et al., v. City of Los Angeles et al. 2019 Cal.App. LEXIS 780

In et al., v. City of Los Angeles et al. 2019 Cal.App. LEXIS 780, the Court of Appeal delivered a setback to mixed use proposals by invalidating an EIR lacking a specific development proposal, but which evaluated different land use mixes. The Court found that the EIR lacked a definite and stable project description. For all practical purposes, the Court elevated CEQA in importance over how a local government chooses to design its regulatory code and application process. 

The facts involved no insignificant project. The Millennium Project was the redevelopment of a four and one-half acre area surrounding the iconic Capitol Records building in Los Angeles. In 2008, the developer filed a development application describing a detailed proposed project consisting of 492 residential units, a 200-unit luxury hotel, 100,000 square feet of office space, a 35,000 square-foot sports club, more than 11,000 square feet of commercial uses, and 34,000 square feet of food and beverage. As with many other development applications in 2008, it was not advanced by the developer.

In contrast to the 2008 application, the next application in 2011 adopted a more fluid approach. Specific buildings were not proposed, but rather a flexible mixed-use project of up to 1,052,667 square feet of space, allowing for a broad range of residential and commercial uses as allowed for under the equivalency provisions of the city development code. The EIR evaluated different scenarios (more residential/less commercial vs. more commercial/less residential square footage). Neighbors challenged the EIR on several grounds, and the trial court agreed that the EIR lacked a stable project description. While the ensuing appeal and cross-appeal involved additional CEQA claims, the only issue addressed by Appellate Court was that concerning the project description. The Court of Appeal affirmed the trial court’s judgment, concluding that the lack of meaningful detail in describing a specific project precluded effective public participation. Given that a detailed application was filed in 2008 the Court surmised that a detailed submittal was not an undue burden on an applicant.

Comment: Rather than recognizing the inherent right of cities and counties to design land use regulations to be responsive to local needs, the Appellate Court effectively concluded that CEQA was more important. Personally, I think that the Court got it wrong. The CEQA tail should not wag the land use dog. Nothing in state law compels local governments to adopt development codes requiring detailed application submittals. While local agencies have the legal authority to adopt rigorous submittal requirements, there is no statutory mandate to do so. Thus, this decision is in conflict with the long-standing authority of cities and counties to adopt development codes which provide for flexibility in the application and development process.

William W. Abbott is a shareholder at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.