Monday, September 21, 2009
Court of Appeal Upholds City’s Rejection of Las Lomas Project
By KENNETH OFGANG, Staff Writer
The city of Los Angeles did not violate a developer’s due process or equal protection rights, or the California Environmental Quality Act, by rejecting the plaintiff’s proposed development before completing a draft environmental impact report, the Court of Appeal for this district has ruled.
Div. Three Thursday affirmed a judgment dismissing Las Lomas Land Company, LLC’s complaint and petition for a writ of mandate. The company said Los Angeles officials, in particular City Councilman Greig Smith, short-circuited the process after it spent millions of dollars in an effort to comply with the city’s requirements.
Smith issued a statement Thursday hailing the decision, crediting his chief of staff, Mitch Englander, with having “put together the huge coalition of people and groups that opposed Las Lomas and helped us convince the City Council to stop the ill-conceived development.”
Las Lomas had hoped to construct a 555-acre project containing upwards of 5,500 homes, along with shops and offices along Interstate 5 in the Newhall Pass between Los Angeles and Santa Clarita. While not in the Los Angeles city limits, the area is partially within the city’s “sphere of influence,” as defined by the city and the Los Angeles County Local Agency Formation Commission, and Las Lomas proposed that the city annex the site.
Santa Clarita and the county also objected to the development.
The Los Angeles council voted in March of last year to approve a motion by Smith calling for the city to “cease all work,” “not process an EIR,” and return all project materials to Las Lomas.
At the same time, the council rejected a competing motion by members Bernard Parks and Richard Alarcon calling for approval of a supplemental fee agreement that would have granted the developer certain rights in exchange for a prepayment of the city’s anticipated expenses for processing the EIR.
Las Lomas sued in June of last year, accusing Smith of misrepresenting facts about the proposal and exaggerating its potential impact. It also contended that the city was required to complete the statutory review process before making a final decision on the project.
Los Angeles Superior Court Judge David Yaffe denied writ relief and sustained the city’s demurrer, saying there was no requirement that an agency complete the review process before a projected is rejected, and the case was dismissed.
Justice Walter Croskey, writing for the Court of Appeal, said Yaffe was correct.
“CEQA applies only to projects that a public agency intends to carry out or approve, and does not apply to projects that the agency rejects or disapproves,” the justice wrote.
“To require a public agency to prepare and circulate a draft EIR, and prepare a final EIR including responses to comments, before rejecting a project would impose a substantial burden on the agency, other agencies, organizations, and individuals commenting on the proposal, and the project applicant. Such a requirement would not produce any discernible environmental benefit and would not further the goal of environmental protection.”
With regard to constitutional issues, Croskey said Las Lomas had no procedural due process rights because it was not entitled to approval of the project, and did not adequately allege a substantive due process violation. The allegations that Smith made his motion without proper notice or an opportunity to respond to new evidence, the justice said, “do not amount to an outrageous or egregious abuse of power of constitutional dimension.”
Nor can the developer prevail on equal protection grounds, Croskey explained, because even if other projects were treated differently, Las Lomas could not prove that Smith’s efforts to defeat its proposal resulted in a “wholly irrational” decision.
Lloyd W. Pellman of Nossaman LLP, who advised Smith, told the MetNews that the appellate panel “reached the right conclusion on each of the theories of liability.”
Pellman explained that in fact “only about a third of the project site” was within the Los Angeles sphere of influence, and that “although not mentioned in the opinion...under LAFCO law the project, as proposed, did not meet the strict statutory requirement of being contiguous to the city” and would not have been eligible for future annexation because it was more than 1,000 feet from the nearest city boundary.
This “meant that other properties closer to the city but not included in this proposed project would necessarily need to be annexed to the city to make the project site ‘contiguous,’” Pellman said.
Pellman is a former Los Angeles County counsel and was the longtime legal advisor to the Los Angeles County LAFCO.
Steven W. Weston and Nikki Carlsen of Alston & Bird, who represented the developer on appeal, could not be reached for comment.
Amrit S. Kulkarni of Meyers, Nave, Riback, Silver & Wilson argued the appeal on behalf of the city. Oakland attorney Rich Jarvis authored an amicus brief for the California State Association of Counties and the League of California Cities in favor of Los Angeles.
The case is Las Lomas Land Company, LLC v. City of Los Angeles, 09 S.O.S. 5640.
Copyright 2009, Metropolitan News Company