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On December 22, the Second Appellate District certified for publication its November 30 opinion in Los Angeles Conservancy v. City of West Hollywood, concerning a proposed mixed-use redevelopment of the “Melrose Triangle” site that would result in demolition of the existing buildings.  In this decision, the Court rejected the Conservancy’s claim that the City gave short-shrift to an alternative that would have preserved one of the buildings, which is located at 9080 Santa Monica Boulevard and may be eligible for listing on the California Register of Historical Resources as an exemplar of “Streamline Moderne Style” (the “9080 Building”).  Notably, the Court’s ruling reaffirmed prior case law holding that a lead agency may find an alternative to be infeasible where it is impractical or undesirable for reasons of public policy.

The project applicant proposed to develop the three-acre triangular site with three new buildings that would include over 137,000 square feet of office space, over 82,000 square feet of retail, 76 residential units, and almost 900 parking spaces, as well as over 16,000 square feet of private and common open space.  Although the 9080 Building would be demolished, the EIR proposed two mitigation measures to address this impact:  (1) photographing of the building and creation of a pamphlet discussing the history of the project area and the building’s architectural style, and (2) incorporating some of the features of that architectural style into the project.  In addition, prior to the City Council hearing on the project, the applicant’s architects prepared a design incorporating the entry façade of the 9080 Building as the main entrance to the offices in the new building that would replace it.

The EIR analyzed three alternatives:  a no project alternative, an alternative reducing commercial space by approximately 25 percent, and the alternative at issue in this appeal, Alternative 3.  Alternative 3 would have resulted in the project being redesigned to preserve the 9080 Building by significantly shrinking the office space and retail space (by approximately 37 percent and 26 percent, respectively).  The EIR found that Alternative 3 would be environmentally superior to the project, because it would avoid demolition of the 9080 Building and had fewer traffic impacts, and would achieve many—but not all—of the project objectives.

In August 2014, the City approved the project and certified the EIR, adopted the proposed mitigation measures, required integration of the 9080 Building façade into the project design, and adopted a statement of overriding considerations (SOC).  In the SOC, the City determined that Alternative 3 was infeasible because it was inconsistent with the project objectives:  it would “eliminate and disrupt the project’s critical design elements” along Santa Monica Boulevard and require construction of “smaller, disjointed structures” to accommodate the 9080 Building.  The Conservancy filed a CEQA petition in Los Angeles Superior Court, focused on Alternative 3.  In January 2016, the trial court denied the petition, and the Conservancy appealed.

On appeal, the Conservancy made three arguments, all of which the panel rejected.  First, the Conservancy argued that the analysis of Alternative 3 was “conclusory and insufficient” because the EIR used estimates in calculating the reduction in usable square footage, did not include a conceptual design for the alternative, and failed to explain how retaining the 9080 Building would preclude construction of the building slated for that location.  The court summarily rejected each of these points, finding that the estimates used in the EIR did not create any ambiguity or confusion, CEQA does not require inclusion of design plans for project alternatives, and it was self-evident that two buildings could not occupy the same space.

Next, the Conservancy argued that the City failed to respond adequately to two public comments on the draft EIR that opposed demolition of the 9080 Building and discussed Alternative 3.  The Court found that these comments consisted of “objections and general expressions of support for Alternative 3” and did not raise any new issues or disclose any “analytical gap” in the EIR’s analysis, and the City therefore complied with CEQA in providing a brief response.

Finally, the Conservancy asserted that there was insufficient evidence to support the City’s finding in the SOC that Alternative 3 was infeasible.  Noting that an agency’s finding of infeasibility is “entitled to great deference” and “presumed correct,” the Court found that the record supported a fair argument that Alternative 3 was inconsistent with multiple project objectives, and therefore substantial evidence supported the City’s infeasibility finding.  In doing so, the Court confirmed that “a public agency may find that an alternative is ‘infeasible’ if it determines, based upon the balancing of the statutory factors, that an alternative cannot meet project objectives or ‘is impractical or undesirable from a policy standpoint.’”  As such, this case marks the intersection between the growing body of case law addressing historical resource analysis and, separately, supporting agency determinations of infeasibility based on policy grounds (on the latter point, see California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 1001; In re Bay Delta Programmatic EIR Coordinated Proceedings (2008) 43 Cal.4th 1143).,

For these reasons, the panel affirmed the trial court decision and awarded the City and the applicant their costs on appeal.

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A final note:  although the Conservancy lost the legal battle, a win would likely have been unavailing.  As mentioned by the Court, on May 20, 2015, a fire damaged the 9080 Building, resulting in the building being declared a public nuisance for which demolition, rather than rehabilitation, would be appropriate.  In sum, the results of a legal battle stretching over three years were rendered largely irrelevant by the facts on the ground over the course of one day.   A fitting reminder that, ultimately, lawyers and judges control only a few of the forces that decide the fate of projects.