Court Rules Builders Four Applications Should Be Reviewed as One Project
The City of Los Angeles was correct to treat as one project a builder's various proposals for 21 new houses on existing parcels on two streets, the Second District Court of Appeal has ruled. The court rejected the builder's contention that the city could not demand an environmental impact report on the 21 houses, five of which have already been built.
The case involved a builder who appeared to be on the verge of getting his project through the system without comprehensive environmental review. It was only the activities of a group of residents that forced the city to reconsider how it was handling the project.
During the 1980s, Yehuda Arviv and his company Arviv Enterprises purchased 21 legal lots on Leicester Drive and Woodstock Road in the hilly Mulholland area. In 1988, the city's engineering department approved a geological, grading and soils report regarding 11 proposed residences, but Arviv's plans lay dormant for 10 years.
In 1992, the city adopted the Mulholland Scenic Parkway Specific Plan, which included the area of Arviv's lots. In 1998, Arviv received approval from the planning and building departments to construct three houses on Woodstock Road. Soon thereafter, he received approval to build two more houses on Woodstock. The approvals came, apparently, without environmental review or the scrutiny of the Mulholland Design Review Board. By early 2000, Arviv had completed four houses and a fifth was 80% done. The company then applied for a third application to build two more houses, but this application got directed to the Design Review Board.
While that project was pending before the Design Review Board, Arviv filed another application for 14 houses on Leicester Drive. The city planning department approved a mitigated negative declaration for the 14-house project and sent it to the Design Review Board as well.
At a June 2000 meeting of the Design Review Board, neighbors complained about problems with construction of the five houses and the need for better emergency access. The board recommended approval of the two-house project anyway and said it was categorically exempt from California Environmental Quality Act review. The planning director then approved the two-house project.
Two residents appealed the planning director's decision to the South Valley Area Planning Commission, which recommended preparation of a mitigated negative declaration for the seven houses on Woodstock. Over time, however, it became clear that Arviv's was a 21-house project, which required design review and a number of variances for tall structures. Over the objection of Arviv, who noted that five of houses were already on the market, the Commission in late 2000 decided to require an environmental impact report on the 21-house project as a whole.
Arviv sued the Planning Commission. Los Angeles County Superior Court Judge Dzintra Janavs ruled for the Commission, finding that the record contained substantial evidence to support a fair argument that the project could have adverse environmental impacts. A unanimous three-judge panel of the Second District, Division Seven, upheld the ruling.
"This entire case is the direct result of inadequate, or misleading, project descriptions," Justice Earl Johnson Jr. wrote for the court. "Arviv never intended a two or three house project … he always envisioned a 21-house development."
On appeal, Arviv contended he had a vested right to build based on permits and environmental clearances he had already received. But the court decided that requiring an EIR did not impinge on any vested right, in part because the city did not follow the law when approving the first five houses.
"Although five of the houses are already built, these structures are only part of all the amenities required to make those houses habitable," Johnson wrote. "Unresolved issues specifically regarding those five houses include ensuring adequate street width, an emergency vehicle turnaround area, sewer system design, drainage and other matters which demonstrate even the five-house project is not yet complete. … An EIR can consider the cumulative environmental impacts of the first five houses on Woodstock Road together with the rest of Arviv's proposed project."
The court also found plenty of evidence behind the city's decision to require an EIR. Questions about emergency vehicle access on a narrow, dirt road, hillside stability, the proposed construction of a retaining wall that would reach 50 feet in height, and how the houses would connect to the sewer line remained unresolved, the court found.
Arviv Enterprises, Inc. v South Valley Area Planning Commission, No. B156529, 02 C.D.O.S. 9410, 2002 DJDAR 10527. Filed September 11, 2002.
For Arviv: Gerald Krupp, (818) 508-5712.
For the commission: Susan Pfann, office of city attorney, (213) 485-5408.