Concerned Citizens of Beverly Hills v. City of Beverly Hills

• Decision Date: 14 January 2021
• Docket Number: B297931
• Court: California Court of Appeals Court of Appeals
• Parties: CONCERNED CITIZENS OF BEVERLY HILLS/BEL AIR, Plaintiff and Appellant, v. CITY OF BEVERLY HILLS, Defendant and Respondent, LOMA LINDA TRUST, Real Party in Interest and Respondent.

CONCERNED CITIZENS OF BEVERLY HILLS/BEL AIR, Plaintiff and Appellant, v. CITY OF BEVERLY HILLS, Defendant and Respondent,LOMA LINDA TRUST, Real Party in Interest and Respondent.

B297931

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

January 14, 2021

ORDER MODIFYING OPINION AND DENYING REHEARING[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed on January 14, 2021, be modified as follows:

1. On page 3, line 10 of the first full paragraph, the word "designated" is inserted between the words "to" and "environmental" so the sentence reads:

The second of these exceptions focuses on a project's surroundings, that is, whether the project poses special risks to the environment because of its location or its relationship to designated environmental resources, such as natural phenomena like wildlife.

2. On page 4, line 4 of the first full paragraph, insert "s" at the end of the word "circumstance" so the sentence reads:

As set forth in our Discussion, we conclude that under Berkeley Hillside, the substantial evidence standard of review dictates our review of whether the City erred in finding that the unusual circumstances and location exceptions did not apply to the Project and reject Citizens's contention that our review is less deferential under a "fair argument" standard of review.

3. On page 11, lines 4 to 6 of the first full paragraph, the sentence beginning with "Next" and ending with "(Italics added.)" is deleted.

4. On page 11, the second sentence of the last paragraph, beginning with "The MRCA" and ending with "sensitive area" is modified to read as follows:

The MRCA asserted that the same environmental concerns the City noted in its 2013 MND regarding the 2013 Project are true as to the current proposed Project, that is the Properties are located "fewer than 150 feet of [sic] the publicly-owned Franklin Canyon Park." "This park is part of Habitat Block No. 74," an area designated by the MRCA as an environmentally sensitive area.

5. On page 12, second sentence of the last paragraph, beginning with "Specifically" and ending with "developed" is modified to read as follows:

As explained by City Planner Gohlich, there were no "unusual circumstance[s] regarding biological resources that would apply here, especially because these properties were previously developed.

6. On page 13, first sentence of the second full paragraph is modified to read as follows:

As to the location exception challenge, Gohlich observed "this particular property is not within [Habitat Block No. 74]."

7. On page 14, third paragraph of subsection F, the first sentence is modified to read as follows:

The trial court also rejected Citizens's arguments that, because of the Project's proximity to Habitat Block No. 74, a habitat zone designated by the MRCA, it qualified for an exception to the Class 3 exemption.

8. On page 17, line 1, quotation marks are added around the word "project" so the line reads:

building two Residences on the Properties would be a "project"

9. On page 22, line 2 of the last paragraph, the word "explicitly" is deleted so the sentence reads:

Citizens's argument that we should apply the fair argument standard of review fails because the City found there were no unusual circumstances involving the Project, and as discussed below, that finding is supported by substantial evidence.

10. Footnote 9, commencing at the bottom of page 22 and ending at the bottom of page 23, is deleted and the following is inserted in its place:

⁹ We would have had to proceed to the second level of Berkeley Hillside review if city planner Gohlich had not expressly found there were no unusual circumstances involving the Project. (See Respect Life, supra, 15 Cal.App.5th at p. 458.) Because the City only heard testimony from Gohlich on CEQA compliance, the record is unequivocal that the City rejected Citizens's unusual circumstances challenge at the first level: Gohlich found there were no unusual circumstances involving the Project (first level), and the city engineer thereafter recommended approval of the Project as "categorically exempt [under CEQA]," "as [Gohlich] explained." Other Courts of Appeal have likewise attributed the findings of an agency's CEQA compliance expert to the agency itself while performing Berkeley Hillside review where only a single CEQA compliance expert testified, the expert's testimony unequivocally revealed at which level the lead agency was rejecting the project opponent's unusual circumstances challenge. (See, e.g., Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, 1043, 1053.) To the extent Citizens argues the absence of express, detailed findings made by the lead agency itself when it votes to approve a project automatically triggers the fair argument standard of review—even where the record is unequivocal as to at which level the agency is rejecting an unusual circumstances challenge—Citizens provides no supporting legal authority, and we deem such an argument waived. (See In re A.C. (2017) 13 Cal.App.5th 661, 672.)

11. On page 25, line 1 of the first full paragraph, an "'s" is added at the end of the word "Citizens" so the sentence reads:

Second, Citizens's contention that "new fencing" could "sever[ ]" the nearby "habitat linkage system" similarly fails.

12. The paragraph commencing at the bottom of page 27 and ending at the top of page 28, is modified to read as follows:

Here, Citizens is correct that Habitat Block No. 74 is indeed a "location" "designated" as an "environmental resource of hazardous or critical concern" by any federal, state or local agency. (Guidelines, § 15300.2, subd. (a).) Unlike in Salmon Protection, the Properties are not located in that designated environmental resource. Instead, they are outside Habitat Block No. 74 (and, a fortiori, outside Franklin Canyon Park), and are separated from that zone by at least one other residential property.

13. On page 28, the first full paragraph, beginning with "Citizens also" and ending with "surrounding area" is deleted.

14. On page 30, lines 1 to 3, the sentence beginning with "Citizens cites" is modified to read as follows:

Citizens cites to a map that the City prepared indicating that the Properties lie within a "Fire Hazard Severity Zone."

15. On page 30, line 3 of the second full paragraph, the word "in" is changed to "within" so the sentence reads:

In Watershed Coalition, the First District recently rejected a "location exception" argument predicated on a project's location within earthquake and landslide zones.

There is no change in the judgment. Appellant's petition for rehearing is denied.

/s/_________

SINANIAN, J.^*

/s/_________

ROTHSCHILD, P. J.

/s/_________

BENDIX, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BS171828)

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard L. Fruin, Judge. Affirmed.

Channel Law Group, Jamie T. Hall and Julian K. Quattlebaum, III for Plaintiff and Appellant.

Laurence S. Wiener, City Attorney for Beverly Hills; Richards, Watson & Gershon, Ginetta L. Giovinco and Stephen D. Lee for Defendant and Respondent.

Allen Matkins Leck Gamble Mallory & Natsis and Patrick A. Perry for Real Party in Interest and Respondent.

____________________

INTRODUCTION

Before us is the review of a finding by respondent City of Beverly Hills (City) that the construction of two single-family homes (the Project) located on two adjacent parcels of land on Loma Linda Drive (the Properties) is exempt from filing environmental review documents otherwise required by the California Environmental Quality Act (CEQA; Pub. Resources Code,¹ § 21000 et seq.). The owner of these properties is respondent real party in interest Loma Linda Trust (Real Party).

As detailed below, the City found that two exemptions from having to prepare an environmental impact report (EIR) or negative declaration² applied to the Project: the Class 2 and Class 3 exemptions. The Class 2 exemption exempts projects that replace or reconstruct existing structures (Cal. Code Regs., tit. 14, § 15302, Guidelines for Implementation of CEQA (Guidelines)) (Class 2 exemption), and the Class 3 exemptionexempts small construction projects, including the construction of one to three single-family homes (Guidelines, § 15303) (Class 3 exemption). The City approved the Project based on both exemptions. Because we conclude that substantial evidence supports the City's findings that the Project qualifies for the Class 3 exemption, we do not address the City's findings regarding the Class 2 exemption.

The Class 3 exemption is subject to certain exclusions known as "exceptions." Two such exceptions are potentially applicable here. Very simply summarized, the first of these exceptions focuses on whether the project itself is "unusual," in the sense that it has some feature distinguishing it from others in the exempt class, and that this unusual feature poses a risk to the environment. The second of these exceptions focuses on a project's surroundings, that is, whether the project poses special risks to the environment because of its location or its relationship to environmental resources, such as natural phenomena like wildlife. We refer to these exceptions in the body of our opinion as the "unusual circumstances" and "location" exceptions.

Appellant Concerned Citizens of Beverly Hills/Bel Air (Citizens) directs its challenges on appeal primarily to the City's findings that these exceptions do not apply to the Project. Citizens also asserts that the City defined the proposed Project improperly so as to avoid further CEQA review.

Stating the issue before us is the simple part. Elucidating our...