Beverly Hills City Council
July 2, 2024

AGENDA REPORT
Meeting Date: July 2, 2024
Item Number:

To: Honorable Mayor & City Council
From: Masa Alkire, AICP, City Planner
Alexandria Smille, Associate Planner
Subject: AN APPEAL OF THE PLANNING COMMISSION’S FEBRUARY 8, 2024

DECISION APPROVING A DEVELOPMENT PLAN REVIEW AND

DENSITY BONUS PERMIT TO ALLOW FOR THE CONSTRUCTION OF A

NEW EIGHT-STORY, MIXED USE DEVELOPMENT WITH GROUND
FLOOR COMMERCIAL USES AND 56 RESIDENTIAL DWELLING UNITS AT 9229 WILSHIRE BOULEVARD; AND

A RESOLUTION OF THE COUNCIL OF THE CITY OF BEVERLY HILLS

CONDITIONALLY APPROVING A DEVELOPMENT PLAN REVIEW AND

DENSITY BONUS PERMIT TO ALLOW FOR A NEW EIGHT-STORY

MIXED USE DEVELOPMENT WITH GROUND FLOOR COMMERCIAL
USES, 56 RESIDENTIAL DWELLING UNITS ON THE SECOND

THROUGH SEVENTH STORIES, AND ROOFTOP RESTROOMS AT
9229 WILSHIRE BOULEVARD AND DENYING A RELATED APPEAL
Attachments: 1. Appeal Petition

2. Holland & Knight Response to Appeal

3. Draft City Council Resolution

4. Appellant Continuance Request

5. Applicant Continuance Response

6. February 8, 2024, Planning Commission Staff Report (Without Attachments)

7. Planning Commission Resolution No. 2050

8. Waiver Request Narrative

9. Notice of Public Hearing

10. Planning Commission Public Correspondence

11. City Council Public Correspondence

12. Class 32 Report

13. Project Plans
Meeting Date: July 2, 2024

RECOMMENDATION
Staff recommends that the City Council:

1. Hold a de novo public hearing to consider the appeal, and

2. Adopt a resolution approving the project and upholding the Planning Commission’s decision (i.e., denying the appeal).

INTRODUCTION
Pursuant to the City’s appeal procedures, the City Council must conduct a de novo public hearing to consider an appeal of a Planning Commission decision. Under a de novo review, the City Council considers not only the appeal and points raised therein, but conducts an independent review of the project application and considers whether the required findings can be made to approve the project. The February 8, 2024 Planning Commission staff report is provided as Attachment 6 to this staff report and provides an in-depth analysis of the project, its vicinity, applicable state requirements (including the State Regional Housing Needs Allocation (RHNA) process), and the required findings for approval. This staff report specifically addresses the issues raised in the appeal of the Planning Commission’s decision.

Planning Commission Discussion
On February 8, 2024, the Planning Commission held a duly noticed public hearing to review the proposed project and associated Development Plan Review and Density Bonus Permit applications (Attachment 6). At the hearing, the Commission heard public comment including concerns regarding the proposed height of the building, the scale of the project given its proximity to single-family residential development, and the potential for shadows to be cast on neighboring properties. After discussion and deliberation of the project and the topics raised by the public, the Commission adopted Resolution No. 2050 (Attachment 7) conditionally approving the project with a number of project-specific conditions.

Appeal Filed
On February 22, 2024, Aria Ahdoot filed a timely appeal of the Commission’s decision (Attachment 1). Specifically, the appellant identified the following as grounds for the appeal:
1) The City erred in waiving the height, story, and rear setback requirements for the project. 2) The proposed amenity space has the potential to be converted to accessory dwelling units (ADUs).
3) The project does not qualify for a categorical exemption pursuant to the California Environmental Quality Act (CEQA) and the City Council should require the preparation of an environmental impact report (EIR).

Continuance Request
On June 20, 2024, the Appellant submitted a continuance request to continue the hearing until after August 13, 2024 (Attachment 4). In the attached continuance request the Appellant stated that the Applicant has submitted a second application for a separate project at the same property address. On June 21, 2024, the Applicant provided a response to the continuance request (Attachment 5) stating that the second application is for a different and unrelated Meeting Date: July 2, 2024

project. The Applicant noted that the Appellant had previously requested an extension of time and that the Applicant does not consent to a further extension.

The City Council may consider the continuance request submitted by the Appellant, however, pursuant to Government Code Section 65905.5 the maximum number of hearings for a proposed housing development is capped at a total of five hearings, and each continuance would constitute a separate hearing. The July 2nd hearing before the City Council would the fourth hearing for this Project, including the Planning Commission hearing, and the City Council meeting at which call-up was considered and the City Council meeting at which the hearing was set. While the City Council could continue the matter, that would use the last of the five hearings, and would preclude the Architectural Commission from holding a hearing to consider the project. Thus, staff recommends that the City Council take action on the matter at the July 2, 2024, meeting.

DISCUSSION
The following is an analysis of the points raised in the appeal. 1) The City erred in waiving the height, story, and rear setback requirements for the project.

Pursuant to state law, the City is limited in its ability to deny requested waivers for a density bonus project and is required to grant the requested waivers of a development standard that would have the effect of physically precluding the construction of a density bonus project development, with the concessions or incentives allowed under Density Bonus Law, unless it can make certain findings that the waiver “would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.51 ., upon
health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.” (Govt. Code Sect. 65915(e)(1). Further, a local government is not required “to waive or reduce development standards that would have an adverse impact on any real property that is listed in the California Register of Historical Resources, or to grant any waiver or reduction that would be contrary to state of federal law.” (Id.)
As part of the Planning Commission’s review of the project, the applicant prepared a supplemental informational document detailing the need for the waiver requests (Attachment 8). The applicant requested three waivers from the City’s zoning code standards: building height, building story limit, and required rear setback. The submitted supplemental information document articulates the applicant’s rationale for needing the three requested waivers. The submitted narrative concludes that if the waivers are not granted, development of the project at its permitted density, including the affordable units, would be precluded. In summary the applicant’s document states:
• Removal of the requested height and stories would reduce the number of residential units and the project would be precluded from achieving its current density and affordability.
1 Paragraph 2 of subdivision (d) of Section 65589.5 states: a “specific adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. The following shall not constitute a specific, adverse impact upon the public health or safety: (A) Inconsistency with the zoning ordinance or general plan land use designation…
Meeting Date: July 2, 2024

• Not allowing the rear setback reduction would result in a diminishment of the size of the building and also cause a loss of critical building area for all units with frontage on the north side of the building.
• The document provides information on recent court cases regarding the applicability of waivers. In Bankers Hill 150 v. City of San Diego the court concluded “So long as a proposed housing development project meets the criteria of the Density Bonus Law by including the necessary affordable units, a city may not apply any development standard that would physically preclude construction of that project as designed, even if the building includes ‘amenities’ beyond the bare minimum of building components”. In Wollmer v. City of Berkeley the court held there is nothing in State Density Bonus law that “requires the applicant to strip the project of amenities, such as an interior courtyard, that would require a waiver of development standards. Standards may be waived that physically preclude construction of a housing development meeting the requirements for a density bonus, period”.

In reviewing the project, particularly in the context of the surrounding neighborhood, it does not appear that the City would be able to make the findings in order to deny the project or find that the requested waivers have specific, adverse impacts based on objective, identified written public health or safety standards, policies, or conditions. The project is consistent with the applicable General Plan policies and standards; and existing development to the south, east, and west of the Project site is of similar scale to the project, with other six- to seven-story buildings developed on properties located along Wilshire Boulevard. The rooftop outdoor area is set back approximately 3’-0” from the rear of the building with a landscape buffer providing plants, shrubs, and trees of varying heights. Within the existing 35’-0” wide alley there are palm trees between 30’ and 40’ feet in height. Further, the Planning Commission added a condition requiring the applicant to fund the addition of plant material in the planter area along the north side of the alley to provide a hedge-like visual barrier for the residential properties to the north and address privacy concerns due to the height and rear setback of the building. The project is further conditioned to incorporate measures to minimize noise and operational impacts including limiting the use of the roof deck area; prohibiting amplified sound on the rooftop; and limiting access to residential amenities to residential occupants only. 2) The proposed amenity space has the potential to be converted to accessory dwelling units (ADUs).

The project includes 13,430 SF of residential amenity space and 1,300 SF of leasing office space on the fourth floor. As specified in the Planning Commission resolution, the residential amenity space is considered an extension of the livable space of the residential units. The resolution adopted by the Planning Commission includes a condition that requires 13,430 SF of enclosed residential amenity space, and 1,300 SF of leasing office space, be maintained for the life of the project. The residential amenity space is required to be located above grade and may not be located in any subterranean portion of the project; any request to remove or reduce the floor area of the enclosed residential amenity space requires approval by the Planning Commission. Any potential conversion of livable or nonlivable space within a mixed-use building would be subject to the ADU regulations in place at the time the ADU conversion is requested. However, state ADU law and the City’s ADU regulations limit ADU conversions of livable space in a multifamily structure to one ADU.

Meeting Date: July 2, 2024

3) The project does not qualify for a categorical exemption pursuant to the California Environmental Quality Act (CEQA) and requests that the City Council require the preparation of an environmental impact report (EIR).

The Class 32 report prepared by Michael Baker International (Attachment 12) provides substantial evidence that the project satisfies the criteria required to qualify for a Class 32 Categorical Exemption.

Further, the information included in the appeal is based on speculation as to the environmental and cumulative impacts of the project and the Appellant’s assumptions regarding the project. Pursuant to CEQA Guidelines Section 15064(f)(5), substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact. Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment (Public Resources Code Section 21080(d) and (e)). As the claims and assertions presented by the Appellant rely on speculative and unsubstantiated assumptions, the information does not impact the City’s reliance on the Class 32 exemption. The Class 32 report did consider potential cumulative impacts and determined that the project and any “cumulative development in the project vicinity” would not result in any significant cumulative impacts. Finally, the Class 32 report provides a detailed analysis of the exceptions to categorical exemptions (described on pages 79-83 of the report) and did not find that any exception would preclude the City from relying on a Class 32 exemption.

The Class 32 report clearly supports the finding that the project is categorically exempt from CEQA and provides substantial documentation and technical analyses to support the use of such exemption.

ENVIRONMENTAL ASSESSMENT
The project has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA, Public Resources Code Sections 21000 et seq.), the State CEQA Guidelines2 (California Code of Regulations, Title 14, Section 15000 et seq.), and the environmental regulations of the City. An analysis was conducted by Michael Baker International to assess whether this project qualifies for an exemption from CEQA as an in-fill development project (Attachment 12; appendices available online at www.beverlyhills.org/environmental). Based on this assessment, the project appears to qualify for a Class 32 Categorical Exemption (In-fill Development Projects) pursuant to Section 15332 of the State CEQA Guidelines, which states that this exemption is applicable when:
a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.
b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses.
2 The CEQA Guidelines and Statute are available online at https://opr.ca.gov/ceqa/guidelines/ Meeting Date: July 2, 2024

c) The project site has no value as habitat for endangered, rare, or threatened species. d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.
e) The site can be adequately served by all required utilities and public services.

Staff recommends the City Council find the project exempt from CEQA based on the analysis provided in the attached categorical exemption report.

PUBLIC OUTREACH AND NOTIFICATION
The Notice of Public Hearing for the appeal hearing was mailed on June 12, 2024, to all property owners and residential occupants within a 500-foot radius (extended to the block face) from the project site (Attachment 9). On-site posting was also posted on the subject property on June 12, 2024. Additionally, courtesy emails were provided to all interested parties advising them of the hearing dates.

Public Comment
All previously provided public correspondence is included as Attachment 10 to this report. New public correspondence is included as Attachment 11 to this report.

FISCAL IMPACT
Costs associated with this appeal have been paid for by the appellant at the time the appeal was filed.

Michael Forbes, AICP
Director of Community Development
Approved By
ATTACHMENT 1
Appeal Petition
APPEAL PETITIONS MUST BE FILED WITH THE CITY CLERK’S OFFICE WITHIN • 14 CALENDAR DAYS AFTER THE DATE OF THE DECISION

APPEAL TO PLANNING COMMISSION OR CITY COUNCIL
PLEASE TYPE OR PRINT CLEARLYIN BLACK INK February 21, 2024 Date
In accordance with the appeals procedure as authorized by the provisions ofthe Beverly Hills Municipal Code, the undersigned hereby appeals from the decision Off-p pi anning mmission (Official, Board or Commission involved) rendered on February 8, 2024 ,
which decision consisted of:

The grounds submitted for this appeal are as follows: (WARNING: State ggroundsfor appeal Describe how decision is inconsistent with law. Use extrapaper fnecessary.) Please see grounds of appeal set forth on the attached page..

The undersigned discussed the decision being appealed with:

Michael Forbes, Director of Community Developmen February 20, 2024 (Department Head(s) Involved) Date
It is requested that written notice ofthe time and place for the hearing on this appeal before the City Council be sent to:

Aria Ahdoot 106 N. Maple Drive, Beverly Hills, CA 90210 Name Address
Sign of appea ing 41
Ara Ahdoot
1fl N. Mp1A r)riv, 1vr1y Ril1, (!A 90210
Address
Telephone number: (213) 422—7666
Telephone Number & Fax Number
Fee Paid (For City Clerk’s use) DATE RECEIVED
;EV HLLS CITY CLERK
LOG NO. WrittenNotice mailed to appellant: 2O2! FE 2 F32O Copies to: City Council, City Manager, City Attorney,
Involved Department
$1,000
Community Development
For PL2300193
5x24
City of Beverly Hills Planning Department
455 North Rexford Drive
Beverly Hills, CA 90210
Subject: Opposition to Density Bonus Apartment Project at 9229 Wilshire Blvd.

I am writing to express my strong opposition to the proposed eight-story density bonus apartment project located at 9229 Wilshire Blvd. in Beverly Hills. As a concerned resident of this community, I firmly believe that the approval of this project would be a grave mistake for several reasons.

First and foremost, I believe that the city erred in waiving the story requirement for this development. The existing zoning regulations allow for a maximum of three stories, yet the proposed project seeks to nearly triple this allowance by constructing an eight-story building. Such a significant deviation from the established regulations sets a dangerous precedent and disregards the carefully crafted guidelines that are in place to ensure responsible development within ourcity.

Furthermore, I am deeply troubled by the allocation of two entire stories for amenities within the proposed building. While amenities are undoubtedly important for the residents of any housing development, the potential for these spaces to be converted into future Additional Dwelling Units (ADUs) raisesserious concerns. Allowing for such conversions could significantly impact the character and density of the surrounding neighborhood, potentially exacerbating issues related to traffic, parking, and infrastructure strain.

Additionally, the granting of a waiver in height to allow for a 74’l I “tall building is unacceptable. Such an excessive height not only disrupts the aesthetic harmony of the surrounding area but also casts shadows that may negatively impact neighboring properties. This disregard for height limitations undermines theintegrity of our zoning regulations and fails to consider the long-term consequences for our community.

I must also address the issue of the zero rear setback granted to this project. Not only is this decision legally questionable, but it also poses a direct threat to the privacy and well-being of hundreds of homes located north of Wilshire Blvd. A zero rear setback would compromise the yards and living spaces of more than 100 Beverly Hills residents, robbing them of the tranquility and privacy they deserve in their own homes.

Additionally, I am writing to object to the City’s CEQA determination. A project qualifies for a Class 32 Categorical Exemption if it is developed on an infill site and meets certain criteria. However, before a project can be determined toqualify for a categorical CEQA exemption, exceptions to the exemption, such as cumulative impacts, must be considered. If an exception to a categorical exemption applies, CEQA review in the form of an MND or EIR must be conducted. CEQA Guidelines section 15355 states: “Cumulative impacts refer to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.” The Project Does Not Qualify for a Categorical Exemption The NOE claims a Class 32 categorical exemption applies under the CEQA Guidelines, but there are exceptions that apply under CEQA Guidelines 15300.2. (a) Location. Classes 3, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located — a project that isordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant. [....]
• (b) Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant.
• (c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will havea significant effect on the environment due to unusual circumstances.

First and foremost, the proposed project lacks a comprehensive Environmental Impact Report (EIR), which is necessary to fully assess the potential environmental impacts in accordance with CEQA guidelines. The ER provided does not adequately address critical issues such as traffic congestion, air quality, and visual impacts, among others. Without a thorough EIR, the true extent of the project’s environmental impacts cannot be accurately determined.

Furthermore, the proposed project fails to consider the cumulative impacts when combined with other developments in the area, particularly the new condo project located across the street on Wilshire Blvd. between Maple and Palm. The cumulative effects of these projects will undoubtedly result in major negative environmental impacts, including increased traffic congestion, air pollution, and alterations to the character of the neighborhood. Without a comprehensive analysis of cumulative impacts, the true magnitude of these effects remains unknown.

In light of these deficiencies, I respectfully urge the City Council to require the preparation of a full Environmental Impact Report (EIR) for the proposed project.

This EIR should include a thorough analysis of all potential environmental impacts, including traffic congestion, air quality, visual impacts, and cumulative effects with other projects in the area. Only with this comprehensive assessment can informed decisions be made regarding the project’s approval and potential mitigation measures.

In conclusion, I urge the City of Beverly Hills Planning Department to reconsider its support for the proposed density bonus apartment project at 9229 Wilshire Blvd. It is imperative that we uphold the integrity of our zoning regulations and prioritize the well-being of our community over the interests of developers. I implore you to listen to the concerns of residents and reject this ill-conceived project.

Thank you for your attention to this matter.

Sincerely,
Aria Ahdoot

CITY OF BEVERLY HILLS
Cashiering Govolution MID
455 N. REXFORD OR
BEVERLY HILLS, CA 90210
33353792-0008 Virginia 02/21/2024 03:19PMCASH RECEIPTS
Description: APPEAL TOCITY COUNCIL CC (3970)
2024 Item: 3970

1.0 @1,000.00
CREDIT CARD - CASHIERING 1,000.00
American Express ***********7007Ref =317086995Auth= 159934XFQCTI 1 1 nkuZxYA4WTNRPw Change duePaid by: aria ahdoot
Signature:

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CUSTOMER COPY
ATTACHMENT 2
Holland & Knight
Appeal Response
400 South Hope Street, 8th Floor | Los Angeles, CA 90071 | T 213.896.2400 | F 213.896.2450 Holland & Knight LLP | www.hklaw.com
Ryan M. Leaderman
+1 213-896-2405
[email protected]
Atlanta | Austin | Birmingham | Boston | Century City | Charlotte | Chattanooga | Chicago | Dallas | Denver | Fort Lauderdale Houston | Jacksonville | Los Angeles | Miami | Nashville | Newport Beach | New York | Orlando | Philadelphia Portland | Richmond | San Francisco | Stamford | Tallahassee | Tampa | Tysons | Washington, D.C. | West Palm Beach June 24, 2024
Mayor Friedman
Councilwoman Sharona Nazarian, Psyd
Councilman John Mirisch
Councilman Craig Corman
Councilwoman Mary Wells
City of Beverly Hills
455 N. Rexford Drive
Beverly Hills, CA 90210
Re: Appeal of 9229 Wilshire Boulevard Approval Should be Denied in Full/Application PL2300193
Dear Mayor Friedman and Honorable Councilmembers:

This firm represents 9229 Wilshire Skyline LLC (the “Applicant”), the developer of the mixed-use housing and commercial Wilshire Flats project (the “Project”) located at 9229 Wilshire Boulevard (the “Property”).
1 The Beverly Hills (the “City”) City Council must deny in full the February 21, 2024 appeal (the “Appeal”) by Mr. Aria Ahdoot (the “Appellant”). The City Council already once declined to call up the Planning Commission’s approval of the Project, having extensively discussed why it was rejecting calling up the Project for further review.2 Here, the Appellant has not met his burden of proof as required by Beverly Hills Municipal Code (“BHMC”) Section 1-4-106 to overturn the decision of the Planning Commission. This letter addresses the California Environmental Quality Act (“CEQA”) grounds for appeal and his failure to meet his burden of proof. 3 1 The Project has a corresponding Application number of PL2300193. 2 February 20, 2024 City Council Study Session, SS Item A-2 (SS Item A-2). 3 The issues relating to State Density Bonus Law in Appellant’s appeal are not addressed here because they have already been addressed extensively in a memo I sent to the City Attorney in December 2023 and attached hereto as Exhibit A as well as the City Attorney at the Planning Commission hearing for the Project and City Staff in their Project staff report.

Mayor Friedman
Honorable Councilmembers
June 24, 2024

#504190743_v2
The Appellant has not met his legal burden to demonstrate any legal inadequacy with respect to the Class 32 Exemption. Categorical Exemptions are for “… classes of projects which have been determined not to have a significant effect on the environment and which shall, therefore, be exempt from the provisions of CEQA.”4 A Class 32 Exemption consists of projects characterized as in-fill development meeting certain conditions, as specified Section 15332 of the CEQA Guidelines. The Project meets all of these legal requirements, and none of the exceptions apply. The City’s 497 page Categorical Exemption that the Planning Commission approved demonstrates this.5 The appeal does not provide substantial evidence to support any legal inadequacy with respect to the approved Categorical Exemption. Therefore, the City Council must deny the appeal.

The appeal appears to claim that there is an exception to Class 32 Categorical Exemption due to “… a particularly sensitive environment.” The Appellant erroneously implies that such a “particularly sensitive environment” exception applies to a Class 32 Exemption. It does not apply to a Class 32 Exemption. Further, even if this exception applies, which it does not under the law, the Appellant has provided no evidence of “a particularly sensitive environment” associated with the Project site or surrounding area.

The appeal, after reciting the law regarding a cumulative impacts exception, claims without any evidentiary support that the “… project fails to consider the cumulative impacts when combined with other developments in the area, particularly the new condo project located across the street on Wilshire Blvd. between Maple and Palm.” The Appellant is wrong again. The City’s Categorical Exemption identifies and analyzes cumulative impacts on pages 79 to 81, as well as throughout the document, such as in the Air Quality and Noise sections of the Categorical Exemption. In fact, the City’s Categorical Exemption specifically identifies this nearby existing condo project by its address of 9200 Wilshire Boulevard. The 9200 Wilshire Boulevard project is specifically listed on pages 4, 25, 29, and 34 of the Categorical Exemption, as well as on page 2 of the Noise/Vibration Report, page 2 of the Air Quality Assessment, and page 2 of the Greenhouse Gas Emissions Technical Memorandum. The Appellant has not met his burden of proof with his false statements.

The Appellant further goes on to state that the Project would have significant impacts, without providing any substantial evidence to support such a statement. But this is not even the legal standard.

An exception to the use of a Categorical Exemption exists if there is substantial evidence to support a reasonable possibility of a significant effect on the environment due to unusual circumstances. 6 If there
is an unusual circumstance, and there is none here that exists nor has been asserted by the Appellant, there must be substantial evidence to support a fair argument that there is a significant impact due to that unusual circumstance.
7 Once an agency, such as the City here, determines that a project falls within a Categorical Exemption, the burden shifts to the objecting party to produce evidence that one of the exceptions to the categorical exemptions applies.8 The Appellant has raised not a single unusual circumstance associated with the 4 CEQA Guidelines Section 15300.
5 See Categorical Exemption analysis, pages 22 to 83.
6 CEQA Guidelines Section 15300.2(c).
7 Berkeley Hillside Preservation v City of Berkeley (2015) 60 Cal.4th 1086, 1115. 8 Id. at 1105.

Mayor Friedman
Honorable Councilmembers
June 24, 2024

#504190743_v2
Project – not one. Clearly, the Appellant has not met his burden of proof. Because there has not been a demonstration of an unusual circumstance, the analysis ends.9 Further, even if the Appellant did meet his burden of proof to show that there was an unusual circumstance, he has not carried his burden to provide substantial evidence that there is a fair argument to support a reasonable probability of a significant impact due to an unusual circumstance.10
The Appellant complains about “major negative environmental impacts,” but many of these “environmental impacts are not cognizable environmental impacts under CEQA. Public Resources Code Section 21099(b)(2) removed traffic congestion from being a CEQA topic. Public Resources Code Section 21099(d)(1) removed aesthetics from being an environmental impact for infill projects, such as this one, close to transit. Undefined, subjective “alterations to the character of the neighborhood” as stated by the Appellant, perhaps arguably a highly subjective, unsubstantiated social impact, do not constitute an environmental impact.11 With respect to air pollution, the only remaining environmental impact area raised by the Appellant, it was exhaustively analyzed in the Categorical Exemption.12 As such, the Appellant has not met his burden of proof to demonstrate any legal infirmity with respect to the City’s Categorical Exemption for the Project.

The Appellant repeatedly requests an Environmental Impact Report (“EIR”) for the Project, but there is no legal basis to support an EIR for this infill project. The Public Resources Code specifically mandates that CEQA shall not be interpreted to impose “… procedural or substantive requirements beyond those explicitly states in this division or in the state guidelines.”13 Requiring such additional expensive, time consuming, and unnecessary environmental review would not just be arbitrary and capricious given the Exemption qualification here, recent changes to the Housing Accountability Act (“HAA”) make requiring further environmental review unlawful.14 The City’s Categorical Exemption for the Project consists of hundreds of pages, including technical studies for air quality and noise that prove up that there would not be any significant impacts in these and other areas as a result of the Project and cumulative impacts. Because the Project meets the legal standard for a Class 32 Categorical Exemption; no exception to the Categorical Exemption exists; and 9 Anderson v County of Santa Barbara (2023) 94 Cal.App.5th 554, 577; Protect Tustin Ranch, 70 Cal.App.5th at 964.
10 Id.
11 Santa Monica Chamber of Commerce v City of Santa Monica (2002) 101 CA4th 786, 801 12 See Categorical Exemption, pages 49-65.
13 Public Resources Code Section 21083.1. See also Make UC a Good Neighbor v. UC Regents at 11, S279242, June 6, 2024 (“However, “no matter how important its original purpose, CEQA remains a legislative act, subject to legislative limitation and legislative amendment.” (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 376.) The Legislature may, for example, determine that a particular aspect of a project shall not constitute a “significant effect on the environment.” (§ 21085; see, e.g., §§ 21081.3, subd. (a) [specifying that certain “aesthetic effects shall not be considered significant effects on the environment”], 21099, subds. (b)(2) [specifying that under certain circumstances “automobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion, shall not be considered a significant impact on the environment”], (d)(1) [specifying that “[a]esthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment”].”)
14 Government Code Section 65589.5(h)(6)(D).

Mayor Friedman
Honorable Councilmembers
June 24, 2024

#504190743_v2
the Appellant has not met his burden of proof, there is no legal deficiency with the City’s environmental review of the Project.

On behalf of the Applicant, I respectfully and strongly urge you to deny this meritless appeal.

Sincerely yours,

HOLLAND & KNIGHT LLP
Ryan M. Leaderman, Esq.

Attachment (Exhibit A: December 2023 State Density Bonus Law Memo to City Attorney) cc: Ryan Gohlich
Masa Alkire
Cindy Gordon
Alexandria Smille
David Snow, Esq.

Avi Stieglitz, Esq.

Alan Nissel, Esq.

Stephen Webb, Esq.

Exhibit A
400 South Hope Street, 8th Floor | Los Angeles, CA 90071 | T 213.896.2400 | F 213.896.2450 Holland & Knight LLP | www.hklaw.com
Ryan M. Leaderman
+1 213-896-2405
[email protected]
Atlanta | Austin | Birmingham | Boston | Century City | Charlotte | Chattanooga | Chicago | Dallas | Denver | Fort Lauderdale Houston | Jacksonville | Los Angeles | Miami | Nashville | Newport Beach | New York | Orlando | Philadelphia Portland | Richmond | San Francisco | Stamford | Tallahassee | Tampa | Tysons | Washington, D.C. | West Palm Beach December 21, 2023
David Snow, Assistant City Attorney
City of Beverly Hills
455 N. Rexford Drive
Beverly Hills, CA 90210
Re: 9229 Wilshire Boulevard/Application PL2300193/State Density Bonus Law/Waiver Supplemental Information
Dear David:

Thank you for taking the time to talk to me recently with regard to Application PL2300193 for the 9229 Wilshire Boulevard (the “Property”) housing development project (the “Project”) submitted by 9229 Wilshire Skyline LLC (the “Applicant”) on behalf of the Property’s ownership. The Applicant is excited to bring much needed housing to the City of Beverly Hills (the “City”) that will help it achieve its Regional Housing Needs Allocation with the inclusion of market rate and affordable housing. This letter aims to provide a comprehensive explanation of Government Section 65915 (“State Density Bonus Law”) with regard to the use of waivers for the Project. It also includes citations to relevant case law that have interpreted State Density Bonus Law over time.

Pursuant to the Beverly Hills Municipal Code (“BHMC”) and State Density Bonus Law the Project is entitled to 57 dwelling units.1 Under State Density Bonus Law, it is by-right that the Applicant is allowed to build the aforementioned number of dwelling units in exchange for providing a set number of income-restricted dwelling units.

In addition to a limited number of concessions/incentives, the State Density Bonus Law specifies that a project is entitled to a waiver from “any development standard that will have the effect of physically precluding the construction of a development… at the densities or with the concessions or incentives 1 The Applicant is entitled to build 57 dwelling units based on the following calculation: (i) base density is calculated by dividing lot size (20,665 square feet) by 550 square feet as set forth in BHMC Section 10-3-1881 resulting in 38 dwelling units and (ii) State Density Bonus Law allows for a density bonus of 50 percent or 19 additional dwelling units. The Applicant proposes 56 dwelling units, one less than the 57 dwelling units permitted.

David Snow
December 21, 2023

#233059077_v6
permitted by this section.”2 Waivers are separate from and additional to concessions/incentives; approval is mandatory if the standard would preclude development of the Project at its permitted density.

The Project requires three waivers in order to accommodate the proposed density of 56 residential units, the number of which is governed by a combination state and City law:

1. Waiver Request for Height Limit. While the Property is zoned for a 45 foot height limit, the Project proposes a total height of 83’-11”.

2. Waiver Request for Story Limit. While the Property is zoned with a three-story limit, the Project proposes seven stories.

3. Waiver Request for Rear Setback. While the Property’s zoning mandates a six-foot setback, the Project proposes to abut the rear property line with a zero foot setback.

Without these waivers, the Project, as proposed, would be physically precluded from achieving its current density, including affordable units. The removal of three stories and 38’-11” in height would result in the loss of 32 dwelling units of the 56 units proposed, leaving only 24 units remaining, which would preclude construction of a Project that achieves this level of density and affordability.

Additionally, with the addition of the rear yard setback, the Project’s envelope would be diminished by approximately six percent. A six percent diminution in the size of the building would also cause a loss of critical building area for all of the dwelling units fronting the rear of the Property. The setback along the 35-foot wide alley would remove integral private decks, bedrooms, and living area, thereby eliminating sufficient space for the Project’s dwelling units along the northerly frontage of the Property, inclusive of those dwelling units’ private open space. Taken together, these waivers are necessary, as, without them, there would be physical preclusion of the Project with the amenities and density proposed.

Courts have confirmed that State Density Bonus Law is not ambiguous as to the applicability of waivers: In Bankers Hill 150 v. City of San Diego, the Court concluded that the law provides a “developer with broad discretion to design projects with additional amenities even if doing so would conflict with local development standards.”3 This is in accord with Wollmer v. City of Berkeley where the court held that there is nothing in State Density Bonus Law that “requires the applicant to strip the project of amenities, such as an interior courtyard, that would require a waiver of development standards. Standards may be waived that physically preclude construction of a housing development meeting the requirements for a density bonus, period.”4 A municipality may not require the elimination of the amenities of a project as proposed. In Bankers Hill, the court made clear: “So long as a proposed housing development project meets the criteria of the Density Bonus Law by including the necessary affordable units, a city may not apply any development standard that would physically preclude construction of that project as designed, even if 2 Gov. Code Section 65915(e)(1), emphasis added.
3 Bankers Hill 150 v. City of San Diego, 74 Cal.App.5th 755, 774-75 (2022). 4 Wollmer v. City of Berkeley, 193 Cal.App.4th 1329, 1346-1347 (2011).

David Snow
December 21, 2023

#233059077_v6
the building includes ‘amenities’ beyond the bare minimum of building components.”5 In other words, cities must assess the validity of waivers based on projects as they are proposed rather than as they may theoretically be designed to a minimalist configuration.

While the Bankers Hill and Wollmer courts do not define “amenities,” they are described as going beyond the bare minimum of building components necessary for habitability. As the above cited quote confirms, the term is intended to be broad and flexible, which is consistent with the objective of encouraging the development of housing, including projects that offer a variety of amenities to attract residents. Indeed, with regard to the notion that cities only had to approve projects with minimum unit amenities and building amenities:

This precise argument was raised and rejected in Wollmer v. City of Berkeley, which also involved a density bonus project designed with a courtyard. The First District considered the history of the Density Bonus Law's language and concluded that when a developer proposes a project that qualifies for a density bonus, the law provides a developer with broad discretion to design projects with additional amenities even if doing so would conflict with local development standards. The court held that nothing in the Density Bonus Law “requires the applicant to strip the project of amenities, such as an interior courtyard, that would require a waiver of development standards.

Standards may be waived that physically preclude construction of a housing development meeting the requirements for a density bonus, period [emphasis added].

The statute does not say that what must be precluded is a project with no amenities, or that amenities may not be the reason a waiver is needed.” Similarly, amendments to the law in 2008 had the effect of “delet[ing] the requirement that an applicant for a waiver of development standards must show that the waiver was necessary to render the project economically feasible.”6
The “amenities” referenced in Bankers Hill and Wollmer clearly include more than the specific instance of interior courtyards and include unit amenities, such as balconies, ceiling heights and unit sizes.

Accordingly, it would not be a reasonable interpretation of state law to require the Applicant to limit all 56 proposed dwelling units to the minimum size of 500 square feet, the smallest size allowed under BHMC. Requiring the Applicant to squeeze all of the Project’s units into the smallest possible building envelope, or a smaller envelope than proposed, would contravene the clear jurisprudence of both Bankers Hill and Wollmer. Moreover, designing dwelling unit sizes that exceed 500 square feet is eminently reasonable. The Applicant is not aware of any project in the City ever approved with an average size unit of 500 square feet. To this end, of the six projects approved by the Planning Commission since SB 330 was enacted in 2019, two of them did not deviate from the minimum unit size requirements7
and four of them used incentives/waivers to modestly reduce dwelling unit sizes from minimum sizes required under BHMC.
8 The minimum unit size in multifamily residential
developments (in five of the six approved projects) have minimum standards significantly above 500 5 Bankers Hill 150 v. City of San Diego, 74 Cal.App.5th 755, 775 (2022). 6 Id. (internal citations omitted). 7 55 North La Cienega Blvd. and 457 North Oakhurst Drive. 8 332 South Doheny Drive, 149-159 South Maple Drive, 208 North Crescent Drive and 227 Tower Drive.

David Snow
December 21, 2023

#233059077_v6
square feet: 1,000 square feet for a one bedroom, 1,300 square feet for a two bedroom, and 1,500 square feet for a three bedroom or greater.9
The Project that was submitted is reasonably designed and, as mentioned, requires all three waivers to physically include its current density, including affordable units. By decreasing the Project size by even one floor—from seven floors to six floors—the average one bedroom would be reduced from 890 square feet in the submitted plans, already below the BHMC minimum standard for multi-family residential units that are not in the Mixed-Use Overlay Zone (“MUOZ”), to a size of 712 square feet.

Two bedrooms would drop from 1,405 square feet to 1,124 square feet and three bedrooms would decrease from 1,757 square feet to 1,406 square feet. The Applicant is not requesting that the City approve dwelling unit sizes that are unreasonably large in its waiver requests. As such, requiring the Project to have unit sizes in the MUOZ that are smaller on average than the minimum sizes required by the BHMC in order to physically include the density within existing height limits would violate State Density Bonus Law.

See attached exhibits which show diagrams, for illustrative purposes, of the Project if the permitted 57 units were confined to a three- or six-story structure in comparison to the submitted seven-story plans. (Exhibit A shows a typical floor plan in a three-story building, Exhibit B shows a typical floor plan in a six-story building, Exhibit C shows a typical floor plan in a six-story building with full use of commercial space allowed under BHMC in MUOZ, Exhibit D shows a typical floor plan in the Applicant’s submitted plans, and Exhibit E is a spreadsheet showing average unit sizes for the various plans shown in Exhibits A – D). It is obvious that such a massive reduction in size as a result of the absence of necessary waivers would result in not allowing physical construction of the Project as proposed, and it would result in an infeasible project. 10 It should be noted that the City has already approved a waiver in the past for height in another submittal under State Density Bonus Law—i.e., 332 South Doheny Drive project. In that case, the City applied the same interpretation of waivers under California law that are put forth in this letter. Namely, in order to take advantage of the requested waiver in the 332 South Doheny Drive project, that applicant was permitted to use an incentive for decreasing the minimum unit sizes and was not required to decrease the unit size to a point where it could fit all nine units allowed by State Density Bonus Law into the building envelope allowed by City zoning, which would have been impossible.11 In the present case, if the Applicant availed itself of all the commercial space allowed and maintained its proposed height and stories, the Project would only have 2.7 floors to fit all 57 dwelling units permitted under State Density Bonus Law. See Exhibit C. That would mean each dwelling unit size would average 700 square feet and all would need to be studios or one bedrooms. Critically, if the 9 BHMC Section 10-3-2802. 10 In both a three-story building and a six-story building with the full commercial space as permitted under BHMC utilized, without the waivers, the residential units would be so small that they would not be ADA compliant. 11 The fact that the applicant in 332 South Doheny Drive requested an incentive to reduce unit sizes below the minimum sizes required under BHMC (discussed above) is irrelevant to the case at hand since the validity of waivers for height and setback limits do not depend upon the size of any particular unit, but upon the total units included in the proposed project as a whole. Indeed, the average unit sizes in 332 South Doheny Drive are nearly the minimum unit sizes required under BHMC (discussed above).

David Snow
December 21, 2023

#233059077_v6
Applicant reduced the height of the building by even one floor from seven floors to six floors, the permitted 57 dwelling units would need to fit into 1.7 floors and average dwelling unit size would drop to 445 square feet, below even the ridiculously low minimum size of 500 square feet12 for a residential unit in the MUOZ as set forth in the BHMC.13
Under both scenarios described above, removing even one floor from the Project would physically preclude the construction of the 56 dwelling units proposed and, therefore, violate State Density Bonus Law.

It is important to emphasize that the reasonableness of the Project design is further highlighted by its mirroring of other development standards in high density residential zones, such as R-4. Thus, approving such a waiver of height limits would not “open the floodgates” to allowing four additional floors of height whenever other projects request waivers of height limits. The four stories are necessary to allow the density permitted in the MUOZ with dwelling unit sizes commensurate with dwelling unit size in multi-family zones in the City. Given the purpose of State Density Bonus Law, it stands to reason that the validity of waiver requests for height limits in the MUOZ should be applied consistently with those submitted in high-density residential zones, where the General Plan already permits the construction of multifamily buildings of 60 feet in height. To be sure, each development application must be considered on its own merits. Here, the waivers sought for this Project would apply design standards that are similar to those in the City’s high-density R-4 residential zone, and these waivers are necessary to allow the density for the Property that is in conformance with the BHMC and State Density Bonus Law.

The additional height and stories are all the more reasonable when one considers that the Project, which fronts 100-foot wide on Wilshire Boulevard, is (i) set back from the northerly residential zone by an extra-wide 35-foot-wide alley and parkway, which is a “Highway” under state law14 and (ii) within short walking distance of buildings that are ten to 12 stories tall.

Please note that recent changes in State Density Bonus Law preclude cities from asking for justification as to how density may be physically precluded by loss of a waiver.15 Nonetheless, the facts here are open and disclosed – a reduction in the building envelope by loss of a setback, height, and story waiver will clearly, and unacceptably under the law, reduce the number of units in the building, minimize its density, as well as eliminate amenities.
12 BHMC Section 10-3-1882. 13 The calculations are as follows: BHMC allows commercial space of up to 2:1 FAR in the MUOZ. The lot size is 20,665 square feet so the Project could have 41,330 square feet of commercial space. With a floor footprint of approximately 14,700 square feet, the commercial space would take up 2.3 floors above the ground floor (subtracting the approximate 8,000 square feet of retail on the ground floor from 41,330 square feet of allowable commercial square footage). That leaves 2.7 floors for residential units after excluding the floor of amenity space shown in the plans submitted by my client. 14 In contrast, the already-approved development application for 55 N. La Cienega Blvd. consists of a six-story building, with no alley separating that project from single-family homes. 15 See AB 1287 signed into law by Governor Newsom in October 2023.

David Snow
December 21, 2023

#233059077_v6
The City is entitled to request “reasonable documentation to establish eligibility for a requested” waiver.16 While the consistency memo to Applicant dated October 20, 2023 from Associate Planner Alexandria Smille does not appear to serve as a formal request for this information, this letter serves as justification and explanation for the waivers, as requested, for the Project, as designed. In sum, a reduction in the number of stories and height, as well as an increase in the rear yard setback will result in the direct loss of dwelling units, viability of remaining dwelling units, and elimination of amenities.

Thank you for your attention to this matter. Together we look forward to working with the City to bring this Project to fruition.

Sincerely yours,

HOLLAND & KNIGHT LLP
Ryan M. Leaderman, Esq.

Exhibits
cc: Mayor Gold, M.D.

Ryan Gohlich
Cindy Gordon
Alexandria Smille
Avi Stieglitz, Esq.

Alan Nissel, Esq.

Stephen Webb, Esq.
16 Government Code Section 65915(a)(2).
#233059077_v6
Exhibit A
Level 02 – COURTYARD LEVEL ALLEY
Typical Floor Plan (3 Floors)
#233059077_v6
Exhibit B
Typical Floor Plan (6 Floors) ALLEY

TYPICAL RESIDENTIAL FLOOR
#233059077_v6
Exhibit C
Typical Floor Plan (6 Floors with Full Commercial)
ALLEY
LEVEL 06
#233059077_v6
Exhibit D
Typical Floor Plan (7 Floors)
ALLEY
#233059077_v6
EXHIBIT: E
PLAN OPTIONS Residential SF No. Units Avg. Size 1 BR size 2BR size 3BR size 3 Floors (Exhibit A) 14,730 57 258 178 280 351
6 Floors (Exhibit B) 58,920 57 1,034 712 1,124 1,406
6 Floors -- Full Commercial (Exhibit C) 25,041 57 439 302 477 597 7 Floors -- Current Plans (Exhibit D) 73,650 56 1,315 906 1,430 1,788 Minimum Unit Size (BHMC) 1,000 1,300 1,500
Minimum Unit Size (MUOZ) 500 800 800
CURRENT PLANS (By Floor)
Residential SF No. Units Avg. Size 1 BR size 2BR size 3BR size Ground Floor N/A (Retail)
2nd Floor 14,730 12 1,228 846 1,335 1,670
3rd Floor 14,730 12 1,228 846 1,335 1,670
4th Floor N/A (Amenities)
5th Floor 14,730 12 1,228 846 1,335 1,670
6th Floor 14,730 12 1,228 846 1,335 1,670
7th Floor 14,730 8 1,841 N/A 1,330 1,670
ATTACHMENT 3
Draft City Council Resolution
 







 
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<=>?@ABCDCEFG=HFI<J<KLMLNN<ODP<NOQRSPOTMRROMUVMUVQUPWPN ATTACHMENT 4
Appellant's Continuance Request
6/20/2024

ATTACHMENT 5
Applicant's Continuance
Response
6/21/2024

ATTACHMENT 6
Planning Commission Staff
Report - February 8, 2024
(Without Attachments)
City of Beverly Hills
Planning Division
455 N. Rexford Drive Beverly Hills, CA 90210
TEL. (310) 285-1141 FAX. (310) 858-5966
Planning Commission Report
Attachment(s):