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

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.

FACTUAL AND PROCEDURAL SUMMARY

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

Resources.

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.”

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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

appeal.

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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

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[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

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resource and likely impact its eligibility of listing as a historic

resource.”

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

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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.

DISCUSSION

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.

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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.

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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

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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

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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

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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.”

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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.”

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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.)

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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

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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.

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