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LI cox CASTLE
Irvine, California 92612-5678
Christopher Burt
File No. 103611
May 5, 2024
VIA E-MAIL
City Council
City of Murrieta
1 Town Square
Murrieta, CA 92562
Re: Appeal of the Planning Commission's Approval of the Murrieta Hot Springs at Jefferson Apartments Development Plan Permit 2022-2605/2023-00006 Dear Mayor Stone and City Council:
This firm represents LMC Murrieta Holdings, LLC ("LMC"), the applicant for the 387- unit project located at the southeast corner of Murrieta Hot Springs Road and Jefferson Avenue (the "LMC Project"). The property is zoned Community Commercial and TOD Overlay District ("TOD Overlay"). The LMC Project is consistent with all applicable, objective standards of the TOD Overlay, as confirmed in the Planning Commission's staff report.
The LMC Project was approved by the City's Planning Commission on March 27, 2024.
An appeal of the Planning Commission's approval was filed on March 29, 2024, by Dr. Lisa DeForest (the appellant), a member of the City Council. However, when filed, the appeal stated only general objections to the LMC Project and did provide any substance regarding the specifics of her appeal. LMC was not provided any information about the appellant's specific arguments until April 22, 2024, 23 days after the appeal was filed. This letter provides a response to the appeal, explaining why each of the appeal's allegations are meritless.
However, two threshold matters must first be address. First, LMC contends that the appeal is invalid because it failed to adhere to the requirements of the Murrieta Municipal Code ("MMC"), including with respect to (1) filing an appeal that states, in writing, "the specific reasons for the basis of the appeal" upon filing and (2) providing the required mailing labels. The appellant's failure to comply with the procedural and substantive requirements of the MCC mean that the appeal cannot properly be heard by the City Council without violating LMC's procedural and substantive due process rights.
Second, the appellant presents an unacceptable probability of bias and must recuse from considering the merits of her own appeal. The appellant has clearly demonstrated her objection to the project, as designed, and is committed to a result - denial of the project or a mandate to 103611\17583008v1
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conduct additional environmental review. Her lack of impartiality prohibits her from participating in the City Council's review of the appeal.
With respect to the substance of the appeal, it primarily asserts that the LMC Project may result in traffic safety issues, which must be analyzed in the project's Initial Study/Mitigated Negative Declaration ('IS/MND"). These arguments, which are clearly intended to delay approval of a project that complies with all objective development standards, including those related to traffic, are unavailing.' The City, predictably because this appeal was brought by a City Councilmember, concludes that the appellant's arguments are valid and recommends that the City Council grant the appeal. However, just because an appeal is brought by an elected decisionmaker does not make its arguments availing. The City's about-face to full-throated, uncritical endorsement of the appeal - which presents arguments inconsistent with applicable law, fails to provide any substantial evidence of a potential environmental impact, and demands analysis and improvements beyond what is constitutionally permitted - is strikingly inappropriate.?
1. First, although the appellant suggests otherwise (without any evidence), the project does not result in any level of service ("LOS") deficiency along Murrieta Hot Springs Road ("MHSR"). The appellant's assertion that the LMC Project's traffic be assessed against an LOS C standard is plainly wrong. The applicable standard is LOS D, which was properly used by the project's Traffic Study to conclude that no LOS deficiency would result along MHSR. The City's Public Works/Engineering Department reviewed the Traffic Study and found its analysis consistent with applicable standards. To shift the applicable standard now would violate the HAA's prohibition on applying new standards after the project application was deemed complete. It would also be arbitrary and violate LMC's rights of equal protection and unconstitutional exactions because the City, less than one year ago, used the LOS D standard to evaluate potential impacts along the same roadway segment for the Jefferson Murrieta Apartments project, located immediately across MHSR from the project site. The City cannot arbitrarily establish different acceptable LOS standards for the same roadway segment for different projects, especially when doing so would burden projects disproportionally with fair share fees and other exactions. (Alliance for Responsible Planning v. Taylor (2021) 63 Cal.App.5th 1072, 1085-1086 [a requirement that a developer complete traffic improvements addressing impacts 1 The LMC Project is consistent with all applicable objective standards, and is subject to the provisions of the Housing Accountability Act ("HAA"). For projects that comply with applicable objective standards, the HAA limits an agency's ability to deny or impose a condition that a project be developed at a lower density without making specific findings. (Govt. Code § 65589.5(i).) An agency that violates the HAA is subject to potential significant penalties, including a minimum fine of $10,000/unit and attorney's fees, with penalties increase for agencies that are found to have acted in bad faith. (Govt. Code § 65589.5(k).) 2 The staff report does nothing but restate the arguments of the appeal, trying to fill the gaps left by the appellant with additional details. However, the City's attempts to support an appellant are nevertheless inadequate. 103611\17583008vl
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beyond its own project (cumulative impacts) is an illegal exaction that fails essential nexus and rough proportionality tests].)
2. Second, even assuming the project results in an LOS deficiency (which it does not), LOS is unequivocally and legally not an "impact on the environment" for California Environmental Quality Act ("CEQA") purposes. (CEQA Guidelines § 15064.3(a) ["a project's effect on automobile delay shall not constitute a significant environmental impact"].) The appellant's blatant attempt to backdoor LOS into the IS/MND through allegations of land use inconsistency and safety are unavailing because, as the appellant willfully admits, the project's alleged effect on automobile delay ("LOS") is the singular basis for the appellant's arguments about safety. (Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73 Cal.App. 5th 985, 1021 (allegations challenging an EIR's analysis of a project's effect on traffic based on inconsistencies with General Plan goals of maintaining an LOS D or better condition were moot because "LOS-based traffic analysis is no longer a consideration to determine if a project's impact is significant...."].) CEQA and associated court decisions are clear here - a project's effect on LOS "shall not" be considered an impact on the environment. Any demand that the IS/MND be revised to include such an analysis would violate CEQA. Moreover, with recent revisions to the HAA to limit local agency abuses of CEQA for housing projects, requiring additional environmental analysis would be an "abuse of discretion" under the HAA.
3. Third, the appellant's demand that the LMC Project's interim improvements along MHSR achieve a 60 MPH design speed is fundamentally flawed because the existing roadway is incapable to accommodating that design speed. A 60 MPH design speed is consistent with an Urban Arterial Highway roadway and, although the General Plan identifies MHSR as a future Urban Arterial Highway, the current roadway lacks the necessary right-of-way width and curb-to-curb surface width for an Urban Arterial Highway. The current roadway is Collector Street, which has a maximum design speed of 45 MPH.
The appellant nevertheless seeks to hold the project to an arbitrary, illusory standard of 60 MPH. Thus, the appeal demands the impossible, even though the proposed interim improvement/striping plan result in a safe condition consistent with the current 45 MPH design speed. The appellant provides absolutely no evidence that the interim improvement/striping plan would result in an unsafe condition when accounting for actual, existing conditions.?
3 LMC realizes that the planned, future buildout of MHSR would accommodate a future 60 MPH design speed. The MC Project does nothing to prevent that, and would construct all project site frontage improvements t ccommodate that future condition. However, although the appellant appears to argue otherwise, the City canno condition the project on widening MHSR across the Yoder Wash. The City already recognized that there is no nexus between the LMC Project and the future capital improvement to expand MHSR across the Yoder Wash. (Planning 103611\17583008v1
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As discussed above, each of the appellant's contentions are without merit and cannot form the basis for a City Council decision to (1) deny the project, (2) reduce the density of the project, or (3) require that additional CEQA analysis be conducted and demand that the LMC Project applicant construct off-site improvements. The appellant's arguments are speculative and without any evidentiary support. Therefore, to the extent the City Council considers the merits of the appeal, the LMC respectfully requests that the City Council deny the appeal and uphold the Planning Commission's approval of the LMC Project.
I. The Appeal Is Invalid and Failed to Adhere to the Requirements of the Murrieta Municipal Code
Chapter 16.78, Appeals, of the MMC establishes the procedural and substantive requirements for valid entitlement appeals. The requirements ensure the administrative process is procedurally fair. However, when not followed, a procedurally and substantively deficient appeal violates an applicant's substantive and procedural rights. (Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 559 [city council's appeal that was procedurally deficient violated the applicant's substantive and procedural due process rights].) LMC asserts that the appeal is invalid because it failed to adhere to the procedural and substantive requirements of the MCC. The MCC demands, for instance, that any appellant state "the specific reasons for the basis of the appeal in writing on the appeal form." (MCC §
16.78.030.D.) This is a clear, threshold requirement. If the appellant fails to "state the specific reasons" for the appeal, the City Clerk has a ministerial duty to return the appeal to the appellant within ten (10) days and identify the deficiency. (MCC § 16.78.030.F.) The appellant then has five (5) days to correct the appeal. (Id.)
Here, it appears that these requirements were simply dispensed with for the City Councilmember's appeal. The appeal, when filed, provided absolutely no information about the substance of the appeal. With regarding to the substance/reasons for the appeal, the appellant stated only that she was "requesting an appeal of the project's overall design and "[e]nvironmental analysis conducted under CEQA...." There were no "specifics" provided, as seemingly acknowledged by the appellant who stated that she was "in the process of acquiring the needed documentation needed to clearly state the position of my appeal." Thus, the appellant herself concludes the statement regarding the project's overall design and environmental analysis lacks any specific reasons. Because of that omission, the City Clerk was obligate to reject the appeal as inadequate.
Even though the appellant acknowledged that the submitted appeal did not "clearly state the position of" her appeal, the City Clerk nevertheless deemed the appeal complete on April 1, 2024. Unsurprisingly, the City apparently continues to believe that an appeal expressly acknowledging its own deficiencies meets the standards of the MCC. The problem with that Commission March 27, 2024 Staff Report at p. 11 [acknowledging that the project does not meet the "threshold or nexus" for requiring expansion of MHSR across the Yoder Wash].) 103611\17583008v1
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conclusion is that it effectively eviscerates the MCC's requirement that an appellant state "the specific reasons" for the appeal. The City's acceptance of the appeal is even more egregious considering the appellant did not provide any information regarding the specifics of her appeal until 23 days after the appeal was filed.4.5
Independently, we also question whether the appellant provided the required mailing labels to the City Clerk. (MMC § 16.78030.D [the mailing labels shall be supplied by the appellant as part of the appeal application submitted to the City Clerk].) I spoke with the City Clerk's Office on April 17, 2024, 19 days after the appeal was filed, and was told that she had not received any mailing labels from the appellant. Again, it appears that adherence to the mandates of the MCC were simply not required of the appellant. That reflects the apparent clandestine manner in which the MCC's provisions allowing appeals by City Councilmembers are implemented, incentivizing behind-the-scenes coordination between the City Councilmember appellant and staff. To see evidence of this, one need look no further than the required "meet and confer" meeting (MCC § 16.78.040) between the appellant and LMC, when the appellant, City Development Services staff, and the City Attorney's Office were all aligned in support of the appeal. That support, of course, occurred notwithstanding the fact the appeal, itself, challenges the previous analysis, conclusions, and recommendations of staff.
The MCC is clear. An appellant, including a City Councilmember appellant, must provide the "specific reasons for the basis of the appeal..." Here, the appellant's failure to meet the standards of the MCC, and the City's subsequent failure to enforce the requirements, violate LMC's substantive and procedural due process rights. (Cohan, supra, 30 Cal.App.4th at 559 [city council's appeal that was procedurally deficient violated the applicant's substantive and procedural due process rights]; Woody's Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012, 1026 [city council appeal was invalid when there was no provision in the local code "for an exception for city council members to the code's rules requiring appellants" to be interested parties, post a fee, and use the right form].) The MCC requirements are there to ensure the administrative appeals process preserves the substantive and procedural due process rights of applicants. When they are willfully ignored, those protections are destroyed and fundamental fairness is undermined. Therefore, LMC 4 In fact, it appears the appellant was collecting information to sufficiently state the "specific reasons for the appeal" as late as April 19, 2024, 21 days after the appeal was filed (as evidenced by the email from D. Edgington to D.
Chantaragsu attached to the Appellant's Statement and Supporting Evidence). That email highlights a separate concept of unfairness in this appeal. It appears that the appellant was able to leverage her position on the City Council to freely access internal, City records at her leisure to piece together the "specific reasons for the appeal" long after any other appellant would have been required to state his/her reasons. 5 Because the appellant delayed submitting any substantive information regarding the appeal until April 22nd, the meet and confer meeting between the appellant and LMC was delayed until May 1, 2024, only three (3) working days before the already-scheduled City Council appeal hearing. 103611\17583008v1
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believes that the appeal is improperly before the City Council, which must reject the appeal, as filed, and affirm the approval of the Planning Commission.
The Appellant Must Recuse Herself From Consideration of Her Appeal The apparent value of allowing appeals by City Councilmembers is that it permits decisions rendered by non-elected bodies to be reviewed by elected decisionmakers. However, the peril of such appeals is that an appellant also serves as his/her own decisionmaker, which implicates issues of bias and unfairness to the applicant. To ensure protection a project applicant's procedural and substantive due process rights, a decisionmaker with a probability of bias may not participate in any administrative process regarding the project. (Woody's Group, Inc., supra, 233 Cal.App.4th at 1021 ["the contention that a fair hearing requires a neutral and unbiased decision maker is a fundamental component of fair adjudication"].) "The generally accepted linguistic formation of the rule against bias has been framed in terms of probabilities, not certainties." (Id.) "Thus bias - either actual or an 'unacceptable probability' of it - alone is enough on the part of a municipal decision maker to show a violation of the due process right to a fair procedure." (Id.)
The appellant clearly has an unacceptable probability of bias against the project, having generally stated her objection to the "project's overall design" and asserting that, in her opinion, the project "will have an impact on the quality of life of our residents." (Id. at 1022-1023 [city council appellant demonstrated an unacceptable probability of bias when his appeal "showed he was strongly opposed to the planning commission's decision"].) Those unequivocal, but general, statements were then followed by a three-page Appellant Statement and Supporting Evidence, where the applicant concludes that the project "conflicts with the City's General Plan" and that she found the conclusions of the project's IS/MND "to be incorrect" for her stated reasons.
It is axiomatic that a "person cannot be a judge in his or her own cause." (Id. at 1027.) To conclude that the appellant can serve as an unbiased decisionmaker on her own appeal. The appellant clearly took a position against the project, as proposed, and is committed to a result - either the denial of the project, as proposed, or a mandate that the project applicant conduct additional environmental review. LMC respectfully requests that Dr. DeForest recuse herself from the City Council's consideration of her appeal.
III. The Appeal is Without Merit
The appeal contends that the IS/MND is inadequate because (1) the project would cause an LOS deficiency at specific roadways/intersections and (2) the deficiencies are inconsistent with General Plan standards and causes safety environmental impacts that must be disclosed in the IS/MND. The appellant's arguments are without merit. First, the appellant's assertions about the project's causing of deficiencies is incorrect. The LMC Project does not cause a deficient condition along MHSR or the Jefferson Avenue/Project Driveway 1 intersection. Second, even if the project did contribute to a delay, automobile delay, as described by LOS or some similar measure of vehicular capacity or traffic congestion, "shall not be considered a significant 103611\17583008v1
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impact on the environment." (Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, 626.) The appellant provides no alternative evidence of a safety impact resulting from the project, which the California Legislature found to arise infrequently" for housing projects that comply with applicable objective standards. (Govt. Code § 65589.5(k).)
a. The Project Does Not Cause an LOS Deficiency
The appellant asserts that the IS/MND failed to properly disclose that the project would conflict with the General Plan's LOS C standard for MHSR, which the appellant claims is LOS C. This alleged LOS deficiency, the appellant asserts, is an environmental "impact ... that the proposed IS/MND should have disclosed" and mitigated. The appellant's demand for disclosure of an LOS impact and subsequent mitigation is incorrect. The LMC Project does not result in a deficient LOS condition.
The appellant does not specify why she asserts that LOS C is the applicable standard for MHSR, as the appeal provides no citation to the General Plan or other existing, objective standard. That silence is significant, especially given that the City's Public Works/Engineering Department already concluded that LOS D is the applicable standard. The LMC Project's Traffic Study, which was reviewed and approved by the Public Works/Engineering Department, utilized LOS D to evaluate future traffic conditions. The Traffic Study concludes that with opening year (2024) traffic, cumulative project traffic, and traffic associated with the project, MHSR would operate at an LOS D condition, which was not considered a deficient condition. (QMC Murrieta Multi-Family Project Traffic Study (May 2023), Table 8.) The appellant's demand notwithstanding, the City cannot now, years after the project's application was deemed complete, require use of a new LOS standard. The HAA prohibits local agencies from constantly shifting the goalposts with respect to development standards. To provide certainty to entitlement applicants and prevent local agency abuse, the HAA requires agencies to expressly identify any development standards with which it believes a proposed project is inconsistent within thirty (30) days of complete application submittal.® If the agency fails to state an inconsistency and provide required documentation of the inconsistency, "the housing development project shall be deemed consistent, compliant, and in conformity with the applicable, plan program, policy, ordinance, standard, requirement, or other similar provision." (Govt. Code § 65589.5(j)(2) [emphasis added].)
Here, the LMC Project's application was deemed complete by operation of the Permit Streamlining Act long before any assertion that LOS C was the applicable standard. The City 6 The HAA states that if an agency "considers a proposed housing development project to be inconsistent, not in one lad at strenge in de the apter i write documentation dare inconsistent..." (Govt. Code § 65589.5()(2).)
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cannot now, years after the application was deemed complete and after formal agreement from Public Works/Engineering Department staff, elect to arbitrarily demand a different standard. The HAA expressly prohibits such action.
Second, requiring the project's TIA to use an LOS C standard for the MHSR segment and demand to find an "impact" would violate constitutional prohibitions on agencies imposing exactions that are not roughly proportional to the project's impacts. The City previously used the LOS D standard to evaluate potential traffic delay associated with the Jefferson Murrieta Apartments project on the same segment of MHSR. There is no legal basis for using a different LOS standard on the same roadway segment, especially when it would disproportionally assign responsibility for traffic (and associate share/cost of improvements) to projects required to use a lower LOS standard. (Koontz v. St. Johns River Water Management Dist. (2013) 507 U.S. 595, 612 [extending the Nollan/Dolan essential nexus and rough proportionality tests to demands for money]; Alliance for Responsible Planning, supra, 63 Cal.App.5th at 1085-1086 [a requirement that a developer complete traffic improvements addressing impacts beyond its own project (cumulative impacts) is an illegal exaction that fails essential nexus and rough proportionality tests]; Village of Willowbrook v. Olech (2000) 548 U.S. 562, 565 [equal protection clause prohibits disparate treatment of similarly situated property owners against arbitrary discrimination].) This is particularly relevant because, as discussed below, the LMC Project contributes approximately 1/3rd of the traffic to the MHSR segment as cumulative projects identified in the Traffic Study. The only standard that may be applied is LOS D and the project does not result in the deficiency alleged by the appellant.
The appellant next asserts that the project's "LOS F on Jefferson Avenue" was not properly disclosed in the IS/MND. For the reasons discussed below, LOS or other form of automobile delay cannot legally form the basis of a CEQA impact and an LOS analysis may not be incorporated into the IS/MND as the basis for finding an environmental impact. Also, the appellant's general assertion that the project would result in LOS F on Jefferson Avenue is incorrect and ignores the conclusions of the Traffic Study. Table 7 of the TIA notes that opening year (2024), cumulative plus project conditions at Jefferson Avenue and Project Driveway 1 would operate at LOS F. However, the Traffic Study also explains that only one movement would result in a delay, while "the overall intersection delay would be acceptable." (QMC Murrieta Multi-Family Project Traffic Study (May 2023) at p. 35 [emphasis added].) Again, the City's Public Works/Engineering Department reviewed the Traffic Study, its analysis and conclusions, and concluded that it was appropriate and accurate. b. LOS Cannot Legally Be Considered a CEQA Impact and City Council Action to Require Inclusion of LOS in the IS/MND Would Violate the Law The appellant's argument is also fundamentally flawed because it is premised on the idea that an LOS deficiency can be a CEQA environmental impact, including a safety impact.
However, CEQA is definitive - LOS or some similar measure of vehicular capacity or traffic congestion, "shall not be considered a significant impact on the environment." (Citizens for 103611\17583008v1
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Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, 626.) CEQA Guidelines Section 15064.3, subdivision (a) says unequivocally that "a project's effect on automobile delay shall not constitute a significant environmental impact." The Governor's Office of Planning and Research ("OPR"), which is charged with drafting CEQA Guidelines updates and providing technical advisories for implementation of CEQA, has confirmed the same. It states definitively that "while traffic studies may be required for planning approvals, those studies will no longer be part of the CEQA process." (OPR 2017 SB 743 Technical Advisory FAQs [emphasis added].)
The appellant tries to sidestep this clear limitation, instead asserting that LOS is fundamental to determining whether a "circulation system operates safely and does not result in traffic safety hazards." (Appellant Statement and Supporting Evidence at p. 1.) However, this conclusion is also misguided. The appellant provides no actual evidence that a significant environmental impact related to safety would result. The appeal is pure speculation, which cannot support a fair argument of a potential impact. (Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 786 [suggestion to further investigate a potential environmental impact is not "evidence, much less substantial evidence, of an adverse impact"].) The appellant's lack of reference to actual substantial evidence reveals the fundamental law in the appellant's argument - the purported safety impact (for which there is no evidence) is a direct result of an alleged LOS deficiency which cannot legally be an environmental impact under CEQA. Moreover, as explained above, the project does not cause an LOS deficiency.
To support her argument, the appellant attempts to portray the applicant as a bad actor.
The appellant states, for instance, that "[dJespite several attempts by staff to require this analysis, the Applicant failed to do so an instead indicated that a traffic analysis that addressed the City's LOS planning goal was irrelevant." (Appellant Statement and Supporting Evidence at p. 1.) That comment is overtly incorrect. The applicant does not believe that an LOS analysis is irrelevant to planning goals, as evidenced by its preparation of a complete Traffic Study that included an LOS analysis. LMC will pay all development impact fees and fair share fees legally attributable to the LMC Project based on the conclusions of the Traffic Study, aiding achievement of the City's LOS planning goals. The issue here is that the appellant demands that analysis be included in the IS/MND, which is inconsistent with the plain language of CEQA. (CEQA Guidelines § 15064.3(a) ['a project's effect on automobile delay shall not constitute a significant environmental impact"]; OPR 2017 SB 743 Technical Advisory FAQs ["while traffic studies may be required for planning approvals, those studies will no longer be part of the CEQA process"].) Also, the City's own past practice does not include an LOS analysis to analyze CEQA impacts, which reflects a clear understanding that LOS cannot serve as the basis for a CEQA environmental impact. In fact, in comprehensive responses to comments received on The Terraces Apartment Project Recirculated Initial Study - Mitigated Negative Declaration, the City expressly stated the following: "For the purposes of CEQA compliance, the City of Murricta utilizes VMT as stipulated in the criteria outlined in the City of Murrieta Traffic Impact Analysis 103611\17583008v1
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Guidelines, March 2021." (Terraces Apartment Project Recirculated Initial Study - Mitigated Negative Declaration at p. 12.)
Likewise, no detailed LOS analysis was included in the 7080/Adams Avenue Affordable Housing Multi-Family Development Project Initial Study/Mitigated Negative Declaration.? It was also omitted from the Initial Study/Mitigated Negative Declaration Whitewood South Apartment Project, which noted that "[a]lthough City LOS policy would not be applicable as a transportation impact under CEQA per SB 743, the study area intersection and roadway segment operations analysis were conducted as part of the project's TIA..." The appellant's lack of interest in the omission of an LOS analysis from previous CEQA documents is curious.
To the extent the appellant is arguing that the LOS analysis must be part of the IS/MND's land use consistency analysis, that contention is also incorrect. To assess potential land use consistency impacts, the IS/MND analyzes whether the project "would cause a significant environmental impact due to a conflict with any land use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect." (IS/MND at p. 100 [emphasis added].) As such, for a potentially significant impact to occur, there must (1) be an inconsistency with a plan, policy, or regulation intended to mitigate an environmental effect and (2) the inconsistency must cause "a significant environmental impact...." Thus, an inconstancy is alone insufficient to justify a finding of environmental effect. There must be an independent environmental effect resulting from the inconsistency. Here, because automobile delay "shall not" be a significant environmental effect, any inconsistency with a policy establishing an automobile delay standard also cannot support a finding of environmental impact. (Ocean Street Extension Neighborhood Assn., supra, 73 Cal.App.5th at 1021 [challenges to EIR's LOS analysis that compared project traffic to General Plan LOS goals were moot].) The appellant's attempt to backdoor an LOS analysis under the guise of land use consistency/safety was predicted by OPR, which serves several important administrative functions in the administration of CEQA, including (1) developing and updating the CEQA Guidelines and (2) publishing formal technical assistance regarding the implementation of CEQA. With respect to automobile delay (LOS) and alleged safety impacts, OPR's 2018 Technical Advisory on Evaluating Transportation Impacts in CEQA expressly states that "[l]ead agencies should note that automobile congestion or delay does not constitute a significant environmental impact (Pub. Resources Code, § 21099(b)(2)), and safety should not he used as a https://files.ceqanet.opr.ca.gov/274687-
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8 https://files.ceqanet.opr.ca.gov/283500-
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proxy for road capacity." It also explains that LOS is an inappropriate proxy for safety impacts because "[iJincreases in traffic volumes at a particular location resulting from a project typically cannot be estimated with sufficient accuracy or precision to provide useful information for an analysis of safety concerns." (Id.)
OPR reached this conclusion - that automobile delay and safety are not analogous for CEQA - because evidence shows that increases in automobile delay do not decrease safety. (OPR's General Plan Guidelines, Appendix B, SB 743 Safety Technical Advisory at p. 350 [studies show that reducing intersection delay actually worsens safety because vehicles travel at higher speeds] [areas "with a high level of intersection density also tend to have fewer fatal crashes].) 1° Thus, although the appellant suggests otherwise (without any supporting evidence), adding traffic to intersections does not decrease safety, but has the directly opposite effect - increasing safety.
OPR also recognized (based upon reviewed research) that reducing overall vehicle miles traveled (VMT) and sprawl was found to reduce collision exposure and improve safety. "...infill development, which exhibits low VMT, itself provides safety benefits by reducing motor vehicle collision exposure, lowering speeds, and increasing pedestrian and cyclist volumes.... " (Id.) The IS/MND concluded that the LMC Project would not result in a VMT impact. Also, it is within the City's TOD Overlay, the purpose of which is to allow development "in close proximity to transit to encourage mixed land uses for enhanced transit and pedestrian activity." (MMC §
16.16.040.)
Thus, although the appellant seeks to connect LOS and safety issues, no connection exists. LOS or other form of traffic delay is definitively and legally not an environmental impact.
Therefore, any insistence that the IS/MND be revised to incorporate an LOS analysis is, itself, a violation of the law, including the HAA, which was recently amended (AB 1633) to end CEQA abuses by local governments using CEQA as an impediment to housing production. The HAA limits an agency's ability to disapprove or condition a housing development project to be developed at a lower density without making specific findings. AB 1633 revised the HAA to expand the definition of "disapprove a housing project" to include any instance where a local agency fails to make a determination that a project is exempt from CEQA, abuses its discretion, or fails to adopt, approve, or certify a CEQA document. If the City delays approval of the LMC Project and adoption of the IS/MND, it may constitute an abuse of discretion, as defined by the HAA. When an agency is considered an MND, an "abuse of discretion" means that the agency, in bad faith or without substantial evidence in the record to support a fair argument that further environmental study is necessary to identify or analyze potentially significant impacts on the physical environment, decided to require further environmental study rather than adopting the negative declaration." (Govt. Code § 65589.5(h)(6)(E) (vii)(ia).) 9 https://opr.ca.gov/cega/docs/20190122-743 Technical Advisory.pdf. 10 https://opr.ca.gov/docs/OPR Appendix B final.pdf.
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Here, the appellant's insistence on incorporating an LOS analysis into the IS/MND as necessary to evaluate safety impacts is inconsistent with CEQA itself and substantial evidence. If the City Council decides to grant the appeal, either denying the project or requiring additional environmental analysis, it would be an "abuse of discretion" as that term is defined by the HAA. c. The Project is Not Responsible for Widening MHSR Across Yoder Wash and It Cannot Be Required to Analyze the Improvement in the IS/MND The appellant faults the IS/MND for not analyzing the physical impacts associated with widening of MHSR across the Yoder Wash (construction) as part of the LMC Project. The appellant's contention is wrong. First, the project does not create a deficient condition and, therefore, the widening of MHSR across the Yoder Wash is not an improvement attributable to the LMC Project, and any attempt to link the project to that improvement would violate constitutional limitations on exactions and takings. (Koontz v. St. Johns River Water Management Dist. (2013) 507 U.S. 595, 612.) The staff report to the Planning Commission recognized that there was no essential nexus between the project and widening over Yoder Wash. It states: "To fully improve the General Plan build-out connection along this Murrieta Hot Springs Road section, the Project must meet the threshold or nexus requiring off-site impact improvements. This Project does not exceed this threshold noted above." (Planning Commission March 27, 2024 Staff Report at p. 11.)
The bulk of the traffic contributing to the future LOS D condition on MHSR is cumulative project traffic (meaning non-LMC Project), which the project's Traffic Study concluded would add approximately 6,400 average daily trips to MHSR. The project would add only approximately 2,000 daily trips, roughly 1/3rd of the trips contributed by cumulative projects. (QMC Murrieta Multi-Family Project Traffic Study (May 2023), Table 8.) Like other housing projects within the City, the applicant will pay applicable development impact fees and contribute its fair share to future roadway improvements. However, the LMC Project cannot be held responsible for the widening of MHSR across the Yoder Wash and payment of fair share fees toward a future, cumulative improvement does not require analysis of that improvement in a project's CEQA document. " The LMC Project ultimately contributes less traffic than other projects and a demand that the LMC Project construct the improvement violates constitutional protections against unlawful takings and exactions. (Alliance for Responsible Planning v. Taylor (2021) 63 Cal.App.Sth 1072, 1085-1086 [a requirement that a developer complete traffic improvements addressing impacts beyond its own project (cumulative impacts) is an illegal exaction that fails essential nexus and rough proportionality tests].) Because the improvement is 11 It is also worth noting that the appellant elected not demand that the Jefferson Murrieta Apartments project accept responsibility for the improvement or include analysis of the cumulative improvement in its CEQA analysis, even though the Jefferson Murrieta Apartments project would (1) add significantly more traffic to MHSR and (2) was found to cause an LOS E (deficient) condition on the roadway segment. (See 15/83 Checklist Jefferson Multifamily Residential Project, Table 20.) That project, like the LMC Project, is required to contribute its fair share for the ultimate widening of MHSR and was permitted to implement an interim condition until the ultimate widening was constructed by the City.
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not the responsibility of LMC Project, it does not require analysis in the IS/MND. Any requirement that forces the MC Project IS/MND to include an analysis of the widening of MHSR would be arbitrary, cause the project applicant to incur additional, substantial cost unrelated to the project, and would be an abuse of discretion under the HAA. d. The Project Cannot Be Required to Achieve a 60 MPH "Design Speed" Applicable to the Ultimate, Future Buildout Condition of MHSR The appellant requests additional analysis because, as she asserts, the "interim" condition recommended by staff and approved by the Planning Commission is inconsistent with the 60 MPH design speed required by City Standard No. 116 (Roadway Design Requirements) for an Urban Arterial Highway section.'2 The appellant's argument is flawed because MHSR is not built to the standards of an Urban Arterial Highway. This appears, again, to be an attempt by the appellant to saddle the LMC Project with responsibility to implement the off-site widening of MHSR, which cannot legally be done as grossly out of proportion of with the project's impact.
It also reflects a misunderstanding of the applicability of design speeds in this circumstance. The 60 MPH design speed referenced in City Standard No. 116 is for a future, planned ultimate Urban Arterial Highway right-of-way (consistent with City Standard No. 102). (General Plan Circulation Element at Exhibit 5-6 [showing the MHSR segment proposed as an Urban Arterial Highway with an ultimately ROW width of 134 feet and a curb-to-curb width of 110 feet].) The segment of MHSR is not currently an Urban Arterial Highway and its design speed is not 60 MPH.!3 The City expressly recognized that fact in its report to the Planning Commission, stating that the "General Plan build-out connection along this Murrieta Hot Springs Road section" were not complete and would need to be implemented by the City. (Planning Commission March 27, 2024 Staff Report at p. 11.)
Moreover, the currently posted speed limit for the MHSR segment between Jefferson Avenue and the Yoder Wash is 45 MPH, not the 60 MPH suggested by appellant. That fact reflects the existing conditions along MHSR. The current ROW roadway width at the Yoder Wash is approximately 80 feet with a surfaced curb-to-curb width of approximately 60 feet. That ROW width means that MHSR along that segment is currently built to a Collector Industrial Street. (City Standard No. 116 [specifying that a Collector Industrial Street has a ROW of 78 feet 12 The appellant asserts that City "Staff did not support" the applicant's request for to design the interim conditions to a 45 MPH design speed rather than the 60 MPH required by City Standard No. 116. First, as discussed below, a 60 MPH design speed is inapplicable under existing conditions, which reflects LMC's request to design interim conditions to a 45 MPH design speed, which is reflective of existing conditions. Second, the appellant's assertion relies on a February 5, 2024 email from J. Ramaiya to LMC, which does not reflect updated off-site interim street concept plans based on discussions with City Public Works/Engineering Department staff on February 6, 2024. 13 The project will improve its frontage consistent with City Standard No. 102, which will aid the ultimately buildout of MHSR as an Urban Arterial Highway once all other off-site improvements are implemented, including widening over Yoder Wash. The project's frontage improvements reflect the ultimately planned buildout of MHSR and can accommodate the future 60 MPH design speed.
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and a surfaced curb-to-curb width of 56 feet].) Collector Industrial Streets have a maximum design speed of 45 MPH for flat conditions, not 60 MPH. (City Standard No. 116.) Thus, the design speed is arbitrary and requires the impossible. It would also be a violation of the HAA as requiring the project to comply with an inapplicable development standard. The only way a 60 MPH design speed may be achieved on MHSR is through improving MHSR eastward from the LMC Project's northeast corner, across the Yoder Wash and tying into the existing MHSR intersection with Madison Avenue. The City has already acknowledged that widening of MHSR across the Yoder Wash (1) is required to achieve the ultimate General Plan buildout condition of MHSR (meaning as an Urban Arterial Highway with a 60 MPH design speed), and (2) the widening is not the responsibility of the LMC Project. '4 The Planning Commission staff report stated:
connect the Project site to the existing sidewalk fronting the adjacent commercial center. To fully improve the threshold or nexus requiring off-site impact improvements.
This Project does not exceed this threshold noted above; therefore, the interim sidewalk will be replaced by the City when full improvements are completed as part of the General Plan build-out along this Murrieta Hot Springs Road section. The Capital Improvement Plan (CIP) lists Citywide infrastructure projects for future improvements. This Murrieta Hot Springs Road section will be added to the CIP list in the future and will require a project analysis and financial planning to budget, including determining the environmental permitting process that will be needed to augment the existing roadway that goes over Yoder Wash. The City will need to analyze, budget, and prioritize this section to include it as a project within the CIP.
The appellant's relied upon materials - an email from J. Ramaiya and comments on an associated attachment - are equally unavailing, as they suffer from the same erroneous demand that the interim roadway improvement plan meet City Standard Drawing No. 116 and a 60 MPH design speed. (April 19, 2024 A. Edgington email to D. Chantarangsu, B. Stephenson [stating that she was "also confirming that the design of the roadway needs to be based on the design speed of the roadway per our standard drawings (for Murrieta Hot Springs Road at this location - Urban [A]rterial is 60 MРH)"].)
The supporting materials are, therefore, flawed. The applicable standard pursuant to the City's Standard Drawings is 45 MPH, consistent with the existing width and ROW conditions as a Collector Industrial Street. The LMC Project's interim striping plan, which "shall remain in place until the roadway is built out to its ultimate width" northeast of the LMC Project, meets the applicable design speed and standards.!S The appellant presents no evidence to the contrary. And, 14 It also apparently was not the responsibility of the Jefferson Murrieta Apartments project, even though that project's traffic would cause an LOS E (deficient) condition on the roadway segment. 15 It should be noted that the project is improving its frontage along MHSR to the planned ultimate condition as an Urban Arterial Highway. Those improvements will allow the segment of MHSR to function as an Urban Arterial Highway between Jefferson Avenue and Madison Avenue after the after the off-site segment is improved by the City.
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after the segment is improved by the City, MHSR may function as an Urban Arterial Highway with a 60 MPH design speed. However, until that widening is completed, a 60 MPH design speed is illusory and arbitrary, and cannot be applied to the LMC Project. (Govt. Code § 65589.5 a project may only be compared to "applicable, objective ... standards, in effect at the time the application was deemed complete"l.) It is also unachievable without LMC implementing the widening, which violates constitutional prohibitions against illegal exactions. (Alliance for Responsible Planning, supra, 63 Cal.App.5th at 1085-1086 [a requirement that a developer complete traffic improvements addressing impacts beyond its own project (cumulative impacts) is an illegal exaction that fails essential nexus and rough proportionality tests].) It is also worth noting that the proposed interim design actually improves existing conditions. A review of aerial topography and aerial imagery shows that the existing lane curvature radius driving northbound on MHSR is an approximately 500-foot radius, which is less than the 850-foot minimum for a flat Collector Industrial Street with a 45 MPH design speed (without special approval of the Public Works/Engineering Department). The proposed interim condition, as reviewed by Public Works/Engineering Department staff, depicted an interim lane curvature with an approximately 1,056-foot radius, which exceeds the 850-foot minimum radius.
Therefore, the LMC Project's proposed interim improvements improve safety by increasing a substandard lane radius to a radius that exceeds the minimum lane radius. e. The Project's On-Site Recreational Amenities Comply With Applicable Standards The appellant asserts that the applicant's clarification to the Planning Commission that the project was providing a "tot lot" requires "vetting" detailed design drawings for the associated improvements. The appellant cites no MCC or other reasonable basis for her assertion. Moreover, aside from questioning whether the tot lot will meet all applicable standards, the appellant provides no actual objective standards. The MCC simply provides that TOD Overlay projects must provide recreational amenities in proportion to the number of residential units. The LMC Project complies with this requirement by providing a variety of amenities, as recognized in the Planning Commission's staff report. With respect to the type of permitted amenities, the MCC says that "children's playground equipment" is a qualifying recreational amenity. The MCC is silent as to the specific nature/design of the equipment itself, and appellant's request for a review of playground equipment design is highly unusual.! The fact is simple here - LMC will have to comply with all building code and design level standards for construction of all recreational amenities, including the tot lot.
IV. The Housing Accountability Act Applies to the Project The project is a "housing development project" subject to the HAA. The HAA has the express intent of responding to the statewide housing crisis by increasing housing supply. To 16 The MCC general description of "children's playground equipment" also does not include specific, "objective" design standards, as that term is defined by the HAA. To our knowledge, the City has not required this specific level of amenity review (location and design of swings, playground structure, slides) for any entitlements. 103611\17583008v1
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accomplish its purpose, the HAA imposes strict limitations on a local government's ability to deny or reduce the density of housing development projects. Fundamentally, the HAA requires local governments to approve housing projects that are consistent with existing objective general plan, zoning, and other development standards, unless it makes specific findings. (California Renters Legal Advocacy & Education Fund v. City of San Mateo ("CaRLA") (2021) 68 Cal.App.Sth 820, 83l.) The HAA's mandates are to be taken seriously and "local agencies and courts should interpret them with a view of giving them the fullest possible weight to the interest of, and the approval and provision of, housing." (Id.)
Here, the LMC Project is consistent with all applicable objective standards. The City's staff report to the Planning Commission recognized that the project is consistent with all applicable objective standards and, therefore, the project "cannot be denied without a potential HAA violation." (Planning Commission March 27, 2024 Staff Report at p. 14 [emphasis added].) An agency that violates the HAA is subject to potential significant penalties, including a minimum fine of $10,000/unit and attorney's fees, with penalties increase for agencies that are found to have acted in bad faith. (Govt. Code § 65589.5(k).) To deny or condition the project to be constructed at a lesser density, the City Council would have to find that the project, as proposed, would have a specific, adverse impact on the public health or safety. (Govt. Code § 65589.5(i)(1).) Importantly, the HAA expressly recognizes that "that the conditions that would have a specific, adverse impact upon the public health and safety ... arise infrequently." (Govt. Code § 65589.5(a)(3).) If an agency does resolve to find a specific, adverse impact, its determination must be supported by a "preponderance of the evidence" in the administrative record. (Govt. Code § 65589.5(j)(1).) A preponderance of the evidence is a much higher standard than the substantial evidence standard, the usual standard applied to an agency's quasi-judicial findings. A "preponderance of the evidence" requires the agency to weigh all the evidence and conclude that the evidence of a specific, adverse impact outweighs evidence to the contrary. (Harris v. Oaks Shopping Center (1990) 7 Cal.App.4th 206, 209.) The City has already concluded that the project is consistent with all applicable objective standards and there is no evidence of a health and safety impact. To the extent the appellant is implying that such an impact exists, the appellant presents no supporting evidence.
An agency that violates the HAA is subject to potential significant penalties, including a minimum fine of $10,000/unit and attorney's fees, with penalties increase for agencies that are found to have acted in bad faith. (Govt. Code § 65589.5(k).) V. Conclusion
The foregoing analysis demonstrates a number of factual conclusions. First, the City Council's consideration of the appeal itself appears to violate principles of due process and fairness because the appellant failed to adhere to the requirements of the MCC. LMC requests that the City Council refuse to consider the appeal on that singular basis. 103611117583008v1
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Second, the substantive assertions of the appeal are without merit. There is no LOS impact that result from the project and the appellant's attempts to manufacture a traffic impact, and saddle the project with improvement obligations far beyond constitutional limitations, are prohibited by law. Finally, the analysis of the IS/MND complies with the substantive and procedural requirements of CEQA. The appellant's arguments for inclusion of additional traffic analysis based on LOS is fundamentally and legally inconsistent with CEQA. For those reasons, should the City Council resolve to hear the appeal, LMC respectfully requests that the City Council deny the appeal and uphold the decision of the Planning Commission.
Sincerely,
Cox, Castle & Nicholson LLP
Christopher Burt
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