Wednesday, April 25, 2007

Culver City Land Sale to Developer Halted by Court

Culver City News, April 19, 2007

Chance to Regroup Over Land Sale is Applauded
By Gary Walker

to read more about the judge's ruling,

(April 19) A judicial finding earlier this month that the City Council had ignored its responsibility to conduct proper environmental review before selling the Warner Parking Lot last year to developer Frederick Smith brought a variety of reactions from residents and business owners of the Hayden Tract, along with state environmental organizations this week.

"I was very happy when I heard about [the court’s decision]," said Sadie Cerda, a long-time homeowner who lives on Schaefer Street.

Los Angeles Superior Court Judge David Yaffe ruled on April 6 that the council had violated the California Environmental Quality Act when it sold the Warner lot to Smith for approximately $5.5 million on March 27 last year without conducting proper environmental studies. Smith, a high profile, award-winning developer with several business holdings in the Hayden Tract, has had designs on the lot for several years. He hopes to build a massive multi-use, state-of-the art theater complex on the site of the parking lot.

Then-Mayor Albert Vera, then-Vice Mayor Gary Silbiger and council members Alan Corlin and Carol Gross voted for the sale. Council member Steve Rose was adamantly opposed.

Yaffe found that the proposed development was indeed a project, despite the city’s claims to the contrary. "There is a nexus between the [proposed] development and this property," the judge announced to attorneys representing Smith, Culver City and 8461Warner Drive, the petitioner in the lawsuit. He then asked James Repking, the attorney for 8461 Warner, to submit a writ in judgment requesting what his client would like the eventual outcome to be. Yaffe invited the other parties’ lawyers to submit their respective objections to the petitioner’s requests.

The court will render a ruling in the next few weeks on what solutions it will impose on the city for its attempt to evade environmental scrutiny. Yaffe will consider the options of ordering Culver City to conduct proper CEQA review or nullifying the sale in its entirety. Repking, an associate at Cox, Castle & Nicholson in Century City, said after the hearing that he would ask the court to invalidate the sale.

Because the council circumvented CEQA regulations, "Any approvals that they have made on the project have to be corrected...or the sale should be nullified," said Rex Frankel, director of the Ballona Ecosystem Education Project, an environmental activist group.

Al Luber, the proprietor of Santa Monica Gymnasium, learned of the court’s decision from a relative. "To me, it looked like [the city council] were trying to avoid CEQA," he said. "My feeling was that they seemed a little bit arrogant [during the council meeting last year when the lot was sold]. It seemed like they had their minds made up."

Jeffery Palmer, who owns several properties in the business district, did not follow the sale of the lot and the ensuing litigation as much as other Hayden Tract merchants did. "Other property owners informed me about [the sale of the lot to Smith]," he said this week during a telephone interview. Palmer, whose buildings have private parking for clients, nevertheless realizes what losing the Warner lot would mean to many of the business people in the Hayden Tract. "A number of them are dependent on the lot for parking, and without it, parking could be a problem," he said.

Luber said that he and other Hayden Tract merchants recently received notice that Smith will soon raise the parking fees at the Warner lot. The parking area at one time was frequently utilized to almost maximum capacity, but "now its seems like it’s half-empty most of the time," he noted.

Yaffe, a CEQA jurist, underscored the local government’s failure to conduct any hearings for interested parties on the project prior to Smith’s purchase of the lot in his remarks during and after the hearing. "[Culver City] concedes that the development for which its purchaser is buying the property, will potentially have a significant effect upon the environment, but its public officials do not wish to permit the public participation required by CEQA to the developer," the judge wrote in his judicial order. "Such desire on the part of the public officials of the city of Culver City is not consistent with the basic purpose of CEQA."

"CEQA is all about revealing the impact of a development to the politicians and to the public," said Frankel. "It should always be an open process."

Former Community Development Director Susan Evans was the first city official to claim that no development existed when the council deliberated selling the parking lot at a March council meeting last year. "The action before the city council tonight does not constitute consideration of project. A project is not before the council tonight. It is a straight land sale...It doesn’t have anything to do with redeveloping this property," she repeatedly told the council.

Shortly thereafter, Murray Kane, a veteran redevelopment and real estate lawyer who advises Culver City on land use matters, said that the city’s legislative body could legally allow Smith to purchase the property without CEQA review. "The state legislature has given authority for the establishment of guidelines creating categorical exemptions to compliance with environmental review," the attorney assured the council. Because selling the parking lot amounted to a "sale of surplus city land," the council had "broad discretion to dispose of city property for the benefit of the community," Kane claimed.

Donald Johnson, an attorney representing Culver City, argued at the CEQA hearing before Yaffe that the city sold Smith the lot as a "straight land sale," without any knowledge or expectation that the developer would seek to construct a development at the site. "It’s a plain old generic purchase and sale agreement," the lawyer argued. Johnson is a senior counsel at Kane, Ballmer and Berkman, where Kane is a partner.

"Any time that a government agency makes a decision in secret that benefits a private developer and not the public, that is a serious violation of CEQA," charged Frankel, whose organization contested parts of the Playa Vista development and takes credit for scaling back the condominium project.

CEQA is the landmark state law that functions as a system of checks and balances for land use development and management decisions in California. Enacted in 1970, it is more stringent than environmental laws in most other states, often extending beyond federal statutes established under the National Environmental Policy Act (NEPA).

Some of the most basic tenets of the environmental statute are to:

(1) Inform governmental decision-makers and the public about the potential, significant environmental effects of proposed activities.

(2) Identify the ways that environmental damage can be avoided or significantly reduced.

(3) Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible.

(4) Disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved.

"CEQA is the equivalent of an environmental California Bill of Rights," says Rico Mastrodonato, the director of the Northern California branch of the state League of Conservation Voters. "It ensures that public participation is into taken account when a project can have an impact on the health of a neighborhood.

"Without CEQA, the only thing that’s taken into account are the economic decisions of a project," Mastrodonato continued. "That’s why CEQA is absolutely essential in helping an agency make responsible land use decisions. It’s really not rocket science."

Increased traffic congestion has surfaced as one of the most important concerns for residents of Rancho Higuera and other east Culver City neighborhoods who fear that will be one of the legacies of the proposed entertainment complex. Automobile accidents over a four-year period, including a fatality that claimed the life of a young teacher at the Turning Point School, have left homeowners like Cerda anxious about development that will exacerbate an already hazardous situation in the neighborhood. "There’s already more traffic than before on our residential streets, and people are always speeding down National Boulevard," she said. "It’s mind-boggling to think that [the city] would allow such a large project here, with other developments on the way and the [Mid-Cities Exposition light rail] coming to National.

"We were never notified about the project or the parking lot sale, so our feelings were never considered," Cerda added.

Mastrodonato’s organization is sensitive to homeowners like Cerda’s concerns. "One of the major tenets of CEQA is ensuring that the public have an opportunity to have input on a development that has the potential to affect their neighborhood," the director reiterated.

While he realizes that environmental review must take place when it is mandated, Palmer thinks that a project like the Conjunctive Points Theater Complex – the name that Smith has chosen for his proposed development – could be a plus for the commercial district. "It’s possible that it could be very beneficial to the Hayden Tract," he believes. "It could bring more tax revenues and greater economic vitality to the area."

And potentially more cars, density and air pollution, say residents who live near the planned development. Over the last several months, planning and traffic engineers from other Westside cities were queried about significant aspects of the sale and how their cities approach projects that will impact on nearby businesses and residences. "In Beverly Hills, I don’t think that our city council would accept a project of that size without an EIR," Bijan Vaziri, chief traffic engineer in Beverly Hills, told the News last October.

"We try to look at the scope, the nature and the size of a project when planning a traffic study," Beth Rolandson, Santa Monica’s senior transportation engineer said in reference to how her city anticipates added automobile congestion brought about by a new development.

Both Mastrodonato and Frankel emphasized that governmental agencies are mandated to notify and encourage affected residents, businesses and interested groups to participate in public hearings prior to the approval of a project, and many Southland cities take public participation when planning new development projects very seriously. "In Santa Monica, there have been instances where the council has directed our staff to go back and address mitigation issues if the community feels that their concerns have not been adequately addressed before they approve a project," Rolandson noted.

While he is a strong believer in the groundbreaking environmental state law, Mastrodonato feels that there may be some areas where CEQA can be slightly altered. "I think that it’s reasonable to say that CEQA guidelines can be reviewed and possibly streamlined," he said, citing the complaints of developers and some agencies that environmental review can sometimes be very lengthy and can cause delays in building new developments. "But while there are reasonable arguments that can be made, there is no question that CEQA is an absolutely necessary tool for smart [city] planning."

Frankel concurs. "Compliance with CEQA is a sacred part of the development process," he said. "Any attempt to thwart public participation is a very serious violation of CEQA, and can have very serious consequences."