Save The Sunset Strip Coalition v. City of West Hollywood

• Court: California Court of Appeals
• Writing for the Court: APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe
• Citation: Save The Sunset Strip Coalition v. City of West Hollywood, 105 Cal.Rptr.2d 172, 87 Cal.App.4th 1172 (Cal. App. 2001)
• Decision Date: 20 March 2001
• Docket Number: No. B143615,B143615
• Parties: (Cal.App. 2 Dist. 2001) SAVE THE SUNSET STRIP COALITION et al., Plaintiffs and Appellants, v. CITY OF WEST HOLLYWOOD et al., Defendants and Respondents; SUNSET MILLENNIUM ASSOCIATES, Real Party in Interest and Respondent. Filed

105 Cal.Rptr.2d 172 (Cal.App. 2 Dist. 2001)

SAVE THE SUNSET STRIP COALITION et al., Plaintiffs and Appellants, v. CITY OF WEST HOLLYWOOD et al., Defendants and Respondents; SUNSET MILLENNIUM ASSOCIATES, Real Party in Interest and Respondent.

No. B143615

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Filed 3/20/01

APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed.

(Super. Ct. No. BC222810)

Moskowitz, Brestoff, Winson & Blinderman, Joel S. Moskowitz and Nelson E. Brestoff for Plaintiffs and Appellants.

Michael Jenkins, City Attorney; Richards, Watson & Gershon and Gregory M. Kunert for Defendants and Respondents.

Latham & Watkins, James L. Arnone and Alejandro E. Camacho for Real Party in Interest and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION^*

TURNER, P.J.

I. INTRODUCTION

Plaintiffs, Save the Sunset Strip Coalition, Gigi Verone and Geoffrey Smith, appeal from a judgment denying a writ of mandate. Plaintiffs challenged actions of the defendants, City of West Hollywood and its city council (collectively, the city), with respect to a development project. The developer, Sunset Millennium Associates, LLC (Sunset), is the real party in interest. In the published portion of this opinion, we discuss Vehicle Code section 21101, subdivisions (a) and (f), as it relates to the installation of a cul de sac on a street entirely within the city's boundaries which implements the circulation element of the city's general plan. We affirm the judgment.

II. BACKGROUND

The city adopted the "Sunset Specific Plan" to guide the development of that portion of Sunset Boulevard that lies within its borders. The area in question is commonly known as the Sunset Strip. The Sunset Specific Plan assumed, based on a market study and other factors, that certain types of development were likely. The Sunset Specific Plan capped development at a level lower than would have been allowed under the city's general plan. In connection with the Sunset Specific Plan, the city went through the process required by the California Environmental Quality Act (CEQA), Public Resources Code¹ section 21000 et seq. A final environmental impact report (EIR) was approved and certified in 1996. It is undisputed the time for challenging the sufficiency of the 1996 EIR has expired.

Sunset proposes to develop two of eight areas encompassed by the Sunset Specific Plan. Sunset intends to construct thereon a 371-room hotel, a restaurant, and retail and commercial office space. The trial court found the present project differed from the development assumptions underlying the Sunset Specific Plan in certain respects. The trial court found: "The proposed development increases the square footage of hotel space and retail space within geographic areas 4 and 5 of the [Sunset] Specific Plan by approximately 256 thousand square feet, and reduces commercial office space and restaurant space by approximately 170 thousand square feet in the same area. There is a net increase of 86 thousand square feet, which is approximately 15 percent of the developed space contemplated in the [Sunset] Specific Plan."

The EIR approved in 1996 is a Master EIR. ( 21156 et seq.; Guidelines,² 15175 et seq.) Section 21157.1 provides in part: "[Certification of a Master EIR] allow[s] for the limited review of subsequent projects that were described in the master [EIR] as being within the scope of the report, in accordance with the following requirements: [] (a) The lead agency for a subsequent project shall be the lead agency or any responsible agency identified in the master environmental impact report. [] (b) The lead agency shall prepare an initial study on any proposed subsequent project. This initial study shall analyze whether the subsequent project may cause any significant effect on the environment that was not examined in the master environmental impact report and whether the subsequent project was described in the master environmental impact report as being within the scope of the report. [] (c) If the lead agency, based on the initial study, determines that a proposed subsequent project will have no additional significant effect on the environment, as defined in subdivision (d) of Section 21158, that was not identified in the master environmental impact report and that no new or additional mitigation measures or alternatives may be required, the lead agency shall make a written finding based upon the information contained in the initial study that the subsequent project is within the scope of the project covered by the master environmental impact report. No new environmental document nor findings pursuant to Section 21081 shall be required by this division." This requirement is restated in Guidelines section 15177 which also provides: "Whether a subsequent project is within the scope of the Master EIR is a question of fact to be determined by the lead agency based upon a review of the initial study to determine whether there are additional significant effects or new additional mitigation measures or alternatives required for the subsequent project that are not already discussed in the Master EIR." (Guidelines, 15177, subd. (c).) The 1996 EIR was also a Program EIR. With respect to a Program EIR, Guidelines section 15168, subdivision (c) provides: "Use With Later Activities. Subsequent activities in the program must be examined in the light of the program EIR to determine whether an additional environmental document must be prepared. [] (1) If a later activity would have effects that were not examined in the program EIR, a new initial study would need to be prepared leading to either an EIR or a negative declaration. [] (2) If the agency finds that pursuant to [Guidelines,] Section 15162 [Subsequent EIR], no new effects could occur or no new mitigation measures would be required, the agency can approve the activity as being within the scope of the project covered by the program EIR, and no new environmental document would be required." Guidelines section 15162, subdivision (a)(1) requires preparation of a subsequent EIR after an EIR has been certified or a negative declaration has been adopted when "[s]ubstantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects[.]"

As required by section 21157.1, the city prepared an initial study on the present project. The city determined the project would not have any additional significant effect on the environment that was not identified in the Master EIR, and therefore no new environmental document or findings were required. Plaintiffs filed a petition for a writ of mandate in the trial court. They challenged the city's determination the project would not have any additional significant effect on the environment that was not identified in the Master EIR. In addition, they disputed the city's creation of a cul-de-sac on one of its streets, Alta Loma Road, and the legality of a Development Agreement calling in part for Sunset to make a $5.2 million payment to the city.

The trial court found as follows: "Petitioner's contention that the millennium project does not 'fit within the environmental assumptions' of the EIR is rejected, because the contention does not accurately enunciate the test required by CEQA. The test is whether the administrative record contains substantial evidence to support the City's determination that the development will have no additional significant effect upon the environment that was not identified in the EIR and that no new or additional mitigation measures or alternative may be required. The proposed development increases the square footage of hotel space and retail space within geographic areas 4 and 5 of the [Sunset] Specific Plan by approximately 256 thousand square feet, and reduces commercial office space and restaurant space by approximately 170 thousand square feet in the same area. There is a net increase of 86 thousand square feet, which is approximately 15 percent of the developed space contemplated in the [Sunset] Specific Plan. . . . Substantial evidence that these changes will not have a significant impact on traffic as compared to the [Sunset] Specific Plan may be found [in the city's Initial Study]."

As to the city's creation of a cul-de-sac on Alta Loma Road the trial court concluded: "The development also calls for the alteration of Alta Loma Road, a residential side street one block west [of] La Cien[e]ga Boulevard, by blocking the street with a cul-de-sac so that it cannot be used for thru [sic] traffic. Petitioner contends that such action violates Section 21101 of the Vehicle Code. The administrative record, however, contains substantial evidence that the City complied with Section 21101[, subdivision] (f) of the Vehicle Code and that the street is not a regionally significant traffic corridor."

With respect to the $5.2 million payment which was part of the Development Agreement the trial court concluded: "Finally, petitioner[s] contend[] that the development agreement provides for a cash payment from the developer to the City of 5.2 million dollars, and that such provision constitutes an illegal sale of the City's police power to the developer. Petitioner however cites no authority to support its contention that it is illegal for a municipality to charge a developer such a fee, or any authority for the proposition that the City must identify some particular cost attributable to the development to justify such a fee."

III. DISCUSSION

[Part III.A. and the heading for part III.B. are deleted from publication.

See post at page 14 where publication is to resume.]

A. Traffic Impacts

Plaintiffs challenge the city's determination the project would not cause any additional...