Opinion
B331601
09-30-2024
GLENDALE RESIDENTS AGAINST ENVIRONMENTAL DESTRUCTION, Plaintiff and Appellant, v. CITY OF GLENDALE et al., Defendants and Respondents.
Brandt-Hawley Law Group and Susan Brandy-Hawley for Plaintiff and Appellant. Cox, Castle & Nicholson, Michael H. Zischke, Lisa M. Patricio, Morgan L. Gallagher and Edward G. Schloss for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 22STCP01021 Curtis A. Kin, Judge. Dismissed as moot.
Brandt-Hawley Law Group and Susan Brandy-Hawley for Plaintiff and Appellant.
Cox, Castle & Nicholson, Michael H. Zischke, Lisa M. Patricio, Morgan L. Gallagher and Edward G. Schloss for Defendants and Respondents.
MOOR, J.
INTRODUCTION
The trial court denied a petition for writ of mandamus filed by plaintiff and appellant Glendale Residents Against Environmental Destruction (Plaintiff), challenging a project approval by defendants and respondents the City of Glendale, Glendale City Council, and Glendale Water and Power (collectively, the City). Plaintiff contends that the City violated the Glendale Municipal Code (GMC) and the California Environmental Quality Act (CEQA) when it certified a 2022 Final Environmental Impact Report (EIR) and approved a project to modernize its power generation facilities (the Grayson Project or the Project) without first obtaining input from the City's Historic Preservation Commission (HPC) regarding the proposed destruction of a historic structure called the Boiler Building.
CEQA is codified at Public Resources Code section 21000 et seq. All further undesignated statutory references are to the Public Resources Code. CEQA is implemented by an extensive series of regulations, codified at title 14 of the California Code of Regulations section 15000 et seq, and referred to as the Guidelines. (Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1184.)
The City contends Plaintiff's appeal is moot, arguing that no effective relief can be granted because the Boiler Building has already been destroyed. Alternatively, the City contends that Plaintiff has not met its burden to show error on appeal, because the City's actions were consistent with the GMC and CEQA. Plaintiff responds that its appeal is not moot, and alternatively contends that this court should exercise its discretion to decide the case on its merits, as it presents a matter of ongoing public concern.
We agree with the City that Plaintiff's appeal is moot, and we decline to exercise our discretion to consider the issues raised on appeal. The appeal is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Project Development and Approval
The City's preliminary consideration of the Grayson Project began in 2015. A 2016 initial study determined that the Project would not cause any significant impacts on any historical resources. A Draft EIR was circulated for a public review period of 62 days in 2017, and the City received over a thousand comment letters. In April 2018, the City Council deferred a vote to certify a 2018 Final EIR, instead directing Glendale Water and Power to explore more green and renewable energy alternatives.
In August 2021, the City circulated a Partially Recirculated Draft EIR (PR-DEIR) that evaluated additional green and renewable alternatives and included an updated cultural resources analysis. The updated cultural resources portion of the PR-DEIR treated the Boiler Building as a discretionary historical resource, added several mitigation measures related to the Boiler Building's status as such, and determined that the Boiler Building's demolition would result in a significant and unavoidable impact. The PR-DEIR was circulated on August 9, 2021 for a lengthy public review period of 101 days, and the City received numerous comments from various sources, including state, regional, and local agencies, interest groups, and individuals. The comments were either in writing or verbal comments received during a meeting on September 9, 2021.
We set forth, post at footnote four, a brief description of CEQA's framework for designating and treating a building as a discretionary historical resource. While both parties address the background and history of City's decision to treat the Boiler Building as a discretionary historical resource, we need not discuss that history as that fact is undisputed.
In the 2022 Final EIR, released on January 20, 2022, the City responded to a comment from the Glendale Historical Society concerning compliance with HPC review of the proposed Project as follows:
The PR-DEIR has determined that the proposed demolition of the historic Boiler Building will have a significant impact on an historical resource for which a statement of overriding considerations will be required for the Project to receive PR-DEIR certification. The City has not yet applied for a demolition clearance permit because the City Council first needs to award contracts for demolition and take action on Project funding for such demolition to proceed. Nonetheless, per GMC section 2.76.100.L the Project is being brought before the HPC at its regular January 20, 2022 meeting to provide information on the PR-DEIR, and the application for a demolition permit will be brought to the HPC for review as required by GMC Chapter 15.22.
On January 20, 2022, the HPC received an informational presentation about the Project from City staff and a consultant. At the presentation, one commissioner raised an objection to the lack of any opportunity for the HPC to make recommendations on the planned demolition of the Boiler Building.
The City Council held a noticed public hearing on February 15, 2022. During the public comment portion of meeting, a member of the HPC stated that the HPC had been denied the opportunity to review the Project and the 2022 Final EIR. In response to the comment, City staff explained that the HPC would review the demolition clearance permit, but a permit application could not be made until after the City Council had voted on to approve a project alternative from one of several described in the 2022 Final EIR. The City Council voted to certify the 2022 Final EIR. The City Council then adopted a resolution to move forward with project alternative number seven, as described in the 2022 Final EIR, which included demolition of the Boiler Building; the resolution also adopted a mitigation monitoring and reporting program and a statement of overriding considerations for significant and unavoidable impacts.
On July 28, 2022-after Plaintiff filed its petition for writ of mandate, but before the petition was denied-the HPC voted to approve the demolition clearance application for the Boiler Building. Demolition of the Boiler Building is now complete.
B. The Petition for Writ of Mandate
Plaintiff filed its petition for writ of mandate in March 2022. The appellate record does not include any indication that Plaintiff made a request in the trial court for emergency or any other type of temporary injunctive relief to preclude demolition of the Boiler Building while the petition was pending.
In April 2022, the case was related to a separate petition filed by the Sierra Club, challenging the same project approval, but on different grounds. The trial court denied the Sierra Club's petition, and their appeal is pending before this court.
After briefing by the parties, the trial court issued a written ruling on July 31, 2023. The court granted Plaintiff's request to take judicial notice of relevant portions of the GMC, but denied the City's request that the court take judicial notice of the HPC's meeting minutes and the related presentation slides for July 28, 2022 (i.e., the date on which the HPC approved the demolition), reasoning that because the meeting took place after the City Council certified the 2022 Final EIR on February 15, 2022, it had no bearing on the question of CEQA compliance.
Judgment denying Plaintiff's petition was entered on August 28, 2023. Plaintiff filed a timely notice of appeal.
C. Appellate Court Proceedings
On September 11, 2023-more than a year after the HPC approved the demolition clearance application in July 2022- plaintiff filed a petition for writ of supersedeas in this court seeking an immediate stay of demolition activity and a writ of supersedeas to maintain the status quo. After first issuing an immediate stay order on September 12, 2023, this court then vacated the stay and denied relief on September 20, 2023, on the grounds that Plaintiff had not given any adequate explanation for its multi-month delay in seeking a stay. Plaintiff filed a second petition for writ of supersedeas and a supplemental declaration on November 1, 2023, which was denied on November 17, 2023.
On April 15, 2024, the City filed a request for judicial notice, seeking judicial notice of the HPC's July 28, 2022 meeting minutes and presentation slides and of the fact that demolition of the Boiler Building had been completed. The HPC opposed taking judicial notice of the meeting minutes and slides, but conceded the request to judicially notice of the fact that demolition of the Boiler Building was complete. On May 2, 2024, this court took judicial notice of the fact that the demolition of the Boiler Building was complete., and deferred ruling on the HPC meeting minutes and slides. On May 17, 2024, the City filed a second request for judicial notice, seeking judicial notice of the July 28, 2022 meeting transcript. Plaintiff opposed this request. We take judicial notice of the HPC's action approving the demolition clearance application, but deny the remainder of the City's requests. (Evid. Code, §§ 452, subds. (c) &(h), &459, subd. (a).)
DISCUSSION
This appeal concerns the City's certification of the 2022 Final EIR in connection with approving the Grayson Project, which included the proposed destruction of the Boiler Building, a discretionary historical resource under CEQA. Plaintiff makes it clear that it does not oppose the overall Grayson Project; rather, the sole basis for this lawsuit and appeal is the City Council's failure to obtain input from the HPC before certifying the 2022 Final EIR and approving the Project. Plaintiff argues the City's actions violated the GMC and CEQA.
"CEQA and the Guidelines define the 'environment' to include 'objects of historic or aesthetic significance.' (§ 21060.5; Guidelines, § 15360.) The fact that an object of historic significance was manmade does not preclude it from being part of the environment protected by CEQA. (Guidelines, § 15360.) 'A project that may cause a substantial adverse change in the significance of an historical resource is a project that may have a significant effect on the environment.' (§ 21084.1.)" (Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, 1051 (Valley Advocates).) A structure's status as a historical resource for purposes of CEQA is either mandatory, presumptive, or discretionary, depending on whether it has been listed in various historical registers. (§ 21084.1; Guidelines, § 15064.5; Valley Advocates, at p. 1051.) If a building is included in a local register of historical resources, it is a presumptive historical resource. (Valley Advocates, at pp. 1054-1058.) If a building of some historical significance has not been included in any list, or even if it has been denied a place on a list, it is still a discretionary historical resource under CEQA. (Id. at p. 1060 ["lead agencies have discretionary authority to determine that buildings that have been denied listing or simply have not been listed on a local register are nonetheless historical resources for purposes of CEQA"].) If a building is a discretionary historical resource, the lead agency has discretion to determine whether to treat the building as a historical resource subject to CEQA or not. The decision must be made at the preliminary review stage, when the agency determines whether a project falls under CEQA and whether a categorical exemption to CEQA applies. (See Citizens for the Restoration of L Street v. City of Fresno (2014) 229 Cal.App.4th 340, 371.)
A. Plaintiff's Appeal is Moot
"An appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief." (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 (Rancho Cucamonga).) Courts have identified three discretionary exceptions to mootness: "(1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court's determination [citation]." (Ibid.)
In Save Tara v. City of West Hollywood (2004) 45 Cal.4th 116 (Save Tara), the California Supreme Court considered whether an agency's agreement to allow private development, conditioned on future compliance with CEQA, constituted project approval requiring preparation of an EIR before the approval. (Id. at p. 121.) While litigation challenging the agreement for CEQA compliance was pending, the City approved a final EIR for the proposed development, and the parties disputed whether the appeal was rendered moot by the approval of a final EIR. (Id. at p. 127.) The Supreme Court reasoned that the adoption of the final EIR did not render the pending appeal moot, because "[n]o irreversible physical or legal change" had occurred. (Ibid.) Appellant's requested relief was an order setting aside the earlier approval with instructions to reconsider the approval, now informed by a complete EIR. (Id. at pp. 127-128.)
The City contends Plaintiff's appeal is moot because the destruction of the Boiler Building is complete, and even if we were to find a violation of the GMC or CEQA, no effective relief is available. In support of its position, the City cites to Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, which addressed mootness in the context of a CEQA challenge to the county's failure to prepare an EIR in connection with a phased street improvement project that included removal of numerous mature trees. (Id. at pp. 376-377.) Plaintiffs sought a writ of mandate to compel the county to prepare an EIR, despite the fact that for the completed phase of the project, the trees had already been removed. The trial court found that requiring an EIR after the tree removal would be futile, and the reviewing court agreed, finding the issue to be moot and explaining: "[t]he project is ended, the trees are cut down, and the subject is now moot insofar as resort to a planning or informational document, which is what an EIR is." (Hixon, supra, 38 Cal.App.3d at p 378; see also Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1575 (Wilson) ["California law has long recognized that the completion of a public works project moots challenges to the validity of the contracts under which the project was carried out"] (Id. at p. 1575.)
Plaintiff contends its appeal is not moot because the City bore the risk of proceeding before the court's decision was final and some mitigation measures could still be put in place. Neither of these arguments is persuasive.
Plaintiff relies on Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield) for its argument that the City proceeded at its own risk. In Bakersfield, the real parties in interest were private developers of two shopping mall projects, and the plaintiff challenged the city's project approvals based on inadequacy of the EIRs. (Id. at pp. 1194-1195.) The plaintiff was unable to obtain an injunction or a writ of supersedeas to stop construction while its petition and later appeal were pending, and the developers proceeded to partially construct and operate their projects, by leasing space to third parties. (Id. at p. 1195.) The developers argued that requiring further environmental study and revision of the EIR in such circumstances would be meaningless, rendering the CEQA challenge moot. The court rejected the developers' mootness argument, noting that the developers had expressly recognized they were proceeding at their own risk, and the city still had authority and discretion after further environmental study to require the projects to be modified, reconfigured, or reduced, or to impose mitigation measures. (Id. at p. 1203-1204.) However, the reviewing court drew an important distinction between the public agency approving the project and the private developer that proceeded at its own risk while litigation remained pending. "When an injunction is not granted after commencement of a CEQA action, the agency is to assume that the contested EIR or negative declaration satisfies CEQA's requirements. However, '[a]n approval granted by the responsible agency in this situation provides only permission to proceed with the project at the applicant's risk prior to a final decision in the lawsuit.' (Guidelines, § 15233, subd. (b).)" (Bakersfield, at p. 1203.) Here, because Plaintiff did not seek or obtain an injunction, the City- in its capacity as the public agency approving the project-was entitled to assume its approval met CEQA's requirements. The City is differently situated from a private developer acting in the face of pending litigation.
Because the Boiler Building has already been destroyed, we see no reason to depart from the principle that "CEQA's purpose is not to generate meaningless paperwork." (Bakersfield, supra, 124 Cal.App.4th at p. 1203.) The facts before us are more analogous to Hixon, supra, 38 Cal.App.3d at page 378, where the CEQA challenge to a project carried out by a public agency was moot because the underlying action-whether tree removal or a building's demolition-had already taken place. And the current facts are distinguishable from Save Tara, supra, 45 Cal.4th at page 121, involving a CEQA challenge to a development effort spearheaded by two private nonprofit organizations was found not to be moot because no physical or legal changes had occurred.
Plaintiff also argues that effective relief is still available in the form of additional mitigation measures, but its petition for writ of mandate only sought an order for the City to set aside its Project approvals and refrain from further consideration of Project approval pending full compliance with the GMC and CEQA and to enjoin any construction or demolition activity. "A project's completion also moots requests to set aside or rescind resolutions authorizing the project." (Wilson, supra, 191 Cal.App.4th at p. 1576.) Here, the PR-DEIR and the 2022 Final EIR both identified the Boiler Building as a discretionary historical resource and included mitigation measures relevant to the building's historic value. Plaintiff has not offered any legal authority for this court to order the City to take any additional mitigation measures. Just as the removal of trees rendered portions of an appeal moot in Hixon, the destruction of the Boiler Building makes plaintiffs appeal moot, as we cannot grant any effective relief.
B. We Decline to Exercise Our Discretion to Decide the Moot Question
Plaintiff next contends its appeal presents an issue of ongoing public concern such that we should address the merits, even if we cannot afford it effective relief to remedy the loss of the Boiler Building as an historic resource. Plaintiff argues that, absent reversal, the City will continue to make project approvals affecting historic resources other than the Boiler Building without timely consultation with the HPC.
Plaintiff again relies on Bakersfield to argue that we should exercise our discretion to consider the moot question and reverse and remand the matter with instructions that the City should give no weight to its earlier approval. (Id. at pp. 1202-1204.) In Bakersfield, while the plaintiffs' appeal was pending, the shopping centers at issue were partially completed, and some businesses had started operating. (Id. at pp. 1202-1203.) Reaching the merits of the plaintiffs' appeals, the appellate court concluded that the EIRs at issue were inadequate as informational documents under CEQA and must be decertified because they did not consider the two distinct projects' separate and cumulative potential to cause urban decay, and the portion of each EIR analyzing cumulative impacts was defective for failing to consider the environmental impacts of the other shopping center. (Id. at pp.1193, 1204-1219.) Here, in contrast, Plaintiff has never identified any inadequacy in the certified 2022 Final EIR, instead focusing solely on the process the City employed, arguing the City violated CEQA and the GMC by taking the position that the HPC did not need to be consulted before the 2022 Final EIR could be certified. Even the Bakersfield court acknowledged that it was not the purpose of CEQA to generate meaningless paperwork, and that "[w]hen an injunction is not granted after commencement of a CEQA action, the agency is to assume that the contested EIR . . . satisfies CEQA's requirements." (Id. at p. 1203.)
We are unpersuaded by Plaintiff's argument that absent a ruling on the merits, the City will continue its practice of certifying EIRs without consulting with the HPC. Should a similar situation arise in the future, Plaintiff or a similar group of concerned citizens can take more timely steps to delay the proposed project until the CEQA issue is resolved. Plaintiff's failure to do so in this case does not change our reasoning. We agree with the City that the destruction of the Boiler Building renders Plaintiff's appeal moot. There is no practical relief that this court can provide, because the destruction of the Boiler Building has already taken place, with the HPC's approval of the demolition application.
DISPOSITION
The appeal is dismissed. In the interests of justice, each party is to bear its own costs on appeal.
We concur: BAKER, Acting P. J. DAVIS, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.