December 2015

By Glen Hansen

Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627

In Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627, the Los Angeles County Metropolitan Transportation Authority (“Metro”) approved the Westside Subway Extension Project (“Project”), which will extend the Metro Purple Line heavy rail transit subway system to the Westside of Los Angeles. The Project includes a new station that will be located in Century City, at Constellation Boulevard and Avenue of the Stars (the “Constellation Station”). To reach this station, the subway will travel through a tunnel to be constructed under Beverly Hills High School. During the planning and environmental review process, the Beverly Hills Unified School District (“School District”) and the City of Beverly Hills (“City”) objected to the placement of the subway tunnel under the high school and other properties located in Beverly Hills.

Following Metro’s approval of the Project, the School District filed a writ petition alleging that Metro failed to comply with the California Environmental Quality Act (“CEQA”) because, among other things, the final EIS/EIR contained significant new information that was not included in the draft EIS/EIR, and therefore Metro was required, but failed, to prepare and recirculate a supplemental draft EIS/EIR for public comment; Metro failed to conduct a comparative risk assessment of the Constellation station and two alternative locations for that station; and Metro’s addendum to the final EIS/EIR, which made changes to the air quality impact section, was improper.  The City alleged in a separate writ petition that Metro violated CEQA by, among other things, failing to recirculate the EIS/EIR; failing to analyze the potential impacts associated with the Constellation station; failing to properly describe the baseline physical conditions, analyze significant impacts, adopt feasible mitigation measures or alternatives, and support its conclusions with substantial evidence; pre-committing to project approval; failing to support its findings and statement of overriding considerations with substantial evidence; approving the transit hearing decision and findings without first analyzing the environmental impacts of that decision and findings; and violating Public Utilities Code section 30639 et seq. by, among other things, failing to present Metro’s expert witnesses at the transit hearing to allow City to cross-examine them and closing the transit hearing and then presenting Metro’s expert witnesses during the public comment period. The City further alleged that the Metro board prejudicially abused its discretion by issuing the decision not supported by the findings and by adopting findings that are not supported by the evidence presented at the transit hearing. The trial court denied both petitions in their entirety, and the School District and the City appealed. The Court of Appeal affirmed. 


On appeal, the School District and the City argued that Metro was required to recirculate the EIS/EIR because the new information in the final EIS/EIR—Metro’s fault investigation and tunnel safety reports—reversed the draft EIS/EIR’s analysis regarding the Century City station location, resulting in the elimination of the “base” station and leaving only the “optional” alternative – the Constellation Station). Therefore, they contend the new information was necessary and dispositive to the Metro board’s selection of the Constellation station, and thus constituted “significant new information” requiring recirculation.  The court disagreed.

Contrary to the semantic argument raised by the School District ant the City, the draft EIR/EIS evaluated both station locations equally. Furthermore, the draft EIS/EIR did address environmental issues arising from tunneling under the high school. Also, the School District and City mischaracterized the draft EIS/EIR’s discussions of the seismic faults in the area. The draft EIS/EIR presented two options for the Century City station, discussed the potential environmental impacts of both stations, including the impacts of tunneling under the high school, and indicated that one of the two options might not be viable due to seismic risk but that further studies were being conducted to determine whether that option is viable. The public was given an opportunity to comment on the environmental impacts of both station options, and School District and City took advantage of that opportunity. The new information in the final EIS/EIR merely confirmed that certain station locations were not viable. The new information also confirmed and expanded upon the draft EIS/EIR’s analysis of the potential environmental impacts from the Constellation station. The elimination of one of the station locations as an option did nothing to change the potential environmental impacts of the Project, other than to eliminate a potential source of seismic hazard. Thus, substantial evidence supported Metro’s decision not to recirculate the EIS/EIR due to the additional fault study and tunnel safety study, because the EIS/EIR was not changed in a way that deprived the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the Project or a feasible way to mitigate or avoid any such effect.

Air Pollution and Public Health Impacts

On appeal, the City contended that Metro abused its discretion by failing to recirculate the EIS/EIR because when the final EIS/EIR was released it reported significant new air quality impacts and greatly lengthened construction times. The court disagreed.  Although the final EIS/EIR reported significantly higher levels of air quality construction impacts than were reported in the draft EIS/EIR, and stated that many of those impacts could not be mitigated to levels below SCAQMD thresholds for most pollutants, those elevated impacts were due to the accelerated construction schedule that was developed to minimize the disturbances to residents and business caused by construction.  Before the Metro board recertified the final EIS/EIR, Metro issued an addendum to the final EIS/EIR that reduced the reported impacts to the same (or lower) levels as reported in the draft EIS/EIR. The addendum was based on a new analysis that showed that during construction of the entire Project, SCAQMD thresholds would be exceeded for nitrous oxides and particulate matter without implementation of mitigation.  With implementation of the recommended mitigation measures, the levels of particulate matter will be reduced to below SCAQMD thresholds, but the nitrous oxide levels, although reduced, would remain above the threshold. That was the same conclusion reached in the draft EIS/EIR.  Not only would there be no purpose that would be served by recirculating the EIS/EIR, but there is substantial evidence to support Metro’s decision not to recirculate the EIS/EIR. 

Also, the City contended that the EIS/EIR was legally inadequate because it failed to analyze localized air pollution and public health impacts from construction of the project. However, the could held that an agency does not need to analyze air quality impacts against localized significance thresholds when it has analyzed the impacts against thresholds established by its local regional air quality management district. Furthermore, the EIS/EIR was not required to include an analysis showing how the actual construction emissions will specifically impact public health. And the EIS/EIR in this case was circulated with an air quality technical report that identified the potential adverse health effects of exposure to each of the identified pollutants.

Transit Hearing Under Public Utilities Code Section 30639

The court also found that Metro did not violate the statutory requirements in conducting a transit hearing under Public Utilities Code section 30639. The City contented that the transit hearing was a sham on the ground that the Metro board allegedly had prejudged the issue regarding the location of the Century City station because it had already adopted findings of fact covering the entire Project, including the Constellation station.  However, the court found that the Metro board did not adopt findings of fact for the entire project before the transit hearing. Furthermore, the City’s assertion that Metro violated City’s right to a fair hearing was wrongly premised on the assumption that Metro was acting in an adjudicatory capacity with regard to the transit hearing, when actually that was a quasi-legislative decision and the rules against prejudgment of adjudicatory facts do not apply to quasi-legislative decisions. Furthermore, the City received a full and fair hearing because the Metro Board could properly exclude cross-examination of Metro’s expert witnesses in this quasi-legislative proceeding, and could only allow documentary evidence from the City. Moreover, the documentary evidence was not used as proof of the matter asserted, but simply to show that it existed, and it therefore was not hearsay.

Glen Hansen is Senior Counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.


By Brian Russell 

North County Advocates v.City of Carlsbad (2015) 241 Cal.App.4th 94.

Westfield, the landowner and developer, (“Westfield”) proposed to renovate a 40‑year‑old shopping center located in the City of Carlsbad, California (“City”). In July 2013, the City approved Westfield’s request to renovate the former Robinsons-May store and other small portions of the shopping center (“Project”). North County Advocates (“Advocates”) challenged the City’s approval under the California Environmental Quality Act (“CEQA”), arguing that the Project’s environmental impact report (“EIR”) used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it was vacated in 2006 and had been only periodically occupied since.

Advocates filed a petition for writ of mandate challenging the City’s approval of the project, and the trial court denied Advocates’ petition. Advocates appealed the trial court’s judgment to the Fourth District Court of Appeal.

Advocates contended that the EIR’s traffic baseline is “incorrect and misleading” because it did not follow the “‘normally’” applicable rule of measuring conditions as they actually existed when environmental review began. Advocates argued that the City instead “falsely inflated the existing traffic conditions” by “imputing over 5,000 daily trips” to the baseline premised on a fully occupied Robinsons-May building when, in fact, Robinsons-May vacated the space in 2006. By falsely inflating the existing traffic conditions, the baseline understates the Project’s true impact on the environment.

The EIR’s Transportation Study elaborated on the City’s determination of the traffic baseline:

“Westfield Plaza Camino Real is an existing super regional shopping center which is entitled for 1,151,092 square feet of retail commercial space. All of the currently entitled square footage is completely constructed. However, the nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates. Plaza Camino Real currently has unoccupied leasable space beyond the normal amount, mainly the 148,159 square foot Robinsons-May building. Since this space is currently vacant, traffic from this space is not included in the actual traffic counts conducted at the analyzed intersections and street segments. However, for the purposes of determining the Existing Baseline Conditions pursuant to CEQA Guidelines Section 15125, trips attributable to that currently unoccupied space are imputed. A full occupancy assumption is consistent with San Diego Association of Government’s regional traffic modeling methodology which assumes full occupancy of all entitled square footage. It is also consistent with the City of Carlsbad and City of Oceanside’s determination of existing baseline because the currently vacant space could be occupied at anytime without discretionary action. In fact, portions of that space are periodically occupied with temporary uses such as a Halloween store which leases the space in the month of October. For these reasons, full occupancy of all entitled square footage is assumed in determining the Existing Baseline Conditions.”

Using the baseline with the imputed Robinsons-May traffic, the Transportation Study concluded the “Project will not result in a significant impact at any of the analyzed intersections during either peak hour, or any of the analyzed street segments during either peak hour or daily conditions.”

The appellate court concluded that the City’s selection of a traffic baseline that assumed full occupancy of the Robinsons-May space was not merely hypothetical because it was not based solely on Westfield’s entitlement to reoccupy the Robinsons-May building “at anytime with discretionary action” but was also based on the actual historical operation of the space at full occupancy for more than 30 years up until 2006. Then, from 2007 to 2009, the Robinson-May space had a reduction in occupied square footage. The court viewed this fluctuating occupancy, “which is the nature of a shopping center,” to allow the agency to have the discretion to consider conditions over a range of time periods to account for a temporary lull or spike in operations. Further, the City’s decision to base the traffic baseline on historical occupancy rates is further supported by substantial evidence consisting of San Diego Association of Government data on such use levels. These factors together were substantial evidence which supported the City’s exercise of discretion in selecting a traffic baseline that assumed a fully occupied Robinsons‑May building.

Brian Russell is an associate attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.


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