ANGEL LAW
2601 Ocean Park Blvd., Suite 205
Santa Monica, CA 90405-5269
T e l : ( 3 1 0 ) 3 1 4 - 6 4 3 3
Fax: (310) 314-6434
angellaw.com
February 21, 2022
Honorable Mayor Sue Himmelrich
and Members of the Santa Monica City Council
1685 Main Street, Room 209
Santa Monica, California 90401
Via Email to [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Re: 02-22-2022 Santa Monica City Council Meeting (Agenda Item 6.A -- Carlthorp School Expansion Project at 438 San Vicente Blvd.)
Dear Mayor Himmelrich and Members of the Santa Monica City Council:
Appellant Steven Salsberg has retained Angel Law to submit this letter on behalf of himself, all similarly situated residents of Santa Monica and all Santa Monica citizens interested in or benefitting from City Council compliance with the Ralph M. Brown Act (Brown Act; Gov. Code § 54950 et seq.), a statute intended “to facilitate public participation in all phases of local government decisionmaking. . . .” (San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167, 1176, emphasis added; internal quotation marks & citations omitted.)
On two separate and independent grounds, we request that the hearing on the Carlthorp School expansion project be taken off calendar and re-noticed. First, the February 22, 2022 hearing has been noticed in violation of the Brown Act. Second, staff’s recommended exemption of the project from environmental review under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) violates CEQA and the State CEQA Guidelines. (Cal. Code Regs., tit. 14, § 15000 et seq.) Our request serves to enable the City of Santa Monica (City) to properly notice the appeal hearing on the Carlthorp School expansion project and to thus proceed in the manner required by the Brown Act. It will further Hon. Mayor Himmelrich and Members of the City Council
February 21, 2022
enable the City to proceed consistent with CEQA and the State CEQA Guidelines by allowing staff to prepare an initial CEQA study to determine whether a negative declaration, a mitigated negative declaration, or a full-blown environmental impact report is appropriate for the development and uses proposed. The proposed CEQA exemptions are not.
Brown Act Violation
It is of course a central and long-standing requirement of the Brown Act that the legislative body of a local government post, at least 72 hours before a meeting, an agenda containing a brief general description of each item of business to be transacted at the meeting. (Gov. Code § 54954.2, subd. (a)(1).) Government Code section 54954.2, subdivision (a)(1), in pertinent part, states:
“At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. . . .
The agenda . . . shall be posted in a location that is freely accessible to members of the public and on the local agency’s Internet Web site. . . .”
(See also id., subd. (a)(2).) Where the City’s elected legislative body, the City Council, is called upon to make a determination or finding concerning CEQA or the State CEQA Guidelines along with the approval of a development permit, such as a discretionary conditional use permit (CUP), the posted agenda must provide public notice of both the proposed determination concerning the development permit and the proposed determination concerning CEQA. (See San Joaquin Raptor Rescue Center, supra, 216 Cal.App.4th at pp. 1169-1170, 1176-1179.)
Here, the agenda for the City Council regular meeting of February 22, 2022 describes the item of business at issue (Item 6.A) as follows:
“Appeal of Planning Commission Approval of Conditional Use Permit and Minor Modification for Expansion of Carlthorp School, 438 San Vicente Blvd New item received 2/18/2022 “Recommended Action
“Staff recommends the City Council deny Appeal 20ENT-0275, appealing the Planning Commission’s approval of Conditional Use Permit 19ENT-0250 and Minor Modification 20ENT0066 for a 7,898 square foot expansion to the Carlthorp School, rooftop playcourt, and 0.29% increase to the allowable ground floor parcel coverage, and approve the requested CUP and Minor Modification, based upon the findings and analysis outlined in this report.” (Bold characters in original.) There is no mention in this agenda description of the proposed grant of a CEQA exemption for the project.1 Yet, the City Council, in the exercise of its de novo review of the Carlthorp School expansion project, must determine both whether to grant the requested CUP and the 1 Remarkably, the notice of public hearing required by Santa Monica Municipal Code section 9.37.050 for all owners and residents of properties within a radius of 750 feet of the school site, likewise, omits any reference to the CEQA exemption. (See staff report, attachment G.) Hon. Mayor Himmelrich and Members of the City Council
February 21, 2022
minor modification; and whether the project is exempt from CEQA review (or, instead, requires preparation of an initial CEQA study).2 In fact, staff’s recommended CUP findings show that the City Council will grant the applicant a CEQA exemption should the council approve the project per staff’s recommendations. A CUP finding set forth in the statement of official action (STOA) proposed for the City Council’s adoption states:
“Based on environmental review, the proposed project has no potentially significant environmental impacts or any potentially significant environmental impacts have been reduced to less than significant levels because of mitigation measures incorporated in the project. The proposed project is also categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15331, Class 31 of the State [CEQA] Implementation Guidelines in that the proposed addition to a non-contributor in the San Vicente Boulevard Courtyard Historic District is consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings (2017), revised by Anne E. Grimmer, and would not cause a substantial adverse change in the significance of the San Vicente Courtyard Historic District.”3
(Proposed CUP finding No. 7 at p. 5.) In other words, the City Council’s consideration of the CEQA exemption is an item of business to be publicly reviewed and acted upon at the appeal hearing and therefore had to be specifically disclosed in the posted February 22, 2022 meeting agenda.
San Joaquin Raptor Rescue Center, supra, 216 Cal.App.4th 1167, offers an apt analogy. There, the planning staff of Merced County recommended approval of a subdivision application, along with a mitigated negative declaration (MND) under CEQA concerning the environmental impact of the subdivision project.
When the project came up for approval by the Merced County Planning Commission, the commission’s posted meeting agenda noticed, as an item of business, the commission’s potential approval of the subdivision application, but did not mention the MND. The court of appeal in San Joaquin Raptor Rescue Center held that this manner of proceeding violated the agenda notice requirement of the Brown Act.
Notably, in the litigation challenging the project’s approval, the county of Merced argued that the agenda notice requirement of Government Code section 54954.2 was satisfied “because the public would have implicitly understood that CEQA documents, if any, would likely be considered at the time of the project’s approval.” The court of appeal rejected this position. (216 Cal.App.4th at p. 1170; see id. at p. 1178 [“Even assuming for the sake of argument that a person could have speculated from what appeared on the agenda (i.e., the project’s approval) that the adoption of the MND might possibly be considered at the meeting, that would not make the agenda legally adequate”; original emphasis].) The court held that “the 2 Staff correctly notes that the City Council’s review of the Planning Commission’s decision is de novo. (Staff report at p. 2.) Indeed, the City Council has the power to “review and take action on all determinations, interpretations, decisions, judgments, or similar actions taken which were in the purview of the original hearing body on the application or project and is not limited to only the original reason stated for the appeal.” (Santa Monica Mun. Code, § 9.37.130 (A)(3).) 3 The proposed STOA further cites Section 15303 of the State CEQA Guidelines (Class 3 categorical exemption) as additional grounds for exempting the project from CEQA review. (Proposed STOA at p. 1.) Hon. Mayor Himmelrich and Members of the City Council
February 21, 2022
Brown Act was violated in this case because the Commission took action on the MND when that matter was not expressly disclosed on the meeting agenda.” (Id. at p. 1170.) So, too, here if on February 22, the City Council approves the CEQA exemption -- whether explicitly or implicitly by granting the CUP based on the CEQA exemption findings recommended by staff.
While in this case, the defective notice relates to a staff-recommended CEQA exemption rather than a staffrecommended recommended MND, for purposes of the Brown Act, this is a distinction without a difference. (See id. at p. 1178, fn. 17.) The court in San Joaquin Raptor Rescue Center recognized that issues related to the local environmental effects of a project “often motivate members of the public to participate in the process and have their voices heard.” (Id. at p. 1177.) “Of course, that is exactly what the Brown Act seeks to facilitate.” (Ibid.) “Its purposes include ensuring that the public is adequately notified of what will be addressed at a meeting in order to facilitate public participation and avoid secret legislation or decisionmaking.” (Id. at pp. 1177-1178, citations omitted.) In short, because the agenda posted last week for the City Council’s February 22, 2022 meeting fails to make the disclosure concerning the CEQA exemption determination for the Carlthorp School expansion project, it violates Government Code section 54954.2. Therefore, the appeal may not be heard on February
22. The matter must be re-noticed and the new notice should disclose the proposed CEQA exemption so that all members of the public interested in CEQA review have a fair and meaningful opportunity to address the exemption at the City Council’s de novo hearing on the project.
CEQA Violation
The recommended CEQA exemptions for Carlthorp School’s expansion project are unsubstantiated and erroneous. Staff’s review for exempting the Carlthorp School expansion project from CEQA is cursory and fundamentally flawed. (See CEQA Guidelines, § 15061.)
First, staff’s conclusion that the environmental impacts of adding 7,259 square feet of new development to the existing school size of 38,397 square feet, a substantial, 20.6% increase in size, and of proposing a new rooftop playcourt, all in a residential zone, are not even potentially significant in the construction phase or long-term, is contradicted by the evidentiary record and staff’s own conclusion that “any potentially significant environmental impacts have been reduced to less than significant levels because of mitigation measures incorporated in the project.” (Proposed CUP finding No. 7, p. 5.) And that very conclusion precludes exempting the project from CEQA. “An agency should decide whether a project is eligible for a categorical exemption as part of its preliminary review of the project without reference to or reliance upon any proposed mitigation measures.” (Salmon Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098, 1106, emphasis added.)
Staff here appears to rely on what is known as the “common sense” exemption from CEQA. But this exemption is inapplicable unless “it can be seen with certainty that there is no possibility that the activity in question may have a [potentially] significant effect on the environment. . . .” (State CEQA Guidelines, § 15061, subd. (b)(3), emphasis added; see id., § 15382 [“ ‘Significant effect on the environment’ means a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance”].)
Hon. Mayor Himmelrich and Members of the City Council
February 21, 2022
As for the recommended Class 31 categorical exemption, it is inapplicable on its face. This specific exemption is for “projects limited to maintenance, repair, stabilization, rehabilitation, restoration, preservation, conservation or reconstruction of historical resources in a manner consistent with the Secretary of the Interior's Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings (1995), Weeks and Grimmer.” (State CEQA Guidelines, § 15331, emphasis added.) The Carlthorp School expansion project is just that: a school expansion project -- as described by staff and as proposed by the applicant; it is not a project limited to simply maintaining, repairing, stabilizing, rehabilitating, restoring, preserving, conserving or reconstructing historical resources. Whether the project would or wouldn’t have an adverse impact on the overall character or significance of the San Vicente Courtyard Historic District does not bear on whether the new development and uses that are proposed fit into the narrow confines of the Class 31 exemption in the first place, or, for that matter, into any one of the other two CEQA exemptions cited by staff.
Nor does the Carlthorp School expansion project fit into the Class 3 categorical exemption. According to staff, this CEQA exemption “exempts minor additions to existing schools where the addition does not increase original student capacity by more than 25% or 10 classrooms.” (Staff report at pp. 14-15.) The Class 3 categorical exemption doesn’t even mention schools, let alone the gratuitous numerical criteria used by staff (no increase of original student capacity by more than 25% or 10 classrooms).
The Class 3 exemption does apply to certain existing commercial buildings that do not exceed 10,000 square feet in floor area, and only if the site is zoned for commercial use. (See CEQA Guidelines, § 15303.) However, even if the school were a commercial use, which it is not, the existing school size is almost four times as large as 10,000 square feet (38,397 square feet) and the school site is not zoned commercial or for an institutional use. (This is why a CUP is required for the project.) The 46,362 square foot parcel on which the project is located is zoned Low Density Multi-family Residential (R2). The Class 3 exemption also benefits small residential projects, provided these projects are on land zoned residential. Evidently, reliance on the Class 3 categorical exemption to evade CEQA review for the proposed expansion project would as much be a prejudicial abuse of discretion under CEQA and the State CEQA Guidelines as reliance on the other two exemptions cited in the proposed STOA.
Sincerely,
ANGEL LAW
Frank P. Angel