125 Cal.Rptr.2d 140, 2 Cal. Daily Op. Serv. 9410
ARVIV ENTERPRISES, INC., Plaintiff and Appellant,
v.
SOUTH VALLEY AREA PLANNING COMMISSION et al., Defendants and
Respondents.
No. B156529.
Court of Appeal, Second District, California.
Sept. 11, 2002.
COUNSEL
Gerald Krupp, Bernard Lauer and Ronald P. Kaplan for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Susan D. Pfann and Jack L. Brown,
Assistant City Attorneys, for Defendants and Respondents.
JOHNSON, Acting P. J.
In a series of permit applications, and overlapping reviews over a short period
of time, a housing developer managed to secure among other things (1) a series
of permits to build five houses downslope from Mulholland Drive; (2) a
categorical environmental exemption to build two additional houses across the
street; (3) a mitigated negative declaration to build 14 additional houses on
an adjacent street; and (4) a variance for one of the five houses built over
height. Prompted by nearby residents' and homeowner associations' complaints,
the City of Los Angeles came to realize the cumulative effects from what was in
reality a development project for 21 hillside houses required an environmental
review of the project as a whole. It thus imposed a building hiatus for six
months, or until an environmental impact report (EIR) was completed and
certified. The developer sought an administrative writ of mandate to challenge
the City's requirement for an EIR covering all 21 proposed houses which
included those already constructed, although the specific appeal then before
the commission technically concerned only two of the proposed houses. The trial
court denied the developer's request for relief. We find no abuse of
discretion. Accordingly, we affirm.
Facts and Proceedings Below
Yehuda Arviv is
president and chief executive officer of appellant Arviv Enterprises, Inc.
(collectively Arviv). He has been a land developer in the Los Angeles County
area since the 1970's. Sometime in the 1980's Arviv began purchasing lots on a
steep hillside in the Mulholland Scenic Parkway *1337 Specific
Plan area of Los Angeles. Arviv ultimately purchased 21 legal lots (14 on
Leicester Drive and seven on Woodstock Road) with the intention of building a
house on each of the hillside lots. [FN1] The lots are both upslope and
downslope and are located south of Mulholland Drive.
FN1
Technically, Arviv purchased 22 legal lots but intended to use three of the
lots on Woodstock Road to build two very large houses.
In December 1987, Arviv received a preliminary geological and soils engineering
report regarding "proposed 11 residences." The report concluded
construction of the proposed project was feasible, provided Arviv followed its
numerous recommendations. Among other things, the report recommended foundations
be set in bedrock. The report noted conventional footings could be used on the
ascending lots once cut pads had been excavated. Deeper foundations with pylons
were recommended for building on the descending lots. The report noted
"fill and soil on the site are not surficialy stable and therefore subject
to erosion. It is recommended that the loose surficial materials be trimmed
from the slopes or supported with walls and grade beams." Further, the
report suggested fill slopes be constructed at a 2:1 gradient and that sub
drains be placed at the base of all fills and along the axis of drainage
courses.
In March 1988 the engineering department of the City of Los Angeles approved
the geological, grading and soils report, conditioned on following all
recommendations mentioned in the report and more. Arviv's plans lay dormant for
the next 10 years.
In the meantime, in 1992 the City of Los Angeles (City) adopted Ordinance No.
167,943 known as the Mulholland Scenic Parkway Specific Plan. The plan imposes
land use and design controls to protect the Mulholland area as a scenic and
recreational asset for the city as a whole. Persons wishing to develop homes
within the Mulholland Scenic Parkway area must first submit a development
application to the Mulholland Design Review Board (Board). [FN2] The Board does
not review all aspects of a proposed development. Instead, the Board's primary
concern is whether a proposed project is consistent with the Mulholland Scenic
Parkway Specific Plan in terms of aesthetics and potential environment impacts.
The Board holds public hearings regarding specific development proposals
seeking approval. The Board ultimately forwards its recommendation to the
City's planning Director for determination. [FN3]
FN2
Los Angeles Municipal Code section 16.50.
FN3
Los Angeles Municipal Code section 16.50, subdivision D1.
In 1998 Arviv submitted an application with plans and specifications to build
three houses on Woodstock Road. Arviv presented an updated geological and soils
report which concluded the site conditions had not changed *1338
substantially since the earlier report. However, it noted "[s]everal
surficial failures ... on the downslope edges of Leicester Drive and Woodstock
Road, particularly along the axis of the two secondary northwesterly draining
natural swales. Portions of the near vertical cut slopes on the uphill side of
Woodstock Road and Leicester Drive have experienced rock falls."
In November 1998 the City's planning department approved Arviv's proposal to
build on Woodstock Road. The City also approved an environmental clearance. The
City's department of building and safety thereafter issued Arviv a building
permit. The City did not require Arviv to seek preliminary approval from the
Board.
Immediately thereafter Arviv filed an additional application to build two more
houses on Woodstock Road. The City's planning department approved construction
of these two homes as well. Again, the City's department of building and safety
issued a building permit without even requesting an initial environmental
study, and again gave Arviv building clearances without first requiring
approval from the Board.
Arviv built the five homes on Woodstock Road. By March 2000, four houses were
completely built and the fifth house was 80 percent complete.
In March 2000 Arviv filed a third application to build two additional houses
across the street from the five existing houses on Woodstock Road. On three
lots, Arviv intended to build two 5,500and 5,885-square-foot two-story houses.
This time City planning department staff directed Arviv to file for design
review with the Board.
While the two-house project was in the design review process, in May 2000 Arviv
filed yet another application to build 14 houses on the lots on Leicester
Drive. For this project the City's planning department prepared an initial
environmental study and checklist. Thereafter the City's planning department
prepared and approved a mitigated negative declaration (MND), which imposed
among other conditions, approval by the Board. The MND noted aesthetic impacts,
air pollution impacts, erosion/grading impacts, storm water and runoff impacts,
emergency service impacts and others. The MND stated it would thus require
input and ultimate approvals from relevant agencies before occupancy permits
would issue. The mitigated negative declaration concluded "these potential
impacts will be mitigated to a level of insignificance by imposing the above
mitigation measures."
The Board held a meeting in June 2000 to review Arviv's proposal to build the
two additional houses on Woodstock Road. Several neighboring *1339
residents complained about specific problems presented by Arviv's ongoing
construction at the five homes directly across the street from the two proposed
houses. At this meeting the Board noted Woodstock Road would need to be widened
to accommodate emergency personnel to service what would now be seven houses on
that street. The Board acknowledged the required modification would necessarily
result in changes in Arviv's proposed plans then under consideration. The Board
nevertheless gave conditional approval to Arviv's two-house project. It noted
impacts and issues regarding the first five houses were not then before the
Board.
The only conditions imposed by the Board included a maximum height limitation of
40 feet, a lighting plan, additional landscaping plans and color plans. The
Board's report notes the two-house project was categorically exempt from
environmental requirements.
The Board forwarded its recommendation to the City's director of planning. On
June 15, 2000, the City's director of planning and principal city planner
concurred with the Board's findings, recommendations and conditions.
Two local residents appealed the City's director of planning's decision to the
area planning commission. Respondent South Valley Area Planning Commission
(Commission) is responsible for administrative appeals from the director's
determinations on projects within the Mulholland Scenic Parkway Specific Plan.
The residents' appeals claimed the proposed houses violated the Mulholland
Scenic Parkway Specific Plan because (1) their size exceeded the plan's
limitations; (2) they required grading in excess of 5,000 cubic yards of soil;
(3) the proposed height of the houses will block neighbors' views; (4)
necessary grading will undermine a nearby resident's retaining wall; and (5)
the proposed project does not include provisions for sewer connections.
City planning department staff responded in writing to each claimed flaw. Staff
recommended the Commission deny the appeals.
Prior to the July 2000, public hearing on the residents' appeals the City's
planning department received numerous comment letters from neighboring
residents and homeowners associations challenging the adequacy of its MND
regarding the 14 proposed houses on Leicester Drive, the first MND the City
prepared for an Arviv project. By way of example, counsel on behalf of the
appealing residents and the Mount Olympus Homeowners Association wrote a letter
to the supervisor of the City's environmental unit. In his letter counsel
argued the proposed MND was inadequate and urged the *1340 City
to require an EIR to ensure review of the project as a whole. Counsel's letter
also pointed out some specific problems with the proposed project. Counsel
pointed out grading for the initial five houses resulted in slope failures, as
well as mudslides and rockslides which dumped onto a residence and Thames
Street below. The five recently built homes exceeded the height limitations of
the Mulholland Scenic Parkway Specific Plan and impaired the aesthetics of the
area. Counsel noted Woodstock Road is unpaved and presents erosion, water run
off and mud and dust problems for local residents. However, no mitigation
measure in the MND addresses the problems posed by the unpaved road. Moreover,
the width of the existing road is inadequate for emergency vehicles. Although
the MND recognized this fact and mandated a 20-foot wide paved street and fire
hydrants every 300 feet, it did not also require as part of the road design a
turn around area for fire trucks or, in the alternative, a through street to
permit access for emergency trucks and vehicles. Also, because the proposed
streets are also insufficiently wide to accommodate trash trucks, residents
would have to haul their trash to the end of the street, presenting an
attractive nuisance for rats and other small animals. However, the MND suggests
no mitigation measures.
City planning department staff responded to the comment letters and complaints
regarding the 14 proposed houses on Leicester Drive. Staff expressed the view
Arviv's compliance with the proposed mitigation measures recommended in the MND
would resolve the identified problems. However, the Board did not agree. It
ultimately recommended Arviv's proposed 14-house project on Leicester Drive be
disapproved.
The Commission heard the residents' appeals concerning the two additional
houses on Woodstock Road on July 27, 2000. City staff again recommended the
appeals be denied and the two-house project be approved. Counsel for the
appellants and the Mount Olympus Homeowners Association objected to granting
the project a categorical exemption from all environmental review. He argued
the appeals should be granted, if for no other reason, because Arviv's plans
before the Commission were no longer valid given the fire department's
conditions for a wider street and turnaround area. Land to satisfy street width
and turnaround requirements would necessarily leave less land on which to
build. This, in turn would require revisions to Arviv's existing plans to meet
these requirements.
Counsel also complained Arviv was attempting to go around the rules by
developing in a piecemeal fashion in order to take advantage of environmental
exemptions for projects of three or fewer single-family residences. He pointed
out the first five houses had never been subjected to any environmental review
or negative declaration, and had not even gone before the *1341
Board. Prior to the hearing counsel had inquired of City staff. Staff claimed
they were not aware the same applicant had already built five homes on the same
street until they did a site inspection regarding the two houses then before
the Commission. Counsel then informed the Commission Arviv had yet another
pending application for an additional 14 houses on adjacent Leicester Drive and
requested the Commission to order an environmental assessment of the
development as a whole.
Prior to counsel's comments at the July 2000 hearing Commission members, and at
least some of the City's planning staff, had been unaware Arviv's project was
in reality a 21-house project.
A representative from the Hillside Federation also argued the appeals should be
granted. She argued the appealed issues of grading problems and oversized
houses had merit. The representative pointed out the Mulholland Parkway
Specific Plan restricts building height to 40 feet. The permits the City issued
to Arviv for the first five houses permitted heights between 36 and 45 feet.
However, the five existing houses were in fact built between 46 and 51 feet
high, exceeding all legal limits. The representative also argued Arviv's
proposed sewer system was ill conceived since it would require major excavation
through the hillside and down to an adjoining street, and thus should not be
approved.
The representative from the Hillside Federation also expressed the view the
City's approvals to date were based on misrepresentations and inadequate
information from Arviv. She argued a stop order should issue until the entire
development could be adequately judged for its environmental effects.
After much discussion concerning the new information, and after securing
agreement from Arviv, the Commission ordered an environmental review in the
form of a MND covering seven houses-the two most recently proposed houses and
the already constructed five houses-and continued the hearing on the appeals.
Thereafter the City prepared an initial environmental study and checklist
regarding the seven houses on Woodstock Road. It issued another MND for the
combined seven-house project. Again the City's planning department received
comment letters opposing its decision to issue a MND for the seven houses on
Woodstock Road. The Willow Glen Area Homeowners Association argued the MND was
inadequate due to its lack of specificity and because it did not impose
sufficient conditions to ensure mitigation measures would actually be
undertaken or be effective. It mentioned specific areas of *1342
concern, namely (1) a faulty sewage connection design; (2) the absence of
required storm drains or other drainage mitigation measures; (3) lack of a
concrete plan for a turnaround area for emergency trucks and garbage trucks;
(4) no mitigation measures for dust and mud flows despite the known slope
failures which have occurred since Arviv began construction; (5) insufficient
enforcement of landscaping plans to disguise huge proposed retaining walls; and
(6) the MND's failure to address the height violations of the existing houses.
The homeowners association representative pointed out the City's planning department
identified these areas as potentially significant in the initial study and
checklist but they were inadequately addressed in its MND. Finally, the
association objected to the MND because it failed to take into account the
cumulative impacts from the overall project, which in its view warranted full
environmental review.
An organization called Mulholland Tomorrow echoed many of the concerns of the
Willow Glen Area Homeowners Association. It was particularly concerned about
the potential for visual blight on the Mulholland Scenic Parkway. It expressed
the view the "cumulative environmental impacts of this cluster of related
construction projects on Woodstock Road and Leicester Drive should be
considered together, and a mitigation plan encompassing the entire project site
[should be] prepared and implemented."
Prior to the continued hearing local residents submitted photographs of the mud
slides, sink holes and slope erosion mentioned in the comment letters.
Planning department staff responded to the concerns raised in the comment
letters and rejected all objections to the MND for the seven houses on
Woodstock Road. The City's staff report concluded "[d]ue to the limited
number of developable, legal lots in the area, the initial study did not recognize
any cumulative impact relative to the proposed project. Each individual, future
planned project must go through an environmental assessment and will be
required to mitigate their own impacts individually. However, this issue may be
brought [to] the attention of the Decision Maker for further consideration. [¶]
Nothing has been presented to the Planning staff to support the argument that
the proposed mitigation measures would not be effective in reducing the
potential impacts to less than significant levels."
On the agenda for the continued hearing on the two appeals planning staff
stated "Staff recommends denial of the appeals."
However, sometime before the continued November 2000 hearing the City's
planning department staff had a change of heart. Staff concluded the *1343
MND was inadequate because it failed to take into account cumulative impacts
from Arviv's various individual projects. It thus recommended suspending
further action on the appeals until at least a focused environmental impact
report could be prepared for all 21 houses.
At the hearing, representatives from local homeowners associations described
their specific concerns about the past and potential future construction on
Woodstock Road and Leicester Drive. Numerous residents from the immediate vicinity
described the negative impacts the existing construction has had on their
property and discussed their concerns about further development without
adequate safeguards to prevent these types of problems. Ann Roos, a deputy to
Councilman John Ferraro, described the problems the councilman had had in the
past year concerning this construction project, particularly with regard to
grading issues and mudslides.
Arviv also spoke at the hearing. He claimed the City planning department knew
all along he owned and intended to develop all 21 lots. He claimed the
geological report should have put the City on notice he always intended to
develop the property. He argued it was unfair to do everything asked of him by
City officials and then at the last minute have planning staff change course.
Arviv stated he did not mind preparing an EIR for the proposed 14 houses on
Leicester Road. However, he objected to any interference with the five houses
for which he had already received permits, and which were already built and
ready for sale. He also objected to including the two additional houses on
Woodstock Road for which the City planning department had already given him a
categorical environmental exemption.
When questioned Arviv acknowledged a categorical exemption was by its terms
only valid for three or fewer houses. Arviv also agreed each of his five
existing houses exceeded the height restrictions of the Mulholland Scenic
Parkway Specific Plan, the Hillside ordinance, as well as the height
limitations specified in the permits issued by the City. Arviv explained he
already acquired a variance for one of the houses and would seek additional
variances for the others.
At the conclusion of the hearing the Commission president recommended issuing
an order for an EIR for the entire 21-house project. The Commission president
explained his reasoning as follows: "We had a lot of members come forward
and testify today about some of the impacts that they have observed while this
development is ongoing. We had people talk about the difficulties with the
sewer connections. We had people talk about the drainage and runoff issues. ...
Mr. Arviv did concede that there is an issue with respect to the fire safety
hazard on the project. *1344
"We also have these supporting evidence [sic] that was provided to
us, dust and water mud flow problems, traffic problems that would be developed,
significant grading that was going to be happening with respect to these 21
projects, aesthetics as well as height.
"The fact is that this was a 21-unit project development. It's all being
developed by Mr. Arviv, and it's significant that this development be looked at
[as] a whole. The environmental impact report is intended to-or the reason
behind doing one is intended to preserve the integrity of a development so to
speak and to ensure that the development meets these minimum requirements at
least to satisfy any types of environmental concerns that may be raised.
"I understand that, Mr. Arviv, you think that everybody is against you and
opposing you in this case, and you may feel that there is some delay, but I
also find that a lot of this delay is attributed to the actions that you've
taken in this case. [¶] Attempting, for example, to try to bring two projects
at a time and then coming back and bringing two projects at a time is something
that was somewhat misleading, so to speak, when you knew all along that there
was a 21-unit project development that you intended to develop and go forward
with. [¶] As a developer in this area for 20 years, you should also be aware of
the fact that sometimes an environmental impact report is required. Although
you may not have encountered one at this point in time, it is not unusual that
after a mitigated negative declaration comes about that an environmental impact
report is then required. [¶] I think that based on the evidence that was
presented to us today, I think that a fair argument can be made that this
project has a significant impact."
The Commission suspended the case for six months to prepare an EIR.
Arviv sought a writ of mandate in the trial court to overturn the Commission's
decision. The trial court found categorical exemptions from environmental
requirements would not have been available to Arviv had the project been
properly described as a 21-unit development, instead of only two to three
houses per application. The court agreed with the Commission's conclusion the
record contained substantial evidence to support a fair argument significant
adverse environmental impacts may occur as a result of the proposed 21-house
project. Accordingly, the trial court denied the requested relief. This appeal
followed. [FN4] *1345
FN4
The Commission suggests this appeal may not be ripe, claiming Arviv failed to
exhaust his administrative remedies by appealing its decision to suspend time
limits for six months in order to prepare an EIR. In our view the Commission
takes an unduly narrow view of its own decision. Arviv is not aggrieved by the
short hiatus, but instead by the Commission's actions expanding the subject
matter of the appeals, and by ordering an environmental review of his entire
21-house project, rather than simply the two-house project then under
consideration. Moreover, even if an appeal regarding the two-house project had
been successful, it still would not have provided the relief he seeks of
overturning the more crucial order requiring an EIR for all 21 lots. For this
reason, we agree with Arviv the Commission's order for an EIR was final in all
essential respects.
Discussion
I. The Overall Record Contains Substantial Evidence a
Fair Argument Can Be
Made the 21-house Project Will Have Significant
Environmental Effects.
(1a) Arviv claims
there was no substantial evidence presented to the Commission to support its
decision to override the MND in favor of an EIR. Specifically, Arviv complains
the Commission heard no expert testimony, but only the argument and
"unsubstantiated opinion" of lay witnesses. Arviv's argument is not
well taken.
The California Environmental Quality Act (CEQA) [FN5] requires a governmental agency
to "prepare, or cause to be prepared by contract, and certify the
completion of, an environmental impact report on any project which they propose
to carry out or approve that may have a significant effect on the
environment." [FN6]
FN5
Public Resources Code section 21000 et seq.
FN6
Public Resources Code section 21100, subdivision (a), italics added. Similarly,
CEQA guidelines specify "[i]f there is substantial evidence, in light of
the whole record before a lead agency, that a project may have a significant
effect on the environment, the agency shall prepare a draft EIR." (Cal.
Code Regs., tit. 14, § 15064, subd. (a)(1).)
CEQA guidelines define "significant effects" as "physical
changes in the environment which may be caused by the project and reasonably
foreseeable indirect physical changes in the environment which may be caused by
the project." [FN7] Examples of direct physical changes in the environment
include "dust, noise, and traffic of heavy equipment ...." [FN8]
Indirect environmental changes can include reasonably foreseeable population
growth in a given service area. [FN9]
FN7
California Code of Regulations, title 14, section 15064, subdivision (d).
FN8
California Code of Regulations, title 14, section 15064, subdivision (d)(1).
FN9
California Code of Regulations, title 14, section 15064, subdivision (d)(2).
(2) "If the lead agency determines there is substantial evidence in the
record that the project may have a significant effect on the environment, the
lead agency shall prepare an EIR (Friends of B Street v. City of Hayward
(1980) 106 Cal.App.3d 988 [165 Cal.Rptr. 514]). Said another way, if a lead *1346
agency is presented with a fair argument that a project may have a significant
effect on the environment, the lead agency shall prepare an EIR even though it
may also be presented with other substantial evidence that the project will not
have a significant effect. (No Oil, Inc v. City of Los Angeles (1974) 13
Cal.3d 68 [118 Cal.Rptr. 34, 529 P.2d 66])." [FN10]
FN10
California Code of Regulations, title 14, section 15064, subdivision (f)(1).
(3) On appeal, we independently review the record and determine whether there
is substantial evidence in support of a fair argument the proposed project may
have a significant environmental impact. [FN11] Because the appellate court
conducts a de novo review of the record, the trial court's reasoning, findings
or conclusions are not dispositive. [FN12]
FN11
Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33
Cal.App.4th 144, 151 [39 Cal.Rptr.2d 54].
FN12
Stanislaus Audubon Society, Inc. v. County of Stanislaus, supra, 33
Cal.App.4th 144, 151.
(1b) This entire case is the direct result of inadequate, or misleading,
project descriptions. In other words, it is entirely possible a two-house
project-located somewhere other than the steep slopes of the Mulholland Scenic
Parkway Area-may in fact have a de minimus, or mitigatable, effect on the local
environment. However, Arviv never intended a two or three house project. As he
admitted at the hearing before the Commission, he always envisioned a 21-house
development. Apparently the City's planning department staff was never able to
link the various projects together until the July 2000 hearing when members of
the public complained, not only about the two additional homes on Woodstock
Road, but also the 14 on Leicester Drive then under review, as well as the five
existing homes for which Arviv never sought Board approval.
The significance of an accurate project description is manifest, where, as
here, cumulative environmental impacts may be disguised or minimized by filing
numerous, serial applications. However, "environmental considerations do
not become submerged by chopping a large project into many little ones-each
with a minimal potential impact on the environment-which cumulatively may have
disastrous consequences." [FN13]
FN13
Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283- 284
[118 Cal.Rptr. 249, 529 P.2d 1017]; see also Citizens Assn. for Sensible
Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 165
[217 Cal.Rptr. 893] (county abused its discretion in adopting negative
declarations for each portion of the project because it failed to
consider
the cumulative impacts of the project as a whole); Burbank-
Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577,
592 [284 Cal.Rptr. 498] ("A narrow view of a project could result in the
fallacy of division, that is, overlooking its cumulative impact by separately
focusing on isolated parts of the whole.").
By the November 2000 hearing the City's planning department agreed it had
failed to consider the cumulative effects from the various construction *1347
projects under consideration in the sensitive hillside area. It thus
recommended the Commission order an EIR to consider the overall effects from
the project as a whole. We agree with the Commission a review of the entire
record demonstrates substantial evidence to support a fair argument the overall
project may have substantial environmental effects.
By the time the Commission made its decision the record before it contained
substantial evidence of environmental impacts regarding all the projects. For
example, it heard concrete evidence of problems neighboring residents had
encountered from construction of the first five homes on Woodstock Road.
Residents and representatives from homeowners associations described mudslides,
rockslides, soil erosion and other slope failures which occurred during grading
for the constructed homes. One of the appellants downslope from the new
construction explained how soil erosion had undermined his retaining wall.
Other local residents described the dust pollution from the grading activities
and as a result of construction vehicle traffic on the largely unimproved
Woodstock Road. Some of these local residents provided the Commission with
photographs of the sinkholes, mud and rockslides and water runoff problems they
described in their testimony. [FN14] The relevant personal observations of
these residents alone constitutes substantial evidence of environmental
impacts. [FN15] Contrary to Arviv's argument, scientific or expert studies are
not required to provide substantial evidence to support a fair argument the
project may have significant environmental impacts. [FN16]
FN14
These photographs are a part of the record under review.
FN15
Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d
1337, 1351-1352 [272 Cal.Rptr. 372] (in the context of an administrative
hearing, relevant personal observations of an adjacent property owner are
evidence).
FN16
See Stanislaus Audubon Society, Inc. v. County of Stanislaus, supra, 33
Cal.App.4th 144, 152.
The Commission also had before it specific challenges to the adequacy of the
two mitigated negative declarations. For example, the Willow Glen Area
Homeowners Association pointed out there were currently no sewer connections
for the existing and proposed homes on Woodstock Road, which as noted, is
largely unimproved. Arviv's plans entailed running sewer laterals down the hill
to Leicester Drive (which is also unimproved) to an easement to a sewer
connection on Thames Street below. Improving Leicester will require the removal
of thousands of cubic yards of hillside, and the construction of retaining
walls, 300 feet in length and 20 to 50 feet high. However, the MNDs did not
describe the environmental impacts from this plan, and for this reason, did not
specify any mitigation measures.
The homeowners association pointed out inadequate emergency access, as well as increased
traffic, were identified as potential impacts in the initial *1348
environmental study and checklist. However, the MND's failed to specify
particular mitigation measures, even though the fire department made it clear
emergency vehicles needed a portion of the street dedicated for a turnaround
area.
Counsel for the appellants and the Mount Olympus Homeowners Association wrote
comment letters and testified before the Commission. He identified the
cumulative impacts from the 21-house project based on his clients' observations
and the City's initial environmental studies and checklists as mud and rock
slides, no sewer connections, run off with no storm drains, inadequate
emergency access, increased traffic hazards, aesthetics of the existing and
proposed over-height structures, and the like.
Ann Roos, deputy to Councilman Ferraro, told the Commission, "These homes
were slipped in in different ways, and it prevented us from ever really
grasping what was happening. Since then in the last, I'd say, three or four
months, we've had two meetings which our office put together, and we've had
maybe 15 representatives from different city departments, trying to get a
handle on what is going on. It is very complicated. It includes the homes on
Leicester as well as the homes on Woodstock. [¶] An E.I.R. would do much to
remedy what has happened in this area and I think would express the City's
concern for the community who feel that things are not being regulated at all.
So we would greatly appreciate [it] if you would vote to require[] an E.I.R.
and include all 21 homes."
While Arviv may argue "no single piece of evidence standing alone requires
preparation of an EIR, when the record as a whole is studied, the collective
weight of the evidence supporting" the Commission's decision is
substantial. [FN17]
FN17
Stanislaus Audubon Society, Inc. v. County of Stanislaus, supra, 33
Cal.App.4th 144, 152.
II. The Commission's Order For an EIR Covering All 21
Houses Does Not
Interfere with Any of Arviv's Vested Rights.
(4a) Arviv contends
he has a vested right to proceed with his development without having to
complete an EIR based on permits already issued, and environmental clearances
already obtained. Arviv relies on the Supreme Court's decision in Avco
Community Developers, Inc. v. South Coast Regional Com. [FN18] in support
of his argument.
FN18
Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17
Cal.3d 785 [132 Cal.Rptr. 386, 553 P.2d 546].
In Avco, the developer owned thousands of acres of land in Orange
County, a part of which it intended to develop as a planned community *1349
development in Laguna Niguel. The county zoned the tract for a planned
community development and issued the developer rough grading permits. Avco
began building storm drains, culverts, street improvements, utilities and
similar facilities for the planned community and another tract. The Legislature
then passed the California Coastal Zone Conservation Act of 1972. The act
specified any person wishing to develop within the coastal zone after February
1, 1973, had to secure permission from the coastal commission. By this date the
developer had spent millions of dollars preparing the tract. However, it had
not yet submitted building plans and had not yet received a building permit from
the county. [FN19]
FN19
Avco Community Developers, Inc. v. South Coast Regional Com., supra, 17
Cal.3d 785, 789-790.
The developer objected to the new requirement, claiming it had a vested right
to construct the planned community without a permit from the commission. The Avco
court acknowledged the long-standing rule "in this state and in other
jurisdictions that if a property owner has performed substantial work and
incurred substantial liabilities in good faith reliance upon a permit issued by
the government, he acquires a vested right to complete construction in
accordance with the terms of the permit. [Citations.] Once a landowner has
secured a vested right the government may not, by virtue of a change in the
zoning laws, prohibit construction authorized by the permit upon which he
relied." [FN20]
FN20
Avco Community Developers, Inc. v. South Coast Regional Com., supra, 17
Cal.3d 785, 791.
The court concluded because the developer had not yet acquired a building
permit, and thus had not expended substantial efforts in reliance on such
permit, it had not acquired a vested right to complete the development
without first obtaining permission from the coastal commission. [FN21]
FN21
Avco Community Developers, Inc. v. South Coast Regional Com., supra, 17
Cal.3d 785, 791-799.
Similarly in the case at bar Arviv has not demonstrated requiring an EIR in any
way impinges on any claimed vested right. (5)(See fn. 22) The City has
not issued Arviv a building permit for the 14-house project on Leicester Drive.
[FN22] (4b) Arviv also has not secured a building permit for the two additional
houses on Woodstock Road. There is no argument to the contrary. The City did
issue Arviv building permits for the five initial houses on *1350
Woodstock Road. However, it did not do so in accordance with then existing
applicable law. Both CEQA and the Mulholland Scenic Parkway Specific Plan
existed at the time Arviv acquired permits to build the initial five houses.
Compliance with these existing laws was thus required notwithstanding the
City's failures and/or Arviv's misleading project descriptions which may have
prevented the City from appreciating the full scope of the proposed
development. In short, the Avco decision provides no support for Arviv's
argument.
FN22
In the alternative, Arviv argues the fact the City's planning department issued
a proposed MND for the 14 houses on Leicester Drive made environmental review
for this aspect of the project final and conclusive. (Citing, Pub. Resources
Code, § 21080.1, subd. (a) [absent an appeal, the lead agency's final EIR or
MND is conclusive, even as to the agency].) He thus claims the subsequent order
for an EIR regarding these particular lots was invalid and should be set aside.
To
accept Arviv's argument would render the public review period meaningless if an
agency's proposed action was final and conclusive on issuance, even absent
valid input from the public or even other interested agencies, such as the fire
department in this case regarding the turnaround area. In any event, the
proposed MND pertaining to these 14 houses was also
subject
to approval from the Mulholland Design Review Board. As noted, the Board
disapproved the project, citing the various environmental concerns raised by
the initial environmental study and checklist.
More
to the point, the matter was still pending before the City's planning director
for determination by the time of the November 2000 hearing before the
Commission, awaiting staff's reanalysis of environmental effects. At the
November 2000 hearing planning department staff member, Mr. Jack Sedwick,
informed the Commission the director was withholding adoption of the MND for
the 14 houses pending a reanalysis of the cumulative environmental effects of
the overall project. Of course, the Commission's order for an EIR covering all
21 lots precluded the planning director from taking any further action on the
Leicester project.
Thus
the record makes clear the proposed MND for the 14 houses on Leicester Drive
was neither final nor conclusive. Moreover, the City's planning director could
not have legally "adopted" the proposed MND in the face of
substantial evidence of environmental impacts in any event. As CEQA guidelines
make clear, an agency "shall adopt the proposed ... mitigated negative
declaration only if it finds on the basis of the whole record before it
(including the initial study and any comments received), that there is no
substantial evidence that the project will have a significant
effect
on the environment and that the ... mitigated negative declaration reflects the
lead agency's independent judgment and analysis." (Cal. Code Regs., tit.
14, § 15074, subd. (b).) In the present case the lead agency ultimately
concluded the mitigated negative declaration was inadequate and that the cumulative
environmental effects from the overall project warranted an EIR. In short,
Arviv's argument he had a final and conclusive environmental clearance on the
14 Leicester Drive lots lacks merit.
The decision in Hixon v. County of Los Angeles [FN23] is similarly
unavailing. In Hixon petitioners sought mandamus to compel the county to
obtain an EIR for a street-widening project which caused the actual and
threatened removal of roadside trees. By the time of the hearing on their
petition the county had already completed phase I of the street widening
project. It had removed approximately 1,874 mature trees and had already
replaced them with some 3,847 smaller trees. [FN24] The court agreed with the
county preparing an EIR for phase I of the project alone would be futile.
"The project is *1351 ended, the trees are cut down and the
subject is now moot insofar as resort to a planning or informational document,
which is what an EIR is." [FN25] On the other hand, the court noted an EIR
could be prepared for the second phase when planned, and "[a]t that time
the cumulative effect of both Phase II and Phase I can be considered in
compliance with [CEQA]." [FN26]
FN23
Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370 [113 Cal.Rptr.
433].
FN24
Hixon v. County of Los Angeles, supra, 38 Cal.App.3d 370, 377.
FN25
Hixon v. County of Los Angeles, supra, 38 Cal.App.3d 370, 378.
FN26
Hixon v. County of Los Angeles, supra, 38 Cal.App.3d 370, 379.
Unlike the situation in Hixon, the issues an EIR will address in the
case at bar are not moot. Although five of the houses are already built, these
structures are only part of all amenities required to make those houses
habitable. Unresolved issues specifically regarding those five houses include
ensuring adequate street width, an emergency vehicle turnaround area, sewer
system design, drainage, and other matters which demonstrate even the five-
house project is not yet complete. As in Hixon, an EIR can consider the
cumulative environmental impacts of the first five houses on Woodstock Road
together with the rest of Arviv's proposed project.
In short, Arviv has failed to demonstrate any part of his proposed project
should be immune from environmental scrutiny.
III. Arviv Had Adequate Notice the Commission Might
Require an EIR for the
Project as a Whole.
(6) Arviv claims he
was sandbagged into believing the hearings before the Commission would be
nothing more than a "pro forma" denial of the appeals. He claims he
thought the appeals only concerned design matters regarding the two- house project
and was thus utterly unprepared to respond to the public's and Commission's
environmental concerns. Arviv claims because of the City's consistent approvals
of his projects he "was lulled into a false sense of security that the
hearings would not involve environmental matters, much less significant
ones."
Given the circumstances of this case, it is understandable Arviv may have come
to expect City approvals. However, that is not the same as saying he had
inadequate notice an EIR might be required once the City realized his
construction plans included much more than the two-house, allegedly
categorically exempt, project. [FN27] *1352
FN27
Even the language on the application for an environmental exemption
makes
clear a preliminary clearance is nevertheless subject to review. The
application states: "The Applicant Certifies That He or She Understands
the Following: Completion of this form by an employee of the City constitutes only
a staff recommendation that an exemption from CEQA be granted. A Notice of
Exemption is only effective if, after public review and any required public
hearings, it is adopted by the City agency having final jurisdiction (including
any appeals) over the project application. If a CEQA exemption is found
inappropriate preparation of a Negative Declaration or Environmental Impact
Report will be required. If the Information Submitted by the Applicant Is
Incorrect or Incomplete Such Error or Omission Could Invalidate Any City
Actions on the Project, Including Ceqa Findings." (Italics added.)
The appeals raised not only design issues, but environmental ones as well,
including soil problems, grading problems, rock and mud slides and violations
of height limitations, among other things. Comment letters received in July
2000 pointed out numerous environmental impacts, pointed out the inadequacies
in the circulating MND for the 14 houses on Leicester, and recommended a full
EIR be prepared. At the hearing in July 2000, the primary focus was on
environmental issues regarding all of the proposed houses, and not only the
two-house project formally appealed. Instead of ruling on the matter, the
Commission chose to continue the hearing to include these newly raised issues.
Prior to the continued November hearing residents and homeowners associations
again challenged the MND's for the Woodstock Road and Leicester Drive houses.
Again, they requested an EIR to analyze the cumulative environmental effects
from the entire project.
The discussion at the July hearing plus the numerous comment letters and
responses placed Arviv fully on notice environmental review of his project
would also be the key issue at the continued November hearing. After the July
hearing Arviv had at minimum three months to prepare whatever responses or
evidence he thought appropriate to present at the hearing.
Nevertheless, Arviv likens his situation to the situation in Cohan v. City
of Thousand Oaks. [FN28] In Cohan the city council appealed a
commission's decision to itself, without authority to do so, and without
specifying reasons. Then at the public hearing council members subjected the
developers to "wide- ranging concerns in an impromptu fashion."
[FN29] The appellate court found the city's appeal to itself illegal under its
municipal code and further found the city's failure to issue findings or a
written resolution until the developers filed their petition for writ of
mandate violative of the developers' due process rights. "As real estate
developers, appellants took the risk that their proposed project may not be
approved or, if approved, may be severely conditioned. They may even incur the
risk of a seemingly unfair decision. However, they should not be subjected to
the blatant disregard of *1353 their due process rights. The
Council simply submitted to the roar of the crowd." [FN30]
FN28
Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547 [35 Cal.Rptr.2d
782].
FN29
Cohan v. City of Thousand Oaks, supra, 30 Cal.App.4th 547, 557.
FN30
Cohan v. City of Thousand Oaks, supra, 30 Cal.App.4th 547, 557, 561.
The present case bears no factual similarities to those found in Cohan.
As noted, the specific issues appealed concerned environmental as well as
design concerns. By the time of the November, and crucial, hearing Arviv was
fully apprised his entire project was under scrutiny for its potential
cumulative environmental impacts and thus would be the key, and likely only,
issue at the hearing. Arviv was also aware once interested parties learned of
the true scope of his intended development, they had consistently urged the
City as well as the Commission to require a full environmental review of the
entire project.
In short, Arviv's claimed lack of notice is not persuasive.
Disposition
The judgment is
affirmed. Each side to bear its own costs of appeal.
Woods, J., and Perluss, J., concurred. *1354
Cal.App.2.Dist.,2002.
ARVIV ENTERPRISES, INC., Plaintiff and Appellant, v. SOUTH VALLEY AREA PLANNING
COMMISSION et al., Defendants and Respondents.
