Development Projects and EIR’s: How Far will the City of L.A. Go?

It seems that since the City of Los Angeles was defeated in the case of Friends of Westwood, Inc. vs. City of Los Angeles (March, 1987) opponents of development projects in the City of Los Angeles have resorted with great frequency to the environmental impact report (EIR) process as a means of defeating the construction of targeted building projects.

Recently, when a carwash in Studio City narrowly escaped being qualified as a cultural/historical monument (a designation sought by local residents for the express purpose of obstructing its demolition as a means of defeating the proposed new project) the councilperson, in response to intense pressure from the same local residents, successfully introduced a motion in City Council requiring that the proposed new project be subjected to a full environmental impact report prior to the issuance of a building permit.

Similarly, in Sherman Oaks a demolition permit for a row of vacant stores was preemptively withheld by the Department of Building and Safety at the urging of the councilperson who demanded that the developer first complete a full environmental impact report on the proposed “controversial” project.

In Woodland Hills, cries for an EIR were recently raised in response to a developer's announced intention to lease his new units rather than sell them as condominiums. And earlier in the year, when a client of my law firm appeared before the city for approval of a haul route in order to safely transport the dirt proposed to be excavated for a new 66 unit project on Church Lane in Brentwood, a myriad of vociferous opponents, including two councilmembers, convinced the City Council to deny approval of the haul route and order a full EIR on the entire project. Indeed, this decision presaged this project's financial demise.

However, this client/developer sued the city and won on the merits. These and similar incidents raise some serious questions as to what is going on in the city. Are they a series of unrelated events, all in­dependent, meritorious demands for environmental reviews? Or are we experiencing a “CEQA mania” brought about by people's perceptions that, in the wake of the Friends of Westwood decision, anything and everything can be subjected to environmental review at any time in the development process?

Friends of Westwood Decision

The California Environmental Quality Act (CEQA), enacted in 1970, requires municipalities to prepare an environmental impact report as to “any project which may have a significant effect on the environment.” Before ordering an EIR, a municipality conducts an initial study. If this initial study reveals there is no substantial evidence that the project may have a significant effect on the environment, a negative declaration is issued and filed and the project may proceed. Otherwise, an EIR must be prepared detailing the potential consequences for the environment, the specific measures which would mitigate those consequences, and possible alternatives to the proposed project. Underlying all this is the fact that CEQA only applies to discretionary projects as opposed to ministerial projects.

Since time immemorial, the issu­ance of building permits in the City of Los Angeles has been considered to be a ministerial act and therefore not subject to environmental review irrespective of the project's size, height, traffic generation or any other factors. Indeed, as recently as in 1986, the city’s position was reaffirmed in the case of Elysian Heights Residents Association vs. City of Los Angeles, wherein the court stated: “Once an applicant has complied with the appropriate land-use regulations, the Department of Building and Safety has no discretion to deny issuance of a permit.”

So when the developer of the Wilshire-Glendon comer in Westwood applied for a building permit to construct a 26-story office tower, the city rejected the residents' requests for an EIR and issued the building permit. This was accomplished without so much as a preliminary environmental assessment to identify potential impacts. However, this building permit was

not, as the Friends of Westwood court put it, a “run-of-the-mill” building permit. There was a great deal more to permitting the construction of this 26-story office tower than simply plan checking building plans.

Hence, the court held that the Wilshire-Glendon project, being a “major project” with substantial potential effects on the environment, should be subjected to CEQA review prior to the issuance of its building permit. However, the court specifically warned that not every building permit is subject to CEQA review.

Subsequent to this ruling the Mayor issued a directive to the Department of Building and Safety requiring any commercial project exceeding 40,000 square feet in size or any multi-residential project exceeding 35 units to undergo environmental review pursuant to CEQA. The City Council has yet to adopt an ordinance defining the so-called major projects that will be compelled to undergo CEQA review. Absent a clear citywide ordinance elected officials are testing the limits of their unrestrained power to call for environmental review of projects to an extraordinary degree. One such extreme example follows.

Church Lane Project: The Haul Route

In 1987 our client/developer purchased property on Church Lane in Brentwood across the street from the Holiday Inn near the intersection of Sunset Boulevard and the San Diego Freeway. Building plans in strict conformance with the zone change ordinance were submitted in early 1988 for 66 dwelling units. The zone change for the property had already been adopted by the City Council along with a negative declaration, after the Council determined that the proposed zone change to multi-family use could not have a significant effect on the environment.

Under the Mayor's guidelines, an environmental review was prepared by the Department of Building and Safety and resulted in the filing of a negative declaration. Grading plans were prepared and approved. The Department also approved a haul route together with a string of conditions designed to protect the public safety and welfare. In as much as the project involved hillside excavation, a public hearing on the approval of the export of earth and haul route was required.

At this public hearing conducted by the Board of Building and Safety Commissioners, a great deal of opposition to the project was heard from two home­owner groups, several of the hotels in the area, and two councilpersons. Opponents demanded that the project be subjected to a full EIR and the Board so ordered. Our lawsuit followed.

Space does not permit me to provide the details of the litigation. Suffice it to say that the City argued that the prior negative declarations issued in conjunction with the zone change did not address the issues of grading, excavation and export of earth, and therefore the city was now entitled to demand a full EIR. The developer argued that the initial studies upon which the negative declarations were founded did address the issues of grading and excavation regarding the Municipal Code regulations, and that since there were no substantial changes in the proposed project, the previous environment reviews were sufficient.

It is interesting to note that, while the lawsuit was pending, the Board reconsidered the matter and reversed itself. However, this reversal was appealed to the full City Council, where once again the council, at the urging of two councilpersons, voted to subject this project to a full EIR. This has never been done in the history of the city.

The developer prevailed in court and the city was ordered to process all permits without subjecting this project to any further environmental reviews.

Until the city adopts an ordinance which clearly defines when and under what circumstances projects that otherwise conform with all land use regulations are subject to CEQA review, chaos will continue to prevail. Councilpersons, anxious to appease angry constituents, appear more influenced by the political results than in what the City Attorney has to say.

This, of course, places the City Attorney in the middle of the power struggle and in the unenviable position of having to define actions that are not defensible. But very few individual citizens have the ability to fight back when the city exceeds its authority.

As a result, most of the time the power being exercised by elected officials in these matters goes unrestrained and unchecked. Project opponents are frighteningly open and honest as they call for CEQA review for the express purpose or delaying a project they do not like. This abuse of the environmental review process undermines the integrity of CEQA and frustrates its intended designs.