United Neighborhoods for L.A. v. City of L.A.

Filed 6/28/23; certified for publication 7/25/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

UNITED NEIGHBORHOODS FOR B321050
LOS ANGELES,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 20STCP03844)

v.

CITY OF LOS ANGELES et al.,

Defendants and Appellants;

FARIBORZ MOSHFEGH et al.,

Real Parties in Interest and
Appellants.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Office of the Los Angeles City Attorney, Michael N. Feuer,
Terry P. Kauffmann Macias, and John W. Fox; Remy Moose
Manley, Sabrina V. Teller and Bridget K. McDonald, for
Defendants and Appellants.
 Jeffer Mangles Butler & Mitchell, Matthew D. Hinks and
Daniel F. Freedman, for Real Parties in Interest and Appellants.
Venskus & Associates, Sabrina Venskus and Rachael
Andrews, for Plaintiff and Respondent.
_____________________

The City of Los Angeles (the City) approved a project at
1719-1731 North Whitley Avenue in Hollywood (the Project) that
would replace 40 apartments subject to the City’s rent
stabilization ordinance (RSO) with a hotel. The City determined
the Project was exempt from review under the California
Environmental Quality Act (CEQA) pursuant to CEQA
Guidelines relating to certain development projects.1 The
relevant guideline addresses what is often referred to as the “in-
fill” exemption or the “Class 32” exemption.2 We discuss the

1
CEQA is codified in Public Resources Code section 21000 et
seq. All undesignated statutory references that follow are to that
code.

References to the “Guidelines” that follow are to the CEQA
Guidelines. (Cal. Code Regs., tit. 14, § 15000 et seq.) “In
interpreting CEQA, we accord the Guidelines great weight except
where they are clearly unauthorized or erroneous.” (Vineyard
Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova (2007) 40 Cal.4th 412, 428 fn. 5.)
2
The Guidelines specify “classes” of projects that are
categorically exempt from CEQA review. (Guidelines, § 15332
[“Class 32 consists of projects characterized as in-fill development
meeting the conditions described in this section”]; Pacific
Palisades Residents Assn., Inc. v. City of Los Angeles (2023) 88

2
exemption in detail in the Discussion section of our opinion, but
among other things, the in-fill exemption requires the project to
be consistent with “all applicable general plan policies.”
(Guidelines, § 15332, subd. (a).)
The City’s review of the Project included a hearing before
the Department of City Planning and appeals to the Central Area
Planning Commission and City Council. Each of these bodies
determined the in-fill exemption applied. Respondent United
Neighborhoods for Los Angeles (United Neighborhoods) sought a
writ of mandate in the Los Angeles Superior Court, arguing,
among other things, that the in-fill exemption does not apply
because the Project is not consistent with a General Plan policy
concerning the preservation of affordable housing. The trial court

Cal.App.5th 1338, 1364 [“This CEQA exemption is sometimes
called the in-fill development projects exemption, the Class 32
categorical exemption, or some similar combination of words”].)
“In-fill” refers, both colloquially and for purposes of the
Guidelines, to construction in areas that are already largely
developed. (Guidelines, § 15332, subd. (b) [among other
requirements, projects subject to the in-fill exemption must be
“substantially surrounded by urban uses”]; Governor’s Office of
Planning and Research definition of “Infill Development”
[as of
June 27, 2023] as archived at
[“The term ‘infill development’ refers to building within unused
and underutilized lands within existing development patterns,
typically but not exclusively in urban areas”]; Merriam-Webster
Dict. Online (2023) [as of June 27, 2023] as archived at
[defining “infill” to include “new
buildings constructed in the space available between existing
structures”].)

3
granted the writ, effectively halting the Project until the City
were to find the Project is consistent with that policy or 148-159
undertakes CEQA review. The City and real parties in interest
appeal. We affirm the order granting the petition for writ of
mandate.
BACKGROUND
A. The Project
Real party in interest Whitley Apartments, LLC (Whitley)
owns the parcel located at 1719-1731 North Whitley Avenue in
the Hollywood Community Plan Area of the City.3 Neighboring
properties include multi-family residential buildings, a parking
structure, and hotel, office, and retail uses. There are currently
six buildings on the approximately one half-acre site, which
include 40 apartment units subject to the City’s RSO.
Among other things, the RSO limits annual rent increases
for an existing tenant to a percentage of the prior year’s rent
calculated based on the Consumer Price Index. (L.A. Mun. Code,
§ 151.06(D).) It also limits evictions to 14 enumerated grounds.
(L.A. Mun. Code, § 151.09(A).) These include demolition of the
rental unit (L.A. Mun. Code, § 151.09(A)(10)(a)), but the landlord
must provide notice and compensation consistent with the Ellis
Act, governing demolition or other removal of rental units from
the housing market. (Gov. Code, § 7060 et seq.; L.A. Mun. Code,
§§ 151.22–151.28.)
In 2016, Whitley applied for a site plan review to demolish
the existing apartment buildings and construct a 156-room hotel
in their place. The hotel would stand 10 stories and include three

3
The other real party in interest, Fariborz Moshfegh, is the
Project applicant.

4
levels of subterranean parking. In addition to guest rooms, the
hotel would include various amenities available only to guests,
such as a coffee shop and rooftop pool.
B. CEQA Exemption and Administrative Appeals
The City approved the site plan review and determined the
Project qualifies for CEQA’s in-fill exemption, such that formal
CEQA review did not need to be undertaken. This appeal
concerns only the latter determination. Our summary of the
relevant background begins with an overview of the City’s
General Plan because, as we shall discuss in more detail, one of
the requirements of the in-fill exemption is “consisten[cy] with
the applicable general plan designation and all applicable general
plan policies as well as with applicable zoning designation and
regulations.” (Guidelines, § 15332, subd. (a).)
1. Overview of relevant provisions of the General
Plan
This appeal principally involves the Framework Element
and the Housing Element of the City’s General Plan.4 The

4
The trial court took judicial notice of the Framework
Element, the 2013-2021 Housing Element, and portions of the
Association of Environmental Professionals’ 2019 California
Environmental Quality Act Statute and Guidelines Handbook,
and so do we. (Evid. Code, §§ 452, subd. (b), 459, subd. (a).) We
also grant plaintiff United Neighborhoods for Los Angeles’s
(United Neighborhoods’) request for judicial notice of various
sections of the Los Angeles Municipal Code and the Governor’s
Office of Planning and Research definition of “Infill
Development.” (Evid. Code, §§ 452, subd. (b), 459, subd. (a).) We
decline United Neighborhoods’ request for judicial notice of
documents addressing unrelated projects, unrelated state

5
Framework Element explains that it “is the ‘umbrella document’
that provides the direction and vision necessary to bring cohesion
to the City’s overall general plan.” “It provides a citywide context
and a comprehensive long-range strategy to guide the
5
comprehensive update of the general plan’s other elements . . . .”
The Housing Element is statutorily required to set forth
certain assessments, goals, objectives, policies, and plans for
implementation. (Gov. Code, §§ 65302, subd. (c), 65583.) The
first goal identified in the City’s 2013-2021 Housing Element (in
effect when the Project was approved) is “[a] City where housing
production and preservation result in an adequate supply of
ownership and rental housing that is safe, healthy and affordable
to people of all income levels, races, [and] ages, and suitable for
their various needs.” One of the objectives relevant to this goal is
to “[p]reserve quality rental and ownership housing for
households of all income levels and special needs.” Policies
relevant to this objective include policy 1.2.2 (“Encourage and
incentivize the preservation of affordable housing, including non-
subsidized affordable units, to ensure that demolitions and
conversions do not result in the net loss of the City’s stock of
decent, safe, healthy or affordable housing”) and 1.2.8 (“Preserve
the existing stock of affordable housing near transit stations and

legislation, and the 2021-2029 Housing Element (which did not
govern the challenged actions).
5
The Framework Element includes a “Housing” chapter, not
to be confused with the General Plan’s Housing Element. The
Framework Element’s chapter on housing “provides guidance for
the comprehensive update of the Housing Element and related
implementation measures.”

6
transit corridors. Encourage one-to-one replacement of
demolished units”).
In addition to the Housing Element’s goals, objectives, and
policies, the Housing Element also lists housing “programs”—
many of which are framed at a level of generality similar to
6
policies. One such program, expressly linked to policies 1.2.2
and 1.2.8, relates to the “[p]reservation of [r]ent-[s]tabilized
[h]ousing [u]nits” and has the objective of “[p]reserv[ing] more
than 638,000 RSO units . . . .”
2. Approval by Department of City Planning
In March 2019, the Department of City Planning noticed a
public hearing regarding the site plan review and CEQA
exemption and issued findings supporting a determination that
the Project qualifies for the in-fill exemption. The findings
discussed the General Plan’s Framework Element, the
Hollywood Community plan, the Hollywood Redevelopment
Plan, and the Planning and Zoning Code. The findings did not
expressly address the General Plan’s Housing Element.
In August 2019, the Planning Director determined the in-
fill exemption applies. Relevant findings addressed the Project’s

6
The Housing Element explains that, “In a departure from
the previous Housing Element, programs are now being
separated out from specific policies . . . . This is in line with the
City’s new General Plan format, as the City found that having
programs listed as achieving only one policy objective is too
restraining when many of the City’s housing programs meet the
objectives of multiple policies. However, to provide some level of
organization to the program list . . . , programs are listed below
their most relevant objective. Specific policies that relate to the
programs are listed below their program description . . . .”

7
consistency with the Hollywood Community Plan as well as the
General Plan’s Framework Element, Land Use Element, Mobility
Element, Air Quality Element, and Sewage Facilities Element.
Again, there was no express discussion of the general plan’s
Housing Element.
3. Appeal to the Central Area Planning
Commission
United Neighborhoods appealed the Planning Director’s
determination to the Central Los Angeles Area Planning
Commission (the Planning Commission). The document
describing the basis for the appeal began with the comment that
“[t]he findings contained in the determination letter are based on
an incomplete and inaccurate reading of the Framework Element
and the Hollywood Community Plan. The author also ignores the
first goal of the City’s 2013 Housing Element: [¶] Goal 1: A City
where housing production and preservation result in an adequate
supply of ownership and rental housing that is safe, healthy and
affordable to people of all income levels, races, ages, and suitable
for their various needs.” In a subsequent section of the document,
United Neighborhoods stated that, “[w]hile it’s unclear how many
displaced tenants end up living on the street, we have seen the
homeless population in Hollywood grow substantially larger as
the [Department of City Planning] continues to approve projects
which result in the removal of RSO housing. City Hall and the
[Department of City Planning] have utterly failed to provide a
mix of housing options for all income levels as required by the
City’s General Plan and State law.” The appeal proceeded to
discuss these issues in relation to the General Plan’s Framework

8
Element, the Hollywood Community Plan, and the Hollywood
7
Redevelopment Plan.
In a supplemental letter, United Neighborhoods “clarif[ied]
for the record that [it was] appealing both the approval of the site
plan review and the approval of the CEQA exemption . . . .” The
letter further emphasized that, “[b]y exempting the Project from
CEQA, the City has completely failed to disclose, analyze, and
mitigate the Project’s significant direct and cumulative effects on
the environment caused by permanently eliminating 40 rent-
stabilized housing units, as well as the substantial direct and
cumulative adverse effects on the human beings who will be
displaced from their homes.”
The Los Angeles Tenants Union (LATU) also filed an
appeal with the Planning Commission raising issues similar to
those raised by United Neighborhoods, including the preservation
of RSO units. LATU’s appeal focused on the Project’s consistency
with the Hollywood Community Plan, the Residential Hotel
Ordinance, and various proposed planning documents and
ordinances.
The Department of City Planning prepared a report for the
Planning Commission’s consideration of United Neighborhoods
and LATU’s appeals. The report paraphrased United
Neighborhoods’ appeal as contending, in part, that “[t]he removal
of 40 units which are subject to the Rent Stabilization Ordinance
conflicts with the Framework and Housing Elements and the

7
United Neighborhoods also discussed the Project’s potential
impacts on air quality, cultural resources, noise, public services,
traffic, and utilities. These issues are not pertinent to this
appeal.

9
Hollywood Community Plan . . . .” The report analyzed this
argument only in the context of the site plan review—as opposed
to the in-fill exemption to CEQA—and emphasized the Project
need not “be in conformance with all purposes, intent and
provisions of the General Plan,” but “more generally ‘in
substantial conformance’ with the General Plan . . . .”
Emphasizing the Project’s location within a “[r]egional [c]enter”
8
pursuant to the Hollywood Community Plan, the report
suggested “that while the proposed project may not be in
conformance with all purposes, intent and provisions of
the . . . General Plan and Hollywood Community Plan, the project
[is] in substantial conformance with the General Plan and
Hollywood Community Plan.”
Beneath a separate heading addressing the in-fill
exemption to CEQA, the report noted United Neighborhoods’
position that “[t]he [P]roject would . . . result in a significant
impact on . . . population and housing.” The report stated that,
“[a]s the proposed project qualifies for the [in-fill exemption] it is
exempt from CEQA. As it relates to population and housing,

8
The Framework Element explains that regional centers
“serve as the focal points of regional commerce, identity, and
activity for a population of 250,000 to 500,000 persons.
Generally, they include corporate professional offices,
concentrations of entertainment and cultural facilities, and
mixed-use developments. Some contain region-serving retail
facilities. Typically, [r]egional [c]enters are higher-density places
whose physical form is substantially differentiated from the
lower-density neighborhoods of the City. . . . This category is
generally characterized by six- to twenty-story buildings or
higher. . . .”

10
were the project not to be exempt from CEQA, analysis of the
project’s impact to population and housing would be proper. The
City’s determination that the project qualifies for the [in-fill
exemption] is based on [specified sections] of the CEQA
Guidelines, and [is] not . . . an effort to avoid any particular area
of impact analysis.”
In its discussion of LATU’s contention that the in-fill
exemption does not apply because the Project conflicts with the
Hollywood Community Plan’s objective to provide housing for all
economic segments, the report explained that “[t]he project is not
a housing project, and therefore is not expected to provide
housing to satisfy the needs and desires of all economic segments
of the Community. In addition, while the project would result in
the removal of 40 units, the removal of such units does not
conflict with the City’s ability to provide housing to all economic
segments of the Community.”
Prior to the Planning Commission’s hearing on the appeals,
several members of the public submitted comments objecting to
the proposed replacement of RSO housing with a hotel.9

9
For example, one commenter argued “[t]he Project’s
removal of vital rent-controlled dwelling units is inconsistent
with applicable land use goals/policies.” Another opined that the
“proposed 10-story luxury party hotel . . . , which would demolish
forty units of rent-controlled housing,” would cause more
homelessness. Another argued that “[t]he loss of affordable
housing and the strain on our community members who live in
the apartments is not worth it” and urged the Commission, “[a]t
the very least,” to “require the developers to conduct a full EIR
and assess the impact the proposed hotel would have on the
residents . . . .”

11
Although one of the planning commissioners lamented that
approving such projects “almost incentiviz[es] removing housing
for hotel uses” and “we couldn’t even rebuild this type of
apartment building elsewhere” due to parking requirements, all
three members of the Planning Commission present at the
hearing voted to deny the appeals and adopt the Planning
Director’s findings.
4. Appeal to the City Council
Both United Neighborhoods and LATU appealed the
Planning Commission’s denial of their appeals to the City
Council. In addition to discussing the Project’s possible
environmental impacts, United Neighborhoods’ appeal
emphasized that “City Hall and the [Department of City
Planning] have utterly failed to provide a mix of housing options
for all income levels as required by the City’s General Plan and
State law.”
The City Council referred the appeals to its Planning and
Land Use Management Committee to conduct a hearing.
Members of the public again commented on the loss of affordable
housing. A representative of United Neighborhoods submitted a
comment contending “the City’s approval of the site plan review
ignored the fact that the Project does not comply with either the
Housing Element of the General Plan or the Hollywood
Community Plan. By removing 40 rent-stabilized units at a time
when the Mayor and the City Council have repeatedly stated that
the City is experiencing a housing crisis, it should be crystal clear
that the Project frustrates the goal of providing housing for
Angelenos at all income levels, which is stated in both the
Housing Element and the Hollywood Community Plan.”

12
 Following a public hearing, the Planning and Land Use
Management Committee recommended the City Council deny the
appeals. The City Council adopted the committee’s
recommendation, denying the appeals, determining the in-fill
exemption applies, and adopting the Planning Commission’s
findings (i.e., the Planning Director’s findings adopted by the
Planning Commission) as its own. The City subsequently filed a
notice of exemption for the Project stating the in-fill exemption
applies because, among other things, “[t]he project is consistent
with the applicable general plan designation and all applicable
general plan policies as well as with the applicable zoning
designation and regulations.”
C. Petition for Writ of Mandate
United Neighborhoods filed a petition for writ of mandate
arguing, among other things, that the City abused its discretion
in approving the Project under the in-fill exemption.10 In its
opening brief, United Neighborhoods contended the City
“blatantly and impermissibly ignore[d]” applicable Housing
Element policies, the City did not fully consider applicable
Framework Element policies, and unusual circumstances gave
rise to an exception to the in-fill exemption. With respect to the
first issue, United Neighborhoods cited the Housing Element’s
first goal relating to production and preservation of affordable
housing and specific policies in furtherance of that goal. The City
responded that Housing Element policies concerning affordable
housing do not apply because the Project is not a housing project

10
LATU did not file a mandate petition with the trial court
and is not a party to this appeal.

13
 11
and because RSO housing is not necessarily affordable housing.
During the hearing on the petition, the City further argued that
United Neighborhoods had failed to raise consistency with the
Housing Element in the administrative proceedings.
The trial court granted the petition for a writ of mandate
based on the City’s failure to consider the Project’s consistency
with applicable Housing Element policies.12 As to the City’s
argument that United Neighborhoods did not exhaust its
administrative remedies, the trial court found United
Neighborhoods “sufficiently raised the issue” by “advis[ing] the
City the findings in the [Planning Director’s] letter of
determination were ‘incomplete’ and ‘ignore[d] the first goal of
the City’s 2013 Housing Element.’ ” The trial court emphasized
that the City “[did] not in any manner address the . . . Housing
Element or explain its inapplicability beyond the Project’s label—
a hotel.” Accordingly, the issue was not “how the City exercised
its discretion and balanced competing policies and concerns,” but
“whether the City even considered the . . . Housing Element and
how those policies might be balanced against other General Plan
policies.” Because “the City did not consider its Housing

11
The City and Whitley filed a joint opposition brief, just as
they have filed joint briefs on appeal. We refer to the City and
Whitley collectively as the City.
12
As to United Neighborhoods’ other arguments, the trial
court determined substantial evidence supported the City’s
determination that the Project is consistent with Framework
Element policies and United Neighborhoods did not meet its
burden of demonstrating that unusual circumstances warranted
an exception to the in-fill exemption.

14
Element, the City could not have decided other competing
General Plan policies took priority over those (not considered)
Housing Element policies.”
After issuing the order granting United Neighborhoods’
petition, the trial court entered judgment and issued a
peremptory writ of mandate directing the City to set aside its
exemption determination and Project approval.
The City appealed both the order granting the petition and
the judgment. We consolidated the two appeals and now resolve
them in this opinion.
DISCUSSION
A. Summary
At the heart of this appeal is whether the City was required
to have considered certain parts of the Housing Element of the
General Plan. The Housing Element contains policies calling for
the preservation of affordable housing, including “to ensure that
demolitions and conversions do not result in the net loss of the
City’s stock of decent, safe, healthy or affordable housing.”
Because CEQA’s in-fill exemption requires consistency with “all
applicable general plan policies” (Guidelines, § 15332, subd. (a)),
the City’s approval must be based on a determination that the
Project is consistent with such policies or the policies do not
apply.
At the outset, the City argues that United Neighborhoods
did not adequately argue in the administrative proceedings that
the Project was inconsistent with Housing Element policies
relating to the preservation of affordable housing. Although
United Neighborhoods did not identify the policies by number,
the City expressly acknowledged its objection that demolishing
RSO housing units would conflict with the Housing Element.

15
Under these circumstances, the City was fairly apprised of the
relevant issues to satisfy the exhaustion requirement.
As to the merits, the City contends the City Council made
an implied finding that Housing Element policies do not apply to
the Project. This finding is not supported by substantial
evidence. The City’s suggestion that “affordable housing” does
not include RSO housing for purposes of the Housing Element
conflicts with the ordinary meaning of that phrase, and the City’s
position that the Housing Element is focused solely on the
production of new housing cannot be reconciled with express
references to the preservation of affordable housing. The City’s
alternative contention that the trial court was insufficiently
deferential to its determination that the Project is consistent with
Housing Element policies fails because there is no indication the
City actually considered these policies.
B. Legal Framework
“ ‘The basic purposes of CEQA are to: [¶] (1) Inform
governmental decision makers and the public about the potential,
significant environmental effects of proposed activities. [¶]
(2) Identify ways that environmental damage can be avoided or
significantly reduced. [¶] (3) Prevent significant, avoidable
damage to the environment by requiring changes in projects
through the use of alternatives or mitigation measures when the
governmental agency finds the changes to be feasible. [¶]
(4) Disclose to the public the reasons why a governmental agency
approved the project in the manner the agency chose if significant
environmental effects are involved.’ ([Guidelines], § 15002.)”
(Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 285–286
(Tomlinson).)

16
 If a proposed activity qualifies as a “project” for purposes of
13
CEQA, “[t]he public agency must . . . decide whether it is
exempt from compliance with CEQA under either a statutory
exemption [citation] or a categorical exemption set forth in the
regulations [citations].” (Tomlinson, supra, 54 Cal.4th at p. 286.)
Section 21084 mandates that the Guidelines “shall include a list
of classes of projects that have been determined not to have a
significant effect on the environment . . . .” (§ 21084, subd. (a).)
The Guidelines include 33 such categorical exemptions.14
(Guidelines, §§ 15301-15033.) “A categorically exempt project is
not subject to CEQA, and no further environmental review is
required. [Citations.]” (Tomlinson, supra, at p. 286.)
The in-fill exemption is set forth in Guidelines section
15332. It exempts “projects characterized as in-fill development
meeting the conditions described in this section. [¶] (a) The
project is consistent with the applicable general plan designation
and all applicable general plan policies as well as with applicable
zoning designation and regulations. [¶] (b) The proposed
development occurs within city limits on a project site of no more
than five acres substantially surrounded by urban uses. [¶]

13
A project is “an activity which may cause either a direct
physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment” undertaken,
supported, or approved by a public agency. (§ 21065.) The City
does not contest that the hotel construction is a project under the
statute.
14
The Guidelines also set forth various exceptions to the
exemptions, none of which are pertinent to this appeal.
(Guidelines, § 15300.2.)

17
(c) The project site has no value, as habitat for endangered, rare
or threatened species. [¶] (d) Approval of the project would not
result in any significant effects relating to traffic, noise, air
quality, or water quality. [¶] (e) The site can be adequately
served by all required utilities and public services.” (Guidelines,
§ 15332.)
“A public agency’s ‘determination that [a particular] project
[is] exempt from compliance with CEQA requirements . . . is
subject to judicial review under the abuse of discretion standard
in . . . section 21168.5. [Citations.] . . . 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. . . .’ ” (Holden v. City of San Diego (2019)
43 Cal.App.5th 404, 410 (Holden).) Where, as here, the challenge
concerns “a factual determination that a project falls within a
statutory or categorical exemption,” we review the administrative
record for substantial evidence to support that decision. (Ibid.)
In the context of the first element of the in-fill exemption, we
consider “ ‘ “whether the city officials considered the applicable
policies and the extent to which the proposed project conforms
with those policies.” ’ [Citation.]” (Id. at p. 412.) As a general
matter, the public agency bears the burden to demonstrate its
exemption determination is supported by substantial evidence.
(Citizens for Environmental Responsibility v. State ex rel. 14th
Dist. Ag. Assn. (2015) 242 Cal.App.4th 555, 568.) However, “the
party challenging a public agency’s determination of general plan
consistency has the burden to show why that determination is
unreasonable.” (Holden, supra, at p. 413.)
“In considering a petition for a writ of mandate in a CEQA
case, ‘[o]ur task on appeal is “the same as the trial court’s.”

18
[Citation.] Thus, we conduct our review independent of the trial
court’s findings.’ [Citation.] Accordingly, we examine the City’s
decision, not the trial court’s.” (Banker’s Hill, Hillcrest, Park
West Community Preservation Group v. City of San Diego (2006)
139 Cal.App.4th 249, 257.)
C. United Neighborhoods Exhausted Its
Administrative Remedies
Before turning to the merits of whether the project is
entitled to in-fill status, we discuss what we might call dueling
failure-to-exhaust arguments in proceedings leading up to this
appeal. First, the City contends that United Neighborhoods may
not challenge any failure by the City to consider the Housing
Element because United Neighborhoods did not raise that issue
in the administrative proceedings. United Neighborhood rejoins
that the City cannot raise the failure to exhaust administrative
remedies because the City did not make that argument in the
trial court. We will assume for purposes of discussion that the
issue was properly before the trial court, and we address, instead,
whether United Neighborhoods raised its Housing Element point
in the administrative proceedings.15

15
The City’s contention that a public agency cannot waive the
issue of exhaustion because it is “jurisdictional” is incorrect.
(Azusa Land Reclamation Co. v. Main San Gabriel Basin
Wastewater (1997) 52 Cal.App.4th 1165, 1216 [explaining that
“the failure to exhaust does not deprive a court of subject matter
jurisdiction,” cases describing “the [exhaustion] requirement as
‘jurisdictional’ simply stand for the unremarkable proposition
that the court does not have the discretion to refuse to apply the
doctrine in cases where it applies,” and “[a]n agency therefore
may waive the defense”].)

19
 Section 21177 provides that, in order to contest a decision
that is subject to CEQA, “the alleged grounds for
noncompliance . . . [must have been] presented to the public
agency orally or in writing by any person,” and the person or
entity attacking the decision must have raised some objection
during the administrative proceedings. (§ 21177, subds. (a)-(b).)
The exhaustion requirement set forth in section 21177 “applies to
a public agency’s decision that a proposed project is categorically
exempt from CEQA compliance” where, as here, “the public
agency [gave] notice of the ground for its exemption
determination, and that determination [was] preceded by public
hearings at which members of the public had the opportunity to
raise any concerns or objections to the proposed project.”
(Tomlinson, supra, 54 Cal.4th at p. 291.)
Although “[t]he ‘exact issue’ must have been presented to
the administrative agency to satisfy the exhaustion
requirement[,] . . . ‘less specificity is required to preserve an issue
for appeal in an administrative proceeding than in a judicial
proceeding’ because . . . parties in such proceedings generally are
not represented by counsel.”16 (Mani Brothers Real Estate Group

16
It has been suggested that the presence or absence of
counsel does not alone determine the degree of specificity
required to preserve an issue in administrative proceedings. For
instance, in Santa Clarita Organization for Planning the
Environment v. City of Santa Clarita (2011) 197 Cal.App.4th
1042, the Court of Appeal “question[ed] whether a rule protecting
individuals who are not well versed in the technicalities of
administrative proceedings [was] properly applicable to” an
organization that touted its previous successful challenges to the
defendant city’s land use decisions. (Id. at p. 1051; but see id. at
p. 1052 [“declin[ing] to depart from precedent” “[d]espite these

20
v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1394–1395.)
That said, “ ‘ “ ‘ “bland and general references to environmental
matters” ’ ” ’ or ‘ “ ‘ “isolated and unelaborated” ’ ” ’ comments do
not satisfy the exhaustion requirement . . . . [Citations.]” (Save
the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092,
1105 (Save the Hill).) Because the purpose of the exhaustion
requirement “ ‘is that the public agency should have the
opportunity to receive and respond to articulated factual issues
and legal theories before its actions are subjected to judicial
review,’ ” objections must “ ‘ “fairly appris[e]” ’ ” the public agency
of relevant issues to satisfy the exhaustion requirement. (Ibid.;
accord North Coast Rivers Alliance v. Marin Municipal Water
Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623; Sierra
Club v. City of Orange (2008) 163 Cal.App.4th 523, 536 [“ ‘ “[T]he
objections must be sufficiently specific so that the agency has the
opportunity to evaluate and respond to them” ’ ”].)
Here, in addition to the numerous comments generally
opposing the demolition of RSO housing units, United
Neighborhoods expressly tied this issue to the Housing Element
at least twice in the administrative proceedings. First, in its
appeal to the Planning Commission, United Neighborhoods
argued the Planning Director’s findings “ignore[d] the first goal of
the City’s 2013 Housing Element.” Later, in a comment
submitted to the City Council’s Planning and Land Use
Committee, a representative of United Neighborhoods argued “it

reservations”].) The City’s emphasis of United Neighborhoods’
participation in this case and allegations in the petition
concerning United Neighborhoods’ far-reaching ambitions does
not establish a track record warranting such reservations.

21
should be crystal clear that the Project frustrates the goal of
providing housing for Angelenos at all income levels, which is
stated in both the Housing Element and the Hollywood
Community Plan.”
United Neighborhoods’ invocation of the first goal of the
Housing Element while objecting to the demolition of RSO
housing was sufficient to apprise the City of the issues raised in
this litigation. (Save the Hill, supra, 76 Cal.App.5th at pp. 1106–
1107 [holding that, although the petitioner challenging adequacy
of a city’s no-project alternative analysis for housing development
did not specifically refer to the analysis in administrative
proceedings, comments proposing reasons and means to preserve
the relevant site as open space “sufficed to fairly apprise the [c]ity
of [the petitioner’s] position”].)
The City contends United Neighborhoods’ references to
Housing Element goals were not sufficient to apprise it of United
Neighborhoods’ objection that the Project is inconsistent with
Housing Element policies. But this argument disingenuously
ignores the relationship between the Housing Element’s goals
and its policies. As explained in the Framework Element, “[f]or
the purpose of the Los Angeles City General Plan, a goal is a
direction setter . . . . An objective is a specific end that is an
achievable intermediate step toward achieving a goal. A policy is
a statement that guides decision making, based on the plan’s
goals and objectives.”17 In other words, the General Plan is

17
The Housing Element offers a similar explanation framed
in terms of its goals, objectives, and policies: “The objectives
under each goal further speak to the nuances of housing needs
across a city as diverse in population and housing needs as Los
Angeles. The corresponding policies formulate the City’s housing

22
structured such that a project that is inconsistent with Housing
Element goals will necessarily conflict with more concrete
Housing Element policies.
The City next argues the “breadth” of the Housing
Element’s first goal (“[four] objectives and 22 policies”) made it
impossible to determine which policies United Neighborhoods’
objection implicated. But this framing obscures the fact that the
first goal’s objectives and policies span a grand total of two and a
half pages. And United Neighborhoods’ objection made clear—if
it was not already clear from the nature of the Project—that it
was concerned with the handful of Housing Element policies
relating to the preservation (as opposed to the production) of
affordable housing. Indeed, in its report addressing United
Neighborhoods’ appeal to the Planning Commission, the
Department of City Planning correctly noted United
Neighborhoods’ position that “[t]he removal of 40 units which are
subject to the Rent Stabilization Ordinance conflicts with the
Framework and Housing Elements and [the] Hollywood
Community Plan . . . .” The City’s discussion of United
Neighborhoods’ contentions in the administrative proceedings
demonstrates that references to the Housing Element went well
beyond “generalized environmental comments.” (Coalition for
Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194,
1197.)

approach of creating sustainable mixed-use, mixed-income
neighborhoods strategically located across the City that provide
opportunities for housing, jobs, transit and basic amenities for all
segments of the population.”

23
 D. The City Failed to Consider Applicable Housing
Element Policies
1. Substantial evidence does not support the City’s
determination that Housing Element policies
are inapplicable
The City contends it impliedly determined Housing
Element policies are not applicable to the Project. The City
correctly points out that no formal, written findings were
required to document this determination. (World Business
Academy v. State Lands Com. (2018) 24 Cal.App.5th 476, 496
(World Business Academy) [findings “ ‘can be informal so long as
they serve the purposes of enabling the parties to determine
whether and on what basis to appeal and enabling a reviewing
court to determine the basis for the decision’ ”]; San Lorenzo
Valley Community Advocates for Responsible Education v. San
Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356,
1385 [“there is no requirement that the agency put its exemption
decision in writing”]; see also Muzzy Ranch Co. v. Solano County
Airport Land Use Com. (2007) 41 Cal.4th 372, 388 [“Evidence
appropriate to the CEQA stage in issue is all that is required” to
support determination that Guidelines section 15061, subdivision
(b)(3) “commonsense” exemption applies].)
Presence of documentation aside, the City’s applicability
finding must be supported by substantial evidence. The City
does not argue to the contrary. On appeal, the City contends
Housing Element policies relating to the preservation of
affordable housing do not apply to the Project for two primary
reasons: (1) the construction of a hotel does not bear on housing
production and (2) RSO housing is not “affordable” housing

24
within the meaning of pertinent Housing Element policies.
Neither argument has merit.
The only conceivable rationale found in the administrative
record that would support a conclusion that Housing Element
policies are inapplicable to the Project is that the Project is “not a
housing project, and therefore is not expected to satisfy the needs
and desires of all economic segments of the Community.” We
first observe that the City is referring to the Hollywood
Community Plan, not the Housing Element.) More
fundamentally the statement mischaracterizes both the Project
and applicable Housing Element policies. To say that the Project,
which requires the demolition of 40 RSO housing units, is not a
housing “project” says nothing about its impact on housing. And
the suggestion that the Housing Element is only concerned with
the production of new housing is contrary to the Housing
Element’s first goal (“production and preservation,” emphasis
added), objective 1.2 (“[p]reserve quality rental and ownership
housing”), and policy 1.2.2 (“[e]ncourage and incentivize the
preservation of affordable housing”). Housing Element programs
also underscore the emphasis on preservation.
The City makes no attempt to address these parts of the
Housing Element in arguing that it “focuses only” on the
production of new housing, relying instead on a line from the
Framework Element discussing a previous version of the Housing
Element.18 Although the City also cites portions of the 2013-2021

18
The page of the Framework Element the City cites explains
that “[t]he Framework Element provides policy to further goals
stated in the recently adopted Housing Element (November 1993)

25
Housing Element’s “Housing Needs Assessment” chapter to
support its argument, nothing in these pages suggests housing
production is the sole focus of the Housing Element or that goals,
objectives, and policies relating to preservation are to be ignored.
The City’s citations to case law on this issue are uniformly
unhelpful. Contrary to the City’s truncated quotation from
California Building Industry Assn. v. City of San Jose (2015)
61 Cal.4th 435, it is not true that the “statewide Housing
Element Law places responsibility upon a city to use its powers to
facilitate the development of housing” to the exclusion of other
goals—rather, the City must “use its powers to facilitate the
development of housing that makes adequate provision for all
economic segments of the community . . . .” (Id. at p. 446.) The
City’s citation of Association for Protection etc. Values v. City of
Ukiah (1991) 2 Cal.App.4th 720 for the proposition that our
review must “focus upon the ‘activity which is being approved’
and not each separate governmental approval[]” (id. at p. 731)
does not, as the City suggests, mean our review only encompasses
construction activity. In context, the quoted language stands
only for the unremarkable principle that a city’s “cho[ice] to
combine approval processes for the site development permit and
the categorical exemption in a public hearing” does not alter the
standard of review as to the latter decision. (Id. at p. 731.)
The City’s alternative contention that “affordable housing”
is a term of art that excludes RSO housing fails because nothing
in the Housing Element suggests its use of the phrase diverges

incorporated herein by reference.” The 2013-2021 Housing
Element controls in this case.

26
 19
from the ordinary meaning. The first goal, for instance,
discusses the production and preservation of affordable housing
in the same breath as other generic adjectives, including “safe”
and “healthy.” It is a fundamental canon of statutory
construction that words are to be given their ordinary meaning
unless otherwise indicated. (Welch v. Welch (2022)
79 Cal.App.5th 283, 296 [“ ‘ “ ‘To ascertain [legislative] intent,
courts turn first to the words of the statute itself [citation], and
seek to give the words employed by the Legislature their usual
and ordinary meaning’ ” ’ ”].) Accordingly, we construe the
Housing Element’s references to affordable housing to mean
“housing that can be afforded by those on low or median incomes;
spec. housing made available to those on lower incomes at a price

19
The City’s citation of portions of the Los Angeles Municipal
Code and California Code of Regulations for definitions of
“affordable housing” sheds no light on the meaning of this phrase
within the Housing Element. Several of the cited sections
expressly limit the scope of their applicability, and none purports
to define the concept so broadly as to guide our construction of
the General Plan. (L.A. Mun. Code, §§ 151.02 [“The following
words and phrases, whenever used in this chapter, shall be
construed as defined in this section”], 11.5.11 [discussing
affordable housing requirement for projects to qualify for
amendment to General Plan or allowance under otherwise-
applicable zoning rules], 47.73 [defining “Affordable Housing
Project” and “Affordable Housing Trust Fund” for purposes of the
Residential Hotel Unit Conversion and Demolition Ordinance];
Cal. Code Regs., tit. 25, §§ 6910, 6922 [defining “[a]ffordable rent”
for purposes of specified programs].) Moreover, the multiplicity
of technical definitions itself counsels against inferring that the
Housing Element silently incorporates any one of them.

27
below normal market value, as the result of legislation or subsidy
by a local authority or the state.” (Oxford English Dict. Online
(2023) [as of Apr. 10, 2023] archived as
; Wasatch Property Management
v. Degrate (2005) 35 Cal.4th 1111, 1121–1122 [“When attempting
to ascertain the ordinary, usual meaning of a word, courts
appropriately refer to the dictionary definition of that word”].)
Because the RSO prohibits landlords from raising rents to reflect
“normal market value” under certain circumstances, RSO
housing units are affordable housing within the ordinary
meaning of the phrase.
The City contends the foregoing analysis must be
undertaken with deference to its weighing of competing interests
enshrined in the General Plan. As we shall discuss, the City is
correct that such deference is required with respect to a
consistency analysis that weighs applicable policies. (Holden,
supra, 43 Cal.App.5th at p. 412 [“We give great deference to a
public agency’s finding of consistency with its own general plan”
because “ ‘policies in a general plan reflect a range of competing
interests, [and] the governmental agency must be allowed to
weigh and balance the plan’s policies when applying them’ ”].)
No such deference is warranted, however, with respect to
the City’s determination of which policies apply to the Project.
The principle that the City is uniquely positioned to weigh the
priority of competing policies does not extend to the question of
which policies are to be placed on the scales. (Holden, supra,
43 Cal.App.5th at p. 412) [“ ‘A reviewing court’s role “is simply to
decide whether the city officials considered the applicable policies
and the extent to which the proposed project conforms with those

28
policies” ’ ”], emphasis added.) Accordingly, the City’s suggestion
that the trial court improperly “substituted its own judgments for
those of the City” in finding which Housing Element policies are
applicable to the Project is flawed to the extent that it conflates
judicial review of what policies are applicable and the weight to
be given various policies.
2. The City did not consider the Project’s
consistency with applicable Housing Element
policies
“A project is consistent with a general plan if it will further
the objectives and policies of the general plan and not obstruct
their attainment. [Citation.]” (Holden, supra, 43 Cal.App.5th at
pp. 411–412.) As we have already mentioned, our review of an
agency’s consistency finding is deferential. (Id. at p. 412.)
Because a general plan “ ‘balance[s] a range of competing
interests[,] [i]t follows that it is nearly, if not absolutely,
impossible for a project to be in perfect conformity with each and
every policy set forth in the applicable plan.’ . . . [Citation.]”
(Ibid.) An agency’s weighing of such interests will be reversed
“ ‘only if it is based on evidence from which no reasonable person
could have reached the same conclusion,’ ” and the party
challenging the consistency finding “has the burden to show why
that determination is unreasonable.” (Id. at pp. 412–413.) These
principles only come into play, however, when the agency has in
fact considered the applicable policies. (Id. at p. 412.)
Here, the City takes conflicting positions as to whether it
found the Project to be consistent with Housing Element policies
or whether its analysis ended with a determination that the
policies do not apply. For instance, in its opening brief, the City
suggests “[s]ubstantial evidence . . . demonstrates the City

29
implicitly concluded that the Project would not frustrate the
Housing Element.” In its reply brief, however, the City
emphasizes that “whether the Project is consistent with the
Housing Element is an entirely separate inquiry from whether its
policies are even applicable to the Project in the first place” and
explains that “[w]hen the City expressly concluded the Housing
Element’s policies did not apply to the Project, its analysis ended
there; it did not need to redundantly engage in a subsequent,
unnecessary consistency analysis with inapplicable policies.” The
City’s position in the reply brief more accurately reflects the
administrative record.
Although an agency need not make an express consistency
finding (Holden, supra, 43 Cal.App.5th at pp. 416–417), there
must be some indication that the agency actually considered
applicable policies. (Id. at p. 412; World Business Academy,
supra, 24 Cal.App.5th at p. 496 [holding that the record relevant
to a categorical exception determination must at least be
sufficient to “enabl[e] a reviewing court to determine the basis for
the decision”].) Here, the City suggests we can infer that it
considered the Project’s consistency with Housing Element
policies from its express discussion of other policies, such as those
included in the Framework Element and the Hollywood
Community Plan.
The City’s reliance on the discussion of the Framework
Element in the Department of City Planning’s site plan review
findings to show that it considered applicable Housing Element
policies is misplaced – the discussion does not mention affordable
housing. The City’s suggestion that the Project’s consistency
with the Framework Element implies consistency “with the
entirety of the General Plan” because of the Framework

30
Element’s foundational role assumes, contrary to authority, the
Framework Element stands in perfect harmony with the General
Plan. (Holden, supra, 43 Cal.App.5th at p. 412 [emphasizing that
“ ‘policies in a general plan reflect a range of competing
interests’ ”].) Further, it ignores the in-fill exemption’s
requirement of consistency with “all applicable general plan
policies.” (Guidelines, § 15332, subd. (a), emphasis added.)
Reports stating the Project would “not conflict with the
City’s ability to provide housing to all economic segments of the
Community” likewise have no bearing on applicable Housing
Element policies. These statements address an objective of the
Hollywood Community Plan calling for the City, among other
things, to “make provision for the housing required to satisfy the
varying needs and desires of all economic segments of the
Community.” This objective is less specific than the Housing
Element policies that call for the preservation of affordable
housing. A project, which may be consistent with the Hollywood
Community Plan based on the prospective construction of new
affordable housing elsewhere, will not necessarily be consistent
with the Housing Element if it results in the loss of existing
affordable housing.
In addition to arguing that discussion of other policies may
serves as a proxy for considering applicable Housing Element
policies, the City contends that conditioning approval of the
Project on Ellis Act compliance indicates it considered applicable
Housing Element policies.20 The City reasons that because

20
As pertinent here, and subject to certain exceptions, the
Ellis Act prohibits public entities from “compel[ling] the owner of
any residential real property to offer, or to continue to offer,
accommodations in the property for rent or lease . . . .” (Gov.

31
certain provisions of the Housing Element “call[ ] for Ellis Act
enforcement,” such conditions must reflect the City’s
consideration of each and every policy included in the Housing
Element. Even if this argument made sense at an abstract level
– it does not – the conditions of approval make clear that the Ellis
Act condition is derived from the Los Angeles Municipal Code:
“Owner shall comply with [Los Angeles Municipal Code]
[s]ections 151.22 through 151.28, and any other applicable state
or local law, by providing all existing units proposed to be
demolished with relocation assistance, notice, and fees consistent
with the Relocation Assistance Amounts as specified by law
and/or the Los Angeles Housing & Community Investment
Department . . . .” The reference to the “Ellis Act” and therefore
to the Municipal Code does not demonstrate the City’s
consideration of the General Plan’s Housing Element.
Although we affirm the trial court, we do not suggest that
the City was necessarily required to make formal findings that
Housing Element policies are outweighed by competing policies
favoring the Project. Nor do we hold that such a decision would
necessarily conflict with the General Plan. Rather, we affirm the
trial court’s judgment because we cannot defer to the City’s
“weigh[ing] and balanc[ing] [of] the [General] [P]lan’s policies”
where there is no indication the City weighed and balanced all
applicable policies. (Holden, supra, 43 Cal.App.5th at p. 412.)

Code, § 7060, subd. (a).) However, it expressly permits public
entities to adopt measures “to mitigate any adverse impact on
persons displaced by reason of the withdrawal from rent or lease
of any accommodations.” (Gov. Code, § 7060.1, subd. (c).) As we
discuss, the Los Angeles Municipal Code includes several such
provisions.

32
 DISPOSITION
The judgment is affirmed. United Neighborhoods shall
recover its costs on appeal.

RUBIN, P. J.
WE CONCUR:

MOOR, J.

KIM, J.

33
Filed 7/25/23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

UNITED NEIGHBORHOODS FOR LOS B321050
ANGELES,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 20STCP03844)

v.

CITY OF LOS ANGELES et al., ORDER FOR PUBLICATION

Defendants and Appellants;

FARIBORZ MOSHFEGH et al.,

Real Parties in Interest and
Appellants.

THE COURT:
IT IS HEREBY ORDERED that the opinion filed in the above matter on June 28,
2023, is certified for publication with no change in judgment.

_________________________________________________________________________
RUBIN, P. J. MOOR, J. KIM, J.