Stopthemillenniumhollywood.com v. City of Los Angeles

Filed 7/31/19; Certified for Publication 8/22/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
STOPTHEMILLENNIUMHOLLYWOOD B282319
.COM et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BS144606)
v.
CITY OF LOS ANGELES et al.,
Defendants and Appellants;
MILLENNIUM HOLLYWOOD LLC,
Real Party in Interest and
Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. James C. Chalfant, Judge. Affirmed.
The Silverstein Law Firm, Robert P. Silverstein for
Plaintiffs and Appellants.
Kenneth Tom Fong, Office of the City Attorney for the
Defendants and Appellants.
The Sohagi Law Group and Robert Tyson Sohagi for
California State Association of Counties, as Amici Curiae on
behalf of Defendants and Appellants.
Remy Thomas Manley, Whitman Fortescue Manley and
Sara Fox Dudley for League of California Cities, as Amici Curiae
on behalf of Defendants and Appellants.
Cox, Castle & Nicholson, Michael Zischke, Alexander M.
DeGood and Andrew Sabey for Real Party in Interest and
Appellant.
_________________________
INTRODUCTION
In this appeal, Millennium Hollywood LLC (Millennium),
the City of Los Angeles and Los Angeles City Council (City)
(collectively appellants) challenge the trial court’s ruling that the
proposed development of a four-and-a-half-acre parcel straddling
Vine Street in Hollywood, California (the project) failed to comply
with the requirements of the California Environmental Quality
Act (CEQA). (Pub. Resources Code, § 21000 et seq.)
Specifically, appellants challenge four aspects of that
decision. First, they argue that the trial court’s finding that the
project description in the environmental impact report (EIR)
failed to comply with CEQA’s requirement for a stable and finite
project description is incorrect as a matter of law. Appellants
contend that this ruling conflicts with other cases allowing a
flexible, general project description.
Second, appellants challenge the trial court’s conclusion
that the EIR’s transportation impact analysis was fatally flawed
because it failed to use the methodology directed by Caltrans, a
responsible agency on this aspect of the EIR. Appellants assert
that the City was within its sound discretion to use a
2
methodology that did not consider the traffic impacts of the
project on the 101 Freeway, located blocks away from the
proposed development.
Third, appellants challenge the trial court’s finding that the
traffic impact analysis was unsupported by substantial evidence
because it failed to consider the cumulative effects of existing
developments and growth in Hollywood, and the NBC/Universal
development project, located three miles from the site on the
other side of the 101 Freeway.
Finally, appellants argue that the trial court erroneously
concluded that the qualified condition of approval (Q Condition
No. 1) impermissibly expanded the scope of the project well
beyond the scope of the EIR’s analysis. (See Los Angeles Mun.
Code (LAMC), § 12.32, subd. (G)(2).) Appellants argue that the
various land use approvals “unambiguously” limit any project
uses to those that are entirely consistent with the EIR.1
1 Two organizations submitted amicus curiae briefs in
support of appellants: League of California Cities (League of
Cities) and the California State Association of Counties (State
Association of Counties). The State Association of Counties’ brief
is directed to that portion of the trial court’s decision regarding
Caltrans’s role in the environmental review of the project. As we
do not reach those issues, we similarly will not reach the
argument furthered by the State Association of Counties.
As for the League of Cities, its arguments largely repeat
appellants’ contentions that the project description satisfies
CEQA’s requirements and thus we do not separately address
them. We deny the League of Cities’ request for judicial notice.
The materials sought to be noticed are not relevant to the legal
determination of whether the project description utilized in this
3
Stopthemillenniumhollywood.com, Communities United for
Reasonable Development, and George Abrahams (collectively
Stopthemillennium) cross-appeal from that portion of the trial
court’s decision regarding the draft EIR’s disclosure of seismic
impacts of the development. Specifically, the trial judge found
that the draft EIR adequately disclosed and analyzed the then-
known facts regarding faults and their proximity to the
Millennium development site. Stopthemillennium appeals that
ruling, arguing that the trial court erred in finding that the draft
EIR performed its required legal obligation to inform the public
about seismic conditions at the development site.
We find that the trial court did not err in concluding that
the project description used by the City and Millennium failed to
comply with CEQA’s requirement of an accurate, stable and finite
project description. Thus, on this ground, we affirm. As the
project description is at the heart of the EIR process in this case,
it is not necessary to reach appellants’ and Stopthemillennium’s
other contentions.
BACKGROUND FACTS
The facts in this section are limited to the single basis upon
which this decision rests—the legal sufficiency of the description
of the project used in the EIR.2
case was sufficiently accurate, stable and finite to meet CEQA’s
requirements.
2 The City adopted the project description contained in the
draft EIR as the project description in the final EIR. Although at
oral argument an issue was raised as to whether the possibility of
the venue being used for outdoor concerts was added by a city
council person before final approval, the late inclusion of that use
was not challenged below. Appellants conceded at oral argument
4
The location of the proposed development at issue is a 4.47-
acre site straddling Vine Street, south of Yucca Street, and north
of Hollywood Boulevard. The site surrounds the historic Capitol
Records Building in Hollywood.
A. The 2008 Proposal
On August 18, 2008, Millennium filed a master land use
permit application with the City’s planning department. The
2008 project was described as a mixed-use development,
consisting of approximately 492 residential units, a 200-unit
luxury hotel, 100,000 square feet of office space, a 35,000-square-
foot sports club and spa, more than 11,000 square feet of
commercial uses, and 34,000 square feet of food and beverage
uses. The historic Capital Records Tower and Gogerty Building
would be preserved and maintained as an office and music
recording facility.
As an attachment to the application, Millennium described
what it proposed to build and the purposes for which the
buildings would be used. The 2008 project was to have three
separate towers arising out of two low-rise buildings situated on
the east and west sides of Vine Street. The new construction
would “frame” the Capitol Records Tower, incorporating
extensive and inviting open spaces and terraces located on the
multi-tiered low rise buildings. In addition, Millennium proposed
a high-rise observation deck at the top of the tallest tower in the
2008 project. In that application, Millennium requested a zone
change to permit a sports club, and a variance to allow greater
development density than was allowed under existing plans.
that the project description used in the draft EIR is the same
project description that was used for the final EIR.
5
The 2008 project application specifically described what
Millennium proposed to build. On the lot situated east of Vine
(East Site), the new construction was to consist of a 12-story low-
rise building, partially wrapped around seven stories of above-
grade parking, on top of five stories of subterranean parking.
The East Site buildings would integrate two ground floors and a
33-story residential tower that would rise out of the low-rise
building to approximately 554 feet above street level, “creating a
45-story, 578,574 square foot structure that [would] be 584 feet
above ground” at the highest point of the building.
On the lot situated west of Vine (West Site), Millennium
proposed to build a four-story, two-tiered low-rise structure,
comprised of a sports club with a spa as well as a hotel lobby.
That low-rise structure would support two towers with four
subterranean levels of parking, creating a 470,201 square-foot
building. The two ground floors would be integrated at the
mezzanine level. The larger tower, offset at an angle, would be
approximately 482 feet above street level at the roof of the
highest habitable floor, or 511 feet at the top of the roof-top
parapet. The larger tower would have 34 stories of residential
uses. The smaller second tower, also situated at an offset angle
and located at the corner of Yucca and Ivar Streets, would be a
200-room luxury hotel, creating a 14-story structure that would
be 218 feet above street level at the top of the roof. The
residential tower would include 175 condominium units. In total,
the completed project would be 1,163,079 square feet of floor
area.
Detail was not omitted from the 2008 application.
Millennium described the pedestrian plazas with “post card
views” of the Capitol Tower, outdoor dining areas, lounge seating,
6
a sun deck and a pool for the hotel. The entryway on Argyle
Avenue “would be accented by an additional water feature and
decorative ornamental planting.” Detailed site plans, locations,
and elevations for the buildings, architectural renderings of the
buildings themselves, and the related features of the
development were included.
Thereafter, the City Department of Building and Safety
informed the developer that the proposed project’s enclosed
balconies would exceed the 6:1 floor area ratio (FAR) allowable
under the City’s general plan and would, therefore, require a
variance. Millennium took no further action on the project until
2011.
B. The 2011 Proposal
Millennium submitted another master land use permit
application to the City’s planning department in April 2011. The
2011 proposal shared similarities with the 2008 proposal. The
total project size was largely the same, and the proposed mixed-
use nature of the development was preserved. Parking garages
were described as both subterranean and above-grade. Proposed
uses for the buildings were described (such as residential uses,
hotel and commercial uses), but this application noted that “[t]he
Project may alter the types or amounts of the uses from those
listed above in compliance with the Land Use Equivalency
Program and Development Standards.” Missing from this
application was any description or detail regarding what
Millennium intended to build.3
3 And, as noted in the final EIR, any approved project under
this application and CEQA process would have to comply with
what was studied in the draft EIR, not what the 2008 application
describes.
7
This lack of detail about the proposed project and what it
would look like and for what uses it would be built continued
throughout the environmental review process. As described by
Millennium’s lawyer, “the [2011 project] is presented as a concept
plan and several land use scenarios.” The concept plan identified
various components, including residential units, hotel, office,
commercial, food and beverage, fitness center, and parking uses.
The project description “is designed to create an impact ‘envelope’
within which a range of development scenarios can occur.”
In its initial study, the City described the project to include
the construction of 1,052,667 square feet of newly built floor area.
The Capitol Records Tower and the Gogerty Building, which are
within the project site, would be preserved and maintained as
office and music recording facilities. The maximum floor area
(existing buildings plus new construction) would total 1,166,970
square feet, with a 6:1 FAR averaged across the project.
Although not specifically identified, quantified or located
within the building sites, “[t]he [p]roject would develop a mix of
land uses, including residential dwelling units, luxury hotel
rooms, office and associated uses, restaurant space, health and
fitness club uses and retail establishments.”
And, a development agreement for the project would have a
25-year term and embody the project’s pre-defined limits
“regarding developable floor area, permitted land uses, design
guidelines, and site-specific development standards,” which
would “control the scale and massing of the Project.” The initial
study did not include any drawings or renderings of what
Millennium proposed to build, the number of buildings, their
shape and size, their location within the building sites, or the
purposes to which they would be put. The only stable and finite
8
description of buildings at the site was the size, location, and
purposes of the existing Capitol Records Tower and Gogerty
Building.
The initial study incorporated a land use equivalency
program (LUEP) as part of the project description. Under the
LUEP, Millennium could transfer floor area among parcels
within the project. These adjustments “could result in several
potential development scenarios.” These potential scenarios and
combination of land uses “would occur within the development
thresholds contemplated in the Development Agreement
including the not-to-exceed FAR.” Thus, the initial study failed
to describe a stable or finite commitment regarding the uses to be
made of the undisclosed and undescribed constructed buildings.
C. The Draft EIR
The City described the project in the draft EIR. In section
II of the appendices of the “Millennium Hollywood Project
Development Regulations: Guidelines and Standards,” the
project is described as a “mixed use development” that spans the
north half of two blocks on either side of Vine Street between
Hollywood Boulevard and Yucca Streets.
As for specifics, however, the draft EIR contained very few.
Instead, “[t]he Project would implement a Development
Agreement . . . that would vest the Project’s entitlements,
established detailed and flexible development parameters for the
Project Site and ensure that the Project is completed consistent
with [these parameters].” (Italics added.) “Implementation of a
proposed Development Agreement also would grant flexibility
regarding the final arrangement and density of specific land uses,
siting, and massing characteristics subject to detailed
development controls.” Development regulations would be
9
adopted in conjunction with the proposed development agreement
which would prevail over any inconsistent land use regulations in
the LAMC.4
As expressly noted in the draft EIR, because “flexibility is
contemplated in the Development Agreement with regard to
particular land uses, siting, and massing characteristics, a
conceptual plan has been prepared as an illustrative scenario to
demonstrate a potential development program that implements
the Development Agreement land use and development
4 The project site was zoned C4-2D-SN, which is commercial
with limitations and multi-family residential uses within Height
District 2. Millennium requested uses permitted in the land use
equivalency program or as permitted in the C2 zone, as defined in
section 12.16.A of the LAMC in Q Condition No. 1. Although
Millennium asserts that Q Condition No. 1 was added solely to
allow it to include a health and fitness center in the project, the
plain language of the condition does not include such limitation.
Q Condition No. 1 reads, in full: “The use of the subject property
shall be limited to those uses permitted in the Land Use
Equivalency Program, attached as Exhibit D or as permitted in
the C2 Zone as defined in Section 12.16.A of the L.A.M.C.”
(Italics added.) While it may be that future developers elect not
to construe this provision by its literal terms, it is the plain
meaning that governs the interpretation. At oral argument,
Millennium argued that the remaining conditions (such as Q
Condition No. 2, which incorporates the development regulations)
made it obvious that the language in Q Condition No. 1 was only
to allow a fitness center to be incorporated in the project. A
review of the development regulations, however, fails to support
that argument. Nothing in these regulations mandates the
construction of a fitness center. In fact, the development
regulations state that “[t]he Project Site is zoned Commercial
(C2).”
10
standards (the Concept Plan).” (Italics added.) Thus, this
concept plan was simply one “scenario” that might result from
the approval of the development agreement. Two other possible
scenarios were also identified in the draft EIR: the residential
scenario and commercial scenario. All three scenarios were
included in the draft EIR as “representative development
scenarios, in order to help establish the maximum environmental
impacts” to be studied under CEQA. The draft EIR explained as
follows:
“Through the analysis of the Concept Plan and two
additional scenarios, the Commercial Scenario and the
Residential Scenario . . . this Draft EIR analyzes the greatest
possible impact on each environmental issue area. The most
intense impacts from each scenario represent the greatest
environmental impacts permitted for any development scenario
for the Project. The Project may not exceed any of the maximum
impacts identified for each issue area from either the Concept
Plan, the Residential Scenario, or the Commercial Scenario.”
The scenarios presented in the draft EIR, therefore, are
only possible development schemes, any of which could
implement the development agreement and land use and
development standards. The concept plan “provides an
illustrative assemblage of land uses and developed floor area that
conforms to the terms of the Development Agreement.” A
potential configuration of the various buildings, and their
location on the two lots, are provided. And “proposed net
developed floor area” shared by the potential uses is enumerated.
The residential scenario increased the number of dwelling
units, eliminated the hotel, did not increase office space beyond
that already provided by the Capitol Records Tower and Gogerty
11
Building, and provided retail, restaurant and a sports and fitness
club. The commercial scenario proposed a development that
increased office space and hotel space at the expense of dwelling
units.
As for scale and massing of the proposed development, the
development regulations established height zones (A, B, C and D)
and maximum floor plates for the towers. Within these zones, a
building or buildings to a maximum height could be constructed.
In addition, “the Project will occur within a pre-determined
massing envelope.” Maximum tower lot coverage, minimum floor
area below certain heights, maximum floor tower plates,
minimum setbacks and minimum public open space were set out.
Certain rules for towers were provided. Grade level standards
were also imposed to regulate street wall massing, entrances, and
store fronts.
Using these parameters, “conceptual architectural
renderings” of a potential project were provided. The draft EIR
expressly noted, however, that “these conceptual scale and
massing renderings are not building designs and are being
presented for purposes of depicting potential massing options
that could be developed under the Development Regulations and
Equivalency Program; other massing options are possible, but
would not be more impactful than the option analyzed herein.”
(Italics added.)
Thus, other than being assured that ten viewpoints would
be preserved, the public had no idea how many buildings or
towers would be built and where they would be located on the
project site. Instead, the public had only conceptual drawings of
a development that might not be built.
12
D. Final EIR; City Council Approval
The final EIR was published in February 2013. It included,
without modification, the project description set forth in the draft
EIR.5 The final EIR included criticisms received after issuance of
the draft EIR from members of the public—many of whom
complained that the draft EIR’s project description made it
impossible for them to participate meaningfully in the CEQA
process. One commenter complained that the draft EIR lacked
an accurate, stable, and consistent project description: “The
[draft] EIR’s equivalency program would allow virtually any type
of development to be built, irrespective of what the [draft] EIR
renderings and vague development regulations might indicate.”
Without greater specificity about the project, the public would be
unable to “meaningfully participate in the approval process for
the Project.” This commenter complained that based on the draft
EIR, the public had no idea “what types of uses will ultimately be
built, where on the site they will be, what their general design
will be, and what the ultimate environmental impacts will be.”
Notably, the draft EIR failed to disclose and analyze basic
things—like “project driveways and ingress and egress from the
Project’s . . . Vine Street driveways (assuming there will be Vine
driveways)”—making it impossible to assess the project’s impact
on traffic circulation in one of Hollywood’s “most congested
areas.” In short, this commenter observed, “we have no idea
what will be built, except that it will likely be massive.” The
5 Once a draft EIR is prepared, the public is provided notice
and an opportunity to comment. (Pub. Resources Code, § 21092.)
These comments and responses, if any, are subsequently
published in a final EIR. (Cal. Code Regs., tit. 14,
§§ 15088―15089, 15204, subd. (a).)
13
commenter further objected that the draft EIR was misleading
because the concept plan “gives the public the impression that
something approaching that plan will be built even though the
Development Agreement allows different parts of the Project site
to be sold to different developers who may choose to build
something that bears no real resemblance to the Concept Plan.”
Further, the commenter observed, the “Development Agreement
also provides that no subsequent approvals/environmental review
would be required for any subsequent build-out of the Project.”
The commenter warned that the draft EIR’s “enigmatic project
description has the effect of cutting the public out of some of the
more important questions about the Project. And it certainly
cannot provide the City Council with enough information to
support a Statement of Overriding Considerations.”
Another citizen complained that it was “difficult to respond
to a project that does not include a specific proposal.” And,
another complained that the project description “is unclear and
seems intentionally nebulous.” Despite these objections, the City
made no modifications to the project description in the final EIR.
On July 23, 2013, the Los Angeles City Council gave final
approval of Millennium’s project.
E. Mandamus Petition
On August 28, 2013, Stopthemillenniumhollywood and
Beachwood Canyon Neighborhood Association filed a petition
asking for a peremptory writ of mandate directing the City to set
aside the approval of the project and certification of the EIR. An
amended petition was filed on September 5, 2014.
14
The first amended petition alleged three causes of action
for violations of CEQA.6 The first cause of action alleged, inter
alia, that the City had prejudicially abused its discretion by
failing to provide an accurate, stable, and finite project
description. The second cause of action alleged, inter alia, that
the City had prejudicially abused its discretion by declining to
study the traffic impacts of the proposed Millennium project on
the 101 Freeway, despite Caltrans’s direction that it do so. The
third cause of action alleged, inter alia, that the City had failed to
notice and consult with the California Geological Survey
regarding potential seismic hazards at the project site.
F. Trial Court’s Order
On April 30, 2015, the trial court granted the petition for
writ of mandate as to the first and second causes of action, but
denied it as to the third cause of action. The trial court explained
as follows:
Quoting County of Inyo v. City of Los Angeles (1977) 71
Cal.App.3d 185 (County of Inyo), the trial court explained “ ‘[a]n
accurate, stable, and [consistent] project description is the sin[e]
qua non of an informative and legally sufficient EIR’ ” because a
shifting project description may confuse the public and public
decision-makers, thus vitiating the EIR’s usefulness as a vehicle
for intelligent public participation. Accordingly, a project
description “should be sufficiently detailed to provide a
foundation for a complete analysis of the environmental impacts,”
6 The first amended petition also contained non-CEQA
causes of action, but because they are not relevant to this appeal,
we do not discuss them.
15
and it should include all project components and “apprise the
parties of the true scope of the project.”
The trial court concluded that the project description in the
present case was neither stable nor finite. The court
characterized the final EIR as providing only a “blurred view of
the project,” noting that the LUEP, development regulations, and
Q Condition No. 1 approved an “envelope” of potential residential,
commercial, retail and office projects that would not have more
than a maximum design mass and height, and would create no
more than maximum levels of air pollution and traffic impacts. 7
Analyzing a “set of environmental impact limits,” instead of
analyzing the environmental impacts for a defined project, was
not consistent with CEQA. Quoting Burbank-Glendale-Pasadena
Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, the trial
court held CEQA demanded instead that “ ‘the defined project
and not some different project must be the EIR’s bona fide
subject.’ ” Indeed, the court noted an EIR that does not provide
decision-makers, and the public, with adequate information
about the project “fails as an informational document.”
Acknowledging that there may be times when a project
description setting forth only the project’s physical parameters
7 The trial court considered the use of the disjunctive “or” in
the project’s Q Condition of Approval No. 1 to give the developer
the ability to choose from any of the long list of land uses
expressly permitted in the C2 zone. Whether intended by the
City, the express language of that condition provided Millennium
even greater latitude to re-design and reconfigure the project.
The trial court found that this possibility was not subject to
environmental analysis and, therefore, the City’s approval of this
condition violated CEQA.
16
and maximum environmental impacts may be reasonable, the
trial court found those circumstances were not present in this
case. The court distinguished Citizens for a Sustainable Treasure
Island v. City and County of San Francisco (2014) 227
Cal.App.4th 1036 (Treasure Island), in which the island had been
contaminated by hazardous materials that required cleanup, and
the developer could not be sure when the island would be
available for development. In that unusual circumstance, the
Treasure Island court had concluded that a project description
that included both fixed elements (such as street layouts) and
conceptual elements (such as the shape of buildings or specific
landscape designs) was all that could be meaningfully provided at
present. Once additional project features were known, those
would “be likely subjects of supplemental review before a final
design was implemented.” The trial court concluded that the
unique circumstances present in Treasure Island were entirely
absent in the present case. The court noted that the Millennium
project site did not contain hazardous substances or other
external variables that made the nature and timing of
development unknown or unknowable, nor was there any
planned supplemental environmental review, any external
conditions creating uncertainty, or any reason the project
developer could not be specific about project details. Thus, the
trial court concluded: “While CEQA does not require a project to
be defined down to the last detail, Millennium’s uncertainty
about market conditions or the timing of its build-out is an
insufficient ground for the ambiguous and blurred Project
Description.”
Additionally, the trial court held that the conceptual
approach used to define the project in this case impermissibly
17
deferred a portion of the environmental impacts analysis. It
noted that without knowing which of the project “concepts” would
ultimately be built, the EIR could not (and did not) explain how
the developers would avoid exceeding the maximum impacts
when the project was finally designed and built. Moreover, the
LUEP allowed Millennium to transfer or change uses within the
project, and it allowed the planning director to approve a change
request if the request demonstrated that it was consistent with
the maximum allowable number of increased vehicle trips (trip
captures) and did not exceed the maximum environmental
impacts identified in the EIR. The trial court asked, “But how
will the Planning Director make that determination for changing
the Project and using what criteria?” It noted that since no
additional CEQA review was required to ensure that Millennium
was within maximum environmental standards, and no public
input would be allowed, the final EIR essentially “defers the
environmental assessment of the Project and ultimately fails to
ensure that the finally designated Project will not be approved
without all necessary mitigations of environmental harm.”
In finding the project definition impermissibly ambiguous,
the trial court returned to the underlying informational purposes
of CEQA. Citing National Resources Defense Council v. City of
Los Angeles (2002) 103 Cal.App.4th 268, the trial court held the
environmental review process mandated by CEQA 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.” When properly drafted, an EIR
furnishes both the road map and the environmental price tag for
the project so that the decision maker and the public both know
how much they and the environment will have to give up in order
18
to take that journey. In the present case, however, the
ambiguous project description rendered this “price tag”
unascertainable and deferred significant portions of the
environmental analysis. As a result, CEQA’s “informational and
substantive requirements were violated.” Accordingly, the court
vacated the EIR and the entitlements it purported to support. 8
Following a decision on non-writ causes of action, the trial
court entered judgment on March 17, 2017. Millennium, the
City, and Stopthemillennium timely appealed.
DISCUSSION
A. Standard of Review
A court’s inquiry in a CEQA case “ ‘shall extend only to
whether there was a prejudicial abuse of discretion. Abuse of
discretion is established if the agency has not proceeded in the
manner required by law or if the determination or decision is not
supported by substantial evidence.’ ” (Laurel Heights
Improvement Assn. v. Regents of University of California (1988)
47 Cal.3d 376, 392, quoting Pub. Resources Code, § 21168.5.)
In evaluating whether an agency has abused its discretion,
a reviewing court must adjust its scrutiny depending on whether
the claim is predominantly one of improper procedure or a
dispute over the facts. The court determines de novo whether the
agency has failed to proceed in the manner prescribed by CEQA,
but reviews for substantial evidence an agency’s resolution of a
factual dispute over whether “ ‘adverse effects have been
8 The trial court also heard and decided whether the City’s
analysis of the project’s traffic and seismic impact analysis met
the legal requirements of CEQA. These rulings will not be
considered here as we conclude that the project description used
in this case was legally insufficient.
19
mitigated or could be better mitigated.’ ” (Vineyard Area Citizens
for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40
Cal.4th 412, 435.)
Regarding the question of whether the EIR’s project
description complied with CEQA’s requirements, the standard of
review is de novo. (Washoe Meadows Community v. Department
of Parks & Recreation (2017) 17 Cal.App.5th 277, 286―287
(Washoe Meadows); see also Sierra Club v. County of Fresno
(2018) 6 Cal.5th 502, 513.)
B. Analysis
1. The Project Description Was Not “Accurate,
Stable and Finite” as Required Under CEQA.
A draft EIR must contain a project description. (Cal. Code
Regs., tit. 14, § 15124.)9 That project description must include
(a) the precise location and boundaries of the proposed project,
(b) a statement of the objectives sought by the proposed project,
(c) a general description of the project’s technical, economic and
environmental characteristics, and (d) a statement briefly
describing the intended use of the EIR. (Id., § 15124,
subds. (a)―(d).)
This description of the project is an indispensable element
of both a valid draft EIR and final EIR. (Washoe Meadows,
supra, 17 Cal.App.5th at p. 287, citing Western Placer Citizens for
an Agricultural & Rural Environment v. County of Placer (2006)
144 Cal.App.4th 890, 898.) That project description must be
9 The regulations implementing CEQA are codified at
California Code of Regulations, title 14, section 15000 et seq., and
are referred to as the State CEQA Guidelines (hereafter
Guidelines).
20
accurate, stable and finite. (County of Inyo, supra, 71 Cal.App.3d
at p. 193.)
County of Inyo was the first decision to articulate the need
for a definite and unambiguous project description as part of
CEQA’s environmental review process. In that case, the project
involved the extraction of subsurface water in the Owens Valley
by the City’s Department of Water and Power. (County of Inyo,
supra, 71 Cal.App.3d at p. 189.) Although the EIR initially
described the project as a proposed increase of 51 cubic square
feet of subsurface water, other portions of the EIR discussed
proposals far broader than the initially described project. (Id. at
p. 190.)
The County of Inyo court acknowledged that the EIR
adequately described the broader project’s environmental effects,
and thus the informative quality of the EIR’s environmental
forecasts were not affected by the “ill-conceived, initial project
description.” (County of Inyo, supra, 71 Cal.App.3d at p. 197
[“The elasticity of the project concept does not vitally affect the
‘impact’ sections of the report.”].) Nonetheless, the court
concluded that the “incessant shifts” among different project
descriptions “vitiate[d] the City’s EIR process as a vehicle for
“intelligent public participation,” because “[a] curtailed,
enigmatic or unstable project description draws a red herring
across the path of public input.” (Id. at pp. 197, 198.)
More recently, in Washoe Meadows, supra, 17 Cal.App.5th
277, the requirement in CEQA of a clear and unambiguous
project description was reiterated. In that case, the Department
of Parks and Recreation (the Department) proposed the “ ‘Upper
Truckee River Restoration and Golf Course Reconfiguration
Project.’ ” (Id. at pp. 282―283.) The draft EIR identified five
21
alternatives for the project without specifying a preferred
alternative. (Id. at 283.) Rather, the Department would select a
preferred alternative after “receipt and evaluation of public
comments.” (Ibid.) A discussion of that decision would be
included in the final EIR. (Ibid.)
The Court of Appeal found the open-ended and indefinite
project description utilized by the Department was legally
impermissible under CEQA. “Dispositive of this appeal is the
[draft] EIR’s failure to provide the public with an accurate, stable
and finite description of the project.” (Washoe Meadows, supra,
17 Cal.App.5th at p. 285.) The Department was able to provide
certainty; it had selected a preferred alternative as part of its
public scoping process for the project. (Id. at pp. 282―283.) But,
for some reason, it simply failed to describe a project at all.
“Instead, it presented five different alternatives for addressing
the Upper Truckee River’s contribution to the discharge of
sediment into Lake Tahoe, and indicated that following a period
for public comment, one of the alternatives, or a variation thereof,
would be selected as the project.” (Id. at p. 285.)
It did not matter to the Washoe Meadows court that the
draft EIR thoroughly analyzed the alternative that was
ultimately selected in the final EIR. “[T]he problem with an
agency’s failure to propose a stable project is not confined to ‘the
informative quality of the EIR’s environmental forecasts.’ ”
(Washoe Meadows, supra, 17 Cal.App.5th at p. 288.) Rather, a
failure to identify or select a project at all “impairs the public’s
right and ability to participate in the environmental review
process.” (Ibid.)
The requirement of an accurate, stable, and finite project
description as the sine qua non of an informative and legally
22
sufficient EIR has been reiterated in a number of cases since
County of Inyo. (See, e.g., Treasure Island, supra, 227
Cal.App.4th at p. 1052 [“This court is among the many which
have recognized that a project description that gives conflicting
signals to decision makers and the public about the nature and
scope of the project is fundamentally inadequate and
misleading”]; Communities for a Better Environment v. City of
Richmond (2010) 184 Cal.App.4th 70, 85―89 [EIR failed as an
informal document because the project description was
inconsistent and obscure as to the true purpose and scope of the
project]; San Joaquin Raptor Rescue Center v. County of Merced
(2007) 149 Cal.App.4th 645, 653 [an EIR must include detail
sufficient to enable those who did not participate in its
preparation to understand and to consider meaningfully the
issues raised by the proposed project].)
In this case, the project description is not simply
inconsistent, it fails to describe the siting, size, mass, or
appearance of any building proposed to be built at the project
site. The draft EIR does not describe a building development
project at all. Rather, it presents different conceptual scenarios
that Millennium or future developers may follow for the
development of this site. These concepts and development
scenarios—none of which may ultimately be constructed—do not
meet the requirement of a stable or finite proposed project.
The development regulations that were incorporated into
the project description provide the public and decision makers
little by way of actual information regarding the “design features”
or the “final development scenario.” Rather, these regulations
simply limit the range of construction choices for future
developers. And, even the limits imposed are vague and
23
ambiguous. While future developers are to create a mixed-use
development, eliminate the visual impact of current on-site
parking, establish, where feasible, pedestrian linkages to existing
public transit, and “provide designs that address, respect and
complement the existing context, including standards for ground-
level open space, podium heights and massing setbacks,” no
particular structure or structures are required to be built.
In support of their argument that the conceptual “impacts
envelope” of project alternatives employed in the EIR complies
with CEQA, appellants erroneously assert that so long as the
worse-case-scenario environmental effects have been assumed,
analyzed, and mitigated, and so long as no development takes
place that exceeds those mitigation measures, CEQA’s purpose
has been fully satisfied. That argument was made and roundly
rejected in County of Inyo, and Washoe Meadows. CEQA’s
purposes go beyond an evaluation of theoretical environmental
impacts. “If an EIR fails to include relevant information and
precludes informed decisionmaking and public participation, the
goals of CEQA are thwarted and a prejudicial abuse of discretion
has occurred.” (Save Our Peninsula Committee v. Monterey
County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 128.)
Nor does South of Market Community Action Network v.
City and County of San Francisco (2019) 33 Cal.App.5th 321(South of Market) suggest a different rule. In that case, the Court
of Appeal confirmed the proposition that an “ ‘accurate, stable
and finite project description is the sine qua non of an
informative and legally sufficient EIR.’ ” (Id. at p. 332, citing
County of Inyo, supra, 71 Cal.App.3d at p. 199.) “ ‘Only through
an accurate view of the project may affected outsiders and public
decision makers balance the proposal’s benefit against its
24
environmental costs, consider mitigation measures, assess the
advantage of terminating the proposal . . . and weigh other
alternatives in the balance.’ ” (South of Market, supra, 33
Cal.App.5th at p. 332.)
In South of Market, however, the project description was
neither “ ‘curtailed, enigmatic or unstable.’ ” (South of Market,
supra, 33 Cal.App.5th at pp. 327―328.) The draft EIR described
a mixed-use development that would preserve and rehabilitate
two existing buildings and construct four new buildings at the
project site. The only uncertainty challenged by the opponents of
the project was that the draft EIR did not commit to whether the
buildings would be used predominately as office space or
residential units. (Id. at p. 332.) “Plaintiffs do not dispute the
[draft] EIR’s project description met CEQA technical
requirements, and do not describe any information that was
required to be included in the project description but was not.”
(Ibid.) In fact, the draft EIR included “site plans, illustrative
massing, building elevations, cross-sections and representative
floor plans for both options.” (Id. at p. 333.) Thus, the project
description met the information required by the guidelines.
(Id. at p. 332 [requiring a general description of the project’s
technical, economic and environmental characteristics].)
In the present case, the project description fails to meet
this basic Guidelines requirement. The technical characteristics
of the construction project—such as was provided in South of
Market—were not provided here. The draft EIR did not contain
site plans, cross-sections, building elevations, or illustrative
massing to show what buildings would be built, where they would
be sited, what they would look like, and how many there would
be.
25
Moreover, as noted by the trial court, there were no
practical impediments as to why Millennium could not have
provided an accurate, stable, and finite description of what it
intended to build. Unlike the Treasure Island developer, there
were no contaminated sites on this property that interfered with
making any firm commitment as to whether development would
be possible and, if so, what type of development. (See Treasure
Island, supra, 227 Cal.App.4th at p. 1054 [given the soil,
groundwater and structural contamination on Treasure Island,
the EIR could not be faulted for not providing detail that “does
not now exist”].) In fact, in its earliest proposals regarding the
project, Millennium clearly described what it proposed to build on
its two parcels in Hollywood.
Nor, as in Treasure Island, would the Millennium
development’s future configuration be subject to “supplemental
review” before the “final Project design” is implemented. (See
Treasure Island, supra, 227 Cal.App.4th at p. 1054.) This lack of
further environmental review is another significant difference
between the circumstances presented in Treasure Island and
those present here.
2. The EIR’s Ambiguous Project Description
Prejudicially Impairs the Public’s Ability to
Participate in the CEQA Process.
The failure to comply with CEQA’s informational
requirements does not require reversal unless there is prejudice.
(Pub. Resources Code, § 21005, subd. (b).) Such prejudice is
found, however, if the failure to include relevant information
precludes informed decision making and informed public
comment. (Washoe Meadows, supra, 17 Cal.App.5th at p. 290.)
The omission of relevant information is deemed prejudicial
26
“ ‘regardless of whether a different outcome would have resulted
if the public agency had complied with those provisions.’ ” (Id. at
p. 290, citing Pub. Resources Code, § 21005, subd. (a); Rural
Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013,
1021.)
In this case, Millennium’s failure to present any concrete
project proposal, instead choosing concepts and “impact
envelopes” rather than an accurate, stable, and finite project, was
an obstacle to informed public participation, “even if we cannot
say such input would have changed the project ultimately
selected and approved.” (Washoe Meadows, supra, 17
Cal.App.5th at p. 290.) Accordingly, the trial court correctly
invalidated the EIR and granted the CEQA writ petition.
3. Need Not Reach the Remaining Arguments on
Appeal
The parties raise other issues regarding the EIR’s
sufficiency on appeal, including, inter alia, whether the City is
required by law to use Caltrans’s methodology for the study of
traffic effects, whether the City was required to consider
cumulative effects, including those on the 101 Freeway, in
evaluating the project under CEQA, and whether the seismic
issues were sufficiently disclosed. Given that the project
description is fatally defective and supports the trial court’s
decision to issue the writ, we need not reach these issues. “ ‘An
opinion sufficiently states “reasons” if it sets forth the “grounds”
or “principles” upon which the justices concur in the judgment.’ ”
(People v. Garcia (2002) 97 Cal.App.4th 847, 853, citing Lewis v.
Superior Court (1999) 19 Cal.4th 1232, 1262.) An appellate court
is not required to address every one of the parties’ respective
27
arguments or express every ground for rejecting every contention
advanced by every party.10 (People v. Garcia, at p. 853.)
10 Contrary to appellants’ contention at oral argument, Public
Resources Code section 21168.9 does not mandate that we rule on
every issue presented on appeal. Rather, that section provides
that the trial court’s order, upon remand, shall include only those
mandates that are necessary to achieve CEQA compliance. (City
of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th
398, 416.)
28
DISPOSITION
The judgment is affirmed. Stopthemillennium shall
recover their costs on appeal. The League of Cities’ request
for judicial notice is denied.
JONES, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
29
Filed 8/22/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
STOPTHEMILLENNIUMHOLLYWOOD B282319
.COM et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BS144606)
v. ORDER CERTIFYING
OPINION FOR
CITY OF LOS ANGELES et al., PUBLICATION [NO CHANGE
IN JUDGMENT]
Defendants and Appellants;
MILLENNIUM HOLLYWOOD LLC,
Real Party in Interest and
Appellant.
THE COURT:
The opinion in the above entitled matter filed on July 31,
2019, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
1
____________________________________________________________
EDMON, P. J. JONES, A.* LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2