If the Planning Commission does not choose to continue consideration of this matter, SAFER requests that the Commission not take any action until an EIR is prepared for the LUEP and 7th & Locust Project. As discussed below, the Addendum is not proper under CEQA because the changes proposed by the LUEP are not within the scope of the 2012 Downtown Plan EIR. Where, as here, a later activity (i.e. the LUEP) is not within the scope of a previous program EIR (i.e. the Downtown Plan PEIR), an addendum is not proper and CEQA requires that an EIR or negative declaration.
Project Description
The “project” here consists of two parts: (1) the Land Use Equivalency Program (“LUEP”) and (2) the 7th & Locust Mixed-Use Project.
The LUEP is a response to the current exceedance of allowed residential units within the Downtown Plan area as analyzed in the 2012 PEIR. The 2012 Downtown Plan PEIR evaluated impacts for the development of 5,000 residential units, construction, and operation of 480,000 square feet of retail/commercial space, and 1,500,00 square feet of office space. Currently, the Downtown Plan area has 5,252 residential units. The LUEP relies on something called a Downtown Plan Equivalency Calculator (“DPEC”), which purports to create a mechanism by which the City can re-allocate use designations within the Downtown Plan area from office/commercial/hotel uses to residential uses without exceeding the environmental impacts analyzed in the 2012 Downtown Plan PEIR. Under the proposed LUEP, the City would be able to continue to approve residential development within the Downtown Plan by making corresponding reductions in commercial/office/hotel development. Under the LUEP, an additional 3,260 residential units (for a total of 8,260 units) could be approved by reducing office uses by 417,060 square feet, commercial uses by 135,320 square feet, and hotel uses by 177 rooms.
The proposed 7th & Locust Project is a 7-story high rise building on a 0.52-acre site with 108 residential units, 1,188 sf of retail uses, a 687 sf amenity lounge, a fitness room, on the ground floor level, and a courtyard, pool and pool deck, and community room on the third level.
The proposed 7th & Locust would provide 5,650 sf of common open space. The proposed building would be approximately 98 feet tall and would include 172,068 sf of floor area. With an FAR of 3.6:1.
Legal Standard
CEQA requires that a lead agency prepare and certify an EIR analyzing potential environmental impacts for any discretionary project that may have a significant adverse effect on the environment. (PRC §§ 21100, 21002.1(a); 14 Cal. Code Regs [“CCR”] §§ 15064(a)(1), (f)(1).) An EIR is a comprehensive “informational document” whose purpose 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.” (PRC § 7th & Locust Project/ Land Use Equivalency Program
Long Beach Planning Commission Agenda Items 3 and 4
September 16, 2021
21061; see PRC § 21002.1(a).) The EIR is “the heart of CEQA” and the “primary means” of ensuring that public agencies “take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.” (Laurel Heights Improvement Association v. The Regents of the University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights I); 14 CCR § 15003(a), (f).) The EIR is an “environmental ‘alarm bell’ whose purpose is to alert the public and its responsible officials to environmental changes before they have reached the ecological points of no return.” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1220.) The EIR also functions as a “document of accountability,” intended to “demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.” (Laurel Heights I, 47 Cal.3d at 392; 14 CCR § 15003(d)-(e).) CEQA and the CEQA Guidelines allow for different types of EIRs that may be developed to meet an agency’s CEQA obligations. (14 CCR §§ 15161, 15165, 15167, 15168.) The most common is the “Project EIR” that focuses on a single, specific project. (14 CCR § 15161.) The lead agency may tier EIRs where multiple individual projects or phased (or “tiered”) projects are to be undertaken, and the individual projects are linked geographically, temporally, or in an otherwise logical manner. (14 CCR §§ 15165, 15168.) When tiering, a “programmatic” EIR (“PEIR”) is “prepared for a policy, plan, program or ordinance followed by narrower or site- specific [EIRs] which incorporate by reference the discussion in any prior [EIR] and which concentrate on the environmental effects which (a) are capable of being mitigated, or (b) were not analyzed as significant effects on the environment in the prior [EIR].” (PRC § 21068.5; see also § 21093.) “Subsequent activities in the program must be examined in light of the PEIR to determine whether an additional environmental document must be prepared.” (14 CCR §15168(c)(1).)
A PEIR may only serve for subsequent actions “to the extent that it contemplates and adequately analyzes the potential environmental impacts of the project. . . .” (Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156, 1171 [citations omitted].) “If a later activity would have effects that were not examined in the project EIR, a new initial study would need to be prepared leading to either an EIR or a negative declaration.” (14 CCR § 15168(c)(1).) “That later analysis may tier from the program EIR. . . .” (Id.; 14 CCR § 15152.)
Where a PEIR addresses anticipated activities within the program, policy or plan, an agency may determine the later project is “within the scope of the project covered by the program EIR.” CEQA Guidelines § 15168(c)(2) provides “[i]f the agency finds that pursuant to Section 15162, no subsequent EIR would be required, the agency can approve the activity as being within the scope of the project covered by the program EIR, and no new environmental document would be required.” (14 CCR § 15168(c)(2).) “Whether a later activity is within the scope of a program EIR is a factual question that the lead agency determines based on substantial evidence in the record.” (Id.) The examples of factors provided in section 15168(c)(2) emphasize that the terms of the PEIR are largely determinative of whether a subsequent project falls within its scope:
7th & Locust Project/ Land Use Equivalency Program
Long Beach Planning Commission Agenda Items 3 and 4
September 16, 2021
Factors that an agency may consider in making that determination include, but are not limited to, consistency of the later activity with the type of allowable land use, overall planned density and building intensity, geographic area analyzed for environmental impacts, and covered infrastructure, as described in the program EIR. (14 CCR § 15168(c)(2).)
Where there is no evidence that a later project was contemplated at the time of the PEIR or that any site-specific environmental issues related to the later project were addressed in the PEIR, that later project is not within the scope of the PEIR. (See NRDC v. City of Los Angeles (2002) 103 Cal.App.4th 268, 284-85; Ctr. for Sierra Nevada Conservation, 202 Cal.App.4th at 1171.)
If substantial evidence establishes that a later project is within the scope of a PEIR, the agency may set forth that determination in an addendum. (14 CCR § 15164.) However, an addendum is not authorized and a subsequent or supplemental EIR is still required if there are “substantial changes” to the proposed project or to circumstances which will require “major revisions” in the EIR, or if “[n]ew information, which was not known and could not have been known at the time the [EIR] was certified as complete, becomes available.” (PRC § 21166; see also 14 CCR §§ 15162; 15168(c)(2).)
Where the lead agency cannot identify substantial evidence that a later project is within the scope of a PEIR, the agency must prepare an initial study and “either an EIR or a negative declaration.” (14 CCR § 15168(c)(1).) “Agencies are encouraged to tier the environmental analyses which they prepare for separate but related projects including general plans, zoning changes, and development projects.” (14 CCR § 15152(b).) In reviewing an agency’s decision whether to prepare a tiered EIR, the court applies the “fair argument test.” (Sierra Club v. County. of Sonoma (1992) 6 Cal.App.4th 1307, 1318.) Under the fair argument test, a new EIR must be prepared “whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact.” (Id. at 1316; see Friends of Coll. of San Mateo Gardens v. San Mateo Cty. Comm. College Dist. (2016) 1 Cal.5th 937, 960 [“[U]nder Public Resources Code section 21094, the agency is required to apply a more exacting standard to determine whether the later project might cause significant environmental effects that were not fully examined in the initial program EIR”] [citing with approval Sierra Club, 6 Cal.App.4th at 1321; PRC § 21094(c)].) “[I]f there is substantial evidence in the record that the later project may arguably have a significant adverse effect on the environment which was not examined in the prior program EIR, doubts must be resolved in favor of environmental review and the agency must prepare a new tiered EIR….” (Sierra Club, 6 Cal.App.4th at 1319.) An EIR is required if any substantial evidence in the record indicates that a project may have an adverse environmental effect—even if contrary evidence exists to support the agency’s decision. (14 CCR § 15064(f)(1); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 931.) “It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency’s determination.” (Pocket Protectors, 124 Cal.App.4th at 928.)
7th & Locust Project/ Land Use Equivalency Program
Long Beach Planning Commission Agenda Items 3 and 4
September 16, 2021
Where experts have presented conflicting evidence on the extent of the environmental effects of a project, the agency must consider the environmental effects to be significant and prepare an EIR. (14 CCR § 15064(f)(5); PRC § 21080(e)(1); Pocket Protectors, 124 Cal.App.4th at 935.) “If the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record.” (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1379 [quoting Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.) “Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences.” (Id.) Discussion
I. The Addendum is improper under CEQA and an EIR is required because the LUEP’s proposed increase in residential development is not within the scope of the impacts analyzed in the 2012 Downtown Plan PEIR.
The 2012 Downtown Plan Program EIR analyzed the impacts of 5,000 residential units, construction, and operation of 480,000 square feet of retail/commercial space, and 1,500,00 square feet of office space. The LUEP proposes a mechanism for the City to approve up to an additional 3,260 residential units, despite the fact that the Downtown Plan PEIR never contemplated such an increase in residential development. The CEQA Guidelines expressly lay out the criteria for later activities taken pursuant to an existing program EIR. (14 CCR 15168(c).) Pursuant to the CEQA Guidelines, the Addendum is only proper if the LUEP and 7th & Locust Project are “within the scope” of the Downtown Plan PEIR.
When determining whether the LUEP 7th & Locust Project are “within the scope” of the Downtown Plan EIR,
Factors that an agency may consider in making that determination include, but are not limited to, consistency of the later activity with the type of allowable land use, overall planned density and building intensity, geographic area analyzed for environmental impacts, and covered infrastructure, as described in the program EIR.” (14 CCR 15168(c)(2) [emphasis added].)
Here, the LUEP and 7 & Locust Project are not consistent with the analysis provided in the 2012 PEIR because the PEIR only analyzed up to 5,000 residential units. Any increase beyond those 5,000 units removes a project from the scope of the PEIR and, therefore, eliminates the option of preparing an addendum rather than an EIR or negative declaration. (Center for Sierra Nevada Conservation, (2012) 202 Cal.App.4th at 1171 [PEIR may only serve for subsequent actions “to the extent that it contemplates and adequately analyzes the potential environmental impacts of the project. . . .”] [citations omitted]; 14 CCR § 15168(c)(1) [“If a later activity would have effects that were not examined in the project EIR, a new initial study would need to be prepared leading to either an EIR or a negative declaration.”].) 7th & Locust Project/ Land Use Equivalency Program
Long Beach Planning Commission Agenda Items 3 and 4
September 16, 2021
In addition to the fact that the Downtown Plan PEIR analyzed only up to 5,000 residential units, the PEIR also expressly rejected the inclusion of more housing. In its analysis of alternatives, the Downtown Plan PEIR considered an increased residential alternative with up to 9,200 units. Pursuant to the PEIR, “[t]his alternative was rejected to avoid excessive traffic impacts and associated air quality and noise impacts from the additional residential units and hotel rooms in comparison to the proposed Project. . . . It is not being carried forward for detailed analysis” (Downtown Plan Draft EIR, p. 6-3 [emphasis added].) In other words, the proposed LUEP and 7th & Locust Project are not only outside the scope of residential units analyzed in the PEIR, but the PEIR also found that an increase in residential units would have more impacts that the Downtown Plan as approved. The Downtown Plan and PEIR simply never analyzed or addressed increasing the amount of residential units within the Downtown Plan area beyond 5,000 units.
Importantly, the above does not mean that the City cannot ever adopt the LUEP or approve the 7th & Locust Project. Rather, because these activities are outside the scope of the 2012 Downtown Plan EIR, CEQA requires that an EIR or negative declaration be prepared instead. Here, because the Addendum concedes that the LUEP will have significant and unavoidable impacts, a negative declaration is not appropriate and adoption of the LUEP requires an EIR.
II. An EIR and Statement of Overriding Considerations is required for the LUEP’s significant and unavoidable impacts.
The Addendum concedes that implementation of the LUEP will result in significant and unavoidable impacts to air quality, cultural resources, aesthetics, greenhouse gases “GHGs”, noise, population and housing, public services, and transportation and traffic. Although these impacts were identified as significant and unavoidable in the 2012 Downtown Plan PEIR, CEQA still requires an EIR to evaluate and mitigate these impacts and requires a Statement of Overriding Consideration prior to approval.
In the case of Communities for a Better Environment v. Cal. Resources Agency (2002) 103 Cal.App.4th 98, 122-25, the court of appeal held that when a “first tier” EIR admits a significant, unavoidable environmental impact, then the agency must prepare second tier EIRs for later projects to ensure that those unmitigated impacts are “mitigated or avoided.” (Id. [citing 14 CCR §15152(f.)) The court reasoned that the unmitigated impacts were not “adequately addressed” in the first tier EIR since it was not “mitigated or avoided.” (Id.) Thus, significant effects disclosed in first tier EIRs will trigger second tier EIRs unless such effects have been “adequately addressed,” in a way that ensures the effects will be “mitigated or avoided.” (Id.) A second tier EIR is required especially where the impact still cannot be fully mitigated and a statement of overriding considerations will be required. The court explained, “The requirement of a statement of overriding considerations is central to CEQA’s role as a public accountability statute; it requires public officials, in approving environmental detrimental projects, to justify their decisions based on counterbalancing social, economic or other benefits, and to point to substantial evidence in support.” (Id. at 124-25.)
7th & Locust Project/ Land Use Equivalency Program
Long Beach Planning Commission Agenda Items 3 and 4
September 16, 2021
Since the 2012 Downtown Plan EIR and the subsequent Addendum identified multiple significant and unavoidable impacts, a second tier EIR is now required for the LUEP to determine if mitigation measures can now be imposed to reduce or eliminate those impacts. If the impacts still remain significant and unavoidable, a Statement of Overriding Considerations is required in addition to the EIR. “[T]he responsible public officials must still go on the record and explain specifically why they are approving the later project despite its significant unavoidable impacts.” (Communities for a Better Environment, 103 Cal.App.4th at 124–25.) As such, the Addendum is not proper and an EIR is required for the LUEP’s significant and unavoidable impacts.
CONCLUSION
For the foregoing reasons, the SAFER and its members respectfully request that the Planning Commission not approve items 3 and 4 at this time and refrain from taking any further action on this matter until an EIR has been prepared. Thank you for your attention to these comments.
Sincerely,
Brian B. Flynn
Lozeau Drury LLP
Revised August 2019
CITY OF LONG BEACH
DEPARTMENT OF DEVELOPMENT SERVICES
411 West Ocean Blvd., 3rd Floor Long Beach, CA 90802 (562) 570-6194
PLANNING BUREAU
APPLICATION FOR APPEAL
An appeal is hereby made to Your Honorable Body from the decision of the Site Plan Review Committee
Zoning Administrator
Planning Commission
Cultural Heritage Commission
Which was taken on the _______ day of ________________, 20 ____.
Project Address: ____________________________________________________________ I/We, your appellant(s), hereby respectfully request that Your Honorable Body reject the decision and Approve / Deny the application or permit in question.
ALL INFORMATION BELOW IS REQUIRED
Reasons for Appeal: ________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ Appellant Name(s): ___________________________________________________________ Organization (if representing) ___________________________________________________ Address: ___________________________________________________________________ City ________________________ State _______ ZIP _______ Phone __________________ Signature(s) _______________________________________________ Date ____________ • A separate appeal form is required for each appellant party, except for appellants from the same address, or an appellant representing an organization. • Appeals must be filed within 10 days after the decision is made (LBMC 21.21.502). • You must have established aggrieved status by presenting oral or written testimony at the hearing where the decision was rendered; otherwise, you may not appeal the decision. • See reverse of this form for the statutory provisions on the appeal process.
BELOW THIS LINE FOR STAFF USE ONLY
Appeal by Applicant Appeal by Third Party
Received by: Case. No.: Appeal Filing Date:
Fee: Fee Paid Project (receipt) No.: ___________________________ 16th September 21
636 Locust Avenue, Long Beach, CA 90802 / PD-30
For the reasons discussed in the attached comment,
the Planning Commission's decisions to adopt and approve the Downtown Plan Program EIR Land Use Equivalency Program and 7th and Locust Development Downtown Plan EIR Addendum (EIRA 06-20), to find the project within the scope of the previously-certified Downtown Program Environmental Impact Report (PEIR) (SCH#2009071006), and to approve Site Plan Review SPR20-011 are in violation of the California Environmental Quality Act (CEQA). SEE ATTACHED.
Supporters Alliance for Environmental Responsbility
Lozeau Drury LLP (representing Appellant)
1939 Harrison St., Ste 150
Oakland CA 94612 (510)836-4200
09/27/21
Revised April 2017
Statutory Provisions for Appeal, from LBMC Chapter 21.21 (Administrative Procedures) Division V. - Appeals
21.21.501 - Authorization and jurisdiction.
A. Authorization. Any aggrieved person may appeal a decision on any project that required a public hearing.
B. Jurisdiction. The Planning Commission shall have jurisdiction on appeals of interpretations made pursuant to Section 21.10.045 and decisions issued by the Zoning Administrator and Site Plan Review Committee, and the City Council shall have jurisdiction on appeals from the Planning Commission as indicated in Table 21-1. Decisions lawfully appealable to the California Coastal Commission shall be appealed to that body.
21.21.502 - Time to file appeal. An appeal must be filed within ten (10) days after the decision for which a public hearing was required is made.
21.21.503 - Form of filing. All appeals shall be filed with the Department of Planning and Building on a form provided by that Department.
21.21.504 - Time for conducting hearing of appeals. A public hearing on an appeal shall be held:
A. In the case of appeals to the City Planning Commission, within sixty (60) days of the date of filing of the appeal with the Department of Planning and Building; or B. In the case of appeals to the City Council, within sixty (60) days of the receipt by the City Clerk from the Department of Planning and Building of the appeal filed with the Department.
21.21.505 - Findings on appeal. All decisions on appeal shall address and be based upon the same conclusionary findings, if any, required to be made in the original decision from which the appeal is taken.
21.21.506 - Finality of appeals.
A. Decision Rendered. After a decision on an appeal has been made and required findings of fact have been adopted, that decision shall be considered final and no other appeals may be made except:
1. Projects located seaward of the appealable area boundary, as defined in Section 21.25.908 (Coastal Permit—Appealable Area) of this title, may be appealed to the California Coastal Commission; and
2. Local coastal development permits regulated under the city's Oil Code may be appealed to the city council.
B. No Appeal Filed. After the time for filing an appeal has expired and no appeal has been filed, all decisions shall be considered final, provided that required findings of fact have been adopted.
C. Local Coastal Development. Decisions on local coastal development permits seaward of the appealable area shall not be final until the procedures specified in Chapter 21.25 (Coastal Permit) are completed.