Dembrowski v. City of West Hollywood

Filed 8/30/06 Dembrowski v. City of West Hollywood CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Dzintra Janavs, Judge. Affirmed in part and reversed in part with directions.

Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, Clare Bronowski, Mark L. Block and William M. Brody for Plaintiff and Appellant.

Michael Jenkins, City Attorney; Jenkins & Hogin and John C. Cotti, for Defendant and Respondent.

Shumaker Steckbauer Weinhart, William W. Steckbauer and Ada Katz for Real Parties in Interest and Respondents.

In connection with the City of West Hollywood's approval of construction of a commercial building and parking structure on Sunset Boulevard by real parties in interest Venice Investments and Youdi Emrani (Venice Investments), the City of West Hollywood (City) determined that the project was consistent with the Sunset Specific Plan and adopted a mitigated negative declaration (MND) under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA).^[1] In her petition for writ of mandate, plaintiff Elisa Dembrowski, as trustee for the Mooh Investment Trust, owner of property adjacent to the project, challenged the determination and the MND, but the trial court entered a judgment denying the petition. We reverse the judgment because the administrative record contains substantial evidence supporting a fair argument that the project may have a significant impact on traffic, requiring the preparation of an environmental impact report (EIR) as to this issue. But we agree with the trial court's determinations that (1) there was no substantial evidence to support a fair argument that the project may have a significant impact on aesthetics and (2) substantial evidence in the record supports City's finding that the project was consistent with the Sunset Specific Plan.

BACKGROUND

In August 2003, Venice Investments filed an application, revised in March 2004, for a development permit, administrative permit, and billboard permit to construct at 8305 Sunset Boulevard a commercial building with restaurant and retail uses on the first floor and parking stalls on the second through fifth floors (the Project).

The Project site, a 20,326-square-foot parcel, is on the north side of Sunset Boulevard (Sunset), 30 feet west of the intersection of Sunset and Sweetzer Avenue. The site rises from 386 feet above mean sea level at the south edge (adjacent to Sunset) to 420 feet above mean sea level at the north or rear edge of the site. According to City's planning manager, the south portion of the property was flat, but the rear sloped upward with a 34-foot change in elevation. The site was vacant except for a billboard and a 32-stall surface parking lot. Nearby uses on Sunset included a mix of commercial, office and entertainment. Residential uses were on the hillside north of the site and multifamily residential uses were on the cross streets south of Sunset.

As originally proposed, the Project had 27,387 square feet of retail and restaurant space, but Venice Investments reduced the retail and restaurant space to about 13,000 square feet. As finally proposed in March 2004, the Project would have about 13,000 square feet of restaurant and retail space on the first floor and 192 parking stalls on the second through fifth floors. The proposed uses required only 103 parking stalls, so the Project afforded 89 extra parking spaces. The Project also included a 14-foot by 48-foot replacement billboard in the front elevation of the building, angled to be visible to motorists eastbound on Sunset. Access to the site's parking structure and service loading area would be provided by a single driveway at the west end of the site. Drivers would enter the driveway only by a right turn from the westbound direction on Sunset and would leave the site only by a right turn from the driveway onto the westbound direction on Sunset.

The West Hollywood General Plan provided that an objective of development on Sunset was to accommodate a full diversity of uses, including retail, food sales and service, entertainment, and cultural uses. Objective 5.4 of the general plan was to "[p]rovide parking requirements and public parking facilities to overcome both commercial and residential parking deficiencies and to provide for future parking needs."

The Project was also within Geographic Area 2-A of City's Sunset Specific Plan, which encouraged restaurants and pedestrian-oriented uses at all areas along Sunset and which permitted buildings up to a height of 45 feet. City's zoning ordinance provided a method for calculating the maximum permitted height of buildings on sloping sites, and the height of the Project met the height requirements for sloping sites. The Sunset Specific Plan also required view corridors at the Project site, "unless the Director of Community Development determines that lot size or configuration would make such provision infeasible or that the provision of such open space would be inconsistent with the purpose and intent of the applicable guidelines and standards." View corridors are publicly accessible spaces along Sunset, which allow the public to view either the Los Angeles Basin or the Hollywood Hills from Sunset. Another goal of the Sunset Specific Plan was to develop and landscape the street medians, and in particular to "[e]xtend the median on Sunset Boulevard to enhance the aesthetic quality of the street." All applicants with projects of over 2,500 square feet that were not facing an existing landscaped median were required to pay into a "median fund."

The Sunset Specific Plan also required a five-foot rear setback in a commercial zone abutting a residential zone, but "[w]here a residential zone is divided from a commercial or parking zone by a significant topographic or elevation change, requirements for setbacks, landscaped buffers, or decorative walls may be waived by the Director of Community Development." Although all projects were subject to the Sunset Specific Plan, the plan provided that "the City retains discretion to approve an alternative proposal upon a showing that the alternative proposal furthers the goals stated by this plan and is consistent with the purpose and intent of the design and development requirements, guidelines, and standards that would otherwise apply to the project."

City retained the firm of HDR Engineering to prepare a traffic impact analysis for City's initial study of the original proposal. According to a March 24, 2004 letter by City's senior planner to Venice Investments, HDR Engineering's "draft traffic impact analysis indicated that two intersections would be significantly impacted, (Sweetzer/Fountain and Sunset/Havenhurst).[^[2]] During review of the draft it was anticipated that adequate mitigation measures for each of these intersections could be formulated. However after review of these mitigation measures, which would have required redirecting traffic on to a residential street, the Transportation Manager determined that the proposed mitigation measures would not be appropriate.

Staff has identified two possible methods of addressing this issue. The first is to prepare an environmental impact report, which would allow the adoption of a statement of overriding considerations. A statement of overriding considerations is a document finding that although a project would result in adverse environmental impacts, there are specific overriding economic, legal, social, technological, or other considerations that would outweigh the significant unmitigated impacts. Unfortunately, it does not appear that your project meets this relatively high threshold, and therefore staff is not supportive of this approach.

The second approach would be to reduce the square footage of the project to a level which would eliminate the unmitigated impacts from your proposal. . . ." (Italics added.)

On April 29, 2004, City filed a notice of intent to adopt an MND in connection with the final proposal for the Project.^[3] An environmental checklist form asserted that the Project would have "less than significant impact" on the number of vehicle trips, on the ratio of the volume to the capacity on the nearby roads, and on the congestion at intersections. The checklist form also stated that the Project would have less than significant impact on a scenic vista and no impact on the existing visual character or quality of the site and its surroundings.

On June 3, 2004, a public hearing on the Project was held before City's planning commission. The planning staff report prepared for the hearing stated that, according to HDR Engineering's April 2004 TIA, two un-signalized intersections (Sunset and Havenhurst, and Sunset and Olive/Queens) operated at "LOS F" (a failing level of service) during peak hours,^[4] but â€