Listen to this post v. City of Los Angeles (2019) 39 Cal. App. 5th 1

Millennium Hollywood LLC, the City of Los Angeles, and the Los Angeles City Council (Appellants) challenged a trial court holding that a proposed four-and-a-half-acre mixed-use development failed to comply with the requirements of CEQA.

Millennium filed a master land use permit with the City’s Planning Department in 2008. In an attachment, Millennium described what it proposed to build and the objectives for the project. Development was abandoned (following a finding that the project violated FAR requirements) until 2011, when Millennium filed another master land use permit, this time lacking any description or detail regarding what they intended to build. The initial study did not include any drawings or renderings; the number of buildings; or their shape, or size, or purpose. The only finite information was the development’s size, location, and purposes of existing buildings nearby. The DEIR identified it as a “mixed use development” and stated that the massing characteristics and specific land uses were left vague to allow for flexibility. The DEIR included a conceptual plan (along with two alternatives of similar detail) to illustrate potential scenarios following approval of the development agreement. The FEIR maintained the same project description, and, over public comment noting it would be difficult to “respond to a project that does not include a specific proposal”, the Council approved the project. filed a petition seeking a peremptory writ of mandate directing the City to set aside approval of the Project and EIR certification. The petition set forth three CEQA causes of actions, two of which were granted by the trial court. The trial court found that the City abused its discretion by (1) failing to provide an accurate, stable, and finite project description, and (2) declining to conduct a traffic study. The trial court found the project description was inconsistent and failed to describe essential requirements under CEQA: siting, size, mass, or appearance of proposed building. The DEIR didn’t describe a stable or finite building development project—rather, it presented conceptual scenarios that Millennium or future developers could follow at the site.

Appellants filed an appeal with the Second District Court of Appeal. The Court upheld the decision of the trial court in full.

First, the Court established that the project description was not “accurate, stable and finite” as required under CEQA. The Court explained that the informative purpose of CEQA is not served through “incessant shifts among different project descriptions”, and that vagueness could result in vitiation of the EIR process as a vehicle for public participation. The Court held that the project description provided the public and decision makers little by way of actual information regarding “design features” or a “final development scenario.” Rather, they constituted vague and ambiguous regulations which simply limited the range of options for future developers.

The Court rejected the argument that the conceptual “impacts envelope” contemplated in the project alternatives complied with CEQA because it assumed, analyzed, and mitigated worst-case-scenario environmental effects; noting that this exact argument was “made and roundly rejected in County of Inyo [v. City of Los Angeles (1977) 71 Cal. App. 3d 185]and Washoe Meadows [Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277].”

Rather, the Court directed developers to follow the project description requirements enumerated in South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal. App. 5th 321 (South of Market) and the Guidelines, which require a general description of a project’s technical, economic, and environmental characteristics. In South of Market, the DEIR’s project description met Guidelines standards through inclusion of site plans, illustrative massing, building elevations, cross-sections, and representative floor plans for multiple schemes—even though the project would ultimately result in one scheme.

The Court found that unlike South of Market,the project description at issue failed to meet basic Guidelines requirements. Technical characteristics—such as those provided in South of Market for multiple schemes—were absent. The DEIR did not contain site plans, cross-sections, building elevations, or illustrative massing to show what buildings would be built, where they would be sited, what they would look like, and how many there would be.

Moreover, as noted by the trial court, there were no practical impediments as to why Millennium could not have provided an accurate, stable, and finite description of what it intended to build. The Court found this case distinguishable from Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal. App. 4th 1036, which held that there may be times when a project description setting forth only the physical parameters and maximum environmental impacts may be reasonable—such as when conditions on the site interfere with making any firm commitment as to whether development would be possible and, if so, what type of development would occur. Instead, the Court agreed with the trial court’s assessment that those circumstances were not present in this case. In the earliest proposals for the project, prior to temporary abandonment, Millennium could clearly describe what they intended to build on the two parcels. Further, unlike Treasure Island, Millennium’s future configuration would not be subject to supplemental review before implementing the final Project design. The Court concluded that Treasure Island’s environmental review process provided for subsequent review when actual projects were proposed. Here, no subsequent review was contemplated.

Identifying that there were no extenuating circumstances on the site which would prevent Millennium’s preparation of an accurate, stable, and finite description, the Court found that the City’s actions constituted an impermissible impairment of the public’s ability to participate in the CEQA process. The Court concluded that because the project description is at the heart of the EIR process, it was not necessary to reach the other allegations of the appeal. Accordingly, the Court affirmed the judgement of the trial court in full.