Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SS016787, Thomas I. McKnew, Jr., Judge.
Brandt-Hawley Law Group and Susan Brandt-Hawley for Plaintiff and Appellant.
Kane, Ballmer & Berkman, Murray O. Kane and Donald P. Johnson for Defendant and Respondent.
Paul, Hastings, Janofsky & Walker, Robert I. McMurry, A. Catherine Norian and Olivia K. Marr for Real Party in Interest.
TURNER, P. J.
I. INTRODUCTION
This action challenges a proposed 190-foot high office building on two grounds. The first ground is that it violates a municipal zone code. The second ground is that the certification of an environmental impact report violated provisions of the California Environmental Quality Act. (Pub. Res. Code, § 21000 et seq.) Plaintiff, United Neighbors of the Westside, appeals from an April 22, 2009 judgment denying its mandate petition. Plaintiff sought to set aside the approval of the proposed 190-foot high office building and certification of an environmental impact report for a development project in the City of Culver City (city). We affirm the judgment.
All further statutory references are to the Public Resources Code except where otherwise noted.
II. BACKGROUND
The site of the proposed project—a 12-story, 190-foot high office building and a parking garage—is at the intersection of Sepulveda Boulevard and Centinela Avenue. There is a 12-story, 114.5-foot high Radisson Hotel with a 2-story, 50-foot high conference center at the location. The existing hotel complex is not being modified. The area is zoned Commercial Regional Business Park (business park district) with a General Plan designation of Regional Center. Culver City Municipal Code, Title 17 (the Zoning Code), section 17.220.010F describes the business park district as follows: “The [business park district] identifies areas appropriate for large-scale office and business park developments with shared parking, including specific light industrial uses. The [business park district] is consistent with the Regional Center and Industrial Park land use designations of the General Plan.” The proposed project’s site is also within the Culver City Redevelopment Agency’s Redevelopment Plan Project Component Area No. 1 (redevelopment area No. 1). It is undisputed the proposed project would have significant effects on the environment and that those effects were identified and discussed in the environmental impact report.
III. DISCUSSION
A. Initiative Measure 1: Height Restriction
Plaintiff contends the project was limited by law (voter initiative) to 56 feet in height. We conclude as a matter of law, as did the trial court, that the proposed project fell within a statutory exception to the voter enacted height limit.
On April 17, 1990, city voters adopted initiative “Measure 1.” (Culver City Ord. No. 90-013½.) Measure 1 amended four specific sections of the existing Zoning Code (Culver City Municipal Code, former Title 37) to reduce to 56 feet the maximum height for buildings in four zoning districts: C-3 (Commercial) (former § 37-44); C-3MR (Midrise Commercial) (former § 37-45.5D); S-1 (Studio) (former § 37-64); and P-D (Planned District). Former Zoning Code section 37-44, which had read, “No building shall exceed one hundred sixty-seven feet (167’) in height” was amended to read, “No building shall exceed fifty-six feet (56’) in height.” Former Zoning Code section 37 45.5D, which had read “No building shall exceed ninety-seven feet (97’) in height” was amended to read, “No building shall exceed fifty-six feet (56’) in height.” Former Zoning Code section 37-64, which had read, “No building or structure shall exceed one hundred sixty-seven feet (167’) in height” was amended to read, “No building shall exceed fifty-six feet (56’) in height.” And a 56-foot height limit was imposed in all planned district zones. It is undisputed that Measure 1 was silent as to former Zoning Code section 37-83.A-1, which contained a height limit exception. At the time Measure 1 was adopted, former section 37-83.A-1 stated: “Exceptions to the Maximum Height Regulations. [¶] Notwithstanding any other regulation of this Code, the City Council, after consideration of recommendation of the Planning Commission, may by resolution establish a maximum building height for new construction in any of the three (3) redevelopment projects, consistent with the Design for Development established by the Redevelopment Agency.” (Italics added.)
As presented to the voters, Measure 1 read: “THE PEOPLE OF THE CITY OF CULVER CITY DO ORDAIN AS FOLLOW[S]: [¶] SECTION ONE: The first sentence of Subsection A of Section 37-44 of the Culver City Municipal Code is hereby amended to read: [¶] ‘No building shall exceed fifty-six feet (56’) in height’ [¶] SECTION TWO: Subsection A of Article VIII.D. of Section 37-45.5D of the Culver City Municipal Code is hereby amended to read: [¶] ‘No building shall exceed fifty six feet (56’) in height.’ [¶] SECTION THREE: Subsection D of Section 37-64 of the Culver City Municipal Code is hereby amended to read: [¶] ‘No building shall exceed fifty-six feet (56’) in height.’ [¶] SECTION FOUR: No planned district zone may provide for any building to exceed fifty-six feet (56’) in height. [¶] SECTION FIVE: This ordinance shall take effect immediately upon adoption, or as soon thereafter as permitted by law, and all projects approved prior to its effective date upon which construction has not commenced shall be subject to its provisions. [¶] SECTION SIX: If this Ordinance is found defective in any part, all remaining parts are to remain in full force and effect.”
The current Zoning Code was adopted in 2005. (Culver City Ord. No. 2005-007, § 1.) The 56-foot height restriction for specified commercial zones as required by Measure 1 is set forth in current Zoning Code section 17.220.020, tables 2-6 and 2-7. Former Zoning Code section 37-83.A-1—the height limit exception—is reenacted or continued in current section 17.300.025. Zoning Code section 17.300.025 reads in relevant part: “C. Exceptions to Height Limits. Exceptions to the height limits identified in this Title shall apply in the following manner: [¶] 1. Notwithstanding any other regulation of this Title, the Council, after consideration of recommendation by the Commission, may by resolution establish a maximum building height for new construction in the Redevelopment Project Area Component Areas 1 through 3, consistent with the Design for Development established by the Redevelopment Agency.” (Italics added.) As noted above, the proposed project’s site is in redevelopment area No. 1.
As the foregoing discussion demonstrates, both before and after Measure 1 was adopted, the Zoning Code contained height restrictions for buildings in specified commercial zones. It also contained an exception to the height limit for new construction in redevelopment project areas under specified circumstances. Measure 1 was silent as to the height limit exception. Measure 1 did not amend or repeal the height limit exception. And contrary to plaintiff’s suggestion, the city’s continuation or reenactment of the height limit exception in the current Zoning Code did not amend Measure 1. The city’s enactment of current section 17.300.025 did not alter the height restrictions adopted by Measure 1. (See Elec. Code, § 9217 [“No ordinance that is... adopted by the voters[] shall be repealed or amended except by a vote of the people”]; Save Our NTC, Inc. v. City of San Diego (2003) 105 Cal.App.4th 285, 295.)
The present project, consisting of new construction, lies in a commercial zone that is subject to the 56-foot height limit. But it is also within redevelopment area No. 1. The developer, CRP Centinela, filed a height exception application for the current project. The planning commission recommended the city council approve a height exception for the project. The redevelopment agency approved a design for development for the project site permitting a structure up to 13 stories or 230 feet in height. And the city council approved the height exception. Plaintiff does not dispute these facts. The height limit exception requirements of Zoning Code section 17.300.025 were met.
Plaintiff argues the voters’ clear intent in enacting Measure 1 was to impose, without exception, a 56-foot height limit for all new construction. Plaintiff contends: “Nothing in the language of Measure 1 nor in the ballot materials indicated an intent to incorporate exceptions to the 56-foot limit... ”; and “the [defendants] contend... that Measure 1 should be read to incorporate—by omission—a pre-existing exception to its plain language by which the City Council could override new height limits.”
Our Supreme Court has held: “‘[I]n interpreting a voter initiative..., we apply the same principles that govern statutory construction. [Citation.] Thus, “we turn first to the language of the [initiative], giving the words their ordinary meaning.” [Citation.]...’ (People v. Rizo (2000) 22 Cal.4th 681, 685.) ‘Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language.’ (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 543.) Where there is ambiguity in the language of the measure, ‘[b]allot summaries and arguments may be considered when determining the voters’ intent and understanding of a ballot measure.’ (Legislature v. Deukmejian (1983) 34 Cal.3d 658, 673, fn. 14.)” (Professional Engineers in California v. Kempton (2007) 40 Cal.4th 1016, 1037.) The voters are presumed to have been aware of existing law at the time the initiative was enacted. (Id. at p. 1048; People v. Weidert (1985) 39 Cal.3d 836, 844.)
We agree with the trial court that the initiative by its plain and clear language amended only the specified sections of the former Zoning Code; it did not amend the existing height limit exception provision applicable in redevelopment areas. There is no ambiguity and no reason to look beyond the face of the initiative measure. As discussed above, both prior to and following the voters’ approval of Measure 1, the city’s Zoning Law limited building heights in specified commercial zones unless the conditions allowing an exception in redevelopment areas were met. Both the height limit amendments and the height limit exception provision are continued in the present Zoning Code. The city complied with the Zoning Code in adopting the height exception for the current project. The zoning law changes adopted as Measure 1 did not prevent the city from approving the present project at a height in excess of 56 feet.
This is not to say that Measure 1 by its terms does not reflect a general desire to limit the construction of high-rise buildings in the city. But the initiative measure’s language very specifically amended only specified sections of the Zoning Code. It did not by its terms enact a blanket height restriction across all city zones. It cannot be read as having amended an additional section of the Zoning Code nowhere mentioned. It did not change the overall effect of existing law with respect to height restrictions except to reduce the maximum height allowed in specified zoning districts.
B. California Environmental Quality Act Compliance
1. Standard of Review
Our Supreme Court in Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 563-564 (Goleta Valley), summarized the purposes of the California Environmental Quality Act: “As we recently observed in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights): ‘The foremost principle under [the California Environmental Quality Act] is that the Legislature intended the act “to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”’ [Citation.] [¶] The [environmental impact report] has been aptly described as the ‘heart of [the California Environmental Quality Act].’ ([Cal. Code Regs., tit. 14 (“Guidelines”)], § 15003, subd. (a); Laurel Heights, supra, 47 Cal.3d at p. 392; County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810.) Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the [environmental impact report] ‘protects not only the environment but also informed self-government.’ (Laurel Heights, supra, 47 Cal.3d at p. 392.)” (Fn. omitted.)]
All further references to a “Guideline” are to the California Environmental Quality Act Guidelines found in California Code of Regulations, title 14, section 15000 et seq.
Whether a public agency’s certification of an environmental impact report complies with the relevant provisions of law is reviewed for a prejudicial abuse of discretion. (§ 21168.5; In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1161; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435; Goleta Valley, supra, 52 Cal.3d at pp. 563-564.) Section 21168.5 states, “... Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” In deciding whether a prejudicial abuse of discretion has occurred our Supreme Court has stated: “As a result of this standard, ‘The court does not pass upon the correctness of the [environmental impact report]’s environmental conclusions, but only upon its sufficiency as an informative document.’ [Citation.] [¶]... [¶] A court may not set aside an agency’s approval of an [environmental impact report] on the ground that an opposite conclusion would have been equally or more reasonable. [Citation.] A court’s task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so. Our limited function is consistent with the principle that ‘The purpose of [the California Environmental Quality Act] is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind....’ [Citation.]” (Laurel Heights, supra, 47 Cal.3d at pp. 392-393; see also Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 573-574; Goleta Valley, supra, 52 Cal.3d at p. 564.) We review the public agency’s action, not the trial court’s decision. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 427; Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 531.) We independently determine whether there is any error of law and whether the public agency’s factual determinations are supported by substantial evidence in the administrative record. (Ibid.)
2. Project Alternatives
Plaintiff argues, “[T]he City failed to justify its refusal to adopt feasible reduced-size project alternatives.” Plaintiff contends the low-rise and mid-rise office building alternatives the city considered were not infeasible simply because they would produce less revenue, fewer jobs, and have less of a positive impact on the city’s economy. We find the city properly considered alternatives to the project. Moreover, we disagree with plaintiff’s basic premise—that the city could not choose the proposed project over the low-rise and mid-rise office building alternatives merely because the alternatives did not further economic objectives to the same extent. The city balanced the environmental impacts and the degree to which alternatives met the city’s economic and redevelopment goals and determined that the benefits of the proposed project outweighed the negatives. The city seeks to take advantage of market demand for new office space in a location with existing infrastructure. Further, the project will create an architecturally distinct gateway to the city, create job opportunities, and bring increased business to the community. The judicial branch cannot dictate that the city choose an alternative to the project simply because plaintiff prefers it.
The California Environmental Quality Act mandates that a public agency should not approve a proposed project if there is a feasible alternative or mitigation measures that would substantially reduce significant environmental effects. (§§ 21002, 21002.1, subd. (b), 21081; City of Marina v. Board of Trustees of the California State University (2006) 39 Cal.4th 341, 350; Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 134.) The decision-making agency may not approve a proposed project that will have significant environmental effects unless it makes specific findings about alternatives and mitigation measures. (Ibid.; Environmental Council v. Board of Supervisors (1982) 135 Cal.App.3d 428, 439.) This ensures the public agency has actually considered alternatives and mitigation measures. (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at p. 134; Citizens for Quality Growth v. City of Mt. Shasta (1988) 198 Cal.App.3d 433, 440-441.) The Supreme Court has held, “Under [the California Environmental Quality Act], the public agency bears the burden of affirmatively demonstrating that, notwithstanding a project’s impact on the environment, the agency’s approval of the proposed project followed meaningful consideration of alternatives and mitigation measures. (City of Poway v. City of San Diego [(1984)] 155 Cal.App.3d [1037,] 1046.)” (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at p. 134.)
Section 21002 sets forth the Legislative policy with respect to feasible alternatives: “The Legislature finds and declares that it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects, and that the procedures required by this division are intended to assist public agencies in systematically identifying both the significant effects of proposed projects and the feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects. The Legislature further finds and declares that in the event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects thereof.”
An environmental impact report is the document employed to achieve the objectives of section 21002. (§ 21002.1.) Section 21002.1 states: “In order to achieve the objectives set forth in Section 21002, the Legislature hereby finds and declares that the following policy shall apply to the use of environmental impact reports prepared pursuant to this division: [¶] (a) The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided. [¶] (b) Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so. [¶] (c) If economic, social, or other conditions make it infeasible to mitigate one or more significant effects on the environment of a project, the project may nonetheless be carried out or approved at the discretion of a public agency if the project is otherwise permissible under applicable laws and regulations.”
The Supreme Court has further held: “Before a public agency... may approve a project for which the [environmental impact report] has identified significant effects on the environment... the agency must make one or more of the findings required by section 21081.... The required findings constitute the principal means chosen by the Legislature to enforce the state’s declared policy ‘that public agencies should not approve projects as proposed if there are feasible alternatives... available that would substantially lessen the significant environmental effects of such projects....’ ([§§ 21081, 21002; see § 21002.1, subd. (a)].)” (City of Marina v. Board of Trustees of the California State University, supra, 39 Cal.4th at p. 350.) Section 21081 states: “Pursuant to the policy stated in Sections 21002 and 21002.1, no public agency shall approve or carry out a project for which an environment impact report has been certified which identifies one or more significant effects on the environment that would occur if the project is approved or carried out unless both of the following occur: [¶] (a) The public agency makes one or more of the following findings with respect to each significant effect: [¶] (1) Changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment. [¶] (2) Those changes or alterations are within the responsibility and jurisdiction of another public agency.... [¶] (3) Specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report. [¶] (b) With respect to significant effects which are subject to a finding under paragraph (3) of subdivision (a), the public agency finds that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.” (See also Guidelines, §§ 15091-15093.)
Guidelines, section 15091 states: “(a) No public agency shall approve or carry out a project for which an [environmental impact report] has been certified which identifies one or more significant environmental effects of the project unless the public agency makes one or more written findings for each of those significant effects, accompanied by a brief explanation of the rationale for each finding. The possible findings are: [¶] (1) Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the final [environmental impact report]. [¶] (2) Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by such other agency. [¶] (3) Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the final [environmental impact report]. [¶] (b) The findings required by subdivision (a) shall be supported by substantial evidence in the record. [¶] (c) The finding in subdivision (a)(2) shall not be made if the agency making the finding has concurrent jurisdiction with another agency to deal with identified feasible mitigation measures or alternatives. The finding in subdivision (a)(3) shall describe the specific reasons for rejecting identified mitigation measures and project alternatives. [¶] (d) When making the findings required in subdivision (a)(1), the agency shall also adopt a program for reporting on or monitoring the changes which it has either required in the project or made a condition of approval to avoid or substantially lessen significant environmental effects. These measures must be fully enforceable through permit conditions, agreements, or other measures. [¶] (e) The public agency shall specify the location and custodian of the documents or other material which constitute the record of the proceedings upon which its decision is based. [¶] (f) A statement made pursuant to Section 15093 does not substitute for the findings required by this section.”
A public agency may ultimately approve a project with significant environmental impacts if it finds the unavoidable effects are acceptable because there are specific overriding considerations. (§ 21081, subds. (a)(3), (b); Guidelines, §§ 15043, 15091, 15093; City of Marina v. Board of Trustees of the California State University, supra, 39 Cal.4th at pp. 350, 368; California Native Plant Society v. City of Santa Cruz (2009)177 Cal.App.4th 957, 1000.) As the Court of Appeal explained in City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d 401, 417, at this final stage of the environmental review process, “[F]easibility involves a balancing of various ‘economic, environmental, social, and technological factors.’ ([§] 21061.1.)” A public agency does not abuse its discretion by rejecting project alternatives as infeasible based on social and economic realities. (Association of Irritated Residents v. County of Madera (2003)107 Cal.App.4th 1383, 1401 [alternative not economically feasible]; Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 44, disapproved on a different point in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, fn. 6 [alternatives rejected on social and economic grounds]; City of Del Mar v. City of San Diego, supra, 133 Cal.App.3d at p. 417 [alternatives rejected in view of social and economic realities]; Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 913 [alternatives involved increased construction costs, generated less sales revenue, and greatly reduced tax revenues to the city].) We review the city’s decision favoring the proposed project over the low-rise and mid-rise office building alternatives for substantial evidence. (Goleta Valley, supra, 52 Cal.3d at p. 559; California Native Plant Society v. City of Santa Cruz, supra, 177 Cal.App.4th at p. 997; Association of Irritated Residents v. County of Madera, supra, 107 Cal.App.4th at p. 1401.) The agency’s findings are presumed correct, and the burden is on the party seeking mandamus to prove otherwise. (California Native Plant Society v. City of Santa Cruz, supra, 177 Cal.App.4th at p. 997; Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1497.)
The final environmental impact report sets forth at length a series of development, design, and economic objectives. The objectives are to: maximize the use of the land, currently underutilized as a surface parking lot and improve physical conditions in an area served by existing infrastructure; erect an architecturally distinct office building, a gateway at the city’s edge, that will be cohesively integrated with an existing Radisson Hotel and conference center; create a pedestrian friendly environment; incorporate environmentally sustainable design practices as feasible; increase employment opportunities and create new office space to meet market demand and to accommodate expected economic growth; attract new businesses to the city; contribute to the city’s economic base; increase tax revenue to the city and the redevelopment agency; create construction and other jobs, thereby expanding the economy; support the existing business community by bringing customers to local stores, restaurants and hotels; and complement increased residential density and retail growth occurring in the area.
The final environmental impact report discussed five feasible alternatives to the proposed project: no project; a low-rise office building; a mid-rise office building; a low-rise multi-family apartment building; and a high-rise hotel. As noted above, plaintiff’s argument focuses on two of the five alternatives the city considered. The first alternative plaintiff analyzes is the low-rise project (56 feet high, 100,000 square feet). The second alternative plaintiff discusses is the mid-rise project (112 feet high, 210,000 square feet). The environment impact report analyzed the office building alternatives at length in terms of aesthetics, air quality, cultural resources, hydrology and water quality, land use, noise, fire and police protection, transportation and circulation, water supply, wastewater, and relationship to project objectives. The environmental impact report concluded these alternatives would result, overall, in reduced environmental impacts, but would not meet the city’s distinctive design or redevelopment objectives—and not at a level that would maximize the site’s economic potential. The low-rise and mid-rise office building alternatives would not: result in the highest and best use of the site; maximize the site’s economic potential; meet design objectives; provide development in the area to the same extent as the proposed project; create new office space consistent with market demand; create construction and operation jobs to the same extent as the proposed project; or support the business community to the same extent. Further, the alternatives would generate less economic growth and tax revenue as compared to the proposed project.
With respect to the low-rise office building alternative, the final environmental impact report concluded: “The Low Rise Office Alternative would avoid the Proposed Project’s significant unavoidable impacts associated with traffic at two study intersections. Although the Low Rise Office Alternative would result in the same significant construction noise impact (noise level) as the Proposed Project overall construction noise levels would occur over a shorter time period and construction noise impacts would therefore be less. The Low Rise Office Alternative would have a similar construction air quality and construction traffic impacts compared to the Proposed Project during the site preparation and excavation period, the period of greatest emissions and construction activity. The Low Rise Office Alternative would reduce the Project’s potentially significant operation air quality impact to a less than significant level and also reduce the Proposed Project’s less than significant impacts associated with view blockage, light and glare, air quality, operational noise, public services, and utilities. The Low Rise Office Alternative would have the same level of impact as the Proposed Project on cultural resources and hydrology. However, the Low Rise Office Alternative would have less visual benefit than the Proposed Project with respect to the landmark quality of a taller structure and would not implement the applicable General Plan policies and Redevelopment Project goals to the same extent as the Proposed Project. [¶] Although the Low Rise Office Alternative would reduce or avoid the Proposed Project’s environmental impacts, and would not result in any significant environmental impacts, it would not achieve several objectives of the Proposed Project. Specifically, the Low Rise Office Alternative would not implement the City’s redevelopment goal to bring the designated Project Site into its highest and best use, or maximize the Project Site’s economic potential. Due to reduced building height, the Low Rise Office Alternative would not meet the Project’s design objective to create an architecturally distinctive, landmark building that would complement the aesthetic character of new and existing development within the area, or fully utilize its location at the intersection of the 405 Freeway and major thoroughfares to create a distinctive gateway development at the City’s edge. The Low Rise Office Alternative would enhance the visual quality of the street frontage through unified site design, tree planting and other landscaping to enhance pedestrian activity. The Low Rise Office Alternative would also implement the objective to provide development in an area served by existing infrastructure, although not to the same degree as the Proposed Project. As with the Proposed Project, the Low Rise Office Alternative would meet the objective to incorporate ‘Green Building’ or environmentally sustainable design practices where feasible. [¶] The Low Rise Office Alternative would not meet the economic objectives of the Proposed Project to maximize the value of the Project Site through the replacement of a surface parking lot with an approximately 342,000-square-foot office building consistent with the market demand for new office space. Although the Low Rise Office Alternative would provide incremental growth and additional tax revenue to the City and Culver City Redevelopment Agency, economic growth and revenues would not occur to the same extent as under the Proposed Project. The Proposed Project would increase annual revenue for the City by approximately $825,000 and annual revenue to the [redevelopment agency] by approximately $1,043,000, of which $261,000 will be dedicated to affordable housing. Based on its substantially reduced leasable area, the Low Rise Office Alternative would be expected to provide substantially less (by approximately more than two-thirds) additional tax revenue than the Proposed Project. Respectively, job opportunities associated with the construction and operation of the Low Rise Office Alternative would not contribute to the economy to the same extent as under the Proposed Project. Unlike the Proposed Project, the Low Rise Office Alternative would reduce in a substantive way, the objective of supporting the business community through greater activity of employees and visitors that would frequent local stores, restaurants, and hotels.”
With respect to the mid-rise office building alternative, the environmental impact report concluded: “The Mid Rise Office Alternative would avoid the Proposed Project’s potentially significant impacts associated with traffic at one of the two impacted intersections. The Mid Rise Office Alternative would result in a greater construction noise impact as the Proposed Project since high construction noise levels associated with excavation activities would occur over a somewhat longer time period. The Mid Rise Office Alternative would have a greater construction air quality impact[] as the Proposed Project, since the duration of excavation activities would be longer. Since the intensity of construction activities would be similar to the Proposed Project on a daily basis, construction traffic impacts would remain significant and unavoidable. The Mid Rise Office Alternative would reduce the Project’s potentially significant operation air quality impact to a less than significant level and also reduce the Project’s less than significant impacts associated with view blockage, light and glare, construction air quality, land use, operational noise, public services, and utilities. The Mid Rise Office Alternative would have the same level of impact as the Proposed Project on hydrology and an incrementally greater impact on cultural resources (due to deeper excavation). The Mid Rise Office Alternative would have less visual benefit than the Proposed Project with respect to the landmark quality of a taller structure. [¶] Although the Mid Rise Office Alternative would reduce or avoid the Proposed Project’s environmental impacts, it would not achieve several objectives to the same degree as the Proposed Project. Specifically, the Mid Rise Office Alternative would not implement the City’s redevelopment goal to bring the designated Project Site into its highest and best use, or maximize the Project Site’s economic potential to the same degree as the Proposed Project. Due to reduced building height, the Mid Rise Office Alternative would not meet to the same degree the Project’s design objective to create an architecturally distinctive, landmark building that would complement the aesthetic character of new and existing development within the area. The Mid Rise Office Alternative would enhance the visual quality of the street frontage through unified site design, tree planting and other landscaping to enhance pedestrian activity. The Mid Rise Office Alternative would also implement the objective to provide development in an area served by existing infrastructure, although not to the same degree as the Proposed Project. As with the Proposed Project, the Mid Rise Office Alternative would meet the objective to incorporate ‘Green Building’ or environmentally sustainable design practices where feasible. [¶] The Mid Rise Office Alternative would not meet the economic objectives of the Proposed Project to maximize the value of the Project Site through the replacement of a surface parking lot with an approximately 342,000-square-foot office building consistent with the market demand for new office space. Although the Mid Rise Office Alternative would provide incremental growth and additional tax revenue to the City and Culver City Redevelopment Agency, economic growth and revenues would not occur to the same extent as under the Proposed Project. Based on an estimated incremental increase in valuation equal to $123 million, the Proposed Project would increase annual revenue for City by approximately $825,000 and annual revenue to the Culver City Redevelopment Agency by approximately $1,043,000, of which $261,000 would be dedicated to affordable housing. Based on its reduced leasable area, the Mid Rise Office Alternative would be expected to provide substantially less (by approximately 30 percent) additional tax revenue than the Proposed Project. Respectively, job opportunities associated with the construction and operation of the Mid Rise Office Alternative would be incrementally reduced and not contribute to the economy to the same extent as under the Proposed Project.”
The proposed project was expected to result in a significant financial benefit to the city. The city’s fiscal consultant, Keyser Marston Associates, estimated the project would generate $1.253 million in increased general fund revenue and $5.1 million in redevelopment agency revenue over five years. A fiscal and economic impact analyses was prepared for the developer by Allan D. Kotin & Associates and CBRE Consulting. The developer’s fiscal consultants concluded: “[T]he new office building, at stabilized occupancy in 2010, will bring an approximate $825,000 annual increase in fiscal revenue to the City, $782,000 to the Redevelopment Agency general fund and $261,000 to the Agency’s affordable housing trust fund. In addition, the Project will add 1,070 new jobs to the City’s employment base. [¶] Over a 15-year period 2010 through 2024, during which the Agency receives unrestricted revenue, the Project is expected to generate a total of $15.5 million to the City, $13.5 million to the Agency and $4.5 million to the Affordable Housing Fund.” The low-rise office building alternative was expected to generate $240,000 in increased utility, business and sales taxes, and $228,000 in increased property tax to the redevelopment agency (70 percent less than the project). The mid-rise office building alternative was expected to produce 30 percent less additional tax revenue than the proposed project. The city adopted a mitigation, monitoring and reporting program and a statement of overriding considerations that the project benefits outweighed its significant unavoidable environmental impacts.
The administrative record in this case demonstrates that the city actually and meaningfully considered feasible alternatives to the proposed project, balanced the various economic, social and environmental factors, and concluded, based on substantial evidence in the record, that specific overriding benefits of the project outweighed the significant effects on the environment. This court cannot second guess that decision. (Goleta Valley, supra, 52 Cal.3d at p. 564; St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 989, 1004-1005; Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1446-1447.)
Contrary to plaintiff’s assertion, we find no basis for concluding the city’s decision concerning project alternatives was premised on the developer’s desire to maximize its profits. The record reflects: the developer sent a letter to the city’s community development director; the letter was sent at the city’s request; and in its letter, the developer explained somewhat vaguely that only when the building reached a certain size would the economic returns meet its minimum requirements. There was also a discussion at an April 15, 2008 city council hearing about the developer’s representations as to its projected returns, the fact that little or no information backing up those assessments had been provided to staff, and the prospect that in the future, when a height limit exception was being considered, such information might be requested with an assurance of confidentiality. And the city had reason to be concerned whether, absent a height limit exception, the developer would be willing to develop the land. But the environmental impact report does not discuss the developer’s profit margin as bearing on the feasibility of alternatives. And at the hearing in the trial court, the city’s counsel argued the city did not rest its decision on the developer’s profit or lack thereof.
In a related context, our Supreme Court has held that a developer’s profit motive is not an adequate ground for a zoning variance. (Broadway, Laguna, Vallejo Assn. v. Board of Permit Appeals (1967) 66 Cal.2d 767, 774-775.) In other words, that a variance would enable a developer to increase his or her profit is not a reason for a public agency to grant a variance. (Ibid.) The Supreme Court explained: “We recognize that virtually any circumstance which would lead a commercial real estate developer to seek a variance may ultimately be translated into economic terms: the developer attempts to obtain relief from a particular zoning provision in order to augment the earning power or the market value of his property. We must be careful to distinguish, however, between those circumstances which prevent a builder from profitably developing a lot within the strictures of the planning code and those conditions which simply render a complying structure less profitable than anticipated. If conditions which merely reduce profit margin were deemed sufficiently ‘exceptional’ to warrant relief from the zoning laws, then all but the least imaginative developers could obtain a variety of variances, and the ‘public interest in the enforcement of a comprehensive zoning plan’ [citation] would inevitably yield to the private interest in the maximization of profits.” (Id. at p. 775.) There is, the Supreme Court noted, a fundamental difference between “circumstances which prevent a variance applicant from economically developing his property” and those which simply reduce a developer’s expected earnings. (Ibid.; accord, 8 McQuillin, The Law of Municipal Corporations (3d ed. 2009) § 25.166, pp. 621-622 [prevention of increased profits or prohibiting the most profitable use of the property does not justify a variance; “the landowner must show factually... that all uses permitted on the land under the existing zoning regulations are economically unfeasible before a use variance may be granted”].) Here it appears the city council’s discussion of the developer’s profit margin concerned whether the developer could economically build at all rather than a desire to maximize profits. In any event, the city rejected the feasible alternatives discussed in the environmental impact report on grounds unrelated to the developer’s profit margin.
3. Visual impacts
a. thresholds of significance and methodology
Plaintiff argues the environmental impact report’s assessment of view impacts was inadequate and was premised on a threshold of significance that was not adopted in the manner required by Guidelines section 15064.7, subdivision (b). We conclude view impacts were adequately assessed and it was not an abuse of discretion to certify the report.
Plaintiff’s argument is unfocused. Plaintiff apparently asserts the environmental impact report adopted a threshold of significance with respect to view impacts based on a percentage of the view blocked. Guidelines section 15064.7, subdivision (a), defines “threshold of significance”: “A threshold of significance is an identifiable quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant.” Plaintiff has not pointed to any evidence the environmental impact report adopted a specified percentage of view blockage as the point at which the effect normally would be determined to be less than significant. Instead, the environmental impact report adopted a threshold of significance for view obstruction as follows: “Substantially obstruct an existing scenic view from a prominent public view location that includes valued aesthetic features such as the ocean, scenic natural lands, historic resources, and cityscapes. [¶] Substantially obstruct prominent scenic views from more than a small number of private residences.” The analysis of view obstruction focused on whether as a result of the proposed project “valued view resources would be blocked or diminished” and “whether such effects would be substantial or significant” based on the aforementioned thresholds of significance.
In Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 342, Division Three of the Court of Appeal for this appellate district observed: “A threshold of significance may be useful to determine whether an environmental impact normally should be considered significant. (Guidelines, § 15064.7, subd. (a).) A threshold of significance is not conclusive... and does not relieve a public agency of the duty to consider the evidence under the fair argument standard[, i.e., whether substantial evidence supports a fair argument the project may have a significant impact on the environment]. (Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1108-1109; Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 110-114; see Guidelines, § 15064, subd. (b). A public agency cannot apply a threshold of significance or regulatory standard ‘in a way that forecloses the consideration of any other substantial evidence showing there may be a significant effect.’” (Fn. omitted.)
Plaintiff’s argument actually focuses not on the threshold of significance but on a methodology employed to measure view impacts—as a percentage of the view blocked. Plaintiff describes this methodology as “contrived,” “nonsensical,” an “off-the-cuff criteria,” “unfair[],” and “overly-narrow.” We review the methodology used to study view impacts for substantial evidence to support its application. (See City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889, 898; Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1198; Federation of Hillside and Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1259; Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1620.) The Court of Appeal has held: “Challenges to the scope of... the methodology for studying an impact... present factual issues, so such challenges must be rejected if substantial evidence supports the agency’s decision as to those matters and the [environmental impact report] is not clearly inadequate or unsupported [citations], unless the agency applied an erroneous legal standard. [Citation.]” (Federation of Hillside and Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th at p. 1259.) Here, Gensler & Associates prepared visual simulations, which were included in the draft environmental impact report. After the draft environmental impact report was issued, and at the city’s request, Michael Singleton, President of KTU+A, a planning and landscape architecture firm, independently reviewed the Gensler & Associates visual simulations. Mr. Singleton reviewed the methods used to create the simulations, including the manner in which percent blockage was determined. Mr. Singleton concluded the visual simulations were consistent with industry accepted standards. This was substantial evidence supporting application of the methodology.
b. qualitative assessment of visual impact and view obstruction
Plaintiff further contends the environmental impact report considered only the quantitative measurement and did not consider qualitative aesthetics. We disagree. First—in addition to the multiple photographs depicting before and after views—the environmental impact report analyzed visual quality as well as view impacts. The environmental impact report’s analysis of visual quality was introduced with the following general statement: “Visual quality refers to the overall aesthetics of an area or a field of view. Visual quality is influenced by various elements such as size, shape, color, texture, and general composition, as well as the relationships between these elements. The analysis of visual quality focuses on whether the Proposed Project would substantially degrade the visual environment through the loss of aesthetic features or the introduction of features that would degrade the overall appearance of an area. The visual quality analysis presented below also evaluates the consistency of the Proposed Project with applicable land use plans and ordinances addressing aesthetic values.” The report described the view quality as “cityscape” including “an expanse of nighttime lights” with more distant views of the Baldwin Hills and Santa Monica Mountains. Shorter ranger views were dominated by the Interstate 405 Freeway and “areas of generally low- to mid-rise” commercial development. The Howard Hughes Center, located in the City of Los Angeles, was described as a “view resource” because of its “vibrant, urban quality” and its “high quality landscaping and architecturally” distinctive buildings. Buildings in the Howard Hughes Center were taller than or as high as the proposed project. The environmental impact report compared the area’s existing visual quality from various perspectives—including from the Westchester Bluffs—with the visual character of the area as developed with the proposed project.
With respect to the residential Westchester bluffs the environmental impact report stated: “The existing visual quality of the area from the top of the bluff and other surrounding locations is of mixed character, including the visible horizon, the I-405 freeway, urbanized areas in Culver City and the City of Los Angeles, as well as appearance of low-rise industrial buildings along Mesmer Avenue and to the immediate south of Centinela Avenue along Arizona Avenue, Arizona Circle, and Arizona Place. The rooftops of the low-rise industrial buildings are generally featureless and gray or white in appearance with little visible landscaping. Other features that affect the visual quality of the area include vehicle activity along Centinela Avenue; the high-rise Radisson Hotel; high- and mid-rise buildings and vibrant signage in the [Howard] Hughes Center; vibrant signage associated with Dinah’s Restaurant and other less distinctive restaurant uses backing up to Centinela Avenue... and surface parking lots along Centinela Avenue.... The appearance of the Proposed Project as viewed from the Westchester [b]luffs would be that of a prominent and architecturally interesting building.... ” The environmental impact report concluded: “As the existing environment is highly urban in character, the Proposed Project would not strongly contrast with the existing visual environment or degrade the visual quality of the Project Site or area. Based on the above, with respect to visual character and quality, the impact of the Proposed Project would be less than significant.”
Second, contrary to plaintiff’s assertion, the environmental impact report considered view obstruction from a qualitative as well as a quantitative (percentage of view blockage) perspective from 10 different locations, including 3 in the Westchester Bluffs—Kentwood Court, Arizona Avenue and Riggs Place. For example, with respect to Kentwood Court the environmental impact report stated in part: “[View 7] simulates a direct view of the Proposed Project from the side[]yard of a property at the terminus of Kentwood Court, approximately 550 feet to the southwest of the Project Site. View 7... represents the vantage point with the most direct view from Kentwood Court.... The view 7 perspective provides a view toward the northeast, including the built environment of Culver City and Los Angeles, and the Santa Monica Mountains in the distance. This view is highly urban in nature and there are no distinctly notable aesthetic features in the foreground or background. Views of the existing Radisson Hotel are available from this location and, although prominent, the existing hotel is consistent with the general character of high-rise and urban development in the background. The view location is separated from the Project Site by the existing slope and Centinela Avenue. However, due to the broad expanse of the visible Los Angeles Basin, Baldwin Hills, and the distant Santa Monica Mountains, the view is considered scenic. From the View 7 location, the proposed office tower would intercept the horizon and would be visually prominent. Other high-rise buildings would also be a part of the visual field, including the existing Radisson Hotel. Revised view simulations depicting the correct building height and orientation [of the proposed project] with respect to this view location indicate that the Project would represent approximately 21 degrees of the view field, at its widest point (above the horizon). The direct simulation represented in [view 7] represents 73.2 degrees of a view field, of which 28.69 percent would be blocked by the Proposed Project. As discussed in the third party technical analysis (Appendix Q... of this Final [environment review report]), the direct view field for the human eye would be 90 degrees.... This percentage of view blockage is not substantial, as the majority of the view filed would still be visible and views beyond 90 degrees would be available from the vantage point with movement of the head or eyes. The quality of the view field is also a consideration in terms of significance. As the proposed office tower would primarily block views of the Fox Hills Mall from Location 7, and the revised simulation indicates that the re-oriented structure would not change horizon views, but extend view blockage across the Fox Hills Mall parking structure (not a scenic resource), it is concluded that the Project would not significantly impact views with respect to scenic resources from this location. Views of the majority of the skyline and background cityscape would continue to be available.”
c. Guidelines section 15064.7
We reject plaintiff’s argument the city failed to proceed as required by law because it did not adopt a general use threshold of significance. Guidelines section 15064.7 states: “(a) Each public agency is encouraged to develop and publish thresholds of significance that the agency uses in the determination of the significance of environmental effects.... [¶] (b) Thresholds of significance to be adopted for general use as part of the lead agency’s environmental review process must be adopted by ordinance, resolution, rule, or regulation, and developed through a public review process and be supported by substantial evidence.” (Italics added.) Contrary to plaintiff’s assertion, the city was not required to adopt a threshold of impact significance by ordinance, resolution, rule or regulation. The Guideline is permissive. The city could draw from existing environmental standards in determining the significance of view impacts. (Protect The Historic Amador Waterways v. Amador Water Agency, supra, 116 Cal.App.4th at p. 1107; Communities for a Better Environment v. California Resources Agency, supra, 103 Cal.App.4th at p. 111.) In addition to using a threshold to determine significance, a public agency must also consider whether there is other substantial evidence that the environmental effect might be significant. (Protect The Historic Amador Waterways v. Amador Water Agency, supra, 116 Cal.App.4th at p. 1109; see Communities for a Better Environment v. California Resources Agency, supra, 103 Cal.App.4th at p. 114.)
It is undisputed the city was aware that residents of the Westchester bluff area—many of whose views from their homes will be most severely impacted by the proposed project as compared to residents of other areas—were opposed to the project. Their opinions were reflected in written comments and oral presentations at public hearings. It is also undisputed the city had before it a large number of photographs of existing and simulated views from multiple vantage points. The city’s consultant concluded that consistent with industry standards, these panoramic views were the best calculators of view blockage. The consultant’s detailed analysis of view blockage was included as an appendix to the environmental impact report. The environmental impact report concluded: scenic views from residential properties on the Westchester bluffs would be partially obstructed; “[h]owever, due to the broad expanse of these views the vast majority of the visual field would be retained”; and “[a]s such, the Proposed Project would not substantially obstruct a prominent scenic view and impacts would be less than significant.”
IV. DISPOSITION
The judgment is affirmed. Defendant, the City of Culver City, and real party in interest, CRP Centinela, are to recover their costs on appeal from plaintiff, United Neighbors of the Westside.
We concur: MOSK, J., KRIEGLER, J.
Guidelines section 15092 provides: “(a) After considering the final EIR and in conjunction with making findings under Section 15091, the Lead Agency may decide whether or how to approve or carry out the project. [¶] (b) A public agency shall not decide to approve or carry out a project for which an EIR was prepared unless either: [¶] (1) The project as approved will not have a significant effect on the environment, or [¶] (2) The agency has: [¶] (A) Eliminated or substantially lessened all significant effects on the environment where feasible as shown in findings under Section 15091, and [¶] (B) Determined that any remaining significant effects on the environment found to be unavoidable under Section 15091 are acceptable due to overriding concerns as described in Section 15093. [¶] (c) With respect to a project which includes housing development, the public agency shall not reduce the proposed number of housing units as a mitigation measure if it determines that there is another feasible specific mitigation measure available that will provide a comparable level of mitigation.”
Guidelines section 15093 states: “(a) CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits of a proposed project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered “acceptable.” [¶] (b) When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, 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. The statement of overriding considerations shall be supported by substantial evidence in the record. [¶] (c) If an agency makes a statement of overriding considerations, the statement should be included in the record of the project approval and should be mentioned in the notice of determination. This statement does not substitute for, and shall be in addition to, findings required pursuant to Section 15091.”