COALITION OF CONCERNED COMMUNITIES INC v. Catellus Residential Group, Real Party in Interest and Respondent.

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Court of Appeal, Second District, Division 3, California.

COALITION OF CONCERNED COMMUNITIES, INC., et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent; Catellus Residential Group, Real Party in Interest and Respondent.

No. B149092.

Decided: September 08, 2003

Law Office of Craig A. Sherman and Craig A. Sherman for Plaintiffs and Appellants. Rockard J. Delgadillo, City Attorney, Susan D. Pfann and Jack L. Brown, Assistant City Attorneys, for Defendant and Respondent. Latham & Watkins, Robert D. Crockett, Kathryn M. Davis and James R. Repking, Los Angeles, for Real Party in Interest and Respondent.

Coalition of Concerned Communities, Inc., and Spirit of the Sage Council (collectively Coalition) appeal the denial of their petition for writ of mandate challenging the certification by City of Los Angeles (the city) of an environmental impact report (EIR) and the city's approval of a development project.   The proposed project by Catellus Residential Group (Catellus) involves the construction of 114 homes on 44.69 acres of land in Westchester and Playa del Rey.

Coalition raises several contentions under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), the Planning and Zoning Law (Gov.Code, § 65000 et seq.), and the Mello Act (Gov.Code, §§ 65590, 65590.1).  We conclude that Coalition has not shown prejudicial error and therefore affirm the judgment.   In the published portion of this opinion, we conclude that the Mello Act affordable housing requirement applies to a new housing development only if the development includes housing constructed within the coastal zone.

FACTUAL AND PROCEDURAL BACKGROUND

1. Prior Proposed Project

A prior owner proposed a residential development on the site including 121 single family homes and 16 acres of parkland and open space.   The city notified other public agencies, including the California Coastal Commission, in April 1992 that it would prepare an EIR and conducted a public meeting on the proposed development.   The city circulated a draft EIR for review and comment by the public and public agencies in December 1993.

The city planning department produced a final EIR in June 1994.   The project applicant then proposed to amend the project, but abandoned the effort.   The city did not conduct a public hearing on the final EIR and never certified the final EIR or approved the project.

2. Present Project

Catellus purchased the property and revised the development proposal.   The revised proposal included 120 single family homes and 16.75 acres of open space.   The city notified other public agencies, not including the Coastal Commission, in October 1997 that an EIR would be prepared.   The city circulated a draft EIR in May 1998, but did not serve the Coastal Commission.   Catellus later revised its proposal by reducing the number of homes to 119, increasing the area of open space, and modifying the design of a pedestrian trail.

A consultant for Catellus produced a final EIR in October 1998.   The Advisory Agency of the city's planning department conducted a public hearing and recommended certification of the EIR, approval of the subdivision tract map, and approval of the project, with certain mitigation measures, in December 1998.   The Advisory Agency made numerous findings, including findings that the EIR complies with CEQA and that the subdivision is consistent with the applicable general and specific plans.   Coalition appealed the recommendation to the city planning commission.   The planning commission conducted a public hearing, approved certain project modifications, and denied the appeal in January 1999.

Coalition appealed the decision to the city council.   The city council referred the matter to its planning and land use management committee, which conducted a public hearing in February 1999 and recommended that the city council approve the project.

3. Certification of the Final EIR and Project Approval

The city council conducted a public hearing in February 1999.   The city council adopted the Advisory Agency's findings as modified by the planning commission, including findings that the project will cause significant and unavoidable environmental impacts to aesthetics and views of the project site and to air quality from construction activities, that the project will cause significant and unavoidable cumulative impacts to air quality from construction activities and to archeological resources, and that the impacts to other resources will be insignificant.

The city council certified the final EIR, adopted a statement of overriding considerations, approved the subdivision tract map modification, and issued a coastal development permit in February 1999.   The city council also found that the Mello Act affordable housing requirement (Gov.Code, § 65590, subd. (d)) did not apply because none of the proposed homes would be constructed within the coastal zone.

4. Petition for Writ of Mandate

Coalition filed a petition for writ of mandate in the superior court in March 1999, challenging the city's certification of the final EIR and approval of the project.   The petition also alleges that the project is inconsistent with the city's general and specific plans and violates the Mello Act.

5. Coastal Commission's Denial of a Permit

Coalition challenged the city's issuance of a coastal development permit by appealing the matter to the Coastal Commission.   Meanwhile, Catellus applied to the Coastal Commission for a coastal development permit.   At a public hearing in August 1999, Coastal Commission members expressed concerns regarding the filling of Hastings Canyon, grading to create an access road within the coastal zone, construction of retaining walls along the bluff top, and destruction of habitat.   The Coastal Commission denied a coastal development permit.

The trial court stayed the petition for writ of mandate proceeding pending revision of the project.

6. Project Revisions and City Approval

Catellus revised the project to include 114 homes, all to be constructed outside the coastal zone, and 18.67 acres of open space.   The revised project involves the filling of Hastings Canyon only outside the coastal zone, elimination of several proposed bluff top retaining walls within the coastal zone, reduced grading and reduced removal of coastal sage scrub within the coastal zone, and an increased area to be replanted with native plant species.

Catellus applied to the city for a coastal development permit for the revised project and submitted a revised tentative subdivision tract map in September 1999.   A consultant for Catellus prepared an addendum to the certified EIR. The EIR addendum dated October 1999 states that the project revisions will result in neither new significant environmental effects nor a substantial increase in the severity of significant effects previously identified, and will result in some reduced environmental impacts.

The Environmental Review Section of the city's planning department concluded in October 1999 that the EIR addendum is adequate.   The city zoning administrator conducted a public hearing on the coastal development permit application in October 1999 and approved the application in November 1999.   The zoning administrator cited the conclusion by the Environmental Review Section that the EIR addendum is adequate and concluded that the city council's prior CEQA findings and statement of overriding considerations apply equally well to the revised project.

Coalition appealed the approval of a coastal development permit to the city's board of zoning appeals.   After a public hearing, the board of zoning appeals denied the appeal and issued a coastal development permit in January 2000.

The Advisory Agency approved the revised tentative map on November 4, 1999, with no prior notice and no public hearing, despite Coalition's prior written request to the planning department for notice of any modification to the tract map.   The city did not notify Coalition of the approval.   Upon learning of the approval by other means, Coalition filed an appeal on December 3, 1999.   The city rejected the appeal as untimely.

7. Coastal Commission's Issuance of a Permit

Coalition appealed the city's decision to issue a coastal development permit to the Coastal Commission, and Catellus applied to the commission for a coastal development permit.   Those proceedings before the Coastal Commission are not part of the administrative record in this action.   The commission denied the appeal and issued a coastal development permit in August 2000.

Sierra Club and others filed a petition for writ of mandate in the San Francisco Superior Court challenging the Coastal Commission's issuance of a permit.   The superior court denied the petition in July 2002.   Division Five of the First District Court of Appeal affirmed the judgment denying the petition.  (Sierra Club v. California Coastal Com. (2003) 107 Cal.App.4th 1030, 133 Cal.Rptr.2d 182, mod.  108 Cal.App.4th 574a, review granted, 2 Cal.Rptr.3d 553, 73 P.3d 432.) 1

8. Denial of the Petition for Writ of Mandate

Coalition filed a first amended petition for writ of mandate in October 2000 alleging that the EIR is inadequate in several respects, that the city's findings under CEQA are not supported by the evidence, that the city failed to notify the Coastal Commission of the draft EIR as required by CEQA, that the project is inconsistent with the city's general and specific plans concerning protection of views, that the project is located within the coastal zone and therefore must comply with Mello Act affordable housing requirements, and that the city failed to provide proper notice of revisions to the tentative map and wrongfully refused to consider Coalition's appeal.

The trial court conducted a hearing on the merits in January 2001. It rejected Coalition's contentions and entered a judgment denying the petition in February 2001.   Coalition has appealed from that judgment.

CONTENTIONS

1. Nonpublished Issues **

2. Mello Act Affordable Housing Requirement

Coalition contends the proposed project is a “[n]ew housing development [ ] constructed within the coastal zone” (Gov.Code, § 65590, subd. (d)), so Catellus must provide affordable housing.

Catellus and the city contend the project is not a “[n]ew housing development [ ] constructed within the coastal zone” (Gov.Code, § 65590, subd. (d)) because no housing structures will be constructed within the coastal zone.

DISCUSSION

1.-7.***

8. The Mello Act Affordable Housing Requirement Does Not Apply

Government Code section 65590 states that a local government must ensure that “[n]ew housing developments constructed within the coastal zone shall, where feasible, provide housing units for persons and families of low or moderate income․” (Id., subd. (d);  see id., subd. (a).) 6  Coalition contends a housing development is constructed within the coastal zone within the meaning of the statute if a substantial part of the development is constructed within the coastal zone.   Catellus and the city contend a housing development is constructed within the coastal zone only if residential structures are constructed within the coastal zone.   The trial court did not expressly address this question in its written ruling.

Statutory construction and the application of a statute to undisputed facts are legal questions that we review de novo.  (Estate of Madison (1945) 26 Cal.2d 453, 456, 159 P.2d 630;  R.P. Richards, Inc. v. Chartered Construction Corp. (2000) 83 Cal.App.4th 146, 153-154, 99 Cal.Rptr.2d 425.)   Our objective in construing a statute is to ascertain and give effect to legislative intent.  (People v. Murphy (2001) 25 Cal.4th 136, 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129.)   We carefully consider the words of the statute, giving them a plain and commonsense meaning, and construe them in the context of the statute as a whole so as to effectuate the purpose of the law.   (Ibid.)

A statute is ambiguous if it is susceptible of more than one reasonable construction.  (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 776, 72 Cal.Rptr.2d 624, 952 P.2d 641.)   A court may consider a variety of extrinsic aids including the legislative history to resolve an ambiguity and determine the most reasonable construction.  (Ibid.) The phrase “new housing developments constructed within the coastal zone” (Gov.Code, § 65590, subd. (d)) reasonably can be construed in accordance with either of the parties' contentions and therefore is ambiguous.   Our review of the legislative history does not help to resolve the ambiguity.

We construe the phrase “[n]ew housing developments constructed within the coastal zone” (Gov.Code, § 65590, subd. (d)) to mean new developments that include residential structures constructed within the coastal zone.   Construing this phrase to encompass other construction or development within the coastal zone would overlook the express qualification that the new development “constructed within the coastal zone” be a “housing development.”   Our construction gives effect to each word of the phrase in the context of both the phrase and the statute as a whole, the clear purpose of which is to require the provision of affordable housing based on activities conducted within the coastal zone.  (Gov.Code, § 65590, subd. (a) [“Each respective local government shall comply with the requirements of this section in that portion of its jurisdiction which is located within the coastal zone.”].) A development that includes housing outside the coastal zone but no housing within the coastal zone is not a development of housing “constructed within the coastal zone” and therefore is not a “[n]ew housing development[ ] constructed within the coastal zone” within the meaning of the statute.

All of the residential structures in the project will be constructed outside the coastal zone.   The project therefore is not a “[n]ew housing development[ ] constructed within the coastal zone” within the meaning of Government Code section 65590, subdivision (d), and the statute's affordable housing requirement does not apply.

The dissent maintains that the phrase housing development as used in Government Code section 65590, subdivision (d) is clear, unambiguous and implicates the Mello Act's affordable housing requirements.   As a basis for this conclusion the dissent posits a test that would require affordable housing considerations when a substantial part of the development is constructed in the coastal zone.   Thus, the dissent constructs the syllogism:  If a substantial part of a housing development is constructed in the coastal zone the Mello Act applies.   The 11.95 acres located within the coastal zone is a substantial part of the total project acreage of 44.69.   Therefore, the Mello Act's affordable housing requirements apply to this project and should have been considered by the authorizing agencies.   This analysis misses the mark for several reasons.

First, the dissent provides no definition of the phrase, substantial part of housing developments constructed within the coastal zone.   Not only the parties to the present lawsuit but future developers and municipalities are therefore left to speculate on a case-by-case basis (see fn. 1 of dissent) whether a particular housing development is within the coastal zone or not.   Such an ad hoc analysis lacks clarity and in all probability will lead to needless future litigation.

Second, such an amorphous standard provides no clear direction or predictability for future developments as to when this substantiality test is met.   Examples too numerous to completely list might include scenarios where only the main sewer line to a housing development traverses but a few feet of the coastal zone property or, as here, part of one of the main access roads traverses the same land.   Or take the situation where there is to be no construction or excavation of any kind within the coastal zone, but some of the project acreage is to be left in its natural state as a habitat for rare species of plant or wildlife.   Under any of these scenarios, the parties would never be able to predict whether they must consider the feasibility of affordable housing.

Third, as the dissent acknowledges, out of the 44.69 acres involved in this project, the only grading within the coastal zone involves not 11.95 acres but only 2.31 acres.   This grading is limited to the construction of part of an access road, widening of Lincoln Boulevard, construction of a public view park, erosion control measures and the placement of certain utility lines under that part of the access road leading to some of the homes.   There is to be no housing constructed in the coastal zone.   Even under the standard proposed by the dissent, we disagree that the grading of 2.31 acres constitutes a substantial part of this housing development.

DISPOSITION

The judgment is affirmed.   Catellus and the city are entitled to costs on appeal.

I concur in the majority opinion with the exception of its discussion and resolution of the issues arising under the Mello Act. With respect to that matter, I must respectfully dissent from the views expressed by my colleagues.   In my view, the affordable housing requirement of Government Code section 65590, subdivision (d) applies to this project.

Government Code section 65590 states that a local government must ensure that “[n]ew housing developments constructed within the coastal zone shall, where feasible, provide housing units for persons and families of low or moderate income․” (Id., subd. (d);  see id., subd. (a).)  The Mello Act does not define the term “housing development.”

“Our task in construing a statute is to ascertain the Legislature's intent so as to effectuate the purpose of the law.  (People v. Murphy (2001) 25 Cal.4th 136, 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129.)   We begin by examining the words of the statute, giving them their usual and ordinary meaning.   (People v. Garcia (2002) 28 Cal.4th 1166, 1172, 124 Cal.Rptr.2d 464, 52 P.3d 648;  Murphy, at p. 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129.)   We construe statutory words and clauses in the context of the statute as a whole.   (Murphy, at p. 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129) We cannot insert what has been omitted, omit what has been inserted, or rewrite the statute to conform to a presumed intention that is not expressed.  (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349, 45 Cal.Rptr.2d 279, 902 P.2d 297.)   If the plain language of the statute is unambiguous and does not involve an absurdity, then the plain meaning governs.  (Garcia, at p. 1172, 124 Cal.Rptr.2d 464, 52 P.3d 648;  People v. Ledesma (1997) 16 Cal.4th 90, 95, 65 Cal.Rptr.2d 610, 939 P.2d 1310.)”   (Lewis v. Clarke (2003) 108 Cal.App.4th 563, 567, 133 Cal.Rptr.2d 749.)

The usual and ordinary meaning of a “development” in the context of building construction is the whole of an improved tract of land, including commonly buildings and other structures, roads, utilities, and physical modifications to the land.   A “housing development” is a development that includes residential housing.   The Legislature's use of this term in the Mello Act is consistent with this common definition.   There is no ambiguity.

Government Code section 65590 repeatedly uses the terms “dwelling units” and “residential structure,” and then uses the term “housing development[s]” only twice.   The Legislature's separate use of these terms necessarily suggests that each must have a different meaning.   Thus, section 65590, subdivision (b) requires the replacement of “dwelling units” that have been converted or demolished.   Subdivision (b) also provides exceptions for the conversion or demolition of certain “residential structure[s],” including the conversion or demolition of a “residential structure” containing fewer than three “dwelling units” and the conversion or demolition of more than one “residential structure” containing a total of 10 or fewer “dwelling units.”

Government Code section 65590, subdivision (d) uses the term “housing development” for the first time in the statute.   Subdivision (d) states in full:

“New housing developments constructed within the coastal zone shall, where feasible, provide housing units for persons and families of low or moderate income, as defined in Section 50093 of the Health and Safety Code. Where it is not feasible to provide these housing units in a proposed new housing development, the local government shall require the developer to provide such housing, if feasible to do so, at another location within the same city or county, either within the coastal zone or within three miles thereof. In order to assist in providing new housing units, each local government shall offer density bonuses or other incentives, including, but not limited to, modification of zoning and subdivision requirements, accelerated processing of required applications, and the waiver of appropriate fees.”

Subdivision (d) states that the affordable housing requirement applies to “[n]ew housing developments constructed within the coastal zone.”  (Italics added.)   After repeated references to “dwelling units” and “residential structure” earlier in the statute, subdivision (d) pointedly does not state that the affordable housing requirement applies only if there are “new dwelling units constructed within the coastal zone” or only if there are “new residential structures constructed within the coastal zone.”   Rather, the statute employs a term that encompasses not only dwelling units and residential structures but the whole of an improved tract of land:  “housing developments.”

Similarly, Government Code section 65590, subdivision (d) does not state that the affordable housing requirement applies only if a new housing development is constructed entirely within the coastal zone.   Such a construction would allow a developer to avoid providing affordable housing simply by combining in one development land outside the coastal zone and land within the coastal zone, and would undermine the Legislature's express intention that the statute be construed in a manner that promotes the construction of affordable housing (Gov.Code, § 65589, subd. (d)).  In my view, a proper interpretation and construction of the statutory language would compel the conclusion that if a substantial part of the development is constructed within the coastal zone, as here, the affordable housing requirement will apply.1

The revised project will occupy 44.69 acres of land, including 11.95 acres within the coastal zone.   The land within coastal zone is limited to the bluff face and part of Hastings Canyon.   Proposed construction within the coastal zone includes the construction of part of an access road, widening of Lincoln Boulevard, construction of a public view park, and erosion control measures, all of which will involve the grading of a total of 2.31 acres of land within the coastal zone.   A storm drain and water, sewer, and other utility lines also are to be constructed in or under the access road and partly within the coastal zone.   Thus, although all of the proposed residential structures and residential lots will be outside of the coastal zone, a substantial part of the development as a whole will be within the coastal zone.

The city concluded that the Mello Act affordable housing requirement does not apply and therefore did not determine whether it is feasible to provide housing for persons and families of low or moderate income either in the proposed development or elsewhere within the city, as required by Government Code section 65590, subdivision (d).  I would reverse the judgment on the Mello Act claim with directions to the superior court to order the city to make those required findings and comply with its statutory obligation to require Catellus to provide affordable housing in the development if it is feasible, and if it is not feasible then to provide affordable housing elsewhere within the city if that is feasible.

FOOTNOTES

1.   Aware of the pendency of the appeal and its possible impact on our decision, we delayed our final consideration of this matter until after the First District had filed its opinion.   We then asked the parties to file supplemental briefs discussing the significance of the opinion.   The parties agreed that the opinion should not affect our analysis of the issues presented in this case.   After consideration of the matter, we agree and therefore do not further discuss that opinion.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

6.   Government Code section 65590, subdivision (d) states in full:  “New housing developments constructed within the coastal zone shall, where feasible, provide housing units for persons and families of low or moderate income, as defined in Section 50093 of the Health and Safety Code. Where it is not feasible to provide these housing units in a proposed new housing development, the local government shall require the developer to provide such housing, if feasible to do so, at another location within the same city or county, either within the coastal zone or within three miles thereof. In order to assist in providing new housing units, each local government shall offer density bonuses or other incentives, including, but not limited to, modification of zoning and subdivision requirements, accelerated processing of required applications, and the waiver of appropriate fees.”

1.   Whether the construction within the coastal zone is a substantial part of the development should be determined on a case-by-case basis.

ALDRICH, J.

I concur:  KLEIN, P.J.