CITIZENS ABOUT RESPONSIBLE PLANNING VS CITY OF LONG BEACH

Tentative Rulings

Case Number: ****9842    Hearing Date: May 27, 2021    Dept: 85

Respondent City of Long Beach (“City”) moves to dismiss the second cause of action of the Petition filed by Petitioner Citizens About Responsible Planning (“CARP”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner ACWA commenced this action on June 14, 2017, alleging causes of action for violation of the California Environmental Quality Act (“CEQA”) and the Coastal Act. The Petition alleges in pertinent part as follows.

The City approved a large swimming pool complex facility and café, on the beachfront in the City’s Belmont Heights area (“Project”). The Project site was formerly occupied by the Belmont Plaza Olympic Pool, a 45,595 square foot facility with indoor and outdoor pools that reached a maximum height of 60 feet. The Project would construct a 125,500 square foot complex in its place and would increase the height of the building to 78 feet. The Project requires a site plan review, conditional use permit (“CUP”), standards variance for an over-height structure, a local coastal development permit (“CDP”) and a CDP from the California Coastal Commission (“Commission”), and a water quality certification permit from the Regional Water Quality Control Board.

On April 13, 2013, the City issued an initial Notice of Preparation (“NOP”) for the Project. In April 2016, the Draft Environmental Impact Report (“DEIR”) was released. In June 2016, the Commission and members of CARP, inter alia, submitted comments. In August 2016, the City released the Final Environmental Impact Report (“FEIR”).

On March 2, 2017, the City’s Planning Commission (“Planning Commission”) approved the Project, certified the FEIR, adopted a resolution with findings of fact and a Mitigation Monitoring Program (“MMP”), adopted a resolution approving the Site Plan Review, and granted a CUP.

In March 2017, CARP and other members of the public appealed the Planning Commission’s project approval to the City Council. On May 16, 2017, the City Council held a hearing on the appeal and denied it. On May 17, 2017, the City filed a Notice of Determination (“NOD”).

The Petition’s first cause of action alleges that the City violated the California Environmental Quality Act (“CEQA”) by failing to properly analyze and mitigate significant impacts.

CARP alleged that the FEIR failed to sufficiently analyze aesthetic impacts: (1) the FEIR failed to account for the height of the concrete base in its descriptions of the Project, thereby misleading the public about its impacts; (2) the City failed to provide for enough story poles. The City installed a single-story pole at the Project site, but multiple story poles were warranted; and (3) the FEIR’s CEQA baseline should be the wide-open viewshed created by the demolition of previous buildings onsite in December 2014 as residents have enjoyed these views for over two years, not the existing environmental conditions at the time the NOP is released.

The FEIR failed to sufficiently analyze impacts on biological resources: (1) the FEIR’s bird surveys did not include surveys listing the snowy egret; and (2) the Project provides no mitigation for the destruction of nesting trees, except that the trees be removed outside the nesting season. Certain bird species, such as hummingbirds and herons, nest year-round.

The City failed to analyze the consistency of the Project with the City’s Local Coastal Program (“LCP”) and the California Coastal Act (“Coastal Act”): (1) the new pool facility will be subject to wave action and shoreline erosion, which the Coastal Act counsels against if feasible alternatives exist; (2) the Project structure’s substantial foundation would extend below the expected scour level of the beach and be built up to a high elevation creating a seawall that implicates Coastal Act provisions; (3) the Project facility will not be able to migrate inland as sea level rises creating concerns about future public access, recreation, and habit protection; and (4) the Project height exceeds the maximum allowed height for development on the site, as set forth in the LCP.

The FEIR failed to adequately analyze traffic impacts: (1) the City failed to conduct traffic studies on the effect of traffic at certain impacted intersections; (2) the FEIR’s traffic study conflictingly states that adjacent roads and intersections would nearly always provide an “A” or “B” level of service, but the City’s own general plan states otherwise; and (3) the FEIR gives no indication that it considered the impact of the City’s narrowing of East Ocean Boulevard to one lane in each direction.

The FEIR’s alternative analysis is skewed as reasonable alternatives were rejected without valid reasons. Certain sites were rejected even though they are available for recreational uses.

The Petition’s second cause of action alleges that the City violated the Coastal Act: (1) the City violated Public Resources Code section 30001.5(d) by approving the Project, which is a non-coastal dependent use; (2) the City violated Chapter 3 of the Coastal Act by siting the Project in hazardous areas subject to sea level rise and shoreline erosion when feasible alternatives are available; (3) the City violated sections 30235 and 30251 because the Project’s foundation creates a seawall; and (4) the City violated the Coastal Act by violating the City’s LCP for over-height structures.

2. Course of Proceedings

On July 5, 2018, the court denied the Petition’s first cause of action and stayed the second cause of action pending the Commission’s action on the City’s application for a CDP. On March 16, 2021, the court lifted the stay for the City to file a motion to dismiss.

B. Applicable Law

While there is no statutory basis for a motion to dismiss, such motions serve the same function as a general demurrer and may be filed at any time where the question is whether a complaint states a cause of action. Barragan v. Banco BCH, (1986) 188 Cal.App.3d 283, 299.

CCP section 1094 authorizes the District to bring a noticed motion for a judgment denying a writ petition. Specifically, section 1094 provides that if a “petition for a writ of mandate ... presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ.” “[T]he motion for judgment provided by CCP section 1094 is the proper, and exclusive, procedural means for seeking a streamlined review of an agency’s decision.” Dunn v. County of Santa Barbara, (2006) 135 Cal.App.4th 1281, 1293.

Motions to dismiss are permitted in the CEQA context. See Torrey Hills Community Coalition v. City of San Diego, (2010) 186 Cal.App.4th 429, 439 (upholding an order granting a motion to dismiss an entire CEQA petition); Friends of Riverside’s Hills v. City of Riverside, (2008) 168 Cal.App.4th 743, 746 (upholding an order granting a motion to dismiss a petition in a CEQA action).

C. Statement of Facts

1. The City’s Evidence

On May 17, 2017, the City Council approved the Project to replace the former Belmont Plaza Olympic Pool. Koontz Decl., ¶2. The original Project approvals included a height variance and a CUP, which was necessary for the cafe included in the original Project to serve alcohol. Id.

Subsequent to the approval of the original Project, City planning staff continued to engage with Commission staff regarding the CDP necessary for the Project. Koontz Decl., ¶3. When the City has large or complex projects that require Commission review, it is common for such projects to be revised during the Commission process. Id. In coordination with staff at the Commission and to reduce cost, the City ultimately modified the Project, significantly scaling back its scope and size and pulling it farther inland. Id.

On January 21, 2020, the City Council conducted a public hearing to consider the modified Project. Koontz Decl., ¶4, Exs. A, B. On that date and on February 4, 2020, the City Council approved the following six entitlements for the modified Project: general plan amendment, zoning code amendment, zone change, LCP amendment, modification to site plan review, and local CDP. Id. The City Council also approved an addendum to the FEIR for the original Project. Id. The modified Project no longer requires a CUP since there no longer will be a cafe serving alcohol. Koontz Decl., ¶5, Ex. C. Nor does it require a variance, as the revised zoning will accommodate the height of the modified Project. Id.

In keeping with its standard practice, the City took no formal action to rescind the prior approvals, which were superseded by the 2020 entitlement package and are no longer valid. Id. Even if they had not been superseded, the variance and CUP would have expired pursuant to City Code section 21.21.406 because they were not utilized within three years of approval and the City took no action to extend them. Id.

In order to remove any doubt about the status of the prior entitlements, City planning staff has placed a memo in the Project file explaining that the 2017 entitlements are considered “null and void,” both because they have expired pursuant to the City Code and because they were superseded by the entitlements for the modified Project. Koontz Decl., ¶6, Ex. D.

On February 11, 2021, the Commission considered and approved the Project with some additional conditions. Koontz Decl., ¶7, Ex. E. The physical configuration of the Project approved by the Commission is identical to the modified Project approved by the City Council in 2020. Id.

In order to proceed with the modified Project, the City Council will need to accept the additional conditions imposed by the Commission. Koontz Decl., ¶8. No date for the City Council’s consideration of such conditions has yet been set, although it is likely to occur in the next few months. Id. Since the Project requires Commission approval, however, a declination to accept the additional conditions would mean abandoning the Project. Id.

2. CARP’s Evidence

In 2018, following the hearing of this matter, the City submitted an application to the Commission for an original CDP (CDP application No. 5-18-0788). Carstens Decl., ¶4. The Commission deemed the City’s application incomplete on September 7, 2018, identifying many issues such as sea level rise, alternatives, biological resources, and visual analysis. Id.

On November 19, 2019, the City proposed to modify the Project, changing its scope, size, and location. Carstens Decl., ¶5. The changes would result in the complete loss of the current park on the Project site, including all the mature nesting trees and the recently built disabled accessible sidewalks; the temporary pool located on the Project site in the parking lot would become permanent. Id. The City did not revise or recirculate a new EIR for the modified Project. Id.

The City submitted the revised Project to the Commission for purposes of seeking an original CDP. Carstens Decl., ¶6. On December 6, 2019, the Commission again deemed the City’s CDP application incomplete. Id.

The Planning Commission considered the Project revisions on December 19, 2019 and the City Council considered them on or about January 21, 2020. Carstens Decl., ¶7. The City did not set aside or revoke its previous approvals of a height variance or CUP for the Project, which are within the City’s sole jurisdiction. Id.

On January 21, 2020, the City submitted a response to the Commission’s December 6, 2019 notice of its incomplete application. Carstens Decl., ¶8. Following the City’s response, on or about February 20, 2020 the Commission sent another notice of incomplete application. Carstens Decl., ¶9.

The City subsequently submitted additional information to the Commission. Carstens Decl., ¶10. On May 13, 2020, the Commission sent the City a status letter stating the City’s application was filed and a public hearing was tentatively scheduled for September 9-11, 2020 in San Luis Obispo. No such hearing was held. Id.

The Commission held a hearing on the appeals of the 2017 and 2020 CDPs and the LCP amendment on February 11, 2021. Carstens Decl., ¶11. The Commission’s combined staff report and presentations for the items recommended denial of the Project CDP and LCP amendment due to inconsistencies with the Coastal Act due to: (1) its location in the wave runup zone, requiring protection; and (2) a height taller than the 25 feet permitted by the approved LCP. Id.

After hearing, the Commission voted unanimously to reject the LCP amendment as submitted. Carstens Decl., ¶12. The Commission ultimately voted to certify the LUP and LIP portions of the LCP amendment upon City approval of all staff-recommended modifications. Id. Commission Staff described the modifications as “necessary to narrow the scope of the LCP amendment to the City’s intended changes to the LCP, clarify regulations for the new proposed subarea (the project site), and protect coastal resources including public access, lower cost recreational opportunities, scenic views, and biological resources.” Id.

The Commission found CARP’s appeals raised a substantial issue about whether the City’s approvals conformed with the certified LCP and the Coastal Act because both the 2017 and 2020 CDPs were inconsistent with the LCP’s 25-foot height limit. Carstens Decl., ¶13. This enabled de novo review of the Project CDP by the Commission. Id.

After public comment, and at the conclusion of the hearing, the Commission voted to deny the CDP as submitted. Carstens Decl., ¶14. The Commission voted to approve the CDP if modified by 18 special conditions aimed at expanding public access and recreational opportunities at the site, adapting to rising sea levels, and minimizing impacts to biological, archaeological, scenic resources that would otherwise violate the Coastal Act. Id. These Special Conditions addressed issues raised in CARP’s litigation, including LCP consistency (Special Condition 1), Public Access (Special Condition 3), impacts to biological resources such as birds and trees birds (Special Conditions 4 and 5, sea level rise and safety (Special Condition 6, 10, 13, 15), and conformity with Coastal Act policies prohibiting sea walls (Special Conditions 13 and 15. Carstens Decl., ¶15.

The Commission modified Special Condition 3, which requires the City to prepare a final Public Access Program. Carstens Decl., ¶16. As described by staff at the hearing, the Special Condition 3 would require “starting from the ground up,” beginning with the City conducting a culturally appropriate survey of community needs, desires, and barriers to access, which will inform Program development. Id. Once developed, the Program would need to be heard in a public meeting and approved by the Commission before the CDP would be granted. Id.

The Commission has not yet finalized Special Condition 3 or issued final findings in support of granting the CDP as modified. Carstens Decl., ¶17. The Coastal Commission often issues its final findings months after the meeting at which it acts on a CDP. Id.

The City has not yet adopted the modifications to the LCP required by the Commission. Carstens Decl., ¶18. Thus, it is not yet known if the LCP governing the Project site conforms with the Coastal Act, or if the Project will conform to the governing LCP. Id. The City has not yet approved the CDP for the Project, as modified by the 18 Special Conditions contained in the Staff Report and the Commission’s revisions to Special Condition 3 on February 11, 2021. Carstens Decl., ¶19. It is unknown whether the City will accept these conditions. Id.

The City has not yet conducted the surveys or prepared the Public Access Program required by Special Condition 3 to the CDP. Carstens Decl., ¶20. Nor has the Public Access Program been heard by the full Commission and approved, as required by the Commission’s February 11, 2021 modifications to Special Condition 3. Id.

D. Analysis

The City moves to dismiss as moot the Petition’s remaining cause of action alleging violation of the Coastal Act.

“Although a case may originally present an existing controversy, if before decision it has, through the acts of the parties or other cause, occurring after commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court.” Wilson v. Los Angeles County Civil Service Com., (1952) 112 Cal.App.2d 450, 453.

The City notes that the Petition challenges the original Project, not the modified Project approved by the City on January 21, 2020. Mot. at 4. The challenge is moot because the entitlements for the original Project – a CUP and variance – were superseded by the entitlement package for the modified Project, the City has placed a memo to that effect in the Project file, and they have expired as not used within three years as required by LBMC section 21.21.406(a). Koontz Decl., ¶¶ 5-6, Ex. C, p. 15; Ex. D. As such, the entitlements for the original Project are null and void and have no continuing effect. Mot. at 4; Reply at 3.

CARP argues that the matter is not moot where the City has not set aside all relevant approvals. CARP acknowledges Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, (2011) 198 Cal.App.4^th 939, 941, in which held that a CEQA appeal was moot where the developer abandoned the project and the lead agency rescinded resolutions, entitlements, and certification of the EIR. Opp. at 8. CARP relies on Banning Ranch Conservancy v. City of Newport Beach, (“Banning Ranch”) (2012) 211 Cal.App.4th 1209 and Golden Door Properties, LLC v. Superior Court of San Diego County, (“Golden Door”) (2020) 52 Cal.App.5th 837, to assert that a case is not moot where the City has not rescinded its Project approvals. Opp. at 9-10.

In Golden Door, the court found a CEQA action was not moot because the county had not rescinded all project approvals, leaving a tentative tract map and certain other entitlements in place, and the developer intended to rely on the EIR to amend the project application and proceed. 52 Cal.App.5^th at 862-63.

In Banning Ranch, the court noted that a CEQA challenge to a park project was not mooted by the city’s apparent decision to abandon a challenged access road in its CDP application to the Commission because the Commission had not issued its final permit, findings, and conditions, the city had not rescinded the challenged EIR, and the appeal challenged the EIR in ways unrelated to the access road. 211 Cal.App.th at 1225, n.6.

In this case, the original Project entitlements have no continuing validity, either because they were superseded by the City’s approval of the modified Project or because they have terminated pursuant to the LBMC. The City states that its only choices are to proceed with the modified Project approved by the Commission or abandon it. Koontz Decl., ¶8; Mot. at 5. CARP does not rebut this contention. As a result, the entitlements for the original Project are no longer in effect and the mootness rule of Yucaipa applies. As a result, the City correctly notes that Banning Ranch and Golden Door are inapposite because the entitlements and/or EIR had some continuing validity. Reply at 4.

CARP notes that the Commission has not yet issued its final permit, findings, and conditions for the modified Project, the City has not yet accepted the Commission’s approval conditions, and it has not yet implemented Special Condition 3. Opp. at 9. These facts are irrelevant because the mootness issue concerns the original Project, not the modified Project. CARP and others can challenge the modified Project if they wish. But CARP’s challenge to the original Project is moot.

CARP also argues that the City has not rescinded its approval of the FEIR – which is exactly what occurred in Banning Ranch -- and the Commission’s decision shows that the City did not adequately address land use consistency with the Coastal Act in the FEIR. Thus, the court should issue a writ ordering the City to set aside Project approvals and setting aside the FEIR as violating land use consistency requirements. Opp. at 9-10.

As the City argues, CARP is improperly seeking to relitigate the first cause of action concerning the sufficiency of the FEIR under CEQA, which is the distinction between this case and Banning Ranch. While both the developer in Banning Ranch and the City in this case want to be able to rely on their respective EIRs, the court already addressed the adequacy of the FIER in its previous decision, expressly noting that the Commission could have a different view because there were different standards applied. Reply at 5-6 (citing court’s ruling on first cause of action). CARP cannot relitigate the first cause of action.

Finally, CARP argues that the court has an inherent power to retain a moot case where (1) the case represents an issue of broad public interest which is likely to reoccur, (2) the parties’ controversy may reoccur, and (3) a material question remains for the court’s determination. Golden Door, supra, 52 Cal.App.5^th at 864. CARP argues that the case meets the first category because rise issues are likely to affect coastal site developments in the future due to climate change, the second category because the parties’ dispute is likely to arise in the future concerning Special Condition 3, and the third category because the court’s decision on the first cause of action was not informed by the Commission’s decision. Opp. at 11-12. None of these discretionary reasons to hear a moot case apply. The court has resolved the CEQA claim for the Project and any issues concerning the City’s compliance with the Coastal Act will be resolved through the Commission process and subsequent judicial review.

E. Conclusion

The motion to dismiss is granted. Because it prevailed on the first cause of action, the City is awarded its costs. The City’s counsel is ordered to prepare a proposed judgment of dismissal, serve it on Petitioner’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for June 24, 2021 at 9:30 a.m.