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Case No. G045732
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
HUNTINGTON BEACH NEIGHBORS (H.B. NEIGHBORS),
Petitioner and Appellant,
v.
THE CITY OF HUNTINGTON BEACH; HUNTINGTON BEACH CITY COUNCIL,
Respondents and Appellees.
,Appeal From The Orange County Superior Court Honorable Nancy Wieben Stock
COURT OF APPEAL-4TH DIST DIV 3
FILED
FEB 2 7 2012
Deputy Clerk ____ ~
Orange County Superior Court, 30-2009-00325686
APPELLANTS' OPENING BRIEF
GERAL YN L. SKAPIK, ESQ. MARK C. ALLEN III, ESQ.
SKAPIK LAW GROUP 250 W. First Street, Suite 330
Claremont, CA 91711 Tel: (909) 398-4404; Fax: (909) 398-1883
gskapik@skapiklaw .com mark@mcallen3 .com
Attorneys for Petitioner and Appellant HUNTINGTON BEACH NEIGHBORS
(H.B. NEIGHBORS)
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TO BE FILED IN THE COURT OF APPEAL APP-008
FOURTH APPELLATE DISTRICT, DIVISION THREE Court of Appeal Case Number:
COURT OF APPEAL, 0045732
n ATIORNEY OR PARTY WITHOUT ATIORNEY (Name, State Bar number, and address): Superior Court Case Number. Geralyn L. Skapik (SBN 145055)
30-2009-00325686 - SKAPIK LAW GROUP 250 W. First Street, Suite 330 FOR COURT USE ONLY
Claremont, CA 91711 TELEPHONE NO.: (909) 398-4404 FAX NO. (Optional): (909) 398-}883
E-MAIL ADDRESS (Optional): gskapik@skapiklaW.COill AnoRNEY FOR (NameJ: Petitioner/ Appellant, Huntington Beach Neighbors
APPELLANT/PETITIONER: HUNTINGTON BEACH NEIGHBORS
RESPONDENT/REAL PARTY IN INTEREST: CITY OF HUNTINGTON BEACH,
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one): [l] INITIAL CERTIFICATE 0 SUPPLEMENTAL CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed.
·1. This form is being submitted on behalf of the following party (name): Huntington Beach Neighbors
2. a. [l] There are no interested entities or persons that must be listed in this certificate under rule 8.208.
0 b. 0 Interested entities or persons required to be listed under rule 8.208 are as follows:
(1)
(2)
(3)
(4)
Full name of interested entity or person
Nature of interest (Explain):
() (5)
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D Continued on attachment 2.
The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).
Date: February 27, 2012
Geralyn L. Skapik, Esq. ~ '····· (TYPE OR PRINT NAME)
Fonn Approved for Optional Use Judicial Council of California
APP-008 [Rev. January 1, 2009] CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Page 1 of 1
Cal. Rules of Court, rules 8.208, 8.488 www.courtinfo.ca.gov
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STATEMENT OF APPEALABILITY
HB Neighbors ("Petitioners") appeal from the judgment and order
entered in this case on July 5, 2011. (CT 2:387)1 The judgment, which
disposes of all issues between the parties, is appealable under Code of Civil
Procedures, Section 904.1, subdivision (a)(l).
This appeal addresses the Environmental Impact Report ("EIR") for
the Specific Plan for the Downtown area (Downtown Specific Plan (DTSP)
Update or "Project") of the City of Huntington Beach. The new Specific
Plan, designed to update the existing Specific Plan, would allow much more
intense development of the beachside downtown area. A local citizens
group, Petitioner/Appellant Huntington Beach Neighbors (hereinafter
"Petitioners ·or Appellant"), challenged the Environmental Impact Report
that was used to justify the new Specific Plan. Appellants, and many others,
challenged the EIR on numerous bases, which are addressed more fully
below.
The gist of all the objections was that the EIR drastically understated
or ignored significant impacts, such as, traffic and parking, noise, cumulative
project impacts, and cultural impacts. Further, the certified EIR relied upon
and referenced documents that were never made available to the decision
maker or the public. In fact, these documents were never made available
until Respondents introduced them in the trial court proceedings, during the
hearing on the merits. After certifying the EIR, the City of Huntington Beach
("City" or "Respondent") adopted a Specific Plan with major changes that
were never discussed in the EIR and never subject to any public discussion,
review and analysis.
The City admits that the EIR understated traffic impacts and further
admits that the City Council adopted a Specific Plan that was different from
1 For purposes of this brief, references to Clerks Transcript will be "CT" followed by the Volume Number, colon, then by the Page Number ( CT _:_).
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any alternative discussed in the EIR. The City argued below that these
decisions were within the discretion of the agency. The trial court agreed
and this appeal followed.
QUESTIONS PRESENTED
1. May a Program EIR, refuse to consider identifiable and
quantifiable impacts of the proposed Project?
2. Where there is a major area of controversy regarding a
Proposed Project's impacts on traffic and parking, and noise, is it within the
City Council's discretion to certify an EIR that intentionally understates
these impacts and fails to analyze or address these impacts during the hours
of operation for the Proposed Project?
3. Where the analysis of an EIR is admittedly inadequate, may the
public agency "fix" the deficiency by providing the trial court judge, at the
trial court hearing on the merits, with documents that were not included in
the administrative record, not included in the EIR, were not made available
to the public and were never considered by the public or decision makers?
4. ·Where a public agency has adopted and certified an EIR, may
the agency adopt a project significantly different from any considered in the
EIR without further environmental review or opportunity for public
comment?
5. In order to exhaust its administrative remedies, were
Appellants required to orally restate comments previously raised in comment
letters by Appellants, the general public or by state officials at the public
hearing for the EIR?
6. Is the trial court's Written Statement of Decision deficient?
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TABLE OF CONTENTS
APPELLANTS' OPENING BRIEF
I.
II.
III.
IV.
v. VI.
Page(s)
STATEMENT OF FACTS ....................................................................... 1
A. PROJECT BACKGROUND ............................................................ 1
PROJECT SETTING ............................................................................... 2
CITY APPROVAL HISTORY ................................................................ 2
PROCEDURAL HISTORY ..................................................................... 3
STANDARD OF REVIEW ...................................................................... 3
QUESTIONS PRESENTED .................................................................... 7
QUESTION 1 .......................................................................................... 7
A. PROGRAM EIR .............................................................................. 7
QUESTION 2 .......................................................................................... 9
A. TRAFFIC ......................................................................................... 9
1.
2.
(a)
Weekday Traffic ................................................................... 9
Weekend Traffic ................................................................. 13
The EIR drafter acknowledges that peak pedestrian and
vehicular demand periods are summer weekends and
special events. [AR 8:405; AR 15:1722](CT 2:286) ..... 13
B. PARKING ...................................................................................... 16
1. Downtown Parking Master Plan ......................................... 17
2. The Kimley-Horn Parking Master Plan .............................. 19
3. In-Lieu Parking ................................................................... 20
(a) Current inventory, and the future in-lieu
Parking Program ............................................................ 20
C. NOISE ....................................................................................... 23
1
QUESTION 3. .. ..................................................................................... 25
C' A. SOLID WASTE ANALYSIS ........................................................ 25
1. ADMINISTRATIVE RECORD ......................................... 25
QUESTION 4. . ...................................................................................... 30
A. BUILDING HEIGHT AND BUILDING FOOTPRINT/
LOT SIZE ........................................................................... 30
QUESTION 5 ........................................................................................ 33
A. EXHAUSTION OF ADMINISTRATIVE REMEDIES .. ; ............ 33
1. Cumulative Effects .............................................................. 3 3
(a) Trial Court Ruling ............................................................... 33
(b) Cumulative Project Impacts ................................................ 3 6
c~ (c) Cumulative Traffic Section ................................................. 3 7
(d) Cultural/Performing Arts Center ("Performing Arts
Center") ......................................................................... 40
(! (e) Public Service ..................................................................... 41
QUESTION 6. . ...................................................................................... 42
A. FURTHER RULINGS REQUESTED ........................................... 42
1. Water Supply ...................................................................... 43
2. Hazards and Hazardous Waste ........................................... .43
3. Air Quality and Global Warming ...................................... .44
4. Incomplete Analysis of the No-Project Alternative ............ 44
5. Unreasonable Range and Description of Alternatives ........ 44
6. Cultural Resources .............................................................. 44
VII. CONCLUSION ...................................................................................... 4 7
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TABLE OF AUTHORITIES
Page(s) CALIFORNIA CASES
Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383 ................................................................................. 6
Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 ..................................................................... 5, 28, 39
Citizens ofGoleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 ("Goleta If') ...................................................................... 31
Communities for a Better Environment v. City of Richmond (20 1 0) 184 Cal.App.4th 70 ("Communities") ........................................................ 6
Corona-Norco Unified School Dist. v. City of Corona (1993) 17 Cal.App.4th 985 ("Corona-Norco") .................................................... 31
Dry Creek Citizens Coalition v. County ofTulare (1999) 70 Cal.App.4th 20 ....................................................................................... 5
Federation of Hillside and Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180 ............................................................................... 31
Koster v. County of San Joaquin (1996) 47 Cal.App.4 29, 38 .................................................................................... 8
Laurel Heights Improvement Association of San Francisco v. Regents of the Universities of California ( 1988) 47 Cal.3d 376 ("Laurel Heights!'') ........................................... .4, 7, 13, 40
Marriage of Sellers (2003) 110 CA4th 1007, 1010 .............................................................................. 43
Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 ................................................................................. 5
Reid v. Moskovitz (1989) 208 CA3d 29, 32 ....................................................................................... 43
Riverwatch v. Olivehain Municipal Water District (2009) 170 Cal.App.4th 1186 ................................................................................. 6
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Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715 ............................................................................ .-...... 4
Slavin v. Borinstein (1994) 25 CA4th 713, 718-719 ............................................................................ 43
Social Service Union, Local 535, SEIU, AFL-CIO v. County of Monterey (1989) 208 CA3d 676, 681.. ...................................................................... 43
Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.App.4th 412 ................................... :' ............................................. 5, 6
CALIFORNIA STATUTES
Cal.CodeRegs., Title 14, § 15152, subd. (b) ................................................... 7
OTHER STATUTES
Gov. Code,§§ 65300 ...................................................................................... 31
Pub. Res. Code§§ 21000-21177 .................................................... 3, 15, 27, 33
Pub. Res. Code§ 21002(a) ............................................................................. 25
Pub. Res. Code§ 21002.1 ........................................................................... 7, 25
Pub. Res. Code§ 21002.1(a) ............................................................................ 6
Pub. Resources Code § 21060 ........................................................................ 29
Pub. Res. Code§§ 21061, 21100(a) ................................................................ .4
Pub. Res. Code, § 21093, subd. (a) ................................................................... 8
Pub. Res.Code § 21066 ............................................................................. 34, 35
Pub. Res. Code § 211 OO(b )(1) ........................................................................ 15
Pub. Res. Code§ 21168.5 ................................................................................. 6
Pub. Res. Code§ 21177(a) ............................................................................. 33
IV
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OTHER AUTHORITIES
CEQA Guidelines§ 15003(a) ........................................................................... 4
CEQA Guidelines § 15064.5(a)(2) .......................................................... .45, 46
CEQA Guidelines § 15064.5(a)(3) .......................................................... .45, 46
CEQA Guidelines§ 15126.6 ......................................................................... .44
CEQA Guideline§ 15150 ............................................................................... 29
CEQA Guidelines§ 15152 .............................................................................. 41
CEQA Guidelines§ 15152(b) ....................................................................... .41
CEQA Guidelines § 15152, subd. (c) ............................................................... 8
CEQA Guidelines§ 15168, subd. (a) ............................................................... 7
CEQA Guidelines§ 15355 ............................................... ~ ............................ 37
CEQA Guidelines§ 15358 (a)(1) ....................................................... 10, 11, 12
CEQA Guidelines§ 15358 (b) .......................... ; ...................................... 10, 11
CEQA Guidelines § 15385 ............................................................................... 8
CEQA Guidelines§ 15385, subd. (b) ............................................................... 8
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APPELLANTS' OPENING BRIEF
I. STATEMENT OF FACTS
A. PROJECT BACKGROUND
The Project site, Downtown Specific Plan area, consists of
approximately 336 acres in the traditional historic heart of the City. [AR
8: 152f (CT 1:135) The Downtown Specific Plan area ("Project Area")
extends from the intersection of Goldenwest Street with Pacific Coast
Highway and curves around the coastline, including the Huntington Beach
Pier, down to Beach Boulevard. [AR l:l](CT 1:135) The City has an area
of 28.5 miles, including 8.5 miles of coastline and is the home to
approximately 200,000 residents. [AR 8:152](CT1:135) Huntington Beach
has a variety of residential, commercial and recreational uses surrounding an
older Downtown core with a Municipal Pier at a focal point.
The Project area is being developed with a range of uses including
large scale visitors-serving commercial uses, hotels, offices, mixed-use and
neighborhood-serving commercial uses, and residential, as well as streets,
beach and pier. [AR 8:152](CT 1:13"5) The Downtown Specific Plan
boundaries have not changed since its initial adoption in 1983. Within the
existing DTSP are 11 districts, each with separate development standards
and permitted uses. [AR 8:157](CT 1 :135)
The Project will result in the potential for development of approx.
1,330,483 sq. ft. of additional retail, restaurant, office and visitor-serving
uses, as well as new residential development. [AR 24:4143](CT 1: 133) This
net new development does not include the development of the permitted
Pacific City Project, a 958,700 sq. ft. project. The construction of the DTSP
Update and Pacific City will increase the size of permitted development in
2 For purposes of this brief, references to the Administrative Record begins with "AR," followed by Tab Index Number, colon, and page number [" AR _: _"].
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the Downtown area by almost 3.75 times or 375%. [AR 24:4143](CT 1 :133)
This equates to a total of3,128,683 sq. ft. of net development in the
Downtown area. [AR 24:4143](CT 1:133) As noted below, implementation
of this Project will have numerous and substantial impacts on the
environment.
II. PROJECT SETTING
Downtown Huntington Beach experiences different issues depending
on the time of year. Peak season for Downtown is Memorial Day weekend
through Labor Day weekend, during which the City sees the highest volume
of visitors from tourists and residents. Weekends during the non-peak
season may also experience increased patronage. Weekdays during the non
peak season show only moderate visitor volumes. [AR 8:158](CT 1:135)
Development within the DTSP areas are currently subject to several
City documents: the Downtown Specific Plan, the Huntington Beach Zoning
and Subdivision Ordinance, and the Huntington Beach Design Guidelines .
. The current DTSP also includes a Downtown Parking Master Plan. The
DTSP Update proposes to eliminate the Downtown Parking Master Plan
from the DTSP and incorporate revised standard into a new section of the
DTSP U:pdate. [AR 8:160](CT 1:136) The City approved elimination ofthe
Downtown Parking Master Plan because implementation of the DTSP
Update would grossly violate the Parking Master Plan. [AR 8:159](CT
1:136) Most ofthe changes to development standards in the proposed DTSP
Update are a result ofreconfiguration of 11 districts in the DTSP to 7
districts.
III. CITY APPROVAL HISTORY
On or about October 6, 2009, the Planning Commission certified the
EIR. On October 12,2009, the Planning Commission approved the CEQA
Findings of Facts in a Statement of Overriding Consideration. The decisions
were appealed to the City Council. [AR 25:4257-4259](CT 1:137)
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On November 2, 2009, Council denied the appeal of the Planning
Commission's decision. On November 6, 2009, the City filed a Notice of
Determination with the County Clerk. [AR 1:2](CT 1: 137) On November
16, 2009, the City Council voted to reconsider the Project. On January 19,
2010, the City Council reapproved the entitlements approved on November
2, 2009 with revisions. (CT 1:137)
IV. PROCEDURAL HISTORY
The Appellants timely filed their Petition and Complaint
("Complaint") on February 10, 2010. After extensive briefing, trial was held
on March 17, 2011 before Judge Wieben Stock. A Statement of Decision
was requested at the close of the trial. (CT1:242) At trial, the City sought to
"supplement" the Administrate Record to add other documents. The trial
court took all matters under submission. On May 5, 2011, the trial court
granted the City's request to supplement the administrative record and
denied Petitioners' writ of mandate (relying heavily on the City's late
submittal of documents). That same day, May 5, the trial court issued an
"Order on Petition for Writ of Mandate/Tentative Statement of Decision"
("Tentative SOD") citing CRC Sec. 3.1590(a)(c)(l). (CT 1:244)
Petitioners' filed objection to the Tentative SOD raising numerous
objections and pointing out deficiencies in SOD. (CT 2:259) These
objections include all the objections raised in this appeal. The trial court
never ruled on the Petitioners' objections, but ultimately adopted the
Tentative SOD as the final Statement of Decision ("SOD") without change
by Minute Order on June 27, 2011. (CT 2:370) After Entry of Judgment,
this appeal followed.
V. STANDARD OF REVIEW
In 1970, the California Environmental Quality Act (Pub. Res. Code
§§21000-21177, referred to as CEQA) was adopted. CEQA is one of
California's most comprehensive and important environmental laws ever to
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be adopted. CEQA applies to public decision-makers who carry out,
authorize or approve projects that could have an adverse effect on the
environment.
CEQA requires full disclosure of a project's significant environmental
effects so that decision-makers and the public are informed of the
consequences before the project is approved and to ensure that governmental
officials are held accountable for those consequences (Laurel Heights
Improvement Association of San Francisco v. Regents of the Universities of
California (1988) 47 Cal.3d 376, 392 ("Laurel Heights I"). Any public
agency proposing to carry out or approve a project that may have a
significant effect on the environment must prepare an Environmental Impact
Report or an EIR (Pub. Res. Code §§21061, 21100(a); CEQA Guidelines
§15003(a). Environmental protection is a guiding concept in interpreting
CEQA. "The foremost principle under CEQA is that the legislature intended
the Act to be interpreted in such a manner as to afford the fullest possible
protection to the environment within the reasonable scope of the statutory
· language." (Laurel Heights I, 47 CaL3d at 390.)
With this appeal, Petitioner seeks review of the City's actions and
approvals in conjunction with this Project. In reviewing a public agency's . ' .
CEQA determination under traditional mandamus or administrative
mandamus, a court must determine whether the agency prejudicially abused
its discretion. Abuse of discretion occurs when the agency has not
proceeded in a manner required by law or its decision that the EIR is
adequate is not supported by substantial evidence contained within the
administrative record prepared for the Project. (Santa Clarita Organization
·for Planning the Environment v. County of Los Angeles (2003) 106
Cal.App.4th 715.)
.· On the other hand, when the challenge is to an agency's failure to
proceed in the manner required by law, such as the failure to address a
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subject required to be covered in an EIR or to disclose information about a
project's environmental effects, the agency's decisions are not subject to
deference. (Vineyard Area Citizens for Responsible Growth v. City of
Rancho Cordova (2007) 40 Cal.App.4th 412, 435.) In review of these types
of matters, the court must "determine de novo whether the agency has
employed the correct procedures, 'scrupulously enforce[ing] all legislatively
mandated CEQA requirements'." (Ibid., quoting Citizens of Goleta Valley v.
Board of Supervisors (1990) 52 Cal.3d 553, 564 ("Goleta If').)
In reviewing whether the agency proceeded in the manner required by
CEQA, the court must determine whether the EIR is sufficient as an
informational document. (Dry Creek Citizens Coalition v. County of Tulare
(1999) 70 Cal.App.4th 20, 26.) "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." (Ibid.) When an agency fails to proceed
as required by CEQA, harmless error analysis is inapplicable. "The failure
to comply with the law subverts the purpose of CEQA if it omits material
necessary to informed decisiomnaking and informed public participation."
(Protect the Historic Amador .Waterways v. Amador Water Agency (2004)
116 Cal.App.4th 1099, 1106.)
Therefore, the degree of deference afforded the City's decisions
depends on the nature of the CEQA claim in question. "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 the improper procedure or a dispute over the facts.''
(Vineyard Area Citizens, supra, 40 Cal.4th at 435; see also Bakersfield
Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th
1184, 1207-1208 [rejected argument that substantial evidence standard
applied to agency's failure to proceed as required by CEQA].)
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The law mandates that an environmental impact report identify the
significant effects a project will have on the environment, identify
alternatives to the·project, and indicate the manner in which those significant
effects can be mitig:ated or avoided (PRC §21002·.l(a)).
In reviewing an EIR, the· court must focus on adequacy, completeness
and a good faith effort at full disclosure {PRC §21168.5). In Communities
for a Better Environment v; City of Richmond (20 1 0) 184 Cal.App.4th 70
("Communities"), the Court held,
"On appeal, 'the existence of substantial evidence supporting the. ag~ncy' s. ultimate decision. on a disputed issue is not relevant when one is assessing: a violation· of the information
' disclo:Sur~ provision. of CEQA ·(Association oflrritated . · ·.JJ.es."idints v. County ofMadera(2003) 107 Cal.App.4th 1383,
1392). . . . .
If a rtnal environmental impact report (EIR) does not adeqiately appraise all interested parties of the true scope of the project for intelligent-weighing of the environmental· consequence.s of the project, informed decisionmaking caimot occur under CEQA and the final EIR is inadequate as a niatteroflaw. [citation]:Riverwatch v. Olivehain Municipal Water Districi (2009) 170 Cal.App.4th 1186, 1201 . (Riverwatch)." (emphais added) (Communities at 487.)
· An appellate court's review of the administrative record for legal error cmd substantial evidence in a CEQA case, as in other :mandamus cases,. is the same as the trial court's: the
· · · appellate court review's the agency's action, not the trial court's ··· decision; in that sense appellatejudicial review under CEQA is
4e.:~o:Vo." (Vineyard Are~ Citizens for Responsible Gr.owthv . . City of Rancho Cordova (2007) 7!-0 Cal.App.4th 412, 427 .)
. The EIR approved by City failed as arr informational document
because the EIR failed to adequately analyze the impacts the project would.
· ·. have_ -o~ the envirornnent and failed tq adequately address and discuss·
· alternatives. As more fully discussed below,-Huntington Beach City Council
("City") failed to analyze certain known Project impacts, thus violating
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CEQA, Public Resource Code §21 002.1. Because the City violated PRC
§21 002.1, the City failed to proceed in a manner required ·by law and thus
prejudicially abused its discretion when approving this Project.
VI. QUESTIONS PRESENTED
r QUESTION 1. May a Program EIR, refuse to consider
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identifiable and quantifiable impacts of the proposed
"project"?
A. PROGRAMEIR
The trial court ruled that because the DTSP Update is a program EIR,
citizens would be given another opportunity to evaluate future site projects
with a project EIR or environmental document. Ruling, page 3, lns.l0-13
(CT 2:394).
The Court cites Citizens of City of San Diego (2005) 134 Cal.App.4th
598 ("Creed'') to support this conclusion. In fact, the Creed case supports
Petitioners' position that since a program EIR has been prepared, sufficient
evaluation of the proposed projects impacts must occur at this stage. Creed·
holds that, "The program EIR should focus on the 'cumulative' or
'synergistic' impacts of the entire program" (emphasis added) (at pg. 608).
Further, pursuant Cal.Code Regs., tit. 14, §15152, subd.(b)
(hereinafter, CEQA Guidelines"),. "tiering" environmental review "does not
excuse the lead agency from adequately analyzing reasonably foreseeable
significant environmental effects of the project and does not justify deferring
such analysis to a later tier EIR or negative declaration." (emphasis added)
A program EIR, is "an EIR which may be prepared on a series of
actions that can be characterized as one large project" and are related in
specified ways. (CEQA Guidelines §15168, subd. (a).) Program EIR's are
commonly used in conjunction with the process of tiering. (Laurel Heights
Improvement Assn. v. Regents of University of California, (supra 47 Cal.3d,
at p. 399).) Tiering is "the coverage of general matters in broader EIRs (such
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as on general plans or policy statements) with subsequent narrower EIRs .... "
(CEQA Guidelines § 15385.) Tiering is proper "when it helps a public
agency to focus upon the issues ripe for decision at each level of
environmental review and in order to exclude duplicative analysis of
environmental effects examined in previous environmental impact reports."
(Pub. Resources Code, §21093, subd. (a); CEQA Guidelines §15385, subd.
(b).)
In addressing the appropriate amount of detail required at different
stages in the tiering process, the CEQA Guidelines state that "[w]here a lead
agency is using the tiering process in connection with an EIR for a large- ·
scale planning approval, such as a general plan or component thereof ... , the
development of detailed, site-specific information may not be feasible but
can be deferred, in many instances, until such time as the lead agency
prepares a future environmental document in connection with a project of a
more limited geographic scale, as long as deferral does not prevent
adequate identification of significant effects of the planning approval at
band." (CEQA Guidelines §15152, subd. (c).) (emphasis added)
The Legislature has found that "tiering is appropriate when it helps a public agency to focus upon the issues ripe for decision at each level of environmental review and in order to exclude duplicative analysis of environmental effects examined in previous environmental impact reports." (§21093, subd. (a).) A corollary to this rule is that if a challenge is made to the "first" step in decision making ... -such challenge must be made before the next step, or tier. (emphasis added) Koster v. County of San Joaquin (1996) 47 Cal.App.4 29,. 38.
Petitioners are challenging this action at this "first step," before the
next step or tier, as mandated by law. This first tier environmental document
is woefully deficient in that it fails to adequately analyze the effects this
Project will have on the environment, further the EIR fails as an
informational document, failing to inform the decision maker and the public
of the effects the Project will have on the environment.
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The City, as lead agency, is hiding behind the concept of"tiering" so
as to avoid adequate review of the impacts this Project will have on the
environment. The City cannot feign ignorance and hide behind a Program
EIR in attempt to bury the impact this DTSP Update will have on the
environment. The entire premise behind the Update is because the current
Specific Plan has outlived its purpose and can no longer support the
proposed increases in commercial, retail and visitor serving activities the
City intends to foist upon its citizenry. The City is aware that with the
development of approx. 1,330,483 sq. ft. of additional retail, restaurant,
office and visitor-serving uses, as well as new residential development [ AR
24:4143](CT 1:133), significant impacts will occur in the Project area.
As will be discussed in detail below, the Program EIR for the DTSP
Update fails on a multiple of fronts;· as an informational document, informing
the general public and decision makers of the environmental impacts
associated with this project; fails to adequately analyze reasonably
foreseeable significant environmental effects of the project; and, fails to
focus on the 'cumulative' or'synergistic' impacts ofthe entire program.
QUESTION 2: Where there is a major area of controversy
regarding a Proposed Project's impacts on traffic and
parking, and noise, is it within the City Council's discretion
to certify an EIR that intentionally understates these
impacts and fails to analyze or address these impacts
during the hours of operation for the Proposed Project?
A. TRAFFIC
1. . Weekday Traffic
The Trial Court's ruling addressing traffic concluded:
Not surprisingly, the (traffic) study looked to the morning and evening community patterns that residences would have to contend with and did so during the summer months due to the
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City's "proximity to the beach and its visitors-serving draw." AR 1721. There is nothing to suggest that the analyst's typical selection of peak commuting hours for City occupants was any different than those experienced by drivers throughout Southern California. (CT 2: 398)
When preparing an environmental document, the lead agency
examines the Project Description so it can adequately analyze the whole
action involved and evaluate the effects the Proposed Project will have on
the environment. Effects include the, "Direct or primary effects which are
caused by the project and occur at the same time and place." CEQA
Guidelines §15358 (a)(1). (emphasis added) "Effects analyzed under CEQA
must be related to a physical change." CEQA Guidelines §15358 (b)
(emphasis added). Analyzing "peak commuting hours for City occupants"
which hours are not different then those experienced by drivers throughout
Southern California, is not what CEQA is mandating must be analyzed.
Preparing a traffic analysis during hours that the Proposed Project will not be
operating is meaningless, will not disclose the traffic impacts will have on
the environment and violates the intent and purpose behind environmental
rev1ew.
The Traffic Study for the Propose Project was conducted mid-week
between the hours of7:00- 8:45a.m. and 4:00- 5:45p.m. [AR 14:782-827-
Traffic Count Data Sheets, Appendix A to the Traffic Study.](CT 2:263)
The data utilized in the Traffic Study analysis was based upon the
following assumption:
The Downtown Specific Plan Update project contemplates the potential for over 400,000 square feet of downtown development throughout the core district of the downtown specific plan area. Development is anticipated to take place on a number of key opportunity sites dispersed throughout the downtown area, some representing individual parcels, and some representing larger development areas. Project traffic will approach and depart the development areas via the existing downtown grid street system, similar to current traffic patterns.
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Project trip distribution assumptions for the project area were developed, based on select zone runs of the Huntington Beach Traffic Model (HBTM), and taking into account the proposed mix of uses and the location of area trip producers, such as residential population, tourist population, and employment areas. Trip assignment was conducted taking into account the multiple approach and departure opportunities provided by the downtown grid street system. [AR 14:746 emphasis added] (CT 2:263-4)
The assumption utilized to support the Traffic Study was incorrect.
The Project will result in the potential for development of approximately
1,330,483 sq. ft. of additional retail, restaurant, office and visitor-serving
uses, as well as new residential development [AR 24:4143], not 400,000
square feet as identified and evaluated in the Traffic Study. The number
used in the Traffic Study grossly underestimates (by approximately 900,000
sq. ft.), the potential net new development that will occur in the Downtown
area, thus grossly underestimating and misstating the potential impacts.
Further, the goal of the Project is to bring in additional retail,
restaurants, bars, office and other visitor-serving uses. [AR 24:4143] Given
that most of these visitor serving uses will not be open and operating and
therefore will not be drawing visitor to their establishments between
7:00a.m.- 8:45a.m., the traffic study's conclusions are misleading as it failed
to study the impacts this Proposed Project would have on the environment.
"Effects analyzed under CEQA must be related to a physical change."
CEQA Guidelines §15358(b) (emphasis added). The Program EIR failed to
study the "Direct or primary effects which are caused by the project and
occur at the same time and place." CEQA Guidelines§ 15358(a)(l)
(emphasis added). The Trial Court condoned the EIR drafters' choice to
study the traffic patterns during a time that would not be effected by the
Project.
The trial court went on to state, "There is nothing to suggest that the
analyst's typical selection of peak commuting hours for City occupants was
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any different than those experienced by drivers through Southern
California." (CT 2:398) This may have been an appropriate analysis if this
was a housing development project and the EIR drafters were evaluating the
effects of traffic impacts caused by the housing project during morning and
evening rush hour commuting times, when the homeowners are 1eaving for
and coming home from work. Selection and analysis of peak commuting
hours is not, however, the appropriate analysis, if one is studying the impacts
on traffic created by the operation of restaurants, bars and other visitor
serving activities as these uses are typically closed for business, except for
breakfast cafes which serve locals, and not operating during the morning
commuting hours of7:00a.m.-8:45a.m.
The purpose to the EIR is to evaluate the impacts that a proposed
projects will have on the environment, not to evaluate an environmental
baseline that will· not be affected by the project. Morning and evening
baseline traffic commutes will likely be unaffected by this project as there
will be little, if any, traffic generated by the project during the early morning
hours. So for the City to rely on an EIR that contains a traffic study,
analyzing traffic project impacts during a period of time where the project is
not operating, is an abuse of the agency's discretion as t~e EIR is illusory
and does not identify the, "[ d]irect or primary effects which are caused by
the project and occur at the same time and place." CEQA Guidelines
§15358(a)(l).
As stressed in Petitioners Brief is the traffic study should have been
conducted during times the project would be operating and drawing visitors
to the downtown area so as to identify and provide accurate information to
the decision makers and the public, as to the true traffic impacts this project
will have on the enviromnent.
By grossly underestimating the square footage of net new
development by approximately 900,000 square feet, and by failing to
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perform the traffic study during the time period the visitor serving
establishments will be operating and drawing the visitors to the downtown
area, the Traffic Study not only failed as an informational document, it
provided misleading data, significantly understating and underestimating the
impacts this project will have on the environment. The City must be
required to prepare a traffic study that does in fact identify the impacts this
project will have on the environment. So the lead agency and public will be
adequately informed.
2. Weekend Traffic
The trial court concluded that traffic impacts-were adequately
addressed because it analyzed weekday morning and evening commutes
during summer months. The Court's ruling did not address Petitioners
arguments relating to weekend traffic. As stated above, the Traffic Study
only analyzed morning and evening rush hour commutes, Monday thru
Friday. The EIR and Traffic Study failed to analyze and review the impacts
-this Project would have on weekend traffic.
The EIR drafter cannot pick and choose which impacts they will
evaluate and which impacts they ignore. The EIR and Lead Agency is
required to identify the significant impacts a proposed Project will have on
the environment. (Laurel Heights, supra, 47 Cal.3d at p. 392.)
(a) The EIR drafter acknowledges that peak pedestrian
and vehicular demand periods are summer
weekends and special events. [AR 8:405; AR
15:1722](CT 2:286)
The initial study identifies that Traffic/Transportation will have a
Potentially Significant Impact on the environment. [AR 9:488](CT 1 :282)
The EIR states:
1. Impact Criteria and Thresholds. _ Impacts result from implementation of the project would
be considered significant if the project would:
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• Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (e.g., result in a substantial increase in the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections." [AR 8:377](CT 2:284)
The EIR drafter acknowledges that peak pedestrian and vehicular
demand periods are summer weekends and special events. [AR 8:405;
AR 15:1722](CT 2:286, 287 & 288)
In addition, citizens at City Council meetings voiced their issue about
the large volume of people going to the beach on the weekend. [AR
43:553l](CT 2: 291) Citizens voiced concern during the public comment
period that 'during peak season, March through September weekends,
parking, traffic and transportation was overly taxed. "The area is majorly
impacted and detrimental to the experience ofresidents and visitors ... We
currently have problems on weekends and no solution for now or future plan.
(sic) [AR 9:536](CT 2:293).
Nowhere in the methodology cited by the City or in the EIR is there a
discussion as to why the City failed to analyze the effect this Project would
have on weekend traffic in the Downtown area. The City's traffic analysis
stops at 5:45p.m. Friday evening and resumes at 7:00a.m. Monday morning.
[AR 14:782-827](CT 2: 266) The traffic impacts this Project will have will
not cease at 5:45p.m. on Friday night and promptly resume again at 7:00a.m.
Monday morning.
The fact is the EIR is riddled with statements by the EIR drafter and
community voicing concerns about impacts that weekend traffic currently
has on baseline conditions within the Downtown area, especially during the
weekend summers. The EIR drafters acknowledge repeatedly that there is an
issue with Downtown weekend traffic yet failed to analyze issues.
Interestingly, summer weekend parking was analyzed. Given that cars have
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to drive to the Downtown area to park, it is perplexing why weekend traffic
impacts were blatantly ignored. Evaluating one impact relating to traffic (i.e.
parking) does not give the Lead Agency carte blanche to disregard other
known traffic impacts:
"The purpose of an EIR is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment." (PRC §21061.)
"The environmental impact report shall include a detailed statement setting forth all ofthe following: (1) all significant effects on the environment of the proposed project." (PRC §211 OO(b )(1 ). )
Though, the EIR drafters acknowledged the impacts that weekend
traffic currently has on the Downtown baseline conditions, the EIR never
analyzed how this Project would impact summer weekend traffic. The traffic
methodology never addressed why summer weekend traffic was ignored.
Nowhere in the legislative intent behind CEQA, the codes and the
regulations governing CEQA, nor case law does it state that impacts a
project will have on traffic is limited to weekday, peak commuter rush hour
review, and weekend traffic need not be evaluated, regardless of the type of
project being implemented. With its decision, the trial court is turning the
legislative intent behind CEQA on its head. The trial courts decision permits
the City to disregard the code, regulations, legislative intent and the laws
governing CEQA and allow a project to move forward without sufficient
information provided to the general public and decision makers so they can
evaluate the true environmental impacts attributed to this project.
Given that the EIR failed to include detailed information setting forth
the significant effects this proposed project would have on the environment, ..
as so mandated by PRC §21100(b)(l), the EIR failed to proceed in a manner
required by law and failed as an informational document.
The City abused its discretion in approving the EIR. The City should
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be mandated to comply with the law, the EIR certification be rescinded and
all approvals be set aside until the City adequately evaluates the impacts this
Project will have on summer weekend traffic.
B. PARKING
The trial court ruled that because the, "Petitioners cite to a single letter
written by Richard J. Plummer as evidence that the primary group inhibiting
the area of DTHB in the latter part of August is young people and so the
study is ineffective because during the study period they would have all left
the area to go back to school." (CT 2:398) The trial court then concluded,
"the proposed parking supply of 4508 spaces is supported by substantial
evidence." (CT 2:398)
Mr. Plummer's letter stated far more then the fact that young people
are headed back to school and therefore having a parking study at the end of
August, when the major population of people that frequent the beach are
back in school, is inadequate.
Mr. Plummer's letter also went into detail and elaborated on the
following issues:
1. New businesses in the Downtown area, such as the Strand mixed use and hotel development ofapprox. 221,744 sq. ft., has opened and occupancy has increased since August 2007. Parking is significantly in higher demand and the parking shortage has gotten worse. [AR 15:1812]
2. The Parking Study did not analyze building occupancy, a basic factor in most parking studies. Many DTHB buildings had significant vacancy that, upon stabilized occupancy, would significantly increase parking demand. [AR 15:1812]
Mr. Plummer was not alone voicing his concern over parking and the
current impacts facing the residents of Huntington Beach. A speaker voiced
concern over parking at the City Council Meeting dated November 16, 2009
by stating: "So every weekend, that's when we have our large volume of
people going to the beach. Uh, also they would have to compete with the
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restaurant and, urn bar patrons and you guys aren't going to give up your
parking lot yet. So therefore, that's where they're all going to try and park.
So these poor little old ladies and men are going to try to find parking and
worse then that they have to compete with the drunk drivers on Main Street."
[AR 45:5531](CT 2:291)
The City along with the trial court completely disregarded Mr.
Plummer's and others, parking concerns and issues and concluded that the
proposed parking plan would be adequate to address the impacted parking
situation. As set forth below, the City's analysis is not supported by
substantial evidence.
1. Downtown Parking Master Plan.
The current Parking Planning Document, the Downtown Parking
Master Plan, provided a strategic approach to parking for development in the
Downtown area. [AR 8:157-158] Currently the development thresholds
identified in the Downtown Parking Master Plan ("DPMP") have been met.
[AR 8:176] The DPMP is based upon a detailed block-by-block analysis of
land uses and development in the Downtown area. [ AR 8: 17 6] The existing
parking demand "greatly exceeds the parking capacity on summer, holidays
and special events," and "at-capacity" conditions occur during peak summer
days, particularly on weekends. [AR 8:413](CT 1:144)
Interestingly, now that the development threshold for the Downtown
area has been met, and the City intends to add an additional net new
Development in the amount of 1,330,483 sq. ft. [AR 24:4143], the City
proposed to eliminate the Downtown Parking Master Plan. The City
rationalized that this was done so as to "eliminate" the "cumbersome
implementation and monitoring" mandated by the DPMP. [ AR 8:17 6] The
City justified its action by claiming that elimination of the DPMP will allow
the City "to adopt a new strategy for parking." [ AR 8: 17 6] Note - the
DPMP was designed to accommodate a development threshold of715,000
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sq. ft. [AR 8:158](CT 1:144)
The EIR states, "the development thresholds identified in the
Downtown Parking Master Plan have been met." [ AR 8: 17 6] Though the
threshold has been met, the City now intends to not only add an additional
net new development of approx. 1,330,483 sq. ft. [AR 24:4143], the City's
new parking plan reduced the ratio of required parking per square foot of
gross floor area in the Downtown Core. [AR 8:176] How the City can now
claim that the reduction of parking space requirements for all development in
the area, including the addition ofapprox. 1,330,483 sq. ft. of net new
development, will not have an impact on parking is truly astonishing!
The City is aware that this proposed project will have gross
environmental impacts on parking that cannot be mitigated to a level of
insignificance if the DPMP was to remain in effect, so the City approved
elimination of the DPMP claiming now, that this Plan is too "cumbersome to
implement," even though the DPMP was adopted in 1995 [AR 8:176] and
not an issue for the past 15 years.
This is a prime example as to how the City is manipulating planning
documents in order to implement this Project. The City changed the
standard as reflected in the parking code requirements to justify this Project's
increased parking demands because any increase in parking demand, would
be deemed significant under the old DPMP as development thresholds have
been met. The Project will allow about 1,330,483 sq. ft. [AR 24:4143] plus
the addition of the permitted, yet to be constructed, Pacific City Project,
which amounts to approx. 958,700 sq. ft. of additional net new development
[AR 24:4143]. This massive growth is accompanied with the reduced ratio
of required parking per square foot of gross floor area, the elimination of on
street parking along a portion of Main Street, and the reconfiguration of the
parking on 5th Street, which will result in a net loss of 50 on-street parking
spaces. [AR 8:176-177](CT 1:145) Yet, the City states this would, "not
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result in significant parking impacts." [AR 8:420] This conclusion is not
supportable. Again, manipulating Planning Documents to avoid threshold
impacts is an end run around CEQA and violates the intent and purpose
behind the implementation of The Act.
2 . The Kimley-Horn Parking Master Plan.
Section 4.12 of the EIR discusses the impacts to parking caused by the
proposed project. The Kimley-Hom's Parking Master Plan Study dated
March 2009 conducted the parking survey on August 18 and August 23,
2007. It should be noted that, the EIR consultants thought it wise to do
a Parking Study on a Saturday (August 18), but not conduct a weekend
traffic count?? [AR 8:413-414](CT 1:145) However, this 2 day Parking
Study does not adequately analyze the Downtown parking issues for the
following reasons:
a. As stated in Mr. Plummer's letter, the survey was conducted
0 during the second half of August 2007 after many students had
returned to school or were preparing for school. The primary
demographic group populating Downtown Huntington Beach
(_, ("DTHB") in summer is young people (15 to 25 years old).
[AR 15:1812]
b.
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New businesses in the Downtown area, such as the Strand
mixed use and hotel development ofapprox. 221,744 sq. ft.,
has opened and occupancy has increased since August 2007.
Parking is significantly in higher demand. [AR 15:1812]
The Parking Study did not analyze building occupancy, a basic
factor in most parking studies. [AR 15:1812]
The Parking Study does not analyze the effects of certain
proposed projects (the Poseidon, Ocean Breeze, Edinger/Beach
Specific Plan, Performing Arts Center, and the Edison
Community Center Sports Complex) would have in the area
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given that, especially with the sports complex, it is uncertain
whether or not all parking will be within the Sports Complex
Facility. With respect to the Specific Plan for the
Edinger/Beach Corridor Study, a project within one mile of the
Project site, 874,600 sq. ft. of retail, 350 hotel rooms and
112,000 sq. ft. of office space will be added. [ AR 8: 189]
These projects will severely impact the parking in the
Downtown area. ( CT 1: 146)
3. In-Lieu Parking.
The in-lieu Parking Program identified in the DTSP Parking Section
does not adequately describe the number of outstanding in-lieu parking stalls
that the City of Huntington Beach would need to construct or the outstanding
fees needed to fund alternative parking facilities.
(a) Current inventory, and the future in-lieu Parking
Program.
The Parking Study conducted by Kimley-Hom ("KH Parking Study")
identifies that it is difficult to find parking 3 5 days per year and the actual
parking deficiency exists 15 days per year. [AR 8:420](CT 1:146) In
particular, ~he City found that the existing parking demands greatly exceed
the parking capacity during summer, holidays and special events. [AR
8:413]
With the addition of approx. 1,330,483 sq. ft. of net new development
and the proposed reduced ratio of required parking space per square foot of
gross floor area in the Downtown Core, demand for parking will increase
significantly. In fact, the KH Parking Study identifies a need for
approximately 300-400 additional off-site parking spaces. [AR 8:414]
Moreover, the Project proposes to completely eliminate the existing on-street
parking along Main Street from Pacific Coast Highway to Orange and to
reconfigure the parking on Fifth Street that will result in the net loss of 50
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on-street parking spaces. [AR 8:177](CT 1:147)
The increased parking demand will result in a significant, adverse
impact to parking in the Project area. To address this increased demand, the
EIR proposes to implement a number of mitigation measures, none of which
is guaranteed to alleviate the increased demand. The suggested mitigation
measures include the following: implementation of a valet program, adding
bicycle parking, constructing temporary parking lots, forming business to
business agreements, remote parking and shuttle service, apply for
conditional use permit, or payment of in-lieu fees. The EIR concluded that
there would be no significant adverse impacts to parking because parking is
required to meet the minimum code requirement. [AR 8:422] This is
misleading. The EIR fails to explain that the minimum code requirements
are being reduced to accommodate the significant parking demands this
Project will have. (CT 1:147)
Further, any particular development may elect to implement a
mitigation measure that will not result -in additional parking spaces. For
example, a developer could implement a valet service that would merely
shift the parking burden to other parking facilities in the Project area. A
developer can make a payment of in-lieu fees, rather than actually create
additional parking as part of the development. The EIR does not address
how the City will use the in-lieu fees to address the impacted parking
situation or if and where new parking lots will be constructed. ( CT 1: 14 7)
In addition, Section 4.12 of the EIR does not discuss the buses that
will be drawn to the Perfonning Arts Center to transport groups of visitors.
Buses require designated parking areas, which consumes significant amount
of available parking spaces. The impacts associated with designated bus
parking areas should have been analyzed in the EIR. (CT 1:148)
The discretionary implementation of mitigation measures is an
ineffective way to reduce the exorbitant and increasing demand for parking
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in the Project area.
It should be noted that after the trial court hearing on the merits but
before the entry of Judgment, the DTSP Update came before the California
Coastal Commission for approval for its Local Coastal Program Amendment
("LCPA"). Petitioners filed a Request for Judicial Notice of the Coastal
Commissions staff report dated June 3, 2011 recommending denial ofthe
LCPA as submitted. (CT 2:359-360) The trial court never ruled on
Petitioners Request for Judicial Notice.
Interestingly, the Coastal Commission staff came to the same
conclusion as Petitioners and also found that the proposed Parking
mitigations for the Project were inadequate.
"The proposed DSP would retain, and for certain categories of development, actually further reduce, the reduced parking ratios of the DPI\1P. However, the amount of future development would no longer be tied to the amount of parking available within the DPI\1P. Instead, new development would be required to provide the required parking spaces necessary to meet its parking demand. New development would be allowed to provide the required parking spaces in any combination of the following ways: on-site; through shared use agreements; through off-site/remote parking agreements; valet parking; valet and/or remote parking for special events during peak summer season; and by payment of an in-lieu fee. In addition, the proposed DSP identifies, but does not require a number of alternative means of transportation that could be applied within proposed District 1. The City asserts that these measures will also contribute to an overall decrease in parking demand.
The City feels that parking shortages will be avoided under the proposed scenario based on the same parking strategies and concepts that made the DPI\1P successful: shared market and off-set peak demands as well as the reduction in parking demand created by the provision of alternate transportation. Commission staff agrees that parking spaces to meet the full parking demand for new development are always necessary, or desirable. However,
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approval of the proposed DSP would result in even further reductions to already reduced parking standards, while none of the proposed alternate methods of transportation would be required to be implemented. As proposed, the alternate transportation methods are identified and their benefits described, but there is no trigger that would actually cause them to be implemented. Thus, development, with its related impacts to public access, would be allowed while the measures necessary to off-set the impacts may not be implemented. Therefore, staff is recommending denial o{the LCPA as submitted." (emphasis added.) (CT 2:359-360)
The Coastal Commission Staff acknowledged the same issued
Petitioners argued in their brief and during oral argument-there is no trigger
that would actually cause the parking mitigation measures to be implanted
thus these mitigation measures are nothing more than a smokescreen.
c.
"A public agency must mitigate or avoid the significant environmental effects of a project that it carries out or approves if it is feasible to do so." (Pub. Resources Code, §21002.1, subd. (b); City o[Marina v. Board o[Trustees of California State University (2006) 39 Cal.4th 341, 359, 46 Cal.Rptr.3d 355, 138 P.3d 692 (City o[Marina).) Mitigation measure adopted by the agency must be fully enforceable. "A public agency shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures .... " (Pub. Resources Code, §21081.6, subd. (b).) "Mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments .... " (CEQA Guidelines, §15126.4, subd. (a)(2).) The agency must be able to find, based on substantial evidence, that the adopted mitigation measures are "required or incorporated into the project" and that those measures will "mitigate or avoid significant effects on the environment." (Pub. Resources Code, §21081.6, subds. (a)(l),(b).) Tracy First v. City of Tracy (2009), 177 Cal.App.4th 912, 937 (emphasis added).
NOISE
The trial court dismissed Petitioners arguments relating to Noise
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Impacts concluding that Petitioners failed to exhaust their administrative
remedies as the issue was not properly raised at the administrative level or
were inadequately raise. (CT 2:393) This is an incorrect statement.
The Noise Issue was exhausted and clearly and articulately raised in a
comment letter dated September 2, 2009, by Richard Plummer who
specifically asked, "the impact of noise upon this neighborhood was not
adequately address in the DTSP or EIR. The Noise Survey was conducted
on a non-peak, mid-weekday at lunchtime in early December 2008. No
noise monitors were located in the first three blocks of Main Street. [AR
15:1813](CT 2:329-333)
In fact, the City was quite aware of this issue and responded to Mr.
Plummer by stating that the "noise measurements that were performed are·
intended to be a 'snapshot survey of typical noise levels, not a
comprehensive measurement effort.' These measurements are intended to
give an idea of the overall existing noise levels at the specified area. Noise
levels would be expected to vary depending upon a season and the specific
type time of interest." [See AR 15:1859](CT 2:336) The Petitioners clearly
exhausted this issue; the City was aware that the noise impacts would be
significant and prepared a woefully inadequate noise study.
Noise was identified in the Initial Study to have a potentially
significant impact on the environment. [AR 9:495](CT 2:324) Though the
Initial Study identifies that "the project will result in increase in permanent
ambient noise levels in the project vicinity above existing levels and that a
noise study will be conducted to determine the potential noise impacts and
recommended mitigation measures if necessary," (CT 2:324), the City
prepared a noise study that was conducted on December 2, 2008 between the
hours of 10:28 and 2:36 and on December 3, 2008 between the hours of
10:47 and 1:00 p.m. [AR 13:682](CT 2:326-327)
Despite the fact that all the other studies performed for this Project
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occurred within the summertime months, as it was concluded that the Project
would have most significant effects within the project area in the summer
months, the noise study was conducted in the middle of the day in the middle
of the winter in December. It is uncertain how this noise study qualifies to
satisfy the statement that a "noise study will be conducted to determine the
potential noise impacts and recommended mitigation."
This issue was administratively exhausted. The information and
analysis prepared by the City addressing noise impacts of the Project, was
woefully inadequate and violated the law specifically, PRC §21002(a) which
mandates that an EIR must identify the significant effects a project will have
on the environment. The impact of noise this project will have on the
. environment was not adequately reviewed and the mythology utilized does
not state why this non-peak time was chosen to conduct this study.
QUESTION 3. Where the analysis of an EIR is admittedly
inadequate, may the public agency "fix" the deficiency by
providing the trial court judge, at the trial court hearing on
the merits, with documents that were not included in the
administrative record, not included in the EIR, were not
made available to the public and were never considered by
the public or decision makers?
A. SOLID WASTE ANALYSIS
1. ADMINISTRATIVE RECORD
The Court accepted the oral motion at the hearing to augment the
administrative record with two documents: ( 1) an excerpt from the Draft
Subsequent EIR for "The Strand" at Downtown Huntington Beach dated July
2002; and (2) an excerpt from the Final EIR for "Pacific City," Huntington
Beach, a copy of each document was filed with the Court. (CT 2:394)
The Court admitted these documents into the record to support the
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Lead Agency's findings that an adequate analysis was performed on the solid
waste analysis. The trial court's ruling stated, "[t]he court grants the motion
insofar as the record is clear that these two documents were available to the
public and the decisionmaker through the EIR, as evidence by numerous
references to them in the administrative record. See AR 9018, AR 9023, AR
8540, mitigation measure 4.13-1; AR 8660." (CT 2:394 emphasis added.)
The trial court furthered stated, "At AR 128, the EIR incorporates a number
of documents including, in Section 7, "References," [AR 458], The Pacific
City EIR and the Strand Downtown EIR [AR 424]." (CT 2:394)
The trial court also cites CEQA Guidelines ("Guidelines") §15150 to
support its decision that it was proper to include these documents to support
the agency's finding that the City adequately analyzed the impacts on the
solid waste disposal system and capacity associated with the total project.
The Court further stated that even, 'if incorporation by reference is somehow
deemed insufficient, the failure to include them as exhibits in the
administrative record on review is excusable. Citing Bakersfield Citizens for
Local Control v. City of Bakersfield (2004) 24 Cal.App.4th 1184, 1198
("Bakersfield Citizens").' (CT 2:395)
The trial court is correct that failure to include certain documents in
an administrative record is excusable if the administrative record evidences
the fact that these documents complied with Guidelines § 15150 as well as
PRC §21061. In the case before the trial court, the EIR, DID NOT include
references to the excerpts from the EIR for Pacific City and the Draft
Subsequent EIR for "The Stand." CEQA Guidelines §15150 sets forth the
procedure when an EIR or negative declaration seeks to incorporate or
reference other public documents within the EIR:
(a) An EIR or negative declaration may incorporate by reference all or portions of another document which is a matter of public record or is generally available to the public. (emphasis added)
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Section 15150 mandates that if in fact a document is incorporated by
reference in an EIR it must comply with a certain process and procedure:
(b) Where part of another document is incorporated by reference, such other document shall be made available to the public for inspection at a public place or a public building. The EIR or negative declaration shall state where the incorporated document will be available for inspection. (emphasis added)
(c) Where an EIR or negative declaration uses incorporation by reference, the incorporated part of the referenced document shall be briefly summarized where possible or briefly described if the data or information cannot be summarized. The relationship between the incorporated part of the referenced document and the EIR shall be described. (emphasis added)
(d) Where an agency incorporates information for an EIR that has previously been reviewed through the State review system, the State Identification Number of the incorporated document should be included in the summary or designation described in subsection (c).
Public Resources Code §21061 also regulates this issues and
mandates:
"Environmental impact report" means a detailed statement setting forth the matters specified in Sections 21100 and 21100.1; provided that information or data which is relevant to such a statement and is a matter of public record or is generally available to the public need not be repeated in its entirety in such statement, but may be specifically cited as the source for conclusions stated therein; and provided further that such information or data shall be briefly described, that its relationship to the environmental impact report shall be indicated, and that the source thereof shall be reasonably available for inspection at a public place or public building." (emphasis added)
The EIR identified that these two documents were being incorporated
. into the Environmental Impact Report in Section 1.6 of the EIR entitled
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"Incorporation by Reference" which references Section 7 and states, "These
documents and the location where they can be inspected are identified in
Section 7-references of the EIR [AR 128]." (CT 2:302) When one reviews
Section 7, numbers 27 and 31 identify that the Pacific City EIR and The
Strand at Downtown Huntington Beach EIR are referenced document. [ AR
8:458-459](CT 2: 304-306)
Other than this reference, none of the other provisions set forth in
CEQA Guidelines Section 15150 or PRC 21061 have been satisfied. The
EIR does not state where the incorporated documents will be available for
inspection as mandated by Guidelines § 15150(b ). The EIR fails to briefly
summarize where possible or briefly described the data or information
summarized as so mandated by Guidelines §15150(c). Further, the State
Identification Number of the incorporated documents were not included in
the summary, as is required by Guidelines §15150(d). Ifthese documents
are in fact certified EIR's, as proclaimed by the City, they should have State
Identification numbers.
The Administrative Record documents identified by the trial court in
its ruling, to support its decision to grant the City's Request for Judicial
Notice and referenced above, can be found at CT 2:294-306. Upon thorough
examination of all the documents cited by the trial court to support the it's
ruling, one can see that these documents fail to provide the location where
the two documents could be publicly viewed, and fails to proffer a summary
of the pertinent areas that the EIR drafters were relying upon. Further no
State Identification Number was provided for these documents, which the
City proclaimed to be Certified EIR's.
The trial court cites Bakersfield Citizens to support its position that the
failure to exclude or not comply with CEQA infonnation disclosure
requirements is permissible if it does not constitute prejudicial abuse of
discretion. However, the very next sentence following this statement is:
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"Failure to comply with the informational disclosure requirement constitutes a prejudicial abuse of discretion when the omission of relevant information has precluded informed decisionmaking and informed public participation, regardless whether a different outcome would have resulted if the public agency had complied with the disclosure requirement." (Citing Bakersfield Citizens, page 1198.)
Clearly, failure to comply with the procedural requirements of the
code and regulations that was created to assist in the informational process,
specifically, CEQA Guideline §15150 and Public Resources Code §21061
would not be condoned by the Bakersfield's court.
The public nor the decision maker should not be forced to track down
documents that were utilized to support conclusions contained within the
environmental document. The information referenced and relied upon to
support the conclusion in an EIR must be made readily available for review
by the general public as well as the decision makers. Given that the City
violated the mandates ofCEQA Guideline Section 15150 and PRC 21061
and the referenced documents were not readily available for review by the
general public and decisions makers nor was a brief summary provided
identifying the pertinent area that the EIR drafter were relying upon, the EIR
not only fails as an informational document it violates the mandates of
CEQA Guidelines and the CEQA regulations and therefore must be set aside.
Therefore, the Trial Court's conclusion that the information provided
in EIR's for The Strand and for Pacific City was made available to the
general public and the Decision maker, was adequately summarized, and
properly identified in the EIR, is incorrect. Given that the Utilities and
Service Systems as well as the Solid Waste Section fails as an informational
document, and was prepared in violations of the procedures mandated in
Guidelines §15150 and PRC §21060, the conclusions contained within this
Section are inadequate and not supported by substantial evidence in the
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record. Pursuant to PRC §21 061 and Guidelines § 15150, the EIR must be
set aside and the Project approvals rescinded until the City complies with the
mandates of CEQA.
QUESTION 4. Where a public agency has adopted and certified
an EIR, may the agency adopt a project significantly
different from any considered in the EIR without further
environmental review or opportunity for public comment?
A. BUILDING HEIGHT AND BUILDING FOOTPRINT/LOT SIZE
The trial court's ruling concluded that because the, "possibility of
building a four-story building on less than 25,000 sq. ft. lot in District 1 [the
Downtown Core] was already in the draft EIR and had been circulated
widely in staff reports, the powerpoint presentations and the like, the public
was informed that a 25,000 sq. ft. or less allowance would allow for a four
story building to be constructed on a lot of 8,000 sq. ft. in District 1." (CT
2:396, emphasis added) The trial court's ruling is incorrect. The EIR never
addressed, nor analyzed, any impact that could occur if this 11th Hour Plan
was adopted. What the EIR stated is as follows:
"The maximum density for District 1 is proposed to increase to from 25 to 30 dwelling units per acre in most areas to 60 dwelling units per acre. Additional revisions proposed for District 1 include increases in allowable building height up to 55 ft. and five-stories depending on site area, elimination of floor area ratio ("FAR") requirements, modifications to upper story setback requirements, and streamlining the development review by requiring a conditional use permit from the Planning Commission only for new development with 100 ft. or more of street frontage." [AR 8:163](CT 2: 308)
That was the entire discussion with respect to the allowable building
heights. All other discussions were set forth in Planning Commission
meeting. This impact was never analyzed in the EIR as opined by the trial
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court.
Given that the Court based its decision on the misinformation, that the
possibility of constructing a four-story building on an 8000 sq. ft. lot was
identified, evaluated, and its environmental impacts were analyzed in the
EIR and circulated to the decision maker and the public, is incorrect, the
ruling addressing building height limits, building footprint and lot size must
be set aside. Attached for the Appellate Courts reference are the documents
the trial court cited in Section VI of its ruling to support its ruling that
construction of a four-story building on 8000 sq. ft lot was analyzed in the
EIR. (CT 2: 308-316) AR 22:2218 references a staffreport, not the EIR.
The Legislature has required every county and city to adopt "a
comprehensive, long-term general plan for the physical development of the
county or city ... " (Gov.Code, §§65300; 65302.) A general plan provides a
"charter for future development" and sets forth a city or county's
fundamental policy decisions about such development. (Federation of
Hillside and Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th
1180, 1194.) These policies "typically reflect a range of competing
interests." (Ibid.) Nevertheless, a city's land use decisions must be
consistent with the policies expressed in the general plan. (Corona-Norco
Unified School Dist. v. City of Corona (1993) 17 Cal.App.4th 985, 994
("Corona-Norco").) " '[T]he propriety of virtually any local decision
affecting land use and development depends upon consistency with the
applicable general plan and its elements.' [Citation.]" (Goleta IL supra, 52
Cal.3d at 553, 570-571.)
The City violated its General Plan when it amended the Downtown
Specific Plan to include the following: "The minimum's net site area for 45
ft./4-story buildings in District 1 (Downtown Core) was reduced from 25,000
sq. ft. to 8,000 sq. ft. [AR 2:4] The Amended General Plan contradicts the
Downtown Specific Plan Amendment. The Amended General Plan
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identifies the Downtown Core density/intensity to be as follows: "Height:
minimum building height is 25ft.; three stories maximum for developments
with less than 25,000 sq. ft. net site area; four stories maximum for net site
area 25,000 sq. ft. or greater." [AR 25:4304](CT 1 :161)
The concept to reduce the minimum net site area from 25,000 sq. ft. to
8,000 sq. ft. for the Downtown Core came at the January 19, 2010, City
Council hearing on the DTSP Update. [AR 161:8240](CT 1:161)
During this hearing, Councilmember Hansen made an alternative
motion which was to do the following: "To adopt the specific plan per the
terms of the recommended staff action with some minor amendments, ... have
within District 1 a maximum building height of 45 ft., not to exceed four
stories on building sites that have a net area of 8,000 sq. ft. So it would have
to have a minimum 8,000 sq. ft. before it could go to the maximum"
(hereinafter referred to as "11th Hour Amendment"). [ AR 4 7:5 594-
5595](CT 1 :161)
Again, the Land Use Element of the Amended General Plan controls
density and intensity. The Downtown Core density/intensity requirement is
"minimum building height is 25 ft.; three stories maximum for developments
with less than 25,000 sq. ft. net site area; four stories maximum for net site
area of25,000 sq. ft. or greater." [AR 25:4304] The 11th Hour Amendment
to the Downtown Specific Plan to not exceed four stories on buildings that
have a net site area of 8,000 sq. ft. is a clear violation of the General Plan.
Because this is a clear violation of the General Plan, the DTSP Update must
be deemed invalid. In addition this planning concept was never analyzed in
the EIR for the Project. (CT 1:161)
The amendment is a significant change in what was evaluated in the
EIR. Again, nowhere in the EIR is there an evaluation of the environmental
impacts that would occur with construction of a four-stories on a building
site of 8,000 sq. ft. Reducing the building site square footage by
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approximately 70% would have an impact on the environment. (CT 1:161-
162) Further, the public was never afforded the opportunity to comment on
this significant 11th hour change to the Project." Councilmember Hansen
slipped in this change during the voting on the Project. [AR 47:5594-5595]
QUESTION 5. In order to exhaust its administrative remedies,
were Appellants required to orally restate comments
previously raised in comment letters by Appellants, the
general public or by state officials at the public hearing for
the EIR?
A. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Public Resources §21177 states as:
"No action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public orally or in writing 1?y any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." (emphasis added)
The trial court erred when it ruled that the certain issues were never
exhausted by petitioners, such as cumulat~ve project impacts, noise, public
services, and land use and are therefore waived. (CT 2:376) This is
incorrect. Petitioners properly raised the following issues at the
administrative level as so demonstrated below:
1. Cumulative Effects
(a) Trial Court Ruling
The Court ruled that Petitioners failed to exhaust the issue relating to
cumulative effects at the administrative level and therefore is waived. The
Court stated, "This issue was not raised at the administrative level by any
person [CA Public Resources Code §21177(a)] and since Petitioner did not
exhaust its administrative remedies, the issue is waived." (CT 2:3 82) It is
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uncertain what the trial court means when it states that it was not raised at
the administrative level by any "person." This issue was in fact raised by
Christopher Herre, Branch Chief, Local Developments/ Intergovernmental
Review for Caltrans. [AR 15:1732-1734](CT 2:318) The Cal-Trans letter
states as follows:
"The list of cumulative projects for traffic study (page 4-196) is different from the one found on page 3-38 under "Project Description." Please provide reasons for the discrepancy and explain why project such as Beach!Edinger Specific Plan were not included in the cumulative analysis, as the cumulative effects ofthese projects could be significant." [AR 15:1733]
This issue was raised and the City was adequately aware of what the
issue in fact was. If the Court is stating that Petitioners did not raise this
issue because a state agency raised this comment, and a "state agency" is not
a "person," that position is incorrect. A person is defined in Public
Resources Code §21066 as follows:
"Person" includes any person, firm, association, organization, partnership, business, trust, corporation, limited liability company, company, district, county, city and county, city, town, the state, and any of the agencies and political subdivisions of those entities, and, to the extent permitted by federal law, the United States, or any of its agencies or political subdivisions. (emphasis added)
Caltrans falls within this definition. Therefore, this issue was in fact
exhausted by a "person" at the administrative level and therefore has not
been waived.
The issue raised by Caltrans is the same issue raised by Petitioners in
these proceedings. Caltrans requested that the City provide reasons for the
discrepancies and an explanation why projects such as the Beach/Edinger
Specific Plan Project was not included in the cumulative traffic analysis as
the, "cumulative effects of these projects could be significant." Caltrans is
absolutely correct in their statement, failure to include the projects identified
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under the Projects Cumulative Analysis Section in the Traffic Cumulative
Analysis Study is a serious concern and the cumulative effects of these
projects could be significant.
As set forth in Petitioner briefs, there are nine projects identified as
cumulative projects under the Cumulative Projects Section which were never
evaluated nor discussed in the Cumulative Traffic Section. There are three
projects identified in the Cumulative Traffic Section that were never
discussed or evaluated in the Cumulative Project Section. (CT 1:149) There
is no explanation for the omission as to why these projects were omitted.
The trial court in its analysis only identified one project, the Edinger
Beach Corridor Project, which is located within one mile of the project area
and anticipates the addition of significant new development. It is uncertain
why the trial court concluded that the Corridor Project was too distant to
impact traffic in the DTSP area when other projects within one mile and
outside one mile of the project area were in fact evaluated. The Pacific City
Project was in also evaluated within the Traffic Cumulative Effect Section.
In fact, projects such as the Senior Center, Parkside Estates, Ocean Breeze
Plaza, and Harmony Cove are all located more than one mile from the
Project site and~ evaluated in the Cumulative Project Traffic Section.
[AR 8:190, 387](CT 2:320-322)
Given that the trial court based its decision that the issue was not
raised at the administrative level by any person, and Public Code Resources
§21066 identifies a person as any city or state agency, which the Department
of Transportation qualifies, this issue was in fact raised at the administrative
level and can be relied upon by Petitioners in this action.
Next, the trial court opined that it was permissible to exclude these
other projects and specifically identified the Edinger Beach Corridor Project
because this project and the Corridor Project were "too distant to impact
traffic in the DTSP area." Given that the City actually evaluated four
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projects outside the one mile range of the project area, the Senior Center,
Parkside Estates, Ocean Breeze Plaza, and Harmony Cove, the Trial Court's
rational to support its position is based upon incorrect facts and therefore the
conclusion in Section IX of the ruling must be reversed.
Interestingly enough, the Trial Court' ruling concluded that whether
the Pacific City Project construction will coincide with any development
related to DTSP is "pure speculation" and the EIR is therefore not required
to address such speculation. (CT 2:399) However, the Cumulative Impacts
Section for the Project did in (act evaluate the Pacific City Project,
completely contradicting the trial court's conclusion that such evaluation
would be "pure speculation." This is further evidence that the City acted in
an arbitrary and capricious manner, picking and choosing only the
environmental issues they wish to evaluate, ignoring all others. The City's
blatant disregard of this Project's impacts, is a prime example as to why the
Legislature enacted the CEQA.
(b) Cumulative Project Impacts.
The EIR for the DTSP Update identifies 19 projects that may have
cumulative effects within the vicinity of the proposed Project. These 19
projects are identified in Table 1 attached hereto. [AR 8)89-190](CT 1 :148]
The Traffic Analysis section of the EIR only identifies 13 projects.
Of the 13 projects, 3 projects are not listed in the Cumulative Project Section
ofthe EIR. [AR 8:387](CT 1:148)
The three missing projects not identified in the cumulative effects
section of the EIR are:
Longs Drug;
Fein Medical;
Newland Residential. (See AR 8:189-190)(CT 1:149)
Newland Residential is identified in the Cumulative Traffic Section as
a, 'Single-Family Residential Project which includes 201 dwelling units and
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expects 1,976 average daily trips.' [AR 8:387] This project should have
been analyzed in the Cumulative Project Section given that the Cumulative
Project Section did identify the "Newland Street Widening Project," which is
intended to widen Newland Street between Pacific Coast Highway and
Hamilton Avenue. This project should have been listed and evaluated as this
project may compound the impacts of the Project under review. (CT 1: 149)
The same is true for the Longs Drugs Project and Fein Medical
Project. Both have been identified as projects that could have cumulative
traffic impacts. To ignore and not evaluate these three projects in the
Cumulative Development Section of the EIR violates Section 15355 of
CEQA Guidelines and, thus, constitutes a prejudicial abuse of discretion.
(c) Cumulative Traffic Section.
The projects that were evaluated for potential traffic impacts from
projects that have been approved, pending or future, in the vicinity of the
Project areas are listed in Table 4.12.3 ofthe EIR [AR 8:387; 14:737] as
follows: (CT 1:149)
The Strand; Parkside Estates; Fein Medical; Pacific City; East Ocean Breeze Plaza; Waterfront-3rd Hotel; Senior Center; Harmony Cove; Newland Residential; Bridge Water; Longs Drug; Magnolia Pacific Plan;
Mixed use project.
There are 9 projects that are identified in the Project Cumulative
Effects Section and not identified or analyzed in the Traffic Cumulative
Effects Section. The projects that are missing and not analyzed in the Traffic
Cumulative Effects Section are: (CT 1: 149)
1. The Beach/Edinger Corridor Study;
2. The Newland Street widening; 3. Orange Coast River Park; 4. Huntington Beach Wetland
Conservancy Restoration Plan;
5. Poseidon Seawater Desalination Facility;
6. Edison Community Center; 7. Gun Range; 8. Talbert Lake Water Quality
Project; 9. Rainbow Disposal.
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Of the 9 projects that were not analyzed for their traffic impacts, four of the
more significant projects are listed as follows: (CT 1: 150)
• The Beach!Edinger Corridor Study- this project envisions new zoning and properties along Beach Blvd. and Edinger, located within 1 mile of the Project site. The Specific Plan for the Beach/ Edinger Corridor would allow for the addition of up to 6,400 dwelling units, 874,600 sq. ft. of retail, 350 hotel rooms and 112,000 sq. ft. of office use. [AR 8:189]
• Edison Community Center seeks to convert Edison Community Park into a youth sport complex including soccer fields and a more lighted practice area. The project is located within 1 mile of the Project site and may also include a skate park. [AR 8:189] .
• The Talbert Lake Water Quality Project and the Rainbow Disposal which is a master plan to expand the existing material recovery facility and transfer station. This project is located more than 1 mile from the Project site. [AR 8: 190]
• Gun Range, an EIR is under way evaluating a site located in Central Park. This project is located more than 1 mile from the Project site [AR 8:190]
The omission in the Traffic Cumulative Effects Section of the
Beach!Edinger Corridor Study alone would invalidate the analysis. The
Beach!Edinger Corridor is within one mile of the Project area and
anticipates the addition of significant new development. [ AR 8: 189]
Further, omission of the Edison Community Center Youth Sport Complex
from the Traffic Cumulative Effects Study is also fatal to the study's validity
given the traffic impacts that accompany such facilities. (CT 1:150)
When the City was questioned by the Department of Transportation
District 12, as to why the list of cumulative projects for the traffic study on
pg. 4-196 was different from the one found on page 3-38 for Cumulative
Development Projects [AR 15:1733], the City simply responded as follows,
"The list of cumulative projects on Table 4.12.3 was provided by the City Planning Department and covers the projects anticipated to contribute traffic through the Downtown study area. Traffic from projects outside the 1
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mile range from Downtown and long-range projects such as the Poseidon, Ocean Breeze, Edinger/Beach Specific Plan are accounted for in the annual compound growth rate applied to develop year 2020 and 2030 forecast." [AR 15:1829](CT 1:150)
However, the response by the City is untrue. The cumulative year
2020 traffic volume without project and cumulative year 2020 plus project
conditions failed to show that the impact of these 9 missing projects are
accounted for and analyzed, as these projects are not identified on page 4-
196 under Table 4.12.3. [AR 8:388] The same is true for cumulative year
2030 projection. The Poseidon, Ocean Breeze, Edinger/Beach Specific Plan
Project, and the Edison Community Park Youth Sport Center are all missing.
[AR 8:392-393] Review of the Kimley-Hom Traffic Analysis, dated June
2009, sets forth the list of projects that were reviewed on Table 2 of the
Traffic Study. [AR 14:736-737] Table 2 of the Traffic Study lists the same
projects identified in Table 4.12.3 ofthe EIR. [AR 8:387] This list does not
include the 9 missing projects. ( CT 1 : 151)
Thus, nine projects identified as Cumulative Projects under the
Cumulative Project Section were never evaluated nor discussed in the
Cumulative Traffic Section; and 3 projects identified in the Cumulative
Traffic Section, were never discussed or evaluated in the Cumulative Project
Section. There is no explanation for the omission of discussion of these
projects. The City Council abused its discretion as it failed to proceed in the
manner required by law. (Bakersfield Citizens, supra, 124 Cal.App.4th at
1197 -98), and failing to provide adequate responses to public comments
(Berkeley Jets, supra, 91 Cal.App.4th at 1371). (CT 1:151)
Here, the EIR omission of information about the Projects impacts on
parking and traffic makes informed review and decision impossible. If an
EIR fails to include relevant information and precludes informed
decisionmaking and public participation, the goals of CEQA are thwarted
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and a prejudicial abuse of discretion has occurred. Laurel Heights L supra,
at 47 Cal.3d 128.
(d) Cultural/Performing Arts Center
("Performing Arts Center")
The City failed to discuss and evaluate, as a cumulative project impact
and cumulative traffic impact, the potential development of a Performing
Arts Center at the north end of Main Street, even though the EIR is filled
with statements relating to the proposed development of a Performing Arts
Center. (Reference cites include but not limited to: [AR 8:213,254, 312,
341, 385; AR 53:5698](CT 1:152)
The DTSP Update includes a Cultural Arts Overlay. This overlay is
provided in District 1 to promote and enhance cultural arts within the City by
allowing the continuation and further enhancement on existing cultural
facilities within the Downtown. [AR 9:479] The overlay would allow for
future development of a Cultural/Performing Arts Venue at the north end of
Main Street. [AR 8:212-213] Though the EIR discusses the, "New
Performing Arts Center," and even addresses the square footage up to 30,000
sq.ft. [AR 8:312] and the parking demands to be 200 spaces [AR 53:5698],
the Performing Arts Center is not ~dentified as a proposed future project.
The EIR does not assess or address any of impacts associated with the
Performing Arts Center, it does not address the amount of visitors that will
be attending events at the Performing Arts Center nor does it address the ·
increased volume and congestion that will be caused due to the construction
and implementation ofthe Performing Arts Center. (CT 1:152)
The trial court ruled, "[t]he EIR makes clear that the DTSP does not
propose the development of any project including the Cultural Arts Center,
and that additional CEQA review will be anticipated if such a project
succeeds. This is sufficient for a Program EIR" (CT 2:399)
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As briefed above, Creed holds that, "The program EIR should focus
on the 'cumulative' or 'synergistic' impacts ofthe entire program."
(emphasis added) (at pg. 608). Further, pursuant CEQA Guidelines
§ 15152(b ), "tiering" environmental review "does not excuse the lead agency
from adequately analyzing reasonably foreseeable significant environmental
effects of the project and does not justify deferring such analysis to a later
tier EIR or negative declaration."
The trial court and the City wish to defer environmental review of the
proposed 30,000 sq. ft New Performing Arts Center. Given that this project
is referenced throughout the EIR, deferral of the environmental impacts this
project would have on the environment is improper and in violation of
CEQA Guidelines § 15152.
(e) Public Service
The trial court ruling holds that Petitioners failed to raise the Public
Services issue at the administrative stage and therefore, the argument is
waived. (CT 2:393) This is an incorrect statement. Petitioners did exhaust
on the issue of Public Service and Police Protection. The issue was raised by
Ron McLin in comments on the Environmental Impact Checklist. [AR
9:536] (CT 2:338) Further, Michael C. Adams listed his concern about
public services in a comment letter dated September 1, 2009. · [ AR 15:17 53]
(CT 2:340)
Mr. Adams comment letter stated, "A true quantitative analysis of the
potential downtown growth is not presented in the EIR, currently the police
services are challenged with the existing supply of bars and restaurants, the
changes to the Specific Plan will allow the current number to nearly double.
The Fire department has expressed their concerns, however there was no
discussion in response to the change in response time with the realigned and
narrower streets through the downtown ... " [AR 15:1753](CT 2:340)
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The City was well aware of issues with respect to public service.
Further, there have been countless newspaper articles about the issues
relating to the Downtown area and the high rate of alcoholism and drunk
driving. Petitioners attempted to introduce such evidence with a Request for
Judicial Notice that was denied. Therefore, as evidenced above, this issue
was exhausted. (CT 2:276)
As to the merits, the DTSP and EIR do not adequately address the
very high concentration of alcohol serving restaurants, and the future impact
of visitor serving facilities on the surrounding neighborhoods and public
services. The Section addressing police services found at AR 8:355 ( CT
2:342) is only three paragraphs and makes no mention how the police will
serve the additional retail, restaurant and bars that will be developed. The
conclusions set forth in the EIR are not supported by substantial evidence in
the record that potential public service impacts would be reduced to levels of
insignificant with the exception of fire.
EIR concluded that population increase will trigger the need for
additional public services. The EIR analysis however, does not address the
visitors that will be descending upon the Downtown area who will be visiting
the newly added retail, restaurant, office, hotel and cultural facilities.
Though the EIR addresses population increase that will be due to residents, it
does not address issues relating to increases of visitors who will be going to
the Downtown area to visit the retail shop, restaurant, office, hotel and
cultural facilities.
QUESTION 6. Is the trial court's Written Statement of Decision
deficient?
A. FURTHER RULINGS REQUESTED
The City requested a Written Statement of Decision at the conclusion
of the trial court's hearing on the merits. (CT 1 :242) The written Statement
of Decision ("SOD") failed to address a number of issues set forth in
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Petitioners' Opening Brief. Here, the trial court used the approach of
converting its tentative decision into a statement of decision by stating the
tentative decision shall be deemed the court's statement of decision absent a
formal request for a statement of decision. (CRC 3.1590)
In such event, the tentative decision effectively operates on appeal as
a CCP §632 statement of decision. Slavin v. Borinstein (1994) 25 CA4th
713, 718-719. Petitioners timely pointed out the problems and omissions in
the SOD and, inter alia, requested that a ruling on each issue listed below be
made. (CT 2:276 et seq.) The trial court failed or refused to rule on those
issues. As the Statement of Decision is incomplete, reversal is required as a
matter oflaw. Social Service Union, Local535, SEIU, AFL-CIO v. County
of Monterey (1989) 208 CA3d 676, 681; Marriage of Sellers (2003) 110
CA4th 1007, 1010. See also, Reid v. Moskovitz (1989) 208 CA3d 29, 32 (no
presumption of findings that the trial court refused to make). The specific
areas of deficiency follow ..
1. Water Supply
The issue of the adequacy ofthe EIR's discussion of water surplus
was not addressed. Petitioner's Opening Brief at Trial ("POB ")(CT 1: 166)
with the SOD (CT 1:211 et seq.; CT 2:370). Briefl>', it is Petitioners position
that the EIR failed to provide information about the environmental
consequences of supplying water to the project. The informational purposes
of the EIR were not satisfied because the decisionmakers were not provided
with enough information to evaluate the pros and cons of supplying the
amount of water that this Project will need.
2. Hazards and Hazardous Waste
This issue, though thoroughly briefed ( CT 1: 166-167), was not
addressed in the SOD. (CT 1:242 et seq., 2:370) The EIR found that the
impact or waste will be less than significant due to the implementation of a
mitigation measure, that only mitigates the impact of removing hazardous
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materials during construction in the project area. This analysis ignored the
second half of the question, or issues after the project is constructed.
3. Air Quality and Global Warming
This issue was also thoroughly briefed (CT 1: 166-167) but not
addressed in the SOD. (CT 1:242 et seq., 2:370) The EIR failed to properly
address these issues. ( CT 1 : 166-16 7)
4. Incomplete Analysis of the No-Project Alternative
The Trial Court did not rule on Petitioners' contention that the no
project alternative is vague and its impacts are discussed in only general
terms. This issue, though thoroughly briefed ( CT 1: 166-167) is not
addressed in the SOD. (CT 1:242 et seq., 2:370; CT 1: 170-172). Again,
pursuant to CEQA Guidelines § 15126.6, the "purpose of describing and
analyzing a No-Project Alternative is to allow the decisionmakers to
compare the impacts of approving the proposed project with the impacts of
not approving the proposed project."
5. Unreasonable Range and Description of Alternatives
This alternative issue was fully briefed at trial. (CT: 170-171) The
Court failed to address it despite Appellant's request to do so. (CT 1:242 et
seq.; 2:370)
The alternatives are so vague that the City cannot accurately compare
the Project to the Alternatives. The EIR was clearly inadequate but the Court
failed to address the issue (POB, CT 1:153-156 with SOD, CT 1:242 et seq.,
CT 2:370).
6. Cultural Resources
Issues relating to cultural resources, the Library and Land Use and
Planning were exhausted at [AR 15:1781-1805], through a detailed comment
letter by attorney Ryan M. Easter dated September 1, 2009. One of the most
heavily disputed issues was the effect on the Historic City Library. The EIR
identifies four significant historical resources located within the Project
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boundaries. Three of these significant historical resources are listed on the
National Register of Historic Places ("NRHP") and the fourth is listed as
NRHP eligible. All four of these significant historical resources are listed on
the California Register of Historic Resources ("CRHR"). [AR 15:1782](CT
1:153) These issues were raised at trial and were yet ignored in the EIR in
the decision ofthe Trial Court, cf. POB (CT 1:153-156) with SOD (CT
1:242 et seq., 2:370).
CEQA Guidelines §15064.5(a)(2) state that an historical resource
"included in a local register of historical resources ... shall be presumed to be
historically or culturally significant." [AR 15:1785[(CT 1:155)
As explained at Trial, the Library is designated as a local landmark in
the General Plan Historic and Cultural Resources Element. Therefore,
pursuant to CEQA Guidelines §15064.5(a)(2), the Library is presumed to be
an historical resource, and should have been identified as such in the EIR.
[AR 8:253](CT 1:146, 155) This omission is a violation ofCEQA
Guidelines §15064.5(a)(3).
As was further pointed out below, the General Plan Historic and
Cultural Resources Element ("HCR") lists "local landmarks considered to be
of significant importance to the local community," as defined by the Historic
Resources Board ("HRB"), and states that the "intention ofthe HRB [is] to
place these structures and places on a City listing for protection and/or
preservation .... " The City and its consultants were aware that the Library is
listed as a local landmark in the HCR. [AR 8:254]
Regarding the HRB, the DTSP Update went on to eliminate the
HRB's advisory capacity to the Planning Commission to oversee the
selection of local landmarks that are identified in the General Plan, an
advisory capacity for which the current DTSP explicitly provides. The
DTSP Update does not provide for the HRB to retain its advisory role, which
is inconsistent with the General Plan (which also recognizes the Library as a
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landmark), and the EIR fails to analyze the impacts associated with removing
the HRB from providing such advisory role. (CT 1: 162) Further, the EIR
set forth the definition of "historical resource" in CEQA Guidelines
§15064.5(a)(3), but disregarded the definition given in the immediately
preceding sub-subsection, CEQA Guidelines §15064.5(a)(2). The refusal to
address this key issue leads to the question as to whether the City
intentionally avoided analyzing the impacts to the Library.
The EIR must identify the Library as an historical resource and must
analyze impacts to it and the trial court should have addressed the issue.
The EIR states on p. 4-63 [AR 8:254] that "specific development
proposals are not contemplated for the project, including development on the
library site." However, the Project allows for the development of a Cultural
Arts Center on the Library site. The existing library is only 9,034 SF [AR
15: 1786], so the Cultural Arts Center, as proposed, will be approximately
three times the size of the Library. Specifically, the Project requires that the
Cultural Arts Center stand no more than 3 stories and 3 5 feet tall, and span
no more than 30,000 square feet. Furthermore, the Project provides that
there be no net loss of green space on the Library site. [AR 8:312-313]
The EIR fails to explain how this building could be reconstructed
without impacting the library. Thus, construction of the Cultural Performing
Arts Center in strict compliance with the development limits set forth in the
DTSP Update will cause a substantial adverse change in the significance of
the Library.
Ill
Ill
Ill
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VII. CONCLUSION
It is respectfully requested that the Trial Court's ruling be reversed.
Oated: February 27, 2012 .
· .
. ......
,;, .
. . Respectfully submitted,
SKA~ik LAw GROUP . ··· ...
By:J\~.~~~ Geralyn L Ska~ · Mark C. Allen III
Atto~eys for Plaintiffs/ Appellants HUNTINGTON BEACH NEIGHBORS
. . ..
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Table 1.
Proiects within the Project area:
Pacific City;
Pacific View mixed use project;
Waterfront-3rd Hotel;
The Strand.
Projects located within 1 mile of the Project site:
Beach!Edinger Corridor Study;
Newland Street Widening;
Magnolia Pacific Plan also known as
Ascon/Nesi Landfill;
Orange Coast River Park;
Huntington Beach Wetlands Conservatory
Restoration. Plans;
Poseidon Sea Water Desalinization Facility;
Edgewater Community Center.
Projects located more than 1 mile from the Project site:
Gun range;
Senior Center;
Talbert Lake Water Quality Project;
Bridgewater Annexation
Parkside Estates;
Ocean Breeze Plaza;
Rainbow Disposal;
Harmony Cove Residential Development.
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CERTIFICATE OF COMPLIANCE
Counsel of Record hereby certifies that pursuant to Rule 8.204(c)(1)
of the California Rules of Court, the Memorandum of Points and Authorities
is produced using 13-point Times New Roman type including footnotes and
contains approximately 13,941 words, which is less than the total words
permitted by the Rules of Court. Counsel relies on the word count of the
computer program used to prepare this brief.
Dated: February 27, 2012 SKAPIK LAW GROUP
By:JlM~~~M Geralyn L.' Skap1 ' Mark C. Allen
Attorneys for Plaintiff and Appellant HUNTINGTON BEACH NEIGHBORS
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CERTIFICATE OF MAILING
I, the undersigned, whose address is 250 West First Street, Suite 330,
Claremont, California 91711, certify that I am, and at all times hereinafter d-1
mentioned was, more than 18 years of age and that on February ~ 2012, I
served a true copy of the foregoing APPELLANTS' OPENING BRIEF by
U.S. Mail, first class postage pre-paid, addressed as follows:
Jennifer McGrath, City Attorney John M. Fujii, Sr. Deputy City Attorney Scott Field, Asst. City Attorney CITY OF HUNTINGTON BEACH 2000 Main Street Huntington Beach, CA 92648 Tel: (714) 536-5555; Fax: (714) 374-1590 sfield@surfcity-hb.org jfujii@surfcity-hb.org Attorneys for Respondents: City of Huntington Beach and Huntington Beach City Council
Murray 0. Kane, Esq. Donald P. Johnson, Esq. KANE, BALLMER & BERKMAN 515 South Figueroa Street, Suite 1850 Los Angeles, CA 90071 (213) 617-0480; Fax (213) 625-0931 mkane@kbblaw.com don@kbblaw.com Co-Counsel for Respondents: City of Huntington Beach and Huntington Beach City Council
Honorable Judge Nancy Wieben Stock Civil Complex Center Orange County Superior Court 751 West Santa Ana Boulevard Santa Ana, CA 92701
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(1 copy)
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Supreme Court of California 3 50 McAllister Street San Francisco, CA 941 02-4 797
The Attorney General's Office Consumer Law Section 1300 "I" Street Sacramento, CA 95814
(4 copies)
(1 copy) (CEQA)
I certify under penalty of perjury that the foregoing is true and correct.
;)1. Date: February).(,' 2012
MyraRios Print name
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