Friday, October 31, 2008
S.C. Rules for Critics of West Hollywood Housing Project
By SHERRI M. OKAMOTO, Staff Writer
The California Supreme Court yesterday ordered the City of West Hollywood to rescind its approval of a low-income housing development project due to violations of the California Environmental Quality Act.
Affirming a ruling by Div. Eight of this district’s Court of Appeal, the high court unanimously developers that the city’s conditional agreement to sell land to developers, coupled with its statements in support of the project and financial support, indicated that the city had approved the development as a practical matter prior to conducting environmental impact review.
The land, located at 1343 Laurel Avenue, had been donated to the city by its longtime owner, Elsie Weisman. It is occupied by a large colonial-revival style house construed in 1923; the property acquired the nickname “Tara,” after the famed plantation in “Gone With the Wind.”
In 2003, two nonprofit community housing developers, West Hollywood Community Housing Corporation and WASET proposed renovating Tara into approximately 35 units of low-income housing.
To facilitate the developers’ grant application with the United States Department of Housing and Urban Development, the city granted the developers an option to purchase the property and told the federal agency that the city “has approved the sale of the property,” and “will commit up to $1 million in financial aid.”
After the grant was awarded, the city announced the funds “will be used” to redevelop Tara for the proposed low-income housing project. City officials also told residents who opposed the project that the city would entertain “variations” on the proposal, but that the city “must continue on a path that fulfills this obligation” to develop the property as housing for low-income seniors.
The city then approved the loan and a draft agreement conveying the property to the developers for construction, conditioned in part upon the developer’s compliance with CEQA.
Save Tara, an organization of city residents and neighbors who objected to the development, sought a writ of mandate, alleging that the city had violated CEQA by failing to prepare an environmental impact report before the city approved the loan and draft agreement.
Los Angeles Superior Court Judge Ernest M. Hiroshige denied the mandate petition, finding that the city had not given its final approval to convey the property or of the project itself because the agreement was expressly conditioned on CEQA compliance.
The appellate court reversed, ruling that an environmental impact report is not to be delayed until a “final” decision has been made, but “is intended to be part of the decision making process itself, and not an examination, after the decision has been made, of the possible environmental consequences of the decision.”
Because the project was well enough defined to permit meaningful environmental analysis before the city approved the draft agreement, the Court of Appeal concluded the city had violated CEQA and remanded the matter with directions for the city to engage in new environmental review process.
While the appeal was pending, the city certified a final environmental impact report for the project.
Writing for the Supreme Court, Justice Kathryn M. Wedegar explained that the subsequent certification of the environmental impact report did not render the case moot because the project site had not yet undergone irreversible physical or legal changes and Save Tara could still be awarded effective relief in the form of an order setting aside the city’s approval of the project.
As for the substantive CEQA issue, Wedegar explained that environmental impact reports must prepared early enough that whatever information contained within it can practically serve as input in the decision making process, and not be reduced “‘to a process whose result will be largely to generate paper, to produce an EIR that describes a journey whose destination is already predetermined.’”
Although CEQA compliance can be a legitimate condition in a preliminary public-private agreement for a proposed project, Wedegar wrote, “if the agreement, viewed in light of all the surrounding circumstances, commits the public agency as a practical matter to the project, the simple insertion of a CEQA compliance condition will not save the agreement from being considered an approval requiring prior environmental review.”
Wedegar emphasized the practical over the legal, reasoning that a public entity which in theory retained legal discretion to reject a proposed project, but has committed its political and financial assistance to the project has committed itself to the project because it “will not be easily deterred from taking whatever steps remain toward the project’s final approval.”
Based on the city’s public announcements that it was determined to proceed with the development of the low-income senior housing project, its actions in accordance with that determination by preparing to relocate tenants from the property, its substantial financial contribution to the project, and its willingness to bind itself to convey the property, Wedegar concluded the city had committed itself to a definite course of action regarding the project before fully evaluating its environmental effects.
Noting the city’s approval of a final environmental impact report during the pendency of the litigation, Wedegar explained the final report was presumptively in compliance with CEQA and concluded the city did not necessarily have to prepare a new report as the Court of Appeal had ruled.
The matter was ordered returned to the Los Angeles Superior Court for entry of an order that the city set aside its prior approval of the project and review its environmental impact report and determine if a subsequent or supplemental report is required.
Jan Chatten-Brown, Douglas P. Carstens, Katherine A. Trisolini and Amy C. Minteer of Chatten-Brown & Carstens represented Save Tara.
Chatten-Brown opined that the court’s decision “reminded everybody that the public needs to be brought in and involved in the decision making process as early and as informatively as possible.”
Michael Jenkins, John C. Cotti and Christi Hogin of Jenkins & Hogin represented the city.
Hogin explained that it is very common for cities to enter into conditional agreements based on CEQA compliance, and that the court’s decision was “very frustrating,” because cities already have “a very difficult job of providing affordable housing,” and are “now hamstrung by these neighborhood NIMBYs”—advocates of a “Not in My Backyard” approach to land use—“who oppose having the development in their neighborhood.”
She predicted that such opponents to affordable housing developments would use CEQA to make developing affordable housing more expensive, procedurally difficult and ultimately discourage cities from doing it.
James L. Arnone, Stephanie E. Ord, Ernest J. Hahn and Benjamin J. Hanelin of Latham & Watkins represented the developers. Arnone declined to comment, saying he had not yet conferred with his clients when contacted yesterday.
The case is Save Tara v. City of West Hollywood (Waset, Inc.), 08 S.O.S. 5963.
Copyright 2008, Metropolitan News Company