Scott W. Carlson, Partner
Francisco J. Nicholas, Retired
Richard A. McDonald , Of Counsel
March 11, 2022
Mayor Victor Gordo
Vice-Mayor Andy Wilson &
RECEIVED
2022 HAR I I PH 12: I 7
CARLSON & NICHOLAS
Attorneys at Law
301 E. Colorado Blvd, Suite 320
Pasadena, California 9110 l
(626) 356-4801
www .carlsonnicholas.com
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[email protected]
Frank@carlsonnicholas .com
RMcDonald@carlsonnicholas .com
Honorable Members of the City Council Tyron Hampton, John J. Kennedy, Steve Madison, Gene Masuda, Jessica Rivas, and Felicia Williams Pasadena City Hall
100 North Garfield A venue
Pasadena, CA 91101
Re: Item 17: 1820 Linda Vista Avenue {Hillside Development Permit #6838) Dear Mayor, VicewMayor, and Honorable Members of the City Council:
Our finn represents the applicant Matthew Feldhaus ("Applicant") in this appeal by his neighbor to the south of his property on Linda Vista Avenue. Specifically, the neighbor is appealing the Board of Zoning Appeals' November 18, 2021 unanimous decision to approve Hillside Development Permit #6838, with the addition of two additional conditions of approval requiring Matthew to (1) reduce the size ofhis proposed residence by 37 square feet to comply with the base Neighborhood Compatibility analysis threshold of 3,816 square feet; and, (2) lower the height of the garage roofline by 18 inches to avoid any potential view obstruction to the neighbor to the maximum extent feasible.
The City's Planning Department has consistently supported the proposed project in their staff reports because of its compliance with the City's codes and standards. Several neighbors and the former longtime homeowner of the property also have come out in support of the proposed project (both in writing and verbally at the hearings).
You should hear from those neighbors and the former homeowner in writing before or at the appeal hearing on Monday night. In light of that support, Staff's recommendation, and the BZA's additional conditions of approval, we therefore ask that you deny the appeal accordingly. 03/14/2022
Item 17
Letter to City Council
City of Pasadena
March 11, 2022
I. INTRODUCTION
The proposed project is located at 1820 Linda Vista Avenue (the "Property"), which is a lot with over 20,000 square feet. The Property is located within the RS-4-HD (Single-Family Residential, 0-4 dwelling units per acre, Hillside Overlay District) zoning district. The Property descends east down a hillside toward the Arroyo Seco. The site topography is generally flat at the location of the existing and proposed improvements, and the average slope across the site is 29 percent.
Originally, the application for a Hillside Development Permit ("HDP") proposed a residence that exceeded the maximum allowable Neighborhood Compatibility floor area of3,816 square feet by 844 square feet. Under Code Section 17.29.080.G.a, therefore, a finding that, "No additional view impacts will occur to neighboring properties as a result of granting additional square footage" was required to be made in addition to the findings required under 17 .29 .080.F .
On June 29, 2020, the Applicant submitted his HDP application . On November 19, 2020, the City deemed the application complete.
On January 6, 2021, the Zoning Hearing Officer ("HO") determined that the all of findings could be made as staff had shown. Shortly thereafter, on April 22, 2021, the BZA disagreed and determined that the finding under 17.29.080.G for additional floor area could not be made. Rather than re-design the project to orient the addition closer to Linda Vista A venue and drastically alter the character of the street and neighborhood , or pursue other State law options, Matthew appealed that decision to you.
On October 18, 2021, you remanded the matter back to the BZA so that he could address the concerns raised by the BZA by eliminating the extra square footage. Further, since the proposed residence already was located on the interior and rear of the lot, it reduced any view impacts to the maximum extent feasible thus complying with the Code.
Specifically, the neighbor to the south has a two-story home that exceeds 5,000 square feet with unobstructed views from all protected places. 1 Nonetheless, Matthew revised the project and the BZA unanimously approved it on November 18, 2021.
Last, there are no cumulative impacts, no unusual circumstances that create a reasonable possibility that the project may result in a significant environmental impact, and no historical resource at issue in this case. The proposed project thus is exempt from environmental review pursuant to Categorical Exemption 1 of the California Environmental Quality Act ("CEQA") Guidelines.
As a result, given the revisions and the facts that support the findings by the BZA, we respectfully request that you uphold and affirm the BZA's decision and deny the appeal.
1. We understand that staff requested access to the neighbor's interior to verify his claims of such an obstruction , but the neighbor refused to grant such access. 2 Letter to City Council
City of Pasadena
March 11, 2022
U. FACTUAL BACKGROUND
A. Proiect Description and HOP Application
With the two new conditions imposed by the BZA, the proposed project entails the construction of a 1,364 square-foot addition to the existing 2,452 square-foot, single-story single family residence at the Property, with an attached 754 square-foot garage, and the removal of the attached 439 square-foot carport (the, "Project"). The addition results in a 3,816 square-foot residence with an attached 754 square-foot garage. A HOP is required for any addition exceeding 500 feet.
B. Concerns Expressed by Adiacent Neighbor and Neighborhood Association, the Starrs Recommendation to Approve the HDP, and Hearing Officer's Approval of the HDP
On December 6, 2020, Kevin Kang, a neighbor residing at 1812 Linda Vista Avenue, contacted City staff with questions about the Project. On December 15, 2020, Applicant virtually met with City staff and Mr. Kang to discuss the Project and the HOP process. No objections to the proposed project were raised by Mr. Kang at that meeting.
Thereafter, on January 6, 2021, the Zoning Hearing Officer (HO) considered and approved the HDP at its regularly noticed hearing. At that hearing, the City staff report analyzed and concluded that all of the findings required to approve the Project could be made and that the Project was exempt from CEQA review. Based upon its analysis, Staff recommended approval of the HOP application with additional conditions of approval to address the neighbor's and other concerns raised at the hearing. The primary concerns were about privacy impacts on abutting properties, potential impact on protected views, the proximity of the addition to the top edge of the slope, grading impacts, and the alleged incorrect application of a CEQA exemption.
Further, the applicant provided a brief presentation. Three public comments in opposition to the Project were submitted to the HO, including two from the same attorney.
Specifically, the neighbor to the south of the Property opposed the Project, citing privacy as the main concern. The Hearing Officer acknowledged the concerns and discussed them in relation to the City staff's recommendation. At the conclusion of the public hearing and after public testimony, the Hearing Officer approved the HDP with conditions and adopted the environmental determination. 2
2. "An agency's determination that a project falls within a categorical exemption includes an implied finding that none of the exceptions identified in the Guidelines is applicable. The burden then shifts to the challenging party to produce evidence showing that one of the exceptions applies to take the project out of the exempt category." San Francisco Beautiful v.
City and Cnty. of San Francisco, 226 Cal. App. 4th 1012, 1022-23 (2014) (citation omitted). 3 Letter to City Council
City of Pasadena
March 11, 2022
On January 11, 2021, the HO notified the Applicant in writing that that the HOP was approved ("HO January 11 Letter''). HO January 11 Letter, at 1. The Specific Findings for HOP # 6838 expressly stated, among other things, that:
• "As analyzed, the project will meet all applicable development standards for the RS-4-HD zoning district and Hillside Overly such as setbacks, lot coverage and floor area, height and neighborhood compatibility." Id. at 3 (emphasis added). • "The proposed addition to the existing single-story residence complies with all the development standards set forth in the City's Zoning Code . ... the project wouul be consistent with General Plan objectives and policies." Id. (emphasis added). • "The proposed addition will be constructed in such a manner as to minimize impacts to surrounding property owners . . .. the proposed project will not be detrimental to the public health, safety, or welfare of persons or properties within the surrounding neighborhood." Id. at 4 (emphasis added). • "The project is not located on the top of any prominent ridgelines and will not block protected views from neighboring properties. The proposed project will meet the guidelines related to exceeding the Neighborhood Compatibility requirements ." Id. (emphasis added).
• "The size of the proposed project (not including the proposed garage) is 4,660 square feet, which exceeds the maximum allowable Neighborhood Compatibility floor area of 3,816 square feet by 844 square feet. However, the additions are designed not to impact views, be in compliance with the ridgelines protection standard, and have a floor area ratio consistent with the properties within a 500 foot radius .. . . Furthermore, as designed, tl,e placement of the proposed additions would not impede the protected view of an adjoining property." Id. (emphasis added).
• "The proposed two-story addition to the existing single-story dwelling will be located towards the interior of the lot away from the public rights-of-way and the most steeply sloping portions of the site. As a result, the project requires minimal changes to the grading, drainage, and la,idscaping." Id. at 5 (emphasis added).
C. Neighbor's Appeal to the BZA, Staff's Recommendation to Approve the HDP On January 19, 2021, Jin Ser Park, the abutting property owner at 1812 Linda Vista Avenue ("Objecting Neighbor"), filed an appeal of the HO's decision to approve HDP # 6838 on the grounds that the Project is an out of scale development, fails to consider view rights, presents unusual circumstances, has cumulative impacts, and is a threat to historic/natural resources . 4 Letter to City Council
City of Pasadena
March 11, 2022
On April 21, 2021, the LV AA wrote to the BZA, to reiterate its concerns that were set forth in its January 5, 2021 letter to the HO, and to further explain its complaints about the project description, reference to a deck and minimal grading, and excess neighborhood compatibility square footage.
In the Staff Report to the BZA dated April 22, 2021 ("April 22 Staff Report), City staff recommended that the BZA: (1) adopt the Environmental Determination that the Project is exempt from CEQA pursuant to CEQA Guidelines Section 153013 (Class 1, Existing Facilities), recognizing that there are no features that distinguish the Project from others in the exempt class and therefore there were no unusual circumstances, and (2) uphold the HO's January 6, 2021 decision to approve the HDP based on the City staffs findings and conditions. April 22 Staff Report, at 20.
Further, the April 22 Staff Report found that the Project "meets all applicable development standards required by the Zoning Code for the RS-4-HD zoning district and the additional development standards required within the Hillside Overlay District including the Neighborhood Compatibility guidelines of the Hillside Ordinance ." Id. (emphasis added).
Furthermore, "'{e]xisting views and privacy would be maintained after t/,e project. It is anticipated that the proposed location would not be detrimental or injurious to surrounding properties or improvement ." Id. (emphasis added) . Therefore, ''based on staff's analysis, as conditioned, [the Project] would be compatible with the adjacent land uses and would not result in any adverse impacts to the surrounding area with the recommended conditions of approval." Id. ( emphasis added).
The April 22 Staff Report also found that all of the requisite findings for a HOP approval could be made (id. at 20), and specifically noted the following:
• With respect to neighborhood compatibility, the Project's 4,660 square feet of floor area (excluding the garage) exceeds the Neighborhood Compatibility threshold by 844 square feet. However, pursuant to Municipal Code § 17.29.080.G. guidelines are available for exceeding Neighborhood Compatibility floor area. The Project complies with the criteria for exceeding it because: (1) the Project has been designed to avoid blocking culturally significant structures, downslope views, prominent ridgelines, and/or the horizon line from neighboring properties; and (2) the Project is in scale with the context and character of the development in the neighborhood. Id. at 6-7.
3. Specifically, Section 15301 exempts additions to existing structures, provided that the addition will not result in an increase of more than 10,000 square feet when the project is in an area where all public services and facilities are available to allow for maximum development permissible in the General Plan, and the area in which the project is located is not environmentally sensitive. The Project did not exceed this threshold. April 22 Staff Report, at 1, 15-16 .
5 Letter to City Council
City of Pasadena
March 11, 2022
• With regard to the deck, "[b ]oth the upper floor and lower floor addition s are placed to the rear of the property and are set in such an area and designed in a manner that visibility from off the property would be limited and that any protected view corridors are maintained for adjacent properties." Id. at 8 {emphasis added) . Furthermore , the "additions are setback more than 100 feet from the top edge of the Arroyo Seco Slope Bank, and more than 250 feet from the rear property line, thereby preserving the privacy of surrounding lots to the north, south, a11d east." Id. (emphasis added) .
• With regard to view protection for Objecting Neighbor's property, ''views from within the interior of the adjacent two-story structure at 1812 Linda Vista Avenue are limited to portions of the neighboring project site 's existing roof's ridgeline and the sky above. Since the proposed project will continue to maintain the general height of the existing residence , these existing view conditions would not be impacted." Id. (emphasis added). After the Applicant installed temporary silhouette (story poles) on the Property , the City staff concluded that Project ''would not reasonably impact any protected views from adjacent properties.
Although portions of the silhouette are visible from various vantage points, there is no protected view obstruction . In addition, portions that are visible, are not reasonably centered directly in the view of the abutting properties , consistent with the intent of the Zoning Code. Therefore, staff has determined the project minimizes view impacts and is co11siste11t with the view protection sta,idards of the Zoning Code ." Id. at 9 (emphasis added).
• With regard to geotechnical investigation, Irvine Geotechnical, Inc. excavated seven test pits on the project site and concluded that the grading and proposed structure will be safe against hazard from landslide, settlement, or slippage and the Project will have "no adverse effect on the geologic stability of the adjacent properties", including the consideration of constructing a pool in the proposed location, "provided recommendations are followed." Id. (emphasis added).
Furthermore, pages 11 through 18 of the April 22 Staff Report expressly addressed in great detail each of the objections raised by Appellant and the LV AA, as summarized below:
• Regarding the claim that the Project is an out of scale development, the City staff stated that the claim "does not relate to how staff analyzes neighborhood character as part of the required neighborhood compatibility analysis ." Id. at 11. As summarized on pages 6-7 of the April 22 Staff Report , projects subject to a HDP are to consider the character and scale of the existing development in the neighborhood of the lots located within a 500-foot radius of the site, and for lots larger than 20,000 square feet, the review authority may approve additional floor area above the maximum permitted by Neighborhood Compatibility after reviewing site conditions and compliance with Hillside District standards. Here, the City staff was able to make the findings to support an approval of additional floor area because: the Project was in compliance with the neighborhood 6 Letter to City Council
City of Pasadena
March 11, 2022
compatibility analysis and the maximum FAR allowances for the Property , and the Project is in scale with the context and character of the development. Id. at 11-12 . Objecting Neighbor's focus on the average building size thus was misplaced because the median building size is the relevant criteria. Id. at 11-12 .
Last, Objecting Neighbor did not provide substantial evidence in support of the claim that the Project was not consistent with the General Plan. Id. at 12-13. • Regarding the claim that the City failed to consider view rights, the City staff found that the proposed location of the addition "would not block views from neighbori11g properties that the City would otherwise protect." Id. at 14 ( emphasis added). The April 22 Staff Report reiterated its statements from pages 8-9 of the same report , specifically addressing views from 1812 Linda Vista (Objecting Neighbor's property) to reach the conclusion that the Project would not impact protected views from that residence. Id. at 14-15. City staff took photos from the Appellant's property towards the location of the proposed addition and concluded that there were no view obstructions . Photos were presented as part of the staff report .
• Regarding the claim that unusual circumstances apply , the City staff confirmed the Project is exempt from environmental review under CEQA Guidelines because there are no features that distinguish the Project and therefore there are no unusual circumstances. Id. at 15. The full scope of the work and the modification to the existing residence were considered and were determined to meet the standards of the Class 1 Categorical Exemption . Id. at 16. The April 22 Staff Report reiterated its analysis from page 2 of the same report, as well as the HO's addendum, 4 in support of the recommendation that the Project is exempt from CEQA. Id. at 16-17 .
• Regarding the claim that there are cumulative impacts , the City staff found that there was no evidence of unusual circumstances and cited to the HO's addendum as evidence that "several homes have been safely built, and safely expanded, on the east side of Linda Vista Avenue, going back several decades ." Id. at 17. The property owners directly adjacent to the north and the west have existing pools and decks that face downslope to the east without any historical issues . The City enforce s municipal codes that "ensure the safety of new development ; as verified
4. In connection with the appeal to the BZA, the HO submitted an addendum dated March 20, 2021 ("HO March 20 Addendum") addressing the issues raised by Objecting Neighbor .
With respect to the neighborhood compatibility calculations, the HO noted that Objecting Neighbor sought to exclude the two largest homes and to exclude vacant lots from the analysis, but that the City 's code, policies, and procedures do not allow individuals to be selective about which lots are included in the Neighborhood Compatibility calculations. HO March 20 Addendum, at 3. The HO concluded that Objecting Neighbor had not provided a sufficient basis upon which to overturn the January 6, 2021 decision to approve the HDP and that the appeal should be denied . Id.
7 Letter to City Council
City of Pasadena
March 11, 2022
through the City's grading permit, demolition permit, and building permit plan check review process; and through a series of on-site inspections by city staff during site grading, demolition and construction." Id.
• Regarding the claim that there is a threat to historic/natural resources, the City staff pointed to the Design & Historic Preservation Section's review of the Property and determination that the Property was substantially altered with an addition of enclosed floor area, an open courtyard, and a carport, in 1965 and was not eligible for historical designation. Id. Also, the City staff cited to the HO's addendum to highlight several conditions of approval which address the safety concerns raised by Appellant. Id. at 17-18.
At the April 22, 2021 hearing, the staffs Powerpoint presentation also concluded that Objecting Neighbor's claims were unsubstantiated due to lack of supporting facts or evidence and highlighted the following points, among others:
• There was "no merit to the argument that a smaller house being proposed on an immediately adjacent lot is 'out of scale.'"
• The City does not protect Objecting Neighbor's views across the subject Property site.
• That the Property did not include features that would preclude the Project from qualifying for a categorical exemption under CEQA.
• Two of the alleged ''unusual circumstances" (steepness of the lot and location adjacent to open space in a large liquefaction zone) apply to many pmperties on the East side of Linda Vista Avenue . Objecting Neighbor did not provide evidence showing that the property being adjacent to a liquefaction zone is "in any way, unique or unusual." The subject property is not considered to be in a liquefaction zone.
• The geotechnica] report did not find any significant concerns with the Project and includes recommendations for continued slope stability. The Project, including the proposed pool and deck , could be safely built-in light of the permitting process, plan-check review process, and on-site City inspections. • The Design & Historic Preservation Section found that the Property was substantially altered in 1965 and the house at the Property was not eligible for historical designation. The Project qualifies for the specified CEQA categorical exemption and does not meet the eligibility requirements for the exception clause because the Project would not cause a substantial adverse change in the significance of a historic resource.
8 Letter to City Council
City of Pasadena
March 11, 2022
• Objecting Neighbor 's contention that Applicant was attempting to piecemeal the project and/or hide the Project from public input was based on emails taken out of context. Indeed, Applicant simply inquired about options with regard to the proposed project , and was advised to comply with the HDP rules and rules regarding ADUs. ADUs are subject to ministerial review , allowed by-right, and are not subject to CEQA. The City staff found that there was no project segmentation or serial permits .
III. THE HDP SHOULD BE APPROVED FOR THE REASONS SET FORTH IN THE
BZA'S DECISION LETTER BECAUSE THE APPLICANT'S REVISIONS TO
THE PROJECT ELIMINATE ANY VIEW OR OTHER ISSUES
The Applicant's plans dated September 30, 2021 ("Revised Plans") demonstrate that the Project has been revised to remove the 844 square feet in excess Neighborhood Compatibility floor area (the, "Revised Project"). As such, the Revised Plans show that the proposed FAR is
7.7%, below both the Median FAR of 8.90% and the average FAR of 12%. Id. With the BZA condition of approval , the square footage also does not exceed the maximwn allowed either. As a result, the Revised Project no longer calls for any excess Neighborhood Compatibility floor area.
Last, the revised Project continues to comply with Section 17.29.060.G of the Code, which provides as follows :
View protection . A proposed structure shall be designed and located so that it avoids blocking views from surrounding properties to the maximum extent feasible , as determined by the review authority, and including , but not limited to, consideration of the following:
I . The feasibility of relocating the proposed structure to another part of the site;
2. The feasibility of modifying the massing of the proposed structure such that views from surrounding properties would not be impacted; and
3. The feasibility of minimizing architectural features that may intrude upon views from surrounding properties.
1. New structures and tall landscaping shall not be centered directly in the view of any room of a primary structure on a neighboring parcel. Views shall be considered from windows of any room in the primary structure. New structures shall avoid blocking the following from any room of a main dwelling on a neighboring property :
1. Culturally significant structures such as the Rose Bowl, Colorado Street Bridge, City Hall, etc.;
2. Downslope views of the valley floor;
9 Letter to City Council
City of Pasadena
March 11, 2022
3. Prominent ridgelines; and/or
4. The horizon line.
Views of open sky, exisdng foliage , private yards, and existi11g structures on surroundi11g properties shall not be taken into consideration by the review authority.
Municipal Code§ 17.29.060.G (emphasis added). As explained above , the proposed residence already is located on the interior and rear of the lot, and thus already has reduced any view impacts to the maximum extent feasible .
Last, the add itional conditions of approval imposed by the BZA to ( 1) reduce the size of his proposed residence by 37 square feet to comply with the base Neighborhood Compatibility analysis threshold of 3,816 square feet; and, (2) lower the height of the garage roofline by 18 inches are acceptable to the Applicant.
IV. THE PROJECT IS CA TEGORJCALL Y EXEMPT UNDER CEQA GUIDELINES Contrary to what the neighbor may argue, the Revised Project is categoricall y exempt as explained in the Staff Report. The following supports that conclusion .
A. CEOA Categorical Exemptions from Environmental Review CEQA applies only to activities that meet the definition of a "project" 5 under the statute and its implementing administrative regulations. May v. City of Milpitas , 217 Cal. App. 4th 1307 , 1319-20 (2013). Under CEQA, a project is any activity undertaken, assisted, or authorized by a public agency that may have a significant effect on the environment. May, 217 Cal . App. 4th at 1320. "Significant effect on the environment" means "a substantial, or potentially substantial, adverse change in the environment." Cal. Pub . Res . Code§ 21068 .
The first step in CEQA analysis is a determination whether the activity in question amounts to a "project." May, 217 Cal. App. 4th at 1320. Once a lead agency detennines that an activity falls within the statutory definition of a "project," it must then detennine whether the project is nevertheless exempt from CEQA. Id. CEQA authorizes the adoption of regulatory exemptions for classes of projects. Id. at 1321. The CEQA Guidelines refer to them as
5. CEQA defines "project" to mean: "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: (a) An activity directly undertaken by any public agency. (b) An activity undertaken by a person which is supported , in whole or in part , through contracts, grants, subsidies, loans , or other forms of assistance from one or more public agencies. (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies ." Cal. Pub. Res. Code § 21065.
Letter to City Council
City of Pasadena
March 11, 2022
categorical exemptions and they are set forth in the CEQA Guidelines. Id. ( citing to CEQA Guidelines,§ 15300 et seq.). There is 1 categorical exemption applicable to the Project:
Categorical Exemption 1 pursuant to Cal. Code Regs. tit. 14, § 15301 {for existing faciHties).6 "An agency's detennination that a project falls within a categorical exemption includes an implied finding that none of the exceptions identified in the Guidelines is applicable. The burden then shifts to the challenging party to produce evidence showing that one of the exceptions applies to take the project out of the exempt category." San Francisco Beautiful, 226 Cal. App . 4th at 1022-23. The CEQA Guidelines specify six exceptions to the categorical exemptions. Cal. Code Regs. tit. 14, § 15300.2.
The Objecting Neighbor may assert that three potential exceptions apply : (I) exemptions are inapplicable where the "cumulative impact of successive projects of the same type in the same place, over time is significant"; (2) categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a "significant effect on the environment due to unusual circumstances," and (3) categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource." Cal. Code Regs. tit. 14, § 15300.2, subsections (b), (c) & (f).
For the reasons explained below, none do, nor can the requisite showing be made.
B. There Is No Cumulative Impact of Successive Proiects As explained above, the City staff has already considered and rejected the notion that there is any cumulative impact of successive projects at the Property. As evidenced by the City staff's Powerpoint presentation for the April 22, 2021 BZA hearing and a review of the emails attached as Exhibit II to Objecting Neighbor's letter dated April 21, 2021, Applicant simply inquired about options with regard to the proposed project via e-mail correspondence with the City staff, and was advised by the City to comply with the HDP rules . The City staff found that there was no project segmentation or serial pennits . Therefore, there is no merit to any allegation of improper piecemealing of projects at the Property.
C. There Are No Unusual Circumstances
One of the exceptions to the categorical exemptions arises ''where there is a reasonable possibility the activity will have a significant environmental effect 'due to unusual circumstances.' (Guidelines,§ 15300.2 , subd . (c).)" San Francisco Beautiful, 226 Cal. App . 4th
6. "Class 1 consists of the operation, repair, maintenance, pennitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment , or topographical features, involving negligible or no expansion of existing or fonner use.
The types of"existing facilities" itemized below are not intended to be all-inclusive of the types of projects which might fall within Class 1. The key consideration is whether the project involves negligible or no expansion of use." Cal. Code Regs. tit. 14, § 15301.
11 Letter to City Council
City of Pasadena
March 11, 2022
at 1023. The CEQA Guidelines do not define the term "unusual circumstances," nor what is required to prove it. See, e.g., id. In Berkeley Hillside, therefore, the California Supreme Court first clarified that a party must show an unusual circumstance by demonstrating that the project has some characteristic or feature that distinguishes it from others in the exempt class. Berkeley Hillside Preservation v. City of Berkeley, 60 Cal.4th 1086, 1105 (2015) . 7 In so doing, the Supreme Court held that the "unusual circumstances" exception can only be used to preclude the use of a categorical exemption if an "unusual circumstance" differentiates the project from the ge11eral class of similarly situated projects, and, if so, when that unusual circumstance creates a "reasonable possibility" that the project may result in a "significant environmental impact." Id. at 1105 (emphasis added). The Supreme Court expressly rejected the appellate court's interpretation of the "unusual circumstances" test, finding that "the Court of Appeal erred by holding that a potentially significant environmental effect itself constitutes unusual circumstances ." Id. at 1104.
Following the Supreme Court's decision, the First District Court of Appeal filed its opinion affirming the trial court's judgment, and later ordered its opinion to be published.
Berkeley Hillside Preservation v. City of Berkeley, 241 Cal. App. 4th 943 (2015). 8 The later Court of Appeal opinion states that a party challenging a categorical exemption decision by seeking to establish the unusual circumstances exception cannot prevail merely by providing substantial evidence that the project may have a significant environmental effect. Id. at 952 .
Rather, such a party must first establish an unusual circumstance by distinguishing the project from others in the exempt class. Id.
Indeed, "a challenger must prove both unusual circumstances and a significant environmental effect that is due to those circumstances. In this method of proof, the unusual circumstances relate to some feature of the project that distinguishes the project from other features in the exempt class." Citizens for Envtl. Responsibility v. State ex rel. 14"1 Dist. Agric.
Ass 'n., 242 Cal. App. 4th 555,574 (2015) (citing to Berkeley Hillside, 60 Cal . 4th at 1105) ( emphasis added) . "Once an unusual circumstance is proved under this method, then the 'party need only show a reasonable possibility of a significant effect due to that unusual circumstance."' Id. ( emphasis added) . Anyone who claims the proposed project is not entitled
7. In Berkeley Hillside, the applicant sought a hillside permit for a 6,478-square-foot house with an attached 3,394-square-foot to-car garage, covering 16% of a steeply sloped {about 50% grade) lot in a heavily wooded area on Rose Street in Berkeley. Berkeley Hillside, 60 Cal. 4th at I 093. The trial court denied the petition for a writ of mandate by the neighborhood group holding there were no unusual circumstances, but the Court of Appeal reversed and granted it.
Id. at 1096. The Supreme Court then took up the issue of how the unusual circumstances exception to categorical exemptions should be analyzed and applied by lead agencies such as the City. Id. at 1097.
8· On February 3, 2016, the California Supreme Court denied further review of the case, thus letting the Court of Appeal's decision stand, i.e., there were no unusual circumstances that precluded the use of the categorical exemption for the proposed residence in Berkeley Hillside. 12 Letter to City Council
City of Pasadena
March 11, 2022
to a categorical exemption, therefore, must prove both parts of this two-pronged test and cannot prevail simply by claiming that the project may have a significant environmental effect.
Whether a project presents unusual circumstances is thus a factual inquiry subject to the traditional substantial evidence standard of review. Berkeley Hillside, 60 Cal. 4th at 1114.
Under CEQA , "[s]ubstantial evidence includes facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. [Citations] . It does not include '[a]rgument, speculation, unsubstantiated opinion or narrative, [or] evidence which is clearly inaccurate or erroneous ... .' [Citations.]" Joshua Tree Downtown Bus. All. v. Cnty. of San Bernardino , 1 Cal.
App. 5th 677,690 {2016} (emphasis added). "Complaints, fears, and suspicions about a project's potential environmental impact likewise do not constitute substantial evidence." Id. "Members of the public may ... provide opinion evidence where special expertise is not required . . ..
However , "[i]nterpretation of technical or scientific information requires an expert evaluation.
Testimony by members of the public on such issues does not qualify as substantial evidence .... "[I]n the absence of a specific factual foundation in the record, dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence." Id. at 690-91 (citations omitted).
To preclude the use of the categorical exemptions , any opponent of a project must show that the "unusual circumstances exception" to the exemption somehow applies, which Objecting Neighbor cannot do under California law. As the record reflects, there is no evidence, let alone substantial evidence , of any unusual circumstance because there are no features that distinguish the Project from the general class of similarly situated projects. April 22 Staff Report, at 15, 17,
20. The proposed addition to the existing single-story residence complies with all the development standards set-forth in the City's Zoning Code, as stated by the HO and the City staff. HO January 11 Letter, at 3. The full scope of the work and the modification to the existing residence were considered and were determined to meet the standards of the Class 1 Categorical Exemption . April 22 Staff Report, at 16.
In addition, "several homes have been safely built, and safely expanded, on the east side of Linda Vista Avenue, going back several decades ." Id. at 17; HO March 20 Addendum , at 2.
None of the purported "unusual circumstances" identified by Objecting Neighbor was actually "unusual, unique, or specific to" the subject Property. HO March 20 Addendum , at 2. "Most, if not all of these 'unusual circumstances' apply, as well, to [Objecting Neighbor's] existing home." Id. Indeed, there is no evidence documenting how the existence of the liquefaction zone adjacent to the Property is "in any way, unique or unusual." HO March 20 Addendum, at 2.
As such, because there is no evidence of any unusual circumstance based on the features of the project , let alone substantial evidence , the City Council does need not to address the second prong of the test, i.e., whether there is a reasonable possibility of a significant environmental impact as a result of unusual circumstances . Citizens, 242 Cal. App. 4th at 588, n.24. ("A negative answer as to the question of whether there are unusual circumstance s means the exception does not apply" and the use of the categorical exemption is affirmed). Even if the City Council chose to address it, there is no showing that any purported unusual circumstances create a "reasonable possibility" that the Project may result in a "significant environmental 13 Letter to City Council
City of Pasadena
March 11, 2022
impact." This is true because the HO imposed conditions of approval that address safety concerns raised by the Objecting Neighbor. April 22 Staff Report, at 17-18; HO January 11 Letter, Attachment B. The City enforces municipal codes that "ensure the safety of new development; as verified through the City's grading permit, demolition permit, and building permit plan-check review process; and through a series of on-site inspections by city staff during site grading, demolition and construction." April 21 Staff Report, at 17. Indeed, any purported environmental impact relating to soil displacement , stress on the hillside and liquefaction zones, is not only speculative and unsupported by expert opinion, but the "merits of the claim are questionable." HO March 20 Addendum, at 2. The Geotechnical Engineer also provided additional written responses addressing the neighbor's concerns and showing there is no merit to them .
D. There Is No Historical Resource on the Property
The City's Design & Historic Preservation Section determined that the Property was substantially altered with an addition of enclosed floor area, an open courtyard, and a carport, in 1965 and was not eligible for historical designation. April 22 Staff Report, at 17. There is no evidence to support Objecting Neighbor's claim that the house currently on the Property has existed since 1948 in its present form. HO March 20 Addendum, at 2. As a result, no historical resource is at issue that would make a categorical exemption under CEQA inapplicable.
V. CONCLUSION
All of the requisite findings for the HDP can be made as determined by the BZA in its unanimous decision on November 18, 2021 decision. Further, the Class 1 Categorical Exemption under the CEQA Guidelines applies and there are no cumulative impact, unusual circumstances, or historical resource exceptions to it. Accordingly , the Project is exempt from environmental review and the Applicant requests that the City CounciJ affirm the BZA's decision and approve the HDP.
Sincerely,
Richard A. McDonald, Esq.
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