In an opinion filed on July 24, and later ordered published on August 19, 2024, the Second District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying a writ petition challenging actions taken by the Los Angeles City Planning Commission (“CPC”) to facilitate and implement three components of the Westside Mobility Plan (the “Mobility Plan”). Westside Los Angeles Neighbors Network v. City of Los Angeles (2024) 104 Cal.App.5th 223.

As brief background, the Mobility Plan is a comprehensive study with six components addressing congestion and mobility issues in western Los Angeles. The project at issue seeks to facilitate and implement three “separate but intertwined components” of the Mobility Plan, consisting of two Fee Program Updates and one Streetscape Plan; it requires approval of the Streetscape Plan by the CPC and the Fee Program Updates (which involve specific plan amendments and ordinances) by the City Council. This division of project approval authority between two decision-making bodies within the lead agency (the City of Los Angeles) resulted in the CPC conducting CEQA review of the whole project even though its approval authority extended only to the Streetscape Plan, which was ostensibly the project’s least environmentally impactful component.

Appellant’s CEQA claims challenged, inter alia, the CPC’s certification of an EIR for the Fee Program Updates and its adoption of a categorical exemption for the Streetscape Plan. While, as discussed below, these challenges were ultimately rejected, and the judgment upholding the CPC’s action affirmed, the Court of Appeal’s opinion may have raised more questions than it answered by declining to address a number of substantial CEQA issues that were deemed forfeited by appellant’s failure to timely raise them.

Relevant Background and City’s CEQA Review and Approval of the Project

Of the Plan’s six components, the three comprising the project at issue are: (1) an update to the Coastal Transportation Corridor Specific Plan (“CTCSP”); (2) an update to the Westside Los Angeles Transportation Improvement and Mitigation Plan (“WLA TIMP”); and (3) the Livable Boulevards Streetscape Plan (“Streetscape Plan”). The CTCSP and WLA TIMP were adopted decades ago to establish a Transportation Impact Assessment (“TIA”) fee program under which TIA fees are established by specific plan ordinances and fund transportation improvements to mitigate new development impacts within the specific plan areas. Under the program, developers pay the fees before issuance of building or grading permits and the fees go into trust funds used to implement the relevant specific plan’s list of transportation improvements.

The project’s “Fee Program Updates” amend and update the CTCSP and WLA TIMP in various respects, such as revising the TIA fees required under the specific plans and related ordinances (by adjusting the formula used to calculate them for various land uses); offering credits for affordable housing and TODs; and updating the specific plans’ lists of improvements to be funded. Implementation of the listed transportation improvements must comply with the Streetscape Plan, which provides a blueprint for streetscape improvements on public rights of way in five key street segments located in areas covered by the CTCSP and WLA TIMP. The Streetscape Plan seeks “to create a safe, attractive, and pedestrian-friendly environment that promotes neighborhood identity, multimodal accessibility, and local commerce” by setting guidelines and standards for such elements as street trees and landscaping, sidewalk paving, street furniture, bus zone amenities, and pedestrian crossings.

In January 2015, the City released a draft EIR for the project with analysis limited to the Fee Program Updates’ potential environmental effects as it deemed the Mobility Plan’s other components, including the Streetscape Plan, “not subject to CEQA review[.]” In fact, the City believed the Fee Program Updates were statutorily exempt under Public Resources Code section 21080(b)(8) (exempting the approval of modification of “rates, tolls, fares, or other charges by public agencies” for specified purposes) but prepared an EIR anyway. Following publication of the final EIR, in March 2018 the CPC, inter alia, certified that EIR, found the Fee Program Updates statutorily and categorically exempt from CEQA, adopted the Streetscape Plan, recommended that the City Council adopt the Fee Program Updates, and filed a Notice of Determination (NOD) and Notice of Exemption (NOE) for the project.

The Trial Court Litigation

In June 2018, appellant filed a writ petition challenging the EIR’s certification, the NOE’s findings, and related actions facilitating the Fee Program Updates. After initially sustaining with leave City’s demurrer on statute of limitations grounds, the trial court ultimately considered appellant’s first amended petition (which explicitly challenged the CPC’s approval of the Streetscape Plan, as well as the EIR certification and NOE findings) on the merits after full briefing and hearing. It then ruled that: (1) the CPC was a “decision-making body” with authority to certify the EIR; (2) substantial evidence did not support City’s determination that the Fee Program Updates are statutorily exempt; (3) substantial evidence supported City’s determination that the Streetscape Plan is categorically exempt; (4) appellant did not carry its burden to show the unusual circumstances exception defeated the categorical exemption for the Streetscape Plan; and (5) the EIR was legally adequate. The trial court accordingly entered judgment for City, and appellant appealed.

The Court of Appeal’s Opinion

Appellant’s three primary arguments advanced on appeal were: (1) the CPC lacked authority under CEQA to certify the EIR; (2) City erroneously determined the Streetscape Plan is categorically exempt; and (3) the final EIR was legally deficient because it insufficiently discussed the Fee Program Updates’ growth-inducing impacts and failed to ensure a mitigation measure designed to protect neighborhoods from cut-through traffic (MM-T-2) would be implemented.

The Court of Appeal found that all these arguments lacked merit, and refused to consider several other arguments that it relegated to a footnote as forfeited because raised for the first time in appellant’s reply brief. (See, Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) The forfeited arguments included claims that: (1) the CPC’s adoption of the Streetscape Plan did not constitute “approval” of the project under CEQA Guidelines section 15352; (2) City failed to adopt required procedures to delegate EIR certification authority to the CPC; and (3) an agency may not apply a categorical exemption to some project components and not others. These forfeited arguments all raised substantial issues; in particular, arguments (1) and (3) raised important – and potentially dispositive – CEQA issues on which the published opinion might have provided beneficial analysis and guidance if it had reached them. Appellant’s failure to preserve these issues thus, unfortunately, limited the precedential and instructive value of the Court’s published opinion for future cases.

Another notable omission in the opinion’s analysis is revealed by another of its footnotes, which states “that, although permitted to do so under LAMC section 11.5.13, appellant did not appeal the CPC’s certification of the EIR to the Los Angeles City Council.” This, of course, raises the (unaddressed) issue why the challenges to the CPC’s EIR certification and the EIR’s sufficiency were not arguably barred by appellant’s failure to exhaust administrative remedies.

Setting aside for the moment the issues that were not addressed by the opinion, and turning to those that were, the Court had little trouble rejecting all of appellant’s properly preserved arguments, as discussed in detail below.

The CPC Was a “Decision-Making” Body Authorized to Certify the EIR

Under established CEQA rules, a public agency’s decision-making body cannot delegate the function of reviewing and considering a final EIR or approving a negative declaration before approving a project. (CEQA Guidelines, § 15025(b)(1).) Prior to project approval, the lead agency must certify that the final EIR: (1) complies with CEQA; (2) was presented to and reviewed and considered by the lead agency’s decision-making body; and (3) reflects the lead agency’s independent judgment and analysis. (Guidelines, § 15090(a); California Clean Energy Committee v. City of San Jose (2013) 220 Cal.App.4th 1325, 1355.) Delegation by the lead agency of EIR certification, negative declaration approval, or exemption determination authority to a nonelected decision-making body is proper, however, so long as the nonelected body’s  CEQA decision is made appealable to the lead agency’s elected decision-making body, if any. (Pub. Resources Code, § 21151(c); CEQA Guidelines, § 15090(b); Clean Energy, 220 Cal.App.4th at 1335.) This CEQA requirement is intended to hold decision makers accountable to the electorate for their decisions affecting the environment. The City was, without dispute, the “lead agency” in the instant case, and CEQA defines a “decision-making body” as “any person or group within a public agency permitted by law to approve or disapprove the project at issue.” (Guidelines, § 15356.)

Under the foregoing rules, it follows that a nonelected planning commission, such as the CPC, can be a decision-making body with EIR certification authority, subject to appeal to the elected decision-making body, if it has authority to approve or disapprove the project at issue. Appellant argued that, in the context of this “multi-component project,” the CPC was not a decision-making body authorized to certify the project’s EIR because it was only authorized to approve the Streetscape Plan, and not the other two project components (i.e., the Fee Program Updates, which the City Council had exclusive authority to approve and which were the “primary source” of the project’s environmental impacts).

The Court of Appeal was not persuaded. It cited the above authorities, and also CEQA’s principles that project “approval” is the public agency’s decision that “commits [it] to a definite course of action in regard to a project” (Guidelines, § 15352(a)), and that a “project” is “the whole of an action” (§ 15378(a)) and “the activity which is being approved” and “not . . . each separate governmental approval” (Guidelines, § 15378(c)). Applying these principles, the Court held that a “decision-making body” for CEQA purposes is “any person or group of people within a public agency permitted by law to commit an agency to a definite course of action for a project.”  It rejected appellant’s argument that, for a multi-component project, the question should turn on whether the entity can implement the component constituting “the primary source” of environmental impacts; it found this argument inconsistent with the applicable Guidelines and to impermissibly propose “a new test for multi-component projects . . . untethered to any provisions in CEQA or the Guidelines.” (Citing Pub. Resources Code, § 21083.1.)

Thus, under the applicable law, the CPC was a decision-making body authorized under CEQA to certify the final EIR for the whole project, i.e., the Streetscape Plan and the Fee Program Updates, which the Court characterized as “separate but intertwined components of the Westside Mobility Plan.”  Per the Court, given the overlapping project components, the CPC could, by virtue of its power to adopt the Streetscape Plan, make a decision committing the City to a definite course of action in regard to – i.e., it could “approve” – the Project despite the need for further discretionary City Council action to adopt the Fee Program Updates.

In reaching its holdings, the Court distinguished two cases cited by appellant. The first case, Clean Energy, supra, 220 Cal.App.4th at 1331, 1338, held that lead agency City of San Jose improperly delegated its EIR certification authority to a planning commission that was a nonelected nondecision-making body for the project at issue and thus merely an advisory body making recommendations on, not decisions to adopt, the general plan update project there at issue. By contrast, per the Court, the CPC here “was [a decision-making body] authorized to adopt a key component of the Project, which was intertwined with the Project’s other components.”

The second case relied on by appellant, Kleist v. City of Glendale (1976) 56 Cal.App.3d at 770, was also inapposite because there the parties agreed that the decision-making body for the rezoning project at issue was the City Council, which the trial court found did not review or consider the final EIR before acting on the project and which was a different body than the planning board that actually adopted the final EIR. Such a delegation of the Council’s “review and consideration” function to another nondecision-making body contravened CEQA, and did not present the issue in the instant case, “i.e., whether an entity authorized to adopt a portion of a multi-component project is a “decision-making body” to whom a lead agency may delegate its [EIR certification] authority[.]”

The Streetscape Plan Is Categorically Exempt And Not Subject To Any Exception

As narrowed on appeal, the issue presented was limited to whether the Streetscape Plan was categorically exempt under CEQA Guidelines sections 15301, 15304 and 15308. The Court held substantial evidence supported the City’s finding that the project fell within the section 15301 exemption, so that it need not address the application of the other two exemptions, and also that appellant failed to carry its burden to prove the “unusual circumstances” exception applied to negate the exemption.

CEQA Guidelines section 15301, the “Class 1” categorical exemption, applies to “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use.” The Court found substantial evidence, in the form of the plan’s own contents, supported the application of this exemption to the Streetscape Plan, whose “standards and guidelines dictate minor alterations to existing rights-of-way, which will improve their aesthetics, functionality, and safety” and “not expand the use of those rights-of-way.”

Per the Court, appellant’s argument that the exemption was negated by the CPC’s statement of overriding considerations acknowledging the EIR’s findings of significant and unavoidable adverse impacts to air quality, noise and vibration, and transportation was not well taken because those impacts were found to result from the Fee Program Updates, not the Streetscape Plan.

For essentially the same reason, appellant’s attempt to prove the unusual circumstances exception applied through the “second alternative” method of proof – i.e., adducing evidence that the project will have a significant effect – was also found lacking. While part of the CPC’s Environmental Resolution recognized significant impacts from the Fee Program Updates, it contained no such findings with respect to the Streetscape Plan.

The EIR Is Legally Adequate With Respect to Its Growth-Inducing Impacts Analysis And Adoption of MM-T-2 As A Binding Mitigation Measure

The Court next rejected appellant’s argument that the EIR’s growth-inducing impacts analysis was inadequate. The EIR’s relevant discussion acknowledged the project could lead to mobility-enhancing transportation improvements within a “fully developed, populated urban area,” but also that growth is expected in that area with or without the Fee Program Updates, and that while the Updates would serve to accommodate infill or density-related growth envisioned in relevant land use plans, they would not directly or indirectly induce such growth. The Fee Program Updates were not themselves land use plans, would not change general plan land use designations or zoning classifications, and would not entitle or approve any transportation improvements or zoning or development standards or regulations governing new development. No substantial evidence showed the Fee Program Updates would induce growth, as opposed to increasing mobility options within the project areas as growth continues, and the TIA fee credits for affordable housing and TOD development were analyzed and essentially determined not to provide a great enough incentive to induce any new growth that would not otherwise occur. The EIR’s discussion of growth-inducing impacts and responses to related comments set forth the rationale underlying the EIR’s determination of no growth-inducing impacts and was not conclusory; appellant failed to demonstrate any insufficiency in the analysis.

Finally, substantial evidence in the record showed that, contrary to appellant’s assertions, MM-T-2, the mitigation measure designed to protect local neighborhoods from cut-through traffic, was properly adopted as part of the project and fully enforceable as required by CEQA. The EIR explained how the measure would be funded (through TIA fees) and specified when it would be implemented by the Los Angeles Department of Transportation (“LADOT”) (i.e., when other projects on the CTCSP and WLA TIMP lists are implemented and direct traffic onto adjacent streets, as determined by future project-specific studies based on LADOT protocols).

Conclusion and Implications

This case is a good reminder that local agencies’ project approval processes can be complex – e.g., where, as here, a multi-component project and split decision-making authority among different bodies within the lead public agency are involved – and that the application of CEQA’s rules in such complex contexts can, accordingly, be somewhat messy. When litigation is added to this mix, and various key issues are either ignored or removed from judicial consideration due to a litigant’s forfeiture, the resulting decision may raise more questions than it answers.

In this case, for example, the opinion does not explain why the CEQA issues regarding the CPC’s authority to certify the EIR and/or the EIR’s legal adequacy were not jurisdictionally barred by the appellant’s failure to exhaust its LAMC-provided administrative remedy of appealing to the City Council. And, while we know why the various forfeited issues were not addressed, we are still left to wonder if the case would have been decided differently if they had been preserved and addressed. While the Court of Appeal expressly declined to address appellant’s contention that the CPC’s adoption of the Streetscape Plan did not constitute “approval” of the Project under CEQA, it nonetheless effectively decided that issue against appellant, leaving readers to question whether it did so essentially by default, and without due consideration of all relevant arguments and authorities.

And what of the unaddressed argument that “an agency may not apply a categorical exemption to some components of a project and not others”? While a statutory exemption may certainly be applied so as to effectively exempt some aspects of a project from CEQA review, it isn’t at all obvious that categorical exemptions can properly be applied to operate in that way. There is arguably analogous authority that would support a contrary view, including authority that mixed ministerial/discretionary projects are deemed discretionary and thus subject in their entirety to CEQA review (Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 210), and that different environmental documents at CEQA’s second and third tiers of review may not be pieced together and used to achieve CEQA compliance for the same project. (See, e.g., Farmland Protection Alliance v. County of Yolo (2021) 71 Cal.App.5th 300 [holding “limited EIR” cannot be combined with deficient revised MND to achieve CEQA compliance].) There is also arguably analogous and instructive CEQA authority in the context of lead agency identification where a project requires multiple approvals from different agencies, i.e., the lead agency is the agency with principal responsibility for carrying out or approving a project. (See, e.g., Pub. Resources Code, § 21067; CEQA Guidelines, § 15050.)

And while such analogies are obviously imperfect in their potential application to the facts presented in the instant case, and may ultimately be unpersuasive, even so they tend to underscore that the forfeited issues here raised substantial questions worthy of judicial analysis. Are categorical exemptions separately applicable to distinct, yet “intertwined,” project components? Can multi-component projects be considered one project for purposes of CEQA’s “approval’ and “review delegation” rules, but essentially separate projects for purposes of utilizing an EIR or a categorized exemption? These are interesting and significant questions the Court of Appeal disclaimed addressing, but effectively decided in favor of the City, thus seemingly blunting and diminishing its decision’s value as precedent and useful guidance.

Setting aside these musings and misgivings about unaddressed issues and missed opportunities, some firm takeaways from the opinion include its reaffirmation that CEQA review can be delegated to a nonelected decision-making body, subject to appeal to the elected decision-making body; that a streetscape plan like the plan at issue here will generally fall within the Class I categorical exemption; and that an EIR’s growth-inducing impacts analysis will pass muster if reasoned and non-conclusory, even if general.

Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.