritage, supra, 147 Cal.App.4th at 599 (stating also that “the question is not whether [real party] can afford the alternative, but whether the marginal costs of the alternative as compared to the cost of the proposed project are so great that a reasonably prudent property owner would not proceed with the rehabilitation”).) The lead agency’s infeasibility findings are entitled to great deference and are presumed correct. (Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 353.)
The issue of Alternative 5’s infeasibility is somewhat a red herring. The DEIR convincingly explains that Alternative 5, while reducing and eliminating some significant environmental impacts generated by the Project, also exacerbates others and is inconsistent with numerous Project objectives. (AR 7177-78.) On this basis alone, the Court finds that Alternative 5 is infeasible from a “economic, environmental, social, and technological” perspective justifying the City’s non-adoption decision. (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 949 (noting that noncompliance with project objectives is a proper consideration of infeasibility).)
In any event, Petitioners point to two defects with the Kosmont Study: (1) its estimated construction costs have “an unreasonably high markup” for general allowances and soft costs and (2) it improperly assumes the loss of two-thirds of usable space. (OB at 38.) As to the first, the Kosmont Study explains that it retained a “third-party cost estimator” to prepare cost estimates for each of the projects. (AR 3017.) The Kosmont Study provides a cost breakdown for Alternative 5. (AR 3025-26.) Although the costs are apparently high (AR 3034), they do not alter the overall feasibility conclusion, and Petitioners point to no defects therein. As to the second, the FEIR explains that the Kosmont Study based total floor area under the Project and Alternative 5 on architectural illustrations. (AR 3015, 3032, 5248.) This is a reasonable method of approximating total floor area, and Petitioner points to no particular defect.
E. Motion for Judgment on the Pleadings.
Based upon the foregoing, CRA/LA’s Motion for Judgment on the Pleadings is moot.
Petitioners have failed to demonstrate Respondents’ violation of the CRL, PZL, or CEQA. Accordingly, their Petition for Writ of Mandate is DENIED. CRA/LA’s motion for judgment on the pleadings is MOOT.