Coal. for an Equitable Westlake/Macarthur Park v. City of L. A.

47 Cal.App.5th 368

260 Cal.Rptr.3d 731

COALITION FOR AN EQUITABLE WESTLAKE/MACARTHUR PARK, Plaintiff and Appellant,

v.CITY OF LOS ANGELES et al., Defendants and Respondents;

Adrian Jayasinha et al., Real Parties in Interest and Respondents.

B293327

Court of Appeal, Second District, Division 5, California.

Filed April 2, 2020

Claudia Medina, for Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Terry Kaufmann Macias, Senior Assistant City Attorney, John W. Fox and Liliana M. Rodriguez, Deputy City Attorneys; Thomas Law Group, Amy R. Higuera, Christopher J. Butcher, for Defendants and Respondents.

Park & Velayos, Francis Y. Park, Steven D. Atlee, for Real Parties in Interest and Respondents.

MOOR, J.

INTRODUCTION

Plaintiff and appellant Coalition for an Equitable Westlake/Macarthur Park (the Coalition) filed a petition for writ of mandate, seeking a peremptory writ directing respondents City of Los Angeles (City of LA), Los Angeles City Council (City Council), and Los Angeles Department of City Planning (Planning Department) (collectively, "the City") to set aside various land use approvals, as well as determinations and documents approved under the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ).¹ Adrian Jayasinha and the Walter and Aeshea Jayasinghe Family Trust ("Real Parties in Interest") and the City filed demurrers, arguing that the Coalition’s claims were barred under the statute of limitations and the Coalition had failed to exhaust its administrative remedies. The trial court sustained the demurrers without leave to amend and dismissed the Coalition’s petition. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND²

Project approvals

The Lake on Wilshire Project ("the Project"), is a mixed-use project consisting of a hotel, a residential tower, and a multi-purpose center with a theater.³ The Real Parties in Interest are the Project applicants.

On March 3, 2017, after holding a hearing, the Deputy Advisory Agency (Agency)⁴ for the City of LA approved the Project’s Vesting Tentative Tract Map (Tract Map) and certified⁵ a mitigated negative declaration (MND) for the Project. A 30-page determination letter memorializing the Agency’s actions noted that any appeal must be filed with the City Planning Commission (Planning Commission) within 10 calendar days from the decision date, and that there may be time limits which affect the availability of judicial review. There is nothing in the record to show that the Coalition took any action to appeal or challenge any of the actions taken by the Agency on March 3, 2017.

On March 15, 2017, the City filed a Notice of Determination (NOD) advising the public that on March 3, 2017, the Agency had approved the Tract Map, certified the MND, and determined that mitigation measures were made a condition of project approval. The NOD also stated that an MND was prepared for the Project pursuant to CEQA, the MND could be examined at the Planning Department, and findings were made pursuant to CEQA. The NOD included the following language at the top: " Public Resources Code Section 21152(a) requires local agencies to submit this information to the County Clerk. The filing of this notice starts a 30-day statute of limitations on court challenges to the approval of the project pursuant to Public Resources Code Section 21167." There is nothing in the record to show that the Coalition took any action within 30 days of the NOD’s March 15, 2017 filing date to challenge approval of the Tract Map or the validity of the CEQA determinations.

On October 12, 2017, the Planning Commission found the Project was assessed in the March 3, 2017 MND, and no subsequent environmental impact report (EIR), negative declaration, or addendum was required. The Planning Commission approved conditional use permits and made other approvals relating to the Project. A determination letter showed a mailing date of November 1, 2017, with an appeals deadline of November 21, 2017.

Around November 21, 2017, two tenants of an existing building on the Project site appealed the Planning Commission’s decision. The City Council denied the appeals on January 31, 2018. At the same meeting, the City Council adopted a resolution approving general plan amendments in connection with the Project.

The Coalition’s CEQA challenge

On March 2, 2018, the Coalition filed a petition for writ of mandamus, challenging the approval of the MND as violating CEQA. The Coalition complained the City "failed to disclose, analyze, and mitigate the Project’s significant adverse environmental impacts in multiple areas, including aesthetic, cultural, land use, noise, traffic, and air quality impacts, as well as the cumulative impacts caused by allowing exceptions and increases in density beyond the limits allowed by the City." The Coalition further claimed that the City’s mitigation measures were inadequate, and that an EIR was required in light of the Project’s significant effects on the environment.

The City and Real Parties in Interest filed a demurrer and a request for judicial notice. The Coalition filed an opposition and its own request for judicial notice.

On August 20, 2018, the superior court sustained the demurrer on the grounds that the Coalition’s claims were time-barred under CEQA for failure to seek writ relief within 30 days after the NOD was filed on March 15, 2017, and that the Coalition had failed to exhaust administrative remedies. The court denied leave to amend. The Coalition appealed.

DISCUSSION

The Coalition filed its petition for writ of mandate on March 2, 2018, almost a full year after March 15, 2017, the date on which the City of LA’s NOD triggered a 30-day statute of limitations under section 21167, subdivision (b). The Coalition’s CEQA claims are time-barred because they were filed more than 30 days after the City of LA filed a facially valid NOD. To the extent the Coalition argues on appeal that the Agency lacked authority to make any determinations under CEQA or lacked authority to approve the project, while such claims could have been considered as part of a timely action, they are also time-barred.

1. Standard of review

"On review from an order sustaining a demurrer, ‘we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose. [Citations.]’ [Citation.] We may also consider matters that have been judicially noticed. [Citations.] " ‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]" [Citation.]’ [Citation.]" ( Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42, 105 Cal.Rptr.3d 181, 224 P.3d 920 ( Green Foothills ).)

2. CEQA overview

"CEQA was enacted to advance four related purposes: to (1) inform the government and public about a proposed activity’s potential environmental impacts; (2) identify ways to reduce, or avoid, environmental damage; (3) prevent environmental damage by requiring project changes via alternatives or mitigation measures when feasible; and (4) disclose to the public the rationale for governmental approval of a project that may significantly impact the environment." ( California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382, 196 Cal.Rptr.3d 94, 362 P.3d 792.)

To implement these goals, CEQA requires state and local government agencies to first determine whether a proposed activity is a project subject to CEQA, and then to determine whether the project is exempt from CEQA or requires some form of a CEQA document, whether that be an EIR, a negative declaration, or an MND. (See generally Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1185–1187, 250 Cal.Rptr.3d 818, 446 P.3d 317 ; Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 944–945, 207 Cal.Rptr.3d 314, 378 P.3d 687.) An EIR is "an informational document," the purpose of which "is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project." (§ 21061.) "A negative declaration 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.’ (§ 21064.) An MND is ‘a negative declaration prepared for a project when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.’ (§ 21064.5.)" ( Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 183–184, 227 Cal.Rptr.3d 413 ( Clews ).)

When a local agency "approves or determines to carry out a project" subject to CEQA, it must file with the county clerk’s office a NOD within five working days of the approval or determination. ( § 21152, subd. (a) ; Guidelines, § 15075, subd. (a); cf. Green Foothills, supra, 48 Cal.4th at p. 56, fn. 17, 105 Cal.Rptr.3d 181, 224 P.3d 920 [noting that even in a discretionary...