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This case was last updated from Los Angeles County Superior Courts on 06/05/2019 at 04:04:18 (UTC).

PASADENA CIVIC CENTER COALITION VS CITY OF PASADENA

Case Summary

On 09/15/2016 PASADENA CIVIC CENTER COALITION filed an Other - Writ Of Mandamus lawsuit against CITY OF PASADENA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RUPERT A. BYRDSONG and JOHN A. TORRIBIO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4664

  • Filing Date:

    09/15/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RUPERT A. BYRDSONG

JOHN A. TORRIBIO

 

Party Details

Plaintiff and Petitioner

PASADENA CIVIC CENTER COALITION

Defendant and Respondent

PASADENA CITY OF D

Interested Parties

KIMPTON HOTEL AND RESTAURANT GROUP LLC

KHP CAPITAL PARTNERS L.P.

DOES 1 TO 10

KHP FUND III L.P.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CHATTEN-BROWN & CARSTENS LLP

CHATTEN-BROWN CARSTENS & MINTEER LLP

Defendant Attorney

RICHARDS WATSON & GERSHON

 

Court Documents

NOTICE RE: CONTINUANCE OF HEARING

4/11/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

4/11/2018: NOTICE RE: CONTINUANCE OF HEARING

Minute Order

5/8/2018: Minute Order

Minute Order

7/9/2018: Minute Order

STIPULATION TO CONTINUE STAY OF LITIGATION AND CONTINUE STATUS CONFERENCE

9/6/2018: STIPULATION TO CONTINUE STAY OF LITIGATION AND CONTINUE STATUS CONFERENCE

Minute Order

9/6/2018: Minute Order

Notice of Case Reassignment and Order for Plaintiff to Give Notice

2/7/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Unknown

2/8/2019: Unknown

PETITION FOR WRIT OF MANDATE

9/15/2016: PETITION FOR WRIT OF MANDATE

NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD

9/15/2016: NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD

PROOF OF SERVICE SUMMONS

9/20/2016: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE OF SUMMONS

9/28/2016: PROOF OF SERVICE OF SUMMONS

NOTICE OF CEQA SETTLEMENT MEETING

10/11/2016: NOTICE OF CEQA SETTLEMENT MEETING

NOTICE OF CASE ASSIGNMENT

10/17/2016: NOTICE OF CASE ASSIGNMENT

AMENDED PETITION FOR WRIT OF MANDATE

11/21/2016: AMENDED PETITION FOR WRIT OF MANDATE

PROOF OF SERVICE

11/23/2016: PROOF OF SERVICE

Minute Order

1/19/2017: Minute Order

NOTICE OF STAY OF LITIGATION, STATUS CONFERENCE AND DISMISSAL OF REAL PARTIES IN INTEREST

12/5/2017: NOTICE OF STAY OF LITIGATION, STATUS CONFERENCE AND DISMISSAL OF REAL PARTIES IN INTEREST

35 More Documents Available

 

Docket Entries

  • 04/29/2019
  • Notice (of Court Order, Case Reassignment and Trial Setting Conference); Filed by Pasadena Civic Center Coalition (Plaintiff)

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  • 04/24/2019
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 04/22/2019
  • at 09:00 AM in Department G, John A. Torribio, Presiding; Court Order

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  • 04/22/2019
  • Minute Order ( (Court Order)); Filed by Clerk

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  • 04/22/2019
  • Notice of Case Reassignment/Vacate Hearings; Filed by Clerk

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  • 04/22/2019
  • Certificate of Mailing for (Minute Order (Court Order) of 04/22/2019); Filed by Clerk

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  • 03/05/2019
  • at 09:30 AM in Department G, John A. Torribio, Presiding; Status Conference - Not Held - Vacated by Court

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  • 02/26/2019
  • at 08:30 AM in Department G, John A. Torribio, Presiding; Status Conference

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  • 02/15/2019
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Pasadena Civic Center Coalition (Plaintiff)

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  • 02/15/2019
  • Notice (Peremptory Challenge to Judicial Officer (Code Civ. Proc., Section 170.6)); Filed by Pasadena Civic Center Coalition (Plaintiff)

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74 More Docket Entries
  • 10/07/2016
  • at 09:00 AM in Department 1; Unknown Event Type - Held

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  • 10/07/2016
  • Minute Order

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  • 10/07/2016
  • Minute order entered: 2016-10-07 00:00:00; Filed by Clerk

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  • 09/28/2016
  • PROOF OF SERVICE OF SUMMONS

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  • 09/28/2016
  • PROOF OF SERVICE OF SUMMONS

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  • 09/28/2016
  • PROOF OF SERVICE OF SUMMONS

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  • 09/20/2016
  • PROOF OF SERVICE SUMMONS

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  • 09/15/2016
  • NOTICE OF ELECTION TO PREPARE ADMINISTRATIVE RECORD

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  • 09/15/2016
  • Petition; Filed by null

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  • 09/15/2016
  • PETITION FOR WRIT OF MANDATE

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Tentative Rulings

Case Number: BS164664    Hearing Date: December 11, 2020    Dept: 86

PASADENA CIVIC CENTER COALITION v. CITY OF PASADENA

Case Number: BS164664

Hearing Dates: October 30 and December 11, 2020

[Tentative] ORDER DENYING PETITIONER’S MOTION TO AUGMENT THE RECORD

[Tentative] ORDER DENYING PETITIONER’S WRIT OF MANDATE


Petitioner, Pasadena Civic Center Coalition (Petitioner) brought this action seeking to set aside approvals by Respondent, the City of Pasadena, (the City) for a hotel development project. Petitioner contends the City’s approval violated the California Environmental Quality Act (CEQA)(Pub. Resource Code[1] § 21000 et seq.), the Surplus Land Act (Gov. Code § 54220 et seq.) and the Pasadena Municipal Code.

Petitioner also moves the court to augment the administrative record.

Petitioner’s motion to augment the record is denied.

The court previously heard argument on Petitioner’s CEQA claims and issued a tentative decision in advance of the hearing denying the claims (first cause of action).

The remaining claims set forth in the petition are also denied.

  1. MOTION TO AUGMENT THE RECORD

The court previously denied Petitioner’s motion.

  1. WRIT OF MANDATE

STATEMENT OF THE CASE[2]

The Project:

The project would rehabilitate and reuse the 1923 Julia Morgan designed YWCA building (the Building),[3] located at 78 N. Marengo Avenue in Pasadena, as a hotel and also construct a three-to-six-story new hotel building adjacent to the Building (the Project). (AR 5:1772, 3:1636.) The Project would result in a hotel with 179 guestrooms, meeting facilities, ballroom space, hospitality parlors and a restaurant. (3:1636; 5:2654.)

The Project is located within the National Register-listed Pasadena Civic Center Historic District (Historic District). The Project site is also located within the Civic Center/Midtown Sub-District of the City’s Central District Specific Plan (CDS-Plan). (AR 5:1742.) The Project is comprised of three separate parcels and spans the entire block bounded by Marengo Avenue to the west, Holly Street to the north, Garfield Avenue to the east, and Union Street to the south (Project Site). (AR 5:1742, 5:1748.) All three parcels are owned by the City. (AR 5:1772–1773.) Parcel 1 is the southwest part of the Project Site and contains the Building; Parcel 2 consists of a surface parking lot east of the Building; and Parcel 3 is an L-shaped parcel located to the north east of the Building and parking lot with landscaping and public art. (AR 5:1742.) The Project’s new hotel building would be constructed on a portion of the landscaped area in Parcel 3 that fronts Garfield Avenue. (AR 5:1747.)

Approval of the Project:

In July 2012, the City issued a request for proposal (RFP) for the rehabilitation of the Building as well as the possible development of a portion of Parcel 3. (AR 5:1743, 37:3865.) In the RFP, the City stated its objectives included preservation of the historic asset on the Property for the purpose of rehabilitation and respect for the architectural and spatial context of the site as well as surrounding historic district. (AR 84:4712-4713.)

In July 2012, City staff held two public open house meetings on the RFP. (AR 84:4712-13.) The City received six responses to its RFP. (AR 84:4713, 127:5690, 127:5735.) An advisory panel recommended the City begin exclusive negotiations with Kimpton, a hotelier. (AR 84:4713-14; 13:2837.)

In May 2013, the City and Kimpton entered into an exclusive negotiation agreement to negotiate a potential ground lease. (AR 5:1885.) Based on the results of the CEQA-required Initial Study, the City ordered preparation of an environmental impact report (EIR) and issued a Notice of Preparation on March 5, 2015. (AR 3:1637.) The City also two scoping meetings to receive comments regarding the scope and content of the Draft EIR. (AR 3:1637)

On February 5, 2016, the City published a Notice of Completion and Availability of the Draft EIR. (AR 3:1637, 13:2653.) The City circulated the Draft EIR during a 60-day comment period. (AR 3:1637, 26:2653.) During the comment period, the City held public meetings before its Historic Preservation Commission, the Design Commission, and the Planning Commission, where the public could comment on the Draft EIR. (AR 3:1637.) The City received both written and oral public comments regarding the Draft EIR. (AR 3:1637.) The City responded to the comments and made corresponding revisions to the Draft EIR. (AR 3:1638, 13:2652.) The responses to comments were available for public review 35 days prior to hearings on the Final EIR. (AR 3:1638.)

On July 13, 2016, the City’s Planning Commission held a noticed public hearing. (AR 3:1638.) The Planning Commission recommended certification of the EIR and Project approval. (AR 3:1638.) On August 15, 2016, the City Council held a noticed public hearing, and after considering the EIR and all related materials, the City Council voted unanimously to certify the EIR. (AR 126:5687.)

The Project as approved includes several exceptions to the City’s planning and zoning requirements. For example, the City approved a conditional use permit to require only 136 shared parking spaces (instead of 240 spaces) at a yet-to-be identified off-site parking garage. (AR 31:11583, 4:1678.) The Project also includes a variance allowing required loading zone parking spaces to be reduced from six to one. (AR 4:1693-1694.) The City also approved a variance reducing the required ceiling height of a building’s first floor by six feet (15 feet to 9 feet). (AR 5:1902, 127:5702.)

Finally, the Project Site is City-owned property. Accordingly, the City declared the property as surplus land unnecessary for public purposes. The City also approved an exemption to the City’s municipal code competitive sale requirements. (AR 4:1682, 4:1696.)

This writ petition ensued.

STANDARD OF REVIEW

In a mandamus proceeding reviewing an agency’s compliance with CEQA during the course of its legislative or quasi-legislative actions, the trial court’s inquiry “ ‘shall extend only to whether there was a prejudicial abuse of discretion,’ ” which 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.’ ” (Vineyard Area Citizens for Responsible Growth Inc. v. City of Rancho Cordova citing § 21168.5].) “In evaluating an EIR for CEQA compliance, . . . a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts.” (Id. at 435.)

CEQA requires an EIR to “be prepared with a sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of environmental consequences.” (Guidelines[4] § 15151; Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516.) “An EIR’s designation of a particular environmental effect as ‘significant’ does not excuse the EIR’s failure to reasonably describe the nature and magnitude of the adverse effect.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at 514.) “[T]here must be a disclosure of the ‘analytic route the . . . agency traveled from evidence to action.” (Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 404.) “[A] conclusory discussion of an environmental impact that an EIR deems significant can be determined by a court to be inadequate as an informational document without reference to substantial evidence.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at 514.) If the deficiencies in an EIR preclude “informed decisionmaking and public participation, the goals of CEQA are thwarted and a prejudicial abuse of discretion has occurred.” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 128.)

“Where the alleged defect is that the agency has failed to proceed in the manner required by law, the court determines de novo whether the agency has employed the correct procedures, scrupulously enforcing all legislatively mandated requirements.” (Chico Advocates for a Responsible Economy v. City of Chico

With respect to “all substantial evidence challenges, an appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant’s failure to carry his burden.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) Moreover, “the reviewing 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,’ for, on factual questions, our task ‘is not to weigh conflicting evidence and determine who has the better argument.’ ” (Vineyard Area Citizens for Responsible Growth Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at 435.)

“Regardless of what is alleged, an EIR approved by a governmental agency is presumed legally adequate, and the party challenging the EIR has the burden of showing otherwise.” (Chico Advocates for a Responsible Economy v. City of Chico, supra, 40 Cal.App.5th at 846.)

ANALYSIS

  1. MOTION TO AUGMENT THE RECORD

The court has already ruled on this issue.

  1. WRIT OF MANDATE

  1. California Environmental Quality Act (CEQA)

The court has already conducted oral argument on this issue.

  1. State Surplus Land Act (SLA)

The SLA requires a local agency to send a written offer to sell or lease property to certain entities for affordable housing or park purposes when it decides to dispose of surplus land—land the local agency no longer requires. (Former Gov. Code § 54222, subd. (b).)[5]

Petitioner argues the City violated the requirements of the state’s SLA in connection with the Project. Specifically, Petitioner argues, “The City violated the requirements of the [SLA] by failing to offer any of the Project site parcels for sale or lease for public parkland or affordable housing prior to approving the Project.” (Opening Brief 22:27-29.)

As the court understands Petitioner’s argument, if the City intended to dispose of the property through a ground lease, the property ipso facto constitutes surplus lands such that the SLA applies to that property. As the lands are surplus lands, the SLA required the City to provide a written offer to sell to certain entities. Petitioner claims, instead of complying with the state’s SLA, “the City issued a declaration that the property was surplus real property [under the Pasadena Municipal Code (PMC)] and thus could be disposed of for private development.” (Opening Brief 23:17-18.)

Distinguishing between the PMC’s provisions concerning surplus land and the state’s SLA, the City argues the SLA does not apply to the Project property. According to the City, it did not determine the property was “no longer necessary for the agency’s use,” a requirement of the SLA. (Gov. Code § 54221, subd. (b).) In support of its position the property is not “surplus land” as defined by the SLA, the City focuses on the nature of the Project—restoration of an “historically significant property that is listed as a contributor to the Pasadena Civic Center Historic District on the National Register of Historic Places and the California Register of Historical Resources, and . . . a City-designated historic monument.” (AR 5:1742.) The historic building had fallen into disrepair “[d]ue to years of lack of maintenance” raising the “possibility of a ‘demolition of neglect’ . . . .” (AR 5:1743.) The City determined the land—which includes Parcel 3—underlying the entire Project was “key to making this [restoration] project work.” (AR 99:4986.) Specifically, the City explained:

“It is necessary for the City to garner sufficient revenue to recoup its investment in this sensitive historically significant property and it will be integral to the hotel operator's ability to rehabilitate the historical building. It will provide a consistent stream of revenue to the City so long as the hotel continues to operate. And it will contribute to the viability of a thriving Civic Center.” (AR 99:4986.)

The record continues:

“Financial analysis is not needed to prove that this project is the only way to rehabilitate the YWCA. Multiple project proposals were presented to the City since the YWCA vacated the building in 1994 and all of them failed. From that experience, it was clear that in order to identify a project that would result in the rehabilitation of the historic building, the City needed to intervene, acquire the building and engage the development community to propose a project that would be successful. It is likely that there are other ways that the building could be rehabilitated; however, this project was selected based on the developer's demonstration of the successful completion of similar projects.” (AR 99:4986.)

Petitioner argues the City’s view of “agency use” as used in the SLA is unwarranted and overbroad—the City’s view, according to Petitioner, “contradicts the values of the SLA.” (Reply 19:9.) Petitioner asserts the City must use the property “for governmental land use purposes to affordable housing or recreational purposes” to constitute agency use. (Reply 18:29-30 [emphasis in original].) Petitioner contends the City’s reading of agency use would allow it to lease land to private entities and avoid compliance with the SLA, an absurd consequence. (Reply 19:11.)

Petitioner suggests the amendments to the SLA demonstrate the City interpretation of “agency use” is overbroad. The amended statute specifies “ ‘agency’s use’ shall not include commercial or industrial uses or activities, including nongovernmental retail, entertainment, or office development. Property disposed of for the sole purpose of investment or generation of revenue shall not be considered necessary for the agency’s use.” (Gov. Code § 54221, subd. (c)(1)(A) [emphasis added].)

Even if the revised statute applied here, it is clear from the administrative record the City is not acting solely for investment or revenue generation. This is not the circumstance argued by Petitioner of the City becoming a landlord solely to profit. As noted earlier, the City approved the Project to, among other reasons, “restore and rehabilitate the historic YWCA building to an economically sustainable, long-term use as an integral part of the Civic Center area . . . .” (AR 5:1781.) The Project is the City’s method for restoring “a historically significant property” designed by architect Julia Morgan. (AR 5:1742.) Thus, the ground lease is a means to an historical restoration end.

Finally, Petitioner contends the City’s suggestion the property is not surplus land under the SLA while simultaneously arguing the property is surplus land under the municipal ordinance is impossible to reconcile. (Reply 19:24-26. [“The City provides no reconciliation for how Parcel 3 could simultaneously be required for the City’s use (thus precluding it from the definition of surplus land under the SLA) but not be “needed . . . for any other public purpose” (thus declaring it surplus property under the PMC).”]) However, the municipal ordinance—as discussed further below—does not mirror the SLA; it has different definitions and requirements. (See PMC § 4.02.010, subd. (A).)

The record is adequate to demonstrate the land continues to be used by the City, and the City’s determination that the land, including Parcel 3, was actually necessary for agency use under the SLA is supported by substantial evidence. The court finds the SLA does not apply under the circumstances here.[6]

  1. Municipal Code Requirements for Disposal of Surplus Land

Petitioner asserts the City failed to comply with PMC sections 4.02.010 through 4.02.060 when it decided to lease the Project property. These municipal code provisions govern the sale of surplus City-owned real property.

Because the Project provides a 99-year ground lease to a third party, the lease is considered a sale of City-owned real property under the PMC. (See PMC § 4.02.010, subd. (B).) Thus, to enter into the lease, the City must find (or have found) the property is surplus property, i.e., “real property of the city not needed for the purpose for which it was acquired or for any other public purpose.” (PMC § 4.02.010, subd. (A).) Further, the PMC requires the City to make a “extraordinary and overriding interest” finding if the City deviated from the requirement that property be subject to “publicly noticed, competitive process, available to all interested persons” pursuant to PMC section 4.02.011.[7]

The City determined Parcel 3 was no longer “needed for the purpose for which it was acquired.” (AR 84:4717–19.) The City also found Parcel 3 was not required for “any other public purpose” (411:13886–7, 13890, 13923, 13967.)[8] According to Petitioner, the City findings with respect to Parcel 3 are unsupported.[9] Petitioner attacks both of the required findings.

Petitioner argues the first finding is deficient because the City’s analysis only considered that Parcel 3 was purchased in 1923 for “the construction and completion thereon of a building, together with suitable appurtenances, grounds and approaches, for City Hall purposes” and concluded the City “either intended to build additional City buildings on [Parcel 3] or to declare it surplus property for private development in the future.” (AR 84:4717, 84:4719.) Petitioner contends this finding ignores the civic garden on Parcel 3 and does not provide any analysis of whether that portion of Parcel 3’s usage was needed for any other public purpose as required under PMC section 4.02.010.

Citing Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, Petitioner contends the City’s “bare findings” do not bridge the analytical gap—especially in light of the numerous community comments indicating that the Parcel 3 was needed as public greenspace. (Opening Brief 25:2-4 [citing AR 127:5734, 127:5737, 124:5599, 124:5601–03].) In contrast to the City’s findings, Petitioner states the greenspace in Parcel 3 is critical to the visual approach of City Hall.

Petitioner also notes PMC section 4.02.030 requires that surplus property be sold through a competitive bidding process unless specific findings are made by the City “that an extraordinary and overriding public benefit will be achieved.” (PMC § 4.02.030, sub. (A) [defining “public benefits” as the “provision of public parking, lowcost housing, a public service facility, or a museum or other cultural or artistic institution, or the economic and public well-being of other properties in the immediate vicinity”]; 169:6590.)

Petitioner argues the City’s “extraordinary and overriding” public benefit finding was merely a pretextual rationalization, citing Redevelopment Agency v. Norm’s Slauson (1985) 173 Cal.App.3d 1121, 1127 wherein the court found the agency unlawfully “rubber stamped a predetermined result” when it made an agreement for private development prior to initiating condemnation proceedings. (Opening Brief 25:32-26:6.)

Petitioner also asserts the City failed to provide any support for its finding that the disposal of Parcel 3 for the Project would have an extraordinary and overriding public benefit related to the economic and public well-being of other properties in the immediate vicinity. (AR 4:1682.)

In response to these arguments, the City previously commented the ordinance does not required the “finding to be made before circulating a Request for Proposals. PMC Section 4.02.030 clearly requires the City Council to make this finding ‘not less than 60 days before any sale.’ The City Council will consider the final lease agreement not less than 60 days after it considers making this finding to exempt the project from the competitive sale requirement.” (AR 99:4987.)

Additionally, the City found that Parcel 3 was exempt from the competitive the bidding process under the ordinance. As explained by the City, it acquired the parcel in 1923 as part of the development for the City Center, “specifically City Hall and its appurtenances, grounds and approaches.” (AR 4:1682.) This purchase however included “excess area beyond what was needed to construct City Hall and its appurtenances, grounds and approaches due to the configuration of the properties when they were purchased. As such, the portion of the property that is proposed to be built upon is not needed for City Hall or its appurtenances, grounds and approaches or for any other public purpose.” (AR 4:1682, 99:4986.) This conclusion seems to be further supported by the findings in the Project’s Historic Preservation Technical Report in the EIR, which explains the impact on the “symmetry” between the two L-shaped landscaped areas as a result of removal of a portion of landscaped area in Parcel 3 would not be significant because “the design and massing of the existing buildings on the flanking blocks north and south of Holly Street are not symmetrical with each other.” (AR 7:2408.)

Further, the City found that the “extraordinary and overriding” requirement to had been satisfied, relieving the City from the competitive bidding requirement with respect to Parcel 3. Here, specifically, the City determined:

“The proposed project would rehabilitate the historic YWCA building, which has suffered from extreme neglect over many years and is in substantially deteriorated condition, which will require a significant financial investment. The project applicant has satisfactorily demonstrated to the City its ability to rehabilitate the YWCA and return it to active use, while also constructing an adjacent new building/addition that would be compatible with the YWCA building and the Civic Center as a whole. This will be a significant public benefit and the proposed new construction is needed to support this Significant investment in the rehabilitation of the YWCA building. The new building and rehabilitated historic building will create a new, active use in the Civic Center and will bring jobs as well as hotel guests, restaurant patrons, and banquet attendees to the area, resulting in increased economic and public well-being for all properties in the immediate vicinity.”

(AR 4:1682.) As noted above with the state’s SLA, the land, including Parcel 3, was integral to the overall Project plans. (AR 99:4986.) The City’s conclusion was based on the numerous prior attempts to rehabilitate the land with different plans that all proved unsuccessful. (AR 99:4986.)

Based on the foregoing, the court finds the City bridged the analytical gap for its findings and its findings were supported by substantial evidence.

CONCLUSION

For the foregoing reasons, the court will deny Petitioner’s writ petition.

IT IS SO ORDERED.

December 11, 2020 ________________________________

Hon. Mitchell Beckloff

Judge of the Superior Court


[1] All undesignated statutory references are to this Code.

[2] For reference, AR refers to the administrative record in this case. Moreover, the citation to the record is specified as a tab and page number as follows: “AR tab number:page number.”

[3] By way of background, the YWCA Building was built between 1921 and 1923. (AR 5:1742.) Since 1997, the YWCA Building has been vacant and deteriorating. (AR 5:1743.) The City, in 2012, acquired the YWCA Building—along with Parcels 1 and 2—through an eminent domain action in order to rehabilitate it and return it to active use. (AR 5:1743.)

[4] The CEQA Guidelines are found at Title 14, Chapter 3 in the California Code of Regulations. The guidelines are cited herein as “Guidelines.”

[5] As noted in Petitioner’s Opening Brief, the SLA was amended in October 2019 with an effective date of January 1, 2020. Both parties agree the prior version of the SLA governs this case. (Opening Brief, p. 22, fn. 1; Opposition 24, fn. 4.)

[6] Moreover, the failure to comply with the SLA would not invalidate the City’s transfer to its lessee. Former Government Code section 54230.5 stated the “failure by a local agency to comply with this article [the SLA] shall not invalidate the transfer or conveyance of real property to a purchaser or encumbrancer for value.” (Gov. Code § 54230.5; see also City of Cerritos v. Cerritos Taxpayers Assn. .) In reply, Petitioner argues this does not prevent relief and suggests the revised Government Code section 54230.5 allows relief. The revised statute does allow the imposition of penalties under certain circumstances. It also provides the section does not limit remedies. (Gov. Code § 54230.5, subd. (d).) Nonetheless, it is not entirely clear that the relief requested here—setting aside the approvals for the Project—is permissible given Government Code section 54230.6’s prohibition on invalidating or setting aside a conveyance made in violation of the SLA.

[7] “The board of directors may authorize a sale other than pursuant to 4.02.020

[8] Petitioner argues that this second finding was only made after a public comment noted the City had failed to make this finding and suggests the finding was conclusory. (Opening Brief 24:16-20.)

[9] As a reminder, the Project’s new building would be constructed on a portion of the landscaped area in Parcel 3, which consists, in part, of wood chips, a concrete walkway, trees, and grass; the Project would remove a portion of this grass area. (AR 5:1747-1748.)

Case Number: BS164664    Hearing Date: October 30, 2020    Dept: 86

PASADENA CIVIC CENTER COALITION v. CITY OF PASADENA

Case Number: BS164664

Hearing Date: October 30, 2020

[Tentative] ORDER DENYING PETITIONER’S MOTION TO AUGMENT THE RECORD

[Tentative] ORDER DENYING RELIEF PETITIONER’S CEQA CLAIMS


Petitioner, Pasadena Civic Center Coalition (Petitioner) brought this action seeking to set aside approvals by Respondent, the City of Pasadena, (the City) for a hotel development project. Petitioner contends the City’s approval violated the California Environmental Quality Act (CEQA)(Pub. Resource Code[1] § 21000 et seq.), the Surplus Land Act (Gov. Code § 54220 et seq.) and the Pasadena Municipal Code.

Petitioner also moves the court to augment the administrative record.

Petitioner’s motion to augment the record is denied.

Petitioner’s request for relief based on alleged CEQA violations (cause of action one) is denied. The court will address Petitioner’s second and third causes of action at a subsequent hearing.

  1. MOTION TO AUGMENT THE RECORD

Petitioner seeks an order to augment the administrative record with two documents. Alternatively, Petitioner seeks judicial notice of the documents.

Petitioner reports the City omitted both documents from its final certified administrative record. Petitioner contends both document “belong” in the administrative record pursuant to section 21167.6.

Section 21167.6, subdivision (e) enumerates 11 items that must be included in the record of proceedings. Section 21167.6, subdivision (e) provides in part:

“(e) The record of proceedings shall include, but is not limited to, all of the following items: . . .

(2) All staff reports and related documents prepared by the respondent public agency with respect to its compliance with the substantive and procedural requirements of this division and with respect to the action on the project.

(3) All staff reports and related documents prepared by the respondent public agency and written testimony or documents submitted by any person relevant to any findings or statement of overriding considerations adopted by the respondent agency pursuant to this division . . .

(7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project . . .

(10) Any other written materials relevant to the respondent public agency’s compliance with this division or to its decision on the merits of the project, including the initial study, any drafts of any environmental document, or portions thereof, that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency’s files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.”

Where material falls outside of section 21167.6 for inclusion in the administrative record, in certain situations, the material may be admitted into evidence and considered by the court as extra-record evidence. Extra-record evidence is “evidence outside the administrative record.” (Carrancho v. California Air Resources Board

Relying on County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 8, Petitioner argues

“CEQA ‘contemplates that the administrative record will include pretty much everything that ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development.’ ” (Motion 8:4-6.) Petitioner contends the documents at issue relate to the project’s approval and were presented to the City’s Planning Commission at the time the Planning Commission considered the project.

More specifically, Petitioner contends Exhibit A should have been included in the administrative record because it falls squarely within section 21167.6, subdivision (e)(2) and (e)(7). The staff report states “[d]uring discussion of the YWCA/Kimpton Hotel Project, members of the Planning Commission and public have expressed concerns about provision of undeveloped landscaped space within the Civic Center in the vicinity of City Hall as well as symmetry of future new construction on the currently-landscaped City-owned properties at the northwest and southwest corners of Garfield Avenue and Holly Street.”[2] (Motion, Ex. A, p. 1.)

Petition also contends Exhibit A should be included in the administrative record pursuant to section 21167.6, subdivision (e)(3). Petitioner argues the staff report informs on the City’s surplus property decision as well as on cultural resource impacts.

Finally, and in the alternative, Petitioner requests the court take judicial notice of the documents. Petitioner contends Exhibit A is judicially noticeable as an official act of the legislature pursuant to Evidence Code section 452, subdivision (c). According to Petitioner, the court may take judicial notice of Exhibit A because it is an official act as a report of a local administrative agency. (See Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518. [“Official acts include records, reports and orders of administrative agencies.”])

The City opposes Petitioner’s attempts to augment the administrative record. It argues Exhibit A is unrelated to the hotel project. Exhibit A is instead a staff report from the City’s Planning and Community Development Department to the Planning Commission regarding a recommendation to study “means of providing additional undeveloped landscape space in the vicinity of City Hall” and possible design conditions for a future (but not yet proposed) project at 280 Ramona Street—an entirely different location from the Property.[3] (See Motion, Ex. A, p. 1.)

The court finds Exhibit A need not be included in the administrative record under the Public Resources Code. The court also finds the report is not judicially noticeable. Exhibit A does not inform on any issues related to the project’s compliance with statute or local ordinances. Although the project caused focus on the need for establishing additional undeveloped landscaped space in the vicinity of City Hall, the report does not information mitigation measures pursuant to CEQA or whether the City complied with law when it approved the project. Exhibit A is not necessary to resolve any of the legal issues central to the petition. Accordingly, the motion is denied as to Exhibit A.

As to Exhibit B—a copy of a May 1923 issue of City Facts[4]—Petitioner contends it contains information about the 1923 bond measure that secured funding for the City’s purchase of Parcel 3, a City-owned parcel involved in the project. Exhibit B also contains a map of the buildings proposed by the bond measure, including a diagram of Parcel 3.

Petitioner agues Exhibit B is properly part of the administrative record under section 21167.6, subdivision (e)(10) because it is part of the City’s files concerning the project. Petitioner further argues Exhibit B is relevant to the project because it provides detailed information about the bond measure and the proposals to build City Hall and other Civic Center buildings. Petitioner posits such information is necessary to review the project’s cultural resources and land use impacts, as well as the required surplus land determination under the City’s municipal code.

Alternatively, Petitioner requests the court take judicial notice of Exhibit B pursuant to Evidence Code section 452, subdivision (c). (Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 753 fn. 1 [official publications from Department of Real Estate judicially noticeable official acts].) Evidence Code section 452, subdivision (h) also provides authority for judicial notice, according to Petitioner, as a news article to provide historical context. Petitioner believes such context would be helpful to understand a particular public comment made to the City’s Historic Preservation Commission in connection with the project. (See AR 345:12733)

The City argues Exhibit B is properly excluded from the administrative record. There is no evidence before the City considered Exhibit B when it made its decision to approve the project. (AR 15:3155-3264; 93:4812-14; 131:5791-5825 [showing other newspaper articles that was submitted and considered by the City Council].)[5] Nothing suggests Exhibit B should have been included in the administrative record under the Public Resources Code.

As with Exhibit A, the court finds Exhibit B need not be included in the administrative record under the Public Resources Code. The court also finds the report is not judicially noticeable because it is not relevant (and not necessary for historical context). Exhibit B does not inform on any issues related to the project’s compliance with statute or local ordinances. Exhibit B is not necessary to resolve any of the legal issues central to the petition. Accordingly, the motion is denied as to Exhibit B.[6]

Based on the foregoing, Petitioner’s motion to augment the record is denied.

  1. WRIT OF MANDATE

STATEMENT OF THE CASE[7]

The Project:

The project would rehabilitate and reuse the 1923 Julia Morgan designed YWCA building (the Building),[8] located at 78 N. Marengo Avenue in Pasadena, as a hotel and also construct a three-to-six-story new hotel building adjacent to the Building (the Project). (AR 5:1772, 3:1636.) The Project would result in a hotel with 179 guestrooms, meeting facilities, ballroom space, hospitality parlors and a restaurant. (3:1636; 5:2654.)

The Project is located within the National Register-listed Pasadena Civic Center Historic District (Historic District). The Project site is also located within the Civic Center/Midtown Sub-District of the City’s Central District Specific Plan (CDS-Plan). (AR 5:1742.) The Project is comprised of three separate parcels and spans the entire block bounded by Marengo Avenue to the west, Holly Street to the north, Garfield Avenue to the east, and Union Street to the south (Project Site). (AR 5:1742, 5:1748.) All three parcels are owned by the City. (AR 5:1772–1773.) Parcel 1 is the southwest part of the Project Site and contains the Building; Parcel 2 consists of a surface parking lot east of the Building; and Parcel 3 is an L-shaped parcel located to the north east of the Building and parking lot with landscaping and public art. (AR 5:1742.) The Project’s new hotel building would be constructed on a portion of the landscaped area in Parcel 3 that fronts Garfield Avenue. (AR 5:1747.)

Approval of the Project:

In July 2012, the City issued a request for proposal (RFP) for the rehabilitation of the Building as well as the possible development of a portion of Parcel 3. (AR 5:1743, 37:3865.) In the RFP, the City stated its objectives included preservation of the historic asset on the Property for the purpose of rehabilitation and respect for the architectural and spatial context of the site as well as surrounding historic district. (AR 84:4712-4713.)

In July 2012, City staff held two public open house meetings on the RFP. (AR 84:4712-13.) The City received six responses to its RFP. (AR 84:4713, 127:5690, 127:5735.) An advisory panel recommended the City begin exclusive negotiations with Kimpton, a hotelier. (AR 84:4713-14; 13:2837.)

In May 2013, the City and Kimpton entered into an exclusive negotiation agreement to negotiate a potential ground lease. (AR 5:1885.) Based on the results of the CEQA-required Initial Study, the City ordered preparation of an environmental impact report (EIR) and issued a Notice of Preparation on March 5, 2015. (AR 3:1637.) The City also two scoping meetings to receive comments regarding the scope and content of the Draft EIR. (AR 3:1637)

On February 5, 2016, the City published a Notice of Completion and Availability of the Draft EIR. (AR 3:1637, 13:2653.) The City circulated the Draft EIR during a 60-day comment period. (AR 3:1637, 26:2653.) During the comment period, the City held public meetings before its Historic Preservation Commission, the Design Commission, and the Planning Commission, where the public could comment on the Draft EIR. (AR 3:1637.) The City received both written and oral public comments regarding the Draft EIR. (AR 3:1637.) The City responded to the comments and made corresponding revisions to the Draft EIR. (AR 3:1638, 13:2652.) The responses to comments were available for public review 35 days prior to hearings on the Final EIR. (AR 3:1638.)

On July 13, 2016, the City’s Planning Commission held a noticed public hearing. (AR 3:1638.) The Planning Commission recommended certification of the EIR and Project approval. (AR 3:1638.) On August 15, 2016, the City Council held a noticed public hearing, and after considering the EIR and all related materials, the City Council voted unanimously to certify the EIR. (AR 126:5687.)

The Project as approved includes several exceptions to the City’s planning and zoning requirements. For example, the City approved a conditional use permit to require only 136 shared parking spaces (instead of 240 spaces) at a yet-to-be identified off-site parking garage. (AR 31:11583, 4:1678.) The Project also includes a variance allowing required loading zone parking spaces to be reduced from six to one. (AR 4:1693-1694.) The City also approved a variance reducing the required ceiling height of a building’s first floor by six feet (15 feet to 9 feet). (AR 5:1902, 127:5702.)

Finally, the Project Site is City-owned property. Accordingly, the City declared the property as surplus land unnecessary for public purposes. The City also approved an exemption to the City’s municipal code competitive sale requirements. (AR 4:1682, 4:1696.)

This writ petition ensued.

STANDARD OF REVIEW

In a mandamus proceeding reviewing an agency’s compliance with CEQA during the course of its legislative or quasi-legislative actions, the trial court’s inquiry “ ‘shall extend only to whether there was a prejudicial abuse of discretion,’ ” which 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.’ ” (Vineyard Area Citizens for Responsible Growth Inc. v. City of Rancho Cordova citing § 21168.5].) “In evaluating an EIR for CEQA compliance, . . . a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts.” (Id. at 435.)

CEQA requires an EIR to “be prepared with a sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of environmental consequences.” (Guidelines[9] § 15151; Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516.) “An EIR’s designation of a particular environmental effect as ‘significant’ does not excuse the EIR’s failure to reasonably describe the nature and magnitude of the adverse effect.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at 514.) “[T]here must be a disclosure of the ‘analytic route the . . . agency traveled from evidence to action.” (Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 404.) “[A] conclusory discussion of an environmental impact that an EIR deems significant can be determined by a court to be inadequate as an informational document without reference to substantial evidence.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at 514.) If the deficiencies in an EIR preclude “informed decisionmaking and public participation, the goals of CEQA are thwarted and a prejudicial abuse of discretion has occurred.” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 128.)

“Where the alleged defect is that the agency has failed to proceed in the manner required by law, the court determines de novo whether the agency has employed the correct procedures, scrupulously enforcing all legislatively mandated requirements.” (Chico Advocates for a Responsible Economy v. City of Chico

With respect to “all substantial evidence challenges, an appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant’s failure to carry his burden.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266.) Moreover, “the reviewing 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,’ for, on factual questions, our task ‘is not to weigh conflicting evidence and determine who has the better argument.’ ” (Vineyard Area Citizens for Responsible Growth Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at 435.)

“Regardless of what is alleged, an EIR approved by a governmental agency is presumed legally adequate, and the party challenging the EIR has the burden of showing otherwise.” (Chico Advocates for a Responsible Economy v. City of Chico, supra, 40 Cal.App.5th at 846.)

ANALYSIS

  1. CEQA

The Adequacy of the EIR’s Analysis of Impacts to Historical Cultural Resources:[10]

Petitioner argues the EIR fails to adequately address the Project impacts to the Historic District as well as the impacts on the historic Building.

Under CEQA, “a project with an effect that may cause a substantial adverse change in the significance of an historical resource is a project that may have a significant effect on the environment.” (Guidelines § 15064.5, subd. (b).) “Substantial adverse change in the significance of an historical resource means physical demolition, destruction, relocation, or alteration of the resource or its immediate surroundings such that the significance of an historical resource would be materially impaired.” (Guidelines § 15064.5, subd. (b)(1).) “The significance of an historical resource is materially impaired when a project . . . materially alters in an adverse manner those physical characteristics of an historical resource that convey its historical significance and that justify its inclusion in, or eligibility for, inclusion in the California Register of Historical Resources” or “a local register of historic places.” (Guidelines § 15064.5, subd. (b)(2)(A) and (B).)

The Historical Resources Technical Report (Technical Report) supporting the EIR concluded:

“With the recommended mitigation measures contained herein, the proposed Project has no substantial adverse impacts to the historic resources because overall the Pasadena YWCA building and the Pasadena Civic Center Historic District would retain sufficient integrity to convey their significance and remain eligible for listing in the National Register and/or the California Register and as a City of Pasadena historic monument.” (AR 7:2412.)

  1. The Historic District Setting

Under CEQA, as noted earlier, National Register historic districts are mandatory historic resources. Impacts to historic districts are assessed under the criteria established by the National Park Service, the federal agency that manages the National Register. (AR 167:6569-70.) The impact assessment requires an evaluation of the historic integrity of the district by assessing the setting (physical environment), design (the form, plan, space, structure and style), and feeling (“a property’s expression of the aesthetic or historic sense of a particular period of time”), among other attributes. (AR 167:6569-6570)

As noted above, the Project Site is in the Historic District, a National Register-listed historic district, listed for its national significance. (AR 5:1835; 163:6159-90; see also 36 C.F.R. 60.2, subd. (d). [“An historic district is a geographically definable area . . . possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united by past events or aesthetically by plan or physical development.”]) Here, the National Register designation provides protections under CEQA as National Register as a mandatory historic resource. As a result, adverse impacts to the Historic District are considered significant impacts under CEQA. (Pub. Resources Code § 21084.1; League for Protection of Oakland’s etc. Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 906.)

Petitioner notes the Project would remove more than three-fourths of the civic gardens on Parcel 3 identified by the National Register designation as a small park area. (AR 13:2821; 5:1855.) Petitioner notes the public letter described the space as “a fantastic amenity: one of the two best views of one of the best City Halls in America.” (AR 13:2756.) In Petitioner’s own letter commenting on the Project, Petitioner stated removing the majority of this public greenspace would “diminish the character and identity of the Civic Center which is one of our most important historic assets in the City.” (AR 13:2769.)

Petitioner also notes numerous public comments in the record voicing concern about the Project’s anticipated adverse impacts. Public comments address removing character defining open space, changing the physical setting and eliminating symmetry. (AR 376:13172-80, 376:13205-13215, 13:2740, 13:2759-2760, 13:2914-2916, 13:2919-2921, 13:2959-2960.)

Thus, in this regard, Petitioner argues the EIR fails to analyze visual approaches and importance of landscaping and the park-like setting in relation to its contribution to the Historic District as to Parcel 3. (AR 5:1856-57, 163:6160.) Further, Petitioner suggests the City did not analyze the Project’s impacts to the physical setting and feeling of the Historic District beyond a conclusion that district contributor buildings[11] would not be removed by the Project and that the civic gardens on Parcel 3 were not critical to the significance of the Historic District. (AR 5:1853-1854, 5:1858.)

The court disagrees with Petitioner. The EIR sets forth the Project’s potential impacts to the Historic District in depth. In particular, with regard to the visual approach and symmetry as a result of building on Parcel 3, the Final EIR treats this change as a change to a “character-defining” feature. (AR 13:2684 [“the new construction proposed by the project would remove a portion of the landscape area fronting Garfield Avenue between Holly and Union Streets . . . This would alter the [Historic] District by removing a portion of landscape area that was considered character-defining in the analysis”].) Notwithstanding the acknowledgment of the importance of this feature, the Final EIR continues, in order for this change to be considered a “substantial adverse change” it must be shown that the Project causes such a change that the Historic District “would no longer convey its historical significance and would no longer be eligible for listing in the California Register of Historical Resources.” (AR 13:2684.) As the Draft EIR explained:

“The new construction would occupy a portion of the landscaped area fronting Garfield Avenue between Holly and Union Streets and alter the symmetrical arrangement of landscaped areas that mirror one another on both sides of Holly Street facing City Hall. The loss of symmetry would be most apparent when viewed from above, looking west and down from the rotunda observation area of City Hall. This area is not open to the public. The effect would be much less discernable from street level on Garfield Avenue or Holly Street because the remaining landscape south of Holly Street would continue to generally read as landscape despite encroachment and the design and massing of the existing buildings on the flanking blocks north and south of Holly Street are not symmetrical. The street pattern, sidewalks, and majority of landscaped areas that characterize the District would remain intact.”

(AR 5:1856, 7:2408.) The Final EIR discusses in depth how the Project will retain the integrity of the Historic District, including changes resulting from incursion into the open green space in Parcel 3. (AR 7:2685-2688.)

Further, the EIR discusses how the construction of a six-story building—which refers to the new addition to the Building—would not clash with the setting and feeling of the Historic District. Citing Rehabilitation Standards 9 and 10,[12] the EIR explains the new building addition of the Project would “be a contemporary design with balanced symmetrical proportions and would recall historic features that complement the Mediterranean Revival architecture of the Pasadena YWCA, City Hall, the U.S. Post Office, and other contributing buildings to the District.” (AR 5:1856.)

As to the significant height difference between the addition and the surrounding buildings, the EIR acknowledges that “the proposed new building would be taller than most of the contributing buildings, which range between two and five stories high.” (AR 5: 1856.) The EIR notes, however, the addition will not be greater in height than City Hall. Moreover, the EIR explains the addition’s six story heights would not conflict with the Rehabilitation Standard 9 because the addition would, as noted previously, be “differentiated from the historic resources adjacent to the site and would be compatible with the size, scale, proportion, and massing to protect the integrity of the site and its surroundings.” (AR 5:1855, 7:2405-2409.) Further, at this height, the addition is not inconsistent with the Civic Center area, generally; in fact, the area includes non-contributing buildings up to nine stories in height.” (AR 7:2409.)

The court finds that the EIR does not fail as informational document as to the impacts on the Historic District.

  1. Impacts on the Building

Petitioner argues the EIR fails to adequately address the Project’s impact to the Building. More specifically, Petitioner claims the EIR fails to address the Project’s compliance with the National Park Service Preservation Bulletin 14.[13]

Here, Petitioner—noting the requirements of the Preservation Bulletin—argues that “[i]herent in all of the guidance is the concept that an addition needs to be subordinate to the historic building.” (AR 7:2404, 206:8197.) Petitioner argues the Project intends the building addition, which reaches up to six stories in height, to surround the Building—overwhelming it and requiring it to compete for visual prominence with the iconic City Hall. (AR 5:1856.) In fact, Petitioner notes the Technical Report acknowledges the addition to the Building will be “substantially taller” than the Building. (AR 7:2406.)

Petitioner argues that rather than trying to demonstrate compliance with the Preservation Bulletin, the EIR “sidesteps” the issue. The EIR suggests the guidance in the Preservation Bulletin “is largely concerned with new construction that is physically attached to historic buildings” whereas here the new construction portion of the Project would not be an “addition” to the Building. (AR 13:2689; 7:2410.)

The court finds Petitioner’s challenge here unpersuasive. With respect the addition, the Draft EIR explained the addition would be “be built adjacent to, and largely separate from, the existing YWCA building, [and] would respect the historical integrity of the existing building.” (AR 5:1904.) Despite the increase in height when compared to the Building, the Project addition would have a smaller footprint and be constructed with “incremental setbacks at the upper floors [which] would reduce the perception of height above the fourth floor when viewed from Union Street.” (AR 5:1855.) The Drafter EIR importantly continues:

“The project would also maintain the interior grade-level courtyard and provide a spatial buffer between the existing YWCA building and the new construction. For these reasons, the significance and integrity of the YWCA building would remain intact and the building would retain its eligibility for listing in the National Register of Historic Places both individually and as a contributor to the Pasadena Civic Center Historic District, its eligibility for listing in the California Register of Historical Resources both individually and as a contributor to the Pasadena Civic Center Historic District, and its status as a City of Pasadena historic landmark.” (AR 5:1904.)

Finally, the City refutes Petitioner’s suggestion the EIR fails to assess the “alteration of the character-defining YWCA ceremonial entrance by the removal of the landscaping, street lights, and public street trees along Marengo Avenue, and the potential removal of the outdoor terraces flanking the entrance to make room for a valet operation.” (Opening Brief 14:29-31.) The City points to the EIR’s acknowledgment of the Project’s changes to the Building’s entrance but asserts the changes do not affect the buildings overall significance. Rather, as noted in the Final EIR, the historical importance of the Building arises “primarily through the plan, massing, spatial configuration, architecture and design features of the building itself.” (AR 13:2691.) In contrast, the “landscape area along Marengo Avenue, although original to the construction of the YWCA building, is less important in understanding the building’s architectural and social significance.” (AR 13:2691.)

The court finds the EIR does not fail as an information document as to the impacts on the Building.

Accordingly, the court finds the EIR is not deficient in its discussion of the Project’s impacts on historical cultural resources and adequately disclosed and meaningfully discussed the potential impacts of the Project. (Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, 192-193. [“ ‘CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive. [Citation.] The absence of information in an EIR does not per se constitute a prejudicial abuse of discretion. [Citation.] A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process. [Citations.]’ ”])

The Adequacy of the Mitigation of Cultural Resources:

Feasible mitigation measures for significant environmental effects must be set forth in an EIR for consideration by the lead agency’s decision makers and the public before certification of the EIR and approval of a project. Generally, the formulation of mitigation measures cannot be deferred until after certification of the EIR and approval of a project. (Guidelines § 15126.4, subd. (a)(1)(B).) “[R]eliance on tentative plans for future mitigation after completion of the CEQA process significantly undermines CEQA’s goals of full disclosure and informed decisionmaking; and [,] consequently, these mitigation plans have been overturned on judicial review as constituting improper deferral of environmental assessment.” (Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 92.)

Petitioner contends the EIR improperly deferred mitigation of the historic resource impacts associated with rehabilitation of the Building. Specifically, Petitioner notes one mitigation measure (MM-CULTURAL1) requires the Project to engage a consultant to assess the yet-to-be disclosed design of the Project for compliance with the Secretary of the Interior’s Standards after Project approval. (AR 5:1858.)[14] Petitioner argues “[i]f the consultant finds that changes to the footprint, size or height of the Project are necessary to comply with the Secretary of Interior’s Standards, the changes could not be implemented and the impacts would remain significant. Thus, compliance with these Standards is not an enforceable performance standard.” (Opening Brief 15:23-26.)

As a preliminary matter, it is important to make clear that portion of the Project to which the MM-CULTURAL1 pertains. No mitigation measures are required to “impacts from demolition associated with removal of the parking lot and part of the landscaped area adjacent to the YWCA building” because the EIR found these impacts to be less than significant. (AR 5:1858.) Similarly, the EIR also found impacts would be less than significant as to “[i]mpacts from alteration to a historic resource by adding a new building adjacent to the YWCA building and in the [Historic District] . . . .” (AR 5:1858.) Thus, the only potentially significant impact—and the only impact that requires mitigation—is alterations to the Building to repurpose the existing facilities into hotel amenities. (AR 5:1854, 5:1858, 7:2404.)

The City contends the EIR provides adequate description of the Project plans for the rehabilitation of the Building. (AR 5:1788-1789.) Further, that final design specifics plans have been deferred does not necessarily violate CEQA as a matter of law. (See e.g., Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 36.)

The court agrees. The issue is the mitigation measure vis-à-vis the final design. That is, is the mitigation measure sufficient under CEQA given the lack of a final design?

Here, the mitigation measure requires the final design plans to adhere to and comply with the Secretary of the Interior’s Standards for Rehabilitation. The standards—used here as a mitigation measure—are actually codified in the Code of Federal Regulations. (36 CFR § 67.7.)

Petitioner’s challenge here fails.

First, CEQA “Guidelines specifically recognize that mitigation measures requiring adherence to regulatory requirements or other performance criteria are permitted.” (Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1060.)

Second, CEQA Guidelines further specifically provide:

“Generally, a project that follows the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings or the Secretary of the Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (1995), Weeks and Grimmer, shall be considered as mitigated to a level of less than a significant impact on the historical resource.”(Guideline § 15064.5, subd. (b)(3).)

Citizens for a Sustainable Treasure Island v. City and County of San Francisco The Court explained:

the Guidelines provide that if the Secretary’s Standards are adhered to, any impact to these historical structures that might otherwise be regarded as adverse will be considered to have been mitigated to insignificant levels. The EIR clearly prohibits making any physical alterations to buildings 1 and 3 that do not comply with the Secretary’s Standards. It is difficult to imagine any more specific criteria protecting the architectural integrity of these structures.” (Id.)

Accordingly, the court finds the Project’s proposed mitigation measure here does “more than require a report be prepared and followed, or allow approval by [the agency] without setting any standards.” (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 794.) As noted in the Final EIR, “[r]ather than "[leaving mitigation] up to a consultant restoration architect, hired by the applicant," . . . , compliance with the Secretary of the Interior’s Standards establishes a clear performance standard for this mitigation measure.” (AR 13:2818.) “It is difficult to imagine any more specific criteria protecting the architectural integrity of these structures.” (Citizens for a Sustainable Treasure Island v. City and County of San Francisco, supra, 227 Cal.App.4th at 1066.)

Thus, the court here finds Petitioner’s challenge to the Project approval based on the purportedly deferred mitigation measure are not well-taken. Nothing in CEQA requires the Project to have greater design details than those it currently contains. Further, the reliance on the Secretary of the Interior’s Standards for historic properties is adequate to ensure the future final design details do not create an adverse significant impact.

The Disclosure of Land Use Inconsistencies:

“The EIR shall discuss any inconsistencies between the proposed project and applicable general plans, specific plans and regional plans.” (Guidelines § 15125, subd. (d).)

“A city’s determination that a project is consistent with the city’s general plan carries a strong presumption of regularity.” (Clover Valley Found. v. City of Rocklin (2011) 197 Cal.App.4th 200, 238.) A city’s finding on the issue will be set aside only when “a reasonable person could not have reached the same conclusion.” (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 243.) “A given project need not be in perfect conformity with each and every general plan policy. [Citation.] To be consistent, a [project] must be ‘compatible with’ the objectives, policies, general land uses and programs specified in the general plan. [Citation.]” (Families Unafraid to Uphold Rural Etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1336.)

According to both the Green Space Element and the CDS-Plan, Petitioner argues there is a critical shortage of open space in the City’s central district. The City’s land use plans include policies, goals and objectives to protect existing open space and to add new park space plans. (AR 195:7384-85, 193:7349, 191:7292, 191:7308, 181:6825-6829.) Instead of protecting the civic gardens, Petitioner asserts the Project eliminates 78 percent of the existing public greenspace along Garfield Avenue (by reducing it from 107 feet to 25 feet) and an additional undisclosed amount along Holly Street, and removes 36 mature trees. (AR 98:4955, 104:5129, 84:4718-4719.) Thus, in this respect, the EIR fails to disclose the Project’s inconsistency with these goals and objectives focused on protecting existing and providing additional open space resources under the City’s land use plans.

In response, the City notes no part of the Project Site is designated as parkland, recreational facility, or open space under the City’s General Plan or its Green Space Plan. (AR 5:1914, 13:2749.) Further, as reflected in the EIR, the City analyzed the Project in the context of CDS-Plan objectives regarding urban open spaces. The City determined the Project would not alter major promenades or plazas, wide decorative sidewalks, or street trees along Holly Street and Garfield Avenue. (AR 5:1903-1914, 11:2571-2573.)

Citing the CDS-Plan, Petitioner emphasizes the importance of the tree lined civic promenade along Holly Street and Garfield Avenue to “provide dignified spaces in front of the major civic buildings and reinforce the grand axis envisioned by the Beaux Arts Bennett Plan.” (AR 182:6848; 181:6822, 6829; 177:6767.) According to Petitioner, the Project rendering demonstrates Garfield Avenue will no longer be tree-lined at the Project Site (AR 5:1730, 1812.) As a result, Petitioner argues the EIR fails to disclose the Project’s inconsistency with the

CDS-Plan “due to its removal of the tree lawn on Parcel 3 and its failure to reinforce the vision of the 1923 Bennett Plan included in the [CDS-Plan] due to its elimination of the park on Parcel 3 and lack of symmetry of this central focal point of the Civic Center because the public greenspace on Parcel 3 would no longer be symmetrical with the Northside Parcel.” (Opening Brief 17:20-24.)

The City explains the EIR’s fulsome discussion of the issue:

“In assessing the Project’s compliance with applicable land use plans, the EIR made the following predicate factual findings, all supported by substantial evidence: (1) the landscaped area in Parcel 3 is not designated as a public park or open space under any land use plan (5:1914, 13:2749); (2) the landscaped area is not a “pocket park” subject to corresponding land use protections (5:1914; 13:2821); (3) the applicable version of the Bennett Plan, and the one that most accurately reflects current development in the District, is the one contained in the detailed 1925 Plan (5:1746, 1784; 15:3151; 13:2681); and (4) the 1925 Plan specifically indicates that the landscaped areas in Parcel 3 and the North Parcel were intended for future development. (5:1780, 1784; 15:3161; 13:2681) These factual findings informed the EIR’s analysis regarding the Project’s consistency with applicable land use plans, including the General Plan and the CDSP, and substantial evidence supports the analysis.” (Opposition 16:17-27.)

With respect to Petitioner’s argument that Project will remove the tree-lined promenade on Garfield Avenue, EIR’s land use consistency analysis states the Project “would not alter the Holly Street promenade leading to City Hall, or the wide decorative sidewalks and street trees along Holly Street and Garfield Avenue.” (AR 5:1914, 11:2571.) Even the conceptual drawing that Petitioner cites for support shows the presence of these trees. (AR 5:1730, 5:1812.)

Petitioner also contends the EIR improperly defers analysis of Project compliance with the City’s Tree Protection Ordinance by improperly relying on post-approval review of tree removals by the Urban Forest Advisory Committee.[15] (AR 5:1914.) Petitioner further suggests this post-approval review ignores the fact that the Urban Forestry Advisory Committee already recommended the City “consider alternatives that have a lesser impact on public trees, in particular the sister city trees . . . .” (AR 125:5671-5672.) “Because the City owns the entire [P]roject [S]ite, all of the trees on the site are therefore defined as protected trees as defined in the City’s Tree Protection Ordinance.” (AR 84:4732.)

The City explains 27 of the 61 trees would remain on site and 34 of 61 public trees would be removed and replaced, in accordance with the City’s Tree Protection Ordinance. (AR 11:2571-2572; 5:1747, 5:1914-1915, 84:4731 [13 of the trees to be removed were “determined to be dead, dying, or hazardous”].) Further, with respect to the Urban Forestry Advisory Committee’s recommendation, the Urban Forestry Advisory Committee expressed concern that any recommendation it made would be premature because a landscape plan had not yet been developed. (AR 84:4732.)

[Petitioner shall address where in the EIR the Project’s tree removal for the Project would result in significant effects to the environment such that the issue presents a delayed mitigation measure. (See AR 5:1902.) It seems to the court Petitioner’s argument fails based on the EIR’s determination the Project’s tree removals is not a significant environmental impact.]

Finally, Petitioner contends the EIR failed to disclose the Project’s inconsistency with CDS-Plan Building Design Guideline 7.1 requiring development to “distinguish the ground level of a building from the upper levels.” (AR 184:6902, 186:6934.) To implement this measure, the City zoning code requires the first floor of all non-residential buildings be at least 15 feet tall. (AR 56:4133, 104:5158-5159.) Despite the requirement, the Project includes a first floor that is only nine feet in height. (AR 5:1902, 4:1696.)

As noted by the City, the City disclosed the need for a variance and the Project’s failure to meet the minimum 15-foot height requirement. (AR 3:1636, 5:1902.) (See Guidelines § 15125, subd. (d).)

[Conclusion on this challenge remains open based on tree issue to be discussed at argument.]

Segmentation of the Project:

Petitioner argues CEQA requires analysis of “the whole of an action,” including activities that are a reasonably foreseeable consequence of a project, and prohibits evading comprehensive CEQA analysis by splitting projects into separate pieces. (Opening Brief 18:25-27 [citing Guidelines § 15378].) Petitioner contends the Project disregards CEQA by deferring the analysis of the Project’s impacts, i.e., the creation of a lack of symmetry between Parcel 3 and the Northside Parcel (as result of the building on the civic gardens in Parcel 3) by deferring the matter in as separate process.

Petitioner relies on Exhibit A from its motion to augment the administrative record to support its claim. While the court denied the motion, the court nonetheless considers whether the Project has been improperly segmented based on Exhibit A.

Whether two activities are “part of a coordinated endeavor” requiring joint CEQA analysis is a question of law. (Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1224, 1228.)

Petitioner argues Exhibit A evidences the City’s attempt to address the Project’s impact of eliminating greenspace and symmetry in the Civic Center. (Motion to Augment, Ex. A.) Petitioner contends “the need for land use plan revisions to ensure development on the Northside Parcel matches the Project’s pattern of development, ‘is a reasonably foreseeable consequence of the first activity.’ (Sierra Club v. West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 698.) Additionally, both sites are controlled by the City, and the actions are related in time and location. (Tuolumne County Citizens, supra, 155 Cal.App.4th at 1227.)” (Opening Brief 19:16-22.)

The City disputes Petitioner’s characterization of Exhibit A. The City argues this planning concept—which contains no evidence of a specific project application or any concrete proposed amendments to the CDS-Plan—cannot be subjected to environmental review because it is not a finite project capable of environmental review.

“Courts have considered separate activities as one CEQA project and required them to be reviewed together where, for example, the second activity is a reasonably foreseeable consequence of the first activity (Bozung v. Local Agency Formation Com. Laurel Heights I, supra, No Oil, Inc. v. City of Los Angeles

. . . ). However, where the second activity is independent of, and not a contemplated future part of, the first activity, the two activities may be reviewed separately, even though they may be similar in nature.” (Sierra Club v. West Side Irrigation Dist.

The court disagrees Exhibit A evidences a future project as a consequence of the Project. The court does not view the City’s interest in finding ways to address citizen’s concerns regarding greenspace and symmetry as a “reasonably foreseeable consequence” of the Project. Rather, at best, the court views this potential future project to address “greenspace and symmetry” as an independent, second activity. Importantly, these two activities are not interrelated or dependent upon each other. While these activities may arguably be related, they are not parts of the same project and, at present, this second activity lacks even minimal details to suggest it could be meaningfully reviewed as a project.

Accordingly, the court finds Petitioner’s challenge to the EIR based on piecemealing unpersuasive. The activity described in Exhibit A (not actually before the court) is separate and independent—to the point it exists—from the Project.

Traffic Impacts:

Petitioner argues the EIR also fails to adequately analyze the traffic impacts associated with a 185-room hotel Project. Petitioner’s contention, however, arises from the Project’s lack of on- site parking.

As discussed in the EIR, the Project relies entirely on valet service for guest off-site parking. The Project does not identify, however, which specific parking garage the Project will use for off-site parking. (AR 5:1961–1962, 10:2532, 121:5528.) Petitioner contends the EIR also does not address the traffic impact generated by the Project’s 244 employees. (AR 5:1746, 13:2799, 127:5707-5708.)

Preliminarily, section 21099, subdivision (d)(1) does not require the EIR to analyze parking (as a stand-alone issue) on an infill site in a transit priority area. (AR 13:2748, 95:4824.)[16] Thus, parking need not be analyzed in the EIR here except as it relates to secondary impacts. Recognizing the issue, Petitioner addresses parking issues in the context of traffic impacts.

Admittedly, while the EIR addresses the potential traffic impacts of the Project and analyzes the Project’s parking needs, the traffic impact analysis does not expressly address the parking concerns identified by Petitioner. (AR 5:1961-1962, 10:2528-2562.) However, Petitioner—like the petitioner in Covina Residents for Responsible Development v. City of Covina (2018) 21 Cal.App.5th 712—does not submit any evidence of secondary impacts associated with the Project’s parking needs and requirements. It is unclear to the court how Petitioner can challenge the adequacy of the EIR and its conclusions without some evidence suggesting that the parking concerns are, in fact, material to traffic impacts.

Further, Petitioner appears to suggest the City’s EIR is inadequate because rather than identifying the specific parking garage to be used to support the Project’s parking, the City has merely identified three garages that are under consideration for use. (AR 5:1961-1962, 95:4838 [Parking Study].) Petitioner argues the EIR’s assertion the garages are available and can accommodate the Project’s need is “bare conclusion that does not meet the informational requirement of CEQA.”[17] (Opening Brief 20:9-13.)

The Project’s parking needs were thoroughly analyzed by the City. (AR 95:4819, 95:4823.) In addition, the parking plan must be provided to the Department of Transportation prior to any building permits being issued. (AR 95:4821, 95:4838, 13:2747.)

Additionally, contrary to Petitioner’s claims, the EIR’s traffic analysis considered Project employees as a part of the increase in traffic in its traffic analysis. (AR 10:2541-2547, 2542, 2544, [accounting for service population which includes population and jobs].)

Based on the foregoing, the court finds that absent some evidence from petitioner suggesting a secondary impact as result of the Project’s parking plan, the court is not inclined to find that Petitioner has demonstrated a defect in the EIR’s traffic analysis based on parking or employment.

Petitioner also argues the EIR is defective because it fails to analyze traffic hazard impacts. Specifically, Petitioner contends the EIR’s failure to analyze the traffic impacts associated with the Project’s valet turnout at the Project entrance on Marengo Avenue is problematic. (AR 5:1961-1962, 10:2534.)

Petitioner speculates in argument there will be conflict from the valet parking zone and the entrance to a nearby freeway, the valet parking and bicyclists on Marengo Avenue as well as the commercial loading zone and the valet zone. Petitioner’s hypothetical situations are not based on record evidence, and therefore are not persuasive.

“CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive.” (Stanislaus Natural Heritage Project v. County of Stanislaus, supra, 48 Cal.App.4th at 192-193.)

The evidence in the administrative record indicates the valet turnout would be operated from the sidewalk thereby minimizing the interruption to traffic along that street. (AR 127:5706.) Additionally, the valet turnout would function similarly to the west side of the street where on-street parallel parking is permitted. The Final EIR concluded that “the proposed valet turnout would not pose a significant safety hazard to bicyclists, valets, or hotel guests.” (AR 13:2748.)

As with Petitioner’s parking/traffic claim, the court finds Petitioner presents no evidence that additional discussion on this issue in the EIR is required under CEQA. Petitioner has not met its burden to demonstrate otherwise.

Project Description:

Finally, Petitioner argues the EIR’s description of the Project is inadequate. Specifically, Petitioner contends the EIR improperly defers finalization of the Project design to a post-approval design review process, during which the Design Commission may modify the Project’s general design, including its height configuration and massing articulation “to address compatibility with the YWCA.” (Opening Brief 22:11-14.)

“[A]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” (Citizens for a Sustainable Treasure Island v. City and County of San Francisco, supra, 227 Cal.App.4th at 1052.) “[A] project description that gives conflicting signals to decision makers and the public about the nature of the project is fundamentally inadequate and misleading. [Citation.]” (Washoe Meadows Community v. Department of Parks & Recreation (2017) 17 Cal.App.5th 277, 287.) “Whether an EIR correctly describes a project is a question of law, subject to de novo review. [Citation.]” (Rodeo Citizens Assn. v. County of Contra Costa (2018) 22 Cal.App.5th 214, 219.)

Petitioner relies heavily on the discussion in Stopthemillenniumhollywood.com v. City of Los Angeles

In Stop, the Court of Appeal reviewed the trial court’s decision finding the approval of a proposed development of a four-and-a-half-acre parcel straddling Vine Street failed to comply with CEQA. (Id. at 4.) The Court of Appeal found the project description inadequate noting the draft EIR did not contain site plans, cross-sections, building elevations, or illustrative massing to show what buildings would be built, where they would be sited, what they would look like, and how many there would be.” (Id. at 19.)

In contrast, the City relies on Dry Creek Citizens Coalition v. County of Tulare, supra, 70 Cal.App.4th at 20, to argue CEQA does not require an EIR to contain all final design specifications for a project to comply with CEQA.

In Dry Creek Citizens Coalition v. County of Tulare, supra, 70 Cal.App.4th at 24-25, the county approved an EIR for the proposed expansion of a surface sand and gravel mining operation. The project contained a plan to construct a bypass channel and diversion structure that would mitigate downstream water loss; based on these water diversion elements, the impacts of the plan was determined to be less than significant as result of this mitigation. Environmental groups challenged the sufficiency of the project description of the water diversion elements of the expansion. The Court of Appeal rejected the challenge. It explained CEQA only requires “sufficient information to understand the environmental impacts of the proposed project” and the EIR—with due consideration to the fact that the degree of specificity in a project description depends on the type of project—"must achieve a balance between technical accuracy and public understanding.” (Id. at 28.)

In Dry Creek Citizens Coalition v. County of Tulare, supra, 70 Cal.App.4th at 35, the Court concluded that the water diversion features, which had been described in general terms, was adequate under CEQA. The court found there were well-established design criteria for each structure and expert testimony revealed that final design, engineering, and construction plans of this type are always done after conditional project approval. (Ibid.)

Here, the EIR describes the Project’s characteristics, location and boundaries, provided a statement of project objective, and the intended uses. (AR 1772-1825 [Draft EIR Project Description].) Petitioner does not identify any specific design feature that is not sufficiently discussed within the EIR as to the Project’s design.

As noted earlier, CEQA—as an environmental review statute—does itself require complete and final designs of a project before review. That is, so long as the designs are complete “enough” to allow environmental review of the design plans, the description—by extension—is adequate. Here, the court recognizes—as does the City—the final designs for the Project are not complete. Importantly, however, the Project states it must and will comply with the Secretary of the Interior’s Standards for Rehabilitation. The design plans will be finalized later—as set forth in the EIR—but will continue to require compliance with the Secretary’s Standards, rendering the Project description sufficiently concrete and adequate to ensure compliance with CEQA. The environmental impacts from the arguably less-than-final design plans have been adequately addressed through the mitigation measure (which appear to be well-established industry standards).

Thus, the court finds the Project description contains adequate information to inform the public and decision makers for purposes of assessing the Project’s potential environmental impacts resulting from the final design.

THE COURT WILL SELECT A DATE WITH THE PARTIES FOR FURTHER HEARING TO ADDRESS CAUSES OF ACTION TWO AND THREE


[1] All undesignated statutory references are to this Code.

[2] Petitioner represents the project site is at that the southwest corner of Garfield Avenue and Holly Street.

[3] Neither Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733 nor San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498 alter the court’s decision here as to both Exhibits A and B.

[4] City Facts was a publication created by the City and circulated to City residents.

[5] It is worth noting that, similar to Exhibit B, Respondent City opposes Exhibit A’s inclusion in the record because there is no evidence that this study was presented the City Council for consideration in its decision to approve the Project.

[6] Petitioner does not address Code of Civil Procedure section 1094.5, subdivision (e) in its motion to augment the administrative record claiming the Public Resources Code controls. The court need not resolve that issue to reach a decision on this motion. Code of Civil Procedure section 1094.5, subdivision (e) “opens a narrow, discretionary window for additional evidence, newly discovered after the hearing (or improperly excluded at it)” and “generally has been limited to truly new evidence, of emergent facts.” (Fort Mojave Indian Tribe v.Department of Health Services (1995) 38 Cal.App.4th 1574, 1595.) ).) “In the absence of a proper preliminary foundation showing that one of the exceptions noted in [Code of Civil Procedure section 1094.5, subdivision (e)] applies, it is error for the court to permit the record to be augmented.” (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) It would seem to the court receiving evidence through judicial notice would require compliance with Code of Civil Procedure section 1094.5, subdivision (e).

[7] For reference, AR refers to the administrative record in this case. Moreover, the citation to the record is specified as a tab and page number as follows: “AR tab number:page number.”

[8] By way of background, the YWCA Building was built between 1921 and 1923. (AR 5:1742.) Since 1997, the YWCA Building has been vacant and deteriorating. (AR 5:1743.) The City, in 2012, acquired the YWCA Building—along with Parcels 1 and 2—through an eminent domain action in order to rehabilitate it and return it to active use. (AR 5:1743.)

[9] The CEQA Guidelines are found at Title 14, Chapter 3 in the California Code of Regulations. The guidelines are cited herein as “Guidelines.”

[10] Petitioner challenges the adequacy of the EIR as an informational document rather than whether substantial evidence supports the EIR’s conclusions. In fact, except for in the standard of review section, Petitioner does not mention “substantial evidence” until discussing the Surplus Land Act.

[11] “Resources that have been found to contribute to the historic identity of a district are referred to as district contributors. Properties located within the district boundaries that do not contribute to its significance are identified as non-contributors.” (AR 7:2373.)

[12] Standard 9 in part states: “The new work shall be differentiated from the old and will be compatible with the historic materials, features, size, scale and proportion, and massing to protect the integrity of the property and its environment.” (AR 5:1856.) Standard 10 states: “New additions and adjacent or related new construction will be undertaken in such a manner that, if removed in the future, the essential form and integrity of the historic property and its environment would be unimpaired.” (AR 5:1857.)

[13] The Preservation Bulletin is a technical paper setting forth how to assess impacts of a new addition to an existing historic resource. (AR 206:8193-8208.)

[14] The City suggest there is no evidence Petitioner raised this issue at the administrative level thereby failing to exhaust administrative remedies. (Opposition 14:22-24.) However, the administrative record demonstrates the issue was raised and addressed at the administrative level. (See e.g., AR 13:2818.) Thus, without regard to whether Petitioner specifically raised the issue, the agency had an opportunity to address this issue prior to judicial review.

[15] The EIR states, “Tree removals would comply with the City’s Tree Protection Ordinance, including review by the Urban Forestry Advisory Committee.” (AR 5:1914.)

[16]Aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” (§ 21099, subd. (d)(1).)

[17] The EIR states the developer “is currently in negotiations with three locations as potential off-site garages. One of the three sites is expected to garage all valeted vehicles.” (AR 10:2546.) The specific parking lots are identified in the EIR. (AR 5:1961-1962.)

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