Salus Populi Suprema Lex Esto

About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Date: 12-22-2017

Case Style: Los Angeles Conservancy v. City of West Hollywood, Charles Company, Real Parties in Interest

Case Number: B270158

Judge: Rothschild, P.J.

Court: California Court of Appeals Fourth Appellate District on appeal from the Superior Court, Riverside County

Plaintiff's Attorney: Susan Brandt-Hawley, and Skyla V. Olds

Defendant's Attorney: Michael Jenkins, John C. Cotti, and Lauren Langer

Description: Los Angeles Conservancy (Conservancy) petitioned
the superior court for a writ of mandate to compel the City of
West Hollywood (the City) to set aside the City’s approval of a real
estate development project known as “the Melrose Triangle” project.
The Conservancy argues that the environmental impact report
(EIR) was flawed in its analysis of alternatives to the project, the
City failed to respond to public comments, and the City’s finding
that a particular alternative to the project is infeasible is not
supported by substantial evidence. The trial court denied the
petition, and the Conservancy appealed. We affirm.
Real parties in interest Charles Company and System, LLC,
applied to the City for permits to develop a three-acre triangular
site bound by Santa Monica Boulevard, Melrose Avenue, and
Almont Drive. The site, adjacent to the City’s western boundary
and known as “the Melrose Triangle,” includes a building located
at 9080 Santa Monica Boulevard (the 9080 Building). The 9080
Building was built in 1928 and remodeled in 1938 based on designs
by the architectural firm of Wurdeman and Becket, “notable
Los Angeles architects whose works included . . . many important
examples of Mid-Century Modern architecture.” The building
may be eligible for listing on the California Register of Historical
In 2012, the City amended its general plan to provide
certain development incentives for the Melrose Triangle
site. The incentives were intended to encourage “exemplary
architectural design elements, with a significant portion of open
space maintained as pedestrian walk-throughs open to the sky.”
The City desired “an iconic ‘Gateway’ building, welcoming visitors,
residents, and passersby to the City of West Hollywood.”
The real parties in interest’s development plans called for
the demolition of existing buildings, including the 9080 Building,
and the construction of three buildings and a pedestrian paseo
between the buildings connecting Santa Monica Boulevard and
Melrose Avenue. The proposed buildings include 137,064 square
feet of office space, 82,021 square feet of space for retail and
restaurant use, 76 residential units, and 884 parking spaces on four
subterranean levels. The plan also provided for 6,985 square feet of
“private open space” and 9,463 square feet of “common open space.”
The most prominent of the proposed buildings is the
“The Gateway Building,” which would be built at the point where
Santa Monica Boulevard, Melrose Avenue, and Doheny Drive
meet. The Gateway Building would occupy the space currently
taken up by the 9080 Building. A second building—“the Boulevard
Building”—will front Santa Monica Boulevard and Almont Drive.
“The Avenue Buildings” will be located at the corner of Almont
Drive and Melrose Avenue. There would be an internal courtyard
and pedestrian paseo connecting Santa Monica Boulevard and
Melrose Avenue.
The City prepared a draft EIR pursuant to the California
Environmental Quality Act (CEQA) and circulated it for public
review and comment in 2014. The EIR identified the demolition of
the 9080 Building as a “significant and unavoidable” adverse
impact of the project. To address that impact it described three
alternatives to the project. The first—a “No Project/No New
Development” alternative—would make no changes on the project
site. The second alternative provided for a reduction of office
space to approximately 102,000 square feet. The third alternative
(Alternative 3) would preserve the 9080 Building by reducing and
redesigning the project. Only Alternative 3 is relevant in this
According to the EIR, Alternative 3 would provide for retail,
office, and residential uses, but would require the project be
“reduced and redesigned in order to retain the [9080 Building].”
The alternative would reduce retail and restaurant space from
82,021 square feet to 60,400 square feet, and office space from
137,064 square feet to 86,571 square feet. Residential space and
shared space would remain the same.
The EIR discusses the impacts of Alternative 3 on the area’s
aesthetics, air quality, biological resources, cultural resources,
geology, climate change, hazards and hazardous materials,
hydrology and water quality, land use, noise, population and
housing, public services and utilities, recreation, and traffic. It
includes a matrix summarizing and comparing the impacts of the
project and each alternative for each category.
The EIR states that Alternative 3 would be environmentally
superior to the project because it would not require demolition
of the 9080 Building and would impact traffic less. The EIR
concludes that Alternative 3 “would achieve many of the project
objectives but would not utilize the existing parcels to their full
extent. Although Alternative 3 would avoid the [loss of the 9080
Building], the reduction of retail and office uses may not maximize
the redevelopment potential of the site or fully enhance the area’s
overall urban character. In addition, Alternative 3 would not result
in a cohesive site design and would not create a unified gateway
design for the project site, which is the western gateway to the City
of West Hollywood. Consequently, Alternative 3 would not expand
the economic base of the City or foster the City’s fiscal health
to the same degree as the proposed project. In addition, this
[a]lternative would not result in a cohesive site design and would
not enhance the intersection of Santa Monica Boulevard/Melrose
Avenue/Doheny Drive to create a unified design for the
western gateway to the City of West Hollywood. Therefore, this
[a]lternative would meet some of the project objectives, but not
to the same degree as the proposed project.”
The EIR also identifies two actions that would mitigate
the impact of demolishing the 9080 Building: (1) the building’s
exterior and “character-defining features” would be photographed
for preservation by the City’s Historic Preservation Commission
and a pamphlet would be created that discusses the general
history of the project area and the “Streamline Moderne Style”;
and (2) the project would be modified to “incorporate some of the
character-defining features of the “Streamline Moderne Style” into
the design.
The City received 16 comments to the draft EIR, three of
which expressed opposition to the demolition of the 9080 Building.
The comments and the City’s responses, which we discuss below,
are included in the final EIR.
In June 2014, the City’s Planning Commission recommended
approval of the project. The following month, before the city
council’s meeting to consider the project, the real parties in interest
requested that its architects consider revising the project to either
(1) include the 9080 Building at its present location, (2) move the
building to another location on the project site, or (3) integrate into
the project design portions of the building.
The architects concluded that preserving the 9080 Building
in its present location “would have significant negative impacts to
the overall project design, requiring redesign of the project’s
subterranean parking facility causing a loss of required parking
and . . . require an entire redesign of the Gateway Building.”
The architects stated that the second possibility—moving the
9080 Building to another location on the site—would not only
“require a significant redesign of the project impacting the entire
character of the site,” but also “destroy the integrity of the historic
resource and likely impact its eligibility of listing as a historic
Regarding the third possibility, the architects prepared a
design that would incorporate the entry façade of the 9080 Building
as the main entrance to the Gateway Building offices from the
pedestrian paseo and establish a kiosk near the entrance containing
information regarding the 9080 Building.
In August 2014, the City certified the EIR, adopted the
mitigation measures described above, imposed a development
condition requiring integration of the 9080 Building façade into
an entrance to the Gateway Building, and adopted a statement of
overriding considerations.
In the statement of overriding considerations, the City stated
that the project as designed “captured” the City’s desire for “an
iconic ‘Gateway’ ” to the City that “will effectively communicate
the transition into” the City. Alternative 3, the City found, is
“infeasible as an alternative or a mitigation measure because it is
inconsistent with the project objectives. While Alternative 3
would allow for the proposed mix of uses, this alternative would
eliminate and disrupt the project’s critical design elements.”
“Designing the project around the [9080 B]uilding,” the City
explained, “would result in an interrupted design frontage along
Santa Monica Boulevard” and “would necessitate construction of
smaller, disjointed structures on the site to accommodate the
existing building.”
In November 2014, the Conservancy filed in the superior
court the operative first amended petition for writ of mandamus.
The Conservancy argued that the EIR’s analysis of Alternative 3
was inadequate, the EIR failed to respond to public comments, and
the City’s finding that Alternative 3 is infeasible is not supported by
substantial evidence.1
The trial court denied the petition in January 2016. The
Conservancy timely appealed.
I. Standards of Review
We review de novo the superior court’s denial of a petition
for writ of administrative mandate challenging the adequacy of
the EIR. (Vineyard Area Citizens for Responsible Growth, Inc. v.
City of Rancho Cordova (2007) 40 Cal.4th 412, 427.) We review
the public agency’s underlying decision to determine whether
the agency abused its discretion. (Pub. Resources Code, § 21168;
Code Civ. Proc., § 1094.5, subd. (b); Ballona Wetlands Land Trust v.
City of Los Angeles (2011) 201 Cal.App.4th 455, 467.) An abuse
of discretion in this context means that the agency failed to proceed
in a manner required by law, the agency’s decisions are not
supported by its findings, or the agency’s findings are not supported

1 On May 20, 2015, while the mandate proceeding was
pending, the 9080 Building was damaged in a fire. According to a
damage assessment report prepared for the City, approximately
25 percent of the building floor area was damaged beyond repair
and requires demolition and removal. The report concluded that
the “[b]uilding is an unsafe and substandard building due to partial
collapse of the roof and floor structures in the southwestern portion
of the building, extensive damage in adjacent roofs, beams, floors
and walls and damaged electrical, mechanical and plumbing
components. As such, the current state of the fire damaged
building constitutes a public nuisance.” “[D]emolition [was] the
favored economic alternative over rehabilitation.” The existing
façade along Santa Monica Boulevard, however, could “be preserved
and/or salvaged for later reuse.” None of the parties assert that the
fire should have any effect on our analysis of the issues.
by substantial evidence. (Code Civ. Proc., § 1094.5, subd. (b);
San Franciscans Upholding the Downtown Plan v. City and County
of San Francisco (2002) 102 Cal.App.4th 656, 674.)
II. The EIR’s Analysis of Alternatives
The Conservancy contends that the EIR’s analysis of
alternatives to the project is inadequate. Specifically, the
Conservancy contends that the analysis of Alternative 3 is
“conclusory and insufficient.” We disagree.
A project that involves the destruction of a building that is
eligible for listing in the California Register of Historical Resources
will have “a significant effect on the environment” for purposes of
CEQA. (Pub. Resources Code, § 21084.1; see Preservation Action
Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1352-1353
(Preservation Action).) An EIR for such a project must consider
and discuss feasible alternatives that would avoid or lessen
any significant adverse environmental impact. (Mountain Lion
Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 123;
Pub. Resources Code, § 21100, subd. (b)(4); Cal. Code Regs., tit. 14
(Guidelines), § 15126.6.) The discussion of alternatives “must be
specific enough to permit informed decision making and public
participation.” (Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal.3d 376, 406 (Laurel Heights).)
The “level of analysis is subject to a rule of reason,” and the EIR
need not “ ‘consider in detail each and every conceivable variation
of the alternatives stated.’ ” (Id. at p. 407.)
The Conservancy points out that the EIR does not include a
“conceptual design of Alternative 3.” That is true; there are no
architectural drawings of an alternative plan that includes the
retention of the 9080 Building. The Conservancy does not, however,
cite any legal authority requiring an EIR to include design plans for
project alternatives, and we decline to so hold.
The Conservancy also faults the EIR for stating that
retaining the 9080 Building would “preclude construction of the
Gateway Building and a portion of the Avenue Buildings” without
providing any explanation. No explicit explanation, however, is
necessary. It appears from the plans and drawings of the project
included in the EIR that the Gateway Building will be built where
the 9080 Building is currently located. Two buildings cannot
coexist at the same time in the same spot; if the 9080 Building
remains, the Gateway Building cannot be constructed without
substantial change in the design. “While some conclusions
may require an extended analysis to justify them, others are so
simple they are almost self-explanatory.” (Save Our Residential
Environment v. City of West Hollywood (1992) 9 Cal.App.4th
1745, 1754.) The challenged statement is in the latter category, and
the self-explanatory designs adequately demonstrate that retaining
the 9080 Building would preclude construction of, at least, the
Gateway Building.
The Conservancy challenges the EIR’s use of estimates in
calculating the reduction in usable square footage. It relies on
Preservation Action, supra, 141 Cal.App.4th 1336. In that case,
an EIR analyzed a project to build a 162,000-square-foot Lowe’s
retail warehouse that would involve the demolition of a building
deemed a “significant historic resource.” (Id. at p. 1342.) The
162,000-square-foot building had 116,000 square feet of sales
floor space. (Id. at p. 1347.) The EIR discussed a “reduced-size
alternative” that would retain the historic building and allow the
development of a 94,000-square-foot building, a size that Lowe’s
considered infeasible. The Court of Appeal concluded that this
94,000 number was ambiguous because it was not clear whether it
referred to the size of the entire store or only the store’s sales floor.
(Id. at p. 1355.) If the number referred to the sales floor only, it
was possible that the size of the entire store would be large enough
to make the warehouse feasible. The ambiguity thus made it
“impossible to determine” how the alternative compared with the
developer’s plans or to evaluate its feasibility, and “meant that
the public and the [c]ity [c]ouncil were not properly informed of the
requisite facts that would permit them to evaluate the feasibility of
this alternative.” (Ibid.)
There is no analogous ambiguity in the instant case.
In Preservation Action, the 94,000-square-foot number had
two possible meanings, one of which might have rendered the
alternative feasible and the other infeasible. The EIR in that case
thus failed as an informative document and needed to be clarified.
Here, although the estimates regarding the reduction of retail,
restaurant, and office space that would occur under Alternative 3
may have been imprecise, there is no confusion about their
meaning; apples were being compared to apples.
The imprecision inherent in the estimates of space reduction
does not render the EIR defective because “ ‘[a]bsolute perfection’ ”
in the analysis of alternatives “ ‘is not required; what is required
is the production of information sufficient to permit a reasonable
choice of alternatives so far as environmental aspects are
concerned.’ ” (Laurel Heights, supra, 47 Cal.3d at pp. 406-407.)
The discussion of alternatives in the EIR satisfies this requirement.
III. The EIR’s Response to Comments
The Conservancy next contends that the EIR failed to respond
adequately to public comments to the draft EIR. We disagree.
After the designated lead agency makes a draft EIR
available to the public, the public may comment on the draft.
(Pub. Resources Code, § 21091, subd. (a).) The lead agency must
evaluate and respond to timely comments relating to significant
environmental issues, and include the comments and responses
in the final EIR. (Laurel Heights Improvement Assn. v. Regents of
University of California (1993) 6 Cal.4th 1112, 1124; Pub. Resources
Code, § 21091, subd. (a); Guidelines, § 15088.) The agency’s
response must “demonstrate a ‘good faith, reasoned analysis,’ ” but
“need not be exhaustive.” (Gilroy Citizens for Responsible Planning
v. City of Gilroy (2006) 140 Cal.App.4th 911, 937.) The response
“can be sufficient if it refers to parts of the draft EIR that analyzes
the environmental impacts raised by the comment.” (City of Irvine
v. County of Orange (2015) 238 Cal.App.4th 526, 550; see also
Paulek v. Department of Water Resources (2014) 231 Cal.App.4th
35, 48.) Furthermore, general comments can be met with general
responses, and “comments that are only objections to the merits of
the project itself may be addressed with cursory responses.” (City of
Irvine v. County of Orange, supra, 238 Cal.App.4th at pp. 550, 553.)
The Conservancy refers us to two comments. In one, the
West Hollywood Preservation Alliance expressed opposition to
the demolition of the 9080 Building and stated its view “that this
building could be restored and adaptively reused to retain its
character defining features and thereby provide a creative and
engaging development for the citizens of West Hollywood.” In
the second, the President of the Art Deco Society of Los Angeles
supported Alternative 3 and stated his “belie[f] that a thoughtful
design of the Melrose Triangle project that includes an adaptive
reuse of the 9080 [B]uilding that is carefully incorporated into the
overall project will result in a superior site design that will enhance
the cultural life of the City of West Hollywood.”
The City responded to these comments by referencing the
discussion of Alternative 3 in the EIR, and stating: “ ‘Alternative 3
would not result in a cohesive site design and would not
create a unified gateway design for the project site, which is the
western gateway to the City of West Hollywood.’ . . . [B]ecause the
[9080 Building] is located in the center of the project site fronting
Santa Monica Boulevard, designing the proposed project around
the building would result in an interrupted design frontage along
Santa Monica Boulevard and would necessitate construction of
smaller, disjointed structures on the site. In addition, the provision
of adequate parking could be significantly hampered by the need to
avoid construction near or below the building when constructing
the subterranean parking garage. Finally, the provision of a wide
pedestrian paseo through the site would not be easily achieved,
thereby reducing the pedestrian access and walkability of the site.
The modern architectural style of the proposed project would not
be cohesive if the [9080 Building] was preserved on the site.”
The comments the Conservancy relies upon consist of
objections and general expressions of support for Alternative 3.
The comments do not raise new issues or disclose any analytical
gap in the EIR’s analysis. The City could therefore respond, as it
did, by referencing the EIR’s discussion of the issues concerning
the 9080 Building and Alternative 3 and providing a brief,
general response. (See City of Irvine v. County of Orange, supra,
238 Cal.App.4th at p. 550.)
IV. Sufficiency of the Evidence to Support the
Finding of Infeasibility of Alternative 3
A public agency may approve a project that will have a
significant effect on the environment if the agency finds that:
(1) “specific economic, legal, social, technological, or other
considerations . . . make infeasible the mitigation measures or
alternatives identified in the [EIR],” and (2) the significant
effects on the environment are outweighed by “specific overriding

2 The City’s response to the president of the Art Deco Society
of Los Angeles is identical to the response to the West Hollywood
Preservation Alliance with the exception that the response to the
president of the Art Deco Society of Los Angeles refers to the
“proposed project,” rather than the “project.”
economic, legal, social, technological, or other benefits of the
project.” (Pub. Resources Code, § 21081, subds. (a)(3) & (b); see
No Slo Transit, Inc. v. City of Long Beach (1987) 197 Cal.App.3d
241, 257.)
The Conservancy argues that the evidence is insufficient to
support the City’s finding that Alternative 3 is infeasible. We reject
the contention.
In the context of project approval, a public agency may find
that an alternative is “infeasible” if it determines, based upon
the balancing of the statutory factors, that an alternative cannot
meet project objectives or “ ‘is impractical or undesirable from a
policy standpoint.’ ” (California Native Plant Society v. City of
Santa Cruz (2009) 177 Cal.App.4th 957, 1001 (California Native
Plant Society); see also Rialto Citizens for Responsible Growth v.
City of Rialto (2012) 208 Cal.App.4th 899, 948-949 (Rialto Citizens
for Responsible Growth); City of Del Mar v. City of San Diego (1982)
133 Cal.App.3d 401, 417.)
An agency’s finding of infeasibility for this purpose is
“entitled to great deference” and “ ‘presumed correct.’ ” (California
Native Plant Society, supra, 177 Cal.App.4th at p. 997.) The finding
must, however, be supported by substantial evidence. (Ibid.;
Guidelines, § 15091, subd. (b).) The Guidelines define substantial
evidence as “enough relevant information and reasonable inferences
from this information that a fair argument can be made to support
a conclusion, even though other conclusions might also be reached.”
(Guidelines, § 15384, subd. (a).) Evidence to support the City’s
findings may be contained anywhere in the administrative record.
(San Franciscans Upholding the Downtown Plan v. City and County
of San Francisco, supra, 102 Cal.App.4th at p. 690; California
Native Plant Society, supra, 177 Cal.App.4th at p. 1003.)
In approving the project and the statement of overriding
considerations, the City found that Alternative 3 “was inconsistent
with the project objectives,” including the following:
“2. Provide a modern, high-quality design that complements
surrounding uses and contributes to a sense of community, yet
stands as an architectural gateway to the City”;
“5. Create a consistent pattern of development and uses
along Santa Monica Boulevard that serves project residents and the
surrounding community by redeveloping an underutilized site”;
“8. Enhance the intersection of Santa Monica Boulevard,
Melrose Avenue, and Doheny Drive so that it may serve as a
recognizable entrance to the City through: [¶] the location, form,
and architectural elements of structures; [¶] landscaped open
spaces; [¶] public art and/or other appropriate design techniques”;
“9. Develop and encourage pedestrian-oriented uses, making
the area more pedestrian friendly”; and
“14. Provide adequate common open space and internal
access within the project site to meet the needs of the proposed uses
and users.”
The issue, therefore, is whether there is enough information
in the record to support a fair argument that Alternative 3 was
inconsistent with these objectives. (See Rialto Citizens for
Responsible Growth, supra, 208 Cal.App.4th at p. 949; 2 Kostka &
Zischke, Practice Under the Cal. Environmental Quality Act
(Cont.Ed.Bar 2d ed. 2011) § 17.30, pp. 17-30—17-31.)
The project development plans and photographs in the EIR
show that the 9080 Building is strikingly dissimilar in appearance
compared to the other buildings planned for the site. Even if
retaining the 9080 Building as part of the project is feasible
as an engineering matter, fair arguments can be made that its
architectural style is neither “modern” nor “consistent” with the
pattern of development along Santa Monica Boulevard. Although
the Conservancy argues that a “modern” design “often includes
historic elements” and the 9080 Building can still satisfy the
“consistent pattern” requirement, these are, at best, merely “other
conclusions [that] might also be reached” (Guidelines, § 15384,
subd. (a)); they do not negate the fairness of arguments supporting
the City’s conclusion.
The same evidence also supports fair arguments that
Alternative 3 would not “[e]nhance the intersection” at the
City’s “Gateway,” as provided in objective No. 8. This finding is
further supported by testimony from an architect involved in
the project that incorporating the 9080 Building into the project
“compromise[d] the ability to create . . . a more iconic really strong
gateway element into the City,” and the EIR’s conclusion that
“Alternative 3 would not enhance the Santa Monica Boulevard
Corridor to the same degree as the proposed project since there
would not be a cohesive site design for the entire project site.”
The City’s finding that Alternative 3 is inconsistent with
the objectives to encourage pedestrian-oriented uses, make the
area “more pedestrian friendly,” and provide “internal access
within the project site” is supported by the statement in the EIR
that Alternative 3 would preclude “pedestrian connectivity through
the site.” The finding is further supported by testimony from
a “Senior Planner” for the City that “the required pedestrian
paseo . . . would prevent redesign of the project to incorporate the
[9080 B]uilding.”
There is, therefore, substantial evidence to support the City’s
finding that Alternative 3 is infeasible.

Outcome: The judgment is affirmed. Respondents Charles Company and System, LLC and respondent City of West Hollywood are awarded their costs on appeal.

Plaintiff's Experts:

Defendant's Experts:


Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2018 MoreLaw, Inc. - All rights reserved.