The appeals court overturned all city approvals for the project and revoked all the construction permits

BY GARY WALKER

A state appeals court in Los Angeles voted unanimously to halt construction on the second stage of commercial and residential development for Playa Vista, dealing the Playa Vista Capital real estate group a powerful and potentially costly legal setback.

The California Second District Court of Appeal found that the Los Angeles City Council violated the California Environmental Quality Act (CEQA) after it approved an environmental impact report that permitted construction for the development’s second phase in 2005.

“The [environmental impact report on the project] was deficient in its analysis of land use impacts, mitigation of impacts on historical archaeological resources, and wastewater impacts,” the court declared in its ruling.

The California Environmental Quality Act, a landmark state environmental statute, is the basis for environmental law and policy to protect environmental quality in California.

The judicial order covers two consolidated cases involving groups as diverse as the Ballona Wetlands Land Trust, the Tongva/Gabrieleno Tribal Council of San Gabriel, the City of Santa Monica, the Surfrider Foundation and the Ballona Ecosystem Education Project.

The verdict calls for the immediate stoppage of construction of the 111-acre Phase 2 project, which includes The Village at Playa Vista, the commercial linchpin of the development.

The appellate court overturned all city approvals for the project and revoked all of the permits acquired for the construction work.

Under the court ruling, Los Angeles City Council is mandated to comply with CEQA, write a new environmental impact report (EIR) and hold new public hearings.

Amenities for The Village include new public parks, a neighborhood retail center and 2,600 residential units. It was slated to have 175,000 square feet of office space, 150,000 square feet of retail space and 40,000 square feet of other uses.

As part of the second phase, traffic improvements have been added to increase the flow of traffic on Jefferson Boulevard.

“All construction activities on the project by any person are hereby ordered to be stayed effective immediately,” the court ordered. “The Superior Court is directed to issue an order enjoining all project activities that it finds would prejudice the city’s consideration or implementation of mitigation measures or alternatives and that could result in an adverse change to the physical environment, until the city fully complies with CEQA.”

The legal action overturns a previous decision by a lower court that upheld the City Council’s approval of the EIR on January 10th.

Environmental organizations that have opposed Playa Vista throughout its development wasted no time in cheering the court edict.

Rex Frankel, president of the Ballona Ecosystem Education Project stated, “This victory for the people of Los Angeles is a victory for telling the truth on development decisions. The court rejected the developer’s masquerade about benefits to the public, which in fact did not actually exist.

“The Playa Vista developers threatened the public with a monster development to beat the public into submission to accept a slightly smaller, but still enormous, project. However, the court agreed with us that the developers never had the rights to build this monster project in the first place.”

Joe Geever, the Surfrider Foundation’s state policy director, also focused on the size and scope of the development project.

“We are ecstatic that the issue of questionable wastewater planning and associated environmental impacts is finally seeing the light of day,” Geever said. “Our major concern was that the city was approving more pressure on outdated sewage treatment capacity and unabated urban runoff without fully understanding the additional adverse impacts on coastal and ocean water quality and human health risks.”

Los Angeles City Councilman Bill Rosendahl, whose district includes Playa Vista, called the court’s decision “a very significant judgment and important news for our community.”

Rosendahl, who was not on the City Council when Phase 1 was approved, pointed out that he opposed the second stage of the development.

During the 2005 campaign for the council seat that he currently holds, Rosendahl believes that his opposition to the second stage of Playa Vista’s development project was, in his words, “the defining moment of the campaign.”

Anthony Morales, chief of the Tongva/Gabrieleno Tribal Council of San Gabriel, views the verdict as a victory for his tribe.

“We’re hoping that a right can be done after enduring all of the wrongs that we’ve had to suffer during this case,” he told The Argonaut.

Part of the recent construction project encompasses a Tongva/ Gabrieleno burial ground, which Native Americans consider to be sacred.

“The developer was desecrating our burial grounds,” Morales alleged. “Building a development there was an atrocity.”

The tribal chief is pleased that construction has been halted after his prior pleas in front of the council were rebuffed.

“Our message from the beginning has been that the council should have stepped in and stopped the developer from desecrating our sacred burial grounds,” he said. “What the Los Angeles City Council did was shameful.”

Typically, if a gravesite or burial ground is within a project of this magnitude, it would have been stopped earlier, says Robin Turner, an archeologist and paleontologist who works on EIR projects throughout California and is very familiar with CEQA regulations.

“(Los Angeles) should have stepped in and looked at this much more closely,” Turner said.

Sabrina Venskus, the lead attorney for the plaintiffs, feels that the decision to stop further construction of the project was not typical of the way most appellate decisions are handed down.

“This is somewhat unusual for a court to issue an immediate stay,” Venskus said. “Usually an injunction is sent to the trial court where the injunction or remedy is implemented.

“I think that it was compelling to the court that we provided evidence that Playa Vista continued to do construction work in the face of litigation.”

The subject of the Native American burial ground also has significance, Venskus said.

“The court gave the council the authority to have the remains of the Tongva/Gabrieleno tribe’s ancestors re-interred on the hillside burial grounds,” she said. “The question is, ‘Will the council request that the developer bring those remains back to their burial ground?'”

Steven Sugerman, a Playa Vista spokesman, believes that there is a silver lining to the court’s verdict. Despite the court siding with the plaintiffs on land use, the availability of wastewater and the preservation of archaeological resources, Playa Vista did prevail on the the analysis of methane gas mitigation and transportation impacts, he pointed out.

“The same opponent groups who have been alleging Playa Vista has not mitigated these issues were a part of the lawsuit and they were rejected,” Sugerman noted.

Although the appellate court sided against the development company on the major issues of the case, Playa Vista president Steve Soboroff stated that several components of the residential and commercial complex would continue.

“The Playa Vista community continues to thrive, and this ruling will not in any way alter our plans to achieve the ultimate vision of this wonderful community that is now home to 5,000 residents and growing,” Soboroff said. “Development of the commercial campus is proceeding with the best developers in America, and the Clippers [basketball team] training facility is expected to be completed next year.

“Despite the professional project opponents, we remain confident that the Playa Vista vision will ultimately be realized.”

Venskus, an attorney who specializes in environmental law, acknowledged that the defendant’s arguments regarding methane gas mitigation and transportation were upheld by the court, but she feels the ruling addressed the most important environmental aspects of the case.

“There are no other cases that I am aware of that address wastewater treatment and availability, and that was one of the key issues that the court ruled on in this case,” Venskus said. She mentioned a recent California Supreme Court ruling where the plaintiffs in a land use case prevailed, and the appellate court touched on similar points in its verdict last week.

“That’s why this case is so important,” Venskus asserted. “It is a landmark decision in the sense that it applies Supreme Court reasoning to the process of availability of water treatment.”

Morales, the Native American tribal chief, was primarily concerned about his tribe’s ancestral burial grounds but also about the large swath of wetlands that was used to build Playa Vista.

“Part of our culture is respect for the land,” he explained. “Our people used to camp near the wetlands, and when we see what the developer has done there, it’s like part of our history and our culture has been destroyed.”

Venskus believes that the appellate court edict can serve as a cautionary tale to agencies that are charged with reviewing environmental impact reports and the consequences of failing to take into account the definition of CEQA, the landmark state environmental statute.

“City councils need to read their EIRs very carefully and not rely on developers to interpret them,” Venskus recommends. “They need to start listening to the public and do the right thing for all parties involved.”

Turner agrees, adding, “If a city is smart, they should have a CEQA expert on staff so that they won’t have to go through litigation. A lot of cities don’t understand the law, but that’s no excuse.”

Rosendahl said that the next step for him would be to explore all of the legal possibilities and ramifications of the verdict and where he and his council colleagues go from here.

“Right now, we don’t know what the immediate effects (of the judgment) are,” said the councilman. “I will be meeting with our city attorney to see what the next course of action should be to fully digest and understand the implications of the ruling, and to get a better sense of what issues will return to the City Council for review.”

Executives of Playa Vista Capital are contemplating whether or not to consider further litigation of the case. Their options include requesting another hearing in front of the appellate court or petitioning the California Supreme Court.

“Playa Vista is a model community for the nation,” said Soboroff. “We look forward to completing the necessary legal steps and proceeding with the second and final phase that will deliver substantial community benefits, including workforce housing, open space, public parks, regional transportation improvements and neighborhood -serving retail.”

Venskus is hopeful that the City Council will consider the wishes of her clients, the environmental community and the significance of the verdict if they decide to craft another EIR.

“This is an opportunity for the City Council to do the right thing by its constituents, and my clients are confident in Mayor Antonio Villaraigosa, who was against the second phase of Playa Vista, and councilmembers like Bill Rosendahl — we are optimistic that they will do what’s right.”

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