TARA v.CITY OF WEST HOLLYWOOD

Filed 2/21/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

STORY CONTINUED FROM PART I..

DISCUSSION

1. The Trial Court Did Not Err in Admitting into Evidence the August 2004 Agreement

Appellant contends that the trial court erred in admitting into evidence the August 2004 Agreement because this agreement is not documentation of the final public agency decision, as that term is set forth in Public Resources Code section 21167.6, subdivision (e)(9).^[1]

We do not agree. First, the list of materials set forth in subdivision (e) of section 21167.6 of the Public Resources Code is not intended to be exhaustive. Second, the fact is that the operative agreement that City approved is the August 2004 Agreement. While the May 2004 Agreement is relevant for certain purposes, review of Citys decision would be ineffective, if it were limited to the May 2004 Agreement, which is no longer operative. Thus, the petition should be treated as amended to address the August 2004 Agreement, in so far as appellant seeks to set aside action taken by City.

2. City Has Not Complied with Public Resources Code Section 21100

In relevant part, Public Resources Code section 21100, subdivision (a) provides: All lead agencies shall prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any project which they propose to carry out or approve that may have a significant effect on the environment. (Italics added.)

The operative fact that triggers Public Resources Code section 21100, subdivision (a) (hereafter section 21100) is not a final approval or a final agreement, or even an approval or an agreement to develop a project. In the terms of section 21100, the operative facts are that there must be a project which they [all lead agencies] propose to carry out or approve. Broken down into two elements, there must be a (1) project that the agency (2) proposes to carry out or approve.

A statute should always be so construed, if reasonably possible, as to give force and effect to every expression used by the legislature. (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 641-642.) Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage. (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22.) Excepting when clearly otherwise intended or indicated, words in a statute should be given their ordinary meaning and receive a sensible construction in accord with the commonly understood meaning thereof. (County of Los Angeles v. Frisbie, supra, at p. 642.)

The words propose to in section 21100 are not to be ignored. The ordinary meaning of propose to carry out or approve is that the project is contemplated or envisioned, not that the project has received approval. If the Legislature intended to limit EIRs to projects that have received approval by the agency, it would have been an easy matter to set that forth in section 21100.

Our textual analysis of section 21100 is confirmed by the decisions of our Supreme Court. The EIR has been aptly described as the heart of CEQA. [Citations.] Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564, fn. omitted, cited in Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123.)  CEQA requires that an agency determine whether a project may have a significant environmental impact, and thus whether an EIR is required, before it approves that project. (No Oil, [Inc. v. City of Los Angeles (1974)] 13 Cal.3d 68, 79, italics by court; [citation].) This requirement is obvious in several sections of CEQA. For example, [Public Resources Code] section 21081 refers to approval of a project for which an EIR has been completed, and [Public Resources Code] section 21151 requires an EIR for a project an agency intend[s] to carry out or approve. (Italics added.) The Guidelines^[[2]] provide even more explicitly that Before granting any approval of a project subject to CEQA, every lead agency . . . shall consider a final EIR . . . . (Guidelines, 15004[,] subd. (a), italics added.) A fundamental purpose of an EIR is to provide decision makers with information they can use in deciding whether to approve a proposed project, not to inform them of the environmental effects of projects that they have already approved. If postapproval environmental review were allowed, EIRs would likely become nothing more than post hoc rationalizations to support action already taken. We have expressly condemned this use of EIRs. (No Oil, supra, 13 Cal.3d at p. 79.) The Regents view that their approval of a project is the predicate for an EIR stands this principle on its head. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 394.)

As one appellate court has explained the rule, the informational purpose of CEQA is crucial to informed decisionmaking. While CEQA does not guarantee that these decisions will always be those which favor environmental considerations, CEQA does, however, guarantee or at least attempt to assure that the environmental consequences of a government decision on whether to approve a project will be considered before, not after, that decision is made. (Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, 196.)

The role and significance of public comment in the EIR review process is intended to be meaningful and substantive. In the course of preparing a final EIR, the lead agency must evaluate and respond to comments relating to significant environmental issues. ( 21092.5, subd. (a); [CEQA] Guidelines, 15088, 15132, subds. (b-d).) In particular, the lead agency must explain in detail its reasons for rejecting suggestions and proceeding with the project despite its environmental effects. (Guidelines, 15088, subd. (b).) There must be good faith, reasoned analysis in response [to the comments received]. Conclusory statements unsupported by factual information will not suffice. (Ibid.) (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 6 Cal.4th 1112, 1124.) Since public participation is an essential part of the CEQA process (id. at p. 1123), and since public participation must be a meaningful part of the process, it is wrong to defer an EIR until after a decision has been made.

For this reason, we conclude that the trial court erred when it concluded that no EIR was required because City has not yet entered into a legally binding agreement to approve the conveyance . . . of the Tara property or the proposed housing project. The [May 2004] Agreement is expressly conditioned on compliance with CEQA. . . . The City has not given its final approval to convey the property . . . nor has it given its final approval of the housing project itself.

The trial courts error is two-fold. First, an EIR is not to be delayed until a final decision has been made. Second, the finding that the agreement was expressly conditioned on compliance with CEQA indicates a misunderstanding of the EIR review process. That process is intended to be part of the decisionmaking process itself, and not an examination, after the decision has been made, of the possible environmental consequences of the decision.^[3]

There may be a concern about the inexact nature of the phrase in section 21100 that an EIR must be prepared for any project which [lead agencies] propose to carry out or approve. The answer to this concern has been provided by the Supreme Court. Obviously it is desirable that the precise information concerning environmental consequences which an EIR affords be furnished and considered at the earliest possible stage. The Guidelines express this principle in a variety of ways. Thus, EIRs should be prepared as early in the planning process as possible to enable environmental considerations to influence project, program or design. (Cal. Admin. Code, tit. 14,  15013.) (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 282, italics added.) Thus, the question is whether there is enough information about the project to provide meaningful information for environmental assessment (Guidelines,  15004, subd. (b)). Any ambiguity in the phrase any project which [lead agencies] propose to carry out or approve is resolved by the pragmatic inquiry whether there is enough information about the project to permit a meaningful environmental assessment. If the answer is yes, the EIR review process must be initiated.

The record before us supports the conclusion that, as of the time that the HUD application was submitted in June 2003, there was enough information about the project to provide meaningful information for environmental assessment, in the terms of Guidelines section 15004, subdivision (b). In light of the pivotal role of HUD financing, it made sense, of course, to wait for HUDs decision before initiating the EIR review process. However, once HUD approved the $4.2 million grant for the project in November 2003, the EIR review process should have been initiated.

In sum, for the reasons set forth we conclude that City failed to comply with section 21100 by: (1) deferring the EIR review process until after the May and August 2004 Agreements and by (2) engaging in the EIR review process after the decision taken on May 3, 2004, to enter into the May 2004 Agreement.

3. Citys Contentions Are Without Merit

We were informed of the ongoing EIR while this appeal was pending. After oral argument, we vacated submission of this case and requested the parties views on the materiality of the EIR to this appeal, including the question whether the EIR, once completed, would render this appeal only of academic interest. We do not find Citys views to be persuasive.

First, we cannot agree with City that the EIR, once completed, will render this appeal moot. The EIR process did not operate in this case as it should have. The fact of the matter is that the public was denied the right to participate in the decisionmaking process until all the operative decisions had in fact been made. It is also true that if an agency, having effectively approved a project, could defer an EIR until after the approval, and then successfully contend that the belated EIR rendered the matter moot, CEQA would be rendered a dead letter. At best it would, as the Supreme Court has put it, become nothing more than a post hoc rationalization to support action already taken. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d 376, 394.)

Second, we reject Citys contention that [n]o purpose would have been served to have prepared an EIR to evaluate a conceptual and uncertain proposal. An EIR is to be part of the decisionmaking process itself, and therefore some uncertainties have to be accepted as part of that process. Moreover, we cannot agree that there was much, if anything, conceptual and uncertain about the project after the HUD application was filed in June 2003. Indeed, the record attests to the fact that all throughout the proceedings, even as early as the Option Agreement, there was a great deal of clarity about the character, scope and even the details of the project.^[4]

Third, City contends that the May and August 2004 Agreements were merely land acquisition agreements in the sense of Guideline section 15004, subdivision (b)(2)(A). This provision states that an agency may enter into a land acquisition agreement without entering into an environmental impact review process, provided that the future use of the land has been conditioned on compliance with CEQA. This contention must be rejected as fundamentally unrealistic. For one, City acquired Laurel Place in 1997 from Mrs. Elsie Weisman, and not as a result of the May and August 2004 Agreements. Even more important is the palpable fact that these agreements set forth how Laurel Place is to be developed; these agreements have nothing to do with Citys acquisition of Laurel Place.

4. The May and August 2004 Agreements Are Not Development Agreements

The May and August 2004 Agreements do not satisfy the statutorily defined elements of a development agreement, which are set forth in Government Code section 65865.2.^[5] The purpose of the statutes that created development agreements under the Government Code is to give builders the right to acquire by contract the equivalent of a vested right at an early stage of the project. (Citizens for Responsible Government v. City of Albany, supra, 56 Cal.App.4th 1199, 1213.) A development agreement confers a special status on the development, which, as noted below, is an exemption from local zoning regulations.

Neither the May nor the August 2004 Agreement was intended to be a development agreement. One of the important attributes of a development agreement is that the development agreement is enforceable regardless of any subsequent change in the general plan, any specific plan, zoning or subdivision regulation of the local governing body that would otherwise alter the rules, regulations or policies in effect when the development agreement is finalized. (Govt. Code,  65865.4; see generally 9 Miller & Starr, Cal. Real Estate (3d. ed. 2001) 25:228, pp. 723-727.) Under paragraph 165.0 of the May 2004 Agreement, the Developer undertakes to conform to all zoning and General Plan requirements. Such a provision does not square with the purposes of a development agreement. Nor does either the May or the August 2004 Agreement provide for a term of the agreement, which is the first criterion of a development agreement listed in Government Code section 65865.2. This is not a minor matter, since the special status conferred by a development agreement on the developer cannot last indefinitely.

Appellant does not question the balance of the trial courts rulings. Accordingly, we affirm those rulings without further discussion.

5. The Remedial Actions To Be Mandated by the Trial Court

Public Resources Code section 21168.9 sets forth the relief that may be granted when the court has determined that an agency has not complied with the provisions of CEQA.

Public Resources Code section 21168.9, subdivision (a)(1) provides that a mandate may issue that the determination, finding, or decision be voided by the public agency, in whole or in part. This section empowers the trial court to issue a writ of mandate directing City to declare void its approval of the May 2004 Agreement.

This order, standing alone, will not bring City into compliance with CEQA. The fact is that the EIR review process should have been in progress during the period between November 2003 and May 2004.

Public Resources Code section 21168.9, subdivision (a)(3) empowers the court to issue a mandate that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division. Accordingly, a mandate must issue that directs City to engage in the EIR review process: (1) based on the project as described in the HUD application; and (2) without reference to the May and August 2004 Agreements.

DISPOSITION

The judgment is affirmed insofar it finds that the petition does not state facts sufficient to entitle appellant to relief on the second, third and fourth causes of action, and to the extent that the fifth cause of action seeks a judicial declaration that Government Code sections 65867 and 65867.5 and Citys municipal code were violated. In all other respects, the judgment is reversed and the case is remanded to the superior court with directions:

(1) To issue a writ of mandate directing City to declare void its approval of the May and August 2004 Agreements; and

(2) To mandate that City engage in the EIR review process (a) based on the project as described in the HUD application and (b) without reference to the May and August 2004 Agreements.

Pursuant to Public Resources Code section 21168.9, subdivision (b), the trial court shall retain jurisdiction over this action in order to:

(1) Specify promptly, after notice and hearing, a date by which City must certify a new EIR in accordance with CEQA standards and procedures, including provisions for public comment, and to make any findings that may be required by CEQA; and

(2) Ensure that City engages in the EIR review process based on the project as described in the HUD application and without reference to the May and August 2004 Agreements.

Petitioners are to recover their costs in these proceedings.

CERTIFIED FOR PUBLICATION

FLIER, J.

I concur:

RUBIN, J.

SAVE TARA v. CITY OF WEST HOLLYWOOD

B185656

COOPER, P. J. - Dissenting

I respectfully dissent because I believe that in view of subsequent events the matter is moot and the appeal should be dismissed. Appellant sought to revoke the approval by respondent City of West Hollywood (City) of the conditional sale agreement involving the subject public property, absent compliance with the California Environmental Quality Act (CEQA). I share the majoritys concern that there not be post hac rationalizations to support prior approval of proposed projects, a caveat expressed in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 395. (Accord El Morro Community Assn. v. California Dept. of Parks and Recreation (2004) 122 Cal.App.4th 1341, 1361.) Even if an environmental impact report

(EIR) might well have been beneficial before the City negotiated to loan the developers money and give them property that would be used for the low income senior housing, I believe that appellant has now received virtually what it was seeking in the petition; remanding for a new CEQA procedure when one has just been completed, a decision from which appellant has not appealed, does not seem the appropriate remedy to me.

Furthermore, and importantly there was almost contemporaneous compliance in that CEQA procedures were initiated shortly after the Citys contested actions and concurrently with this litigation. I recognize that failure to obey provisions that go to the heart of CEQA protective measures is generally prejudicial. (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236 [Only if the manner in which an agency failed to follow the law is shown to be prejudicial, or is presumptively prejudicial, as when the department or the board fails to comply with mandatory procedures, must the decision be set aside, however. (Environmental Protection Information Center, Inc. v. Johnson [(1985)] 170 Cal.App.3d 604, 622.)].) Accord California Oak Foundation v. City of Santa Clarita (2005) 133 Cal.App.4th 1219, 1226.) However, in my view, the particular procedural facts of this case make remand unnecessary even assuming initial lack of compliance with CEQA.

The parties have informed us that a final environmental impact report (FEIR) was certified on October 16, 2006, regarding the Laurel Place Senior Housing Project and that no judicial challenges were timely filed against the FEIR. (Pub. Resources Code, 21167.2, 21167, subd. (c).) The project for which the notice of determination was filed is described as follows:

The purpose of the proposed project is to increase affordable senior housing in the City, while preserving a local cultural resource and increasing parkland. The proposed project involves three separate elements: renovation and rehabilitation of the existing main house and chauffeurs cottage, construction of new housing behind the main house, and creation of a public park in the northern and eastern portion of the site. The two-store main house, which currently includes four residential units, would be reconfigured to include five one-bedroom senior apartments, one two-bedroom resident managers office, and common space in the front ground-floor rooms that would be open to the public. The existing chauffeurs cottage located on the northwest corner of the site would be retained and rehabilitated for use as a single residential unit. The existing garages and bachelors apartment, located near the rear of the site, would be removed. A new building of two to three stories in height would be constructed in the southwest portion of the site behind the main house and south of the chauffeurs cottage. The building would contain 21 one-bedroom senior apartments and a 17- to 19-car subterranean garage. A public park of approximately 9,900 square feet would be created on the northern and eastern portion of the site. With certain modifications, the senior housing is very similar to that proposed to be funded in 2004.

The procedures sought by appellant have been effected. The project for which funding was sought has been subject to CEQA scrutiny. The specific issue is not likely to recur between these parties. (Compare with National Parks & Conservation Assn. v. County of Riverside (1996) 42 Cal.App.4th 1505, 1514 [issues are not only likely to recur, but are actually still in controversy between the same parties].) Appellant has not demonstrated that the matter is one of continuing public interest and an issue likely to recur, another reason for exercising appellate discretion to resolve a moot issue. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 747, citing Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 391, [deciding moot issue of validity of Palo Alto city ordinance because of testimony that 50 other California cities had adopted similar ordinances].) Nor are these issues that occur at a level of low visibility in a short period of time [or involve] asserted errors which are not ordinarily reviewable on appeal. (In re William M. (1970) 3 Cal.3d 16, 24 -25; Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069 [raises important issues of public policy that are likely to recur, yet will evade review because of the cyclical nature of the renewal process].)

This is not a case where, once CEQA procedures began, appellant points to errors in the omission of information or has challenged the FEIR determination. Rather, appellant argued in the superior court that the City must initiate CEQA procedures, especially an EIR. I would not reverse and remand when the City very quickly undertook to comply with CEQA, with procedures initiated within months of the May approval and July amended approval. [A]n action which originally was based upon a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed. (Environmental Coalition of Orange County, Inc. v. Local Agency Formation Com. (1980) 110 Cal.App.3d 164, 170.) To require the parties to begin again when the substance of the requested acts began quickly and has now been accomplished seems to me to be without purpose. The law neither does nor requires idle acts. (Civ. Code, 3532.) I therefore would dismiss the appeal as moot.

____________________, P. J.

COOPER

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^[1] Public Resources Code section 21167.6 provides that the record of proceedings includes, but is not limited to, the materials enumerated, including those in subdivision (e)(9): The documentation of the final public agency decision, including the final environmental impact report, mitigated negative declaration, or negative declaration, and all documents, in addition to those referenced in paragraph (3), cited or relied on in the findings or in a statement of overriding considerations adopted pursuant to this division. Subdivision (e)(3) states: All staff reports and related documents prepared by the respondent public agency and written testimony or documents submitted by any person relevant to any findings or statement of overriding considerations adopted by the respondent agency pursuant to this division.

^[2] The CEQA Guidelines are to be found in California Code of Regulations, title 14, section 15000 et seq.

^[3] As one Court of Appeal has lucidly explained it: [T]he appropriate time to introduce environmental considerations into the decision making process was during the negotiation of the development agreement. Decisions reflecting environmental considerations could most easily be made when other basic decisions were being made, that is, during the early stage of project conceptualization, design and planning. Since the development site and the general dimensions of the project were known from the start, there was no problem in providing meaningful information for environmental assessment. At this early stage, environmental review would be an integral part of the decisionmaking process. Any later environmental review might call for a burdensome reconsideration of decisions already made and would risk becoming the sort of post hoc rationalization[] to support action already taken, which our high court disapproved in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 394. (Citizens for Responsible Government v. City of Albany (1997) 56 Cal.App.4th 1199, 1221.)

^[4] The Option Agreement was practically contemporaneous with the HUD application, which provided a very detailed and concrete description of the project.

^[5] Government Code section 65865.2 provides: A development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. The agreement may provide that construction shall be commenced within a specified time and that the project or any phase thereof be completed within a specified time.