An appellate court has thrown out a mitigated negative declaration that the City of Los Angeles approved for a 21-lot subdivision in the Sunland area. The court ruled that project opponents had made a fair argument that the project may have a significant impact on wildlife and traffic.

In 1999, California Home Development LLC applied for a tentative tract map to subdivide 17 acres on Wheatland Avenue into 28 residential lots. The area is a semi-rural one in which many residents have horses. The city had approved a similar 28-lot subdivision in 1990 — California Home called it the “same project” — but the 1990 version was never built.

Various city advisory and planning panels approved the project (reducing it to 23 lots) and a mitigated negative declaration. Under the California Environmental Quality Act (CEQA), a mitigated negative declaration states that a project, as revised prior to an agency’s consideration, will not harm the environment, and, therefore, no environmental impact report is required. Ultimately, the City Council in mid-2000 adopted the mitigated negative declaration and approved the 23-lot subdivision.

Area resident Maria Mejia sued, arguing that the city violated CEQA. A trial court in July 2001 ruled for Mejia and ordered the city to set aside project approval because the city failed to give proper notice that it intended to adopt a mitigated negative declaration.

The city started over. It prepared a new initial study that identified several potentially significant environmental impacts, but found that those impacts could be mitigated. At a March 2002 hearing, an advisory agency was not satisfied and told the planning department to reconsider impacts to, among other things, wildlife, traffic, drainage and trees. The planning department then prepared another initial study and proposed mitigated negative declaration in May 2002 — only to draft yet another initial study and mitigated negative declaration for a 21-lot subdivision. In late 2002, the advisory agency approved a mitigated negative declaration with two modified conditions, and the tentative tract map. On appeal, the Planning Commission and the City Council upheld the tract map and mitigated negative declaration, although the City Council added 10 more conditions.

Mejia sued again, but this time she lost at the trial court. On appeal, a unanimous three-judge panel of the Second District Court of Appeal overruled the lower court.

The appellate panel first found that the administrative record prepared by the city was incomplete because it contained no documents from the period before the 2001 trial court decision overturning project approval. Mejia had sought to have some of the missing documents added to the record, but she did not get far with the Superior Court.

Among the documents Mejia wanted the court to review — and which the Second District was willing to consider — was a biotic assessment prepared in 1989. The assessment stated that the proposed subdivision site was “relatively rich in animal life,” including some rare birds. The site also provided a small mammal movement corridor. “One should expect that any urbanization on the site will have negative impacts on most animal numbers,” the study said. The city did not prepare a new biotic assessment for the latest subdivision proposals. Instead, the city’s initial study concluded “the project will not impact areas containing significant ecological resources.”

Based on the 1989 assessment and the testimony of residents who have observed golden eagles, other resident and migratory birds, and various mammals and reptiles, the court found that a fair argument could be made that the proposed development may impact wildlife.

“The mitigation measures set forth in the mitigated negative declaration as conditions of project approval were not designed to mitigate significant impacts on wildlife because the city did not acknowledge any potentially significant impact on animal wildlife,” Justice Walter Croskey wrote for the Second District.

Regarding potential impacts to traffic, the city relied heavily on its own thresholds of significance. Under that policy, a single-family home development of fewer than 40 units is considered to have an insignificant impact on traffic.

However, the court ruled that a project’s falling below a threshold of significance “does not relieve a public agency of the duty to consider the evidence under the fair argument standard.” In this case, that evidence included testimony from residents regarding conflicts between motorists, equestrians and pedestrians — all of whom share Wheatland Avenue.

“In light of the public comments and absent more careful consideration by city engineers and planners,” Croskey wrote, “the evidence supports a fair argument that the increased traffic on Wheatland Avenue as a result of the project would be substantial considering the users of the road.”

The court overturned the project approval and ordered preparation of an EIR.

The Case:
Mejia v. City of Los Angeles, No. B174453, 05 C.D.O.S. 5264, 2005 DJDAR 7181. Filed May 27, 2005. Ordered published June 16, 2005.

The Lawyers:
For Mejia: Maria Mejia for herself.
For the city: Jack Brown, assistant city attorney, (213) 978-8177.
For California Home Development: L. Douglas Brown, (310) 277-7747.