Hollywoodians Encouraging Rental Opportunities v. City of L.A. ( 2019 )

Filed 6/28/19; Certified for Partial Publication 7/22/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
HOLLYWOODIANS ENCOURAGING B285553
RENTAL OPPORTUNITIES (HERO)
et al., (Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BS163828)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents;
MILLENNIUM SETTLEMENT
CONSULTING / 1850 NORTH
CHEROKEE, LLC et al.,
Real Parties in Interest and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Affirmed.
Angel Law, Frank P. Angel and Ellis Raskin for Plaintiffs
and Appellants.
Advocates for the Environment, Dean Wallraff and
Kathleen R. Unger for Affordable Housing Preservation
Advocates, as Amicus Curiae on behalf of Plaintiffs and
Appellants.
Eviction Defense Network, Elena I. Popp and Sean
Chandra for Los Angeles Tenants Union, Public Counsel,
National Lawyers Guild, Western Center on Law and Poverty,
Strategic Actions for a Just Economy, and Anti-Eviction Mapping
Project, as Amici Curiae on behalf of Plaintiffs and Appellants.
Remy Moose Manley, Sabrina V. Teller and Christina L.
Berglund; Michael N. Feuer, City Attorney, and Oscar Medellin,
Deputy City Attorney, for Defendants and Respondents.
Jeffer Mangels Butler & Mitchell, and Matthew D. Hinks,
for Real Parties in Interest and Respondents.
_________________________
Plaintiffs and appellants Hollywoodians Encouraging
Rental Opportunities (HERO), Sylvie Shain (Shain), and Max
Blonde (Blonde) (sometimes collectively referred to as HERO)
appeal a judgment denying their petition for writ of mandate.
HERO’s petition sought to set aside actions taken by defendants
and respondents City of Los Angeles, City Council of the City of
Los Angeles (City Council), and Central Los Angeles Area
Planning Commission (Commission) (collectively, the City) in
approving a proposal by real parties in interest and respondents
Millennium Settlement Consulting/1850 North Cherokee, LLC,
Lesser Investment Company, L.P., and David Lesser (collectively,
the owner) to convert a vacant 18-unit apartment building into a
boutique hotel.
2
In this case involving the California Environmental Quality
Act (CEQA) (Pub. Resources Code, § 21000 et seq.), 1 the essential
issue presented is whether the City erred in failing to prepare an
environmental impact report (EIR) to assess the loss of affordable
housing and displacement of tenants that would result from the
conversion of the former apartment building into a hotel.
Because the building at issue had been withdrawn from the
rental market years before the City commenced environmental
review for the hotel project, we conclude there were no housing-
related impacts or displacement of tenants for the City to address
in an EIR. We also reject HERO’s other contentions and affirm
the judgment denying the petition for writ of mandate.
OVERVIEW OF CEQA
“ ‘In CEQA, the Legislature sought to protect the
environment by the establishment of administrative procedures
drafted to “[e]nsure that the long-term protection of the
environment shall be the guiding criterion in public decisions.” ’
[Citation.] At the ‘heart of CEQA’ (CEQA Guidelines, § 15003,
subd. (a))[ 2] is the requirement that public agencies prepare an
EIR for any ‘project’ that ‘may have a significant effect on the
environment.’ [Citations.] The purpose of the EIR is ‘to provide
public agencies and the public in general with detailed
information about the effect which a proposed project is likely to
have on the environment; to list ways in which the significant
effects of such a project might be minimized; and to indicate
1
All unspecified statutory references are to the Public
Resources Code.
2
The CEQA Guidelines are found at California Code of
Regulations, title 14, section 15000 et seq.
3
alternatives to such a project.’ [Citation.] The EIR thus works to
‘inform the public and its responsible officials of the
environmental consequences of their decisions before they are
made,’ thereby protecting ‘ “not only the environment but also
informed self-government.” ’ [Citations.]” (Friends of College of
San Mateo Gardens v. San Mateo County Community College
Dist. (2016) 1 Cal.5th 937, 944―945 (San Mateo).)
Under “CEQA and its implementing guidelines, an agency
generally conducts an initial study to determine ‘if the project
may have a significant effect on the environment.’[ 3] [Citation.]
If there is substantial evidence that the project may have a
significant effect on the environment, then the agency must
prepare and certify an EIR before approving the project.
[Citations.] On the other hand, no EIR is required if the initial
study reveals that ‘there is no substantial evidence that the
project or any of its aspects may cause a significant effect on the
environment.’ [Citation.] The agency instead prepares a
negative declaration ‘briefly describing the reasons that a
proposed project . . . will not have a significant effect on the
environment and therefore does not require the preparation of an
EIR.’ [Citations.] Even when an initial study shows a project
may have significant environmental effects, an EIR is not always
required. The public agency may instead prepare a mitigated
negative declaration (MND) if ‘(1) revisions in the project
3
As relevant here, the environmental factors to be
considered in an initial study include a project’s potential impact
on population and housing, and specifically, whether the project
would “[d]isplace substantial numbers of existing people or
housing.” (Cal. Code Regs., tit. 14, § 15000 et seq., appen. G,
§ XIV.)
4
plans . . . before the proposed negative declaration and initial
study are released for public review would avoid the effects or
mitigate the effects to a point where clearly no significant effect
on the environment would occur, and (2) there is no substantial
evidence in light of the whole record before the public agency that
the project, as revised, may have a significant effect on the
environment.’ [Citation.]” (San Mateo, supra, 1 Cal.5th at
p. 945.)
Here, the City’s decision to adopt an MND rather than to
prepare an EIR is the focus of this controversy.
FACTUAL AND PROCEDURAL BACKGROUND
1. Events leading up to the City’s approval of the conversion
of the subject property to use as a 24-room boutique hotel.
The subject real property, located at 1850 North Cherokee
Avenue in the Hollywood area of Los Angeles, is a now-vacant 18-
unit apartment building built in 1939, which was subject to the
City’s Rent Stabilization Ordinance (RSO) (Los Angeles Mun.
Code (LAMC) § 151.00 et seq.). In 2009, the owner filed a land
use application with the City to demolish the building and
replace it with a 39-unit residential condominium project. In
July 2009, the City Council adopted an MND pursuant to CEQA,
finding that the condominium project would not have a
significant effect on the environment.
In May 2013, the owner filed a notice of intent to withdraw
all 18 units from rental housing use pursuant to the Ellis Act.
(Gov. Code, § 7060 et seq.) 4 By October 2013, all the rental units
4
The Ellis Act “prohibits local governments from
‘compel[ling] the owner of any residential real property to offer,
or to continue to offer, accommodations in the property for rent or
lease . . . .’ (Gov. Code, § 7060, subd. (a).)” (Small Property
5
had been vacated. The City then approved the building for
demolition. In early 2014, however, the developer backed out due
to a lack of financing, putting an end to the condominium project.
In July 2015, the owner submitted to the City an
application for the hotel project at issue in this appeal (the
Project), seeking to convert the property into a boutique hotel
with 24 guest rooms. The owner requested the following
approvals: a conditional use permit (CUP) to allow the operation
of the hotel in an R4 zone; a zone variance to provide off-site
parking in excess of 750 feet from the proposed hotel; and a rear
yard adjustment.
Pursuant to CEQA, the City prepared an initial study of
the hotel Project to evaluate its potential environmental impacts.
The initial study determined that the Project would result in
potentially significant effects relating to aesthetics, biological
resources, noise and public services, but concluded that with
mitigation measures, the potential impacts would be mitigated to
less-than-significant levels. For all remaining impact categories,
including population and housing, and cumulative impacts, the
initial study concluded the Project would cause either a less than
significant impact or no impact.
With respect to population and housing, the initial study
concluded that converting the building to a hotel would not
displace housing units or residents because the apartment units
Owners of San Francisco Institute v. City and County of San
Francisco (2018) 22 Cal.App.5th 77, 85, fn. omitted.) The
statutory scheme provides real property owners “the absolute
right to exit the residential rental business.” (San Francisco
Apartment Assn v. City and County of San Francisco (2016)
3 Cal.App.5th 463, 477.)
6
had been withdrawn from the rental market in May 2013 and the
building was vacant. The initial study also found that the Project
did not meet the minimum threshold of 25 multi-family units
that had been adopted by the City as creating a potential
impact. 5 Therefore, the initial study concluded that no additional
analysis was required with respect to the Project’s impact on
population and housing.
Following a public hearing, on December 21, 2015, the
Zoning Administrator adopted an MND (the 2015 MND) that had
been issued by the City Planning Department. The Zoning
Administrator also approved the requested CUP, a zone variance
to permit off-site parking, and an adjustment to permit a 9-foot,
5-inch rear yard in lieu of 15 feet. Mitigation measures identified
in the 2015 MND were adopted as conditions of approval.
Shain, who was a resident of another building in the area,
appealed the Zoning Administrator’s decision to the Commission.
At a March 8, 2016 hearing, the five-member Commission, with
two members absent, was deadlocked on a 2-1 vote, resulting in
5
The City, in its CEQA Thresholds Guide, has adopted
screening criteria to help it determine whether a proposed project
would have a significant impact on population and housing
displacement. The criteria ask “[w]ould the project result in a net
loss of housing equal to or greater than a one-half block
equivalent of habitable housing units through demolition,
conversion, or other means? (One-half block is generally
equivalent to 15 single-family or 25 multi-family dwelling units)”
or “[w]ould the project result in the net loss of any existing
housing units affordable to very low- or low-income households
(as defined by federal and/or City standards), through demolition,
conversion, or other means?”
7
the denial of the appeal and the affirmance of the Zoning
Administrator’s decision.
On April 11, 2016, Shain appealed to the City Council,
challenging the adoption of the 2015 MND as well as the
approval of the zone variance for off-site parking. Before the City
Council’s Planning and Land Use Management (PLUM)
Committee conducted its hearing on the appeal, the owner
withdrew the request for the zone variance for off-site parking.
Therefore, the only matter that remained in the administrative
appeal was Shain’s challenge to the Zoning Administrator’s
adoption of the 2015 MND.
Following a hearing, the PLUM Committee recommended
that the City Council deny the appeal and uphold the Zoning
Administrator’s adoption of the 2015 MND for the Project. The
City Council adopted the PLUM Committee’s report and
approved the Project. On July 1, 2016, the City filed a notice of
determination that the Project had been approved, with
mitigation measures that were made a condition of the approval.
2. Trial court proceedings.
Shain, joined by Blonde, who had been a tenant in the
building, and HERO, an unincorporated association formed after
the City approved the 2015 MND for the Project, filed a petition
for writ of mandate and complaint for declaratory and injunctive
relief, challenging the City’s approval of the Project. They
alleged, inter alia, that the City had failed to prepare an EIR as
required by CEQA and had failed to prepare a legally adequate
initial study and MND, and that the Commission had violated
the law by failing to act on Shain’s appeal. The gravamen of the
action was that the City was required to prepare an EIR to
analyze the direct, indirect, and cumulative impact of this Project
8
and similar projects on the supply of rent-stabilized housing and
the dislocation of tenants from such housing.
After hearing the matter, the trial court denied the petition
for writ of mandate in its entirety and entered judgment in favor
of the City and the owner. The trial court ruled, inter alia, that a
proposed project’s impacts are measured against a baseline,
which normally consists of the physical environmental conditions
in the vicinity of the project as they exist at the time the
environmental analysis is commenced. Here, the environmental
analysis for the boutique hotel Project commenced in 2015. By
that time, the property was a vacant building that was no longer
being rented. Thus, the City’s 2015 MND properly concluded
that the Project would have no impact on population and housing
because it would not displace any tenants or eliminate any rental
units; the residents had vacated the property long before the
hotel was even considered or proposed. The trial court concluded:
“HERO’s entire CEQA claim therefore fails on this basis because
HERO used the wrong baseline.”
The trial court further ruled that leaving aside the issue of
the baseline, HERO failed to show that the Project would have a
significant impact on “the physical environment, not just
socioeconomic impacts,” stating that CEQA “does not require
consideration of social effects that do not contribute to a
secondary physical impact.” The trial court also reasoned that
setting aside entitlements for the Project would not result in the
18 units being returned to the rental market because the “City is
bound by the Ellis Act and cannot compel the property owner to
‘bring back’ these units to their prior use and rent-stabilized
status.”
9
The trial court also ruled that the Commission
properly acted on Shain’s appeal, noting that two members of the
Commission voted to deny the appeal while one voted in favor,
and that three votes were required to overturn the Zoning
Administrator’s decision.
HERO filed a timely notice of appeal from the judgment.
CONTENTIONS
HERO contends: (1) substantial evidence in the record
supports a fair argument that the cumulative environmental
effects of the Project and similar related projects are significant
and cause substantial adverse effects on human beings within
the meaning of CEQA, requiring the City to prepare an EIR;
(2) the City’s initial study for the Project failed to inquire into the
cumulative environmental effects of the Project and their
substantial adverse human impact, and therefore the trial court
should have ordered the City to void the Project approvals and to
prepare a proper new initial study; (3) the City Council failed to
proceed in the manner required by CEQA by determining Shain’s
administrative appeal without considering the Project-related
permits, and the City’s bifurcated review procedures violate
CEQA; and (4) the Commission’s failure to act on Shain’s appeal
violated state and local law.
10
DISCUSSION
1. The City was not required to prepare an EIR to address
the Project’s alleged impact on the loss of rent-stabilized housing
units or the displacement of tenants because the property
previously had been withdrawn from the rental market pursuant
to the Ellis Act; under CEQA the assessment of impacts of a
proposed project ordinarily is based on conditions as they exist at
the time the environmental analysis is commenced.
a. Standard of review.
“In challenging the agency’s decision to adopt a mitigated
negative declaration, the party opposing the Project . . . bears the
burden to present substantial evidence of a fair argument that
the mitigation measures are inadequate to avoid the potentially
significant effects. [Citations.] ‘Substantial evidence includes
facts, reasonable assumptions based on fact, and expert opinion
supported by facts. [Citation.] Substantial evidence does not
include speculation, unsubstantiated opinion, or evidence that is
clearly erroneous. [Citation.]’ [Citation.] If such evidence exists,
the [court reviewing the agency’s decision] must set aside the
agency’s decision to adopt a negative declaration or a mitigated
negative declaration as an abuse of discretion in failing to
proceed in a manner as required by law. [Citation.]” (Citizens for
Responsible & Open Government v. City of Grand Terrace (2008)
160 Cal. App. 4th 1323, 1332.)
In “reviewing the trial court’s judgment on a petition for
writ of mandate, we apply the same test. [Citations.] We
independently review the administrative record to determine
whether the agency failed to proceed in a manner consistent with
the requirements of CEQA. [Citations.]” (Citizens, supra,
160 Cal.App.4th at p. 1332.)
11
b. General principles.
As discussed above, pursuant to CEQA, “a public agency[ 6]
pursuing or approving a project need not prepare an EIR unless
the project may result in a ‘significant effect on the environment’
(§§ 21100, subd. (a), 21151, subd. (a)), defined as a ‘substantial, or
potentially substantial, adverse change in the environment’
(§ 21068). If the agency’s initial study of a project produces
substantial evidence supporting a fair argument the project may
have significant adverse effects, the agency must (assuming the
project is not exempt from CEQA) prepare an EIR. (Cal. Code
Regs., tit. 14, § 15064, subd. (f)(1); No Oil, Inc. v. City of Los
Angeles (1974) 13 Cal. 3d 68, 75.) If the initial study instead
indicates the project will have no significant environmental
effects, the agency may . . . so state in a negative declaration.
(Cal. Code Regs., tit. 14, § 15064, subd. (f)(3).) [¶] An agency
that, relying on a standard inconsistent with CEQA and the
CEQA Guidelines, prepares only a negative declaration has not
proceeded in the manner required by law and has thus abused its
discretion, calling for a judicial remedy. [Citations.]”
(Communities for a Better Environment v. South Coast Air
Quality Management Dist. (2010) 48 Cal. 4th 310, 319, fn. omitted
(Communities).)
To decide “whether a given project’s environmental effects
are likely to be significant, the agency must use some measure of
the environment’s state absent the project, a measure sometimes
referred to as the ‘baseline’ for environmental analysis.
According to an administrative guideline for CEQA’s application,
6
Here, the City was the lead agency with principal
responsibility for approving the project. (§ 21067.)
12
the baseline ‘normally’ consists of ‘the physical environmental
conditions in the vicinity of the project, as they exist at the
time . . . environmental analysis is commenced . . . .’ (Cal. Code
Regs., tit. 14, § 15125, subd. (a).)” (Communities, supra,
48 Cal.4th at p. 315, italics added.) 7 8
The baseline determination is an important component of
the CEQA process, as it sets the criterion by which the agency
determines whether the proposed project has a substantial
7
California Code of Regulations, title 14, section 15125,
subdivision (a), was amended to its present form in December
2018 (see History foll. Cal. Code Regs., tit. 14, § 15125), in
respects not pertinent to this appeal.
8
Despite the general rule that the baseline normally consists
of the physical environmental conditions at the time the
environmental analysis is commenced (Communities, supra,
48 Cal.4th at p. 315), “ ‘the date for establishing baseline cannot
be a rigid one. Environmental conditions may vary from year to
year and in some cases it is necessary to consider conditions over
a range of time periods.’ [Citation.] In some circumstances, peak
impacts or recurring periods of resource scarcity may be as
important environmentally as average conditions. Where
environmental conditions are expected to change quickly during
the period of environmental review for reasons other than the
proposed project, project effects might reasonably be compared to
predicted conditions at the expected date of approval, rather than
to conditions at the time analysis is begun. [Citation.] A
temporary lull or spike in operations that happens to occur at the
time environmental review for a new project begins should not
depress or elevate the baseline; overreliance on short-term
activity averages might encourage companies to temporarily
increase operations artificially, simply in order to establish a
higher baseline.” (Id. at pp. 327–328.)
13
adverse effect on the environment. (John R. Lawson Rock & Oil,
Inc. v. State Air Resources Bd. (2018) 20 Cal.App.5th 77, 103–
104.) However, neither “CEQA nor the CEQA Guidelines
mandates a uniform, inflexible rule for determination of the
existing conditions baseline. Rather, an agency enjoys the
discretion to decide, in the first instance, exactly how the existing
physical conditions without the project can most realistically be
measured, subject to review, as with all CEQA factual
determinations, for support by substantial evidence. [Citation.]”
(Communities, supra, 48 Cal.4th at p. 328.)
c. The City selected an appropriate baseline; it
properly applied the general rule that the baseline consists of
environmental conditions as they exist at the time environmental
analysis is commenced.
HERO argues that the City was required to prepare an EIR
for the Project because substantial evidence in the record
supports a fair argument that the cumulative environmental
effect of this Project and similar related projects will be the
elimination of rent-stabilized housing units in Hollywood, and
displacement of a substantial number of renters who rely on rent-
stabilized housing. The argument lacks merit because, as we
discuss, the baseline against which the Project properly was
measured was a vacant building, not a tenant-occupied rental
property. 9
9
Because we reject HERO’s challenge to the City’s baseline
determination, we need not consider whether the loss of housing
or displacement of tenants could, under other circumstances not
present here, result in a reasonably foreseeable indirect
environmental impact cognizable under CEQA.
14
Here, at the time the environmental analysis for the Project
was commenced in 2015, the existing condition of the property
did not include rent-stabilized apartments, as the building had
been withdrawn from the rental market as of May 2013 pursuant to
the Ellis Act, and was uninhabited. Thus, the City properly
determined the baseline from which to measure the Project’s
impact on population and housing was a vacant building that was
no longer part of the Hollywood rental market.
HERO contends the respondents’ baseline theory relies on
an “unproven hypothetical” that the owner’s 2013 decision to opt
out of renting the units was irreversible and would not have
changed if, for example, the City were to deny the application to
convert the property to a boutique hotel. HERO argues that had
the units again been offered for lease in 2015, they would have
been subject to rent-stabilization requirements. (Gov. Code,
§ 7060.2; LAMC, § 151.26.) Therefore, according to HERO,
notwithstanding the removal of the property from the rental
market pursuant to the Ellis Act in 2013, it was error to exclude
the 18 units from the 2015 baseline for purpose of CEQA review.
Contrary to HERO’s argument, the “unproven
hypothetical” is being posited by HERO, not by respondents.
HERO’s theory that the owner may at some point restore the
apartment units to the rental market is purely speculative.
Further, HERO’s argument that the Ellis Act does not preempt
municipal control over the demolition and redevelopment of
residential property (Gov. Code, §§ 7060.7, subd. (b), 7060.1,
subd. (b); San Francisco Apartment Assn. v. City and County of
San Francisco, supra, 3 Cal.App.5th at p. 485) does not meet the
15
issue. 10 The Ellis Act entitles real property owners to exit the
residential rental business (3 Cal.App.5th at p. 477), which is
what occurred here in 2013. Thus, at the time the environmental
analysis for the Project commenced in 2015, the subject real
property consisted of a vacant building that had been withdrawn
from the residential rental market two years earlier. Because the
Project would not displace any tenants or remove any rent-
stabilized units from the market—those events already had
occurred independently of this Project—the City properly
determined that an EIR was not required to analyze the Project’s
impact on housing and population.
Given the historical circumstances of this fact situation,
HERO’s suggestion that the 2009 condominium project and the
2015 hotel Project should be analyzed as a whole is unpersuasive,
and properly was rejected by the trial court. Laurel Heights
Improvement Assn. v. Regents of University of California (1988)
47 Cal. 3d 376 reiterated “the principle that ‘environmental
considerations do not become submerged by chopping a large
project into many little ones—each with a minimal potential
impact on the environment—which cumulatively may have
disastrous consequences.’ [Citation.]” (Id. at p. 396.) However,
that principle is not implicated here. The record reflects that the
subject property was removed from the rental market pursuant
to the Ellis Act in 2013, to enable the building to be demolished
10
Lincoln Place Tenants Assn. v. City of Los Angeles (2007)
155 Cal. App. 4th 425, cited by HERO, has no bearing on the
baseline determination. It simply held that the landlord could
not evict tenants pursuant to the Ellis Act without first
complying with the mitigation conditions of the EIR. (Id. at
p. 454.)
16
and replaced with a condominium project. After that plan failed
for lack of financing, the instant Project was proposed to
repurpose the property as a boutique hotel. There is nothing to
suggest that the instant Project was “a reasonably foreseeable
consequence of the initial project” (id. at p. 396) or that the initial
study and 2015 MND were an end run around CEQA. 11
(Compare, Arviv Enterprises, Inc. v. South Valley Area Planning
Com. (2002) 101 Cal. App. 4th 1333, 1336 [developer was required
to obtain an EIR for a 21-house development for which he had
obtained a series of discrete approvals over a short period of
time].)
In sum, we agree with the trial court that HERO’s CEQA
claim fails because the relevant baseline in 2015 was a vacant
building that already had been withdrawn from the residential
rental market. Therefore, the record does not support a fair
argument that the Project would have a substantial adverse
impact on Hollywood’s stock of rent-stabilized housing or on
displacement of residents.
d. No issue as to cumulative impacts.
HERO further contends the City’s initial study failed to
inquire into the cumulative impact of the Project with respect to
loss of housing and displacement of residents.
However, “[w]hen there is no substantial evidence of any
individual potentially significant effect by a project under review,
the lead agency may reasonably conclude the effects of the project
will not be cumulatively considerable, and it need not require an
11
Of course, were there evidence of an attempted end run
around CEQA, use of a different baseline may well be
appropriate. However, that issue is not before us, given the
circumstances of this case.
17
EIR on this basis. [Citation.]” (Sierra Club v. West Side
Irrigation Dist. (2005) 128 Cal. App. 4th 690, 701–702.) Because
there is no substantial evidence that the Project may have an
adverse impact on the supply of rent-stabilized housing units in
the Hollywood area or on displacement of residents, the City was
not required to inquire into the cumulative impact of the Project
with respect to population and housing.
e. Other issues not reached.
The baseline issue is dispositive. Having determined that
an EIR was not required because there is no substantial evidence
that the Project may result in the loss of affordable housing or
the displacement of tenants, as the building already had been
withdrawn from the rental market pursuant to the Ellis Act and
was vacant, it is unnecessary to reach any related issues. 12
The court is mindful of the shortage of affordable housing
in the City of Los Angeles. The visibility of homelessness is a
daily reminder of the unmet need for shelter, and high rents are
a burden for many who have housing. This case, however,
represents the confluence of two statutory schemes. Because the
subject property had been withdrawn from the rental market
pursuant to the Ellis Act and was vacant, there were no
displacement of population or housing-related impacts to be
addressed in an EIR pursuant to CEQA.
12
Thus, we need not address HERO’s argument that the
initial study failed to follow the screening criteria set forth in the
City’s CEQA Thresholds Guide (see fn. 5, ante), that the loss of
affordable housing causes substantial adverse effects on human
beings within the meaning of CEQA (Cal. Code Regs., tit. 14,
§ 15065, subd. (a)(4)) so as to require the preparation of an EIR,
or any related issues raised by HERO and amici curiae.
18
2. HERO’s procedural arguments.
a. No merit to HERO’s contention that CEQA was
violated because the City Council’s review was limited to the
Zoning Administrator’s adoption of the 2015 MND.
HERO contends that CEQA was violated because the City
Council’s review was limited to the Zoning Administrator’s
adoption of the 2015 MND, and the City Council did not exercise
discretionary review over the other Project entitlements, namely,
the CUP, the zone variance to permit off-site parking, and the
Zoning Administrator’s adjustment with respect to the depth of
the rear yard. 13 The argument is meritless.
CEQA “requires the person or persons responsible for
approving a project (the ‘decisionmaking body’ in CEQA parlance)
also be responsible for complying with CEQA’s environmental
review (e.g., by certifying an EIR, adopting a negative declaration
or MND, or determining that the project is exempt). [Citations.]”
(Clews Land & Livestock, LLC v. City of San Diego (2017) 19
Cal.App.5th 161, 187 (Clews); accord, POET, LLC v. State Air
Resources Bd. (2013) 218 Cal. App. 4th 681, 731 (POET); Citizens
for the Restoration of L Street v. City of Fresno (2014) 229
Cal. App. 4th 340, 360 (Fresno).) As explained in POET, “[f]or an
environmental review document to serve CEQA’s basic purpose of
informing governmental decision makers about environmental
issues, that document must be reviewed and considered by the
same person or group of persons who make the decision to
13
We note that before the City Council considered the appeal,
the owner withdrew its request for a zone variance to permit off-
site parking. Therefore, HERO’s argument with respect to
administrative review of the zone variance became moot.
19
approve or disapprove the project at issue. In other words, the
separation of the approval function from the review and
consideration of the environmental assessment is inconsistent
with the purpose served by an environmental assessment as it
insulates the person or group approving the project ‘from public
awareness and the possible reaction to the individual members'
environmental and economic values.’ [Citation.]” (POET, supra,
218 Cal.App.4th at p. 731, fn. omitted.)
For example, in Fresno, a municipal historic preservation
commission had the authority to approve a demolition permit,
and thus the authority to approve the project, but it lacked the
authority to also approve the MND for the project, resulting in an
improper splitting of decisionmaking authority between the
preservation commission and the city council. (Fresno, supra,
229 Cal.App.4th at pp. 354–360.)
On the other hand, in Clews, the hearing officer was the
municipality’s decisionmaking body; the hearing officer had the
authority to approve the project as well as to adopt the MND.
(Clews, supra, 19 Cal.App.5th at pp. 187–188.) That procedure
satisfied CEQA’s requirement that the decisionmaking body also
be responsible for complying with CEQA’s environmental review.
(Ibid.)
In the instant case, as discussed above, the Zoning
Administrator was the “decisionmaking body”—it was the Zoning
Administrator who approved the CUP, approved the zone
variance to permit off-site parking, approved the rear yard
adjustment, and also adopted the 2015 MND. There was no
splitting of decisionmaking authority over the Project. Thus, the
Zoning Administrator’s “adoption of the MND was procedurally
20
proper because he was the City’s decisionmaking body for the
project. [Citations.]” (Clews, supra, 19 Cal.App.5th at p. 188.)
Thereafter, the Zoning Administrator’s decision adopting
the 2015 MND was appealable to the Commission and then to the
City Council, in compliance with CEQA. As stated in Clews,
supra, 19 Cal.App.5th at page 187, “[i]f the decisionmaking body
is unelected, . . . the decisionmaking body’s compliance with
CEQA must be appealable to the agency’s elected decisionmaking
body, if any. [Citations.]” 14
HERO contends the City Council failed to proceed in
accordance with CEQA because it solely considered the Zoning
Administrator’s adoption of the 2015 MND, without reviewing
the other Project-related approvals. The argument is meritless
because CEQA does not require that all project approvals be
appealable to the City Council. “Neither CEQA nor the
Guidelines require that a local agency’s elected decisionmaking
body accept appeals regarding every project approval, separate
and apart from environmental review. They require only that the
environmental determination be appealable. [Citations.]”
(Clews, supra, 19 Cal.App.5th at p. 189.) Therefore, the City was
only obligated under CEQA to provide for an appeal to the City
Council of the Zoning Administrator’s adoption of the 2015 MND;
14
Section 21151 states at subdivision (c): “If a nonelected
decisionmaking body of a local lead agency certifies an
environmental impact report, approves a negative declaration or
mitigated negative declaration, or determines that a project is not
subject to this division, that certification, approval, or
determination may be appealed to the agency’s elected
decisionmaking body, if any.”
21
the City was not required by CEQA to afford an appeal from the
other Project-related approvals.
For these reasons, there is no merit to HERO’s contention
that the City Council’s review of the 2015 MND, without review
of the other Project-related approvals, violated CEQA.
b. No merit to HERO’s contention that the
Commission violated state and local law by failing to act on
Shain’s appeal and by failing to make findings.
As indicated, Shain appealed the Zoning Administrator’s
decision to the Commission. At the March 8, 2016 hearing, with
only three of the five members of the Commission present, the
Commission deadlocked on a 2-1 vote in favor of denying the
appeal. The Commission’s failure to reach a decision is deemed a
denial of the appeal and thus an affirmance of the Zoning
Administrator’s decision. (LAMC, § 12.24.I.4.)
HERO contends this manner of proceeding violated Shain’s
right to have her appeal actually determined. (LAMC, § 12.24,
subd. I.4 [the appellate body “shall act within 75 days”].) The
argument fails because the Commission did act on Shain’s
appeal. The Commission simply was unable to reach a decision,
resulting in the denial of Shain’s appeal and the affirmance of the
Zoning Administrator’s decision.
HERO further argues that even assuming two members of
the Commission had the power to deny Shain’s appeal, they
violated state law by failing to make any findings to support their
decision. (Cal. Code Regs., tit. 14, § 15065; Topanga Assn. for a
Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506,
515–517.) The argument fails because the Commission was
deadlocked and thus was unable to reach a decision. There was
no decision by the Commission to uphold the Zoning
22
Administrator’s decision, and therefore no findings to be made in
that regard.
In sum, HERO’s procedural arguments are meritless.
DISPOSITION
The judgment denying the petition for writ of mandate is
affirmed. Respondents shall recover their costs on appeal.
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
23
Filed 7/22/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
HOLLYWOODIANS ENCOURAGING B285553
RENTAL OPPORTUNITIES (HERO)
et al., (Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BS163828)
v.
ORDER CERTIFYING OPINION
CITY OF LOS ANGELES et al., FOR PARTIAL PUBLICATION
Defendants and Respondents;
MILLENNIUM SETTLEMENT
CONSULTING / 1850 NORTH
CHEROKEE, LLC et al.,
Real Parties in Interest and
Respondents.
THE COURT:
The opinion in the above entitled matter filed on June 28,
2019, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be partially
published in the Official Reports and it is so ordered as follows.
The opinion is certified for publication with the exception of
Section 2 of the Discussion.
____________________________________________________________
EDMON, P. J. LAVIN, J. EGERTON, J.
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