By Janell M. Bogue

You wouldn’t think that a simple, wooden fence would create enough controversy to fuel an extensive administrative process, a trial court case, and an appeal to the California Court of Appeal, Second Appellate District. However, in the case of Committee to Save the Hollywoodland Specific Plan and Hollywood Heritage v. City of Los Angeles (2008) 2008 Cal.App.Lexis 501, that is exactly what happened.

The case came to the appellate court by way of a convoluted series of events. The first builders of the disputed fence, the Armstrongs, owned a home in the Hollywoodland area of Los Angeles. This area sits under the famous “Hollywood” sign, which is located in the hills above the neighborhood[1];The Hollywoodland area is also notable for its historic granite retaining walls along the winding streets and its staircases, both of which were designated as a Historic-Cultural Monument in 1991. In 1992, the City of Los Angeles (“City”) adopted the Hollywoodland Specific Plan (“HSP”), which prohibits new fences from being erected within three feet of the lot line. The HSP also prohibits anything from being attached to the historic walls. 

The Armstrongs’ property sits below street grade and one of the historic walls runs nearly around the perimeter of their backyard, supporting the street. In 2002, they built a six-foot tall wooden fence along the top of the wall. The City subsequently required them to remove the fence because it violated the HSP. Later, they applied for an exception from the HSP to construct a new fence. A lengthy administrative procedure followed and the property changed hands. The new owner, R.J. Cutler (“Cutler”), continued the administrative process and finally, the City Council granted an exception to the HSP to construct a fence. It also found that the action was categorically exempt from CEQA as a minor alteration to land. Two groups of neighbors, the Committee to Save the Hollywoodland Specific Plan and Hollywood Heritage (collectively as “the Committee”), filed a petition for writ of mandate. 

Substantial Evidence

The Committee first argued that the exception was a special privilege that violated the HSP. The City and Cutler opposed and contended that the circumstances were unique and that prohibiting the fence would create a hardship. The trial court agreed and found that there would be a hardship because of the practical difficulties of adhering strictly to the HSP’s requirement of a three foot setback. A setback would create a dangerous gap between the roadway and the fence which would create a hazard for motorists on the roadway above the landowner’s backyard. Further, the exception was necessary for the enjoyment of the landowner’s substantial property right. The trial court also found that there would not be a detriment to the public welfare. The Committee appealed. 

The appellate court agreed with the trial court. The court explained that it affirmed the City’s decision to grant the exception because the decision was supported by substantial evidence. The record showed that strict adherence to the HSP would create excessive hardship because the property had an unusual layout and there were safety issues for cars and people without the fence in place. Further, enforcing the setback requirement would create a dangerous gap between the street and the fence, into which people and debris could fall. Thus, the appellate court upheld the exception.

Categorical Exemption

The Committee also argued that the City erred in using the categorical exemption for minor alterations to land. The trial court upheld the use of the exemption but the appellate court held that the use of the exemption was improper. A categorical exemption may be used only when the project will not have a significant effect on the environment due to unusual circumstances. (CEQA Guidelines, § 15300.2(c).) Also, a categorical exemption cannot be used when the project may cause a substantial adverse change in the significance of a historic resource. (CEQA Guidelines, § 15300.2(f).) Here, the court held that there was not substantial evidence in the record to show that there would be no environmental effect and no change in the historic resources. It was unclear how the fence would affect the historic walls. There was also evidence to show that the fence would impair nearby views of the walls. Therefore, because the City improperly relied upon the categorical exemption, it must go back and conduct an initial study to see if the fence will actually have an effect upon the environment. 

Janell Bogue is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

[1]  The “Hollywood” sign originally read “Hollywoodland” and was put up in 1923 by the developers of the Hollywoodland area as advertising. It was illuminated by 4,000 lights but was not intended to be permanent, as it was built of sheet metal and telephone poles. In 1949, the City took over maintenance and removed the “land” portion as well as the lights (since the developers stated that the City would be responsible for the electricity bills). After years of deterioration, the letters were replaced with a more  permanent sign in 1978.