Concerned Citizens of Beverly Hills/Bel Air v. City of Beverly Hills CA2/1 ( 2021 )

Filed 1/14/21 Concerned Citizens of Beverly Hills/Bel Air v. City of Beverly Hills
CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CONCERNED CITIZENS OF B297931
BEVERLY HILLS/BEL AIR,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BS171828)
v.
CITY OF BEVERLY HILLS,
Defendant and Respondent,
LOMA LINDA TRUST,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard L. Fruin, Judge. Affirmed.
Channel Law Group, Jamie T. Hall and Julian K.
Quattlebaum, III for Plaintiff and Appellant.
Laurence S. Wiener, City Attorney for Beverly Hills;
Richards, Watson & Gershon, Ginetta L. Giovinco and Stephen
D. Lee for Defendant and Respondent.
Allen Matkins Leck Gamble Mallory & Natsis and Patrick
A. Perry for Real Party in Interest and Respondent.
___________________________
INTRODUCTION
Before us is the review of a finding by respondent City of
Beverly Hills (City) that the construction of two single-family
homes (the Project) located on two adjacent parcels of land on
Loma Linda Drive (the Properties) is exempt from filing
environmental review documents otherwise required by the
California Environmental Quality Act (CEQA; Pub. Resources
Code,1 § 21000 et seq.). The owner of these properties is
respondent real party in interest Loma Linda Trust (Real Party).
As detailed below, the City found that two exemptions from
having to prepare an environmental impact report (EIR) or
negative declaration2 applied to the Project: the Class 2 and
Class 3 exemptions. The Class 2 exemption exempts projects
that replace or reconstruct existing structures (Cal. Code Regs.,
tit. 14, § 15302, Guidelines for Implementation of CEQA
(Guidelines)) (Class 2 exemption), and the Class 3 exemption
1All further unspecified statutory references are to the
Public Resources Code.
2We describe these documents in our Factual Background
and Procedural History.
2
exempts small construction projects, including the construction of
one to three single-family homes (Guidelines, § 15303) (Class 3
exemption). The City approved the Project based on both
exemptions. Because we conclude that substantial evidence
supports the City’s findings that the Project qualifies for the
Class 3 exemption, we do not address the City’s findings
regarding the Class 2 exemption.
The Class 3 exemption is subject to certain exclusions
known as “exceptions.” Two such exceptions are potentially
applicable here. Very simply summarized, the first of these
exceptions focuses on whether the project itself is “unusual,” in
the sense that it has some feature distinguishing it from others in
the exempt class, and that this unusual feature poses a risk to
the environment. The second of these exceptions focuses on a
project’s surroundings, that is, whether the project poses special
risks to the environment because of its location or its relationship
to environmental resources, such as natural phenomena like
wildlife. We refer to these exceptions in the body of our opinion
as the “unusual circumstances” and “location” exceptions.
Appellant Concerned Citizens of Beverly Hills/Bel Air
(Citizens) directs its challenges on appeal primarily to the City’s
findings that these exceptions do not apply to the Project.
Citizens also asserts that the City defined the proposed Project
improperly so as to avoid further CEQA review.
Stating the issue before us is the simple part. Elucidating
our conclusion that substantial evidence supports the City’s
determinations is not. The administrative record regarding
development of the Properties is extensive and spans several
years. CEQA itself is complex, as are the authorities interpreting
it. We thus divide our opinion into three parts.
3
First, in our Factual Background and Procedural History,
we set forth in chronological order the proceedings before the City
involving Real Party’s efforts to develop the Properties. Second,
we outline the analytic structure of CEQA, particularly focusing
on the Class 3 exemption and exceptions to that exemption.
Third, in our Discussion, we apply that analytic structure to the
record. We start with our standard of review, which itself is
multi-layered under our high court’s guidance in Berkeley
Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086(Berkeley Hillside).
As set forth in our Discussion, we conclude that under
Berkeley Hillside, the substantial evidence standard of review
dictates our review of whether the City erred in finding that the
unusual circumstance and location exceptions did not apply to
the Project and reject Citizens’s contention that our review is less
deferential under a “fair argument” standard of review. Finally,
we discuss the administrative record set forth in our Factual and
Procedural Background and conclude that the City did not err in
finding that the Class 3 exemption exempted the Project from
further CEQA review and that none of the exceptions to that
exemption applies to the Project.
We thus affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The Subject Properties
The Properties are located in Beverly Heights on 1184
Loma Linda Drive (the 1184 Property) and 1193 Loma Linda
Drive (the 1193 Property). We refer to the 1184 Property and the
1193 Property collectively as the “Properties,” refer to each as “a
Property,” and refer to the single-family residences Real Party
intends to construct atop each Property as “the Residences.” The
4
City has zoned the Properties as “R-1,” suitable for single-family
residential use.3 They are bordered by other single-family
residences and are located at the end of a cul-de-sac at the end of
Loma Linda Drive, a single-lane residential street that is
currently 22 feet wide.
Some time before 2013, one single-family home and one
guest house sat atop the parcels currently comprising the
Properties. Real Party removed these structures in order to
prepare the site for future development. There are no structures
currently on the Properties.
In 2013, Real Party proposed to construct a single-family
residence that would straddle both Properties. This attempt to
create a single structure began by filing applications for various
permits with the City. We refer to Real Party’s submission of
permits to construct this residence as the “2013 Application,” and
the project envisioned by the 2013 Application as the “2013
Project.”
The 2013 Application proposed a 23,632 square feet single-
family residence with an attached office and guest house. In
order to create this structure, Real Party would have needed to
export approximately 8,081 cubic yards of earth material. The
various approvals required to build the 2013 Project included a
Hillside R-1 Permit to export more than 3,000 cubic yards of
earth material, a Tree Removal Permit for the removal of an
existing Canary Island pine tree, and approval of a street
3 Zoning groups R-1 to R-4 “generally involve[ ] dwellings,
congregate care facilities and some other types of residential care
facilities, as well as houses and apartments.” (7 Miller & Starr,
Cal. Real Estate (4th ed. 2020) § 25:6.)
5
vacation and acceptance of a street dedication to replace the
existing turnaround at the end of Loma Linda Drive with a fire
truck turnout.
Unlike the Project that is before us, the City did not find
the now-abandoned 2013 Project exempt from CEQA review.
Instead, the City moved to the next step in the CEQA process and
conducted an “initial study” to determine the 2013 Project’s
possible environmental impacts. (See generally Save Our Schools
v. Barstow Unified School Dist. Bd. of Education (2015) 240
Cal.App.4th 128, 137-139 [describing steps in the CEQA
process].) The City then had two choices: to order preparation of
an EIR, or order preparation of a “negative declaration.”4
Here, the City filed a “mitigated” negative declaration in
connection with the 2013 Project (the 2013 MND). By filing the
2013 MND, the City found that although “the initial study has
identified potentially significant effects on the environment, . . .
(1) revisions in the project . . . 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 [City] that the project, as
revised, may have a significant effect on the environment.”
(§ 21064.5; see, e.g., Mejia v. City of Los Angeles (2005) 130
Cal.App.4th 322, 332.)
4 An agency may file a negative declaration instead of an
EIR when the agency’s “initial study” determines there is no
substantial evidence that the project may have a significant effect
on the environment. (See § 21064; see, e.g., Lighthouse Field
Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170,
1188-1191.)
6
In the end, the 2013 Project did not go forward. Real Party
explains in its briefing that it abandoned the 2013 Project “[d]ue
to community opposition.”
B. The 2016 Project
The Project before us involves Real Party’s second attempt
to build on the Properties, which also has garnered community
opposition. The current Project envisions two single-family
homes—one atop each Property.
Real Party filed separate building permits for each
Property. The building permit application for the 1193 Property
sought permission to build a two-story, 8,194 square-foot single-
family home with a 2,629 square-foot basement. The building
permit application for the 1184 Property sought permission to
build a two-story, 7,924 square-foot single-family home with a
5,838 square-foot basement and garage.
In response to a city ordinance, Real Party redesigned the
Project to reduce the export of earth material below the level that
would have required an R-1 building permit from the City for the
Project.5 Real Party also agreed to the City’s demand that Real
Party grant it easements and make improvements to Loma Linda
5 On August 30, 2016, the Beverly Hills City Council (City
Council) adopted Ordinance No. 16-O-2709, which amended the
Beverly Hills Municipal Code to reduce the amount of export that
would require approval of an R-1 permit from 3,000 cubic yards
to 1,500 cubic yards on any site in the City’s Hillside area that is
adjacent to a street that is less than 24 feet wide. Following
adoption of this ordinance, Real Party modified the plans for the
Residences such that the amount of export required would be less
than 1,500 cubic yards, thereby avoiding the need for an R-1
permit.
7
Drive to improve emergency vehicle access in the event of a fire.
Specifically, the City demanded that Real Party (1) dedicate
easements for a fire truck turnaround on both Properties,
(2) agree to remove all encroachments in the easement area, and
(3) construct street improvements required for the fire
turnaround.
C. Review of the Project by the City
The City’s planning commission held its first public hearing
on the Project on October 12, 2017. At that hearing, it
unanimously adopted Resolution Nos. 1825 and 1826 in which it
found that the aforementioned easements dedicated for a
firetruck turnaround were consistent with the City’s “General
Plan.”6 The City Council held a second hearing on November 7,
2017, at which it adopted Resolution No. 17-R-13165 approving
agreements between the City and Real Party containing the
easement dedications for public safety purposes along Loma
Linda Drive adjacent to the 1184 Property and 1193 Property.
Mayor Lili Bosse began the hearing by emphasizing that
“[p]ermits for the two [Residences] are contingent upon the City
Council’s acceptance of the offers of dedication [of the fire-safety
enhancing easements] and approval of a vacation of a storm drain
easement.” She stressed the current cul-de-sac on Loma Linda
Drive “make[s] it difficult for emergency vehicles to access the
area.”
Fire Marshall Scott Stevens testified that the “existing
turnaround [on Loma Linda Drive] is inadequate,” and
6 See NJD, Ltd. v. City of San Dimas (2003) 110
Cal.App.4th 1428, 1444-1446 [discussing a city’s “general plan”
and a city’s “specific plan”].
8
“compromises response times.” The proposed dedication of
easements would ameliorate this hazard by transforming the
surface of the road from asphalt to concrete, installing a fire
hydrant, and widening Loma Linda Drive itself so that
emergency vehicles could more safely navigate this street. Fire
Marshall Stevens further explained that from the Fire
Department’s perspective, approving the Project was the “best
option” to improve fire-safety hazards on Loma Linda Drive
because the needed improvements are “outside of the public
right-of-way and, therefore, require[ ] easements on private
property.”
City Planner Ryan Gohlich advised the City Council on
CEQA compliance. He stated that for CEQA purposes, the
Project consisted not only of the proposed easements, but also the
proposed two Residences. He also advised that the City did not
need to order preparation of an EIR or negative declaration
because two exemptions applied to the Project: Class 2 and
Class 3. Regarding the Class 3 exemption, he stated: “Those two
houses are within the three-house limit for a Class 3 categorical
exemption and that Class 3 exemption does also contemplate
street improvements and utilities that are associated with the
development of those homes.” As to Class 2 exemption status,
Gohlich observed although the proposed homes “are [of a]
different scale,” “each one is still by in [sic] use of a [sic] single-
family home.” Apparently, Gohlich was comparing the proposed
construction to the buildings that had existed on the Properties
before Real Party first sought to develop the properties in 2013.
The buildings no longer were on the property as of 2016.
The City Council found the Project qualified for the Class 3
exemption because it contemplated construction of two single-
9
family homes and the Guidelines describing the Class 3
exemption provide that construction of up to three single-family
residences is exempt from CEQA review. (See Guidelines,
§ 15303, subds. (a) and (d).) The City Council found the Project
qualified for the Class 2 exemption because it contemplated
construction of “two single family homes on two separate lots that
previously had single family residences developed on them, thus
replacing existing single family homes.”
D. Opposition to the Project at the November 7, 2017
City Council Hearing
At the November 7, 2017 hearing, the City Council also
heard public comment and received evidence in opposition to the
Project.
Several neighbors testified against the Project. One
claimed the Project would “create [a] three-story birthday cake
structure[ ] that will loom over homes in the Coldwater Canyon
Park below invading their privacy and sightlines.” Another
stated it was “the will of the community to deny the monstrous
proposed development . . . [g]iven its potential destruction of our
neighborhood character.” A third stressed the Project “will
impact the view of many homes on surrounding canyon slopes.”
A fourth neighbor stated that “there are regularly deers [sic] in
my yard and a turtle recently showed up to live in my pond.”
Citizens’s counsel also testified in opposition to the Project.
First, he argued that the Class 2 exemption did not apply to the
Project because there were no existing structures on the
Properties, and even if one compared the Project to the structures
that existed on the Properties in 2013, the proposed Residences
would not have the requisite same purpose and capacity as those
they would be replacing. (See Guidelines, § 15303.) To support
10
an exception to the Class 3 exemption, counsel focused on the
relationship of the Properties to nearby wildlife.
The City also received two written statements in opposition
to the Project. One was from Citizens’s counsel. This letter
stated that the 2013 MND described the Properties as being
“adjacent” to Franklin Canyon Park. Next, this letter
represented the Project was located “within Habitat Block 74 by
the Santa Monica Mountains Conservancy.” (Italics added.)
Citizens represented, without evidentiary foundation, that many
rare animals “have been seen by residents in the area at one time
or another.” Attached to the letter was a photo of a bobcat
apparently seen in a neighbor’s backyard that counsel
interpreted as moving toward the Properties in an effort “to
access open space.” Citizens’s letter also stated: “The project site
is also located in [a] Very High Fire Severity Zone which is an
officially adopted hazard designation.”
The other letter was from the Mountains Recreation and
Conservancy Authority (MRCA). The MRCA asserted that the
same environmental concerns the City noted in its 2013 MND
regarding the 2013 Project are true as to the current proposed
Project, that is the Properties are located “fewer than 150 feet”
from Franklin Canyon Park, an area designated by the MRCA as
an environmentally sensitive area. It also stressed that the
Properties “sit on a visually prominent ridgeline between lower
Franklin Canyon and lower Coldwater Canyon,” and that
“[w]ildlife movement between these two canyon habitats has
become increasingly restricted due to development.”
11
E. City Rejects Opposition to the Project and Files
Notice of Exemption from CEQA
On November 14, 2017, the City posted a notice of
exemption stating that the Project was categorically exempt from
further review under CEQA. The notice of exemption states:
“The Project involves dedications of [emergency] vehicle access
easements in conjunction with proposed construction of two
houses on previously developed lots at 1184 and 1193 Loma
Linda Drive in Beverly Hills. The dedications and related street
improvements would result in improved turnaround at the
terminus of Loma Linda Drive for improved emergency vehicle
access which benefits the public.”
The City rejected Citizens’s arguments that the presence of
“unusual circumstances” involving the Project and its proximity
to Franklin Canyon Park were circumstances that justified an
exception to the Class 3 exemption. Specifically, Gohlich testified
that there were no “unusual circumstance[s] regarding biological
resources that would apply here, especially because these
properties were previously developed. They are disturbed. They
don’t contain really any viable habitat that would constitute a
substantial evidence that there would be an impact.”7 Gohlich
emphasized: “This is an urbanized area. Yes, it’s in the hills but
it’s urbanized.”
7 Indeed, Gohlich observed that Real Party had completely
reconfigured its plans to develop the Properties in part to avoid
an obstacle it faced with the now-abandoned 2013 Project. The
obstacle was a tree that was a supposed habitat for birds and
other wildlife, and the current Project no longer proposed to
remove it.
12
The City also found that the Project complied with its
general plan. Subsequent to the October 12, 2017 hearing, the
City planning commission authored a report that concluded the
Project satisfied 12 general plan requirements regarding hillside
development (“[m]aintain the natural landforms that define the
City”), architectural and site design (“new construction [must]
exhibit a high level of excellence”), public and fire safety, traffic,
and storm drainage.
As to the location exception challenge, Gohlich observed
“this particular property is not within the habitat block.” He
continued, “it’s also not directly adjacent. There are—there’s at
least one property that separates the subject property from
Franklin Canyon and the habitat block that is there.”
Responding to Citizens’s claim that the MRCA letter shows the
Properties are within a protected habitat block, Gohlich testified:
“It’s also been noted in the correspondence [from the MRCA] that
there are habitat linkages or trails that are used that go across
the [Properties] on Loma Linda Drive. When in fact you look at
the habitat linkage map that has been provided by the Santa
Monica Conservancy there are no linkage trails that go through
these properties. There are some identified that are in Trousdale
Estates and then further north of Beverly Hills, but there is
nothing that goes specifically through these properties.” (Italics
added.)
Regarding fire risk in the area, the City concluded the
proposed easements and street improvements “will result in
substantial life safety improvements . . . by making it easier for
large fire trucks to safely turn around at the terminus of Loma
Linda Drive without having to travel in reverse down the street
to Coldwater Canyon, and to allow multiple vehicles, such as a
13
fire truck and ambulance, to pass each other in emergency
situations.”
The City also rejected Citizens’s challenge to the Class 2
exemption, finding that the Project involved “construction of two
single family homes on two separate lots that previously had
single family residences developed on them, thus replacing
existing single family homes.”
F. Trial Court Proceedings
Citizens filed a writ of mandate in the trial court
challenging the City’s decision not to proceed further in its
environmental review. On March 8, 2019, the court held a trial
on Citizens’s verified petition for writ of mandate and issued a
statement of decision and denied the petition.
The trial court ruled that the City had properly found the
Project was exempt under Class 2. Although agreeing with
Citizens that the new structures would be “larger because they
include, unlike those previously on the lots, two-levels as well as
a basement,” the court observed this distinction is not relevant
because “there is no evidence that the structure does not serve
the same purpose and capacity” as the structures they were
replacing.
The trial court also rejected Citizens’s arguments that,
because of the Project’s proximity to a habitat zone designated by
the MRCA, it qualified for an exception to the Class 3 exemption.
The trial court rejected Citizens’s attempts to equate proximity to
a protected habitat zone with presence within a protected habitat
zone. The court observed: “There is no substantial admissible
evidence, however, that the Project located on a ridge above the
[p]ark ‘may impact’ this environmental resource. [Citizens] relies
on the representations of its own lawyers that wildlife ‘have been
14
seen by residents in the area at one time or another.’ . . . The
court regards this contention in an attorney’s letter as argument
offered without evidentiary foundation and, therefore, to lack
probative value. [Citizens] offers nothing else.”
The trial court’s statement of decision also indicates that
Citizens moved for judicial notice of 10 documents not presented
to the City during its review, as well as a supplemental request
for judicial notice of an 11th document. These documents
included city ordinances, resolutions, and staff reports. Real
Party objected, citing the rule that “a mandate petition [only]
reviews documents submitted to the public agency.” The trial
court declined to judicially notice all but a “Planning Commission
Report,” dated December 11, 2014. The trial court reasoned that
the correct procedure would have been for Citizens to move to
augment the administrative record before the trial court.
Citizens never did so. The court concluded it would not “take
judicial notice of documents that were not before the decision-
making body at the time it took the action that is challenged.”
Citizens does not challenge this ruling on appeal.8
Citizens timely appealed from the trial court’s denial of its
writ of mandate.
8 In its opening brief on appeal, Citizens still cites to
documents the trial court declined to judicially notice. Citizens
never filed a motion to augment the record. Real Party, however,
did, on appeal only. We improvidently granted that motion and
hereby deny it.
15
DISCUSSION
A. Applicable Law and Standard of Review
In reviewing the City’s actions “for compliance with CEQA,
we ask whether the agency has prejudicially abused its
discretion; such an abuse 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.’ (. . .
§ 21168.5.) In determining whether there has been an abuse of
discretion, we review the agency’s action, not the trial court’s
decision. ‘[I]n that sense appellate judicial review [of the trial
court’s decision] under CEQA is de novo.’ [Citation.]” (Center for
Biological Diversity v. Department of Fish & Wildlife (2015) 62
Cal.4th 204, 215, fn. omitted.)
Before discussing whether the City erred in finding that
the Project qualified for a Class 3 exemption, we set forth CEQA’s
regulatory architecture to provide context for our review.
1. CEQA Review Only Applies to “Projects”
The first decision in reviewing a proposed activity for
CEQA compliance is to determine whether that activity qualifies
as a “project.” CEQA only applies to “discretionary projects
proposed to be carried out or approved by public agencies.”
(§ 21080, subd. (a); Union of Medical Marijuana Patients, Inc. v.
City of San Diego (2019) 7 Cal.5th 1171, 1190 (Union of Medical
Marijuana Patients).)
The scope of a “project” is defined as “the whole of an
action, which has a potential for resulting in either a direct
physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment . . . .” (Guidelines,
§ 15378, subd. (a); Union of Medical Marijuana Patients, supra, 7
Cal.5th at p. 1192.) Citizens does not appear to dispute that
16
building two Residences on the Properties would be a project
subject to CEQA.
2. Exemptions from CEQA Review
If a proposed activity is a “project,” “the agency must decide
whether the activity qualifies for one of the many exemptions
that excuse otherwise covered activities from CEQA’s
environmental review.” (Union of Medical Marijuana Patients,
supra, 7 Cal.5th at p. 1185.) The Secretary of the Natural
Resources Agency (Secretary) has established “a list of classes of
projects that have been determined not to have a significant
effect on the environment and that shall be exempt from” CEQA.
(§ 21084, subd. (a).) The Secretary “has found” that certain
“classes of projects . . . do not have a significant effect on the
environment” and, in administrative regulations known as
guidelines, has listed those classes and “declared [them] to be
categorically exempt from the requirement for the preparation of
environmental documents.” (Guidelines, § 15300.) These
exemptions are known as “categorical exemptions.” Although
there are other kinds of exemptions, the case before us involves
only categorical exemptions.
The Class 3 exemption, entitled “New Construction or
Conversion of Small Structures,” “consists of construction and
location of limited numbers of new, small facilities or structures.”
(Guidelines, § 15303.) Among the nonexclusive list identified by
the Secretary as qualifying under this exemption are projects
consisting of: “One single-family residence, or a second dwelling
unit in a residential zone [or] [i]n urbanized areas, up to three
single-family residences . . . .” (Guidelines, § 15303, subd. (a).)
17
3. Exceptions to Categorical Exemptions
Categorical exemptions are subject to exceptions. If an
exception applies, the exemption is lost. The relevant exceptions
here are: (i) if there is a reasonable possibility of a significant
effect on the environment due to “unusual circumstances”
(Guidelines, § 15300.2, subd. (c) [the unusual circumstances
exception]); and (ii) with respect to five specific categories of
projects, if the project will have impacts on a uniquely sensitive
or hazardous environment (Guidelines, § 15300.2, subd. (a) [the
location exception]). Class 3 exempt projects constitute one of the
five categories listed in Guidelines, section 15300.2, subdivision
(a), subject to the location exception.
a. The Unusual Circumstances Exception
The Guidelines describe the unusual circumstances
exception somewhat opaquely: “A categorical exemption shall not
be used for an activity where there is a reasonable possibility
that the activity will have a significant effect on the environment
due to unusual circumstances.” (Guidelines, § 15300.2, subd. (c).)
Although “[t]he Guidelines do not define ‘unusual circumstances’
(Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 820),
our high court has clarified that this exception may be
established “by showing that the project has some feature that
distinguishes it from others in the exempt class, such as its size
or location.” (Berkeley Hillside, supra, 60 Cal.4th at p. 1105.)
b. The Location Exception
The Guidelines state that the location exception applies
“where the project may impact on an environmental resource of
hazardous or critical concern where designated, precisely
mapped, and officially adopted pursuant to law by federal, state,
or local agencies.” (Guidelines, § 15300.2, subd. (a), italics
18
added.) The location exception thus applies to projects that may
impact on environmental “resources” that are either of
“hazardous” or “critical concern.”
The Guidelines explain that this exception only applies if
the environmental resource has been “designated, precisely
mapped, and officially adopted pursuant to law by federal, state,
or local agencies.” (Guidelines, § 15300.2, subd. (a).) If a
putative environmental resource has not been “designated” and
“precisely mapped” by a public agency, a location exception
challenge premised upon impacts on such a putative resource will
fail. (See Don’t Cell Our Parks v. City of San Diego (2017) 21
Cal.App.5th 338, 363 [rejecting argument that “location
exception” applied by virtue of project site’s location within a
dedicated park, because that location was not “designated” by
any federal, state, or local agency as an “ ‘environmental resource
of hazardous or critical concern’ ”].)
B. The City Did Not Err in Describing the Project
Citizens claims the City did not proceed in the manner
required by CEQA and the Guidelines. Specifically, it asserts the
City relied upon findings and conclusions based upon “an
incorrect description of the project based on faulty legal advice.”
Citizens claims the City purposefully misdescribed the Project so
that it did not have to consider the environmental impact of the
Residences.
Citizens contends the City defined the Project solely as “the
acceptance of irrevocable offers of dedication of easements for
emergency vehicle access and street improvements located at
1184 and 1193 Loma Linda Drive.” Citizens claims the failure of
the City to indicate the Residences themselves were also part of
the Project violates the rule that CEQA review “ ‘ “cannot be
19
avoided by chopping up proposed projects into bite-size pieces”
which, when taken individually, may have no significant adverse
effect on the environment’ ” or would require only ministerial
determinations. (Tuolumne County Citizens for Responsible
Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214,
1223.)
This argument ignores other evidence in the record
militating against its argument. The notice of exemption itself
indicates “dedications are being made in conjunction with
ministerial building permits for construction of two single family
homes on two separate lots.” (Italics added.) Mayor Bosse,
moreover, began the November 7, 2017 hearing by stating that
the “[p]ermits for the two [Residences] are contingent upon the
City Council’s acceptance of the offers of dedication [of the fire-
safety enhancing easements] and approval of a vacation storm
drain easement.” (Italics added.)
C. Substantial Evidence Supports the City’s
Determination that the Project is Exempt from
Further CEQA Review as a Class 3 Exempt Project
The City’s notice of exemption states: “Class 3 exemption
[applies] because the exemption allows for construction of up to 3
single family homes (the project would enable construction of 2
homes), with street improvements.” Citizens focuses its
argument on the City’s rejection of its contentions that the
“unusual circumstances” and “location” exceptions deprive the
Project of Class 3 exempt status.
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1. Standard of Review of Agency Determinations that
the Unusual Circumstances and Location Exceptions
Do Not Apply
Before turning to the merits of Citizens’s arguments, we
address the applicable standard of review. Citizens argues we
should not review the City’s rejection of the unusual
circumstances and location exceptions to the Class 3 exemption
for substantial evidence, but instead, for whether substantial
evidence supports a “fair argument” that the Project may have a
significant effect on the environment due to the unusual
circumstances of the Project, or due to its location.
“ ‘The “fair argument” test is derived from . . . section
21151, which requires [preparation] of an EIR on any project
[that] “may have a significant effect on the environment.” ’ ”
(Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, 884.)
An EIR must be prepared “ ‘ “whenever it can be fairly argued on
the basis of substantial evidence that the project may have
significant environmental impact.” [Citation.]’ ” (Ibid.)
In Berkeley Hillside, our high court held that a party
seeking to establish the unusual circumstances exception has the
burden to show two elements. These elements are (1) “that the
project has some feature that distinguishes it from others in the
exempt class, such as its size or location,” and (2) that there is “a
reasonable possibility of a significant effect [on the environment]
due to that unusual circumstance.” (Berkeley Hillside, supra, 60
Cal.4th at p. 1105.) “This bifurcated approach . . . require[s]
findings of both unusual circumstances and a potentially
significant effect.” (Id. at p. 1115.) The former is a purely factual
determination; the latter is a question of causation. An agency
need only address the second element if it first finds that some
21
circumstance of the project is indeed unusual. (See Respect Life
South San Francisco v. City of South San Francisco (2017) 15
Cal.App.5th 449, 458 [“This [second step] presupposes the
existence of unusual circumstances”] (Respect Life).)
We review an agency’s finding on the first element for
substantial evidence. (Berkeley Hillside, supra, 60 Cal.4th at
p. 1114.) If an agency moves to the second step, i.e., the agency
has concluded that “a particular project presents circumstances
that are unusual for projects in an exempt class,” then “the fair
argument standard” applies. (Ibid.) Under that standard, “ ‘the
reviewing court’s function “is to determine whether substantial
evidence support[s] the agency’s conclusion as to whether” ’ there
is a fair argument of a reasonable possibility that the activity will
have a significant effect on the environment.” (Respect Life,
supra, 15 Cal.App.5th at p. 457, quoting Berkeley Hillside, supra,
at p. 1115.) If there is substantial evidence supporting a fair
argument of a reasonable possibility of significant environmental
effects, “then the [agency’s] determination that no fair argument
can be made constitutes an abuse of discretion and cannot be
upheld.” (Respect Life, supra, at p. 457.)
Citizens’s argument that we should apply the fair
argument standard of review fails because the City explicitly
found there were no unusual circumstances involving the Project,
and as discussed below, that finding is supported by substantial
evidence.9 Thus, we do not reach the second step of the Berkeley
Hillside analysis.
9 We would have had to proceed to the second level of
Berkeley Hillside review if the City had not expressly found that
the Project was exempt. (Respect Life, supra, 15 Cal.App.5th at
22
Citizens’s argument that we should review the City’s
finding that the location exception does not apply to the Project
under the fair argument standard of review fails for the same
reason. Following Berkeley Hillside, courts have concluded that
“the same bifurcated standard of review is applicable to the
location exception.” (Berkeley Hills Watershed Coalition v. City of
Berkeley (2019) 31 Cal.App.5th 880, 890 (Watershed Coalition).)
“As with the unusual circumstances exception, the determination
whether a project is located in ‘a particularly sensitive
environment’ (Guidelines, § 15300.2, subd. (a)) is essentially a
factual inquiry, subject to the substantial evidence standard of
review.” (Ibid.) Thus, if an agency rejects a location exception
challenge to a project by finding in the first instance that the
project is not located within a particularly sensitive environment,
we review that determination solely for substantial evidence.
As detailed below, the City reviewed the areas surrounding
the Project and found that the location exception did not apply
because the Project was not located within “a designated,
p. 458 [“[A] court cannot affirm an entity’s implied determination
that the unusual-circumstances exception is inapplicable by
simply concluding that the record contains substantial evidence
that the project involves no unusual circumstances. Instead, to
affirm such an implied determination, the court must assume
that the entity found that the project involved unusual
circumstances and then conclude that the record contains no
substantial evidence to support either (1) a finding that any
unusual circumstances exist (for purposes of the first element) or
(2) a fair argument of a reasonable possibility that any purported
unusual circumstances identified by the petitioner will have a
significant effect on the environment (for purposes of the second
element.”].)
23
precisely mapped” environmental resource. As also detailed
below, because substantial evidence supports that factual
finding—the first level of Berkeley Hillside review—we do not
progress to the “fair argument” standard of review—the second
level of review under Berkeley Hillside.
Citizens also argued that the Project impacts on a sensitive
environment because it is located in a fire risk zone. As we
explain below, merely being located in a fire zone is not sufficient
to invoke the location exception and Citizens proffered no other
evidence to support that exception.
2. Substantial Evidence Supports the City’s Express
Finding There Were No Unusual Circumstances
Involving the Project
It was Citizen’s burden in the administrative proceedings
below “ ‘to show that the project is not exempt because it falls
within one of the exceptions.’ ” (Save the Plastic Bag Coalition v.
County of Marin (2013) 218 Cal.App.4th 209, 220, citing
Guidelines, § 15300.2; Berkeley Hillside, supra, 60 Cal.4th at
p. 1105.)
Citizens first asserts that “the undeniable evidence that
wildlife is using the property on which the Project is located” is
an unusual circumstance that should negate application of the
Class 3 exemption. The City rejected this assertion. As
summarized above, Gohlich concluded there are no “unusual
circumstance[s] regarding biological resources,” in part because
the Properties “don’t contain really any viable habitat.” On
substantial evidence review, we “resolv[e] all evidentiary conflicts
in the agency’s favor and indulg[e] . . . all legitimate and
reasonable inferences to uphold the agency’s finding.” (Berkeley
24
Hillside, supra, 60 Cal.4th at p. 1114.) The City’s conclusion is
supported by Gohlich’s testimony.
Second, Citizens contention that “new fencing” could
“sever[ ]” the nearby “habitat linkage system” similarly fails. As
discussed above, Gohlich reviewed the MRCA map identifying
nearby linkage trails, and observed that this map shows that the
trails do not traverse the Properties. Citizens thus failed to
produce evidence that linkage trails would be “severed” by the
Project and the City’s finding that the Project does not present
unusual circumstances was supported by substantial evidence.
Third, Citizens cites to the 2013 MND in which the City’s
initial study concluded, “Natural slopes are historically unstable
and graded and trimmed slopes onsite could be unstable.”
Without any legal citation and relying only on its own contention
in its appellate briefing, Citizens concludes that “[u]nstable
natural slopes are not the usual circumstances in which
construction of up to three single-family residences occur.”
This contention fails to appreciate that since 2013, the
Properties have been subject to grading and slope stabilization.
Indeed, the administrative record contains a “Grading Permit,”
wherein the “Job Description” indicates “Grading and dranage
[sic] for hillside repair of failed slope.” Because Citizens’s
argument is premised upon conditions present in 2013, but
thereafter remediated to the evident satisfaction of City officials,
it fails. (See Communities for a Better Environment v. South
Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 321
[CEQA review must focus on “the actual environmental
conditions existing at the time of CEQA analysis” (italics added)].)
Fourth, Citizens again relies on the 2013 MND: the project
site has “unusual geology.” This argument ignores that the City
25
required Real Party to prepare a geotechnical study for its review
as a condition for its issuance of the necessary building permits,
and that the ensuing 27-page report addressed the City’s
concerns. Specifically, the report “recommended that the
downhill side of the development envelope be supported with
soldier piles.” The report concluded: “It is the finding of Irvine
Geotechnical that construction of the proposed project is feasible
from a geologic and soils engineering standpoint . . . .” This
finding is also substantial evidence supporting the absence of
unusual circumstances.10
3. Substantial Evidence Supports the City’s Finding that
the Location Exception Does Not Apply
The Class 3 exemption does not apply where a “project that
is ordinarily insignificant in its impact on the environment may
in a particularly sensitive environment be significant.”
(Guidelines, § 15300.2, subd. (a).) An environmental resource
may be “particularly sensitive” in one of two ways: it may be of
“critical concern,” or it may be “hazardous.” Citizens argues the
location exception applies to the Project in both these ways.
a. Substantial Evidence Supports the City’s
Conclusion the Project Would Not Impact an
Environmental Resource of Critical Concern
10 Citizens does not argue that the Project presents
“unusual circumstances” because the proposed Residences are
abnormally large. Rather, Citizens emphasized the size of the
proposed Residences only in connection with its argument that
the City erroneously exempted the Project under Class 2. We do
not address this argument because, as noted in our Introduction,
it is not necessary given our ruling that the City did not err in
finding the Project exempt under Class 3.
26
According to Citizens, the Project’s “immediate proximity to
the Franklin Canyon Park and Habitat Block No. 74” is an
environmental resource of critical concern that triggers the
location exception. Citizens also argues that the Project affects a
purported wildlife corridor.
Contrary to Citizens’s argument, a project’s mere proximity
to an officially mapped environmentally sensitive resource does
not preclude the application of a Class 3 exemption under the
location exception. Citizens relies on Salmon Protection &
Watershed Network v. County of Marin (2004) 125 Cal.App.4th
1098 to argue that a project located adjacent to, but outside the
scope of a protected environmental resource area may
nevertheless have an impact on that area.
In Salmon Protection, the court held that adoption of a
categorical exemption in connection with approval of construction
of a single family home was improper where the property (1) was
located within a designated stream conservation area, (2) was
immediately abutting a protected anadromous fish stream, and
(3) where the house would be within 40 feet of the creek bank,
and parking for the house would be just 20 feet from the creek
bank. (Salmon Protection & Watershed Network v. County of
Marin, supra, 125 Cal.App.4th at p. 1103.)
Here, Citizens is correct that Franklin Canyon Park is
indeed a “location” “designated” as an “environmental resource of
hazardous or critical concern” by any federal, state or local
agency. (Guidelines, § 15300.2, subd. (a).) Unlike in Salmon
Protection, the Properties are not located in that designated
environmental resource. Instead, they are outside Franklin
Canyon Park and are separated from the park by at least one
other residential property.
27
Citizens also fails to demonstrate that the Project would
impact the nearby Franklin Canyon habitat block, particularly
wildlife in the surrounding area.
City Planner Gohlich rejected the claim of Citizens’s
attorney that the MRCA map showed habitat linkage trails
traversed the property: “When in fact you look at the habitat
linkage map that has been provided by the Santa Monica
Conservancy there are no linkage trails that go through these
properties.”
Citizens relies on its attorney’s letter submitted to the City
Council during its hearings on the Project. The only “evidence” to
which this letter refers is the photograph of the bobcat on a
neighbor’s property, which counsel interprets as the bobcat’s
entering the Properties to access open land, and an argument
that “portions of the property provide a pathway for animals”
because they “have been seen by residents in the area at one time
or another.” This letter fails to demonstrate counsel’s personal
knowledge and is mere speculation that the Project will impact
either Habitat Block No. 74 or any other “designated, precisely
mapped, and officially adopted” wildlife corridor. (Guidelines,
§ 15300.2, subd. (a).)
MRCA’s letter does not assist Citizens either. MRCA
stated that “[w]ildlife movement between [lower Franklin Canyon
and lower Coldwater Canyon] habitats has become increasingly
restricted due to development.” Nowhere does the letter describe
where, when, or how such other development has restricted
28
movement of any identified wildlife, or how this Project in
particular will restrict any such movement.11
Citizens also cites testimony by a neighboring property
owner at the City Council meeting in which she stated that the
Project’s retaining walls would “encroach on the wildlife corridor
that runs directly alongside.” Anecdotes are not data, and this
conclusory testimony by a neighboring property owner and
hearsay by unidentified “residents in the area” are not
“substantial evidence” supporting the existence of a “precisely
mapped” environmental resource under the Public Resources
Code which disqualifies “unsubstantiated opinion or narrative.”
(§ 21080, subd. (e).)
In sum, substantial evidence supports the City’s finding
that the Project is not located within an area of critical concern as
precisely mapped and so designed by a public agency. Citizens
thus fails to carry its burden on appeal to show the City erred in
rejecting the location exception based on the presence of a critical
concern.
b. There is No Evidence the Project Will Impact
an Environmental Resource of Hazardous
Concern
Citizens observes that the Properties are located in a high
fire hazard severity zone. Citizens’s argument seems to be that
the mere fact of the Project’s presence within “a fire-prone hillside
area of the City” “renders it ineligible for a Class 3 exemption.”
11Citizens attempts to bolster its argument by citing to
other MRCA documents that the trial court declined to judicially
notice. We do not respond to arguments based on these
documents for the reasons stated in section F of our Factual
Background and Procedural History.
29
Citizens cites to a map that the City prepared indicating that the
property lies within a “Fire Hazard Severity Zone.”
Citizens is correct that the Project is situated within an
officially mapped fire risk zone. But Citizens is incorrect that
location in a fire risk zone automatically qualifies as impacting
an “environmental resource of hazardous or critical concern.”
(Guidelines, § 15300.2, subd. (a), italics added.)
In Watershed Coalition, the First District recently rejected
a “location exception” argument predicated on a project’s location
in earthquake and landslide zones. (Watershed Coalition, supra,
31 Cal.App.5th at p. 880.) The court started with an analysis of
section 15300.2, subdivision (a), of the Guidelines in which the
location exception appears. “Generally, we apply the same rules
governing interpretation of statutes to the interpretation of
administrative regulations.” (Id. at p. 890, citing Berkeley
Hillside, supra, 60 Cal.4th at p. 1097.) “The plain meaning of
‘environmental resource’ in the location exception does not
encompass possible earthquake or landslide zones,” because “[a]
‘resource’ is a ‘natural source of wealth or revenue,’ or a ‘natural
feature or phenomenon that enhances the quality of human life.’
(Merriam-Webster’s Collegiate Dict. (11th ed. 2014) p. 1061.)
Earthquakes and landslides are geologic events—and while they
are indeed hazardous, they are not ‘resources.’ ” (Watershed
Coalition, supra, at p. 891, italics omitted.)
Because fire zones are not “resources” any more than
earthquake and landslide zones are “resources,” Citizens fails to
establish an environmental resource of hazardous concern that
30
would support a location exception.12 We conclude that the City
did not err in rejecting the applicability of the location exception.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
SINANIAN, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
12 Citizens makes no argument other than the Project’s
presence in a fire zone to support its assertion that the Project
may impact on an environmental resource of “hazardous”
concern.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
31