Crenshaw Subway Coal. v. City of L. A.
| Citation | 75 Cal.App.5th 917,291 Cal.Rptr.3d 90 |
| Decision Date | 03 March 2022 |
| Docket Number | B309288 |
| Parties | CRENSHAW SUBWAY COALITION, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents; HAAS BHCP Property Owner, LLC, Real Party in Interest and Respondent. |
| Court | California Court of Appeals |
Certified for Partial Publication.*
Strumwasser & Woocher, Beverly Grossman Palmer, Los Angeles, Caroline Chiappetti, and Salvador E. Perez for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Terry Kaufmann-Macias, Assistant City Attorney, John W. Fox, Craig Takenaka, Mei-Mei Cheng, Elaine Zhong, Deputy City Attorneys; Burke, Williams & Sorensen, Charles E. Slyngstad, Los Angeles, Nicholas J. Muscolino, Oakland; Thomas Law Group and Amy Higuera for Defendants and Respondents.
Alston & Bird and Edward J. Casey, Los Angeles, for Real Party in Interest and Respondent.
After the City of Los Angeles (the City) approved a project aimed at "revitaliz[ing]" a neighborhood in South Los Angeles through the renovation and expansion of an existing shopping mall and the construction of additional office space, a hotel, and new apartments and condominiums, a neighborhood advocacy group sued to enjoin the project under the federal Fair Housing Act ( 42 U.S.C. § 3601 et seq. ) and California's Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq. ). The group's lawsuit rests on a "gentrification" theory—namely, that the project will lead to an "influx of new, more affluent residents"; that this influx will lead to "increased rents and increased property values that [will] put pressure" on the low-income residents who currently live near the project site; and that these higher rents will push the low-income residents out of "their neighborhoods." Because a majority of these low-income residents are Black or Latinx, the group alleges, the project has the effect of "mak[ing]" "dwellings" "unavailable" "because of race [and] color" in violation of the disparate impact prong of the Fair Housing Act ().
Is a disparate impact claim based on this gentrification theory cognizable under the Fair Housing Act? We conclude it is not, and this conclusion is dictated by the United States Supreme Court's decision in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. (2015) 576 U.S. 519, 135 S.Ct. 2507, 192 L.Ed.2d 514 ( Inclusive Communities ). In no uncertain terms, Inclusive Communities held that the Fair Housing Act does not afford relief if such relief "cause[s] race to be used and considered in a pervasive and explicit manner [in deciding whether] to justify governmental or private actions" because doing so "inject[s] racial considerations into [the] decision." ( Id. at p. 543, 135 S.Ct. 2507.) Because the Fair Housing Act itself was enacted to combat (and hence only prohibits) those policies and practices that "ha[ve] a ‘significantly disparate impact on nonwhites ’ " ( Hardie v. NCAA (9th Cir. 2017) 876 F.3d 312, 319 ( Hardie ), quoting Wards Cove Packing Co. v. Atonio (1989) 490 U.S. 642, 658, 109 S.Ct. 2115, 104 L.Ed.2d 733 ( Wards Cove ), italics added), the gentrification theory would be available—if at all—only when the low-income residents who are displaced by revitalization efforts are minorities. Thus, recognizing the group's gentrification theory would obligate the City to "use[ ] and consider[ ]" race in making local planning decisions, and thus the group's gentrification theory is not cognizable under the Fair Housing Act ().
For this reason and others, we affirm the dismissal of the group's gentrification-based claims under the Fair Housing Act and FEHA. In the unpublished portion of our opinion, we also affirm the dismissal of the group's claim under the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ) as untimely.
In South Los Angeles, there is a 43-acre parcel of property, shaped somewhat like a shark's dorsal fin, that is bounded on the north by 39th Street, on the east by Crenshaw Boulevard, on the south by Stocker Street, and on the west by Santa Rosalia Drive and Marlton Avenue; Martin Luther King Jr. Boulevard runs east-west through the center of the parcel. The parcel is currently home to the Baldwin Hills Crenshaw Plaza, which features an enclosed mall, a movie theatre, a few commercial establishments, a small amount of office space, and surface parking lots and parking structures; the parcel contains no residential dwellings. The Crenshaw/LAX light rail line, which currently is under construction, will eventually run through the parcel.
Beginning in 2008 and after various proposals, three private entities—Capri Urban Baldwin, LLC; Capri Urban Crenshaw, LLC; and Capri Urban Rosalia, LLC (collectively, the developer)2 —applied to the City to redevelop the parcel by leaving most of the mall and theatre intact, but demolishing a portion of the mall and the office space and constructing a "mixed-use" facility with a net floor area exceeding 3 million square feet (the Project). At the end of the 20-year lifespan of the Project's construction, the Project would have 331,838 square feet of retail and restaurant space; 143,377 square feet of office space; a new, 400-room hotel; and 961 new residential units, comprised of 551 condominiums for purchase and 410 apartments for rent. Ultimately, the developer agreed to set aside 10 percent of each type of the residences for affordable housing—specifically, 5 percent of the condominiums would be available only to persons earning less than 50 percent of the area median income and another 5 percent would be available for members of the workforce earning at most 150 percent of the area median income; and 5 percent of the apartments would be available to persons earning less than 60 percent of the area median income and another 5 percent would be available to persons earning less than 80 percent of the area median income. The developer also agreed to hire 25 percent of the workforce used to build and operate the Project from the local community.
The Project is "near" the Leimert Park neighborhood and within the "Crenshaw Corridor." Together, these areas have "served as the political, cultural, and commercial heart of Black Los Angeles" since the 1960's, and are one of the "last majority Black communities in the City of Los Angeles." Census data indicates that in Leimert Park, 65 percent of the residents are Black and 25 percent of the residents are Latinx, and in the Crenshaw Corridor, 43 percent of the residents are Black and 47 percent of the residents are Latinx.
The Los Angeles City Council has designated the Department of City Planning (the Department) as its "Advisory Agency" to approve vesting tentative tract maps for anticipated land use projects. (L.A. Mun. Code, §§ 17.03.A., 17.06.) Once approved, a vesting tentative tract establishes "certain rights to proceed with development." (Id. , § 17.02.)
On December 21, 2016, the Department held a noticed hearing to decide, among other things, whether (1) to approve the vesting tentative tract map for the Project, and (2) to certify the final environmental impact report that had been prepared for the Project.
On January 18, 2017, the Department issued a letter of determination that (1) approved the vesting tentative tract map, and (2) certified the final environmental impact report.
The Department did not issue a notice of determination until March 20, 2017, which was 61 days after the issuance of its letter of determination.
In July 2017, the City Planning Commission held a hearing to consider several other issues necessary to enable the Project to move forward—chiefly, whether to recommend that the City Council change the zoning and height district designation of the Project's parcel.
On August 3, 2017, the City Planning Commission issued a letter stating its finding that no further environmental impact analysis was required, and recommending that the City Council adopt the proposed changes to the zoning and height district designation.
At the behest of several groups who appealed the City Planning Commission's determination, the City Council's PLUM Subcommittee held a hearing in early June 2018. The PLUM Subcommittee subsequently issued a report recommending denial of the appeals, concluding that no further environmental impact analysis was required, and recommending that the City Council adopt the proposed changes to the zoning and height district designation.
At its June 27, 2018 meeting, the City Council unanimously voted to adopt the PLUM Subcommittee's recommendations, thereby denying the appeals, concluding that no further environmental impact analysis was required, and enacting the ordinances necessary to change the zoning and height district designation of the Project's parcel.
On July 30, 2018, the Crenshaw Subway Coalition (the Coalition) sued the City of Los Angeles and the City Council (collectively, the City), as well as the developer, to enjoin the Project. The Coalition is a "nonprofit organization of residents, property owners and merchants in the South Los Angeles community" who are "firmly opposed" to "gentrification" that would "displace long-standing Black and Latinx residents." In the operative pleading, the Coalition alleges that the Project violates (1) the Fair Housing Act, (2) FEHA, and (3) CEQA.3
1. The allegations
In the operative third amended complaint,4 the Coalition alleged that the Project violated the Fair Housing Act and FEHA due to the gentrification it would cause. Specifically, the Coalition alleged that ...
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- Crenshaw Subway Coal. v. City of L. A. (Haas BHCP Prop. Owner)
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Gentrification Not a Valid Basis For Fair Housing Act Claim
...in predominantly minority communities is not cognizable under the Fair Housing Act. Crenshaw Subway Coalition v. City of Los Angeles, 75 Cal.App.5th 917 (2022). A development project in the “Crenshaw Corridor” of South Los Angeles was approved by the Los Angeles City Council. The 43-acre pr......