Filed 1/14/ 21 Concerned Citizens of Bever ly Hills/Bel Air v. City of Beverly Hills CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CONCERNED CIT IZENS OF BEVERLY HILLS/BEL AIR,

P laintiff and Appellant,

v.

CITY OF BEVERLY HILLS,

Defendant and Respondent

,

LOMA LINDA TRUST

,

Real Part y in Interest and Respondent. B 297931

(Los Angeles County Super. Ct. No. BS171828 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard L. Fruin , Judge. Affirmed.2 Channel Law Group, Jamie T. Hall and Julian K. Quattlebaum , III for Plaintiff and Appellant. Laurence S. Wiener, City Attorney for Beverly Hills ; Richards, Watson & Gershon, Ginetta L. Giovinco and Stephen
D. Lee for Defendant and Respondent. Allen Matkins Leck Gamble Mallory & Natsis and Patrick A. Perry for Real Part y in Interest and Respondent

.

___________________________
INTRODUCTION

Before us is the review of a finding by respondent City of Beverly Hills (City) that the construction of two single

- family
homes (the Project) located on two adjacent parcel s of land on Loma Linda Drive (the Properties) is exempt from filing
environmental review documents otherwise required by the California Environmental Quality Act (CEQA ; Pub

. Res ources Code

, 1 § 21000 et seq .)

. The owner of these properties is respondent real part y in interest Loma Linda Trust (Real Party). As detailed below, t he City found that two exemptions from having to prepare an environmental impact report (EIR) or negative declaration 2 applied to the Project: the Class 2 and Class 3 exemptions. T he Class 2 exemption exempts projects
th at replace or reconstruct existing structures ( Cal. Code Regs., tit. 14, § 1530 2 , Guidelines for Implementation of CEQA (Guidelines) ) (Class 2 exemption) , and the Class 3 exemption

1 All further unspecified statutory references are to the Public Resources Code.

2 We describe these documents in our Factual Background and Procedural History.3

exempts small construction projects , i ncluding the construction of one to three single

- family homes ( Guidelines, § 15303) (Class 3 exemption) . The City approved the Project based on both exemptions

. Because we conclude that substantial evidence supports the City’s findings that the Project q ualifies for the Class 3 exemption, we do not address the City’s findings regarding the Class 2 exemption. The Class 3 exemption is subject to certain exclusion s known as “exceptions.” Two such exceptions are potentially applicable here. Very s imply summ arized, the first of the se exceptions focus es on whether the project it self is “unusual,” in
the sense that it has some feature distinguish ing it from others in the exempt class , and that this unusual feature pose s a risk to the environment. The second of these exceptions focuses on a project ’ s surroundings , that is

, whether the project poses special
risks to the environment because of its location or i ts relationship to environmental resources, such as natural phenom ena like
wildlife

. We refer to these exceptions in the body of our opinion
as the “ unusual circumstances ” and “ location ” exceptions

. A ppellant Concerned Citizens of Beverly Hills/Bel Air (Citizens) directs its challenges on appeal primarily to the City’s findings that these exceptions do not apply to the Project. Citizens also asserts that the City defined the proposed Pro j ect improperly so as to avoid further CEQA review. Stating the issue before us is the simple part. Elucidating our conclusion that substantial evidence support s the City’s
determinations is no t. The administrative record regarding development of the Properties is extensive and span s several

years

. CEQA itself is complex

, as are the authorities interpreting
it. We thus divide our opinion in to three parts.4 First , in our Factual Bac kground and Procedural History,

we set forth in chronological order the proceedings befo re the City involving Real Party’s efforts to develop the Properties. Second, we outline the analytic structure of CE QA, particularly focusing on the Class 3 exemption and exceptions to th at exemption

. Third, in our Discussion, we apply that analytic str ucture to the
record. We start with our standard of review, which itself is
multi

- layered under our high court’s guidance in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 ( Berkeley Hillside ).
As set fo rth in our D iscussion, we conclude that under Berkeley Hillside , the substantial evidence standard of review
dictates our review of whether the City erred in finding that the
unusual circumstance and location exceptions d id not apply to the Project and reject Citizens’s contention that our review is less deferential under a “fair argument” standard of review. Finally,

w e discuss the administrative record set forth in our Factual and Procedural Background and conclude that the Ci ty did not err in finding that the C lass 3 exemption exempted the Project from further CEQA review and that none of the exceptions to that exemption applies to the Project

. We thus affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. The Subject Properties
Th e Properties are located in Beverly Heights on 1184 Loma Linda Drive (the 1184 Property) and 1193 Loma Linda Drive (the 1193 Property ). W e refer to the 1184 Property and the 1193 Property collectively as the “Properties

, ” refer to each as “a Property,” and refer to the single

- family residences R eal Party intends to construct atop each Property as “the Residences.” The5

City has zoned t he Properties as “R

- 1,” suitable for single

- family
residential use. 3 They are bordered b y other single

- family
residen ces and are located at the end of a cul

- de

- sac at the end of Loma Linda Drive, a single

- lane residential street that is currently 22 feet wide.
S ome time before 2013, one single

- family home and one guest house sat atop the parc els currently comprising the Propert ies

. Real Party removed t hese structures in order to prepare the site for future development. There are no structures currently on the Properties. In 2013, R eal P arty proposed to construct a single

- family residence that would straddle both Properties. This attempt to create a single structure began by filing applications for various permits with the City. We refer to R eal P arty’s submission of permits to construct this residence as the “2 013 Application

, ” and the project envisioned by the 2013 Application as the “2013 Project.” The 2013 Application proposed a 23,632 square f eet single

family residence with an attached office and guest house. In order to create this structure, Real Party w ould have need ed to export approximately 8,081 cubic yards of earth material. The various approvals required to build the 2013 Project included a
Hillside R

- 1 Permit to export more than 3,000 cubic yards of earth material, a Tree Removal Permit for the re moval of an existing Canary Island pine tree, and approval of a street

3 Zoning groups R

- 1 to R

- 4 “generally involve[ ] dwellings, congregate care facilities and some other types of residential care facilities, as well as houses and apartments.” ( 7 Miller & Starr, Cal. Real Estate (4th ed. 2020 ) § 25:6.)6

vacation and acceptance of a street dedication to replace the existing turnaround at the end of Loma Linda Drive with a fire
truck turnout.
Unlike the Project that is before us, the Cit y did not find
the now

- abandoned 2013 Project exempt from CEQA review

. Instead, the City moved to the next step in the CEQA process and
conducted a n “ initial study ” to determine the 2013 Project’s possible environmental impacts. (See generally Save Our Schools v. Barstow Unified School Dist. Bd. of Education (2015) 240 Cal.App.4th 128, 137

- 139 [describing steps in the CEQA process].) The City then had two choices: to order preparation of an EIR, or order preparation of a “ negativ e declaration. ” 4 Here, t he City filed a “mitigated” negative declaration in connection with the 2013 Project (the 2013 MND). By filing the 2013 MND, the City found that although “ the initial study has identified potentially significant effects on the env ironment,

. . . (1) revisions in the project

. . . would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before t he [City] that the project, as revised, may have a significant effect on the environment. ” (§ 21064.5 ; see , e.g., Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 332 .)

4 An agency may file a negative declaration instead of an EIR when the agency’s “initial study” determines there is no substantial evidence that the project may have a significant effect on the environment. (See § 21064; see, e.g., Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1188

- 119 1.)7 In the end, t he 2013 Project did not go forward

. Real P arty explains i n its briefing that it abandoned the 2013 Project “[d] ue to community opposition.”

B. The 2016 Project The Project before us involves R eal P arty ’s second attempt to build on the Properties , which also has garnered community opposition . The current P roject envisions two single

- family
homes

— one atop each Property.
Real P arty filed separate building permits for each Property. The building permit application for the 1193 Property sought permission to build a two

- story, 8,194 square

- f oo t single

family home with a 2,629 square

- f oot basement. The building permit application for the 1184 Property sought permission to
build a two

- story, 7,924 square

- foot single

- family home with a 5,838 square

- foot basement and garage. In response to a c ity o rdinance, R eal P arty red esigned the Project to reduce the export of earth material below the level that would have required a n R

- 1 building permit from the City for the Project. 5 Real Party also agreed to the City’s demand that Real Party grant it easements and make improvements to Loma Linda

5 On August 30, 2016, the Beverly Hills City Council (City Council) adopted Ordinance No. 16

- O

- 2709, which amended the Beverly Hills Municipal Code to reduce the amount of export that would require approval of an R

- 1 permit from 3,000 cubic yards to 1, 500 cubic yards on any site in the City’s Hillside area that is adjacent to a street that is less than 24 feet wide. Following adoption of this ordinance, Real Party modified the plans for the Residence s such that the amount of export required would be le ss than 1,500 cubic yards, thereby avoiding the need for an R

- 1 permit.8

Drive t o improve emergency vehicle access in the event of a fire

. S pecifically, t he City demanded that Real Party (1) dedicate easements for a fire truck turnaround on both Properties

, (2) agree to remove all encroachments in the easement area

, and (3) construct street improvements required for the fire
turnaround

. C. Review of the Project by the City The City ’s p lanning c ommission held its first public hearing on the Project on October 12 , 2017. At that hearing, it unanimously adopted Resolution Nos. 1825 and 1826 in which it
found that the aforementioned easements dedicated for a
firetruck turnaround were consistent with the City’s “ General
Plan. ” 6 The City Council held a second hearing on November 7, 2017, at which it adopted Resolution No. 17

- R

- 13165 approving agreements between the City and Real Party containing the

easement dedications for public safety purposes along Loma Linda Drive adjacent to the 1184 Propert y and 1193 Propert y. Mayor Lili Bosse began the hearing by emphasizing that “[p]ermits for the two [ R esidences] are contingent upon the City Council’s acceptance of the offers of dedication [of the fire

- safety enhancing easements] and approval of a vacatio n of a storm drain
easement.” She stressed the current cul

- de

- sac on Loma Linda Drive “make[s] it difficult for emergency vehicles to access the
area.”
Fire Marshall Scott Stevens testified that the “existing
turnaround [on Loma Linda Drive] is inadequate,” and

6 S ee NJD, Ltd. v. City of San Dimas (2003) 110 Cal.App.4th 1428, 1444

- 1446 [discussing a city’s “general plan” and a city’s “specific plan”].9

“compromises response times.” The proposed dedication of easements would ameliorate this hazard by transforming the surface of the road from asphalt to concrete, installing a fire hydrant, and widening Loma Linda Drive itself so that emergency vehicles c ould more safely navigate this street. Fire
Marshall Stevens further explained that from the Fire Department’s perspective, approving the Project was the “best option” to improve fire

- safety hazards on Loma Linda D rive because the needed improvements are “outside of the public right

- of

- way and, therefore, require[ ] easements on private property.” City Planner Ryan Gohlich advised the City Council on CEQA compliance. He stated that for CEQA purposes, the Project co nsisted not only of the proposed easements , but also the proposed two Residences. He also advised that the City did not
need to order prepar ation of an EIR or negative declaration
because two exemptions applied to the Project: Class 2 and
Class 3

. Rega r ding the Class 3 exemption

, he stated : “ T hose two
houses are within the three

- house limit for a Class 3 categorical exemption and that Class 3 exemption does also contemplate street improvements and utilities that are associat ed with the development of those homes. ” As to Class 2 exemption status, Gohlich observed although the proposed homes “are [of a ] different scale,” “each one is still by in [ sic ] use of a [ sic ] single

family home.” Apparently, Gohlich was comparing the p roposed construction to the buildings that had existed on the Properties before Real Party first sought to develop the properties in 2013.
The buildings no longer were on the property as of 2016.
T he City Council found the Project qualified for the Class 3 exemption because it contemplated construction of two single

-10

family homes and the Guidelines describing the Class 3 exemption provide that construction of up to three single

- family
residences is exempt from CEQA review. (See Guidelines

, § 15303, subd s

. (a) and (d). ) The City Council found the Project qualified for the Class 2 exemption because it contemplate d construction of “two single family homes on two separate lots that previously had si ngle family residences developed on them, thus replacing existing single family homes.”

D. Opposition to the Project at the November 7, 2017 City Council Hearing
At the November 7, 2017 hearing, the City Council also heard public comment and received evidence in opposition to the Project. Several neighbors testified against the Project. One claimed the Project would “create [a] three

- story birthday cake

structure [ ] that will loom over homes in the Coldwater Canyon Park below invading their privacy and sight lines.” Another
stated it was “ the will of the community to deny the monstrous proposed development

. . . [g]iven its potential destruction of our neighborhood character.” A third stressed the Project “will impact the view of many homes on surrounding canyon slopes.” A fourth neighbor stated that “there are regularly deers [ sic ] in my yard and a turtle rece ntly showed up to live in my pond.”
Citizens’s c ounsel also testified in opposition to the Project

. First, he argued that the Class 2 exemption did not apply to the Project because there were no existing structures on the Properties

, and even if one comp ared the Project to the structures that existed on the Properties in 2013, the proposed R esidences
would not have the requisite same purpose and capacity as those they would be replacing. ( See Guidelines, § 15303.) To support11

an exception to the Class 3 exemption , counsel focused on the relationship of the Properties to nearby wildlife

. The City also received two written statements in opposition to the Project. One was from Citizens ’s counsel

. This letter
stated that the 201 3 MND described the Properties as being “adjacent” to Franklin Canyon Park. Next, this letter represented the Project was located “ within Habitat Block 74 by the Santa Monica Mountains Conservancy.” (Italics added.)
Citizens represented, without evidentiary foundation, tha t many rare animals “ have been seen by residents in the area at one time or another.” Attached to the letter was a photo of a bobcat apparently seen in a neighbor’s backyard that counsel interpreted as moving toward the Properties in an effort “ to

access open space. ” Citizens’s letter also state d : “The project site
is also located in [ a ] Very High Fire Severity Zone which is an officially adopted hazard designation.”
The other letter was from the Moun tains Recreation and Conservancy Authority ( MRCA )

. T he MRCA asserted that the

same environmental concerns the City noted in its 201 3 MND regarding the 2013 Project are true as to the current proposed Project

, that is t he P roperties are located “fewer than 150 feet ”
from Franklin Canyon Par k , a n area designated by the MRCA as

an environmentally sensitive area. It also stressed that the
P roperties “sit on a visually prominent ridgeline between lower Franklin Canyon and lower Coldwater Canyon,” and that “[w]ildlife movement between these two canyon habitats has become increasingly restricted due to development.”12

E. City Rejects Opposition to the Project and Files Notice of Exemption from CEQA On November 14, 2017, the City p osted a n otice of

e xemption stating that the Project was categorically exempt from further review under CEQA . The notice of exemption states:

“ The Project involves dedications of [ eme rgency ] vehicle access easements in conjunction with proposed construct ion of two houses on previously developed lots at 1184 and 1193 Loma Linda Drive in Beverly Hills. The dedications and related street improvements would result in improved turnaround at the terminus of Loma Linda Drive for improved emergency vehicle

acces s w hich benefits t he public. ” The City rejected Citizens ’s arguments that the presence of “unusual circumstances” involving the Project and its proximity to Franklin Canyon Park were circumstances that justified an exception to the Class 3 exemption

. Specifically, Gohlich testified
that there were no “unusual circumstance[s] regard ing biological resources that would apply here, especially because these properties were previously developed. They are disturbed. They don’t contain really any viable habitat that would constitute a substantial evidence that there would be an impact.” 7 Gohlich emphasized: “ This is an urbanized area. Yes, it’s in the hills but
it’s urbanized. ”

7 Indeed, Gohlich observed that Real Party had completely reconfigured its plans to develop the Properties in part to avoid an obstacle it faced with the now

- abandoned 2013 Project. The obstacle was a tree that was a supposed habitat for birds and other wildlife, and the current Project no longer proposed to remove it.13 T he City also found that the Project complied with its

g eneral p lan. Subsequent to the October 12 , 2017 hearing, the City p lanning c ommission authored a report that concluded the Project satisfied 12 g eneral p lan requirements regarding hillside development (“[m]aintain the natural landforms that define the
C ity”), architectural and site design (“new construction [must] exhibit a high l evel of excellence”), public and fire safety, traffic, and storm drainage. As to the location exception challenge, Gohlich observed “this particular property is not within the habitat block.” He
continued

, “it’s also not directly adjacent. There are

— ther e’s at least one property that separates the subject property from Franklin Canyon and the habitat block that is there.”
R esponding to Citizens ’s claim that the MRCA letter shows the Properties are within a protected habitat block, Gohlich testified:
“It ’s also been noted in the correspondence [ from the MRCA ] that there are habitat linkages or trails that are used that go across
the [Properties] on Loma Linda Drive. When in fact you look at the habitat linkage map that has been provided by the Santa
Moni ca Conservancy there are no linkage trails that go through these properties . There are some identified that are in Trousdale Estates and then further north of Beverly Hills, but there is nothing that goes specifically through these propertie s.” ( I talics added.) Regarding fire risk in the area, the City concluded the proposed easements and street improvements “ will result in substantial life safety improvements

. . . by making it easier for large fire trucks to safely turn around at the terminus of Loma Linda Drive without having to travel in reverse down the street

to Coldwater Canyon, and to allow multiple vehicles, such as a14

fire truck and ambulance, to pass each o ther in emergency
situations. ” The City also rejected Citizens’s challenge to the Class 2 exemption, finding that the Project involved “construction of two single family homes on two separate lots that previously had single family residences developed on t hem, thus replacing existing single family homes.”

F. Trial Court Proceedings
Citizens filed a writ of mandate in the trial c ourt challenging the City’s decision not to proceed further in its
environmental review. On March 8, 2019, the court held a trial

on Citizens ’s verified petition for writ of mandate an d issued a
statement of decision and denied the petition

. The trial court ruled that the City had properly found the Project was exempt under Class 2. Although agreeing with
Citizens that the new structur es would be “larger because they include, unlike those previously on the lots, two

- levels as well as a basement,” the court observed this distinction is not relevant because “there is no evidence that the structure does not serve the same purpose and capac ity” as the structures they were replacing

. T he trial court also rejected Citizens ’s arguments that

, because of the Project’s proximity to a habitat zone designated by
the MRCA , it qualif

ied for an exception to the Class 3 exemption

. The trial court rejected Citizens ’s attempts to equate proximity to a protected habitat zone with presence within a protected habitat

zone. T he court observed : “There is no substantial admissible evidence, however, that the Project located on a ridge above the [p] ark ‘m ay impact’ this environmental resource. [Citizens] relies on the representations of its own lawyers that wildlife ‘have been15

seen by residents in the area at one time or another.’

. . . The court regards this contention in an attorney ’ s letter as argumen t offered without ev i dentiary foundation and, therefore, to lack probative value. [Citizens] offers nothing else. ”
The trial court’s statement of decision also indicates that Citizens moved for judicial notice of 10 documents not presented to the City during its review , as well as a supplemental request
for judicial notice of an 11th document. These documents included city ordinances, resolutions, and staff reports. Real Party objected, citing the rule that “a mandate petiti on [only] reviews documents submitted to the public agency

. ” T he trial

court declined to judicially notice all but a “Planning Commission Report,” dated December 11, 2014

. The trial court reasoned that the correct procedure would have been for Citizens to move to augment the administrative record before the trial court

. Citizens never did so. The court concluded it would not “take judicial notice of documents that were not before the decision

making body at the time it took the action that is challenged.” Citizens does not challenge this ruling on appeal. 8 Citizens timely appealed from the trial court’s denial of its
writ of manda te

.

8 In its opening brief on appeal, C itizens still cites to documents the trial court declined to judicially notice. Citizens never filed a motion to augment the record. Real Party, however, did

, on appeal only

. W e improvidently granted th at motion and hereby deny it.16 DISCUSSION

A. Applicable Law and Standard of Review In reviewing the City’s actions “for compliance with CEQA,

we ask whether the agency has prejudicially abused its discretion; such an abuse is established ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ (

. . . § 21168.5.) In determining whether there has been an abuse of discretion, we review the agency’s action, not the trial court ’ s decision. ‘[I]n that sense appellate judicial review [of the trial court’s decision] under CEQA is de novo.’ [Citation.] ” ( Cent er for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 215 , fn. omitted .)
B efore discussing whether the City erred in finding that the Project qualified for a Class 3 exemption, we set forth CEQA’s regulatory architecture to pr ovide context for our review.

1. CEQA Review O nly Applies to “Projects” The first decision in reviewing a proposed activity for CEQA compliance is to determine whether that activity qualifies as a “project.” CEQA only applies to “ discretionary projects

propo sed to be carried out or approved by public agencies

. ” ( § 21080 , subd. (a); Union of Med ical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1190 ( Union of Med ical Marijuana Patients ) .) The scope of a “project” is defined as “the whole of an
action

, which has a potential f or resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment

. . . . ” ( Guidelines, § 15378, subd. (a) ; Union of Med ical Marijuana Patients

, supra , 7 Cal.5th at p. 1192 .) Citizens does not appear to dispute that17

building two R esidences on the Properties would be a project subject to CEQA.
2. Exemptions from CEQA Review
If a proposed activity is a “project ,” “ the agency must decide whether the activity qualifies for one of the many exemptions that excuse otherwise covered activities from CEQA’s
environmental review.” ( Union of Med ical Marijuana Patients

, supra , 7 Cal.5th at p. 1185.) The Secretary of the Natural Resources Agency (Secretary) has established “a list of classes of projects that have been determined not to have a significant effect on the environment and that shall be exempt from” CEQA. (§ 21084, subd. (a).) The Secretary “has found” that certain “classes of projects

. . . do not have a significant effect on the environment” and, in administrative regulations known as guidelines, has listed those classes and “declared [them] to be categorically exempt from the requirement for the preparation of
environmental documents.” ( Guideline s , § 15300.) These exemptions are known as “categorical exemptions. ” Although there are other kinds of exemptions, the case before us involves only categorical exemptions. The Class 3 exemption, entitled “New Construction or
Conversion of Small Structure s,” “consists of construction and location of limited numbers of new, small facilities or structures.” ( Guidelines, § 15303.) Among the nonexclusive list identified by the Secretary as qualifying under this exemption are projects consisting of: “One sin gle

- family residence, or a second dwelling unit in a residential zone [or] [i]n urbanized areas, up to three single

- family residences

. . . .” ( Guidelines, § 15303, subd. (a) .)18 3. Exceptions to Categorical Exemptions
C ategorical exemptions are subject to exceptions. If an exception applies, the exemption is lost. The relevant exceptions
here are : (i) if there is a reasonable possibility of a significant effect on the environment due to “unusual circumstances” ( Guideli nes, § 15300.2, subd. (c) [ the unusual circumstances exception ] ) ; and (ii) with respect to five specific categories of projects

, if the project will have impacts on a uniquely sensitive
or hazardous environment ( Guidelines, § 15300.2, subd. (a) [ the location exception ] ). Class 3 exempt projects constitute one of th e five categories listed in Guidelines, section 15300.2, subdivision (a), subject to the location exception

.

a. The Unusual Circumstances Exception
The Guidelines describe the unusual circumstances exception somewhat opaquely : “ A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” ( Guid elines, § 15300.2 , subd. (c) .) Although “ [t] he Guidelines do not define ‘ unusual circumstances ’ ( Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 820 ),

o ur high court has clarified that this exception may be established “by showing that the project has some feature that distinguishes it from others in the exempt class, such as its size
or location .” ( Berkeley Hillside

, supra , 60 Cal.4th at p. 1105 .)

b. The Location Exception
The Guidelines state that the location exception applies

“ where the pr oject may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies. ” ( Guidelines, § 15300.2 , subd. (a)

, i talics19

added .) T he location exception thus applies to projects that may impact on environmental “resources” that are either of “hazardous” or “critical concern.”
T h e Guidelines explain that this exception only applies if
the environmental resource ha s been “ designated, pr ecisely mapped, and officially adopted pursuant to law by federal, state, or local agencies .” ( Guidelines, § 15300.2, subd. (a).) If a putative environmental resource has not been “designated” and “precisely mapped” by a public agency, a location exception challenge premised upon impacts on such a putative resource will
fail. (See Don’t Cell Our Parks v. City of San Diego (201 7 ) 21 Cal.App.5th 338, 363 [rejecting argument that “location exception” applied by virtue of project site’s location within a dedicated park, because that location was not “designated” by any federal, state, or local agency as an “ ‘ environmental resource
of hazardous or critical concern ’ ” ]

. )

B. The City Did Not Err in Describing the Project Citizens claims the City did not proceed in the manner required by CEQA and the Guidelines. Specifically, it asserts the City relied upon findings and conclusions based upon “an incorrect description of the project based on faulty legal advice

. ” Citizens claims the City purposefully misdescribed the Project so that it did not have to consider the environmental impact of the
Residences. Citizens contends the City defined the Project solely as “the acceptance of irrevocable offers of dedication of easements for emergency vehicle access and street improvements located at
1184 and 1193 Loma Linda Drive.” Citizens claims the failure of
the C ity to indicate the Residences themselves were also part of the Project violates the rule that CEQA review “ ‘ “ cannot be20

avoided by chopping up proposed projects into bite

- size pieces ” which, when taken individually, may have no significant adverse
effect on the environment ’ ” or would require only ministerial
determinations

. ( Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1223.) This argument ignores other evidence in the record militating against its argument. The notice of exemption itself
indicates “dedications are being made in conjunction with
ministerial building permits for construction of two single family
homes on two se parate lots.” (Italics added.) Mayor Bosse

, moreover, began the November 7, 2017 hearing by stating that
the “[p]ermits for the two [ R esidences ] are contingent upon the City Council’s acceptance of the offers of dedication [of the fire

safety enhancing e asements] and approval of a vacation storm
drain easement.” (Italics added.)

C. Substantial Evidence Supports the City’s
Determination that the Project is Exempt from Further CEQA Review as a Class 3 Exempt Project
The City’s n otice of e xemption states : “Class 3 exemption [applies] because the exemption allows for construction of up to 3 single family homes (the project would enable construction of 2 homes), with street improvements.” Citizens focuses its argument on the City’s rejection of its contentions that the “unusual circumstances” and “location” exceptions deprive the Project of Class 3 exempt status

.21 1. Standard of Review of Agency Determinations that

t he Unusual Circumstances and Location Exception s D o Not Apply Before turning to the merits of Citizens’s arguments, we address the applicable standard of review. Citizens argues we
should not review the City’s rejection of the unusual circumstances and location exceptions to the Class 3 exemption
for substantial evi dence , but instead, for whether substantial evidence support s a “ fair argument ” that the Project may have a significant effect on the environment due to the unusual circumstances of the Project, or due to its location.
“ ‘ The “ fair argument ” test is derive d from

. . . section 21151, which requires [preparation] of an EIR on any project [ that ] “ may have a significant effect on the environment. ” ’ ” ( Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, 884 .)
A n EIR must be prepared “ ‘ “ whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact. ” [Citation.]’ ” ( Ibid .)
In Berkeley Hillside

, our high court held that a party seeking to establish the unusual circumstances exception has the
burden to show two elements. These elements are (1) “that the project has some feature that distinguishes it from others in the exempt class, such as its size or location

, ” and (2) that there is “a reasonable possibility of a significant effect [o n the environment] due to that unusual circumstance.” ( Berkeley Hillside

, supra , 60 Cal.4th at p. 1105.) “This bifurcated approach

. . . require[s] findings of both unusual circumstances and a potentially significant effect.” ( Id . at p. 1115.) The former is a purely factual determination; the latter is a question of causation. An agency
need only address the second element if it first finds that some22

circumstance of the project is indeed unusual. (See Respect Life South San Francisco v. City o f South San Francisco (2017) 15 Cal.App.5th 449

, 458 [“This [second step] presupposes the existence of unusual circumstances”] ( Respect Life ) .) We review an agency’s finding on the first element for substantial evidence. ( Berkeley Hillside

, supra , 60 Cal. 4th at

p. 1114.) If an agency moves to the second step, i.e., the agency
has conclude d that “a particular project presents circumstances that are unusual for projects in an exempt class,” then “ the fair argument standard ” applies

. ( Ibid .) Under that standard, “ ‘ the reviewing court’s function “ is to determine whether substantial evidence support[s] the agency’s conclusion as to whether ” ’ there
is a fair argument of a reasonable possibility that the activity will have a significant effect on the envir onment. ” ( Respect Life

, supra , 15 Cal.App.5th at p. 457 , quoting Berkeley Hillside

, supra , at p. 1115.) If there is substantial evidence supporting a fair argument of a reasonable possibility of significant environmental
effects , “then the [agency’s] det ermination that no fair argument
can be made constitutes an abuse of discretion and cannot be upheld. ” ( Respect Life

, supra , at p. 457.) Citizens’s argument that we should apply the fair argument standard of review fails because the City explicitly found there were no unusual circumstances involving the Project

, and as discussed below, that finding is supported by substantial
evidence. 9 Thus, we do not reach the second step of the Berkeley
Hillside analysis

.

9 We would have had to proceed to the second level of Berkeley Hillsi de review if the City had not expressly found that the Project was exempt. ( Respect Life

, supra , 15 Cal.App.5th at23 Citize ns’s argument that we should review the City’s finding that the location exception does not apply to the Project
under the fair argument standard of review fails for the same

reason. Following Berkeley Hillside , courts have concluded that

“ the same bifurc ated standard of review is applicable to the location exception. ” ( Berkeley Hills Watershed Coalitio n v. City of Berkeley (2019) 31 Cal.App.5th 880, 890 ( Watershed Coalition )

. )

“ As with the unusual circumstances exception, the determination whether a project is located in ‘ a particularly sensitive
environment ’ (Guidelines, § 15300.2, subd. (a)) is essentially a factual inquiry, subject to the substantial evidence standard of
revie w. ” ( Ibid .) Thus, if an agency rejects a location exception challenge to a project by finding in the first instance that the project is not located with in a particularly sensitive environment, we review that determination solely for substantial evidence. As detailed below, t he City reviewed the areas surrounding the Project and found th at the location exception did not apply
because the Project was not located within “a designated,

p. 458 [ “[A] court cannot affirm an entity’s implied determination that the unusual

- circumstances exception is inapplicable by simply concluding that the record contains substantial evidence that the project involves no unusual circumstances. Instead, to affirm s uch an implied determination, the court must assume that the entity found that the project involved unusual circumstances and then conclude that the record contains no substantial evidence to support either (1) a finding that any unusual circumstances exis t (for purposes of the first element) or (2) a fair argument of a reasonable possibility that any purported unusual circumstances identified by the petitioner will have a significant effect on the environment (for purposes of the second element

. ”]

. )24

precisely mapped” environmental resource

. As also detailed below, b ecause substantial evidence supports th at factual finding

— the first level of Berkeley Hillside review

— we do not progress to the “fair argument” standard of review

— the second
level of review under Berkeley Hillside

. Citizens also argued that the Project imp acts on a sensitive
environment because it is located in a fire risk zone. As we explain below, merely being located in a fire zone is not sufficient to invoke the location exception and Citizens proffered no other evidence to support that exception.
2. Substantial Evidence Supports the City’s Express Finding There Were No Unusual Circumstances Involving the Project
It was Citizen’s burden in the administrative proceedings
below “ ‘ to show that the project is not exempt because it falls
within one of the exceptions

. ’ ” ( Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209 , 220
, citing
Guidelines , § 15300.2 ; Berkeley Hillside

, supra , 60 Cal.4th at

p. 1105 .)
Citizens first asserts that “the undeniable evidence that
wildlife is us ing the property on which the Project is located” is an unusual circumstance that should negate application of the Class 3 exemption. The City rejected this assertio n. As summarized above, Gohlich concluded there are no “unusual circumstance[s] regarding biological resources,” in part because the Properties “ don’t contain really any viable habitat.” On substantial evidence review, we “resolv[e] all evidentiary conflicts in the agency’s favor and indulg[e] .

. . all legitimate and reasonable inferences to uphold the agency ’ s finding.” ( Berkeley25

Hillside

, supra , 60 Cal.4th at p. 1114.) T he City’s conclusion is supported by Gohlich’s testimony. Second, Citizens contention that “new fencing” could “sever[ ]” the nearby “habitat linkage system” similarly fails. As discussed above, Gohlich reviewed the MRCA map identifying nearby linkage trails, and observed that this map shows that the trails do not traverse the Properties. Citizens thus failed to produce evidence that linkage trails would be “severed” by the Project and the City’s finding that the Project does not present unusual circumstances was supported by substantial evidence.
Third

, Citizens cites to the 2013 MND in which the City’s initial study concluded, “Natural slopes are historically unstable and graded and trimmed slopes onsite could be unstable.” Without any legal citation and relying only on its own contention in its appellate briefing, Citizens concludes th at “[ u ] nstable natural slopes are not the usual circumstances in which construction of up to three single

- family residences occur.”
This contention fails to appreciate that s ince 2013, the Properties have been subject to grading and slope stabilization. Indeed, t he administrative record contains a “Grading Permit,” wherein the “Job Description” indicates “G rading and dranage [ sic ] for hillside repair of failed slope .” Becaus e Citizens ’s argument is premised upon conditions present in 2013

, but
thereafter remediated to the evident satisfaction of City officials

, it fails

. (See Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 3 10, 321 [CEQA review must focus on “ the actual environmental conditions existing at the time of CEQA analysis ” (italics added) ]

. ) Fourth, C itizens again relies on the 2013 MND : the project site has “unusual geology

. ” This argument ignores that the City26

required Real Party to prepare a geotechnical study for its review as a condition for its issuance of the necessary building permits

, and that the ensuing 27

- page report addressed the City’s

concerns. Specifically, the report “ recommended that the downhill side of the development envelope be supported with soldier piles.” The report concluded: “It is the finding of Irvine
Geotechnical th at construction of the proposed project is feasible from a geologic and soils engin eering standpoint

. . . .” This finding is also substantial evidence supporting the absence of
unusual circumstances

. 10

3. Substantial Evidence Supports the City’s Finding that
the Location Exception D oes N ot Apply The Class 3 exemption does not apply where a “project that is ordinarily insignificant in its impact on the environment may
in a particularly sensitive environment be significant.” ( Guidelines, § 15300.2, subd. (a). ) A n environment al resource may be “particularly sensitive” in one of two ways: it may be of “critical concern,” or it may be “hazardous.” Citizens argues the location exception applies to the Project in both these ways.

a. Substantial Evidence Supports the City’s Conclusion the Proje ct Would Not Impact a n Environmental Resource of Critical Concern

10 Citi zens does not argue that the Project presents “unusual circumstances” because the proposed Residences are abnormally large. Rather, Citizens emphasized the size of the proposed Residences only in connection with its argument that the City erroneously exem pted the Project under Class 2. We do not address this argument because, as noted in our Introduction, it is not necessary given our ruling that the City did not err in finding the Project exempt under Class 3.27 According to Citizens

, the Project’s “immediate proximity to the Franklin Canyon Park and Habitat Block No. 74” is a n environmental resource of critical concern that triggers the
location e xception. Citizens also argues that the Project affects a purported wildlife corridor. Contrary to Citizens’s argument, a project’s mere proximity to an officially mapped environmentally sensitive resource does not preclude the application of a Class 3 exemption under the location exception . Citizens relies on Salmon Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4th
1098 to a rgue that a project located adjacent to

, but outside the scope of a protected environmental resource area may nevertheless have an impact on that area.
In Salmon Protection

, the court held that adoption of a categorical exemption in connection with approva l of construction of a single family home was improper where the property (1) was located within a designated stream conservation area

, (2) was immediately abutting a protected anadromous fish stream

, and (3) where the house would be within 40 feet of the creek bank, and parking for the house would be just 20 feet from the creek bank. ( Salmon Protection & Watershed Network v. County of
Marin

, supra , 125 Cal.App.4th at p. 1103.) Here, Citizens is correct that Franklin Canyon Park is
indeed a “ location ” “ designated ” as an “ environmental resource of
hazardous or critical concern ” by any federal, state or local agency. (Guidelines, § 15300.2, subd. (a).) U nlike in Salmon
Protection , the Properties are not located in that designated
environmental resource. Instead, they are outside Franklin Canyon Park and are separated from the park by at least one other residential property.28 Citizens also fails to demonstrate that the Project woul d impact the nearby Franklin Canyon habitat block , particularly wildlife in the surrounding area

. City Planner Gohlich rejected the claim of Citizens’s attorney that the MRCA map showed habitat linkage trails traversed the property: “ When in fact you look at the habitat linkage map that has been provided by the Santa Monica Conservancy there are no linkage trails that go through these properties. ”
Citizens relies on its attorney’ s letter submitted to the City
Council during its hearings on the Project

. The only “evidence” to which this letter refers is the photo graph of the bobcat on a neighbor’s property , which counsel interprets as the bobcat’s entering the Properties to access open land, and a n argument that “portions of the property provide a pathway for animals” because they “have been seen by residents in the area at one time
or another.” This letter fails to demonstrate counsel’s personal knowledge and is mere speculation that the Project will impact
either Habitat Block No. 74 or a ny ot her “designated, precisely mapped, and officially adopted” wildlife corridor. ( Guidelines, § 15300.2, subd. (a).) MRCA’s letter does not assist Citizens either

. MRCA

state d that “ [w]ildlife movement between [lower Franklin Canyon
and lower Coldwater Canyon] habitats has become increasingly restricted due to development

. ” Nowhere does the letter describe where, when, or how such other development has restricted29

movement of any identified wildlife, or how this Project in particular will restr ict any such movement

. 11
Citizens also cites testimony by a neighboring property

owner at the City Council meeting in which she stated that the Project’s retaining walls would “encroach on the wildlife corridor that runs directly alongside.” A necdotes are not data, and this conclusory testimony by a neighboring property owner and hearsay by unidentified “residents in the area” are not
“substantial evidence” supporting the exis tence of a “precisely mapped” environmental resource under the Public Resources
Code which disqualifies “unsubstantiated opinion or narrative.” (§ 21080, subd. (e).) In sum, substantial evidence supports the City’s finding that the Project is not located within an area of critical concern as precisely mapped and so designed by a public agency

. Citizens
thus fails to carry its burden on appeal to show the City erred in rejecting the location exception based on the presence of a critical

concern

. b. There is No Evidence the Project W ill Impact

a n Environmental Resource of Hazardous
Concern Citizens observes that the Properties are located in a high fire hazard severity zone

. Citizens ’s argument seems to be that the mere fact of the Project’s presence with in “a fire

- prone hillside area of the City ” “ renders it ineligible for a Class 3 exemption.”

11 Citizens attempts to bolster its argument by citing to other MRCA documents that the trial court declined to judicially notice. We do not respond to arguments based on these documents for the reasons stated in s ection F of our Factual Background and Procedural History.30

Citizens cites to a map that the City prepared indicating that the property lies within a “Fire Hazard Severity Zone.”
Citizens is correct that the Project is situated within an officially mapped fire risk zone

. But Citizens is incorrect that
location in a fire risk zone automatically qualifies as impacting

a n “environmental resource of hazardous or critical concern. ” (Guidelines, § 15300.2, subd. (a), italics added.)
In Watershed Coalition , the First District recently rejected a “location exception” argument predicated on a project’s location in earthquake and landslide zone s

. ( Watershed Coalition

, supra , 31 Cal.App.5th at p. 880.) The court started with an analysis of section 15300.2, subdivision (a), of the Guidelines in which the location exception appears. “ Generally, we apply the same rules governing interpretation of stat utes to the interpretation of administrative regulations. ” ( Id. at p. 890, citing Berkeley
Hillside

, supra , 60 Cal.4th at p. 1097.) “ The plain meaning of

‘ environmental resource ’ in the location exception does not encompass possible earthquake or landsli de zones ,” because “[a]

‘ resource ’ is a ‘ natural source of wealth or revenue, ’ or a ‘ natural feature or phenomenon that enhances the quality of human life. ’ (Merriam

- Webster ’ s Collegiate Dict. (11th ed. 2014) p. 1061.) Earthquakes and landslides are geol ogic events

— and while they are indeed hazardous, they are not ‘ resources. ’ ” ( Watershed
Coalition

, supra , at p. 891 , italics omitted .)
Because fire zones are not “ resources ” any more than earthquake and landslide zones are “resources

, ” Citizens fails to establish an environmental re source of hazardous concern that31

would support a location exception

. 12 We conclude that the City did not err in rejecting the applicability of th e location exception.

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED

SINANIAN, J. *

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

12 Citizens makes no argument other than the Project’s presence in a fire zone to support its assertion that the Project may impact on an environmental resource of “ hazardous ”

concern

.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice p ursuant to article VI, section 6 of the California Constitution.