Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Los Angeles County Super. Ct. Nos. BS096810, BS096854 & BS096861
Gaines & Stacey, Fred Gaines, Lisa A. Weinberg and Noelle V. Bensussen for Plaintiff and Appellant LHO Grafton Hotel, L.P.
Epport, Richman & Robbins, Mark Robbins, Steven C. Huskey and H. Mark Madnick for Plaintiff and Appellant Mondrian Holdings LLC.
C. Robert Ferguson for Plaintiff and Appellant SOS Save the Sunset Strip Coalition.
Jenkins & Hogin, Michael Jenkins, Christi Hogin and John C. Cotti for Defendants and Respondents City of West Hollywood and City Council of the City of West Hollywood.
Weston Benshoof Rochefort Rubalcava & MacCuish, Steven W. Weston, Nicki Carlsen and Christopher J. Diaz for Real Parties in Interest and Respondents Sunset Millennium Associates, LLC and Apollo Real Estate Advisors, LP.
KLEIN, P. J.
In these three consolidated appeals, plaintiffs and appellants LHO Grafton Hotel, L.P. (Grafton), Mondrian Holdings LLC (Mondrian), and SOS Save the Sunset Strip Coalition (Coalition) appeal judgments denying their petitions for writs of administrative mandate, wherein they sought to overturn a decision by defendants and respondents City of West Hollywood (City) and the West Hollywood City Council approving a development project by real parties in interest and respondents Sunset Millennium Associates, LLP (Millennium Associates) and Apollo Real Estate Advisors, LP (Apollo).
The essential issue presented is the adequacy of the project’s environmental review.
We conclude the environmental impact report (EIR) adequately analyzed the impacts of the project and that the statement of overriding considerations is supported by substantial evidence. Therefore, the judgments are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The Sunset Millennium Project is a partially completed mixed-use real estate development project at the intersection of Sunset Boulevard and La Cienega Boulevard. The project site consists of three parcels, the “West Parcel, ” the “Middle Parcel” and the “East Parcel.” In 1999, the City approved the project. The developer proceeded to develop the West Parcel and that parcel is not at issue in this litigation.
Due to changed market conditions, the developer subsequently reconsidered the development of Middle and East Parcels and replaced the planned office space with residential use. Those revised development proposals are the subject of this controversy.
The revised project calls for two 10-story, 100-foot high hotels (with a total of 296 rooms), two 9-story, 100-foot high residential condominium buildings (total of 190 units) and restaurant and retail uses.
The City determined the project had the potential for significant environmental impacts and circulated a Notice of Preparation of a draft EIR, with a 30-day review period beginning October 23, 2003.
On February 3, 2004, the City held a public meeting to address the scope of the proposed EIR at which time the public submitted written and oral comments. Based upon the comments, the City revised the scope of the EIR to include additional impact categories.
On August 27, 2004, the City released the draft EIR for public review. The City received 138 comment letters and emails during the public comment period, which ran through October 26, 2004. The Planning Commission held a meeting on October 21, 2004, at which time additional comments were received.
The City responded to the comments. Based upon the comments received, the City determined that recirculation of the draft EIR was not required. The City issued the final EIR on January 13, 2005. On January 19, 20 and 27, 2005, the Planning Commission held a public hearing to consider the final EIR and the proposed project. On January 27, 2005, the Planning Commission recommended to the City Council that the final EIR be certified, that a statement of overriding considerations be adopted and that the proposed project be approved.
Following a public hearing on April 13, 2005, the City Council approved Resolution 05-3208 which certified the final EIR, adopted a mitigation monitoring program, adopted a statement of overriding considerations for the project and approved the entitlements for the revised project. The City Council enacted Ordinance No. 05-708, approving the Amended and Restated Development Agreement No. 003-004 and Zoning Map Amendment No. 004-001, creating a Development Agreement Overlay District.
In May 2005, two neighboring hotels, the Mondrian and the Grafton, and the Coalition, a citizen’s group, filed petitions for writ of mandate to overturn the City’s certification of the EIR and approval of the project. The trial court deemed the cases related. On March 14, 2006, the trial court heard and denied the petitions.
Grafton, Mondrian and the Coalition appealed the judgments.
CONTENTIONS
Grafton contends: it has standing to sue under CEQA for the City’s certification of an EIR that fails to adequately disclose, evaluate and mitigate the current project’s construction noise, vibration, parking and traffic impacts; the EIR fails to meet CEQA requirements in various respects; and the approval of the current project was prohibited by City code and CEQA as it was inconsistent with the Sunset Specific Plan.
Mondrian contends: the project contains significant unmitigated environmental impacts without ample evidentiary justification; the project violates the Sunset Specific Plan and respondents’ exemptions from the Plan are improper; and the City improperly failed to provide any meaningful analysis of the project’s potential to cause urban decay.
The Coalition contends: the City failed to include the impact on residential neighborhoods in its EIR; the emergency access problems to the surrounding residential neighborhoods are not addressed; neighborhood traffic problems are not addressed; respondents’ EIR fails to adequately evaluate and analyze the parking impact; a noise and vibration abatement plan is required to mitigate noise during construction; the City’s EIR fails to lawfully evaluate the project’s significant impacts on air quality; and the City’s statement of overriding considerations fails to identify supporting substantial evidence.
DISCUSSION
1. General principles and standard of appellate review.
We begin with the premise that the judicial system has a narrow role in land use battles that are fought through CEQA actions. The only role for this court in reviewing an EIR is to ensure that the public and responsible officials are adequately informed of the environmental consequences of their decisions before they are made. (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1356; Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1196 (Bakersfield).)
CEQA is codified at Public Resources Code section 21000 et. seq. CEQA is augmented by the state CEQA Guidelines, codified at title 14 of the California Code of Regulations section 15000 et. seq., and the Guidelines are given great weight. (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123, fn. 4.)
Unless otherwise specified, all statutory references are to the Public Resources Code. The state CEQA Guidelines will be cited as Guidelines.
The applicable standard of review is well established. If the substantive and procedural requirements of CEQA are satisfied, a project may be approved even if it would create significant and unmitigable impacts on the environment. (Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, 242; Bakersfield, supra, 124 Cal.App.4th at p. 1197.) “In reviewing an agency’s determination under CEQA, a court must determine whether the agency prejudicially abused its discretion. (§ 21168.5.) Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence.” (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal. App.4th 20, 25-26 (Dry Creek).) Courts are “not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391 (Irritated Residents).) “ ‘The appellate court reviews the administrative record independently; the trial court’s conclusions are not binding on it.’ ” (Id. at p. 1390.)
“ ‘The EIR must contain facts and analysis, not just the bare conclusions of the agency.’ [Citation.] ‘An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ ” (Irritated Residents, supra, 107 Cal.App.4th at p. 1390.) “CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive.” (Dry Creek, supra, 70 Cal.App.4th at p. 26.) Therefore, “[n]oncompliance with CEQA’s information disclosure requirements is not per se reversible; prejudice must be shown.” (Irritated Residents, supra, at p. 1391; § 21005, subd. (b).) Failure to comply with the information disclosure requirements constitutes a prejudicial abuse of discretion when the omission of relevant information has precluded informed decision making and informed public participation, regardless of whether a different outcome would have resulted if the public agency had complied with the disclosure requirements. (Dry Creek, supra, at p. 26; Irritated Residents, supra, at pp. 1391-1392.)
The substantial evidence standard is applied to the agency’s factual determinations. It also applies to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions. (Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1259.) “Substantial evidence is defined as ‘enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.’ ” (Irritated Residents, supra, 107 Cal.App.4th at p. 1391; Guidelines, § 15384, subd. (a).)
2. The Grafton’s standing to raise certain issues.
A preliminary issue is Grafton’s standing to raise the issues of construction noise, construction vibration and parking impacts. The trial court ruled Grafton lacked standing to raise those issues.
a. Trial court’s ruling.
In this regard, the trial court ruled as follows: “The developer challenges Grafton’s standing to sue under CEQA on the ground that it is using CEQA to protect itself from competition from the hotel facilities that have been approved as part of the project, citing WASTE MANAGEMENT OF ALAMEDA COUNTY v. COUNTY OF ALAMEDA 79 Cal.App.4th 1223 (2000) [(Waste Management)]. Other courts have been loathe to follow WASTE MANAGEMENT because of the difficulty of striking the proper balance between two competing public interests: the interest in protecting the environment and the interest in prohibiting restraints upon fair competition. In this particular case that tension should be resolved by considering the substance of Grafton’s arguments as well as its status as a competitor. Grafton should not be disqualified from bringing before the court legitimate questions of the effect of the proposed project upon the environment, but its contentions should be subject to scrutiny to ensure that the issues that it raises are those that affect the environment and not just the economic interests of Grafton. Applying such principles to the facts of this case, the court finds that Grafton’s contentions that it is subject to special protection from noise and vibration from the construction of the project ‘because the commercial activities of a hotel require the provision of the quiet and relaxed atmosphere, ’ [citation], its objection to permitting cars of patrons using the middle portion to park on the west portion of the development [citation], and its contended loss of the ‘exclusive’ use of parking spaces [citation], are contentions that have nothing to do with the environment and everything to do with Grafton’s peculiar status as a next door competitor of the hotel that is to be constructed as part of the project. Grafton’s objections on those grounds therefore must be posited on some legal principle other than CEQA. It must seek protection from such intrusions under some law that protects its private interest; it cannot be permitted to use CEQA to protect its private economic interests. public resources code, section 21080 (e)(2).”
In contrast, the trial court ruled Mondrian’s contentions “concerning urban decay, the sufficiency of the statement of overriding considerations made by the City, and alleged violations of the Sunset Specific Plan, raise legitimate environmental issues that are not peculiar to Mondrian, and Mondrian will therefore be held to have standing to make those contentions.”
b. Grafton has standing to raise contentions with respect to noise, vibration and parking, which concerns present legitimate environmental issues.
A petitioner has a beneficial interest in an agency’s decision affecting the environment and therefore has standing under CEQA if the environmental impacts of the project would adversely affect the petitioner. (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 272.) Courts liberally apply the standing requirement in CEQA cases and generally allow standing where the petitioner is a property owner or resident who establishes a geographical nexus with the project site. (Kane v. Redevelopment Agency (1986) 179 Cal.App.3d 899, 904; Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 158.) “[S]trict rules of standing that might be appropriate in other contexts have no application where broad and long-term effects are involved.” (Bozung, supra, at p. 272.)
Bozung was superseded by statue with respect to the issue of designation of a lead agency. (Natural Resources Defense Council, Inc. v. City of Los Angeles (2002) 103 Cal.App.4th 268, 271, fn. 2.)
Further, under CEQA a corporation is a person entitled to bring a suit for noncompliance (§ 21066) and “CEQA litigants often may be characterized as having competing economic interests.” (Burrtec Waste Industries, Inc. v. City of Colton (2002)97 Cal.App.4th 1133, 1138.)
The Grafton Hotel is situated on a parcel immediately adjacent to the East Parcel of the project. Waste Management is readily distinguishable because in that case there was no geographical nexus. (Waste Management, supra, 79 Cal.App.4th at p. 1236.) There, the two competing landfills were four miles apart and were separated by a natural geological divide. (Ibid.)
Thus, unlike the trial court, we do not perceive Grafton’s contention relating to noise, vibration and parking impacts as merely an attempt to prevent a competitor from entering the hotel market on the Sunset Strip. As an immediately adjacent property owner, Grafton would be affected by noise, vibration and a scarcity of parking in the area. Those are legitimate environmental issues rather than “rank commercialism.” (Burrtec, supra, 97 Cal.App.4th at p. 1139.) Therefore, we shall address Grafton’s contentions with regard to these issues on the merits.
As set forth later in this opinion, the final EIR included an adequate analysis of construction noise and vibration impacts, as well as an adequate analysis of parking issues. Therefore, the trial court’s ruling that Grafton lacks standing was nonprejudicial because the trial court’s decision upholding the City’s action is correct in result. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)
3. No merit to contention the EIR failed to provide meaningful analysis of project’s potential to cause urban decay.
Mondrian asserts the EIR failed to provide meaningful analysis of the project’s potential to cause urban decay. The trial court rejected this contention and we uphold that ruling.
a. Trial court’s ruling.
The trial court rejected the contention that the EIR does not analyze the project’s potential to cause urban decay on the ground “there is not a shred of evidence in the administrative record to suggest that the proposed project may cause urban decay. ‘[U]rban decay’ is not a magic phrase by which Mondrian can raise the issue by merely uttering the words. Cases that have held that an EIR must consider the possibility of urban decay are cases involving the development of a large shopping center on the outskirts of a town, which has the potential to draw business away from the smaller stores in the town’s urban center, thereby causing it to decay. Petitioner makes no attempt to explain how the construction of another hotel on the Sunset Strip will, even theoretically, cause urban decay. Mondrian’s failure to cite any supporting evidence in the administrative record for its contention suggests that Mondrian is really trying to use CEQA to protect its own economic interests by restraining fair competition.”
b. City properly rejected as speculative the claim that the project would cause urban decay; therefore, further analysis of the issue was not required.
In “appropriate circumstances CEQA requires urban decay or deterioration to be considered as an indirect environmental effect of a proposed project.” (Bakersfield, supra, 124 Cal.App.4th at p. 1205.) When there is evidence “suggesting that the economic and social effects caused by the proposed shopping center ultimately could result in urban decay or deterioration, then the lead agency is obligated to assess this indirect impact.” (Id. at p. 1207.)
Bakersfield, supra, 124 Cal.App.4th at page 1204, and American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062, 1081-1083, involve the development of massive Wal-Mart Supercenters, with evidence suggesting the projects could cause other stores to close and thereby cause urban decay.
Here, the City found the physical decay of the Sunset Strip area due to a high quality development was highly speculative and there was no evidence that existing hotels and other businesses would fall into urban decay and abandonment. Therefore, the City properly concluded the issue of urban decay did not warrant further discussion. (Guidelines § 15145 [CEQA does not require analysis of speculative impacts]; Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1186.)
4. The project’s alleged inconsistency with the Sunset Specific Plan and with the West Hollywood Municipal Code (Municipal Code).
a. The City properly allowed the developer to pay an in lieu fee to satisfy the affordable housing requirement.
Mondrian contends that in view of the magnitude of this project, i.e., larger than 20 units, the City unlawfully allowed the developer to pay a fee to the City’s Affordable Housing Trust Fund in lieu of designating affordable housing units on the project site. (Mun. Code, § 19.22.030(A)(2).) The contention fails.
Municipal Code section 19.22.040 provides at subdivision (A): “Developers of residential projects or projects proposing conversion of rental housing to common interest developments, with twenty or fewer units, may choose to pay a fee, or provide a combination of fee and units, in-lieu of providing the units on-site.” (Italics added.)
By way of background, 10 percent of the project’s market rate residential units shall be designated as affordable units on-site. Further, in lieu of additional on-site affordable residences, fees equivalent to an additional 10 percent affordable housing units would be paid to the City for affordable housing. Thus, total on-site and in-lieu fees for affordable housing would be equivalent to 20 percent of the total market rate units, so as to make the project consistent with the affordable housing policies of the City’s general plan.
The Municipal Code provides “Proposed development and land uses within the –[Development Agreement Overlay District] shall comply with all applicable development and land use standards specified in the subject development agreement . . . .” (Mun. Code, § 19.14.040(E).) Further, “[i]n the event of any conflict between the provisions of this chapter and other requirements of this article, the provisions of this chapter shall control.” (Mun. Code, § 19.14.020(C).) Because the instant project is located in a development agreement overlay zone, the development agreement may deviate from the requirements that would otherwise be applicable. Therefore, irrespective of the fact the project contains more than 20 residential units, the City lawfully permitted the developer to pay an in lieu fee in partial satisfaction of the affordable housing requirement.
Overlay zoning districts “are intended to produce development that conforms with the land use requirements of the applicable primary zoning district, while providing flexibility in the application of development standards where important site, neighborhood, or community characteristics require particular attention in project planning.” (Mun. Code, § 19.14.010.)
The trial court reached the same conclusion, ruling “the municipal code specifically provides that the development agreement may provide for a different affordable housing requirement than the ordinance.”
b. Density bonus for Middle Parcel was proper; the project as a whole is predominantly commercial.
The Sunset Specific Plan provides for the granting of a density bonus of 0.5 floor area ratio (FAR) for the inclusion of residential units in a commercial project where the commercial space is predominant in order to “meet the goals of increasing the City’s housing stock . . . and bringing more pedestrians to the street.” Grafton and Mondrian take issue with the City’s decision to grant a density bonus to the Middle Parcel of the project, raising its planned FAR from 2.75 to 3.25, because the Middle Parcel would be predominantly residential. They contend the density bonus must be calculated on a per parcel basis, rather than based on the project as a whole.
(1) Trial court’s ruling.
In rejecting this contention, the trial court ruled: “The contention is based upon the fact that the City allowed the contractor a density bonus pursuant to a provision of the specific plan that permits such a bonus when residential units are developed on commercially zoned property ‘so long as the residences constitute the secondary use’ of such property. The City justifies the density bonus on the basis that the total project consists of three parcels, one of which has already been developed, and that the three parcels taken together contain over a million square feet of commercial use and only 266, 408 square feet of residential use. Grafton quarrels with the propriety of counting all three parcels, rather than just the two parcels that are currently being developed. Grafton cites no authority that prohibits the City from considering the development as a whole in deciding whether to award the density bonus. The adoption of plans like the Sunset Specific Plan [does] not require a project to comply with every aspect of the specific plan. All that is required is a general harmony between the specific plan and the project. [(San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 678.)]”
(2) City properly awarded a density bonus based on the predominantly commercial nature of the project as a whole.
The Sunset Specific Plan does not define “site” as meaning separate parcels within a single project. Although the project comprises three parcels due to the geographic distribution of the project site across two public streets, the parcels are contiguous and were under common ownership and as such, are considered a single project site. The project is predominantly commercial, with a total square footage of 705, 790, of which only 266, 408 square feet is residential. (Admin. Record p. 5839.) The clustering of residential uses within one of the parcels comprising the project site is a reasonable distribution of those uses within the overall project. Because the land use is predominantly commercial, the City properly awarded a density bonus for the Middle Parcel.
5. The EIR adequately addresses parking issues; a benefit of the project is additional parking; the project does not create an adverse impact on parking.
The project calls for 811 parking stalls on the East Parcel and 468 stalls on the Middle Parcel, or 435 more spaces than are required under the City’s Municipal Code. The availability of 435 public parking spaces is a “notable public benefit” that results from the development of the project.
Nonetheless, Grafton contends the Middle Parcel is underparked because its uses require 556 spaces and only 468 spaces will be provided on the Middle Parcel, leaving the Middle Parcel underparked by 88 spaces. The argument is unavailing. All residents of the Middle Parcel will have their parking needs (including guest parking) met by the parking spaces provided on the Middle Parcel. The commercial users of the Middle Parcel would also have access to 120 spaces on the West Parcel which are reserved for users of the Middle Parcel. In view of the provision for commercial users of the Middle Parcel to park in the West Parcel, we reject the contention the Middle Parcel is underparked.
Grafton also contends the EIR fails to address the significant impact of the loss of the exclusive use of the 457 spaces on the project site to current off-site users (i.e., House of Blues, Grafton and Mondrian). Grafton asserts the 435 future “excess” parking spaces in the project are actually a reduction from the 457 parking spaces current utilized by these off-site users.
The draft EIR noted that “onsite parking lots accommodate existing offices on the Proposed Project Site and share space with the Mondrian Hotel and the House of Blues during non-business hours.” However, as set forth in the draft EIR, with respect to threshold of significance, a project would have a significant impact on parking if the project provides less parking than is needed to meet the proposed project’s parking demand. Accordingly, because the project is more than self-sufficient in terms of parking, the project does not have a significant impact on parking.
The record reflects the office and theater spaces at the site were vacated in anticipation of redevelopment of the site. Because the on-site uses are vacant, the developer made the on-site parking spaces available to nearby uses on an interim basis. However, the project site is not obligated permanently to provide on-site parking for those off-site uses. The cessation of the interim parking use does not constitute an adverse environmental impact. The project will make available 435 parking spaces to the public, largely replacing the 457 interim parking spaces. That is the notable public benefit of the project, in terms of parking.
For these reasons, we reject appellants’ contentions relating to parking.
6. Construction noise and construction vibration.
a. Overview.
The draft EIR evaluated construction noise and construction vibration impacts. It concluded that construction period noise impacts would be significant and that mitigation measures would be required. In response to comments from neighbors and Grafton, the City imposed noise mitigation measures, such as requiring the developer to erect a 20-foot-tall acoustic barrier along the East Parcel’s southern boundary, to implement mufflers or other sound reduction devices on construction equipment, and to install dual-paned windows in a neighboring residential building. Further, construction is prohibited between 7:00 p.m. and 8:00 a.m. on weekdays; exterior construction is prohibited on Saturdays; and no construction may occur on Sundays.
With regard to vibration impacts, the EIR concludes that vibration during construction would not create a significant impact.
b. Construction noise impacts.
Grafton contends that it is a “sensitive receiver, ” faced with the same noise impacts as the neighboring Fountain view apartments, and that it was “nonsensical” for the City to distinguish between these two properties, denying Grafton’s request to acoustically treat its west-facing windows while providing such mitigation to the Fountain view
The City denied Grafton’s request in this regard based on the following rationale: “[I]t is important to note that while hotels exhibit characteristics during nighttime hours that are analogous to residential uses (i.e., individuals engaging in relaxation and sleeping activities), hotels during daytime hours function as commercial uses. Since Project construction would occur in accordance with the provisions of Municipal Code Section 9.08.050, construction activities are not anticipated to be occurring during the hours of the day when occupants of the Grafton Hotel can reasonably expect to not be interrupted by noise attributable to Project construction activities. As such, Project construction would result in a less than significant impact with regard to impacts upon the occupants of the Grafton Hotel. Therefore, there is no basis under CEQA requiring the City to impose the construction noise mitigation measures identified by Gaines & Stacey.”
Given this rationale, we reject the contention it is “nonsensical” to treat a hotel as a commercial use during daytime hours.
However, Grafton argues it is not a typical business hotel -- the bulk of its clientele consists of vacationers who are there to experience the nightlife on the Sunset Strip and who expect to be able to sleep past 8:00 a.m. Be that as it may, the City reasonably concluded that limiting construction noise to the hours between 8:00 a.m. and 7:00 p.m. is a sufficient mitigation measure. (Guidelines, § 15126.4(a)(3) [mitigation measures are not required for effects which are not found to be significant].)
Further, if Grafton desires additional mitigation measures, the City has established a $1 million contingency fund (funded equally by the City and the developer) to address inconveniences created by the project to Grafton, Mondrian and Sunset Marquis, “to be allocated and expended in the City’s sole discretion.”
The Coalition merely adopts Grafton’s noise arguments. Therefore, the Coalition’s arguments in this regard do not require separate analysis.
c. Substantial evidence supports City’s determination that vibration during construction would not create a significant impact.
In response to Grafton’s concerns regarding the potential for ground-borne vibration impacts during construction, Arup, a firm specializing in acoustics and vibration, conducted an impact analysis which addressed, inter alia, vibration levels from large bulldozers, track excavator and loaded trucks. Arup concluded: “During the most vibration-intensive phases of the construction activity (i.e., site preparation/excavation and foundation constructions), construction activities on [the project] would produce ground vibration ranging from 0.36 inch-per-second PPV to 0.03 inch-per-second PPV at the Grafton Hotel property line. As such levels would not exceed the 2.0 inch-per-second PPV significance threshold, potential impacts would be less than significant and no mitigation measures are required.”
Arup further opined: “[I]t is unlikely that the construction related vibrations from multiple sources are . . . additive and that the ground-borne vibrations diminish in strength with distance from the source of vibration . . . .”
Grafton contends the Arup report fails to provide complete data, in that it fails, inter alia, to analyze levels attributable to the use of pile drivers. However, the reason the calculations of vibration levels excluded the use of pile drivers is that the developer indicated pile drivers would not be used on the project.
Grafton also takes issue with Arup’s conclusion that the vibrations from various pieces of equipment most likely would not be additive. The argument is unpersuasive. We conclude the City reasonably relied on the expert report of Arup, which studied the potential impact of vibrations during construction and concluded the impact would not be significant.
7. Emergency services
a. Trial court’s ruling.
In this regard, the trial court ruled: “[The Coalition] contends that the EIR does not adequately address the effect of the project upon the delivery of emergency services to the surrounding residential neighborhoods. With respect to firefighting and paramedic services, the contention has no merit. The obvious way to determine whether the project will substantially affect the delivery [of] such services to the surrounding neighborhoods is to ask the fire department that has the responsibility to delivery those services, in this case the Los Angeles County Fire Department. The project planners did so, and the fire department, in direct response, stated that the fire protection services in the area appear to be adequate for the project and that the implementation of the project is unlikely to require the construction of new fire protection facilities. [Citation.] The finding that the proposed project would result in a less than significant impact with regard to emergency fire protection and paramedic services is supported by substantial evidence.
“The EIR does not contain comparable evidence with respect to police protection, but [the Coalition] fails to cite to the administrative record to show that anyone questioned the effect of the project upon police protection at the administrative level. The contention that the EIR is inadequate in the regard appears to be raised for the first time in this proceeding, and is therefore not considered because of the failure of [the Coalition] to exhaust administrative remedies.”
As noted in the respondent’s brief filed by Millennium Associates and Apollo, the Coalition’s opening brief does not challenge the trial court’s ruling that there was a failure to exhaust administrative remedies with respect to the issue of the project’s impact on police protection. Therefore, we do not consider the issue.
b. EIR adequately addressed the impact of project on the fire department’s ability to respond to an emergency.
The Coalition contends the EIR fails to make any provision for the delivery of fire services to the affected residential neighborhoods, particularly in the hillside area north of Sunset Boulevard, when Sunset Boulevard is gridlocked. We agree with the trial court that the contention lacks merit.
The draft EIR stated the proposed project “is not anticipated to impair the [County Fire Department] from responding to service requests in the surrounding area or from reached the Proposed Project itself.” Thereafter, Los Angeles Fire Department West Hollywood Battalion Chief and others submitted comments during the public review period, raising concerns as to emergency access and circulation. Those concerns were addressed in the context of the final EIR, which included an evacuation plan and analysis for the single-family residential area north of the Sunset Strip. In that regard, Crain and Associates undertook an analysis and determined a feasible evacuation route exists, even at peak hours.
In addition, the final EIR requires roadway improvements, such as the elimination of a median east of La Cienega Boulevard, to facilitate emergency access (Mitigation Measure F-6) as well as payment by the developer of $100,000 to fund the Emergency Vehicle Traffic Signal Preemption Program, which allows fire trucks to hold red lights to block cross-traffic and to hold green lights to allow free passage of emergency vehicles.
In reviewing the project, the County Fire Department concluded “the EIR provides an adequate assessment of potential impacts of the Project with regard to the provision of fire protection services to the proposed Project.” Likewise, the City of Los Angeles Fire Department “concluded that Project impacts on the delivery of fire protection services for areas under their jurisdiction have been reduced to less than significant levels.”
In view of the above, substantial evidence supports the determination that the EIR provides an adequate assessment of the project’s potential impact on the provision of fire protection services to the project site and to the surrounding area.
8. Air quality and health impacts.
a. Trial court’s ruling.
With respect to the Coalition’s contention the EIR fails to sufficiently evaluate the significant impact of the construction of the project upon air quality in the area, the trial court ruled as follows: “The EIR candidly admits that both the construction and the operation of the project will adversely effect air quality in the area, and that the adverse effect cannot be mitigated to a level less than significant. The EIR therefore contains a ‘statement of overriding considerations, ’ in which the City Council concludes that the benefits of the project will outweigh its detrimental environmental impacts. The benefits anticipated by the City from the project include more public parking, increased economic activity, the generation of additional tax revenue, and the creation of a ‘streetscape’ that will enhance ‘livability’ of the area. The finding of overriding considerations was made only after a comprehensive study of the effect of the project upon air quality. The specific levels of each contaminant increased by the construction or operation of the project was considered, and the extent to which each such increase could be mitigated was also considered. The air quality component of the EIR is reasonably comprehensive and its conclusions are supported by substantial evidence. The difference between the study contained in the EIR and the ‘health analysis’ which [the Coalition] demands, is not apparent to the court. The identification and quantification of the known contaminants to the air produced by the project would appear to be a reasonable way to analyze the effect of the project upon the health of those who inhale the air in the area of the project.”
b. The EIR properly evaluated the project’s significant impacts on air quality during construction and during operation.
(1) Impact on air quality.
As a preliminary matter, the SCAQMD concluded the construction period mass daily emissions were properly calculated.
With respect to carcinogens and toxics, the draft EIR determined that with the “incorporation of mitigation measures, construction related localized air toxics impacts resulted in a maximum off-site individual cancer risk of three in a million. As the Proposed Project would not emit carcinogenic or toxic air contaminants that individually or cumulatively exceed the maximum individual cancer risk of ten in one million, air toxic emissions during construction would be less than significant with the incorporation of mitigation measures.” Likewise, “operation of the Proposed Project is not anticipated to emit carcinogenic or toxic air contaminants that individually or cumulatively exceed the maximum individual cancer risk of ten in one million. As such, a less-than-significant impact on human health would occur.”
Construction will result in regional emissions that exceed SCAQMD regional daily significance thresholds for CO (carbon monoxide), NOx (nitrogen oxides) and ROC (reactive organic compounds) and localized emissions that exceed SCAQMD thresholds for PM10 (particulate matter with a diameter of less than 10 micrometers) and NO2 (nitrogen dioxide). Therefore, construction of the project will result in a significant and unavoidable impact on regional and local air quality.
Operation of the project will not cause a significant impact on local air quality. No significant impacts to local CO concentrations would occur. However, the project, during its operational phase, will result in a significant impact on regional air quality with respect to NOx as well as ozone precursor emissions because the South Coast Air Basin is non attainment for ozone.
(2) The EIR properly addressed the adverse health impacts which will result from the adverse air quality impacts.
In challenging the sufficiency of the EIR’s air quality analysis, the Coalition asserts that health problems are not limited to specialized emissions, or to carcinogens and cancer, and a health analysis must be prepared by the City to analyze the project’s health impacts.
Guidelines section 15126.2, subdivision (a) requires an EIR to discuss, inter alia, “health and safety problems caused by the physical changes” that the proposed project will precipitate. Here, the EIR specifically addresses the health impact of various pollutants. For example, it notes that high concentrations of ozone can directly affect lungs, causing irritation, and long-term exposure may cause damage to lung tissue; both PM10 and nitrogen dioxide are irritating to eyes and the respiratory tract; and CO interferes with the transfer of fresh oxygen to blood and deprives sensitive tissues of oxygen.
In addition, the EIR considered the local impact of air pollution on sensitive populations, such as children, the elderly and the acutely or chronically ill, as well as sensitive land use receptors, including Pacific Hills School, located 1, 100 feet south of the project site.
Bakersfield, supra, 124 Cal.App.4th at pages 1219-1220, cited by the Coalition, is distinguishable. There, the EIRs concluded the projects would have “significant and unavoidable adverse impacts on air quality” (id. p. 1219), but failed to acknowledge the “health consequences that necessarily result from the identified adverse air quality impacts.” (Id. at p. 1220.)
Here, the EIR adequately addressed the health consequences that would result from the identified adverse air quality impacts. Therefore, the EIR properly evaluated the project’s impact on air quality.
9. Traffic.
a. Trial court’s ruling.
“The first contention made by [the Coalition] is that the EIR fails to adequately evaluate the impact of the project on traffic in the area of the project. The gist of the objection is that the EIR evaluates the impact of the project upon traffic only on major streets, and not upon ‘neighborhood traffic.’ The contention has no merit because the impact of traffic in the area of the project was exhaustively analyzed in a 450 page traffic study [citation]. The findings from the summary are set forth in a 39 page traffic analysis [citation], which analyzes both the regional road system and the local street network. It does so by analyzing traffic at 22 intersections that are selected because they are the most likely to be affected by the project. The draft EIR found that only four of those intersections would be significantly affected by the project and that two of them could be mitigated to a level below significance. The neighboring city of Los Angeles then requested analysis of five additional intersections, and the analysis of those intersections found that no significant effects would be created by the project. After public comment, the final EIR added the consideration of a related project to determine the cumulative effects of the subject project and the related project upon traffic in the area. The final EIR then found potentially significant impacts to two more intersections, which effects had to be, and were, mitigated. This is a reasonable method of analyzing the traffic impacts of the project. No reason is given why it is necessary to analyze each individual residential street in the area. It is difficult to see how such streets could be affected except by vehicles using them to go to or from the project or to avoid using a major street to get past the project because of congestion on the major streets. The effect of such use can be measured by monitoring the traffic flow at the intersections surrounding the project, and this was done.
“[The Coalition] bases it criticism of the traffic element of the EIR upon a report by a Mr. Kassan, a traffic expert engaged by [the Coalition]. Mr. Kassan’s report was not submitted to the City until January of 2005, AFTER the final EIR was issued. According to CEQA Guideline 15089 (b), review of a final EIR should focus upon responses to comments on the draft EIR. Agencies need not provide a separate review period for the final EIR. [The Coalition] cannot withhold the criticism of its expert until after the final EIR is issued and then complain that, ‘none of the questions raised by Mr. Kassan are answered.’ [Citation.] The traffic study and analysis contained in the draft EIR and repeated without substantial modification in the final EIR contain substantial evidence to justify approval of the project. The fact that there is a belatedly offered contrary opinion by a competing expert does not mean that the traffic study and analysis contained in the final EIR are [not] substantial evidence.”
b. Various contentions relating to traffic are meritless.
The Coalition contends late night traffic counts were generic or old and should not have been used. In this regard, the Coalition relies on the comments of Arthur Kassan, a consulting traffic engineer, who did not submit his report until January 2005, after the final EIR was issued. As the trial court found, the Coalition “cannot withhold the criticism of its expert until after the final EIR is issued and then complain that ‘none of the questions raised by Mr. Kassan are answered.’ ” Further, the City noted “traffic data less than 3 years old are commonly used and are consistent with standard industry practice for traffic analysis.” Moreover, under the CEQA Guidelines, section 15151, “[d]isagreement among experts does not make an EIR inadequate.” Therefore, Kassan’s views do not render the traffic analysis lacking in substantial evidence.
The Coalition, citing Kassan’s concerns, also contends the EIR failed to address the traffic impact on the neighborhood, including the operation and safety of residential driveways. The contention fails because the draft EIR contains a traffic analysis which considered a large area surrounding the project site, including residential areas to the north and south, including those in the City of Los Angeles.
The Coalition, again citing Kassan, further contends the EIR disregards the impact of truck traffic on the neighborhoods during construction. The contention lacks merit. The EIR requires the developer to obtain City approval of all truck staging areas. It requires the developer to mitigate the impact of construction traffic by obtaining approval of haul routes, restricting traffic to exclude residential streets where feasible. Further, the developer is required to provide temporary traffic control during all phases of construction activity, including the use of flag persons, to minimize impacts to traffic flow and ensure safe movement on and off construction sites. Also, construction activities that affect traffic flow must be consolidated to off-peak hours in order to minimize impacts.
The Coalition’s opening brief also contends the EIR only addresses late night traffic as it relates to Sunset Boulevard and the major thoroughfares, but does not discuss the impact on the neighborhoods. This contention is not supported by reference to the record; there is no indication as to where, and in what manner, this particular issue was raised below. Therefore, we do not address this issue.
Grafton contends the EIR fails to adequately address late night traffic issues. In this regard, the EIR states: “[N]ight front desk managers . . . were interviewed for information pertaining to the late night check-ins and check-outs. According to their estimates, approximately 2 percent to 6 percent of the daily check-ins and essentially no check-outs occur after 10 p.m. Minimal, if any, employee trips occur after 10 p.m. As such, applying 5 percent of the daily check-ins is a conservative estimate for late night hotel trips.” Thus, the traffic analysis took into account the impact of the project on late night traffic on the Sunset Strip.
Grafton complains the EIR identified the interviewees as the “night front desk managers at the Mondrian Hotel and Grafton Hotel, ” rather than by name. The CEQA Guidelines require an EIR to identify all private individuals consulted in preparing the draft EIR. (Guidelines, § 15129.) However, “[n]oncompliance with CEQA’s information disclosure requirements is not per se reversible; prejudice must be shown.” (Irritated Residents, supra, 107 Cal.App.4th at p. 1391; § 21005, subd. (b).)
Finally, Grafton contends the traffic study failed to address other known sources of late-night vehicle trips generated by Sunset Strip hotels, including guests and local patrons, who travel to or from the hotels and their bars, restaurants and nightclubs during the late-night period. The argument is unavailing. The City did consider this issue and concluded: “The only activity generated by a hotel during the late night period would be hotel guests going to and from other venues in the area. The fact that Sunset Boulevard is full of vehicles would discourage many of the hotel guests from doing this. Therefore, the rate used in the EIR is likely to overstate the actual volumes of hotel-generated traffic during this period.”
Accordingly, we reject appellants’ various challenges to the traffic analysis.
10. No merit to the Coalition’s contention the EIR failed to address the project’s impact on residential neighborhoods.
In a somewhat cursory manner, the Coalition contends the City failed to include the impact on residential neighborhoods in its EIR, with respect to emergency services, traffic, parking, noise and air quality. The Coalition emphasizes the affected area is not simply the area immediately adjacent to the project, or the major streets, but also the residential neighborhoods to the north and south of Sunset Boulevard. We conclude these issues were duly addressed.
As discussed above, the traffic analysis specifically considered the local street network and the EIR addressed the neighborhood impact of the project as to emergency services.
The parking impact also is addressed above and it is unnecessary to reiterate that discussion here. As noted, the project will create a “notable public benefit” in terms of parking because it will have a surplus of 435 parking spaces available to the public.
Insofar as noise concerns, the Coalition merely adopts Grafton’s arguments, addressed above.
Lastly, with respect to air quality, the EIR address the project’s impact on local air quality as well as on regional air quality. As noted, the EIR considered the local impact of air pollution on sensitive populations, such as children, the elderly and the acutely or chronically ill, as well as sensitive land use receptors, including a nearby school.
Therefore, we reject the Coalition’s contention the EIR failed to address the project’s impact on the neighborhood.
11. No merit to contention the EIR failed to describe the current project accurately.
Grafton contends the EIR fails to accurately describe the current project because the EIR fails to disclose that the 2005 development agreement allows the developer to develop the subject parcels either pursuant to entitlements given in connection with the current project, pursuant to the entitlements granted in connection with the 1999 entitled project, or in any combination thereof.
The trial court rejected this contention. It ruled “Grafton’s contention that the EIR fails to adequately describe the project is without merit, and is based upon a false assumption that the developer is permitted to develop the project either under a 1999 EIR or under the current EIR.” We agree.
The developer acknowledges “[n]othing in the Development Agreement permits [it] to develop a combination of the 1999 and 2005 Projects on the Middle and East Parcels.” The 2005 development agreement references the 1999 approval simply because the West Parcel was constructed pursuant to the 1999 approval. Likewise, the City recognizes “the [d]eveloper has no right to proceed under the 1999 approvals as to the Middle and East parcels.” Therefore, this challenge by Grafton to the project description lacks merit.
12. No merit to contention that mitigation measures for construction impacts were improperly deferred.
a. Trial court’s ruling.
In this regard, the trial court ruled: “Grafton contends that mitigation measures for construction impacts were improperly deferred, citing a provision of the resolution by the City Council approving the development permit which requires a construction period mitigation plan, ‘memorializing how the applicant will adhere to the adopted mitigation monitoring plan . . . .’ [Citation.] The contention is without merit, because the provision relied upon merely requires additional information as to how the developer will comply with the provisions that have been imposed upon it. The objected to provision requires the names and addresses of contractors and subcontractors employed on the project, the location of cranes that are used for erection and construction, and other details that will not be known until construction actually commences.”
b. No merit to contention that construction mitigation measures were improperly deferred.
The final EIR includes 52 construction mitigation measures relating to visual quality, transportation and circulation, air quality, noise, water quality, hazardous materials, fire safety, utilities and solid waste. The mitigation measures include, inter alia, monitoring for graffiti control, designation of truck haul routes, watering the excavation site for dust control, and use of mufflers on construction equipment, just to name a few.
In addition, the project’s conditions of approval include numerous conditions relating to construction activities.
Grafton takes issue with Condition 5.8, which requires a construction period mitigation plan to be prepared for approval by the Director of Community Development prior to issuance of a building permit. Grafton asserts the mitigation plan should be finalized before the project has reached “a point of no return.”
We reject Grafton’s argument that Condition 5.8 constitutes an improper deferral of construction mitigation measures. The mitigation measures are already set forth in the final EIR and in the project’s conditions of approval. The mitigation plan cannot be finalized until all information is available, such as the names and contact numbers for the subcontractors. Nonetheless, the construction mitigation measures already have been identified and specified and will serve as the basis for the construction period mitigation plan.
13. Substantial evidence supports the City’s statement of overriding considerations.
a. General principles.
Pursuant to CEQA, a “statement of overriding considerations reflects the final stage in the decision making process by the public body. A public agency can approve a project with significant environmental impacts only if it finds such effects can be mitigated or concludes that unavoidable impacts are acceptable because of overriding concerns. (Pub. Resources Code, § 21081; Guidelines, §§ 15091 and 15092.) If approval of the project will result in significant environmental effects which ‘are not at least substantially mitigated, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record.’ (Guidelines, § 15093, subd. (b).) These reasons constitute the statement of overriding considerations which is intended to demonstrate the balance struck by the body in weighing the ‘benefits of a proposed project against its unavoidable environmental risks.’ (Guidelines, § 15093, subds. (a) and (c).) [¶] ‘Whereas the [mitigation and feasibility] findings . . . typically focus on the feasibility of specific proposed alternatives and mitigation measures, the statement of overriding considerations focuses on the larger, more general reasons for approving the project, such as the need to create new jobs, provide housing, generate taxes, and the like.’ [Citation.]” (Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212, 1222.)
b. The City’s statement of overriding considerations.
In certifying the EIR, the City adopted a statement of overriding considerations in accordance with CEQA, finding “the economic, social and environmental benefits of the Proposed Project override and outweigh the significant and unavoidable environmental impacts. The City Council declared:
“This City Council finds that development of the Proposed Project will provide numerous benefits to the public, the local community, and the City in general. These benefits include: [¶] The provision of 435 public parking spaces in excess of WHMC requirements; with additional parking available as daytime retail and office uses close; [¶] Fostering a healthy economic and employment corridor that is a desirable address, generates employment, generates increased Transit Occupancy Tax (TOT), and creates an overall increase in economic activity; [¶] The creation of a major gateway to the Sunset Strip at the head of La Cienega Boulevard; [¶] The provision of more efficient parking plans, streetscape improvements, and the careful design of ground-floor building frontages and auto access to create an environment which pedestrians can enjoy both day and night; [¶] The incorporation of residential uses on commercial properties, which increases the City’s housing stock, provides a buffer between the commercial and the residential neighborhood, and brings more pedestrians to the street; [¶] Enabling Sunset Boulevard to continue to symbolize its colorful past and become a premier example of living urban design; [¶] The creation of a vital and varied streetscape, both through physical design and as a result of a mix of businesses and uses on Sunset Boulevard; [¶] The promotion of a human-scale atmosphere that accommodates the ‘bright lights’ of Sunset Boulevard’s entertainment image and sense of community for local resident; [¶] The improvement of the livability of Sunset Boulevard by providing more places for people to gather, talk sit, and live; [¶] Making Sunset Boulevard a safe and attractive place for pedestrians, visitors, and residents; [¶] Encouraging innovative development that will enhance Sunset Boulevard’s image and create a high quality environment in the future; [¶] Better use of existing commercially-zoned vacant or underdeveloped parcels; [¶] The provision of affordable housing units throughout the City.”
The City determined these benefits of the project outweighed its significant and unavoidable impacts, which were identified as: “1. Visual Resources impacts related to: [¶] a. Views from a public street; and [¶] b. Cumulative impacts related to view obstruction. 2. Traffic, Circulation and Parking impacts related to: [¶] a. Traffic impacts at two intersections; and [¶] b. Cumulative traffic impacts at twelve intersections. [¶] 3. Air Quality impacts related to: [¶] a. Regional operational emissions; and [¶] b. Cumulative impacts related to regional air quality. [¶] 4. Construction impacts related to: [¶] a. Project-specific and cumulative Aesthetic impacts; [¶] b. Project-specific and cumulative Air Quality impacts; and [¶] c. Project-specific and cumulative Noise impacts.” (Italics added.)
c. Trial court properly upheld the statement of overriding considerations because substantial evidence supports the City’s determination the project’s benefits outweigh and override the unavoidable environmental impacts.
A statement of overriding considerations must be supported by substantial evidence contained in the final EIR and/or other information in the record. (Sierra Club v. Contra Costa County, supra, 10 Cal.App.4th at p. 1223.) We agree with the trial court that the City Council’s statement meets that standard. The administrative record is replete with evidence of the project’s benefits.
As the trial court found, the conclusion that the benefits of the project outweigh its impacts is essentially a political decision that is entitled to deference from this court. (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 369.) It is not the function of the courts to pass upon the correctness of the environmental conclusions made in the EIR, but only upon its sufficiency as an informative document. (Irritated Residents, supra, 107 Cal.App.4th at p. 1391.) The EIR “is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988)47 Cal.3d 376, 392.)
DISPOSITION
The judgments are affirmed. The parties shall bear their respective costs on appeal.
We concur: CROSKEY, J. KITCHING, J.