Judge: HCP Resolution City adopted was “demonstrably arbitrary, capricious and without basis in law”

On June 20, 2014 Fix The City, Save Hollywood, La Mirada, HELP and Attorneys for the City of Los Angeles once again stepped into Judge Allan Goodman’s Superior Court to deal with the now-defunct Hollywood Community Plan update.  More specifically, FTC and its fellow community groups were there to challenge what the City did in response to being ordered by the Court to scrap the flawed plan.

In February of this year the City was been soundly defeated by the above coalition of community groups  when Judge Goodman ordered the City to rescind its new Hollywood Community Plan.

The City did rescind the new plan and reenact the old plan.  However, in the guise of complying with the Judge’s order, the City voted on April 2nd, 2014 to modify the General Plan Framework to make community plan monitoring and reporting discretionary.   The City Council even went so far in the Resolution they adopted to deal with the stern admonition from the Court to state that the intent of their action was  to “overrule and supersede” the writ and judgment of the Court. The judge was probably being very kind when he said that move was “too clever by half”. 

But Judge Goodman did not stop there. He stated that the Resolution the City adopted was demonstrably arbitrary, capricious and without basis in law, that no reasonable person could conclude that adoption of the April 2nd Resolution made the General Plan of the City of Los Angeles internally consistent but that the contrary was the case. Further he stated that the City’s actions constitute a misstatement and misapplication of the City Charter, state law and his February 11, 2014 Judgment.

However one of my favorite quotes was that “The Court holds that that portion of the April 2 Resolution which states or implies that the to-be revised HCPU (and EIR, etc.) need not comply with the City Charter or state law, including but not limited to Public Resources Code section 21081.6, is contrary to law and to the Judgment and Writ issued by this Court on February 11, 2014.”

In court, the Judge was clear in pointing out, over and over, that CEQA requires monitoring and reporting.  The City argued that monitoring and reporting were discretionary at both the General Plan level AND at the Community Plan level.  The Judge, distinguishing this case from a previous case concerning infrastructure reports, pointed out that the previous case did not address State law (CEQA) requirements.  He stated that since monitoring and reporting were required by CEQA, monitoring and reporting had to be mandatory somewhere.

Why is the City Attorney fighting so hard to make monitoring and reporting discretionary instead of mandatory?  It is clearly linked to how the City promised to use that monitoring and reporting in implementing the required CEQA mitigation created by City known as Policy 3.3.2. 

That policy, as stated by the Cityrequires that type, amount, and location of development be correlated with the provision of adequate supporting infrastructure and services.”   If you monitor and report on infrastructure and supporting services and find them lacking, certain inconvenient problems arise.

 

In a lawsuit years ago in support of the General Plan, the City even argued that:

“What became clear was that a crucial feature of dealing with growth impacts was contained in the General Plan Framework – its program for timing allowable development with available infrastructure…” 

They went further stating to a previous Court that:

“This alternative (The General Plan Framework) was particularly helpful because it informed the City that a triggering mechanism should be included in the GPF so that allowable increases in density through community plan amendments would not occur until infrastructure and its funding was available.” 

They went even further by saying the GPF was selected because it had the “best combination of land use policies tied to mitigation measures tied to annual reporting and selective amendments of community plans only when consistent with the GPF policies.”

The Judge found inconsistency for a good reason: More than half the Community Plans contain CEQA required monitoring language that depends on the CEQA-required monitoring and reporting.  They say:

“…if this monitoring finds that population in the Plan area is occurring faster than projected; and, that infrastructure resource capacities are threatened, particularly critical ones such as water and sewerage; and, that there is not a clear commitment to at least begin the necessary improvements within twelve months; then building controls should be put into effect, for all or portions of the [plan area], until land use designations for the Community Plan and corresponding zoning are revised to limit development.”

The 2008 Housing Element incorporated the GPF monitoring when it stated: “…mitigation measures have been incorporated through the re-adoption of the Framework Element’s Mitigation Monitoring and Reporting Program…”

Why is this dry discussion of monitoring, reporting and mitigation important?  It relates directly to public safety and our quality of life.  As proof, this is the mitigation section from the General Plan Framework relating to Fire/EMS:

2014-07-20_10-15-25

In a time when our firefighters don’t have the necessary manpower to achieve required response times (despite their much-appreciated best efforts), our streets are disintegrating, traffic is crushing, sidewalks are broken, parks are understaffed and we are told each and every day that we are running out of water, Policy 3.3.2 becomes more and more important.

If the City continues to ignore its own required monitoring and mitigation policy, we will end up with… An unmitigated disaster.

Fix The City would like to thank Judge Goodman for his careful and thorough review of this important issue.

Follow us at @FixTheCityLA

Judge Orders City to Rescind its Attempt to Change the General Plan

Fix The City, Save Hollywood, La Mirada and HELP won a victory earlier this year when Superior Court Judge Goodman ordered the City to rescind its new Hollywood Community Plan.

In response, the City not only rescinded the flawed plan, but also passed a resolution amending the General Plan to “overrule and supersede” the Court’s order.

A hearing was held June 20, 2014 and Judge Goodman’s ruling came out today. (Ruling here)  (Amended Writ here).

Key Court Findings:

  • “The Court holds that that portion of the April 2 Resolution which states or implies that the to-be~ revised HCPU (and EIR, etc.) need not comply with the City Charter or state law, including but not limited to Public Resources Code section 21081.6, is contrary to law and to the Judgment and Writ issued by this Court on February 11 , 2014.”
  • “The resolution of Respondents adopted on April 2, 2014 is demonstrably arbitrary, capricious and without basis in law for these reasons and to this extent. Further, no reasonable person could conclude that adoption of the April 2 Resolution made the General Plan of the City of Los Angeles internally consistent; indeed the contrary is the case for the reasons stated. “
  • “Because the offending part of the Resolution cannot be severed from the balance, Respondents are therefore ordered to reconsider the April 2 Resolution in full .”
  • “At this stage in this litigation it does appear, however, that Respondent City Council’s adoption of the April 2 resolution errs, inter alia, by suggesting that it need not redraft the HCPU, its EIR and related documents to provide appropriate monitoring or reporting programs; and Respondents’ actions constitute a misstatement and misapplication of the City Charter, state law and the February 11, 2014 Judgment.”

The Judge order the City to “rescind…all amendments to the General Plan Transportation and Framework Elements made to reflect changes in the HCPU.”

Fix The City had filed a supplemental writ concerning the City’s efforts in case the City claimed their actions represented their final action on the Court’s order.

Save Hollywood, La Mirada and HELP asserted that the City had created a new inconsistency in the General Plan, that the City had not complied with the writ and asked the Judge to force the City to rescind the change.

The Judge found that Save Hollywood and HELP were correct and that the City had therefore not complied with his original writ.

As such, since the writ was not final and FTC’s supplemental writ was “early.”  The Judge did inform FTC that FTC could re-file once the City’s final actions were known.

FTC thanks Judge Goodman for his careful and thorough review of this important issue

Fix The City Submits Mobility Element Comments

Fix The City has submitted comments on the draft Mobility Element.  The comments focus on the inconsistencies between the proposed Mobility Element and the City’s Framework Element.  It also focuses on the potential for parking intrusion into neighborhoods and growth-inducing aspects of the plan.

FTC comments can be found here.

FYI.  The latest official transportation usage statistics are shown below:

2014-05-12_16-08-13

Fix The City Files Supplemental Writ Over City General Plan Amendment

In response to Fix The City’s win in court over the new Hollywood Community Plan, the City did two things.  First, as requested, they rescinded the new plan and reenacted the old plan.

The second step was far more troubling.  The City also passed a General Plan Framework Amendment that seeks to remove a key environmental mitigation found in the General Plan Framework.

The Fix The City Supplemental Writ, which can be found here, states:

“In the guise of complying with the Writ of Mandate, Respondents have eviscerated the mitigation measures adopted over a decade ago in connection with the Framework Element EIR, and have conducted no environmental review of the impacts of these actions, which were approved by the City Council approximately three weeks after they were introduced to the public, at nearly break-neck speed for a City Council action.  Respondents’ action was not necessary to comply with this Court’s order, and indeed, directly flouts this Court’s authority by stating an intention to “overrule and supersede” this Court’s Statement of Decision.”

The writ notes that both Fire/Emergency Medical Services and Police Services rely upon the impacted key section of the General Plan Framework that the City seeks to remove.

Specifically, the General Plan Framework EIR stated that Policy 3.3.2, which is amended in the Resolution Amending the General Plan:

 “directs monitoring of infrastructure and public service capacities to determine need within each CPA for improvements . . . .  This policy also directs determinations of the level of growth that should correlate with the level of capital, facility, or service improvement that are necessary to accommodate that level of growth.  In addition, the policy directs the establishment of programs for infrastructure and public service improvements to accommodate development in areas the General Plan Framework targets for growth.  Lastly, the policy requires that type, amount, and location of development be correlated with the provision of adequate supporting infrastructure and services.”

The Fix The City Supplemental Writ asks the court to force the City to set aside its overreaching action and attempt to “overrule and supersede” the court’s order.

Fix The City Public Records Act Request Yields Never-Before-Seen Infrastructure Report Card

A recent Fix The City Public Records Act request yielded a never-before-seen 2010/2011 “Infrastructure Report Card.”

While the report was prepared, it appears to have never been released.  The grades look like this:

InfraGrades

Remember, this was done four years ago and the infrastructure has seen little investment.

You can see the full report here.

Judge Goodman Issues Final Decision in Favor of Fix The City on the Hollywood Community Plan

Judge Goodman issued his final ruling in Fix The City v. The City of Los Angeles today.  The Judge also issued an Order.

Judge Goodman upheld each and every finding he made in his tentative ruling and also rebuked the City’s attempt to question several aspects of the ruling by saying:

“City filed two sets of comments concerning the Tentative Decision, to which the other parties responded. City’s citation of Neighbors for Smart Rail v.Exposition Metro Line Construction Authority(2013) 57 Cal.4th 439 is inapposite as this Court has concluded that, in the particular circumstances of the present case, reliance on the erroneous baseline was in fact prejudicial. Also, inapposite is City’s contention regarding newly enacted Government Code section 65755( c).  To be clear, this Court has not ruled on Fix the City’s challenge to the use of the Transportation Improvement and Mitigation Program (TIMP) as this Court finds that the overall impact analysis to be factually flawed and legally inadequate.”

One Day After Fix The City Win In Court, LAFD Restricts Access To Public Records

The Los Angeles Times is reporting today that the LAFD has halted its twitter feed and blocked access to response time data.

This action comes the day after Judge Allan Goodman ruled in favor of Fix The City on its Hollywood Community Plan lawsuit.  First-responder response times were one of the key aspects of the lawsuit.  We can only wonder if it is mere coincidence that the LAFD has blocked access to the very data that showed markedly longer fire response times.

Fix The City’s detailed analysis on LAFD records from 2007-2011 resulted in a breaking story by KNBC news and a long-running series of in-depth stories by the Los Angeles Times on LAFD response times.

The LAFD’s action today, if allowed to stand, would deny the public the ability to independently validate critical response time metrics, including those used to develop new community plans.

Fix The City is actively reviewing the matter.

Judge Rules In Favor of Fix The City Hollywood Community Plan Lawsuit

Judge Allan Goodman has ruled in favor of Fix the City’s landmark suit concerning the Hollywood Community Plan.

The lawsuit was the first of three suits filed by Los Angeles area civic organizations.  The other two were filed by the La Mirada Avenue Neighborhood Association and SaveHollywood.Org.

Fix The City’s suit sought to invalidate the Hollywood Community Plan approval based on numerous grounds including the failure to use the most recent census data and inconsistency with the City’s General Plan requirement that infrastructure be monitored and be able to support development.  In a meticulously detailed ruling, the Judge supported each of our contentions.

Fix The City filed suit on the Hollywood Community Plan as it represented a dangerous precedent for other community plan updates which are either in process or are planned, including those for the Mid-Wilshire area and West L.A.

Jim O’Sullivan, VP of Fix The City said: “Communities throughout the City know that the infrastructure has been unable to keep up with the demands placed on it.  Most importantly, our first-responders are stretched thin.  Also important is that the livability of the City is impacted by deteriorating streets, increased traffic and cuts to key departments such as Rec & Parks.  The first step in fixing the City is to have accurate data.”

Perhaps the most important aspects of today’s ruling by Judge Goodman were his findings on the General Plan and the requirement that Community Plans properly implement the infrastructure monitoring aspects of the General Plan.   He said:

“The City’s Revised Findings reveal how the Plan Update twists the monitoring requirements in Framework Policy 3.3.2 (the infrastructure monitoring policy) ….. The City’s position is that the Plan Update sufficiently addressed the infrastructure capacity of the area such that no further monitoring is required during implementation of the Plan Update. This hands-off policy is completely contrary to the Framework Element’s objective of continuous monitoring of development activity.”

As part of its General Plan, the city promised to monitor the infrastructure and to put building controls in place if any infrastructure element was threatened.   Many of the city’s community plans clearly describe the required monitoring and mitigation.  They state:

“…if this monitoring finds that population in the Plan area is occurring faster than projected; and, that infrastructure resource capacities are threatened, … and, that there is not a clear commitment to at least begin the necessary improvements within twelve months; then building controls should be put into effect, for all or portions of the [] Community, until land use designations for the Community Plan and corresponding zoning are revised to limit development.”

If even more clarity is required, the city provided it in their mitigation description for the General Plan.  They stated:

“Lastly, the policy requires that type, amount and location of development be correlated with the provision of adequate supporting infrastructure and services”

In fact, the City itself argued Fix the City’s position in the late 90’s when the General Plan was challenged in court.  The city stated:

“What became clear was that a crucial feature of dealing with growth impacts was contained in the GPF – its program for timing allowable development with available infrastructure…”

Unfortunately, the City failed to implement its own policy and the City and its residents are now facing the predictable result:  A failing infrastructure which results in a loss of services and decreased public safety.

Fix The City is represented by Beverly Palmer of Strumwasser and Woocher.

The Fix The City suit is not related to or targeted at any existing or proposed development projects, nor does it comment on any other environmental review other than that of the Hollywood Community Plan..

The decision can be found here

 

Fix The City Files Appeal of Casden/Sepulveda Project

Fix The City filed an appeal of the City Planning Decision approving the Casden/Sepulveda project.

The community has raised serious concerns over the traffic impacts of the project, the health impacts on future residents and the impacts on already strained infrastructure including first responders.

Fix The City filed a timely appeal to preserve the community’s rights.

Fix the City is concerned about the deterioration of quality of life that this project will cause, both for its future residents and for residents nearby or regionally who be affected by the project.  Specifically, Fix the City is aggrieved by the decision to expose senior citizens and other vulnerable residents to the vastly increased air pollution that will result from the location of housing within 300 meters of the freeway.  Fix the City also objects to the massive traffic impacts and increase demand on first responders services that the project will place on the already inadequate local infrastructure.

casdendistance
(Graphic shows distance from the freeway)

The project’s FAR is inappropriately calculated because it includes the MTA parcel as part of the FAR.  No development could occur on the MTA parcel so it is not legitimately included in the site area as calculate for the FAR.  Therefore the maximum permissible project size is not accurately calculated; this approval must be revisited with an appropriate maximum project size calculation.

casdenfar
(graphic shows Expo area that was included in FAR calculation)

The project does not incorporate adequate mitigation measures to mitigate impacts to air quality, to traffic, or to public safety as required by the State Density Bonus program.

The project is not in conformance with the General Plan or the West Los Angeles Community Plan.  As the City Planning Commission recognizes, the site is currently designated “Light Manufacturing” and “Public Facilities.”  The General Plan must be amended to permit this project; such amendment is spot zoning and inconsistent with good planning practice.

The project does not conform to local zoning and requires a zone change, which again is spot zoning and inconsistent with good planning practice.

The project does not consistent of an arrangement of buildings and structures that is compatible with existing development, because it permits hundreds of residential units to be constructed within 300 meters of a major freeway, one of the ten busiest in the United States.  Emissions of pollution from automobile within such close range to a freeway expose the future residents of these buildings to significantly increased levels of NOx, SO2, VOCs, and fine and ultra fine particulate matter.  There is thus no support for the finding that the project is compatible with existing development, and there is no likelihood of significant future change to the nearby land use that will alter this fundamental incompatibility.

The project does not provide its residents with appropriate placement of recreational facilities, because the project’s facilities are located within 300 meters of a major source of air pollution.  Those utilizing the recreational facilities, which will surely include children, a vulnerable population, will be exposed to increased levels of Nox, SO2, VOCs, and fine and ultra fine particulate matter.

This is the fire department letter saying that the area’s fire stations are not adequate to handle the load.

4-27-2013 10-09-43 PM

This is the police department  letter saying that the project would have a significant impact on police services in the area.

4-27-2013 10-10-46 PM

Community Draft EIR comments can be found HERE.

The CPC decision can be found HERE.

The full searchable DEIR can be found HERE.