The opinion
Filed 2/18/14 Highland Park Heritage Trust v. City of Los Angeles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
HIGHLAND PARK HERITAGE TRUST B242930
et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BS133020)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents;
AUTRY NATIONAL CENTER OF THE
AMERICAN WEST,
Real Party in Interest.
APPEAL from a judgment of the Superior Court of Los Angeles County.
James C. Chalfant, Judge. Affirmed.
Otten & Joyce, Victor J. Otten, Brigid Joyce for Plaintiffs and Appellants.
Carmen Trutanich, City Attorney, Timothy McWilliams for Defendants and
Respondents.
Alston & Bird, Edward J. Casey, Neal P. Maguire for Real Party in Interest.
___________________________________________________
Highland Park Heritage Trust and Mount Washington Homeowners Alliance
(collectively, Petitioners) appeal from the judgment denying their combined petition for
writ of mandate and complaint for injunctive relief in which they sought to set aside the
decision of the Los Angeles City Council (City Council) consenting to the internal
remodeling project (Project) for the Gene Autry Western Heritage Museum (Autry
Museum) and adopting the findings of the City of Los Angeles Board of Recreation and
Parks Commissioners (R&P Board), including the finding the Project is exempt from
CEQA.1
The Real Party in Interest is the Autry National Center of the American West
(Autry), which currently operates the Autry Museum on leased land in Griffith Park and
the Southwest Museum in the Mount Washington area of the City of Los Angeles
(City).2 Pursuant to a private merger in 2003, the financially and physically unsound
Southwest Museum became part of the Autry operations.
In April 2011, the State of California (State) awarded Autry a grant of $6,593,463
($6.6 million) to fund the redesign of the interior of the Autry Museum and for
installation of new exhibits. In about May 2011, Autry submitted a proposal to the City
of Los Angeles Department of Recreation and Parks (Department) to remodel
approximately 18,000 of the total 48,230 square feet of the first floor of the Autry
Museum. This 18,000 square feet was used primarily for exhibits but included about
2,500 square feet of collections storage and restrooms. The remodeling would take place
within the museum’s existing footprint without alteration to building’s exterior.
1 CEQA is the acronym for the California Environmental Quality Act, which is set
forth in Public Resources Code section 21000 et seq. All further section references are to
this code unless otherwise indicated.
2 Formerly, Autry was known as The Autry Western Heritage Museum and was
formerly known as the Gene Autry Western Heritage Museum. As of the March 4, 2003
merger, Autry became the “Autry National Center of the American West,” which
included the Autry Western Heritage Museum and the Southwest Museum.
2
The nature of the remodeling would involve renovation of two galleries housing
long-term exhibits (“First Californians” and “Dreamers, Doctors, Basketweavers”) and
the conversion of an existing exhibit (“Trails West”) into a teaching garden displaying
native flora and ecosystems depicted in the planned First Californians exhibit.
Additionally, the restrooms and a certain outdoor area would be remodeled.
The R&P Board approved the remodeling Project; granted its consent thereto to
Autry under the City’s ground lease with Autry; and found its consent was exempt from
CEQA because the Project included only interior remodeling of the Autry Museum, an
existing facility. The City Council rejected Petitioners’ CEQA appeal (11-2 vote) and
consented to the Project (10-3 vote).
Petitioners contend approval of this Project improperly furthers Autry’s ultimate
goal of obtaining piecemeal approval in violation of CEQA of a much more expansive
project Autry appeared to have abandoned earlier. They also contend the Project is not
exempt from CEQA and that the Project violates the Northeast Los Angeles Community
Plan (NELA Community Plan) by usurping the artifacts in the Southwest Museum
collection (Collection) for the Autry Museum.
We affirm the judgment. The City did not abuse its discretion in approving the
R&P Board decision that the Project did not have to comply with CEQA. The record
does not support Petitioners’ claim that the Project is merely a component piece of a
much larger project which is subject to CEQA.3 The Project is categorically exempt
3 The record on appeal consists in part of a copy of the certified reporter’s transcript
of the May 17, 2012 hearing before the superior court on a combined petition for writ of
mandate and complaint for injunctive relief and two volumes of the Appellants’
Appendix, which include pleadings and other documents in that proceeding.
The record also consists of a partially certified administrative record, lodged as
volumes 1 through 33, which includes “the final index of the record” and “documents
bates numbered AR001-AR125260,” except for the “document labeled AR0006369 . . .
found at Tab 180” and “any document bearing a control number prefix of CPC-2008-
2548 or ENV-2008-2547,” which documents are not properly part of this record, because
“they neither pertain to the [P]roject challenged in this litigation, nor relate to a prior
version of the [P]roject challenged in this litigation.”
3
from CEQA without exception. The City did not act in a manner contrary to law in
consenting to the Project, which is not inconsistent with the NELA Community Plan.
BACKGROUND
1. Merger of the Autry Museum and the Southwest Museum
In 2003, Autry, a California nonprofit corporation, entered into an agreement with
the Southwest Museum, then a nonprofit corporation, whereby the Southwest Museum
would be merged with the Autry Museum and cease to exist as an independent entity.
Autry operates the Autry Museum at its Griffith Park Campus and the Southwest
Museum at its Arroyo Campus.
a. Southwest Museum and Its Collection
“The approximate 12-acre Arroyo Campus is located within the Mount
Washington area of the City. . .” and “includes the Southwest Museum Building, the Casa
de Adobe, and the Braun Library.” Although the Southwest Museum Building and the
Casa de Adobe are historical resources, the Braun Library is not. “The site includes a
steeply sloped hillside that extends upward in a northerly direction from the site entry on
Museum Drive at the foot of the hill. In addition, the Arroyo Campus includes roughly
33,000 square feet of building area.”
“The . . . Collection totals nearly 250,000 archaeological and ethnographic items
from all parts of North America. The Collection is particularly strong in material from
the Great Plains, Southwest, California, and the Northwest Coast. In some categories
such as Native American baskets as well as ceramics, kachinas, and textiles, the
We deem the administrative record also to include the certified reporter’s
transcript of the May 20, 2011 hearing before the R&P Board, at which time that Board
approved the Project. This copy is located after the last tab, which is blank, in volume 33
of the administrative record. The partially certified administrative record as so
augmented is sufficient for our review. (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th
347; cf. Buckhart v. San Francisco Residential Rent etc. Bd. (1988) 197 Cal.App.3d
1032.)
We earlier denied Petitioners’ request for judicial notice filed March 21, 2013. On
August 9, 2013, they filed another request for judicial notice and a motion to take new
evidence. We deny both this judicial notice request and the motion.
4
Collection is unsurpassed. In addition, the Collection includes 125,000 archeological
items, 6,000 Spanish Colonial artifacts, and 4,000 two-dimensional works of art.”4
b. Goal of Merger
“With regard to the merger, the goal was to manifest a general commitment to
blend aspects of the Southwest and Autry museums to include the shared use of facilities,
preservation of the collections, integration and interaction of staff, and the development
of exhibitions and programs. In furtherance of this goal, the Autry included the
Southwest as part of its master planning process. The merger did not provide a definite
plan for future development or expansion of either site, nor did it manifest a ‘promise’ to
construct facilities at Griffith Park adjacent to existing buildings, or to maintain all
artifacts and displays at the Southwest [Museum].”
c. Southwest Museum and Its Collection Following Merger
Upon the 2003 merger, Autry discovered “the Southwest Museum [C]ollection
was in danger because of harmful storage conditions, pest infestations and building
leaks. Artifacts were overcrowded and inaccessible.” The need “to repair structural
damage due to the 1994 Northridge earthquake” required the Autry “to move 230,000
[artifacts] out of the main tower, the Caracol Tower.”
In its Southwest Museum rehabilitation study report, Autry stated, “we do not
believe it is economically feasible to operate the site exclusively as a museum.” The
record reflects Autry did spend over $7 million to restore and preserve the Collection and
other monies to repair the museum itself. By Resolution dated May 23, 2007, Autry set
forth its decision to remove the Collection from the Arroyo Campus.
4 For ease of discussion, we refer to an item in the Collection as an artifact and to
more than one item or collectively to all of the items as “artifacts.” An “artifact”
signifies “an object made by a human being, typically one of cultural or historical
interest” (oxforddictionaries.com/us/ . . . /artifact) or “[a]n object made or modified by
human workmanship, as opposed to one formed by natural processes.” (Oxford English
Dict. (3d ed. 2008).)
5
2. The Earlier Expansive Project
a. Nature and Scope of Earlier Expansive Project
Prior to this Project, Autry had attempted to accomplish a project which would
have extended the external footprint of the Autry Museum expansively. After Autry
applied for consent to this project, a draft environmental impact report (DEIR) was
prepared, and in 2008, a final environmental impact report (FEIR) was prepared under
CEQA. Autry subsequently withdrew its application for that project (Earlier Expansive
Project or 2008 Project) due to public controversy and delays in obtaining its approval.
(1) Consent by R&P Board and City Prerequisite to Project
The Autry Museum is located in Griffith Park on land leased from the City.
Pursuant to the lease, Autry was required to obtain the consent of the City for any
remodeling of the museum valued at more than $25,000. As a precursor to such consent,
Autry first had to obtain the consent of the R&P Board, whose function for the City
included overseeing lands leased by the City for public recreation and parks purposes. 5
(2) DEIR Prepared
In August 2007, with regard to the Earlier Expansive Project, the Department, as
the lead agency, prepared a DEIR under CEQA and the guidelines promulgated under
CEQA (Guidelines).6
The DEIR gave this description of the Earlier Expansive Project: “To assist in
implementing its mission to ‘explore the experiences and perceptions of the diverse
peoples of the American West,’ the Autry . . . proposes” the following improvements to
its “Griffith Park Campus[, which] includes the Autry . . . Museum . . . and the Institute
5 The “Department of Recreations and Parks shall operate, manage and control all
property now or hereafter owned or controlled by the City . . . for public recreation,
including parks, and shall have power in the name of the City . . . to acquire and take by
purchase, lease, condemnation, gift, in trust or otherwise, any and all property necessary
or convenient for recreation, including park purposes.”
6 These Guidelines are set forth in the California Code of Regulations, title 14,
division 6, chapter 3, section 15000 et seq.
6
for the Study of the American West. The project would renovate and modernize certain
portions of the Existing Griffith Park Campus in two development phases. The key
project features include increasing the building space within the Campus by 129,000
square feet, renovating the exterior landscape areas, and enhancing vehicle and pedestrian
circulation and parking amenities. These improvements would allow the Autry . . . to
establish its Griffith Park Campus as the premier interpretive site for the exhibitions of
the American West; to implement its previously approved plan to store its collections in a
location with museum standard-of-care controls and appropriate physical storage
conditions in a facility such as the project site; to showcase the internal workings of the
Campus (e.g., visible storage of collections and staff areas); to provide additional gallery
and presentation areas for the public; to enhance its research and education programs; and
to enhance the Campus as a cultural resource.”
The DEIR identified and discussed five specific alternatives to reduce or avoid
significant effects, including “Alternative E,” which would switch the project site from
the Griffith Park Campus to the “Arroyo Campus,” which included the Southwest
Museum and Casa de Adobe.
The Department noted, “[t]he Arroyo Campus is not part of the project” and that
Autry’s “decision to expand its Griffith Park Campus is independent of any decision as to
how to reuse the Arroyo Campus. [Autry] has previously resolved to move the
Southwest [Museum] Collection, regardless of whether the expansion occurs at the
Griffith Park Campus.” It concluded, “while the Arroyo Campus does include known
historic resources, such as the Southwest Museum Building and the Casa de Adobe, . . .
these resources would not be impacted by the project.7
7 In reaching this conclusion, the Department explained what constituted a
significant impact on a historical resource and then explained why the Earlier Expansive
Project would not give rise to such an impact with respect to the Southwest Museum and
its Collection. Citing section 21084.1, Guidelines section 15064.5, and the “City of
Los Angeles CEQA Thresholds Guide (2006),” the Department stated: “[A] project has a
significant impact on a historical resource if it would result in a substantial adverse
change in the significance of an historical resource. ‘Substantial adverse change in the
7
“With regard to the Southwest [Museum] Collection within the Arroyo Campus
site, the movement of the Collection [to the Griffith Park Campus] is not a ‘project’ under
CEQA. Furthermore, even if the . . . Collection could be considered part of a project’s
environment, the proposed project would not significantly impair the . . . Collection.
Specifically, the proposed project would not in any way ‘materially impair’ the . . .
Collection.” On the contrary, such relocation would provide the Collection with “the best
care available while achieving a higher public display value than if they were to remain at
the Arroyo Campus.” The project would provide “a state-of-the-art facility in which the
Collection can be properly cared for while providing greater public access to the
Collection—most of which has been hidden from public view for decades due to a lack of
space in which to properly display and care for these artifacts. Currently, the inadequate
exhibit space in the Southwest Museum Building requires 98 percent of the 250,000
items in the Collection to remain in storage at any given time. The Collection is largely
stored in the seven-story Caracol Tower, which is inappropriate in size and condition for
the conservation, documentation, and scholarly requirements of the Collection. These
deficiencies put the stored collections at risk.”
The Department found the potential significant adverse impacts of expansion of
the Arroyo Campus overwhelmed those posed by going forward with the project at the
Griffith Park Campus and concluded the expansion of the Arroyo Campus alternative
“would not be the environmentally superior alternative under CEQA.” The Department
rejected the Arroyo Campus alternative.
significance of an historical resource means physical demolition’ or other adverse effects,
such that the significance of the historical resource ‘would be materially impaired.’
Material impairment occurs when a project alters or destroys ‘those physical
characteristics of an historical resource that convey its historical significance and that
justify its inclusion’ in a State or local historic registry. Since there is nothing to
demonstrate that the proposed project would in any way ‘materially impair’ the known
historic resources at the Arroyo Campus, no potential impacts would occur.”
8
(3) FEIR Prepared
In August 2008, an FEIR was prepared.8 The Department again rejected the
“Alternative E—Expansion at the Arroyo Campus” for the same reasons set forth in the
draft EIR, plus the reason “development at the Arroyo Campus site could have a
significant noise impact during construction.”
b. Autry’s Abandonment of Earlier Expansive Project
In a letter dated August 10, 2009, to the City, Autry withdrew its request for a
lease amendment and its applications on file for the Earlier Expansive Project. Autry
explained the City Council, through its Board of Referred Powers, did not intend to hold
a hearing on its proposed lease amendment until “some undefined date after August 31,”
and Autry was “now out of time.”
In a letter dated August 25, 2009, the City Department of Planning advised Autry
that “the Director of Planning hereby terminates all proceedings relative to [the Earlier
Expansive Project]” and after noting “the City Planning Commission took no formal
action on this application,” advised if Autry wished “to pursue this matter in the future, it
will be necessary . . . to file a new application and pay the required fees.”
3. “Open Autry” Plan Discarded and Partial First Floor Project Adopted
a. “Open Autry” Plan to Remodel Entire First Floor Discarded
In spring of 2010, Autry considered “an ambitious plan… to redo the entire first
floor [of the Autry Museum], adding new galleries and rental space,” sometimes referred
to as an “Open Autry” design. In a press release issued in June 2010, Autry commented
8 The FEIR contained a specific section setting forth certain corrections and
additions to the draft EIR “based on comments received from the public and agencies,
and other items requiring updating and/or corrections.” On August 18, 2008, a public
hearing was held by the Department regarding the FEIR. In January 2009, a document
entitled “Errata to Final Environmental Impact Report” was prepared by the Department,
which contained a section on “additional corrections and additions to the draft EIR”;
“additional responses to comments” following preparation of the FEIR; an “Updated
Mitigation Monitoring and Reporting Program”; and three appendices. The Department
concluded recirculation of the FEIR was not necessary.
9
on its “Open Autry” design. Autry, however, ultimately decided not to proceed with this
plan for the redesign of the entire first floor. At a meeting in May 2010, Autry discussed
the “Open Autry” plan with Department staff; however, Autry did not submit a formal
development application or seek written consent therefor from the R&P Board or City.9
b. Project to Remodel Portion of First Floor Adopted
In spring of 2010, the State issued a request for proposals regarding its Proposition
84 Natural Education Facilities Grant Program. Autry submitted a proposal for a grant.10
Autry’s adopted plan was to redesign 18,000 square feet of the first floor, which is this
Project.
4. This Project
a. Nature and Scope of Project
On June 21, 2011, the Department filed an NOE with the City listing the Project’s
exempt status as a “categorical exemption.” The claim of exemption was justified on the
ground “[t]he [P]roject involves interior and exterior alterations to established and
discrete areas of an existing facility, which are fully developed within the larger
environment of parks or recreation centers, where such modifications are essentially a
rearrangement (rather than an additive function) such as might occur at a museum, and
will not increase the size or expand the use of the facility.”
The Project title was “AUTRY NATIONAL CENTER (Griffith Park)—Facility
Remodeling of Exhibit Space for Interpreting Native American Environmental
Stewardship.” Autry supplied this description of the nature, purpose, and beneficiaries of
the Project: “The proposed [P]roject will . . . create two exhibit galleries and an outdoor
9 On June 25, 2010, Department staff approved a Notice of Exemption (NOE). As
Petitioners concede, this approval is inconsequential, because the lease required the
consent of the R&P Board itself.
10 As part of the grant application process, Autry needed a “comfort letter” from the
R&P Board to the effect that the lease likely would be extended at the expiration of its
term in 2037. The Board provided Autry with the required letter.
10
teaching garden devoted to the indigenous peoples of California, their relationship to the
natural environment, and key stewardship practices they have employed in sustaining
their traditions and lifeways. The project will include reconfiguration of two existing
museum galleries to house the California Indian exhibits, as well as the conversion of an
existing exterior interpretive space into the Native California teaching garden. The
[p]roject will also include the renovation of existing restrooms common to each of these
interpretive areas. All remodeling work will be accomplished within the museum’s
existing footprint and no exterior walls of the museum building will be expanded. The
patrons of the Autry . . . [M]useum and Griffith Park will be the beneficiaries of the
[p]roject.”
b. Project Funded by $6.6 Million Proposition 84 State Grant
In April 2011, the State awarded Autry a grant in the amount of $6.6 million to
fund the redesign of the interior of the Griffith Park Museum and the installation of new
exhibits. This grant fund could not be used for any other purpose or place.
5. R&P Board’s Finding Project CEQA Exempt and Consent to Project
On May 20, 2011, the R&P Board adopted the recommendation of the General
Manager to approve the Project without additional CEQA documentation, finding the
Project was exempt under CEQA and that an NOE already had been filed on June 25,
2010.
On May 27, 2011, Councilman Jose Huizar made a motion, which was seconded
by Councilman Ed P. Reyes, pursuant to Section 245 of the City Charter (Section 245
motion) for the City Council to assert jurisdiction over the R&P Board’s May 20, 2011
action approving the Project and, upon asserting jurisdiction, to refer the matter to the
Arts, Parks, Health and Aging Committee (Committee) for further review.
At its May 31, 2011 meeting, the City Council, under Council File No. 11-0884,
adopted the Section 245 motion and referred the matter to the Committee.
On June 3, 2011, the Committee held a public hearing on the propriety of the R&P
Board’s approval of the Project and to decide whether to recommend that the City
11
Council approve or disapprove the Board’s action.11 As a preliminary matter, the City
Attorney explained that pursuant to its ground lease with the City, Autry first had to
obtain the consent of the Board to any proposed modifications valued in excess of
$25,000 to the structure of the Autry Museum or in excess of $5,000 to the Museum’s
exterior. An Autry attorney argued the R&P Board’s approval of the Project was not a
discretionary decision, because the lease provided “consent shall not be unreasonably
[with]held”; “the grounds for withholding would be very, very narrow, because the work
is on the inside of the building and the building is owned solely by the Autry.” He added
that so long as the Project is “consistent with use, there are no grounds to withhold”
consent.
During the public comment phase of the meeting, a common theme was Autry was
obligated— but was remiss in failing— to restore the Southwest Museum to its previous
fully operational status as an ongoing museum. Daniel E. Wright, President of Mount
Washington Homeowners Alliance, challenged the project as violating the NELA
Community Plan portion of the City’s General Plan. He argued, aside from the CEQA
issues, approval of the Project is a discretionary decision, which must be supported by a
finding of consistency with the General Plan, and the City cannot make such a finding,
“because this particular [P]roject propose[s] to remove the signature exhibits of the
[Collection] [away from] the Southwest Museum [and] out of Mount Washington in
violation of the General Plan’s” directive for “the preservation of the present location of
the Southwest Museum at its current location on Mount Washington.”
At the conclusion of the public comment portion of the hearing, Councilman
Reyes urged that the Committee recommend disapproval of the R&P Board’s action “and
have full council” engage in a “healthy debate” as to the relevancy of the Southwest
11 The City attorney advised “[a] [section 245] motion allows the city council to
assert jurisdiction over an action that [the R&P] Board took.” The Board’s action is final
if the City Council does not act within 25 days or approves the Board’s action. If the
City Council disapproves the Board’s action, the matter would be returned to the Board
for reconsideration in light of such disapproval.
12
Museum issues. Chairman Tom LaBonge disagreed and continued the matter for the
Committee’s “regular meeting” to obtain advice from the City Attorney.
On June 20, 2011, the Committee conducted a public hearing regarding the appeal
filed by Mount Washington Homeowners Alliance challenging the R&P Board’s finding
of CEQA exemption for the Project. At the hearing, the Department announced its
determination that the Project qualified as a “Class 1 Categorical Exclusion, and that
there were no exceptions to the exemption since the [P]roject only included modifications
to two galleries, which did not constitute an expansion of use (no additional square
footage was added to the building.)”12 After providing Mr. Wright and Autry an
opportunity to present their respective cases and allowing extensive public comment, the
Committee, by a vote of 2 to 1, found the evidence supported R&P Board’s finding that
the Project was exempt from CEQA and recommended the City Council sustain the
Board’s approval of the Project.
6. City Council’s Consent to Project and Denial of R&P Board Appeal
At a public meeting held on June 21, 2011, under Council File No. 11-0928, the
City Council adopted the recommendations in the report of the Committee that the City
Council: (1) find the Project was exempt from the provisions of CEQA; (2) adopt the
findings of the R&P Board and the Department as its findings; and (3) resolve to deny the
appeal filed by Daniel Wright on behalf of the Mount Washington Homeowners Alliance
and Charles Fisher, individually, and thereby sustain and find the Project was exempt
from CEQA. The City Council, by a vote of 10 to 3, sustained the R&P Board’s approval
of the Project and denied the appeal.
12 Paul Davis, a Department staff member, explained “a Class 1 categorical
exclusion . . . deals with interior/exterior alterations to an already existing facility with
such things as interior partitions, plumbing, electrical conveyances, and other kinds of
modifications, which essentially result in a rearrangement of the interior of the building.”
He further explained that no issue of exceptions to the exemption existed, because
“carrying out this interior improvement work at the Griffith Park facility will not cause
any physical [change] to the Southwest facility. CEQA is about physical changes. There
will be none to the Southwest by virtue of carrying out the interior improvement work at
the Griffith Park facility.”
13
PROCEDURAL SUMMARY
1. The Pleadings and Parties
a. Pleadings
On July 26, 2011, Petitioners filed a pleading entitled “verified petition for writ of
mandate and complaint for injunctive relief” (Petition), which set forth two causes of
action. In the first cause of action, they alleged the Project was approved in violation of
CEQA and its Guidelines, because the Project is “only a limited portion of” and a
“piecemealed” part of the whole project Autry seeks to accomplish. Petitioners requested
a writ of mandate directing the City to vacate and set aside the NOE issued June 21,
2011, “and all related Project approvals and to prepare an Initial Study” under CEQA.
In the second cause of action, they alleged approval of the Project violated “State
Planning and Zoning Laws,” specifically the NELA Community Plan. Among “specific
provisions protecting the Southwest Museum,” the plan “includes the following
objective: ‘Support the Southwest Museum as a cultural resource, encourage expansion
both on and off site, and preserve its present location in Mt. Washington.’” “City
agencies [thus] are required to only take actions that assure the Southwest Museum’s land
use as a museum will be preserved at Mount Washington.” They further alleged pursuant
to “Section 554 of the City Charter, the General Plan” “committed all City agencies to
maintaining the Southwest Museum’s location as a museum on Mount Washington.” “In
approving the Project, “Respondents did not proceed in the manner required by the State
planning and zoning laws and the City’s Charter,” because neither they nor the
Department considered that “the Project violates the General Plan as it relates to
maintaining the Southwest Museum at its present location,” which conclusion is
compelled, because “the underlying motive of the Autry is to move all collections of the
Southwest Museum site and to dispose of” the Southwest Museum’s designation as a
“historic National Register of Historic Places building.” In view of the above, Petitioners
requested that the trial court “enjoin the Respondent City . . . its officers, employees,
agents, boards, commissions and other subdivisions from issuing permits or other actions
14
to carry out the . . . [P]roject” and “Real Parties from undertaking any activities pursuant
to the null and void Project approvals.”
Respondents and Autry filed separate answers in which they generally denied
Petitioners’ material allegations and set forth affirmative defenses.
b. Parties
“Many of the members of both [Petitioners] are homeowners who pay taxes that
flow into the coffers of the City,” and Petitioners claim “a direct interest in the . . . Project
in Griffith Park[, because] their tax dollars are used to subsidize any Autry actions
purported to be authorized by the City . . . under the terms of the lease agreement”
between the City and Autry.
Petitioner Highland Park Heritage Trust, a California nonprofit corporation, is “a
founding member of the ‘Friends of the Southwest Museum Coalition[,’ which consists]
of almost 70 community-based, historic preservation, cultural, arts, civil rights, and
certified neighborhood councils of the City . . . formed in 2003 when the Southwest
Museum and Autry Museum entered into a merger and there was concern that Autry
might attempt to move the Southwest Museum away from Mount Washington.” “Its
members include many historic preservation activists, environmental justice advocates,
and individual residents from the Northeast areas of the City . . . who support work to
preserve for future generations the significant historic resources contained in the Arroyo
Seco, which includes the location “where Charles Fletcher Lummis, the founder of the
Southwest Museum, built his Arroyo stone home by hand, and a place where he sited his
lifetime achievement—the 1914 Southwest Museum building.”
Petitioner Mount Washington Homeowners Alliance, which “represents the voice
of about 700 member residents living within the boundaries of Mount Washington,” also
is a founding member of that coalition. It is “a California unincorporated association that
engages in free speech advocacy and petitioning of government regarding land use,
environmental, social, historic, and educational interests of households located with[in]
the neighborhood of Mount Washington and its adjoining Arroyo Seco areas of Northeast
Los Angeles.”
15
Respondents are the City, its City Council, and its R&P Board. The City “is a
chartered municipal corporation of the State.” The Autry Museum is on land leased by
the City. Pursuant to this lease, Autry must obtain the consent of the R&P Board to
proceed with its Project. Autry sought and obtained consent to the Project from the R&P
Board which also made the determination of CEQA exemption. The City Council also
granted its consent to Autry proceeding with the Project.
Autry is the real party in interest and came into existence as the “result of a merger
between the Southwest Museum and the prior entity that owned and operated the Autry
Museum.”
2. Statement of Decision and Judgment
In its statement of decision, the superior court addressed and rejected Petitioners’
contentions “(1) the proposed . . . [P]roject for the Griffith Park Museum is an improper
‘piecemealing’ of a larger project for the Griffith Park Museum, (2) the [P]roject is not
exempt from CEQA, and (3) the [P]roject violates the goals and policies of the City’s
General Plan and [NELA] Community Plan because the new galleries in the Griffith Park
Museum will replace the Southwest Museum’s galleries” regarding the artifacts and other
items in the Collection.
After noting CEQA applies only to discretionary decisions, the court found,
contrary to the claim of Autry and Respondents, approval of the Project, which would
involve modifications to the Griffith Park Museum under the lease, would involve a
discretionary, not a ministerial, act on the part of the City and concluded CEQA did apply
under these circumstances. The court reasoned: “The City’s decision to approve the
remodeling under the lease could be ministerial only if its decision-making was based on
fixed, preexisting standards. There were no such standards. There was no statute,
ordinance, or regulation establishing the City’s duty to approve Autry’s [Project]. The
City was bound only by its lease agreement, but the City is no different than any party to
a contract. A public agency is just as free to breach a contract during performance.
Having determined CEQA applied to the Project, the court noted that in Bozung v.
Local Agency Formation Com. (1975) 13 Cal.3d 263, 283-284, our Supreme Court
16
concluded a project was to be defined broadly to avoid “chopping [up of] a large project
into many little ones” or “piecemealing” the project to avoid CEQA review. Mindful of
this guidance, the superior court first found “[t]here is simply not substantial evidence to
support a conclusion of project piecemealing.” The court noted, “[a]ll of Petitioners’
arguments are premised on the same focus: the whole of the project at issue is the 2008
[proposed] project to add 129,000 square feet of space to the Griffith Park Museum, and
the remodeling [P]roject is just the beginning.
In finding this premise unsupportable, the court explained Autry had expressly
stated that it has no future plans to add to or remodel the Griffith Park Museum.”13
Although acknowledging “such flat conclusions are not dispositive, and [the] real
purpose or intent may be gleaned from its press releases or statements by management,”
the court added that examination of Autry’s “statements about an expansive, $75 million
project” in context reveals “Autry withdrew its [earlier, expansive] plans, largely due to
the efforts of Petitioners and others, and its current plan is only a more modest
remodeling project.” The court further found the fact Autry “has consistently reduced its
expansion plans” of 2005 to 2008, supports its “conclusion that no larger project is
reasonably foreseeable” and the Project is in fact “the entire project.” The court thus
concluded “[t]he whole of the project is the . . . [P]roject presented to the City Council.”
The court next found the City properly approved the Project, which approval is
reflected in its 2011 NOE, as categorically exempt from CEQA. The court explained the
Project, which “consists of an 18,000 square foot remodeling of area currently used
primarily for exhibit space, and also including approximately 2,500 square feet of
collections storage and the floor’s restrooms . . . fits squarely within Guidelines section
15301” as “a ‘Class 1’ exemption for the minor alteration of an existing public structure,
involving negligible expansion of use.” The court added the conversion of “2,500 square
13 At the Petition hearing, Autry’s attorney advised the record reflects “the Autry
trustees . . . are not pursuing the rest of the redo of the interior first floor, because they
rely on donations” and “they are not flush with cash.”
17
feet of storage space to public gallery space is a negligible expansion of use,” because
“[t]he museum continues to be used as a museum” and “[t]o the extent it is not, the 2,500
square foot conversion qualifies as an addition to an existing structure within the limits of
Guidelines section 15301(e).” The court also found the Project “fits within City CEQA
Guidelines, art. III, § 1.a(1)’s exempt activity of . . . interior or internal modifications to
established and discrete areas which are fully developed within the larger environment of
a museum, where the development is essentially a rearrangement (rather than an additive
function).
The court was not persuaded by Petitioners’ contention that an exception existed
pursuant to Guidelines section 15300.2. The court pointed out the burden fell to the party
challenging the exemption to show by substantial evidence that an exception existed, e.g.,
the one under Guidelines section 15300.2, subdivision (c) for “unusual circumstances”
which gave rise to a “reasonable possibility” that the activity will have a significant
impact on the environment. Petitioners thus had to make a two-step showing of: (1)
“unusual circumstances” existed; and then (2) a “reasonable possibility” the activity
would have a significant impact on the environment.14 Substantial evidence of such a
“reasonable possibility” was required to take negate the exemption.
Applying these principles, the superior court concluded no exception applied.
“First, there are no unusual circumstances in Autry’s remodeling [P]roject. The
renovations are common in nature.” Also, Petitioners do not “show substantial evidence
supporting a fair argument of significant environmental impact. They provide no
analysis of the issue, stating only that the project will lead to significant cultural resource,
land use, traffic, parking, and safety impacts, and citing to certain pages of the record. . . .
14 The court discussed Berkeley Hillside Preservation v. City of Beverly Hills, which
Petitioners relied on for the proposition substantial evidence of a fair argument of a
significant environmental impact was sufficient to support the exception without needing
separately to analyze whether unusual circumstances existed. We note this decision is of
no force or effect, because review was granted (S201116). (Cal. Rules of Court, rules
8.1105(e), 8.1115(d).)
18
This is insufficient to raise the issue” of significant environmental impacts. Moreover,
“even if the issue were properly raised, Petitioners’ citations do not support the
argument.”
The court pointed out Petitioners’ “real contention” concerned the Project’s
anticipated exhibition of artifacts in the Collection at the Autry Museum. Although
admitting the Project would not affect the Southwest Museum, they contended “‘its
exhibits and contents will be removed rendering the building useless as a historic
location’” and effect “‘the obliteration of a nationally significant museum’” in violation
of “the City’s General Plan and the [NELA] Community Plan.”
In finding this contention to be unsuccessful, the court reasoned, “CEQA does not
directly apply to cultural resources because social impacts are not the subject of CEQA,”
citing section 21080, subdivision (e)(2), and Petitioners failed to show the Project would
have a significant impact on the environment, because it “may cause a substantial adverse
change in the significance of an historical resource,” citing section 21084.1. The court
noted, “the [C]ollection of artifacts held by the Southwest Museum does not [itself[
qualify as an historical resource. Nor does it contribute to the historical significance of
the Southwest Museum.” Accordingly, “the movement of any portion of the [C]ollection
cannot be considered to have a substantial adverse change in the historical significance of
the Southwest Museum.”
The court added, “the number of Southwest Museum artifacts which will be
displayed at the Griffith Park Museum is actually modest. Counsel at hearing clarified
that only one percent of the Southwest Museum’s 250,000 piece [C]ollection (2,500
items) will be transferred for exhibition in the remodeled ‘First Californians’ and
‘Dreamers, Doctors, and Basketweavers’ galleries at the Griffith Park Museum. Thus, it
is simply not true that the remodeling [P]roject will ‘absorb and merge’ the entirety of the
Southwest Museum as was contended about the [proposed] 2008 project.” Additionally,
there would be no significant environmental land use impacts, as contended by
Petitioners, because the Project “simply will not involve the wholesale movement of the
. . . [C]ollection” from the Southwest Museum, “which is currently closed for all but a
19
few events.” Finally, mere inconsistency between a general plan (or specific plan) and a
project, much like a social or economic effect, does not by itself mandate a finding of
significant environmental effect.15
As reflected in the judgment, the superior court found in favor of “the City
[Respondents] and Autry for the reasons stated in the court’s written decision” and
entered judgment in their favor as “to Petitioners’ Verified Petition for Writ of
Mandamus; Complaint for Injunctive Relief.”
DISCUSSION
I. CEQA
“‘The foremost principle under CEQA is that the Legislature intended the act “to
be interpreted in such manner as to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language.” [Citation.]’”
(Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 926.)
Analysis of a proposed project pursuant to CEQA may be divided into a three-tier
inquiry. The initial inquiry is whether CEQA applies to the proposed activity. “CEQA
applies if the activity is a ‘project’ under the statutory definition, unless the project is
exempt. [Citations.] ‘If the agency finds the project is exempt from CEQA under any of
the stated exemptions, no further environmental review is necessary.’ [Citation.] In such
cases, the agency may file a notice of CEQA exemption [i.e., NOE], if it chooses to do
15 At the hearing on the Petition, the superior court asked what did the NELA
Community Plan “have to do with this? It seems to me that the Griffith Park Museum is
not in the northeast community. The [NELA Community Plan] is a zoning plan for that
[northeast] area. I don’t see what its policies have to do with changes to the Griffith Park
Museum.” Petitioners’ counsel agreed with the court’s assessment that their argument
was not “a CEQA issue” but rather “a separate land use issue, that they were violating the
general plan and the community plan.” Autry’s counsel agreed with the court’s comment
that how could someone “violate the community plan when [that person was] not in that
community [but rather] in a different community.
20
so. [Citations.]”16 (San Lorenzo Valley Community Advocates for Responsible
Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356,
1373 (San Lorenzo).)
On the other hand, “[i]f the project is not exempt—either because it does not fall
within an exempt category or because an exception makes the exemption unavailable—
then the agency must proceed to the second tier and conduct an initial study.” (San
Lorenzo, supra, 139 Cal.App.4th at p. 1373.) In so doing, the agency determines whether
to proceed with CEQA review by way of a negative declaration or an environmental
impact report (EIR). “‘CEQA excuses the preparation of an EIR and allows the use of a
negative declaration when an initial study shows that there is no substantial evidence that
the project may have a significant effect on the environment.’ [Citations.] In certain
situations where a straightforward negative declaration is not appropriate, the agency may
permit the use of a mitigated negative declaration. [Citations.]” (Ibid.)
“If the project does not qualify for a negative declaration, ‘the third step in the
process is to prepare a full environmental impact report. . . .’ [Citations.] [¶] The
California Supreme Court has ‘repeatedly recognized that the EIR is the “heart of
CEQA.”’ [Citation.] As the court observed more than three decades ago, ‘since the
preparation of an EIR is the key to environmental protection under CEQA,
accomplishment of the high objectives of that act requires the preparation of an EIR
whenever it can be fairly argued on the basis of substantial evidence that the project may
have significant environmental impact.’ [Citation.] Other cases have since confirmed the
statutory preference for resolving doubts in favor of an EIR. [Citations.]” (San Lorenzo,
supra, 139 Cal.App.4th at p. 1373Id. at pp. 1373-1374.)
16 “Thus, ‘[t]he first step in CEQA analysis, of course, is [a determination] whether
the activity in question amounts to a “project.” [Citation.]’ [Citation.] An activity is not
a ‘project’ if it has absolutely no potential to ‘cause either a direct physical change in the
environment, or a reasonably foreseeable indirect physical change in the environment.’
[Citations.]” (May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1320.)
21
“‘Substantial evidence’ means ‘enough relevant information and reasonable
inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached.’ [Citation.]
Substantial evidence ‘shall include facts, reasonable assumptions predicated upon facts,
and expert opinion supported by facts.’ [Citation.] ‘Argument, speculation,
unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate,
or evidence of social or economic impacts which do not contribute to or are not caused by
physical impacts on the environment does not constitute substantial evidence.’
[Citation.]” (Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th at pp. 927-
928.)
II. Standard of Review
A. Traditional Mandamus
Petitioners essentially claim the City has a mandatory ministerial duty to enforce
the policy of the NELA Community Plan to “[s]upport the Southwest Museum as a
cultural resource . . . and preserve its present location in Mt. Washington” and by
consenting to the Project, which would result in the removal of artifacts in the Southwest
Museum to be exhibited instead at the Autry Museum, the City violated the NELA
Community Plan and thereby acted in a manner contrary to law. This claim is reviewed
under traditional mandamus principles: “A writ of mandate may be issued by any court
. . . to compel the performance of an act which the law specially enjoins, as a duty
resulting from an office, trust, or station.”17 (Code Civ. Proc., § 1085, subd. (a).)
“‘A ministerial act is one that a public functionary “‘“is required to perform in a
prescribed manner in obedience to the mandate of legal authority,”’” without regard to
his or her own judgment or opinion concerning the propriety of such act.’ [Citation.]”
17 We note one court has concluded: “[T]o the extent traditional mandate constitutes
a proper remedy, the remedy of injunctive relief is also proper.” (Venice Town Council,
Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1563, fn. 9.) We conclude the
converse is correct, namely, where traditional mandamus is not a proper remedy, the
concomitant prayer for injunctive relief also is not proper, which is the case here.
22
(Doe v. Albany Unified School Dist. (2010) 190 Cal.App.4th 668, 682.) “‘Discretion . . .
is the power conferred on public functionaries to act officially according to the dictates of
their own judgment.’ [Citations.] Thus, ‘[w]here a statute or ordinance clearly defines
the specific duties or course of conduct that a governing body must take, that course of
conduct becomes mandatory and eliminates any element of discretion.’ [Citation.]”
(Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1267.)
B. Mandamus Under CEQA—Administrative or Traditional
“‘In an action to set aside an agency’s determination under [CEQA], the
appropriate standard of review is determined by the nature of the proceeding below. . . .
[S]ection 21168 “establishes the standard of review in administrative mandamus
proceedings” under Code of Civil Procedure section 1094.5 while section 21168.5
“governs traditional mandamus actions” under Code of Civil Procedure section 1085.
[Citation.] The former section applies to proceedings normally termed “quasi-
adjudicative,” “in which by law a hearing is required to be given, evidence is required to
be taken and discretion in the determination of facts is vested in a public agency . . . .”
[Citations.] The latter section applies to all other actions taken pursuant to CEQA and
generally encompasses “quasi-legislative” decisions made by a public agency.
[Citations.]’ [Citations.]” (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359,
1374-1375.)
“The distinction, however, is rarely significant. In either case, the issue before the
trial court is whether the agency abused its discretion. Abuse of discretion is shown if (1)
the agency has not proceeded in a manner required by law, or (2) the determination is not
supported by substantial evidence. [Citations.]” (Gentry v. City of Murrieta, supra, 36
Cal.App.4th at p. 1375.) “‘Review under administrative mandamus (§ 21168) and review
under traditional mandamus (§ 21168.5) share many of the same characteristics. There is
no practical difference between the standards of review applied under traditional or
administrative mandamus.’ [Citation.]” (California Native Plant Society v. City of Santa
Cruz (2009) 177 Cal.App.4th 957, 984.)
23
“In reviewing an agency’s determination, finding or decision under CEQA, a court
must determine whether the agency prejudicially abused its discretion. [Citation.]
‘Abuse of discretion 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.’
[Citation.]” (Laurel Heights Improvement Assn. v. Regents of University of California
(1993) 6 Cal.4th 1112, 1132-1133, fn. omitted.)
“‘An appellate court’s review of the administrative record for legal error and
substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial
court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in
that sense appellate judicial review under CEQA is de novo.’ [Citation.]” (In re Bay-
Delta etc. (2008) 43 Cal.4th 1143, 1162.) “‘The appellate court reviews the
administrative record independently; the trial court’s conclusions are not binding on it.
[Citations.]’ [Citation.]” (Santa Clarita Organization for Planning the Environment v.
City of Santa Clarita (2011) 197 Cal.App.4th 1042, 1049 (Santa Clarita).)
“We presume the correctness of the agency’s decision.” (Santa Clarita, supra,
197 Cal.App.4th 1042, 1050.) “Questions concerning the proper interpretation or
application of the requirements of CEQA are matters of law. [Citation.]” (Rialto
Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 923.)
“‘The agency is the finder of fact and we must indulge all reasonable inferences
from the evidence that would support the agency’s determinations and resolve all
conflicts in the evidence in favor of the agency’s decision. [Citation.]’ [Citation.]
‘[A]lthough the agency’s factual determinations are subject to deferential review,
questions of interpretation or application of the requirements of CEQA are matters of
law.’ [Citation.]” (Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1277; see
also Citizens for Responsible Equitable Environmental Development v. City of San Diego
(2011) 196 Cal.App.4th 515, 523; Santa Clarita, supra, 197 Cal.App.4th at p. 1050 [draw
all reasonable inferences in support of agency’s determination and resolve all conflicts in
evidence in favor of its decision].) We therefore “accord more deference to agency
decisions on substantive questions, and “‘resolve reasonable doubts in favor of the
24
administrative finding and decision.”’ [Citation.]” (Neighbors of Cavitt Ranch v. County
of Placer (2003) 106 Cal.App.4th 1092, 1101.)
III. Project Not “Piecemealed” from Greater Project
Petitioners contend the Project is an improper subterfuge to circumvent mandatory
CEQA review of a greater project and for this reason approval of the Project must be
overturned. We disagree.
Indeed, “‘[t]he requirements of CEQA cannot be avoided by piecemeal review
which results from “chopping a large project into many little ones—each with a minimal
potential impact on the environment—-which cumulatively may have disastrous
consequences.” [Citations.]’ [Citation.] For example, ‘[w]here an individual project is a
necessary precedent for action on a larger project, or commits the lead agency to a larger
project, with significant environmental effect, an EIR must address itself to the scope of
the larger project.’ [Citation.] The prohibition against piecemeal review is the flip side
of the requirement that the whole of a project be reviewed under CEQA. [Citation.]”18
(Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170,
1208.)
The record, however, does not support Petitioners’ claim the Project is a mere
“piecemealed” component of a greater project lying in the wings. Rather, the evidence in
the record supports a contrary conclusion: Autry has abandoned its 2008 Earlier
18 In other words, “[w]here individual projects are, or a phased project is, to be
undertaken and where the total undertaking comprises a project with significant
environmental effect, the lead agency shall prepare a single program EIR for the ultimate
project as described in Section 15168. Where an individual project is a necessary
precedent for action on a larger project, or commits the lead agency to a larger project,
with significant environmental effect, an EIR must address itself to the scope of the larger
project. Where one project is one of several similar projects of a public agency, but is not
deemed a part of a larger undertaking or a larger project, the agency may prepare one EIR
for all projects, or one for each project, but shall in either case comment upon the
cumulative effect.” (Guidelines, § 15165.)
25
Expansion Project, and there is no evidence in the record that there are pending plans to
resurrect that project in the foreseeable future.
We reject Petitioners’ attendant contention that the Project violates CEQA’s
“piecemealing” prohibition, because the Project is simply a segment of the proposed
2010 “Autry Open” project which would entail remodeling the Autry Museum’s entire
first floor, i.e., 48,230 square feet, not merely the 18,000 square feet in this Project.
The record reveals although the Department staff evaluated Autry’s initially
proposed “Autry Open” plan, Autry did not follow through by seeking the consent of the
R&P Board or City Council to the proposed plan. Autry has proceeded only with this
Project. Petitioners fail to point to any relevant evidence in the record to support their
claim the “Autry Open” plan remains on the back burner and Autry will execute that plan
in the foreseeable future.
In any event, the proscription against “piecemealing” is inapplicable in this
context. An EIR for a proposed project must include analysis of the environmental
effects of future expansion if: “(1) it 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.”
(Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47
Cal.3d 376, 396.) A “‘Project’ means the whole of an action, which has a potential for
resulting in either a direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment . . . .” (Guidelines, § 15378,
italics added.) “CEQA forbids ‘piecemeal’ review of the significant environmental
impacts of a project.” (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs.
(2001) 91 Cal.App.4th 1344, 1358.) Accordingly, “there may be improper piecemealing
when the purpose of the reviewed project is to be the first step toward future
development.” (Banning Ranch Conservancy v. City of Newport Beach (2012) 211
Cal.App.4th 1209, 1223.)
Mindful of the above, we conclude where, as here, the project is exempt from
CEQA, any inquiry and discussion of whether the project is an improper
26
“piecemealed” segment of a greater project is irrelevant and meaningless. As we shall
demonstrate, the Project involves remodeling a portion of the Autry Museum’s first floor,
i.e., 18,000 square feet, without any alteration to or expansion of the building’s exterior.
As such, the Project falls within a categorical exemption to CEQA mandates such as the
preparation of an EIR. Similarly, the “Autry Open” plan, which would have involved
remodeling of the entire first floor, i.e., 48,230 square feet, also would qualify for the
same exemption.
IV. Project Categorically Exempt from CEQA Without Exception
Petitioners contend the Project is not exempt from CEQA, because it falls within
an exception to exemption. We are not persuaded.
A. Burden to Establish Exception to CEQA Exemption
“If the agency determines one of the exemptions applies, the agency may prepare
and file a notice of exemption [i.e., NOE], including a description of the project, a finding
that the project is exempt under the relevant class or classes, and a brief statement of
reasons supporting the finding. [Citation.] ‘Where a project is categorically exempt, it is
not subject to CEQA requirements and “may be implemented without any CEQA
compliance whatsoever.”’ [Citation.]” (Save Our Carmel River v. Monterey Peninsula
Water Management Dist. (2006) 141 Cal.App.4th 677, 688. (Save Our Carmel River) .)
These “categorical exemptions are not absolute. Even if a project falls within the
description of one of the exempt classes, it may nonetheless have a significant effect on
the environment based on factors such as location, cumulative impact, or unusual
circumstances. ‘[W]here there is any reasonable possibility that a project or activity may
have a significant effect on the environment, an exemption would be improper.’
[Citation.]” (Save Our Carmel River, supra, 141 Cal.App.4th at p. 689.)
“A determination by the agency that a project is categorically exempt constitutes
an implied finding that none of the exceptions applies. [Citation.]” (Save Our Carmel
River, supra, 141 Cal.App.4th at p. 689.)
The R&P Board found the Project was categorically exempt under the “Class 1”
exemption, which applies to minor alterations relating to interior partitions, plumbing and
27
electrical conveyances to existing structures which would involve “negligible or no
expansion of an existing use” or an increase of a structure to more than 2,500 feet.
(Guidelines, §§ 15300, 15301, subds. (a) & (e), 15300.4; City CEQA Guidelines, art. III,
§ 1.a(1).)
B. No Showing of “Unusual Circumstances” Creating “Reasonable
Possibility” of Significant Impact on Environment
An activity within an exempt class nonetheless is subject to CEQA review if
“unusual circumstances” exist which would create a “reasonable possibility” that the
activity would have a significant impact on the environment. (Guidelines, § 15300.2,
subd. (c).) The party challenging the exemption finding has the burden to establish such
exception. (Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1259.)
Petitioners have failed to carry their burden to establish, by substantial evidence or a fair
argument,19 such an exception to such exemption exists.
1. No “Unusual Circumstances” Identified or Described
The Project presents no “unusual circumstances,” and Petitioners have not offered
any. The Project primarily involves remodeling a portion of the first floor of the existing
Autry Museum, which would consist of rearranging some of its interior space but no
change to its exterior. Petitioners fail to identify or otherwise describe in what particulars
such a project would involve anything different than any other interior remodel project,
namely, “unusual circumstances.”
2. No “Reasonable Possibility” of Significant Impact on Environment
Even if such “unusual circumstances existed, Petitioners have failed to show a
“reasonable possibility” the Project would give rise to a significant impact on the
environment. Petitioners contend such an impact would result, because removal of the
19 We note that our Supreme Court has not yet resolved the split at the appellate level
as to which of these two standards of review applies to whether an exception to the
CEQA exemption exists. We need not, and therefore do not, decide which of these two
standards of review govern, because Petitioners cannot prevail under either standard.
(See Fairbank v. City of Mill Valley, supra, 75 Cal.App.4th at pp. 1259-1260.)
28
Collection from the Southwest Museum would destroy its function as a museum and,
thus, jeopardize and probably destroy its status as an official historical resource. Their
underlying premise is the Collection must remain at the Southwest Museum, because the
Collection itself is a historical resource and the Collection is integral to the identity or
status of the Southwest Museum. This premise is fatally flawed.
As we shall demonstrate, it is for Autry to determine the placement and exhibition
of the Collection. The Southwest Museum is a building located in the Mount
Washington area, and the artifacts in the Collection are not physically a part of the
building or its environs. The Collection was not a factor in the awarding the Southwest
Museum official status as a historical resource. Removal of artifacts in the Collection
therefore would not affect such status. The Collection itself does not qualify as a
historical resource under CEQA. Removal of artifacts in the Collection cannot give rise
to a significant impact on the environment of the Project, which is the Autry Museum in
Griffith Park.
(a) Placement and Exhibition of Collection for Autry to Decide
Initially, we point out the disposition of the Collection and decisions regarding the
Collection, e.g., the placement or exhibition—whether at the Southwest Museum, the
Autry Museum, or elsewhere—of artifacts in the Collection, are matters solely within the
province and control of Autry, as the owner of the Collection. These matters are outside
the scope and purview of CEQA, regardless of whether they may be subject to
restrictions or limitations pursuant to agreement or other factors.
(b) Removal and Display of Collection Artifacts Not CEQA
Concerns
The removal of artifacts in the Collection away from the Southwest Museum,
where they are stored rather than exhibited, or the exhibition of such artifacts at the Autry
Museum, which activities would be encompassed within the Project, would not have a
significant impact on the environment within the meaning of CEQA.
First, the Collection clearly constitutes a significant resource in a cultural context
and a historical sense. Removal of artifacts in that Collection from the Southwest
29
Museum, however, does not compel an inescapable inference that a significant effect on
the environment thereby will result. Generally speaking, the social significance of an
artifact, which includes its cultural context, is inconsequential under CEQA, because
substantial evidence that a project may have significant effect on the environment
excludes “evidence of social . . . impacts that do not contribute to, or are not caused by,
physical impacts on the environment.” (§ 21080, subd. (e)(2).) The artifacts in the
Collection neither contribute to nor are they caused by any physical impacts on the
Southwest Museum.
Further, such removal would not “cause a substantial adverse change in the
significance of an historical resource” which would equate with “a significant effect on
the environment” under CEQA. (§ 21084.1.)
As a building, the Southwest Museum, through the auspices of Autry, obtained
preservation protection as a “historical resource” (§ 21084.1) by its registration as a
historical resource under the National Historical Register. Similarly, the Southwest
Museum also achieved such status under the California Register of Historical Resources.
That neither the Collection nor any of its artifacts is “registered” with either of
these two historical registers is not determinative. The lead agency has discretion to
determine an “object” is “an historical resource,” because the object is “historically
significant or significant in the . . . social . . . or cultural annals of California,” and its
determination will be upheld if “supported by substantial evidence in light of the whole
record. Generally, a resource shall be considered by the lead agency to be ‘historically
significant’ if the resource meets the criteria for listing on the California Register of
Historical Resources.” (Guidelines, § 15064.5, subds. (a)(3) & (4); see also §§ 5020.1,
subd. (j), 5024.1, subd. (g).)
No determination was made here that the Collection, or any of its artifacts,
qualified as an “object” under the criteria of the California Register of Historical
Resources for “historical resource” protection. Nor would such a determination have
been supported by substantial evidence. “The term ‘object’ is used to describe those
constructions that are primarily artistic in nature or are relatively small in scale and
30
simply constructed, as opposed to a building or a structure. Although it may be moveable
by nature or design, an object is [an item] associated with a specific setting or
environment. Objects should be in a setting appropriate to their significant historic use,
role, or character. Objects that are relocated to a museum are not eligible for listing in
the California Register. Examples of objects include fountains, monuments, maritime
resources, sculptures, and boundary markers.” (Guidelines, § 4852, subd. (a)(4), italics
added.)
In other words, such an “object” necessarily is “site specific.” As described
earlier, the artifacts in the Collection are not “site specific” to the Southwest Museum.
Rather these artifacts are “‘from all parts of North America’” and include such items as
“‘baskets as well as ceramics, kachinas, and textiles.’” The Collection therefore would
not qualify as a “historical resource” which is subject to preservation protection
exclusively within the physical confines of the Southwest Museum.
Moreover, removal of artifacts in the Collection from the Southwest Museum
would not cause “a substantial adverse change in the significance of [the Southwest
Museum as] an historical resource,” which “change” translates into “a significant effect
on the environment” under CEQA. (§ 21084.1.) Neither the location of the Collection at
the Southwest Museum nor removal of artifacts in the Collection from that museum
would affect the status of the Southwest Museum as “an historical resource” under the
National Historical Register or under the California Register of Historical Resources.
Petitioners do not contend otherwise.
Second, removal of Collection artifacts from the physical environment of the
Southwest Museum does not qualify as a significant impact on the environment. “CEQA
defines the relevant geographical environment as the area where physical conditions will
be affected by the proposed project. (§ 21060.5.) Consequently, the project area does
not define the relevant environment for purposes of CEQA when a project’s
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environmental effects will be felt outside the project area.”20 (County Sanitation Dist.
No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544, 1582.)
Assuredly, removal of Collection artifacts from the Southwest Museum will result
in a physical change in the contents of the museum.21 It does not follow such change
translates into a significant impact, adverse or otherwise, on the Collection itself or in the
physical environment of the Southwest Museum, which would not, in any event, be a
physical change in the environment of the Project, namely, the Autry Museum. 22
20 “In determining whether there are significant environmental impacts, the lead
agency must consider direct, and reasonably foreseeable indirect, ‘physical changes in the
environment.’ (CEQA Guidelines, Cal. Code Regs., tit. 14, [div. 6,] ch. 3, § 15064(d).)
A ‘significant effect on the environment’ is one that has both a substantial and adverse
impact on physical conditions within the area affected by the project. (Guidelines,
§ 15382.)” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266, fn.
omitted, italics added.)
21 The record reflects the entire Collection will not be removed from storage in the
Southwest Museum to the Autry Museum. Rather, the Project will affect only less than
1 percent of the Collection.
22 “‘Significant effect on the environment’ means a substantial, or potentially
substantial, adverse change in any of the physical conditions within the area affected by
the project including land, air, water, minerals, flora, fauna, ambient noise, and [in]
objects of historic or aesthetic significance. An economic or social change by itself shall
not be considered a significant effect on the environment. A social or economic change
related to a physical change may be considered in determining whether the physical
change is significant.” (Guidelines, § 15382, italics added.)
“In evaluating the significance of the environmental effect of a project, the lead
agency shall consider direct physical changes in the environment which may be caused
by the project and reasonably foreseeable indirect physical changes in the environment
which may be caused by the project.
“(1) A direct physical change in the environment is a physical change in the
environment which is caused by and immediately related to the project. Examples of
direct physical changes in the environment are the dust, noise, and traffic of heavy
equipment that would result from construction of a sewage treatment plant and possible
odors from operation of the plant.
“(2) An indirect physical change in the environment is a physical change in the
environment which is not immediately related to the project, but which is caused
indirectly by the project. If a direct physical change in the environment in turn causes
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It is uncontroverted that the Southwest Museum is outside the Project. It is
beyond dispute that the Southwest Museum is not located within the physical boundaries
of the Autry Museum or within its neighborhood. It cannot be said that movement of
artifacts in the Collection to the Autry Museum will in any way significantly impact the
geographic environment of that museum or its surrounds. The Project simply affects the
interior physical space of the museum building itself and does not affect its exterior
walls. Similarly, removal of artifacts from the Collection stored at the Southwest
Museum does not affect the physical space of that museum.
In short, removal of artifacts in the Collection from the Southwest Museum to the
Autry Museum for exhibition would not have any significant impact on the environment
within the meaning of CEQA. Accordingly, Petitioners have failed to show an exception
to the CEQA exemption found by the R&P Board exists.
V. Project Not Inconsistent with NELA Community Plan
Petitioners contend the City acted contrary to law in approving the Project,
because the Project is inconsistent with the NELA Community Plan, which is a
component part of the City’s General Plan concerning zoning. Their contention is
unsuccessful.
Initially, we point out consistency or inconsistency with the NELA Community
Plan is irrelevant to whether the Project complies with CEQA, which does not concern a
municipality’s zoning requirements, policies, or goals dehors a Project’s environs.
Moreover, although the NELA Community Plan encompasses the Southwest Museum,
that plan does not include the Griffith Park neighborhood, in which lies the Griffith Park
another change in the environment, then the other change is an indirect physical change
in the environment. For example, the construction of a new sewage treatment plant may
facilitate population growth in the service area due to the increase in sewage treatment
capacity and may lead to an increase in air pollution.
“(3) An indirect physical change is to be considered only if that change is a
reasonably foreseeable impact which may be caused by the project. A change which is
speculative or unlikely to occur is not reasonably foreseeable.” (Guidelines, § 15064,
subd. (d).)
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Museum, i.e., the location of the Project. In addition, the Project does not concern any
future activities of the essentially closed Southwest Museum.23
Cutting to the chase, we address and reject Petitioners’ position that the City’s
approval of the Project would diminish, if not destroy, the Southwest Museum as a
museum in violation of the purpose and goal of the NELA Community Plan, specifically
its Policy 14-3.1, to preserve and enhance the museum function of the Southwest
Museum.
The basic fallacy of this position is reflected in its underlying premise that the
NELA Community Plan, specifically its Policy 14-3.1, forbids, and thereby precludes, the
City from approving the Project, because implementation of the Project would result in
removal of the Collection from that museum to the Autry Museum.
Although a goal of the NELA Community Plan is to preserve and promote the
Southwest Museum, this goal pertains to the building itself, not its contents. This is self-
evident from a review of Policy 14-3.1, which reads: “Support the Southwest Museum as
a cultural resource, encourage expansion both on and off site, and preserve its present
location in Mt. Washington. [¶] Program: The Plan’s policies and programs, regarding
transit stations and transit-oriented districts improve the viability and accessibility of the
museum and reinforce its significance as a focal point of the community.”
CONCLUSION
The Project is exempt from CEQA. In approving the Project, the R&P Board
therefore properly issued the 2011 NOE and thereby consented to Autry proceeding with
the Project without regard to additional CEQA compliance. The City Council thus did
23 In the FEIR for the Earlier Expansive Project, the Department explained the
reference to the NELA Community Plan was made in the context of analysis of the land
use impacts of “Alternative E—Expansion of the Arroyo Campus,” because “the Arroyo
Campus is located within the [NELA] Community Plan area. . . . [T]he Arroyo
Campus[,however,] is not part of [that] project” and “the project would not result in any
environmental impacts within the Arroyo Campus. Thus, policies within the [NELA]
Community Plan are not relevant to the proposed project, which is located within the
Hollywood Community Plan.”
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not abuse its discretion in approving the R&P Board’s decision and findings. Further, the
City Council did not act in a manner contrary to law by consenting to the Project, which
did not violate the NELA Community Plan.
DISPOSITION
The judgment is affirmed. Respondents and Real Party in Interest shall recover
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J.
FERNS, J.*
_______________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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