Posts Tagged ‘Responses to Comments’


In Los Angeles Conservancy v. City of West Hollywood (2017) ­___ Cal.App.5th.___, the Second Appellate District upheld the trial court’s denial of a petition for writ of mandate, finding that the EIR’s treatment of alternatives was sufficient and that the city adequately responded to comments.

In 2014, the city certified an EIR for a mixed–use development in the Melrose Triangle section of West Hollywood. The project was the product of city incentives to redevelop the area in order to create a unified site design with open space, pedestrian access, and an iconic “gateway” building to welcome visitors and promote economic development. The EIR concluded that a significant and unavoidable impact would result from the demolition of a building eligible for listing as a California historic resource.

One alternative would have preserved the building in its entirety, by reducing and redesigning the project. The preservation alternative was ultimately rejected as infeasible because it was inconsistent with project objectives, and would eliminate or disrupt the project’s critical design elements.

After circulating the draft EIR, the project’s architects developed a site design which incorporated the building’s façade and mandated this design as a condition of approval. Furthermore, a subsequent fire destroyed 25 percent of the building, but left the façade intact. The final EIR and conditions were approved in 2014. Petitioners immediately filed suit.

In the court below, petitioner argued that the EIR’s analysis of the preservation alternative was inadequate, the city did not respond to public comments, and that the city’s finding that the alternative was infeasible was not supported by substantial evidence. The respondents prevailed on all claims and petitioner appealed.

Finding for respondents, the court reiterated the Laurel Heights standard that an analysis of alternatives does not require perfection, only that the EIR provide sufficient information to support a reasonable range of alternatives. The court rejected petitioner’s contention that the EIR was required to include a conceptual drawing of the preservation alternative. Furthermore, the EIR’s statement that preservation of the building would preclude construction of other parts of the project was self-explanatory and did not require additional analysis. The EIR’s use of estimates to calculate how the preservation alternative would reduce the project’s footprint did not create ambiguities that would confuse the public. Such imprecision is simply inherent in the use of estimates.

The court also found that the city’s responses to the three comments cited by the petitioner were made in good faith and demonstrated reasoned analysis.  The court reiterated that a response is not insufficient when it cross-references relevant sections of the draft EIR, and that the level of detail required in a response can vary. Here, the West Hollywood Preservation Alliance and the President of the Art Deco Society of Los Angeles opined in comments that the building could be preserved while achieving the project’s objectives. The city adequately responded to these comments by referencing, and expanding upon, the EIR’s analysis of the preservation alternative, where this option was considered. The last comment was of a general nature, so the city’s brief, general response was appropriate.

Finally, the court found sufficient evidence to support the city’s finding that the preservation alternative was infeasible. An alternative is infeasible when it cannot meet project objectives or when policy considerations render it impractical or undesirable. An agency’s determination of infeasibility is presumed correct and entitled to deference, if supported by substantial evidence in the record. The court found that the city’s conclusion that the alternative is infeasible was supported by substantial evidence in the record. Development plans, photographs, and testimony from senior planning staff support the city’s conclusion that retaining the building and reducing the project would not fulfill the project objectives of creating a unified site design, promoting pedestrian uses, and encouraging regional economic development.  That another conclusion could have be reached did not render the city’s decision flawed.

A consistent theme underlying the court’s decision was the city’s clear goal of revitalizing the entire site, in order to create a functional and attractive gateway for West Hollywood. Critical to the project’s success was removing the specific building that the petitioner sought to preserve. The court appeared reluctant to overcome such a strong mandate by flyspecking the EIR’s analysis of this acknowledged significant impact.

The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603

The Sixth District Court of Appeal ruled that, in a project involving restoration and sale of an historic mansion, the city had a sufficient basis for rejecting as economically infeasible alternatives involving retaining ownership of the mansion. 

The Flanders Mansion is an historic, 1920s-era Tudor Revival residence.  The City of Carmel-by-the-Sea owns the mansion.  The site is surrounded by a 35-acre nature preserve, also owned by the city.  The city certified an EIR and approved the sale of the mansion in view of the substantial cost of implementing necessary repairs.  The Foundation sued.  The trial court granted the petition.  Both sides appealed.

First, the Foundation argued the EIR did not contain an adequate analysis of potential future uses of the mansion in light of the Surplus Lands Act.  Under that statute, when a local agency wishes to dispose of surplus property, the agency must offer to sell or lease the property to other agencies for use as affordable housing or for park purposes before the property can be sold to a private party.  The EIR recognized the sale of the property would be subject to the act.  The Foundation argued, and the trial court agreed, that the EIR was deficient because it did not analyze the impacts of potential uses for the property authorized under the act.  That was so because an agency buying under the act would not be subject to mitigation measures or conservation easements adopted by the city when it approved the sale.  The Court of Appeal disagreed, holding that the city had authority to require, as conditions of sale, adherence to these measures and easements.  Moreover, the city did not have to analyze the impacts of using the mansion as affordable housing because the record supported the city’s conclusion that this use was not reasonably foreseeable in view of the high cost of rehabilitating the mansion and complying with adopted mitigation measures.

Second, during the CEQA process, a commenter asked the city to consider reducing the size of the parcel sold with the mansion.  The Court ruled the Final EIR’s response was inadequate.  Reducing the size of the parcel would also reduce one of the project’s significant and unavoidable impacts:  a reduction in public parkland.  The Final EIR had not provided a complete response to this proposal.

Third, the Foundation argued the city erred by failing to include an economic feasibility analysis in the EIR.  That analysis was prepared by a real-estate consultant to address the economic feasibility of the various alternatives analyzed in the EIR.  The Court ruled the city could rely on information in the record in making its feasibility determinations, regardless of whether that information appeared in the EIR itself.

Fourth, the EIR analyzed alternatives focusing on restoring and leasing the mansion for residential or non-residential use, or doing nothing (no project).  All these alternatives were environmentally superior to the proposed project.  The city rejected them, however, as economically infeasible, citing the consultant’s feasibility report.  The issue for the Court was whether this report constituted substantial evidence supporting the city’s decision.  The Court ruled that it did.  The report estimated that restoration would cost $1.4 million, and lease payments would not enable the city to recoup this cost for many years.  Selling the mansion would recover these costs, however, because the appraised value of the restored mansion was estimated at $4 million.  Doing nothing meant the city would incur ongoing maintenance costs, with no revenue to cover them.  Under such circumstances, the city acted within its discretion in rejecting these alternatives.

Finally, the Court ruled that substantial evidence supported the city’s adopted statement of overriding considerations.  The city acted within its discretion in deciding to sell the mansion, subject to mitigation measures and easements requiring its sensitive restoration.  Although the city could have retained ownership of the restored the building (alternatives the city rejected as infeasible), that did not mean the city could not cite restoration in its list of project benefits, even if the city intended to sell the restored mansion.

The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (2012) 202 Cal.App.4th 603

On January 4, 2012, the Sixth District Court of Appeal held that the City of Carmel-by-the-Sea did not violate CEQA by failing to analyze in its EIR all potential uses of a property that was to be sold under the Surplus Lands Act (the Act), even though the uses were specifically mentioned in the Act. Read the rest of this entry »