EIR Found Inadequate Under CEQA Because of Conceptual Project Description

Environmental/Land Use Alert (September 18, 2019)

On July 31, 2019, the California Court of Appeal for the Second Appellate District decided stopthemillenniumhollywood.com v. City of Los Angeles (2019), Case No. B282319, in which it determined that an environmental impact report (EIR) failed to comply with the California Environmental Quality Act (CEQA) because it lacked a stable and finite project description.

In 2008, Millennium submitted a permit application for a mixed-use development project in the area surrounding the historic Capitol Records Building in Hollywood. The application specified the project would consist of 492 residential units, a 200-unit luxury hotel, 100,000 square feet of office space, a sports club and spa, more than 11,000 square feet of commercial uses, and 34,000 square feet of food and beverage uses. The application also included a detailed development plan describing the proposed high- and low-rise buildings. The City of Los Angeles informed Millennium that the proposed project violated the City’s allowed floor-area ratio and would require a variance. Millennium took no further action until 2011.

In 2011, Millennium submitted another permit application, again proposing a mixed-use development of essentially the same size as the 2008 proposed project. However, unlike the 2008 application, this application did not include a detailed description of the proposed buildings.

Similar to Millennium’s 2011 application, the project’s initial study stated the project would include 1,052,667 square feet of newly built floor area and the project would develop a mix of residential, hotel, office, and commercial uses. The initial study did not include drawings or any description of the number of buildings, their shape and size, their location, or their purposes. As described by Millennium’s lawyer, “the project description ‘is designed to create an impact “envelope” within which a range of development scenarios can occur.’”

Millennium then prepared its draft EIR. The draft EIR described a “conceptual plan . . . as an illustrative scenario to demonstrate a potential development program” (emphasis in original). This conceptual plan included three possible scenarios representing the maximum possible environmental impacts that could result from the project. The final EIR for the project contained the same project description set forth in the draft EIR.

Plaintiff, stopthemillenniumhollywood, challenged the EIR and filed a writ of mandate asking the trial court to direct the City to set aside its approval for the project because the project failed to provide an accurate, stable, and finite project description as required by CEQA. The trial court granted the petition, finding the project description “only provided a ‘blurred view of the project’” and thus was inconsistent with CEQA, which was “‘intended to provide the fullest information reasonably available on which the decision-makers and the public can rely in determining whether to start a project.’”

The trial court also distinguished Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, a decision which upheld approval of an EIR with a project description that included conceptual elements. Citizens for a Sustainable Treasure Island, unlike the project at issue in this case, involved a project site contaminated with hazardous materials, so the timing and nature of the development was unknown because cleanup of the project site had to be conducted before development could begin.

On review, the Court of Appeal affirmed the trial court’s finding that the project description was not accurate, stable, and finite and thus violated CEQA. The Court of Appeal explained, “an accurate, stable, and finite project description” is the “sine qua non of an informative and legally sufficient EIR.” The Court of Appeal also clarified the description was inadequate even though it analyzed the worst-case-scenario environmental effects because CEQA’s purpose “goes beyond an evaluation of theoretical environmental impacts.” Relatedly, an EIR that excludes pertinent information precludes informed public participation.

Overall, the Court of Appeal found the project’s conceptual plans failed to provide the public with any visual of the number of buildings that would be built or where the buildings would be located. Because the project description failed to describe the “siting, size, mass, or appearance of any building proposed to be built at the project site,” it was not accurate, stable, and finite.

[This case alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]