Pasadena Civic Ctr. Coal. v. City of Pasadena

Full title: PASADENA CIVIC CENTER COALITION, Appellant, v. CITY OF PASADENA…

Court: California Court of Appeals, Second District, First Division

Date published: Oct 31, 2022

No. B313942 (Cal. Ct. App. Oct. 31, 2022)

Opinion

B313942

10-31-2022

PASADENA CIVIC CENTER COALITION, Appellant, v. CITY OF PASADENA, Respondent.

Chatten-Brown, Carstens & Minteer, Amy Minteer, Michelle N. Black and Sunjana Supekar for Appellant. Richards, Watson & Gershon, Ginetta L. Giovinco; Michele Beal Bagneris, City Attorney and Theresa E. Fuentes, Assistant City Attorney, for Respondent.

BENDIX, Acting P. J.

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BS164664, Mitchell L. Beckloff, Judge. Affirmed.

Chatten-Brown, Carstens & Minteer, Amy Minteer, Michelle N. Black and Sunjana Supekar for Appellant.

Richards, Watson & Gershon, Ginetta L. Giovinco; Michele Beal Bagneris, City Attorney and Theresa E. Fuentes, Assistant City Attorney, for Respondent.

BENDIX, Acting P. J.

Appellant Pasadena Civic Center Coalition (PCCC) challenges respondent City of Pasadena's (the City's) approval of a project that would rehabilitate a deteriorating building located in the Civic Center for nearly a century, and build a new adjacent structure. Both structures would become a new hotel (the project). The trial court rejected PCCC's allegations that the City's environmental review of the project violated the California Environmental Quality Act (CEQA, Pub. Resources Code, § 21000 et seq.), and entered judgment in favor of the City on PCCC's petition for writ of mandate. PCCC appeals from the judgment.

As a preliminary matter, we conclude the instant case is not moot because, even though the hotelier that initially proposed the project has abandoned it, the City has manifested its intent to move forward with rehabilitating and adapting the aged building and utilizing any portions of the certified EIR that could apply to a new project at the site.

Concerning the merits of the appeal, PCCC fails to demonstrate that the environmental impact report (EIR) for the project: (1) employs an impermissibly lenient standard for analyzing the project's impacts on an historical resource; (2) does not impose proper measures to mitigate the project's impacts to historical resources; (3) does not disclose inconsistencies between the project on the one hand, and the governing specific land use plan and the Pasadena Municipal Code on the other; and (4) defers analysis of the project's compliance with the City's Tree Protection Ordinance. Also, regardless of whether the trial court erred in declining to augment the record to include a report prepared by the City's staff, we reject PCCC's claim that the document shows the City improperly piecemealed its review of the project's environmental effects. Finding no error, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND ¹

1 We derive our factual and procedural background in part from undisputed aspects of the EIR and the trial court's order on PCCC's writ petition, admissions made by the parties in their filings, and assertions the City raises in its respondent's brief to which PCCC does not respond in its reply. (See Baxter v. State Teachers' Retirement System (2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of facts provided in the trial court's ruling]; Standards of Review, post [noting that the EIR and the trial court's orders and judgments are presumed correct]; Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [" '[B]riefs and argument . . . are reliable indications of a party's position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party.' "]; Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89-90 [concluding that the appellants made an implicit concession by "failing to respond in their reply brief to the [respondent's] argument on th[at] point"].)

We summarize only those facts pertinent to our disposition of this appeal.

1. The project and the project site

The project would rehabilitate and adapt the YWCA building at 78 North Marengo Avenue in Pasadena as a hotel, and also construct a three-to-six story new hotel building adjacent to the YWCA building, which together would become the Kimpton hotel. The YWCA building would be connected to the new building solely through a bridge at the third floor of the new construction to the rooftop of the north wing of the YWCA building. The project would result in a hotel with guestrooms, meeting facilities, ballroom space, hospitality parlors, and a restaurant. The YWCA building was constructed between 1921 and 1923, and, since 1997, it has been vacant and deteriorating.

The project is comprised of three separate parcels and spans the entire block bounded by Marengo Avenue to the west, Holly Street to the north, Garfield Avenue to the east, and Union Street to the south. All three parcels are owned by the City. Parcel 1 is the southwest part of the project site and contains the YWCA building; Parcel 2 consists of a surface parking lot east of the YWCA building; and Parcel 3 is an L-shaped parcel located to the north east of the YWCA building and parking lot with landscaping and public art. The project's new hotel building would be constructed on a portion of the landscaped area in Parcel 3 that fronts Garfield Avenue.

The project site is located in the Pasadena Civic Center Historic District (the District). The YWCA building is an historically significant property that is listed as a contributor to the District on the National Register of Historic Places (National Register) and the California Register of Historical Resources (California Register), and is a City-designated historic monument. The project site is also located within the Civic Center/Midtown Sub-District of the City's Central District Specific Plan (CDSP).

The District is significant as the historic government and institutional center of Pasadena, and is a significant example of American city planning and civic architecture. The configuration of streets, sidewalks, parkways, and landscaped areas within the District embodies key tenets of the City Beautiful movement²and defines important spatial relationships between the buildings in the District. Pasadena's Civic Center was designed to be distinct from its surrounding neighborhoods both in architectural style and feeling. The District is far less commercial and more park-like. Planned with the pedestrian in mind, the streets are wider, lined with trees and shrubs.

2 The City Beautiful movement was a response to the crowded, chaotic, dirty, and dangerous cities of the early industrial age that arose in the late 1800s and early 1900s. City Beautiful leaders believed the emphasis should be on creating a beautiful city, which would in turn inspire its inhabitants to moral and civic virtue.

City Hall was planned as the eastern terminus of the Civic Center located at the end of Holly Street, which was extended eastward from the earlier commercial center of town (now Old Pasadena). City Hall was set off with a vast plaza that served as the cross axis of the Holly Street corridor and the Garfield Avenue corridor. The Garfield corridor was planned with the Pasadena Public Library at its head in the north, and with the Civic Auditorium planned for a site south of Colorado Boulevard at Green Street. Locating the main buildings as terminations of axes showed them off to their best advantage, which gave a sense of interest, scale, and unity to the center of the City.

2. The City's environmental review and approval of the project

In July 2012, the City issued a request for proposal (RFP) for the rehabilitation of the YWCA building as well as the possible redevelopment of a portion of Parcel 3. The City received six responses to its RFP. An advisory panel recommended the City begin exclusive negotiations with a particular hotelier.

In May 2013, the City and the hotelier entered into an exclusive negotiation agreement to negotiate a potential ground lease. Based on the results of the CEQA-required initial study, the City ordered preparation of an EIR and issued a notice of preparation on March 5, 2015. The City also held two scoping meetings concerning the content of a draft EIR.

On February 5, 2016, the City published a notice of completion and availability of the draft EIR. The City circulated the draft EIR during a 60-day comment period. During the comment period, the City held public meetings before its historic preservation commission, the design commission, and the planning commission, where the public could comment on the draft EIR. The City responded to the public comments and made corresponding revisions to the draft EIR. The responses to comments were available for public review 35 days prior to hearings on the final EIR.

On July 13, 2016, the City's planning commission held a noticed public hearing. The planning commission recommended certification of the EIR and project approval. On August 15, 2016, the city council held a noticed public hearing, and voted unanimously to certify the EIR and approve the project. The project as approved includes several exceptions to the City's planning and zoning requirements, such as a variance reducing the required ceiling height of a building's first floor by six feet (15 feet to 9 feet).

3. The trial court proceedings and PCCC's notice of appeal

On September 15, 2016, PCCC filed a petition for writ of mandate, wherein PCCC identified itself as "an unincorporated association of individuals, including those who objected verbally and in writing during the City's administrative review process, who seek to preserve the historic features and character of the Pasadena Civic Center for future generations." On November 21, 2016, PCCC filed an amended petition, which asserts three causes of action: (1) violation of CEQA, (2) violations of the Surplus Land Act, and (3) violations of the Pasadena Municipal Code.³ Pursuant to stipulations executed by PCCC and the City, the action was stayed from November 8, 2017 to February 15, 2019.

3 By failing to pursue its second and third causes of action on appeal, PCCC has abandoned them. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 ["[O]ur review . . . is limited to issues which have been adequately raised and supported in [an appellant's] brief. [Citations.] Issues not raised in an appellant's brief are deemed waived or abandoned."].)

On February 18, 2021, the trial court denied (a) PCCC's motion to augment the administrative record to include a staff report from the City's planning and community development department, and (b) PCCC's request for writ relief. On June 4, 2021, the trial court entered judgment in favor of the City and against PCCC on the amended petition in accordance with the February 18, 2021 ruling. On July 21, 2021, PCCC appealed the judgment.

STANDARDS OF REVIEW

CEQA has" 'established a three-tiered process to ensure that public agencies inform their decisions with environmental considerations.' [Citation.] A public agency must 'conduct a preliminary review in order to determine whether CEQA applies to a proposed activity.' [Citation.] . . . [¶] If the project is not exempt from CEQA, the next step is to conduct an initial study. [Citation.] . . . [¶] . . . If [the initial study reveals that a] negative declaration is [not] appropriate, the final step is to prepare an EIR." (See Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 776-777.)

" 'An EIR is 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." [Citations.] . . .' The EIR 'must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.' [Citation.] [¶] Among other topics, an EIR must discuss significant environmental effects and unavoidable significant environmental effects .... For significant adverse effects, the EIR must describe feasible measures to minimize significant adverse effects ...." (Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73 Cal.App.5th 985, 1003 (Ocean Street Extension Neighborhood Assn.).)

"We review compliance with CEQA for a prejudicial abuse of discretion. [Citations.] Prejudicial abuse of discretion exists' "if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence."' [Citation.]" (Ocean Street Extension Neighborhood Assn., supra, 73 Cal.App.5th at p. 1004.) "' "Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, 'scrupulously enforc[ing] all legislatively mandated CEQA requirements' [citation], we accord greater deference to the agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing court 'may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,' for, on factual questions, our task 'is not to weigh conflicting evidence and determine who has the better argument.'"' [Citation.]" (California Coastkeeper Alliance v. State Lands Com. (2021) 64 Cal.App.5th 36, 55.)

"An EIR is presumed legally adequate, . . . [citations], and the agency's certification of an EIR as complying with the requirements of CEQA is presumed correct [citation]. Persons challenging the EIR therefore bear the burden of proving it is legally inadequate, or that insufficient evidence supports one or more of its conclusions." (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 924-925 (Rialto Citizens for Responsible Growth).)

"On review of a CEQA action, our role is generally the same as the trial court. [Citation.] However, that means 'only that we would not be bound by, or be required to show any deference to, the trial court's conclusion' on the environmental justice issue. [Citation.] . . . 'Even when our review on appeal "is de novo, it is limited to issues which have been adequately raised and supported ...."' [E]ven in a CEQA case,' "[t]he most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct." [Citation.] It is the appellant who bears the burden of overcoming that presumption.' [Citation.]" (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 554-555 (Golden Door Properties, LLC).) The appellant "must [also] show that the error was prejudicial." (See Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 512 (Shenouda); see also Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714, 721 (Parkford Owners for a Better Community) ["[T]he ultimate burden of demonstrating reversible error is always on the appellant."].)

Additionally," '[i]t is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from .... [Citations.] 'If the decision of a lower court is correct on any theory of law applicable to the case, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the lower court reached its conclusion.' [Citation.]" (Estate of Sapp (2019) 36 Cal.App.5th 86, 104.)

DISCUSSION

A. The Withdrawal of the Real Parties in Interest from the Project Does Not Render the Instant Controversy Moot

" 'California courts will decide only justiciable controversies. [Citations.] The concept of justiciability is a tenet of common law jurisprudence and embodies "[t]he principle that courts will not entertain an action which is not founded on an actual controversy ...." [Citations.]'" (Parkford Owners for a Better Community, supra, 54 Cal.App.5th at p. 722.)" 'Because" 'the duty of . . . every . . . judicial tribunal . . . is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or . . . to declare principles or rules of law which cannot affect the matter in issue in the case before it[,] [i]t necessarily follows that when . . . an event occurs which renders it impossible for [the] court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment ....' [Citations.]" [Citation.] The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief. [Citations.] If events have made such relief impracticable, the controversy has become "overripe" and is therefore moot. [Citations.] [¶] . . . When events render a case moot, the court, whether trial or appellate, should generally dismiss it. [Citations.]' [Citations.]" (Ibid.)

At first glance, the procedural posture of this case suggests it is moot and therefore subject to dismissal.⁴ Specifically, on November 9, 2017, PCCC and the City notified the trial court that real parties in interest KHP III Pasadena LLC and KHP III Hotel Holding LLC were "no longer pursuing development of the approved Project" because the City had decided "not to approve either [an] Economic Subsidy Report for a Ground Lease Agreement or a Ground Lease Agreement" for the project site. The parties further represented that "the City ha[d] not revoked the August 15, 2016 approvals for the Project, including . . . [the] certification of the environmental impact report ...." The trial court thereafter dismissed the real parties in interest from the matter. Although the real parties in interest's abandonment of the project suggests that a ruling on the validity of the EIR would have no practical effect on PCCC's and the City's respective rights, we conclude for the reasons discussed below that the matter is not moot.

4 "Although the parties have not raised the question of mootness, the court may examine a suggestion of mootness on its own motion." (City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 479.)

In support of the City's opposition to PCCC's motion to stay the trial court proceedings,⁵ the City's director of planning and community development (the director) attested that "[t]he fact that [the real parties in interest] withdrew from the Project does not mean that the Project will not proceed in some form," as evidenced by the fact that the City invited new proposals for the rehabilitation and adaptive reuse of the YWCA building after the real parties in interest had terminated their involvement. The importance of the project to the City is evidenced by the City's use of its eminent domain power to acquire Parcels 1 and 2 "in order to rehabilitate [the YWCA building] and return it to active use," and its purchase of Parcel 3 for the purposes of development. The director further attested that "it [was] important for [him]" in assessing new proposals "to know with certainty the status of the EIR," and that "the uncertainty created by this litigation ha[d] an impact on the decisions [he would] make about the environmental review . . . for any future version of the Project ...." The director explained that "new proposals may propose a project that fits, to some extent, within the scope of the environmental review that already has been done for the Project and which is reflected in the certified EIR." He stated that "the status of the EIR . . . may shape the decisions [he would] make about the form and scope of environmental review that may be necessary, if at all, in connection with the new proposals."

5 The trial court ultimately denied this motion.

The senior project manager in the economic development division of the City manager's office (the senior project manager) also submitted a declaration in opposition to the motion to stay, wherein he claimed that six out of the 10 new proposals the City had received propose hotel use for the project site. The senior project manager attested that although "several of the ten proposals that the City received [were] viable and . . . the City likely [would] want to explore [them] further[,] . . . the uncertainty created by this litigation [was] making it increasingly difficult for City staff to develop next steps." He further stated that "[m]ultiple City officials and staff members (including the City Council, [the] City Manager . . ., [the] Director of Planning and Community Development . . ., and [the senior project manager himself]) along with those entities and teams who responded to the [RFPs] all [were] waiting on the outcome of this litigation to fully move forward with any project related to the YWCA Building."

We conclude that the withdrawal of the real parties in interest from the project does not preclude us from providing effectual relief to PCCC. The declarations from the director and the senior project manager, respectively, demonstrate that if PCCC were to prevail on its challenge to the validity of the EIR, then the City could not rely upon that document and may have to conduct additional environmental review on aspects of a new project that would have fit within the scope of the original project. Deciding the CEQA issues in this case thus would impact the City's decisions regarding future development of the project site. Thus, the appeal is not moot.

B. PCCC Fails to Establish the City Relied on an Impermissibly Lenient Standard in Assessing the Project's Impacts on an Historical Resource

According to PCCC, California Code of Regulations, title 14, section 15064.5, subdivision (b)⁶ establishes that "[w]here a character-defining feature of a National Register-listed historic district would be demolished or materially altered by a project, the project would have a significant adverse impact." PCCC argues that the District's "character-defining features are defined by [its] National Register nomination," which "identifie[s]" "the public greenspace provided by Parcel 3" as just such a "character-defining feature."⁷ PCCC further contends, "The Project would physically demolish approximately 78 percent of Parcel 3's existing public greenspace along Garfield Avenue and replace it with the rear portion of the new, massive six story room tower facing City Hall and the Civic Center central plaza," and the project "would . . . demolish an additional undisclosed amount of the public greenspace along Holly Street for private use, including construction of a hotel function patio." PCCC argues the City violated CEQA because the EIR does not identify these demolitions as a significant adverse impact.

6 Undesignated regulatory citations are to title 14 of the California Code of Regulations. Additionally, we note that the regulations "codified at California Code of Regulations, title 14, chapter 3, sections 15000-15387" were "adopted to implement CEQA." (See Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 792, fn. 11 (Endangered Habitats League, Inc.).)

7 Because the District is included in the National Register, it is also listed in the California Register (see § 4851, subd. (a)(1) ["Historical resources automatically listed in the California Register include . . . [¶] . . . California historical resources listed in . . . the National Register ...."]), and is considered an historical resource for the purposes of the regulations implementing CEQA (see § 15064.5, subd. (a)(1) ["For purposes of this section, the term 'historical resources' shall include . . . [¶] . . . [a] resource listed in . . . the California Register ...."].).

Before turning to the merits of PCCC's argument, we ascertain the precise nature of this claim of error. Typically, "[a]n agency decision to not identify an impact as significant is reviewed for substantial evidence." (See San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596, 622.) Yet, PCCC claims, "The issue before the Court is not whether there is substantial evidence to support the City's conclusion that the Project would have less than significant impacts on historic resources." Rather, PCCC characterizes the question presented as whether the City utilized an" 'impermissibly lenient'" standard in concluding that the project would not have a significant impact on an historical resource, a question that PCCC claims we must independently review. Although we agree that whether the City employed an erroneous legal standard is a question that is reviewed de novo,⁸ we conclude that PCCC has not shown that the City committed any such error.

8 (See Endangered Habitats League, Inc., supra, 131 Cal.App.4th at p. 793 ["The use of an erroneous legal standard [to determine whether a project has a substantial environmental impact] is a failure to proceed in the manner required by law that requires reversal."]; Save Our Heritage Organisation v. City of San Diego (2018) 28 Cal.App.5th 656, 664 ["We determine de novo whether the City failed to proceed in the manner required by law ...."].)

Section 15064.5, subdivision (b) provides that "[a] project with an effect that may cause a substantial adverse change in the significance of an historical resource is a project that may have a significant effect on the environment."⁹ (§ 15064.5, subd. (b).) Subdivision (b)(1) defines a "[s]ubstantial adverse change in the significance of an historical resource" as the "physical demolition, destruction, relocation, or alteration of the resource or its immediate surroundings such that the significance of an historical resource would be materially impaired." (See id., subd. (b)(1).) In turn, subdivision (b)(2)(A) provides that "[t]he significance of an historical resource is materially impaired when a project: [¶] . . . [d]emolishes or materially alters in an adverse manner those physical characteristics of an historical resource that convey its historical significance and that justify its inclusion in, or eligibility for, inclusion in the California Register ...." (See id., subd. (b)(2)(A).)¹⁰

9 Although PCCC argues that the "EIR failed to identify [a] significant adverse impact to" an historical resource (italics added)," '[e]ffects' and" 'impacts' as used in [the CEQA regulations] are synonymous" (see § 15358).

10 Although section 15064.5, subdivisions (b)(2)(B) and (b)(2)(C) identify other circumstances in which a project materially impairs the significance of an historical resource (see § 15064.5, subds. (b)(2)(B)-(b)(2)(C)), PCCC relies solely on subdivision (b)(2)(A).

The trial court explained, "Impacts to historic districts are assessed under the criteria established by the National Park Service, the federal agency that manages the National Register," and that this "impact assessment requires an evaluation of the historic integrity of the [D]istrict by assessing the setting (physical environment), design (the form, plan, space, structure and style), and feeling ('a property's expression of the aesthetic or historic sense of a particular period of time'), among other attributes." The court also found that "[t]he Final EIR discusses in depth how the Project will retain the integrity of the historic district, including changes resulting from incursion into the open green space in Parcel 3." These aspects of the trial court's order denying the writ petition are deemed to be correct because PCCC does not dispute them. (Golden Door Properties, LLC, supra, 50 Cal.App.5th at pp. 554-555.)

We also observe that in conducting its analysis of the historic integrity of the District in the comments and responses section of the final EIR, the City considered each of the National Park Service criteria and concluded that the "project's impacts to the District would be less than significant" because the District would "retain sufficient integrity to convey its historic significance." Accordingly, the final EIR identified and applied the correct legal standard to determine whether the project would have a significant impact on an historical resource.

To support PCCC's contention that the City committed legal error in assessing whether the project would have a significant impact on an historical resource, PCCC identifies a number of alleged deficiencies in the draft EIR-e.g., the draft EIR supposedly addresses only whether the project would demolish buildings in the District. We fail to discern the relevance of these purported defects in the draft EIR given that, as we explained in the immediately preceding paragraph, the comments and responses section of the final EIR seems to have cured any such deficiencies by identifying and applying the correct legal standard to assess the project's incursion into Parcel 3's greenspace. (See § 15132, subd. (d) [providing that the final EIR shall contain, inter alia, "[t]he responses of the Lead Agency to significant environmental points raised in the review and consultation process"].) Because PCCC does not shed further light on what bearing these alleged shortcomings in the draft EIR could have on whether the trial court prejudicially erred in denying PCCC's writ petition, we do not address this issue further.¹¹ (See Shenouda, supra, 27 Cal.App.5th at p. 512 ["Because judgments of the trial court are presumed to be correct, the appellant bears the burden to affirmatively demonstrate error, and must show that the error was prejudicial," italics added].)

11 PCCC suggests for the first time in its reply brief that the final EIR erroneously focused exclusively on "whether the District would remain eligible for listing in the National Register." PCCC waives this argument by failing timely to raise it. (See Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1292, fn. 6 (Habitat & Watershed Caretakers) ["Arguments presented for the first time in an appellant's reply brief are considered waived."].) Additionally, although PCCC complains in passing that a city council resolution concerning the project likewise focused improperly on whether the District would remain eligible for listing in the National Register, PCCC does not clarify whether this supposed defect in the resolution gives rise to an actionable CEQA claim. Rather, PCCC frames the issue in its opening brief as whether "the EIR fail[ed] to properly address the Project's historic resource impacts." (Italics added.) PCCC has thus failed to support properly its contention that this supposed flaw in the resolution warrants reversal of the judgment. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez) [" '[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record[,]'" italics added].)

PCCC further claims that the nomination form securing the District's inclusion in the National Register establishes that the City applied the wrong legal standard. PCCC characterizes the nomination form as "the controlling document that defines the District's historic significance and character-defining features ...." PCCC contends that "the Kimpton Hotel Project would demolish a substantial portion of the public greenspace on Parcel 3 of the project site, which was identified by the listed National Register nomination as a character-defining feature of the District." PCCC apparently claims that the National Register nomination form establishes as a matter of law that the project would cause a significant impact on the District for the purposes of section 15064.5, subdivisions (b)(1) and (b)(2)(A).

In support of its argument, PCCC cites an excerpt from the nomination form describing the District, which includes the following text: "To the east of the YMCA and YWCA are small park areas, attractively landscaped with paths, lawns, shrubs, flowers and California redwood trees. These unbuilt areas allow the facades of the Post Office to the south and the balancing Gas Company on the north to play their parts in the composition."

PCCC also cites a "Sketch Map" for the District that is included with the nomination form, which identifies the following as "park[s]": (1) an area at the southwest corner of Holly Street and Garfield Avenue that is part of Parcel 3 and abuts the YWCA building, and (2) an area at the northwest corner of Holly Street and Garfield Avenue, which is directly across the street from the park identified in item (1). (Capitalization omitted.)

In addition, PCCC cites an excerpt of the "statement of significance" portion of the nomination form, which provides: "Although there have been intrusions, [the District] is obviously a unique collection of buildings and sites whose greatest value and impact arise from the fact that they relate to each other and the environment in a special way. This [D]istrict must be preserved as a unit. The whole here is greater than the parts." (Some capitalization omitted.) PCCC also relies upon the following text in the statement of significance that appears under the heading "[q]ualities which make the [D]istrict distinct from its surroundings": "Upon entering the [D]istrict, one is aware that this is an important place in the city.... [M]uch more park-like, the Civic Center area is distinct . . . both in architectural style and feeling.... Small parks abound, planted with trees and flowers.... [A] place for people-to walk, to picnic and sunbathe, and to sit with friends among the trees and enjoy the open vistas." (Underscoring omitted.)

Admittedly, the description section of the form suggests the landscaping on Parcel 3 plays some role in the aesthetic composition of the District. Yet, PCCC does not utilize the National Park Service's criteria to show what impact the project's incursion into the greenspace on Parcel 3 would have on the historic integrity of the District. Without any such supporting analysis, we have no basis to conclude that the project demolishes or materially alters in an adverse manner those physical characteristics of the District that convey its historical significance and justify its inclusion in the California Register. (See § 15064.5, subd. (b)(2)(A).)

PCCC's assertion that the description section of the nomination form establishes that the greenspace on Parcel 3 is a "character-defining feature" is not a substitute for an historic integrity analysis conducted using the National Park Service's criteria.¹² Nor does PCCC cure that deficiency by citing other aspects of the form showing that the park in Parcel 3 is part of the District, the District is comprised of "a unique collection of buildings and sites" that "must be preserved as a unit," and the District's parks distinguish this historical resource from its surroundings. Consequently, we reject PCCC's argument that the nomination form establishes, as a matter of law, that the project would cause a significant environmental impact on the District. (See Hernandez, supra, 37 Cal.App.5th at p. 277 [" 'When an appellant raises an issue "but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]" [Citation.]' [Citation.] . . . [¶] . . . 'We are not bound to develop appellants' arguments for them.' "].)

12 To support the proposition that "[t]he physical characteristics of a resource conveying its historical significance and justifying its inclusion in the California Register (and National Register) are . . . referred to as character-defining features," PCCC cites an excerpt from a rehabilitation study for the YWCA building. The page of the rehabilitation study upon which PCCC relies, however, does not substantiate its proffered definition of "character-defining features." Instead, this excerpt simply uses that term without defining it, and it also states that "[c]haracter refers to all those visual aspects and physical features that comprise the appearance of every historic building."

In sum, PCCC has not shown that the City employed an impermissibly lenient standard to determine whether the project would cause a significant impact on an historical resource.

C. PCCC Does Not Show that the City Violated CEQA by Deferring Mitigation of the Project's Impacts on Historical Resources, or by Relying on Measures that Are Too Subjective and Not Fully Enforceable

When the City certified the EIR and approved the project on August 15, 2016, section 15126.4, subdivision (a)(1)(B) provided: "Where several measures are available to mitigate an impact, each should be discussed and the basis for selecting a particular measure should be identified. Formulation of mitigation measures should not be deferred until some future time. However, measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way."¹³(§ 15126.4, subd. (a)(1)(B) (2016).) The version of section 15126.4, subdivision (a)(2) that was in effect at that time, and which remains the same today, provides: "Mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments. In the case of the adoption of a plan, policy, regulation, or other public project, mitigation measures can be incorporated into the plan, policy, regulation, or project design."¹⁴

13 As discussed later in this section, the current version of this regulatory provision differs from the version that was in effect on August 15, 2016.

14 (See § 15126.4, subd. (a)(2) (2016); § 15126.4, subd. (a)(2) (2022); see also § 15064.5, subd. (b)(4) ["A lead agency shall identify potentially feasible measures to mitigate significant adverse changes in the significance of an historical resource. The lead agency shall ensure that any adopted measures to mitigate or avoid significant adverse changes are fully enforceable through permit conditions, agreements, or other measures."].)

PCCC argues the City "fail[ed] to proceed in the manner required by law by relying on deferred and unspecified mitigation measures that are not fully enforceable to address the Project's adverse impacts on the historic YWCA and cumulative impacts to the District." Specifically, PCCC complains that the City issued Condition of Approval 13, which "defers design review to post Project approval," and MM-CULTURAL-1, "which provides that[,] post-approval[,] the applicant will hire an historic preservation consultant to oversee the design development and ensure it complies with the Secretary of Interior's Standards for Rehabilitation." PCCC asserts neither mitigation measure satisfies CEQA because "[t]he City has provided no reason why the required design refinements and historic assessment could not be included as part of the environmental review process." PCCC further complains that MM-CULTURAL-1 "not only relies on subjective standards included in the Secretary of Interior's Standards for Rehabilitation, but also allows determinations of compliance with those standards to be made by a consultant hired by the Project applicant." Additionally, PCCC asserts that "neither MM-CULTURAL-1 nor Condition of Approval 13" is "fully enforceable" because under the project's approval conditions, "if the applicant's consultant finds that changes to the footprint, size or height of the Project are necessary to comply with the Secretary of Interior's Standards, these changes could not be implemented and the impacts would remain significant." For the reasons discussed below, we conclude these arguments are without merit.

1. Condition of Approval 13 is not an improperly deferred mitigation measure

First, PCCC's claim of improperly deferred mitigation ignores the actual text of Condition of Approval 13. The text from Condition of Approval 13 that PCCC claims constitutes a deferred mitigation measure reads: "The Design Commission shall have the authority to modify the new building's height configuration as well as the articulation of the massing to ensure greater compatibility of the new building with the historic YWCA, which may involve attachment of the new building to the historic building." (Italics added.) Condition of Approval 13's focus on the new building's construction is noteworthy, given, as the trial court observed, "the EIR . . . found impacts would be less than significant as to 'impacts from alteration to a historic resource by adding a new building adjacent to the YWCA building and in the [District] ....'" PCCC does not challenge this finding in the EIR.¹⁵ Because "[m]itigation measures are not required for effects which are not found to be significant," (see § 15126.4, subd. (a)(3), italics added), Condition of Approval 13's postapproval process for ensuring greater compatibility of the new building with the YWCA building cannot support PCCC's challenge to the project's mitigation measures.¹⁶

15 (See Rialto Citizens for Responsible Growth, supra, 208 Cal.App.4th at pp. 924-925 [holding that an EIR is presumed legally adequate and the party challenging the EIR has the burden of proving otherwise].)

16 PCCC also intimates that the following text from Condition of Approval 13 constitutes an improperly deferred mitigation measure: "As directed by the City Council, the Design Commission shall further review and incorporate architectural refinements with particular attention to the Garfield/Union corner of the project, stepping down from east to west on Union Street, and overall height and articulation of the building." Insofar as PCCC maintains this measure is inadequate because it fails to satisfy the current version of section 15126.4, subdivision (a)(1)(B), that argument fails for the reasons provided in Discussion, part C.2, post. To the extent PCCC alleges this measure is defective for some other reason, PCCC has waived that argument by failing to cogently raise it. (See Hernandez, supra, 37 Cal.App.5th at p. 277.)

2. PCCC does not show the City violated CEQA by failing to disclose the project's design specifications

Turning to the remainder of this claim of error, in an effort to establish the City improperly deferred the formulation of mitigation measures, PCCC complains that, "[w]hile the EIR and the Project approval included general parameters for the renovations to the YWCA itself and the addition of new construction to this historic resource in the middle of an historic district, it did not analyze or set forth design specifications for the Project." PCCC maintains the absence of design specifications violates CEQA because the City has not "identif[ied] any reason it would be infeasible or impractical to develop mitigating design details during environmental review so that concrete measures could be developed prior to Project approval." According to PCCC, "There are more than adequate specific details regarding the Project that already have been determined and would allow for specific design mitigations to be developed"-i.e., "[t]he City has set the specific number of hotel rooms for the Project, the number of floors, height and footprint of the new construction and the setbacks."

PCCC does not contest, and thus leaves undisturbed, the trial court's ruling that deferring the formulation of "final design specific plans . . . does not necessarily violate CEQA as a matter of law."¹⁷ Additionally, PCCC's assertion that the City was obligated to show "it would be infeasible or impractical to develop mitigating design details during environmental review" is premised on the current version of section 15126.4, subdivision (a)(1)(B), and not the version of that provision that was operative when the City certified the EIR and approved the project.¹⁸ Because PCCC does not explain why the City should have complied with a regulatory requirement that did not exist on August 15, 2016, its reliance on that provision fails.¹⁹ PCCC does not argue in its briefing that the mitigation measures for the project fail to satisfy the version of section 15126.4, subdivision (a)(1)(B) that was in effect on August 15, 2016. Consequently, we reject PCCC's argument that the City violated CEQA by deferring the formulation of mitigation measures until after project approval.

17 (Citing Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 36 (Dry Creek Citizens Coalition); see ibid. ["Appellants have not established that the general description of the [project] in the EIR coupled with approval of final designs after the project is approved violated any CEQA mandate. Courts should not interpret CEQA to impose procedural or substantive requirements beyond those explicitly required in the statutes or CEQA Guidelines. [Citations.] CEQA does not mandate the detail appellants urge this court to require."].) (See also Estate of Sapp, supra, 36 Cal.App.5th at p. 104 [" 'It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that the appellant has the burden of showing reversible error, and in the absence of such showing, the judgment or order appealed from will be affirmed.' "].)

18 The current version of section 15126.4, subdivision (a)(1)(B) provides in pertinent part: "The specific details of a mitigation measure . . . may be developed after project approval when it is impractical or infeasible to include those details during the project's environmental review provided that the agency (1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can feasibly achieve that performance standard and that will [be] considered, analyzed, and potentially incorporated in the mitigation measure." (§ 15126.4, subd. (a)(1)(B) (2022).) That text was added to subdivision (a)(1)(B) in 2018. (See § 15126.4 [history, note 5]; § 15126.4, subd. (a)(1)(B) (2016) [no such text appears in the version of the regulation that was operative in 2016].)

19 (See Hernandez, supra, 37 Cal.App.5th at p. 277 ["We may and do 'disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.' "].)

3. PCCC fails to establish that MM-CULTURAL-1's standards are too subjective or that they are not fully enforceable

MM-CULTURAL-1 states in pertinent part: "The applicant will engage a historic preservation consultant that meets the Secretary of the Interior's Professional Qualifications Standards to oversee the design development for compliance with the Secretary of Interior's Standards for Rehabilitation.... The historic preservation consultant will submit monthly written progress memoranda confirming Standards compliance and a final report prior to the issuance of a Certificate of Occupancy by the City." PCCC claims MM-CULTURAL-1 is deficient because "the Secretary of Interior's Standards for Rehabilitation [referenced therein] consist of mainly subjective standards to determine whether a project would adversely impact an historic resource."²⁰ One example PCCC offers in an effort to show these regulations are too subjective is 36 Code of Federal Regulations part 67.7(b)(2), which provides: "The historic character of a property shall be retained and preserved. The removal of historic materials or alteration of features and spaces that characterize a property shall be avoided." (36 C.F.R. § 67.7(b)(2).)

20 PCCC also argues that MM-CULTURAL-1 is inadequate because it "allows determinations of compliance with [the Secretary of Interior's Standards] to be made by a consultant hired by the Project applicant." (Italics added.) PCCC waives this contention by failing to cite any authority establishing that CEQA bars a project applicant from hiring a consultant to implement a mitigation measure. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [" 'The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' "].)

As the trial court pointed out, one of the regulations implementing CEQA provides:" 'Generally, a project that follows the Secretary of the Interior's Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings or the Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (1995), Weeks and Grimmer, shall be considered as mitigated to a level of less than a significant impact on the historical resource.' "²¹

21 (Quoting § 15064.5, subd. (b)(3).) (See also § 15126.4, subd. (b)(1) [providing that if a project complies with these Standards, "the project's impact on the historical resource shall generally be considered . . . not significant"].)

PCCC tacitly acknowledges in its reply that section 15064.5, subdivision (b)(3) undercuts its position that compliance with the Secretary of Interior's Standards for Rehabilitation falls short of satisfying CEQA, but nonetheless insists the CEQA regulation "use[s] . . . the qualifier 'generally[,]' . . . meaning it is not a mandatory requirement." PCCC is mistaken.

This CEQA regulation articulates a general rule that "a project that follows the Secretary of the Interior's Standards . . . shall be considered as mitigated to a level of less than a significant impact on the historical resource." (§ 15064.5, subd. (b)(3).) PCCC does not argue that this case presents an exceptional circumstance for which this general rule does not apply, nor does it contest the validity of this regulation. Accordingly, PCCC fails to show that MM-CULTURAL-1 is too subjective and thus violates CEQA.

Lastly, PCCC claims that MM-CULTURAL-1 is not a fully enforceable mitigation measure because part of Condition of Approval 13 imposes "limits on the Project revisions that can be included in the post-approval process." In particular, Condition of Approval 13 bars "design changes that would result in a reduction, without the applicant's consent, in hotel rooms below 185, square footage of above-ground structures less than 135,000 total (existing and proposed buildings) or setbacks greater than those depicted in the conceptual drawings of the Alternative 2A design study ...." PCCC claims that under Condition of Approval 13, "if the applicant's consultant finds that changes to the footprint, size or height of the Project are necessary to comply with the Secretary of Interior's Standards, these changes could not be implemented and the impacts would remain significant."

Apart from the argument we disposed of in Discussion, part B, ante, PCCC does not contest the trial court's conclusion that the project's only significant impact on an historical resource that requires mitigation arises from the "alteration of the [YWCA b]uilding to repurpose the existing facility into a hotel with its amenities.' "

Furthermore, PCCC has not shown that Condition of Approval 13's restrictions on design changes have any impact on whether the renovation of the YWCA building would conform with the Secretary of Interior's Standards for Rehabilitation. Because the project calls for adding only 13 hotel rooms to the YWCA building, barring design changes that would reduce the total number of hotel rooms below 185 would seem to constrain primarily the construction of the new building, which would contain most of the new hotel rooms. Similarly, because the proposed project specifications show that the YWCA building's square footage after the rehabilitation would be only 40,570 square feet, preventing the YWCA building's and the new building's total square footage from dropping below 135,000 would seem to affect chiefly the construction of the new structure (which contains the bulk of the space), and thus would have no apparent impact on whether the renovation of the YWCA building itself complies with the Secretary of Interior's Standards. Additionally, because PCCC has not directed us to any evidence that rehabilitating the YWCA building would require changes in the setbacks for that structure, Condition of Approval 13's limit on that component of the project likewise has no ostensible effect on compliance with the Secretary's Standards. PCCC has thus failed to show that MM-CULTURAL-1 is not fully enforceable.

In sum, PCCC fails to demonstrate the City violated CEQA by deferring the formulation of mitigation measures, or by imposing measures that are too subjective and not fully enforceable.

D. PCCC's Claims that the City Violated CEQA by Failing to Disclose the Project's Alleged Inconsistencies with the CDSP and the Pasadena Municipal Code Are Not Well-Founded

As we noted earlier, the project site is located within the Civic Center/Midtown Sub-District of the CDSP. (Factual &Procedural Background, part 1, ante.) The CDSP "is intended to provide for systematic implementation of the General Plan, as related to the properties located within the boundaries of the [CDSP] area." (Boldface &italics omitted.)

PCCC argues that "despite significant key inconsistencies with the [CDSP] provisions adopted to reduce adverse impacts by protecting outdoor public greenspace, tree lawns, and streetscape in the historic Civic Center sub-district of Downtown Pasadena, the EIR declares land use impacts to be insignificant." In addition, PCCC contends that the EIR "failed to disclose the Project's inconsistency with [(a)] CDSP Building Design Guideline 7.1," which "requires development [to] 'distinguish the ground level of a building from the upper levels' "; and (b) the "zoning code regulations" implementing that guideline, which "require . . . the first floor of all non-residential buildings [to] be at least 15 feet tall." We reject each of these contentions.

1. PCCC does not establish the EIR should have disclosed any inconsistencies between the project and CDSP provisions concerning greenspace

PCCC identifies certain CDSP provisions it claims "require[ ] preservation of tree lawns in the Civic Center area of the Central District," and asserts that because "the Project's removal of the tree lawn on Parcel 3 'frustrate[s]' these policies of the CDSP [citation] and 'obstruct[s] their attainment' [citation]," the project is "inconsistent" with those provisions. Before addressing the substance of this argument, it is necessary to ascertain the governing standard of review.

PCCC maintains this claim is subject to de novo review because it is a challenge to the informational sufficiency of the EIR. Yet, PCCC does not address-let alone contest-the trial court's conclusion that "[t]he EIR discloses all relevant information to permit meaningful public discussion and informed decision making," which was predicated on the court's uncontroverted findings that "[t]he EIR contains a th[o]rough discussion of land use and planning aspects of the Project" and "evaluates Project consistency with the [CDSP] goals and objectives." Thus, insofar as PCCC asserts that the EIR's discussion of the project's consistency with the CDSP is not "sufficiently detailed to comply with CEQA's informational mandate," PCCC has waived that claim of error.²²

22 (See Ocean Street Extension Neighborhood Assn., supra, 73 Cal.App.5th at p. 1006; see ibid. [describing EIR informational sufficiency claims]; see also id. at p. 1004 [noting that this type of claim focuses on" 'whether the discussion sufficiently performs the function of facilitating "informed agency decisionmaking and informed public participation," '" and that an informational sufficiency claim is" 'not typically amenable to substantial evidence review' "]; Golden Door Properties, LLC, supra, 50 Cal.App.5th at pp. 554-555 ["' "Issues not raised in an appellant's brief are deemed waived or abandoned."' [Citation.] . . . [E]ven in a CEQA case,' "[t]he most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct." [Citation.] It is the appellant who bears the burden of overcoming that presumption.' "].)

PCCC disputes the EIR's conclusion that "impacts of the project relative to City plan consistency would be less than significant." This particular claim is subject to a distinctive appellate standard of review.

"A project is consistent with a county's general plan (and any specific plan adopted to further the objectives of the general plan) '" 'if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment.'" [Citation.] A given project need not be in perfect conformity with each and every general plan policy. [Citation.] To be consistent, a [project] must be "compatible with" the objectives, policies, general land uses and programs specified in the general plan. [Citation.]' [Citation.]" (Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1509 (Sierra Club).)

" 'Because policies in a general plan reflect a range of competing interests, the governmental agency must be allowed to weigh and balance the plan's policies when applying them, and it has broad discretion to construe its policies in light of the plan's purposes. [Citations.]'" (Sierra Club, supra, 121 Cal.App.4th at pp. 1509-1510.) A public agency's consistency determination "carries a strong presumption of regularity" such that it "can be overturned only if [the agency] abused its discretion-that is, did not proceed legally, or if the determination is not supported by findings, or if the findings are not supported by substantial evidence." (See Families Unafraid to Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1338.)" '[W]e accord great deference to the agency's determination.... because the body which adopted the . . . plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity. [Citation.]'" (See Sierra Club, at p. 1509; see also Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal.App.4th 91, 99 (Spring Valley Lake Assn.) [indicating that this deferential standard applies to CEQA cases].)

Bearing these principles in mind, we turn to PCCC's claim that the project is "inconsisten[t] with CDSP policies and guidelines requiring preservation of tree lawns." First, PCCC relies on Central District Objective 9, which provides: "PROTECT LANDSCAPE RESOURCES. Downtown's public outdoor spaces will remain a community asset through protection and enhancement of important landscape resources, including the area's mature street trees." Second, PCCC cites an excerpt from the "District-Wide Mobility Concept" section of the CDSP that includes the following text: "Maintain existing street trees and tree lawns, and plant new trees throughout Downtown." Third, PCCC invokes a provision of the CDSP that the plan identifies as a "[r]ecommendation," i.e., CDSP Guideline SE 4.5, which provides: "Maintain existing tree lawns, especially within the Civic Center and areas that are predominantly residential; new tree lawns are appropriate where residential use prevails." (Boldface &italics omitted.) Fourth, PCCC relies upon a Civic Center/Midtown Design Guideline that is titled, "Maintain and Extend Historic Streetscape Elements," and provides: "Wide sidewalks with decorative paving and broad tree lawns provide an appropriately dignified setting for City Hall. These and other historic elements such as historic light poles should be maintained and influence further streetscape improvements." (Boldface omitted.)

PCCC argues, "These CDSP policies and guidelines are consistent in their required preservation of tree lawns in the Civic Center area of the Central District." PCCC further contends that the project is inconsistent with these CDSP provisions because the project would "remove[ ] 36 trees, including the tree lawns on the civic gardens abutting Holly Street and Garfield Ave[nue] on Parcel 3." As explained below, PCCC fails to demonstrate error under the deferential standard that governs PCCC's argument.

An agency is entitled to" 'weigh and balance the plan's policies'" to determine whether "the proposed project will be compatible with the objectives, policies, general land uses and programs specified in the applicable plan." (See Sierra Club, supra, 121 Cal.App.4th at pp. 1509-1511.) In fact, "[a]n agency . . . has the discretion to approve a plan even though the plan is not consistent with all of a specific plan's policies" because "it is nearly . . . impossible for a project to be in perfect conformity with each and every policy set forth in the applicable plan." (See id. at pp. 1510-1511.)

Here, the land use consistency analysis in appendix F to the draft EIR quotes an excerpt from the CDSP's vision statement:" 'Downtown will be a place to work, shop, live, and play, with convenient access by foot, bicycle, and transit, as well as by car. Physical and economic growth will support this role and respect the numerous resources of historical and cultural significance that contribute to Downtown's unique identity.' "²³Upon reciting this vision statement from the CDSP, this section of appendix F thereafter states, "The proposed project would be consistent with the ultimate vision of the specific plan as the proposed project would be in close proximity to public transportation, provide economic growth, and respect the surrounding historical and cultural resources." Moreover, the land use plan consistency analysis in the final EIR provides that "the majority of the street trees and tree lawns associated with the project site would remain with implementation of the proposed project, including all of the street trees along Holly Street and Garfield Avenue."

23 The final EIR "incorporates by reference" appendix F to the draft EIR, as modified by certain revisions not relevant to this appeal.

Thus, in concluding that the project's removal of trees from Parcel 3 is consistent with the CDSP, it is apparent the City balanced the specific plan's objectives of promoting economic growth and respecting resources of historical and cultural significance against the plan's generalized statements calling for the protection and maintenance of tree lawns and street trees.²⁴As the quotations from the CDSP provided earlier in this section demonstrate, some of the provisions in the latter category are framed as recommendations and none of them outright bans development projects that require the removal of trees or tree lawns. Notwithstanding PCCC's argument to the contrary, these CDSP provisions do not constitute" 'specific, mandatory and fundamental policies'" to which the project must comply in order to be deemed consistent with the specific plan. (Quoting Spring Valley Lake Assn., supra, 248 Cal.App.4th at p. 101.) Consequently, the City acted within its discretion in concluding that the project was compatible with the objectives, policies, general land uses, and programs specified in the CDSP. (See Sierra Club, supra, 121 Cal.App.4th at pp. 1509-1511.)

24 Regarding the CDSP vision statement's objective of "respect[ing] the numerous resources of historical and cultural significance that contribute to Downtown's unique identity" (boldface omitted), we reiterate that the project would rehabilitate and adapt the YWCA building, which has been vacant and deteriorating since 1997. (Factual & Procedural Background, part 1, ante.)

Lastly, PCCC complains that the City "hid[ ] the discussion of the inconsistencies [with the CDSP] in an appendix and then misrepresent[ed] that discussion in the main text ...." Specifically, PCCC asserts that appendix F to the draft EIR admits that "the Project is not consistent with the requirement to protect tree lawns and street trees," whereas "the [draft] EIR state[s] that the Project would not remove any area that has been designated as recreational facilities, parkland or open space [citation], but fails to disclose that the CDSP provides special protection for historic landscape elements such as tree lawns." PCCC appears to be referring to appendix F's conclusion that the project is "Partially Consistent" with the aforementioned text from the "District-Wide Mobility Concept" section of the CDSP- i.e., "[m]aintain existing street trees and tree lawns, and plant new street trees throughout Downtown."

Because" '[a] given project need not be in perfect conformity" with "each and every policy set forth in the applicable plan" (see Sierra Club, supra, 121 Cal.App.4th at pp. 1509-1511), appendix F's finding of partial consistency is not a concession that the project is inconsistent with the CDSP. Furthermore, the draft EIR explicitly states that "[a] more detailed evaluation of the proposed project's consistency with individual goals and objectives is provided in Appendix F, Land Use Plan Consistency Analysis." (Italics omitted.) Therefore, we reject PCCC's argument that the City concealed its discussion of inconsistencies with the CDSP in an appendix and then mischaracterized that analysis in the main text of the EIR. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442 [holding that "[t]he data in an EIR . . . must be presented in a manner calculated to adequately inform the public and decision makers," and indicating that an EIR may satisfy that requirement if the information is "actually incorporated or described and referenced" in that document].)

In sum, PCCC has not shown that the City violated CEQA by failing to disclose the project's purported inconsistencies with CDSP provisions concerning the preservation of greenspace.

2. PCCC does not establish the EIR should have disclosed any claimed inconsistencies with CDSP Building Design Guideline 7.1 and its implementing Pasadena Municipal Code provision

CDSP Building Design Guideline 7 reads in full: "Emphasize Human-Scale Design." (Boldface omitted.) Beneath that text is one paragraph that discusses the "[i]ntent" of this Guideline. (Boldface &italics omitted.) Below that statement of intent and directly adjacent to the heading "[r]ecommendations" appears Building Design Guideline 7.1, which reads: "Distinguish the ground level of a building from the upper levels of a building, especially where a building orients to the street and/or defines public space." (Italics omitted.) To implement this measure, the City zoning code, specifically, Pasadena Municipal Code section 17.30.040, requires the first floor of all non-residential buildings to be at least 15 feet tall. PCCC contends that because the project includes a first floor that is only nine feet in height, the EIR should have disclosed that the project "is inconsistent with these provisions of the CDSP and the Municipal Code."

PCCC frames this argument as a challenge to the informational sufficiency of the EIR in an apparent attempt to invoke our independent review of this claim of error. Yet, as we explained in Discussion, part D.1, ante, PCCC does not acknowledge-let alone attempt to controvert-the trial court's conclusion that "[t]he EIR discloses all relevant information to permit meaningful public discussion and informed decision making," which was supported by the undisputed findings that "[t]he EIR contains a th[o]rough discussion of land use and planning aspects of the Project" and "evaluates Project consistency with the [CDSP] goals and objectives." The trial court's rejection of PCCC's informational sufficiency claim was also based in part on its finding that "the EIR disclosed the need for a variance as well as the Project's failure to meet the minimum 15-foot height requirement under the zoning code." PCCC does not contest that finding either. Therefore, PCCC waived its claim that the EIR's discussion of the environmental impact of the height of the first floor of the building lacked sufficient detail to comply with CEQA. (See Ocean Street Extension Neighborhood Assn., supra, 73 Cal.App.5th at pp. 1004, 1006 [describing EIR informational sufficiency claims]; Golden Door Properties, LLC, supra, 50 Cal.App.5th at pp. 554-555 [holding that in a CEQA case, the appellant bears the burden of overcoming the presumption of correctness accorded to the trial court's decision].)

PCCC is relegated to challenging the EIR's conclusion that the height of the first floor would result in a "less than significant" environmental impact. Insofar as this appellate claim is predicated on the project's alleged inconsistency with the CDSP, it is governed by the abuse of discretion standard of review we articulated in Discussion, part D.1, ante.

PCCC fails to satisfy that deferential standard. CDSP Building Design Guideline 7.1 is nothing more than a "[r]ecommendation" for the City to consider in assessing proposed building designs. (Boldface &italics omitted.) In arriving at the conclusion that the project is consistent with the CDSP, the City was permitted to "weigh and balance" that nonbinding design recommendation against the CDSP's objectives of promoting economic growth and respecting resources of historical and cultural significance. (See Sierra Club, supra, 121 Cal.App.4th at pp. 1509-1510.) We thus defer to the City's "unique competence" to interpret and apply these CDSP provisions. (See id. at p. 1509.)

Concerning the project's failure to adhere to Pasadena Municipal Code section 17.30.040's 15-foot height requirement, PCCC suggests that even if a variance were acquired for the project, that variance would merely constitute a legal "entitlement" that would neither "ameliorate" nor "reduce the impacts of the Project." Nevertheless, PCCC acknowledges that this height regulation is intended "[t]o implement" CDSP Building Design Guideline 7.1. It is not altogether clear that CEQA obligates an agency to find the project would be inconsistent with a zoning code provision even if, as is the case here, (a) the project is consistent with the specific plan implemented by that zoning code provision and (b) the EIR's conclusion that the project would have a "less than significant" impact is predicated on the issuance of a variance excepting the project from the ordinance.²⁵ Further, neither of the CEQA regulations upon which PCCC relies in connection with this argument addresses this question.²⁶ Because PCCC does not explain why a finding of inconsistency is required under these circumstances, the remainder of this claim of error fails. (See Hernandez, supra, 37 Cal.App.5th at p. 277.)

25 (See also Tustin Heights Assn. v. Bd. of Supervisors (1959) 170 Cal.App.2d 619, 626-627 ["Classically, a master zoning ordinance establishes the basic uses permitted within the particular zoned area. Usually such permitted uses are not exclusive and the zoning act also enumerates certain other uses known as exceptions which do not comply with the ordinance but which may nonetheless be permitted upon application and hearing.... [A] type of use exception permitted under applicable circumstances is known as the 'variance.' The essential requirement of the variance is a showing that strict enforcement of the zoning limitations would cause unnecessary hardship."].)

26 Specifically, PCCC cites section 15125, subdivision (d) and 14 California Code of Regulations, Division 6, Chapter 3, Appendix G, section XI, subdivision (b), neither of which substantiates PCCC's position. (See § 15125, subd. (d) [providing that "[t]he EIR shall discuss any inconsistencies between the proposed project and applicable general plans, specific plans and regional plans," but omitting any reference to zoning ordinances adopted to implement specific plans]; 14 Cal. Code Regs., Div. 6, Ch. 3, App'x G, § XI, subd. (b) [environmental checklist form that asks whether the project would "[c]ause a significant environmental impact due to a conflict with any land use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect"; this portion of the form does not clarify whether a significant environmental impact would exist even if a project were consistent with the specific plan implemented by the land use regulation at issue].)

E. PCCC Fails to Show the EIR Defers Analysis of the Project's Compliance with the Tree Protection Ordinance

In the course of discussing the land use restrictions applicable to the project site, the EIR explains: "The City has adopted a Tree Protection Ordinance (PMC Chapter 8.52). In accordance with the ordinance, it is prohibited to remove a public tree located anywhere in the City without review by the Urban Forestry Advisory Committee and approval of the City Manager." The EIR further discloses that, "[a]s the project site is public property, all of the trees on the site are covered by this ordinance."

Regarding the tree removals necessitated by the project, the EIR states: "The proposed project would remove three street trees along Marengo Avenue for construction of the guest drop-off and valet zone. The five Sister City trees in the landscaped area along Garfield Avenue would also be removed, along with a portion of the tree lawn surrounding these trees. In total, the project would result in the removal of 34 of the 61 trees on the project site, including the five Sister City trees, all of which are protected by City ordinance. Tree removals would comply with the City's Tree Protection Ordinance ...."²⁷ To support its assertion that "[t]he proposed project would be required to comply with the City's adopted Tree Protection Ordinance," the EIR explains that "the proposed tree removal would be subject to an advisory review by the Urban Forestry Advisory Committee and approval by the City Manager."

27 PCCC suggests for the first time in its reply brief that the EIR violates CEQA because it inaccurately states that 34 trees would be removed, whereas PCCC claims the developer actually requested the removal of 36 trees. PCCC waives this argument by failing to timely assert it. (See Habitat & Watershed Caretakers, supra, 213 Cal.App.4th at p. 1292, fn. 6.)

PCCC once again challenges the informational sufficiency of the EIR, arguing that "[t]he EIR fails to disclose inconsistencies with the City's Tree Protection Ordinance by improperly deferring analysis of Project compliance, instead relying on post-approval review of tree removals by the UFAC [(Urban Forestry Advisory Committee)] to find consistency." In support of this claim of error, PCCC correctly points out that Pasadena Municipal Code section 8.52.015 states that the City adopted the Tree Protection Ordinance for the purpose of" 'preserv[ing] and grow[ing] Pasadena's canopy cover by . . . expanding the protection of street trees and trees on public property.'" (Quoting Pasadena Municipal Code, § 8.52.015.)²⁸

28 We previously took judicial notice of Pasadena Municipal Code section 8.52.015. (Evid. Code, §§ 452, subd. (c), 459.)

PCCC, however, does not claim that the Tree Protection Ordinance requires anything more than the following before a tree may be removed: (a) having any request for tree removal reviewed by the UFAC and (b) securing the approval of the City Manager. PCCC does not dispute the EIR's assertion that the project's tree removals would not proceed without first complying with those requirements. PCCC does not argue-let alone demonstrate-that the Tree Protection Ordinance imposes a substantive standard for tree removals that the EIR should have applied to the project in order to determine whether it conflicts with the ordinance. Thus, PCCC does not show that the City violated CEQA by failing to "analyze the Project's [alleged] conflicts with the Tree Protection Ordinance ...." (See Rialto Citizens for Responsible Growth, supra, 208 Cal.App.4th at pp. 924-925 [holding that the party challenging an EIR has the burden of demonstrating that it fails to comply with CEQA]; see, e.g., 14 Cal. Code Regs., Div. 6, Ch. 3, App'x G, § XI, subd. (b) [environmental checklist form that asks whether the project would "[c]ause a significant environmental impact due to a conflict with any land use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect," italics added].)

PCCC also seems to criticize the EIR for "fail[ing] to disclose that the UFAC already recommended that the City 'consider alternatives that have a lesser impact on public trees, in particular the sister city trees[,]'" and that "[t]he UFAC expressed a desire to see whether the trees could be saved and relocated, mitigating the impacts of removal, and requested that its further recommendation be 'continued until [the UFAC] got the information [it] need[ed].'" Because, as we explained above, PCCC does not controvert the EIR's conclusion that the project would comply with the Tree Protection Ordinance, it is not altogether clear which provision of CEQA or its implementing regulations supposedly obligated the City to disclose these recommendations from the UFAC. (See Dry Creek Citizens Coalition, supra, 70 Cal.App.4th at p. 36 ["Courts should not interpret CEQA to impose procedural or substantive requirements beyond those explicitly required in the statutes or CEQA Guidelines."].)

In any event, the trial court found that the UFAC "expressed concern that any recommendation it made would be premature because a landscape plan had not yet been developed." PCCC does not dispute the court's finding or otherwise explain why it does not support the court's conclusion that "[t]he EIR discloses all relevant information to permit meaningful public discussion and informed decision making." Accordingly, PCCC's reliance on the UFAC's recommendations is unavailing. (See Golden Door Properties, LLC, supra, 50 Cal.App.5th at pp. 554-555.)

Lastly, PCCC raises several objections concerning Condition of Approval 73, which provides: "Any tree removal proposed by the development, is subject to Urban Forestry Advisory Committee (UFAC) review and recommendation. Existing on-site trees shall be preserved to the maximum extent feasible." PCCC contends that Condition of Approval 13's bar on changes to the project's square footage renders unenforceable Condition of Approval 73, which PCCC claims is a mitigation measure. In addition, PCCC insists that "[a] condition requiring the preservation to the 'maximum extent feasible' is not a performance standard that allows for deferred mitigation."

Because PCCC has not shown any inconsistency between the project and the Tree Protection Ordinance, there is no significant environmental impact that needs to be mitigated by Condition of Approval 73. (See 14 Cal. Code Regs., Div. 6, Ch. 3, App'x G, § XI, subd. (b) [indicating a significant environmental impact could be caused by a conflict with a land use regulation].) Accordingly, we reject PCCC's assertion that Condition of Approval 73 is a mitigation measure that must comply with CEQA's mandates (e.g., the mitigation measure must utilize adequate performance standards in order to comply with CEQA). (See § 15126.4, subd. (a)(3) ["Mitigation measures are not required for effects which are not found to be significant."].)

For these reasons, we reject PCCC's claim that the City violated CEQA by improperly deferring its analysis of the project's compliance with the Tree Protection Ordinance.

F. The City Did Not Improperly Segment or Piecemeal Its Analysis of the Impacts of Removing Public Greenspace and Eliminating Symmetry from Its Review of the Project

Before addressing PCCC's next claim of error, we observe that PCCC asserts the trial court erred in denying its motion to augment the administrative record to include a planning and community development department staff report dated June 22, 2016. PCCC also seeks judicial notice of this staff report on appeal. PCCC further claims this staff report establishes that the City violated CEQA by improperly "segmenting" or "piecemealing" its analysis of the environmental effects of building the new hotel on Parcel 3 into a process separate from the environmental review undertaken for this project.

We assume solely for the purposes of this appeal that the trial court erred in denying the motion to augment the administrative record to include the staff report. Because this assumption necessitates the inclusion of the staff report in the administrative record, we may consider that document in the course of resolving PCCC's claim that the City improperly segmented or piecemealed the project. (See Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549, 565 [holding that an appellate court is permitted to review the administrative record to determine whether the public agency complied with CEQA].) Consequently, we need not take any further action on PCCC's (now moot) request for judicial notice of this document. (Cf. Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1133, fn. 12 [denying as moot a request for judicial notice of legislative history offered to establish the Insurance Code regulated the defendant because the reviewing court assumed for the purposes of appeal that the code was applicable].) Furthermore, because (as explained below) the staff report does not demonstrate that the City violated CEQA by improperly segmenting or piecemealing the environmental review process, the error that we assume the trial court committed in denying the motion to augment does not warrant reversal of the judgment. (See F.P. v. Monier (2017) 3 Cal.5th 1099, 1108 [noting that the state constitution "generally 'prohibits a reviewing court from setting aside a judgment due to trial court error unless it finds the error prejudicial' "].)

The staff report is a memorandum from the interim director of the planning and community development department to the planning commission (the interim director). In the report, the interim director recounted: "During discussion of the YWCA/Kimpton Hotel project, members of the Planning Commission and [the] public have expressed concerns about provision of undeveloped landscaped space within the Civic Center in the vicinity of City Hall as well as symmetry of future new construction on the currently-landscaped City-owned properties at the northwest and southwest corners of Garfield Avenue and Holly Street." The interim director insisted that the CDSP "does not contain requirements for provision of undeveloped landscaped space in hotel projects or for symmetry of buildings across from City Hall."

"However, due to public concern about losing undeveloped space in the Central District, as well as reducing the landscaped character of the Civic Center," the interim director opined that "the potential for provision of additional landscaped space in the vicinity of City Hall should be studied as a separate effort." He "recommend[ed] that the Planning Commission forward a recommendation to [the] City Council to direct staff to initiate a planning effort to study options for establishing additional undeveloped landscaped space in the vicinity of City Hall ...."

The interim director further stated that "[s]ymmetry of the proposed new Kimpton Hotel with a future development that could occur on the north side of Holly Street has also been cited as an urban planning concern, primarily related to Beaux Arts planning principles discussed in the context of the YWCA/Kimpton Hotel project." The interim director asserted that "[t]his is an urban design issue related to the provisions of the [CDSP], which is silent on the matter." Because "[a]ny regulations that would apply to the adjacent site on the north side of Garfield would undoubtedly be influenced by the Kimpton project," the director "recommend[ed] that the City Council also direct staff to prepare necessary amendments to the CDSP, or other measures such as a lot line adjustment, to provide on the Garfield Avenue and Holly Street frontages of the northerly landscaped property (with [the] address of 280 Ramona Street) for a required building line that would be symmetrical with the same line at the edge of the proposed Kimpton Hotel building."

At the beginning and at the end of the staff report, the interim director asserted the "action proposed [t]herein" involved only "feasibility or planning studies for possible future actions which the City ha[d] not approved, adopted, or funded, and d[id] not involve adoption of a plan that w[ould] have a legally binding effect on later activities."

PCCC points out that "[t]he Supreme Court has stated that environmental analysis of a second activity is required in the environmental review for a project if '(1) [the second activity] is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.' [Citation.]" (Quoting Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396.) PCCC argues that "subsequent action to revise design standards on the Northside Parcel and restore public greenspace in the vicinity of the Civic Center" "clearly meets both of these conditions . . . and constitutes project segmentation under CEQA." Specifically, PCCC alleges that "[t]he Project's elimination of symmetry between Parcel 3 and the Northside Parcel at the [District's] central focal point, contrary to Beaux Arts design principles, compels revisions to design standards and CDSP amendment." (Italics added.) Similarly, PCCC claims "the Project's reduction of public greenspace in the Civic Center by building on the civic gardens and tree lawn located on Parcel 3 compels the need to provide additional public landscaped space in the vicinity of the Civic Center." (Italics added.)

"We independently determine" whether this case satisfies the Laurel Heights Improvement Assn.'s two-pronged test for ascertaining whether a public agency has improperly piecemealed or segmented its environmental review of a project. (See Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1222, 1224.) Applying that standard, we conclude PCCC has failed to demonstrate that revisions to the City's design standards and the provision of additional greenspace in the Civic Center are reasonably foreseeable consequences of the project.

We acknowledge that the "concerns" raised by "members of the Planning Commission and [the] public" "[d]uring discussion of the YWCA/Kimpton Hotel project" prompted the interim director to recommend that the city council "[d]irect staff to study means of providing additional undeveloped landscaped space in the vicinity of City Hall" and "means of ensuring a symmetrical building line for any future project to be built at 280 Ramona Street." (Italics added.) Yet, PCCC has not substantiated its claim that the City must adopt revisions to the CDSP or provide additional greenspace. Indeed, the interim director maintained that "there is no basis for which to require the YWCA/Kimpton Hotel project to increase or preserve landscaped space as part of that project," and that the CDSP "is silent on" whether "[s]ymmetry of the proposed new Kimpton Hotel with a future development that could occur on the north side of Holly Street" is required. Thus, even assuming the city council directs or has directed its staff to conduct the studies identified in the report, we have no basis to conclude that the City will take any action based on those studies.

PCCC nonetheless argues that the interim director admitted in the staff report that the project compels revisions to the design standards. In particular, PCCC observes the interim director recommended that "the City Council . . . direct staff to prepare necessary amendments to the CDSP, or other measures . . . to provide on the Garfield Avenue and Holly Street frontages of the northerly landscaped property . . . for a required building line that would be symmetrical with the same line at the edge of the proposed Kimpton Hotel building." (Italics added.)

This slender reed cannot withstand the weight PCCC places on it. The context of the passage on which PCCC relies demonstrates the interim director was merely describing revisions that would achieve the objectives identified in the staff report-i.e., "ensuring a symmetrical building line for any future project . . . at 280 Ramona Street." (Cf. Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2018) 29 Cal.App.5th 410, 418 ["In construing a . . . written instrument, we consider it 'as a whole and interpret the language in context, rather than interpret a provision in isolation.' "].)

PCCC intimates that the design guidelines must be revised and the City must provide additional greenspace in the Civic Center to mitigate the project's alleged significant impacts on an historical resource and to eliminate the project's supposed inconsistencies with land use plans and regulations. This argument fails for the reasons provided in Discussion, parts B-E, ante.

In sum, we reject PCCC's argument that the City violated CEQA by analyzing the impacts of removing public greenspace and eliminating symmetry in a process separate from the environmental review conducted for the project.

DISPOSITION

Appellant Pasadena Civic Center Coalition's request for judicial notice of the staff report in exhibit A is denied as moot. The judgment is affirmed. Respondent City of Pasadena is awarded its costs on appeal.

We concur: CHANEY, J., BENKE, J. ^[*]

[*] Retired Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.