109 Cal.Rptr.2d 504
Apartment Ass'n of Greater Los Angeles, Plaintiff and Appellant,
City of Los Angeles, Defendant and Respondent
July 23, 2001
FN1. Pub. Resources Code § 21000 et seq. All future statutory references are to the Public Resources Code unless otherwise specified.
FACTS AND PROCEEDINGS BELOW
are a non-profit association representing residential landlords throughout the
city of Los Angeles and a landlord which owns and operates residential
properties in the city.
FN2. City of Los Angeles Ordinance No. 173011 (adopted Dec. 17, 1999).
FN3. Petitioners in the present case also challenged the interim program for failure to comply with CEQA requirements. The trial court denied their petition for writ of mandate and Division One of this court affirmed in an unpublished opinion. (Apartment Assoc. of Greater Los Angeles v. City of Los Angeles (2000) B131279.)
Petitioners appeared before the city council in
opposition to the permanent code enforcement program. They took issue with the
city's position the permanent program would not have a significant impact on
the environment and, therefore, an environmental impact report (EIR) was not
required prior to adoption of the program. In support of their argument the
program could have a significant effect on the environment petitioners
submitted declarations from two urban planners, Sims and Silvern, who had not
testified concerning the interim code enforcement program. Petitioners' experts
explained why, in their view, the code enforcement program was likely to
"create significant environmental impacts within the meaning of [CEQA] by
adversely affecting the city's affordable rental housing stock and ultimately
the environmental setting of the city's neighborhoods." In summary, Sims
concluded the program "could cause widespread foreclosure, abandonment and
removal of affordable rental housing in the City of Los Angeles." Silvern
concluded the volume of repair activity which would be generated by the program
could significantly effect the environment through the transportation, use and
disturbance "of potentially toxic and/or hazardous materials (e.g.,
pesticides, asbestos and lead paint)," by permanently or temporarily
displacing tenants, and by causing "changes to buildings that are of
historic value." For these reasons, petitioners argued to the council, an
EIR should be prepared.
BACKGROUND: CEQA'S THREE-TIERED STRUCTURE FOR ENVIRONMENTAL REVIEW.
FN4. §§ 21080, subd. (d), 21084, subd. (a); No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74, 118 Cal.Rptr. 34, 529 P.2d 66; hereafter No Oil.
FN5. CEQA Guidelines at Cal.Code Regs., tit. 14, § 15063. Future references to the CEQA Guidelines will be cited as "CEQA" followed by the referenced section in Title 14 of the California Code of Regulations.
FN6. § 21080, subd. (c).
FN7. § 21151.
In the present case, the city council determined the permanent code enforcement program was categorically exempt from environmental review under the state and city CEQA guidelines. [FN8] On the motion adopting the permanent program the council found: "[T]his project ... is categorically exempt from CEQA pursuant to Article VII, Section 1, Class 1, Category 4 of the City's CEQA Guidelines because the effect of the project is the restoration or rehabilitation of deteriorated or damaged structures, facilities or mechanical equipment or systems to meet current standards of public health, safety or environmental protection[.]" The council further found the project is exempt under Class 9, Category 2 of the city's CEQA guidelines "because the project would allow a City department to inspect the quality, health or safety of a project[.]" And, finally, the council found "the project is exempt under Class 21, Category (a) of the State CEQA Guidelines because it is the enforcement of a law administered or adopted by the regulatory agency[.]" [FN9]
FN8. Section 21082 directs local agencies to develop their own guidelines, including guidelines for categorical exemptions. Under the statute, these local guidelines are valid so long as they are consistent with state regulations and the CEQA statute.
FN9. CEQA § 15321.
**3 Having found the project exempt from further review, the city did not undertake an "initial study" or issue a negative declaration or EIR.
the city argues the judgment on the merits denying petitioners' challenge to
the interim code enforcement program precludes their challenge to the permanent
program under the doctrine of *509 collateral estoppel. The trial
court took a slightly different approach holding petitioners could challenge
the permanent program but not on the basis of their experts' declarations. We
disagree with the city and the trial court as to the preclusive effect of the
failed challenge to the interim program.
FN10. Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810, 122 P.2d 892.
FN11. Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1015, 48 Cal.Rptr.2d 174.
city contends the doctrine of collateral estoppel bars petitioners' attack on
the permanent code enforcement program because the permanent program "is
for all intents and purposes the same as the [interim program]" and the
issues raised with respect to the permanent program were considered and
rejected in the prior litigation challenging the interim program. We find the
programs and the issues are not the same.
FN12. § 21065.
FN13. 60 Ops. Atty. Gen. (1977) 335, 338.
Furthermore, a comparison of the interim and permanent programs shows they are not the same. The very fact one was temporary and the other is permanent is enough to distinguish them because the environmental impact of a short-term program may be much less significant than a program of indefinite duration. [FN14] There are other differences: the permanent program is broader in scope than the interim program, [FN15] it specifies a covered rental property is to be inspected at least once every three years, adds new provisions regarding rent increases and rent withholding, and sets inspection fees and penalties for non-payment.
FN14. Chamberlin v. City of Palo Alto (1986) 186 Cal.App.3d 181, 187, 230 Cal.Rptr. 454 (hereafter Chamberlin ).
FN15. For example, the interim program covered "apartment houses" whereas the permanent program specifically includes duplexes and triplexes.
**4 Because the programs are
not the same, neither are the issues. While the issue in petitioners' previous
action was whether the interim code enforcement program was exempt from
environmental review under CEQA the issue in the present action is whether the permanent
code enforcement program is exempt from such review.
FN16. Chamberlin, 186 Cal.App.3d at p. 187, 230 Cal.Rptr. 454. See also Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872, 878-880, 274 Cal.Rptr. 720 holding distinctions between two drilling plans precluded application of collateral estoppel.
FN17. Chamberlin, 186 Cal.App.3d at p. 188, 230 Cal.Rptr. 454.
the reasons stated above, we conclude the petition before us is not barred by
FN18. The trial court also ruled that even if the declarations could be considered on the merits of the CEQA exemption issue the declarations did not overcome the substantial evidence supporting the exemption. We discuss this issue in Part IV, below.
The reasoning which led the trial court to this ruling was as follows. First, the court found the interim and permanent code enforcement programs were the "same project." Next, equating the city's "notice of exemption" to a "negative declaration," the court found the city could not be required to prepare an EIR for the permanent program unless substantial changes were proposed in the project or new evidence came to light which could not have been known with reasonable diligence at the time a negative declaration was prepared regarding the interim program. [FN19] The court then concluded that because the city proposed no substantial changes from the interim program and because petitioners failed to show their experts' declarations could not, with reasonable diligence, have been obtained and presented to the city council at the time it considered the interim program, the experts' declarations could not be considered in determining whether an environmental review was required for the permanent program.
FN19. CEQA § 15162.
**5 We explained above why the interim and permanent code enforcement programs are not "the same project." The trial court also erred in equating the city's notice of exemption to a negative declaration and then applying the rules regarding the *511 need for an EIR subsequent to a negative declaration. [FN20]
FN20. CEQA § 15162.
A notice of exemption is a notice filed "[w]hen a public agency decides that a project is exempt from CEQA[.]" [FN21] Filing a notice of exemption triggers a 35 day limitations period on legal challenges to the agency's decision the project is exempt. If no notice of exemption is filed, a 180-day limitations period applies. [FN22] A notice of exemption has no significance other than to trigger the running of the limitations period. [FN23]
FN21. CEQA § 15062, subd (a); emphasis added.
FN22. CEQA § 15062, subd. (d).
FN23. For this reason it is irrelevant whether, as petitioners contend, the notice of exemption in this case failed to include all that it should under the CEQA Guidelines. The petitioners filed their petition well within the 35-day limitations period.
A negative declaration, on the other hand, is a "written statement briefly describing the reasons that a proposed project will not have a significant effect on the environment and does not require the preparation of an environmental impact report." [FN24] A negative declaration is only applicable in the case of a project which is not exempt from environmental study under CEQA. [FN25] As our Supreme Court explained in the No Oil case, "If a project falls within a category exempt by administrative regulation ... or 'it can be seen with certainty that the activity in question will not have a significant effect on the environment' ... no further agency evaluation is required." [FN26]
FN24. § 21064.
FN25. No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 80, 118 Cal.Rptr. 34, 529 P.2d 66.
FN26. No Oil, 13 Cal.3d at p. 74, 118 Cal.Rptr. 34, 529 P.2d 66; emphasis added.
In the present case, the city found the permanent code enforcement program was categorically exempt from environmental review under the city's CEQA guidelines. Because the city treated the permanent program as categorically exempt from environmental review, it did not prepare a negative declaration or an EIR. Thus the regulation relied on by the trial court, [FN27] which limits the circumstances in which new evidence can be considered after the certification of an EIR or the adoption of a negative declaration, is inapplicable to this case.
FN27. CEQA § 15162.
In summary, the issue presented in this case is whether the city properly exempted the permanent code enforcement program from environmental review under CEQA. Petitioners are not estopped from raising this issue by reason of the judgment against them in their challenge to the interim program and the evidence in their experts' declarations was properly before the city council and should be considered in reviewing the council's exemption decision.
FN28. § 21168.5; City of Pasadena v. State of California (1993) 14 Cal.App.4th 810, 821, 17 Cal.Rptr.2d 766
On the first issue, petitioners contend the city did not proceed in the manner required by law because a finding a project is exempt from CEQA review requires an "initial study" to determine its environmental effects as we held in East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. [FN29] In making this argument, petitioners rely on our statement in East Peninsula "the amount of analysis and study involved at the preliminary review stage of determination of whether a project is exempt from CEQA may be similar to that involved at the 'second' stage where the agency conducts an initial study to determine whether the project has a significant effect on the environment [citation]." [FN30]
FN29. East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, 173, 258 Cal.Rptr. 147; hereafter East Peninsula.
FN30. East Peninsula, 210 Cal.App.3d at p. 173, 258 Cal.Rptr. 147
**6 Contrary to petitioners' interpretation, we did not hold in East Peninsula an agency always must conduct an "initial study" before declaring a project exempt from CEQA review. Such a holding would run counter to the three-tiered structure of CEQA review under which, if a project is categorically exempt "no further agency evaluation is required" and no "initial study" takes place. [FN31] East Peninsula was decided on the basis of the unique provision in section 21080.18 which states CEQA does not apply to the closing of a public school or the transfer of its students "if the only physical changes involved are categorically exempt under [regulations adopted by the Secretary of Resources]." We interpreted this statutory language to incorporate not only the regulatory exemptions but the regulatory exceptions to the exemptions. [FN32] One such exception applies "when the cumulative impact of successive projects of the same type in the same place, over time is significant." [FN33]
FN31. East Peninsula, 210 Cal.App.3d at p. 163, 258 Cal.Rptr. 147; and see No Oil, 13 Cal.3d at p. 74, 118 Cal.Rptr. 34, 529 P.2d 66; City of Pasadena v. State of California, 14 Cal.App.4th at p. 820, 17 Cal.Rptr.2d 766.
FN32. East Peninsula, 210 Cal.App.3d at p. 166, 258 Cal.Rptr. 147
FN33. CEQA § 15300.2, subd. (b).
Thus, in determining whether a school closure was exempt from CEQA review we held the school board was required to determine whether the cumulative impacts from the closing of the school and the transfer of its students would have a significant effect on the environment. [FN34] We also noted the school board was well aware of numerous negative impacts on the environment which would result from closing the school in question and it was also aware future school closings would probably have to occur in the not-too-distant future. It would exalt form over substance, we observed, to allow the school board to proceed with the closing based on mere technical compliance with the exemption statute and ignore potentially significant environmental consequences. [FN35]
FN34. East Peninsula, 210 Cal.App.3d at p. 172, 258 Cal.Rptr. 147.
FN35. East Peninsula, 210 Cal.App.3d at pp. 172-173, 258 Cal.Rptr. 147.
The present case does not involve the statutory school closing exception. Therefore, the kind of second tier analysis, or "initial study," we required in East Peninsula does not apply here. However, even *513 if such an analysis was required the requirement was satisfied by the city's study and report on the interim code enforcement program which we discuss below.
FN36. We will refer to this exemption as the Class 1(4) exemption.
VII, section 1 exempts certain projects from CEQA review "provided such
categorical exemptions are not used for projects where it can be readily
perceived that such projects may have a significant effect on the
environment." Class 1 applies to existing facilities and consists of
projects involving "the operation, repair, maintenance or minor alteration
of existing public or private structures, facilities, mechanical equipment, or
topographical features, involving negligible or no expansion of use beyond that
previously existing." Subdivision 4 of class 1 exempts projects consisting
of the "[r]estoration or rehabilitation of deteriorated or damaged
structures, facilities or mechanical equipment systems to meet current
standards of public health, safety and environmental protection."
FN37. Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 728, 3 Cal.Rptr.2d 488
explained above why petitioners failed to produce substantial evidence of a
significant environmental impact from the abandonment or withdrawal of rental
housing. We now consider petitioners' second argument.
FN38. CEQA Guidelines § 15064, subd. (f)(5).
FN39. Silvern's opinion the code enforcement program might adversely change a historical building (see CEQA Guidelines § 15300.2, subd. (f)) is also pure speculation with no evidentiary support. We also note that even assuming AAGLA's opposition to the permanent program constitutes a "public controversy" over the program petitioners are incorrect in claiming there is a "public controversy" exception to the categorical exemptions. See Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d
1337, 1358-1359, 272 Cal.Rptr. 372.
judgment is affirmed.
FN* Judge of the Superior Court for the County of Los Angeles, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.