Filed 12/2/21 Chinatown Community etc. v. City of L.A. CA2/2

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CHINATOWN COMMUNITY 

FOR EQUITABLE 

DEVELOPMENT,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES et al,

Defendants and 

Respondents,

ATLAS CAPITAL GROUP, LLC,

Real Party in Interest and 

Respondent.

 B307157

 (Los Angeles County

 Super. Ct. No. 19STCP01710)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mitchell L. Beckloff, Judge. Affirmed.

Mitchell M. Tsai for Plaintiff and Appellant.
2

Remy Moose Manley, Sabrina V. Teller, Nathan O. George; 

Michael N. Feuer, City Attorney, Terry Kaufmann Macias, 

Assistant City Attorney, John F. Fox, Liliana M. Rodriguez, 

Deputy City Attorneys; DLA Piper, A. Catherine Norian, Kyndra

Joy Casper, Andrew J. Brady and Karen L. Hallock for 

Defendants and Respondents and Real Party in Interest and 

Respondent.

* * * * * *

Chinatown Community for Equitable Development (CCED) 

appeals from a trial court judgment denying its petition for writ 

of mandate and complaint for declaratory relief (petition). CCED 

filed the petition following the decision by respondents City of 

Los Angeles, Los Angeles City Council, and Los Angeles 

Department of City Planning (collectively city) to approve a 725-

unit, mixed-use development (the project) proposed by real party 

in interest and respondent Atlas Capital Group, LLC (Atlas).

CCED claims that the trial court misinterpreted the law in 

rendering its decision that Measure JJJ, a voter-approved 

initiative, did not apply to the project because Atlas’s map 

application was deemed complete six months prior to Measure 

JJJ’s effective date.

1

CCED further challenges the trial court’s determination 

that substantial evidence supported respondents’ compliance 

1 On November 8, 2016, the Los Angeles voters approved 

initiative ordinance JJJ, the Affordable Housing and Labor 

Standards Related to City Planning initiative (Measure JJJ), now 

codified in the Los Angeles Municipal Code (LAMC).
3

with the California Environmental Quality Act (Pub. Resources 

Code, § 21000 et seq.) (CEQA). Specifically CCED claims that 

substantial evidence does not support the conclusion contained in 

the environmental impact report (EIR) that no significant 

hazards exist. CCED claims that evidence of project site 

remediation and cleanup of soil contamination on the site 

occurring prior to 2003 does not support the current conclusion of 

no significant hazards due to certain modifications of the project 

since it was initially proposed.

Finally, CCED claims the city was required to recirculate 

the EIR based on significant new information and revisions in the 

final EIR, including revisions to the methane mitigation plan and 

removal of the project’s designation as a project required to 

comply with footnote 12 of the Central City North Community 

Plan (Footnote 12).

2

We find that under the applicable Government Code 

sections governing the approval process and the vesting of a 

developer’s rights, Measure JJJ is not applicable to the project. 

We further find that CCED failed to meet its burden of showing 

that there was insufficient evidence to support the less than 

significant hazards finding and the decision not to recirculate the 

EIR. Therefore, we affirm the judgment.

2 Footnote 12 of the Central City North Community Plan 

required 20 percent of the project to be set aside for affordable 

housing. Although the city initially indicated that Footnote 12 

was applicable to the project, that position was later changed 

because the city never formally adopted Footnote 12.
4

FACTUAL BACKGROUND

The project and original application

On August 1, 2012, Atlas’s predecessor-in-interest applied 

to develop the project on a 4.92-acre vacant site located directly 

across the street from the Chinatown Gold Line Metro Station 

(the site).

The city deemed Atlas’s predecessor’s application complete 

on December 7, 2012. On June 17, 2014, the city issued a notice 

of preparation (NOP) for a 685-residential-unit, mixed-use 

development with ground floor commercial, retail, and restaurant 

space.

The current approved project is a seven-story, mixed-use 

development with up to 725 residential units and over 51,000 

square feet of commercial uses, totaling up to 618,580 square feet 

of floor area on a 4.92-acre vacant site. Residential uses are 

located within 5 five-story residential towers atop a two-story 

podium used for parking and commercial space.

Revisions, application completion and draft EIR

In 2015 Atlas purchased the site through its affiliate, 

Chinatown Station Owner LLC, and revised the proposed 

development to a six-building, 770-multifamily-unit, mixed-use 

development with 51,290 square feet of commercial and retail 

space. Atlas sought (1) general plan amendments (GPA) to 

deviate from Footnote 12 of the Central City North Community 

Plan and to change the project site’s land use designation from 

“Hybrid Industrial” to “Regional Center Commercial,” (2) a zone 

change for the project site, (3) a height district change to increase 

the maximum floor area ratio from 1:5:1 to 3:1 and (4) a site plan 

review.
5

On May 13, 2016, Atlas submitted its application for the 

vesting tentative tract map (VTTM) to subdivide the project site. 

Thereafter Atlas was not advised by the city that its application 

was incomplete. Therefore, the application was deemed complete 

30 days later, on June 13, 2016, by operation of law. (Gov. Code,

§ 65943.)

On June 7, 2016, the city published a new NOP and notice 

of a June 22, 2016 public scoping meeting. The new NOP 

described the 770-unit project, including the requested GPA, zone 

and height district changes, and a site plan review. The NOP 

also added a master conditional use permit (MCUP) and a 

specific plan amendment (SPA) to reflect the project site’s 

exemption from the Cornfields Arroyo Seco Specific Plan (CASP) 

provisions and to correct the community plan land use map.

3

The city circulated a draft EIR (DEIR) for public review 

beginning March 15, 2018.

Revisions to the project and final EIR

In response to stakeholder concerns and at the city’s 

request, Atlas redesigned the 770-unit project to create the 

project that the city ultimately approved, reducing it to five 

buildings with no more than 725 residential units and other 

minor modifications. The modifications were revealed and 

analyzed in the final EIR, which was released on August 31, 

2018.

The final EIR also acknowledged that the applicant 

withdrew the request for the GPA to deviate from Footnote 12 of 

3 The SPA request was eliminated in the final EIR because 

the project is not subject to the CASP provisions under an 

express exemption in the CASP. Therefore no SPA was required.
6

the Central City North Community Plan. The city had 

determined after release of the DEIR, that Footnote 12 had been 

proposed but never adopted, and as a result Footnote 12 had 

never applied to either the site or the project.

Certification of the EIR and approvals of the project

On September 26, 2018, the city’s deputy advisory agency 

considered the requested project VTTM and on November 6, 

2018, issued its letter of determination setting forth its decisions 

to (1) certify the EIR, (2) adopt related environmental findings 

and a mitigation monitoring program and (3) approve the VTTM. 

Various unrelated appeals were filed. CCED did not appeal.

On December 13, 2018, the city planning commission (CPC) 

approved the MCUP and site plan review and recommended that 

the city approve the GPA, zone change, and height district

change. The parties in the unrelated appeals further appealed to 

the city council.

On January 18, 2019, the CPC denied the unrelated 

appeals. It also recommended that the city council approve the 

GPA, zone change, and height district change. The parties

appealed the CPC’s denial of their appeals and the VTTM, 

MCUP, site plan review and certification of the EIR to the city 

council.

On March 19, 2019, the city council’s Planning and Land 

Use Management (PLUM) committee heard the appeals. It also 

considered the requested GPA and zone and height district 

changes, and Atlas’s request for clarification of various 

corrections to the project’s conditions of approval, including the 

removal of the affordable housing condition.

Following the hearing the PLUM committee recommended 

that the city council approve a modified version of the CPC’s 
7

recommendation. Specifically the PLUM committee 

recommended that the city council (1) uphold certification of the 

EIR and adopt the findings of the PLUM committee as the 

findings of the city council; (2) approve the GPA resolution; (3) 

present and adopt a new ordinance dated March 20, 2019, for the 

zone and height district changes subject to conditions of approval 

modified by the PLUM committee; and (4) deny the CPC appeals 

and sustain approval of the VTTM, MCUP and site plan review 

subject to conditions of approval modified by the PLUM 

committee. When considering the CPC’s recommendation on the 

zone change, the PLUM committee adopted modified conditions 

of approval that removed the affordable housing requirement.

On March 22, 2019, the city council adopted the PLUM 

committee’s report in full and approved the project.

PROCEDURAL HISTORY

CCED filed its verified petition in the trial court on May 8, 

2019. The city and Atlas filed their answers on September 13, 

2019.

On January 3, 2020, CCED filed its memorandum of points 

and authorities in support of its petition. On February 10, 2020, 

the city and Atlas each filed opposition briefs. CCED filed its 

reply on February 25, 2020.

A court trial was held on March 11, 2020. On April 29, 

2020, the trial court issued a written order denying CCED’s 

petition in full. The trial court resolved CCED’s challenge under 

Measure JJJ by analyzing relevant Government Code sections as 
8

applied to undisputed facts.4 Based on its analysis the trial court 

concluded that the city properly determined that Measure JJJ 

did not apply to the project.

Among many other issues the trial court also addressed 

CCED’s claim that the EIR’s conclusion that the soil 

contamination on the site would not result in significant soil 

contamination-related impacts was not supported by substantial 

evidence. After analyzing the evidence the trial court concluded 

that CCED did not meet its burden of demonstrating that 

insufficient evidence supported the city’s finding of a less than 

significant hazard from soil contamination.

The trial court also addressed CCED’s claims regarding 

recirculation of the EIR. Specifically the CCED argued that 

recirculation was required due to (1) the city’s post-DEIR 

disclosure of the methane mitigation plan and (2) the city’s postDEIR removal of Footnote 12’s application to the project.

As to the methane mitigation plan, the court found that the 

DEIR had disclosed the existence of methane at the site. The 

DEIR had also disclosed that LAMC section 91.7103, the Los 

Angeles Methane Seepage Regulations (Methane Code), would 

apply to the project and would be incorporated into the project’s 

design. The court found that the additional information 

regarding methane mitigation in the final EIR “merely amplifies 

the information provided by the DEIR,” providing more specifics 

related to the regulatory compliance identified in the DEIR. 

4 The trial court referenced Government Code sections 

65943, 66418.1, 66474.2, and 66498.1.
9

Thus, the trial court concluded the city was not required to 

recirculate the DEIR under the CEQA guidelines.

As to the removal of Footnote 12, the trial court found that,

because CCED made no argument as to any environmental 

impact resulting from this change, CEQA does not require 

recirculation on this issue. Instead the court found that the 

change was only a clarification of the legal requirements 

applicable to the project.

Judgment denying CCED’s petition was entered on 

June 16, 2020.

CCED filed a notice of appeal from the judgment on 

August 10, 2020.

DISCUSSION

I. Applicable law and standards of review

“The standard of review in a CEQA case . . . is abuse of 

discretion.” (Sierra Club v. County of Fresno (2018) 6 Cal.5th 

502, 512.) An agency may abuse its discretion under CEQA by 

either “failing to proceed in the manner CEQA provides or by 

reaching factual conclusions unsupported by substantial 

evidence.” (Sierra Club, at p. 512.) We “determine de novo 

whether the agency has employed the correct procedures,” but 

“accord greater deference to the agency’s substantive factual 

conclusions.” (Ibid.) Our review of the administrative record in a 

CEQA case is the same as the trial court’s—we review “the 

agency’s action, not the trial court’s decision.” (Vineyard Area 

Citizens for Responsible Growth, Inc. v. City of Rancho Cordova 

(2007) 40 Cal.4th 412, 427 (Vineyard).) Thus we independently 

determine whether the administrative record demonstrates legal 
10

error or contains substantial evidence to support the agency’s 

factual determinations. (Ibid.)

At issue on appeal is whether the city was required to apply 

the requirements of Measure JJJ to the project. In resolving this 

issue, we must consider whether the Subdivision Map Act (Gov. 

Code, § 66410 et seq.) barred application of Measure JJJ to the 

project. Our review of the statutory scheme and its application to 

undisputed facts is de novo. (Tarbet v. East Bay Municipal 

Utility Dist. (2015) 236 Cal.App.4th 348, 354.)

In reviewing the agency’s approval of an EIR, we must 

determine whether the approval is “‘supported by substantial 

evidence in the record.’” (Laurel Heights Improvement Assn. v. 

Regents of University of California (1988) 47 Cal.3d 376, 392-

393.) Substantial evidence is defined 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.’” (Id. at p. 393.) 

Courts are “not to determine whether the EIR’s ultimate 

conclusions are correct but only whether they are supported by 

substantial evidence in the record and whether the EIR is 

sufficient as an information[al] document.”(Association of 

Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 

1383, 1391.) We review the administrative agency’s findings to 

determine whether they are supported by substantial evidence, 

then determine whether those findings support the 

administrative order or decision. (Antelope Valley Press v. 

Poizner (2008) 162 Cal.App.4th 839, 851.) Under the substantial 

evidence standard of review, we must resolve reasonable doubts 

in favor of the administrative finding and decision. (Laurel 
11

Heights Improvement Assn. v. Regents of University of California 

(1993) 6 Cal.4th 1112, 1135 (Laurel Heights).)5

When an EIR is challenged as inadequate we presume the 

agency’s decision to certify the EIR is correct. The party 

challenging the EIR bears the burden of establishing otherwise. 

(Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530.)

II. Applicability of Measure JJJ

A. Measure JJJ

On November 8, 2016, the voters in the city approved 

Measure JJJ pursuant to a special municipal election. The city 

voters were asked:

“Shall an ordinance: 1) requiring that certain 

residential development projects provide for 

affordable housing and comply with prevailing wage, 

local hiring and other labor standards; 2) requiring 

the city to assess the impacts of community plan 

changes on affordable housing and local jobs; 3) 

creating an affordable housing incentive program for 

developments near major transit stops; and 4) 

making other changes; be adopted?”

On December 13, 2016, the city council adopted the city 

clerk’s certification of the election results. Pursuant to Elections 

Code section 9217, the approved measure went into effect 10 days 

after certification of the election results.

Also on December 13, 2016, the city council adopted 

ordinance No. 184745, which revised and added to certain 

5 “There is no practical difference between the standards of 

review applied under traditional or administrative mandamus.” 

(Friends of the Old Trees v. Department of Forestry & Fire 

Protection (1997) 52 Cal.App.4th 1383, 1389.)
12

provisions of the LAMC and Los Angeles Administrative Code 

(LAAC) as approved by city voters. LAMC sections 11.5.6, 11.5.8, 

11.5.11, 12.22 and LAAC section 5.522 contain the amendments 

approved through Measure JJJ.

The LAMC changes permitted the city to approve “a 

discretionary [GPA] or any zone change or height-district change 

that results in increased allowable residential floor area, density 

or height, or allows a residential use where previously not 

allowed” for a residential multiunit rental project where the 

project meets certain “on-site affordability provisions” and 

compliance with enumerated job standards. (LAMC, § 11.5.11, 

subd. (a).)

Specifically if the “[GPA], zone change or height district 

change allows a residential use where not previously allowed, 

then the Project shall provide no less than 5 [percent] of the total 

units at rents affordable to Extremely Low Income households, 

and either 11 [percent] of the total units at rents affordable to 

Very Low Income households or 20 [percent] of the total units at 

rents affordable to Lower Income households . . . .” (LAMC,

§ 11.5.11, subd. (a)1.(iii).)

Measure JJJ went into effect on December 23, 2016.

B. Proceedings below and CCED’s argument on 

appeal

CCED argues that the project was approved in violation of 

Measure JJJ. This argument was also made in the trial court. 

Specifically CCED argued that the city erred in granting land 

entitlements—“a [GPA] changing the Project site’s General Plan 

designation from Hybrid Industrial to Regional Center 

Commercial, a zone change, a height district change, and an 

increase in floor area ratio—without requiring compliance with 
13

Measure JJJ.” CCED argued that Measure JJJ applied to the 

project because at the time the city approved these entitlements, 

the voters had approved the measure.

The city responded that Measure JJJ was not applicable to 

the project because the project was filed and deemed complete 

prior to the adoption of Measure JJJ. Atlas submitted its VTTM

on May 13, 2016. On June 13, 2016, the VTTM application was 

deemed complete by operation of law. Measure JJJ did not go 

into effect until December 2016. After analyzing the relevant 

Government Code provisions the trial court determined that upon 

conditional approval of its VTTM application, Atlas had a vested 

right to develop the property in substantial compliance with the 

“pre-Measure JJJ ordinances, policies, and standards.” The trial 

court rejected appellant’s argument that the city was required to 

impose Measure JJJ conditions on the project “given [Atlas’s

VTTM] application was deemed complete six months prior to 

Measure JJJ’s effective date.”

CCED argues that the trial court erred in construing the 

city’s approval of the VTTM to grant Atlas a vested right to 

proceed with the project given that the VTTM application was 

conditioned upon the city council ultimately legislatively 

approving the project’s GPA and zoning and height district 

changes. CCED argues that the project was inconsistent with the 

city’s general plan as well as permitted zoning and height district 

restrictions and as a result was contingent upon the city 

legislatively modifying the land use restrictions that applied to 

the project site. CCED argues that the trial court erred in 

finding that the vesting provisions of the Subdivision Map Act, 

Government Code section 66474.2, exempted the project’s 

legislative approvals from Measure JJJ.
14

C. Applicable Government Code sections

The Subdivision Map Act regulates and controls the 

division of units of land. (Gov. Code, §§ 66411, 66424.)

The relevant Government Code provisions include the 

following:

Government Code section 65943, subdivision (a), which 

states, in relevant part:

“Not later than 30 calendar days after any 

public agency has received an application for a 

development project, the agency shall determine in 

writing whether the application is complete and shall 

immediately transmit the determination to the 

applicant for the development project. If the 

application is determined to be incomplete, the lead 

agency shall provide the applicant with an 

exhaustive list of items that were not complete. If 

the written determination is not made within 30 days 

after receipt of the application, and the application 

includes a statement that it is an application for a 

development permit, the application shall be deemed 

complete for purposes of this chapter.”

Government Code section 66418.1 provides:

“‘Development’ means the uses to which the 

land which is the subject of a map shall be put, the 

buildings to be constructed on it, and all alterations 

of the land and construction incident thereto.”

Government Code section 66474.2, subdivision (a) provides, 

in relevant part:

“Except as otherwise provided in subdivision 

(b) or (c), in determining whether to approve or 

disapprove an application for a tentative map, the 

local agency shall apply only those ordinances, 

policies, and standards in effect at the date the local 
15

agency has determined that the application is 

complete pursuant to Section 65943 of the 

Government Code.”

Government Code section 66498.1 provides, in relevant 

part:

“(b) When a local agency approves or 

conditionally approves a vesting tentative map, that 

approval shall confer a vested right to proceed with 

development in substantial compliance with the 

ordinances, policies, and standards described in 

Section 66474.2. . . .

“(c) Notwithstanding subdivision (b), the local 

agency may condition or deny a permit, approval, 

extension, or entitlement if it determines any of the 

following:

“(1) A failure to do so would place the residents 

of the subdivision or the immediate community, or 

both, in a condition dangerous to their health or 

safety, or both.”

D. Analysis

CCED admits that Measure JJJ became effective in 

December 2016, approximately six months after the project’s 

VTTM was deemed complete by operation of law. (Gov. Code,

§ 65943, subd. (a).)

The vesting provisions of the Subdivision Map Act, quoted 

above, limit a public agency’s ability to apply ordinances, policies 

and standards to proposed development projects. CCED does not 

dispute that, as set forth in the above statutes, a public agency 

may only apply those ordinances, policies and standards that are 

in effect when the agency deems a filed application for a VTTM to 

be complete. (Gov. Code, §§ 65943, 66474.2, 66498.1.) 

“[Government Code] [s]ection 66498.1 et seq. were intended to 
16

create a vested right affording greater protection and arising 

earlier in the development process than the right available under 

the common law doctrine.” (Kaufman & Broad Central Valley, 

Inc. v. City of Modesto (1994) 25 Cal.App.4th 1577, 1588 

(Kaufman).) The purpose of this section is to “‘offer[] developers a 

degree of assurance, not previously available, against changes in 

regulations.’” (Ibid.) “It effectively freezes in place the 

ordinances, policies, and standards in effect at the time the 

vesting tentative map application is determined to be complete.” 

(Ibid.; see Bright Development v. City of Tracy (1993) 20 

Cal.App.4th 783, 793 (Bright) [noting that in enacting the vesting 

tentative map statutes, the Legislature intended that “‘[t]he 

private sector should be able to rely upon an approved vesting 

tentative map prior to expending resources and incurring 

liabilities without the risk of having the project frustrated by 

subsequent action by the approving local agency’”].)

CCED does not dispute the law stated above. However, it 

claims that the trial court erred in construing the city’s approval 

of the project’s VTTM to grant a vested right to proceed with the 

project in this case because the project was conditioned on the 

city council ultimately approving the project’s GPA and zoning 

and height district changes. CCED cites no specific law or 

authority suggesting that the Subdivision Map Act’s vesting 

provisions are inapplicable in cases where the applicant requests 

amendments or zone changes.6

6 Indeed counsel for CCED conceded the absence of legal 

authority for this argument at oral argument of the matter.
17

In fact the Subdivision Map Act expressly permits an 

applicant to file a VTTM application while concurrently seeking 

“changes in applicable ordinances, policies or standards in 

connection with the same development project.” (Gov. Code,

§ 66474.2, subd. (c).) The statute specifies that “any ordinances, 

policies or standards adopted pursuant to the applicant’s request 

shall apply.” (Ibid.) Nothing in the statutory language suggests 

that the general rule—that ordinances, policies or standards 

enacted after a VTTM application is deemed complete may not be 

retroactively imposed on a project—is any different when an 

applicant seeks changes such as GPA’s or zoning changes. (See

Bright, supra, 20 Cal.App.4th at p. 788 [“The most notable 

feature of a vesting tentative map is that on its approval or 

conditional approval, the right vests in the subdivider to proceed 

with development in ‘substantial compliance with the ordinances, 

policies and standards’ in effect on the date on which the 

subdivider’s application was deemed complete.”].)

CCED further argues that Measure JJJ was not a general 

plan, specific plan, zoning, or subdivision ordinance. Instead 

CCED argues it was a voter initiative that imposes substantive 

requirements on the city’s process for legislatively amending the 

city’s general plan or zoning changes. CCED attempts to 

distinguish Kaufman, supra, 25 Cal.App.4th 1577 and Bright, 

supra, 20 Cal.App.4th 783 on the ground that those cases 

involved generally applicable ordinances, while this case involves 

“conditions placed upon legislative changes to land use 

ordinances.” CCED claims that Atlas did not have a vested right 

to approval of its requests and the city’s voters were free to 

impose additional conditions such as Measure JJJ’s affordability 

and labor standards as part of its approval of those conditions.
18

Again CCED’s argument lacks any legal support. There is 

no suggestion in any of the statutes that a later-imposed 

restriction—regardless of what aspect of the process it applies 

to—may be imposed after the developer’s VTTM is deemed 

complete. CCED is essentially asking for a change in the law 

that permits the relevant agencies to impose additional 

conditions after approval of the VTTM’s if those conditions have 

to do with the developer’s requested amendments to the general 

plan or zoning or height district changes. We are not inclined to 

carve out such an exception in the absence of precedent.

Further there is no reason to categorize Measure JJJ and 

the subsequent amendments to the LAMC as anything other 

than changes in standards that the Subdivision Map Act 

intended to cover. Contrary to CCED’s argument Measure JJJ 

was proposed as an ordinance from its inception. Measure JJJ 

was described as “Initiative Ordinance JJJ.” CCED admits that 

Measure JJJ was enacted through amendments to the LAMC, 

including LAMC section 11.5.11. Thus regardless of its origin

once it, as a voter initiative, was enacted by the city in December

2016 through ordinance No. 184745, it became a generally 

applicable land use ordinance.

Under the governing provisions of the Government Code 

the relevant two-part question is: (1) whether the conditions 

imposed by Measure JJJ, as enacted through the LAMC, 

constituted an ordinance, policy or standard; and (2) whether it 

was in effect at the time that the VTTM application for the 

project was deemed complete. (Kaufman, supra, 25 Cal.App.4th 

at p. 1590 [“the critical point in the process for the purposes of 

the vesting tentative map statutes is the date on which the map 

application is complete”]; see Bright, supra, 20 Cal.App.4th at 
19

p. 795 [“We consider whether the record establishes the City had 

an ordinance, policy, or standard in effect at the time plaintiff’s 

vesting tentative map application was deemed complete.”].) The 

two-part answer is: (1) yes, Measure JJJ and the subsequent 

amendments to the LAMC are properly categorized as an 

ordinance, policy or standard under the vesting tentative map 

statutes; and (2) no, it was not in effect at the time the VTTM 

application for the project was deemed complete.

In short, the city and the trial court properly concluded 

that Measure JJJ was inapplicable to the project.

III. CEQA challenges

A. CEQA

The purpose of CEQA is to inform decisionmakers and the 

public about the potential significant environmental effects of a 

project. (Cal. Code Regs., tit. 14, § 15002, subd. (a)(1).) To that 

end an EIR may be required “to provide public agencies and the 

public in general with detailed information about the effect which 

a proposed project is likely to have on the environment; to list 

ways in which the significant effects of such a project might be 

minimized; and to indicate alternatives to such a project.” (Pub. 

Resources Code, § 21061.) An EIR must “‘include a detailed 

statement setting forth . . . [¶] . . . [a]ll significant effects on the 

environment of the proposed project.’ ([Pub. Resources Code,] 

§ 21100, subd. (b)(1).)” (Vineyard, supra, 40 Cal.4th at p. 428.) 

The EIR has been described as an “‘“environmental ‘alarm bell’ 

whose purpose it is to alert the public and its responsible officials 

to environmental changes before they have reached ecological 

points of no return.”’” (Save Round Valley Alliance v. County of 

Inyo (2007) 157 Cal.App.4th 1437, 1446.)
20

CCED challenges the project’s EIR in several respects. We 

discuss each issue separately below and conclude that for each 

issue the city did not commit a prejudicial abuse of discretion. 

(Pub. Resources Code, § 21168.5.)

B. Substantial evidence supported the EIR’s 

conclusion that soil contamination created a 

less than significant hazard impact

The EIR concluded that the project would result in a less 

than significant impact—that it would not expose persons to 

substantial risk—from reasonably foreseeable conditions 

involving the release of hazardous materials in the environment. 

CCED contends that substantial evidence does not support this 

conclusion.

Specifically CCED contends that the groundwater and soil 

contamination could have significant impacts on outdoor workers 

and construction workers because the project departs from 

proposed uses initially assumed by a 2003 “No Further Action” 

determination letter (No Further Action letter) issued by the Los 

Angeles Regional Water Quality Control Board (LARWQCB). 

The No Further Action letter prohibited residential use of the 

ground floor. It also noted that at that time the project included 

no underground structures, green areas, or unpaved areas. 

CCED claims that the present project presently departs from the 

proposed use of the land at the time of the 2003 determination, 

therefore the EIR could no longer rely on the 2003 No Further 

Action letter. Because there was no recent sampling or 

investigation, CCED contends that the EIR’s reliance on the No 

Further Action letter was insufficient.
21

1. The evidence

The city’s hazards impact determination was based largely 

on section 4.5 of the EIR, captioned “Hazards and Hazardous 

Materials.” The EIR’s review of the history of the project site and 

the prior testing and remediation work was included in appendix 

E and spanned over 300 pages of technical documentation.

The project site was “developed as far back as 1905 when 

the property was part of a rail freight yard.” Structures on the 

site included “two freight houses, multiple rail lines, a wood yard, 

a coal yard, oil warehouses, small businesses, and dwelling 

units.” Prior to 1970 the site was owned by the Union Pacific 

Railroad. In 1970 it was acquired by the Los Angeles 

Metropolitan Transit Authority (MTA) to support an expansion of 

MTA train service to Pasadena. All on-site buildings were 

demolished in the 1980’s.

The project site was subject to a number of hazardous 

materials investigations between 1989 and 2002, which were 

listed in section 4.5 of the EIR.

7 An environmental site 

7 The hazardous materials investigations included: Final Site 

Report Underground Storage Tank Removal, prepared by 

Canonie Environmental in 1989; Workplan for Los Angeles 

County Metropolitan Transportation Authority Phase II 

Environmental Site, prepared by Weston in 1995; Phase I 

Environmental Assessment for Parcel PA-018, Metro Pasadena 

Blue Line prepared by Weston in 1996; Workplan for Parcel PA018 Further Investigation, prepared by Montgomery Watson in 

1999; Report of Environmental Soil and Groundwater 

Assessment, prepared by LAW Gibb Group in 2000; Remedial 

Action Plan, prepared by England Geosystems in 2001; Updated 
22

assessment was prepared in 1996, which stated that four 

underground storage tanks and approximately 30 cubic yards of 

impacted soil were removed from the project site in 1989. 

Ultimately, the MTA submitted a remedial action plan (RAP) 

that was submitted to, and approved by, the LARWQCB in 2001. 

The RAP was implemented, and all remaining contaminated soil 

was removed. Following the implementation of the RAP, the 

LARWQCB issued the No Further Action letter in 2003. The 

2003 No Further Action letter indicated that “past contamination 

on the Project Site has been fully identified and remediated to 

targeted cleanup levels. As a result, the Project Site itself is not 

included on the lists of hazardous materials sites compiled 

pursuant to Government Code Section 65962.5 and is not part of 

the Pacific Pipeline 2000 cleanup site.”

However, the No Further Action letter stipulated a deed 

restriction prohibiting the development of ground-level 

residential uses on the project site. The deed restriction was 

recorded on April 15, 2003.8

Remedial Action Plan, prepared by England Geosystems in 2001; 

Remedial Action Plan Implementation Summary and Site 

Closure Request, Parcel PA-018, prepared by England 

Geosystems in 2002; and Response to OEHHA Comments, 

Updated Remedial Action Plan Parcel PA-018, prepared by 

England Geosystems, 2002.

8 CCED asserts that the No Further Action letter “contains 

institutional controls of no underground structures, green areas, 

or unpaved areas.” In fact, the No Further Action letter does not 

mention these as “institutional controls.” Instead, the No 

Further Action letter merely describes the proposed project, 
23

The EIR documented that since the issuance of the No 

Further Action letter no uses have occurred at the project site 

that would warrant reconsideration of the letter, and no 

commenter offered any contrary evidence.

Based on a review of the reports of the various hazards 

materials investigations on the site dating back to 1989 and the 

stating: “The site is planned for development of a four-story 

building, with commercial, retail business on the lower level and 

housing on the other three floors. There are no planned 

underground structures, green areas, or unpaved areas at the 

Site.” There is no suggestion in the No Further Action letter that 

underground structures, green areas or unpaved areas are 

restricted or disallowed. CCED has provided a link to an 

explanation of the term “institutional controls”: 

<https://www.epa.gov/superfund/superfund-institutionalcontrols#:~:text=Institutional%20controls%20are%20non%2Deng

ineered.the%20integrity%20of%20the%20remedy> (as of Nov. 29, 

2021), archived at <https://perma.cc/7Z2N-MKQC>. The link 

does not suggest that the above description of the project may be 

considered an “institutional control.” Instead, institutional 

controls are “administrative and legal controls,” which “limit[] 

land or resource use and guide human behavior.” As an example, 

the Web site explains, “zoning restrictions prevent land uses—

such as residential uses—that are not consistent with the level of 

cleanup.” The only zoning restriction imposed on the project was 

the restriction against development of ground-level residential 

uses at the project site. CCED misrepresents the record by 

referring to the above description of the plan as imposing 

“institutional controls.” We decline to view them as such when 

the LARWQCB could easily have included restrictions on 

underground parking and open spaces in its recorded deed 

restriction. Instead LARWQCB declined to impose such 

restrictions.
24

prior testing and remediation work at the project site that 

culminated in the No Further Action letter, the EIR concluded 

“the Project Site has been adequately investigated and all known 

soil contamination has been remediated (soil excavated, removed, 

and disposed of) to the required cleanup levels.” The EIR 

explained, “The Project would have no ground-level residential 

uses; all residential uses would be built atop subterranean 

parking or the podium parking structure.” The EIR further 

concluded that “[c]onstruction activities, including excavation of 

on-site soils and site preparation, would not involve unusual or 

acutely hazardous materials and would not create a hazard to the 

public through the release of hazardous materials related to soil 

contamination and related impacts would be less than 

significant.”

In discussing the cumulative impact of the project, the EIR 

determined that because “the Project Site has been subject to the 

issuance of a regulatory clearance as a result of the remediation 

of any onsite subsurface contamination, the Project would not 

result in a cumulatively considerable contribution to any 

unidentified cumulatively significant impacts.” The EIR 

concluded that “Project-level and cumulative impacts with 

respect to hazards and hazardous materials would be less than 

significant.”

On September 26, 2018, Milena Zasadzien of the 

environmental analysis division of the Los Angeles Department 

of City Planning, e-mailed Jeanette Liu and David Young of the 
25

California State Water Resources Control Board (water board)9

stating, “The City of Los Angeles, Department of City Planning is 

currently reviewing a project proposal for a site located at 924 

N. Spring Street. The [LARWQCB] previously issued a No 

Further Action letter on the site in 2003. Would you have any 

availability this week for a phone call to discuss the letter and 

site?” On October 2, 2018, Young responded, “we closed the 

referenced site back in 2003 with the only restrictions being that 

you must notify the [LARWQCB] if 1) additional contamination is 

encountered during future activities at the site; or 2) there is a 

change of the proposed land use. Our oversight with respect to 

this project is complete, unless you are providing notice regarding 

items 1 & 2 (above).” Zasadzien replied, “No additional 

contamination has been found, but the project has slightly 

changed. The original proposal was for a mixed use commercial 

and residential project. The current proposal is the same but also 

includes subterranean parking, but not deeper than the level of 

soil that was reviewed previously. Would the underground 

component require any additional water board review?” Young 

responded, “unless additional contamination is encountered 

during future activities at the site (such as during the excavation 

work for the subterranean parking structure), no further review 

is needed from the [LARWQCB].”

9 The water board is a branch of the California 

Environmental Protection Agency. (About the California Water 

Boards <https://www.waterboards.ca.gov/publications_forms/

publications/factsheets/docs/boardoverview.pdf> at p. 3 [as of 

Nov. 29, 2021], archived at <https://perma.cc/85ES-PJDD>.)
26

The evidence described above constitutes substantial 

evidence supporting the city’s less than significant hazards 

conclusion regarding soil contamination.

2. CCED has failed to show a significant 

departure from the proposed use of the land 

since the time of the 2003 No Further Action 

letter

CCED claims that modifications to the final EIR have 

caused a departure from the proposed use of the land such that 

the No Further Action letter no longer supports the EIR’s 

conclusion of less than significant hazards resulting from soil 

contamination. Specifically CCED contends that the project now 

contains subterranean parking and open space, which departs 

from the assumptions made in the No Further Action letter.

CCED relies on Citizens for Responsible Equitable 

Environmental Development v. City of Chula Vista (2011) 197 

Cal.App.4th 327, 332, for the proposition that disturbing 

contaminated soil can be a physical change in the environment. 

CCED asserts that it is undisputed that the project site contains 

contamination that would be disturbed and that the project 

departs from the proposed uses assumed by the 2003 No Further 

Action letter. Therefore, CCED claims the EIR could no longer 

rely on the 2003 No Further Action letter. In addition CCED 

contends the DEIR did not contain any recent investigations or 

sampling. CCED claims that the city should have conducted 

additional investigations to determine the hazards with the new 

proposals of underground parking and open space.

CCED’s argument is based on the language in the No 

Further Action letter stating:

“Therefore, it was concluded by OEHHA [(Office of 

Environmental Health Hazard Assessment)] that the 
27

Site will not pose any significant health threat to 

humans following the development of the property. 

OEHHA also noted that as long as the nature, extent, 

and severity of the contamination does not 

significantly depart from those identified at this Site, 

and the use of the land does not depart from the 

proposed use, the health risks associated with 

residual contamination left in soils at the Site will 

not exceed—and most likely will be less than—those 

estimated for the protection of human health.”

CCED interprets this to mean that any proposed design 

change constitutes a departure from the proposed use. CCED 

presents no legal authority that design changes, such as the 

addition of underground parking and open space, constitute a 

departure from the proposed use of the property that was 

contemplated in 2003. As the city points out, both the 2003 

project and the current project present the same proposed use—

mixed-use developments with commercial, retail businesses on 

the ground floor and housing on the upper floors. Neither the No 

Further Action letter nor the recorded deed restriction prohibit 

underground parking or outdoor open space. The No Further 

Action letter did not suggest that design changes such as those 

challenged here would present obstacles or change the conclusion 

of the No Further Action letter that “the health risks associated 

with residual contamination left in soils at the Site will not 

exceed—and most likely will be less than—those estimated for 

the protection of human health.”

Further, there is evidence in the record that the city 

provided written notice to the water board that the project had 

been revised to include underground parking. The city received 

written reassurance in response that “unless additional 

contamination is encountered during future activities at the site 
28

(such as during the excavation work for the subterranean 

parking structure), no further review is needed from the 

[LARWQCB].” This written exchange provides further support 

for the city’s position that any soil contamination presented a less 

than significant hazard and undermines CCED’s position that 

the evidence of prior investigations and remediation of soil 

contamination were insufficient.10

C. CCED has failed to show that recirculation of 

the EIR was required

CCED argues that the city was required to recirculate the 

EIR for two reasons: first, because the city revised the final EIR 

to include a methane mitigation plan to mitigate methane 

hazards from the project; and second, because the city revised the 

EIR to remove the project’s Footnote 12 designation and the 

10 As the city points out in its respondents’ brief, CCED did 

not directly address the evidence of written e-mails between the 

city and the water board concerning the revisions to the plan 

including subterranean parking. Instead CCED claims, “nothing 

in the record . . . indicates that either the City or the Applicant 

notified the [LARWQCB] in writing of the significant change in 

the project since 2003.” “As with all substantial evidence 

challenges, an appellant challenging an EIR for insufficient 

evidence must lay out the evidence favorable to the other side 

and show why it is lacking.” (Defend the Bay v. City of Irvine 

(2004) 119 Cal.App.4th 1261, 1266.) CCED’s failure to present a 

fair and adequate statement of the evidence that CCED claims is 

insufficient may be “‘“‘deemed tantamount to a concession that 

the evidence supports the findings.’”’” (Markley v. City Council 

(1982) 131 Cal.App.3d 656, 673.) Despite this omission we have 

examined the evidence and found it sufficient to constitute 

substantial evidence to support the findings.
29

associated GPA, which would have addressed the city’s 

inconsistency with Footnote 12.

For the reasons set forth below, we find that CCED has 

failed to show that recirculation was required for either reason.

1. Recirculation requirement

Public Resources Code section 21092.1 provides: “When 

significant new information is added to an environmental impact 

report after notice has been given pursuant to Section 21092 and 

consultation has occurred pursuant to Sections 21104 and 21153, 

but prior to certification, the public agency shall give notice again 

pursuant to Section 21092, and consult again pursuant to 

Sections 21104 and 21153 before certifying the environmental 

impact report.”

Under this statute, “when a lead agency adds ‘significant 

new information’ to an EIR after completion of consultation with 

other agencies and the public [citations] but before certifying the 

EIR, the lead agency must pursue an additional round of 

consultation.” (Vineyard, supra, 40 Cal.4th at p. 447.) New 

information is “significant” only if “the EIR is changed in a way 

that deprives 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 such an effect.” (Laurel 

Heights, supra, 6 Cal.4th at p. 1129.)

“The [CEQA] Guidelines describe the types of ‘significant 

new information’ requiring recirculation of a draft EIR.” 

(Citizens for a Sustainable Treasure Island v. City and County of 

San Francisco (2014) 227 Cal.App.4th 1036, 1063.) These include 

“disclosure of ‘[a] new significant environmental impact,’ ‘[a] 

substantial increase in the severity of an environmental impact,’ 

and the addition of a ‘feasible project alternative or mitigation 
30

measure considerably different from the others previously 

analyzed.’” (Ibid.) Recirculation is also required where “[t]he 

draft EIR was so fundamentally and basically inadequate and 

conclusory in nature that meaningful public review and comment 

were precluded.” (Cal. Code Regs., tit. 14, § 15088.5, subd. (a)(4).)

Recirculation is not required “where the new information 

added to the EIR merely clarifies or amplifies or makes 

insignificant modifications in an adequate EIR.” (Cal. Code 

Regs., tit. 14, § 15088.5, subd. (b).) However, the decision not to 

recirculate an EIR must be supported by substantial evidence. 

(Laurel Heights, supra, 6 Cal.4th at p. 1135.)

2. Substantial evidence supports the agency’s 

decision that recirculation was not required due 

to inclusion of the methane mitigation plan

CCED explains that the methane mitigation plan was 

developed in July 2017 to mitigate the methane hazards resulting 

from the project. Although the DEIR was released in March

2018, the city did not include the methane mitigation plan in the 

DEIR. It was only after commenters objected that the city added 

the methane mitigation plan to the final EIR, which was not 

recirculated for public comment.

CCED must show not only that the methane mitigation 

plan was new, but that it provided “significant new information” 

as defined under the law. (Pub. Resources Code, § 21092.1, 

italics added.) CCED argues that the methane mitigation plan 

constituted significant new information because none of this 

information was made available and disclosed to the public 

during the public review process. More importantly, CCED 

argues, the DEIR did not adequately disclose, analyze, or 

mitigate the project’s potentially significant methane-related 
31

impacts. CCED argues that this omission rendered the DEIR “so 

fundamentally and basically inadequate and conclusory in nature 

that meaningful public review and comment were precluded.” 

(Cal. Code Regs., tit. 14, § 15088.5, subd. (a)(4).)

The record shows that several public comments on the 

DEIR concerned its failure to describe in detail the project’s 

methane mitigation system. The city provided comprehensive 

responses to these comments. The city explained that the DEIR 

acknowledged that the project site is located in a city-designated 

methane zone, which means that methane is a condition of the 

existing setting, not an impact of the project. As such the 

methane need not be mitigated by the project. Instead, this 

condition, which existed in the setting, must be addressed 

through regulatory compliance. The EIR explained that the “Los 

Angeles Methane Seepage Regulations or Methane Code 

(Methane Code) establishes requirements for buildings and paved 

areas located in methane zones and methane buffer zones.” The 

city further explained that “[a]s noted in Section 4.5 of the Draft 

EIR, compliance with the Methane Code, as well as all other 

applicable federal, state, and local regulations, is required and 

would therefore be implemented as part of the Project.”

The purpose of the EIR is to inform the public of the 

potential significant environmental effects of a project. (Cal. 

Code Regs., tit. 14, § 15002, subd. (a)(1).) Therefore, an EIR must 

“‘include a detailed statement setting forth . . . [¶] . . . [a]ll 

significant effects on the environment of the proposed project.’ 

([Pub. Resources Code,] § 21100, subd. (b)(1).)” (Vineyard, supra,

40 Cal.4th at p. 428.) The methane mitigation program—which 

was developed as a result of existing conditions and in 

compliance with the Methane Code—does not qualify as an 
32

environmental effect of the project. (California Building Industry 

Assn. v. Bay Area Air Quality Management Dist. (2015) 62 

Cal.4th 369, 386 (California Building) [“CEQA generally does not 

require an analysis of how existing environmental conditions will 

impact a project’s future users or residents”].) Therefore it was 

not required to be detailed in the EIR. It follows that the DEIR 

was not “so fundamentally and basically inadequate and 

conclusory in nature that meaningful public review and comment 

were precluded.” (Cal. Code Regs., tit. 14, § 15088.5, subd. (a)(4).) 

An EIR cannot be declared inadequate based on information that 

was not required to be included. (California Building, supra, at 

p. 386.)

Further, “[a]n agency may rely on generally applicable 

regulations to conclude an environmental impact will not be 

significant and therefore does not require mitigation.” (San 

Francisco Beautiful v. City and County of San Francisco (2014) 

226 Cal.App.4th 1012, 1033.) San Francisco involved the 

installation of metal utility boxes housing telecommunications 

equipment on San Francisco sidewalks. (Id. at p. 1017.) The 

utility boxes were subject to the requirements for excavation 

permits found in a city public works order, which was “generally 

applicable to excavation permits for surface-mounted facilities.” 

(Id. at p. 1033.) The agency was entitled to rely on the generally 

applicable order in reaching its conclusion that the 

environmental impact would not be significant. (See Tracy First 

v. City of Tracy (2009) 177 Cal.App.4th 912, 934 [“the City did not 

fail to proceed in the manner required by law when it relied on 

the California Building Energy Efficiency Standards in 

determining that the project would not have a significant energy 

impact”].)
33

The cases cited by CCED are distinguishable. In Mountain 

Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 

1050, “the draft EID [(environmental impact document)] that was 

circulated to the public to inform them of the environmental 

consequences of the proposed 1988 mountain lion hunt was 

woefully inadequate.” It did not meaningfully address the impact 

of the proposed hunt on the national parks or forests. Instead, 

the document only stated a conclusion that “‘the proposed action 

will not significantly affect State and federal park land uses.” 

(Ibid.) The wildfire analysis was similarly only one sentence 

long. (Ibid.) The environmental impact document did not 

explain “in even minimum detail how it arrived” at its conclusion. 

(Ibid.) Unlike the present matter, Mountain Lion did not address 

an environmental issue that was subject to generally applicable 

regulations.

In Ukiah Citizens for Safety First v. City of Ukiah (2016) 

248 Cal.App.4th 256, the issue was whether a subsequent 

addendum addressing the energy impacts of a project cured the 

prior approval of an inadequate EIR. (Id. at pp. 265-266.) The 

city recognized the deficiencies in its EIR and adopted an 

addendum. (Id. at p. 265.) The Ukiah court concluded that 

“[b]ecause the EIR certified in this case was inadequate in its 

analysis of energy impacts of the project, recirculation and 

consideration of public comments concerning the energy analysis 

will be necessary before the EIR may be certified and the project 

approved.” (Id. at pp. 266-267.) Here, unlike in Ukiah, the city 

does not concede any inadequacies in its DEIR related to the 

methane mitigation plan. Instead, the city takes the position 

that its compliance with the Methane Code negated its obligation 

to include the methane mitigation plan in the DEIR. The city’s 
34

position is supported in the law. Therefore, the DEIR in this case 

was not inadequate.

Finally CCED cites Save Our Peninsula Committee v. 

Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 

131. In Save Our Peninsula, the issue of riparian rights “arose 

late in the environmental review process” and suffered from a 

“lack of analysis.” (Ibid.) “Neither the draft EIR nor the revised 

EIR had mentioned such a right.” (Id. at pp. 131-132.) Here, in 

contrast, the DEIR acknowledged that the project site is located 

in a city-designated methane zone, which means that methane is 

a condition of the existing setting, not an impact of the project. 

The EIR explained that the “Los Angeles Methane Seepage 

Regulations or Methane Code (Methane Code) establishes 

requirements for buildings and paved areas located in methane 

zones and methane buffer zones.” The city further explained that 

“[a]s noted in Section 4.5 of the Draft EIR, compliance with the 

Methane Code, as well as all other applicable federal, state, and 

local regulations, is required and would therefore be implemented 

as part of the Project.” Unlike Save Our Peninsula, the subject of 

methane mitigation was raised and adequately addressed 

through reference to the project’s compliance with the Methane 

Code.

CCED argues that the new information regarding the 

methane mitigation plan was significant under CEQA guidelines 

because “CEQA calls upon an agency to evaluate existing 

conditions in order to assess whether a project could exacerbate 

hazards that are already present” and “‘any potentially 

significant impacts of locating development in . . . areas 

susceptible to hazardous conditions . . . .’” (California Building, 

supra, 62 Cal.4th at p. 388.) CCED argues that the project 
35

acknowledges the dangers methane can pose, and the adoption of 

the methane mitigation plan is an admission that mitigation is 

necessary to ensure that the project’s hazards impacts from 

methane would be less than significant.

We disagree. The information contained in the final EIR 

“‘“merely clarifie[d] or amplifie[d]”’” the adequate information 

already contained in the DEIR. (Silverado Modjeska Recreation 

& Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 302 

[“[R]ecirculation of an uncertified EIR under [Public Resources 

Code] section 21092.1, is ‘not required where the new information 

added to the EIR “merely clarifies or amplifies [citations] or 

makes insignificant modifications in [citation] an adequate 

EIR.”’”]; see High Sierra Rural Alliance v. County of Plumas 

(2018) 29 Cal.App.5th 102, 127 [addition of maps and additional 

building standards merely clarified DEIR’s information]; Clover 

Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 

223 [new information in final EIR added narrative detail about 

the cultural resources’ characteristics where the DEIR already 

provided sufficient analysis regarding the cultural impacts].) The 

DEIR explained that the presence of methane is an existing 

condition of the project site, therefore the Methane Code applies. 

The DEIR explained that “[r]equirements for new construction 

within such zones include methane gas sampling and, depending 

on the detected concentrations of methane and gas pressure at 

the site, application of design remedies for reducing potential 

methane impacts.” The DEIR noted that the particular 

mitigation system would be based on the “site Design Level” with 

more involved systems “required at the higher Site Design 

Levels.” The DEIR concluded that upon compliance with the 
36

applicable laws there was no substantial risk to people using the 

site.

The additional information in the final EIR merely clarified 

and amplified this information. In response to public requests 

the city provided details regarding the methane mitigation plan 

required by the Methane Code, as well as available testing 

results. Based on the testing results the project site was 

determined to be “Site Design Level II (on a scale from I to V, 

with Site Design Level V being the highest level), in accordance 

with the Minimum Methane Mitigation Requirements set forth in 

the Methane Code.” The final EIR further explained, “Under a 

Site Design Level II, the Project Site’s methane gas mitigation 

system must, at a minimum, consist of: a 2-inch permeable 

aggregate layer on the subgrade; a drainage collection system 

drained to a sump; an impermeable methane gas barrier 

membrane above the aggregate layer; trench plus; and sealed 

conduits. A detailed Methane Gas Mitigation Plan is provided in 

Appendix E of the Final EIR.” The document concluded, “A 

passive Methane Mitigation System is required for compliance 

with the City’s Methane Code, and with regulatory compliance, 

impacts related to methane would be less than significant.”

This information, which merely provided further detail 

regarding the site’s design level and the relevant Methane Code 

requirements, did not provide significant new information. (See

Laurel Heights, supra, 6 Cal.4th at p. 1140 [“addition of the 

discussion of night-lighting glare is an insignificant modification 

to the EIR that does not disclose a new adverse environmental 

impact”].) CCED points to no evidence that compliance with the 

Methane Code would not ensure that the project would not 

exacerbate the hazards already present due to methane, or 
37

otherwise adversely impact the existing conditions. Under the 

circumstances, recirculation was not required.

3. Recirculation was not required based on 

elimination of the GPA to deviate from Footnote 

12

CCED argues that the recirculation requirement was also 

triggered when the city revised the DEIR to remove the project 

site’s Footnote 12 designation and the GPA, which would have 

addressed the project’s inconsistency with Footnote 12.

The DEIR stated that Footnote 12 applied to the site and 

set forth the affordable housing requirements of Footnote 12. In 

its permit application filed in 2015, Atlas sought a GPA for 

deviation from Footnote 12. The developer argued that the GPA

would allow for more retail space; employment positions; 

localized spending and activity; and more dwelling units for the 

city.

The final EIR deleted the GPA request seeking deviation 

from Footnote 12. The EIR explained:

“The original Project entitlement application included 

a request for a General Plan Amendment seeking 

relief from Footnote 12 of the Central City North 

Community Plan Land Use Map, relating to 

affordable housing. After the publication of the Draft 

EIR, the City determined that Footnote 12 was never 

formally adopted by the City (see Council File 07-

3868 for reference), and thus is not an effective 

regulation. The City is in the process of correcting 

the Central City North Community Plan Land Use 

Map to reflect the inapplicability of Footnote 12.”

As set forth above recirculation of an EIR is required only if 

“the EIR is changed in a way that deprives the public of a 

meaningful opportunity to comment upon a substantial adverse 
38

environmental effect of the project or a feasible way to mitigate or 

avoid such an effect.” (Laurel Heights, supra, 6 Cal.4th at 

p. 1129; see Cal. Code Regs., tit. 14, § 15088.5, subd. (a).) Here, 

the deletion of the GPA request for deviation from Footnote 12 

does not relate to either a “substantial adverse environmental 

effect of the project or a feasible project alternative or mitigation 

measure that would clearly reduce such an effect.” (Laurel 

Heights, supra, at p. 1120.) Instead, it relates to an affordable 

housing proposal that was never formally adopted by the city. 

Removing a request to deviate from an inapplicable legal 

requirement regarding affordable housing does not concern an 

environmental effect and therefore is not “‘significant new 

information’” requiring recirculation under the applicable law.

(Id. at p. 1129; see Cal. Code Regs., tit. 14, § 15088.5, subd. (a).)

DISPOSITION

The judgment is affirmed. Respondents are awarded their 

costs of appeal.

___________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.