Opinion
B201034
4-14-2008
8461 WARNER DRIVE, LLC, Plaintiff and Appellant, v. CITY OF CULVER CITY, et al., Defendants and Respondents; CONJUNCTIVE POINTS WARNER DEVELOPMENT, LLP, et al., Real Parties in Interest.
Cox, Castle & Nicholson, Tamar C. Stein, Paul J. Titcher and James R. Repking for Plaintiff and Appellant. Kane, Ballmer & Berkman, Murray O. Kane and Donald P. Johnson for Defendants and Respondents. Hill, Farrer & Burrill, Arthur B. Cook and Dean E. Dennis for Real Parties in Interest.
NOT TO BE PUBLISHED
I. INTRODUCTION
This case concerns the sale of a city-owned parking lot to developers. Plaintiff, 8461 Warner Drive, owns property adjacent to a 242-space parking lot. Plaintiff appeals from a judgment granting a peremptory writ of mandate. Plaintiff contends the parking lot was sold without environmental review in violation of the California Environmental Quality Act. (Pub. Res. Code, § 21000 et seq.). The defendants are the City of Culver City and the City Council of the City of Culver City (the city). The real parties in interest are the developers, Conjunctive Points Warner Development, LLP, Samitaur Constructs, and Frederick Samitaur Smith. Pursuant to the writ of mandate, California Environmental Quality Act compliance is required as to any future development of the parking lot. We affirm the judgment.
All further statutory references are to the Public Resources Code unless otherwise noted.
II. BACKGROUND
The developers intended to purchase the 242-space parking lot from the city and develop it together with adjacent property they sought to acquire. The project planned for the combined lots—the Warner Theater Complex—was to have included theaters, retail space, restaurants, offices, and underground parking. The developers purchased the parking lot from the city. But the developers never acquired the neighboring land. The parking lot purchase and sale agreement and recorded covenants require the developers to continue to provide at least 242 public parking spaces on the lot or at a substitute location for 10 years.
Plaintiff challenged the parking lot sale. Plaintiff asserted the city wrongfully approved the sale without any environmental review and no consideration of the Warner Theater Complex development plan. The trial court found the sale was severable from the proposed Warner Theater Complex project so long as the parcel was not developed and continued to be used solely as a parking lot. The trial court issued a peremptory writ of mandate and ordered: "(a) The City and Real Parties shall not develop, alter or change the use of the property . . . so as to alter the physical environment without complying with the California Environmental Quality Act . . . . [¶] (b) The City and Real Parties shall not transfer any interest in the Property without obtaining written confirmation from the transferee that it has received actual notice of this writ and agrees to be bound by it." The trial court reserved jurisdiction until it has determined that the city and the developers have complied with its orders. (§ 21168.9, subd. (b).) The developers subsequently submitted an application to develop the lot with a five-level parking garage; thus, abandoning the Warner Theater Complex development plan. The proposed structure would include more than 800 parking spaces and approximately 51,000 square feet of retail space. At the time the writ of mandate issued, however, there was no evidence before the trial court that the Warner Theater Complex project had been abandoned.
III. DISCUSSION
A. Introduction
The California Environmental Quality Act is intended to protect the environment by requiring government agencies to consider the environmental impacts of their decisions. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74; Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 910.) An agency must prepare an environmental impact report for any proposed project that may have a significant effect on the environment. (§ 21100, subd. (a); No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 74.) This case involves a decision under the California Environmental Quality Act to allow a parking lot sale and its continued use as such prior to environmental review of any development of the land. Two issues are presented—mootness and severability.
B. Mootness
The city and the developers argue this case is moot as the development project initially proposed—the Warner Theater Complex—has now been abandoned. The Court of Appeal has held: "[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. (Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069.)" (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.) We conclude the present controversy is not moot. Plaintiff challenged the trial courts severance of the parking lot sale. It argued the trial court improperly allowed the sale to go forward without California Environmental Quality Act review. That the Warner Theater Complex project may have been abandoned would not necessarily preclude a finding the parking lot sale should be set aside.
C. Severability
Plaintiff challenges the trial courts severability finding. We conclude substantial evidence supported that decision. The severability issue arises under section 21168.9, subdivision (b). Section 21168.9 was originally enacted in 1984. As amended in 1993 and effective today, section 21168.9 provides: "(a) If a court finds, as a result of a trial, hearing, or remand from an appellate court, that any determination, finding, or decision of a public agency has been made without compliance with this division, the court shall enter an order that includes one or more of the following: [¶] (1) A mandate that the determination, finding, or decision be voided by the public agency, in whole or in part. [¶] (2) If the court finds that a specific project activity or activities will prejudice the consideration or implementation of particular mitigation measures or alternatives to the project, a mandate that the public agency and any real parties in interest suspend any or all specific project activity or activities, pursuant to the determination, finding, or decision, that could result in an adverse change or alteration to the physical environment, until the public agency has taken any actions that may be necessary to bring the determination, finding, or decision into compliance with this division. [¶] (3) A mandate that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division. [¶] (b) Any order pursuant to subdivision (a) shall include only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division. The order shall be made by the issuance of a peremptory writ of mandate specifying what action by the public agency is necessary to comply with this division. However, the order shall be limited to that portion of a determination, finding, or decision or the specific project activity or activities found to be in noncompliance only if a court finds that (1) the portion or specific project activity or activities are severable, (2) severance will not prejudice complete and full compliance with this division, and (3) the court has not found the remainder of the project to be in noncompliance with this division. The trial court shall retain jurisdiction over the public agencys proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with this division. [¶] (c) Nothing in this section authorizes a court to direct any public agency to exercise its discretion in any particular way. Except as expressly provided in this section, nothing in this section is intended to limit the equitable powers of the court." (Stats. 1993, ch. 1131, § 9, italics added.)
As originally enacted, section 21168.9 provided: "(a) If a court finds, as a result of a trial, hearing, or remand from an appellate court, that any determination, finding, or decision of a public agency has been made without compliance with this division, the court shall enter an order that includes one or more of the following: [¶] (1) A mandate that the determination, finding, or decision be voided by the public agency. [¶] (2) A mandate that the public agency and any real parties in interest suspend all activity, pursuant to the determination, finding, or decision, that could result in any change or alteration to the physical environment, until the public agency has taken such actions as may be necessary to bring the determination, finding, or decision into compliance with this division. [¶] (3) A mandate that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division. [¶] (b) Any order pursuant to subdivision (a) shall be made by the issuance of a peremptory writ of mandate specifying what action by the public agency is necessary to comply with this division. The trial court shall retain jurisdiction over the public agencys proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with this division. [¶] (c) Nothing in this section authorizes a court to direct any public agency to exercise its discretion in any particular way. [¶] (d) This section applies to any matter pending before any court on or after January 1, 1985, in which that court has not, on or before that date, entered its order determining whether the public agency has acted in accordance with this division." (Stats. 1984, ch. 1213, § 1.)
Section 21168.9 was intended to afford trial courts the flexibility to tailor remedies to the circumstances. (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1181; San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (2001) 89 Cal.App.4th 1097, 1103-1105.) As the Court of Appeal explained in San Bernardino Valley Audubon Society v. Metropolitan Water Dist., supra, 89 Cal.App.4th at pages 1103-1105: "Section 21168.9 was enacted in 1984 to give the trial courts some flexibility in tailoring a remedy to fit a specific [California Environmental Quality Act] violation. [Citations.] . . . [¶] . . . [¶] The 1993 amendments to section 21168.9 expanded the trial courts authority and `expressly authorized the court to fashion a remedy that permits some part of the project to go forward while an agency seeks to remedy its [California Environmental Quality Act] violations. In other words, the issuance of a writ need not always halt all work on a project. (Remy et al., Guide to the Cal. Environmental Quality Act (10th ed. 1999) p. 647.)"
The Supreme Court first construed section 21168.9 in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 422-425, prior to the aforementioned 1993 amendments. The Supreme Courts decision rested on former section 21168.9, subdivision (a). But the decision is noteworthy for allowing existing activities to continue despite California Environmental Quality Act noncompliance. The question before the court involved the sufficiency of an environmental impact report on the proposed relocation of University of California biomedical research facilities. (Id. at p. 387.) A neighborhood association challenged the environmental impact report. (Ibid.) The Supreme Court found the environmental impact report was inadequate in certain respects. (Id. at pp. 393-407.) However, the Supreme Court applied "traditional equitable principles" (id. at p. 423) in determining whether it should require the university to "suspend all activity" (former § 21168.9, subd. (a)(2)) pending California Environmental Quality Act compliance. The Supreme Court held the university could continue its current activities at the site pending certification of an adequate environmental impact report. (Id. at pp. 422-425; see Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 595.) There was no evidence the environment was being adversely affected by the existing activities; the defects in the environmental impact report related only to future activity. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 424.)
The Court of Appeal specifically considered the severance provisions of section 21168.9, subdivision (b) in Anderson First Coalition v. City of Anderson, supra, 130 Cal.App.4th at pages 1180-1181. The planned development consisted of a retail center anchored by a Wal-Mart superstore and a gas station. The Court of Appeal upheld the trial courts decision to sever the gas station portion of the project. The environmental impact report had not evaluated the gas stations traffic and air quality impacts. But the defects in the environmental impact report related only to the proposed gas station and not to the retail center as a whole. (Id. at pp. 1178-1181.) The Court of Appeal concluded a trial court may properly sever a portion of a project when the environmental impact report defects relate only to a separate aspect of the project. (Id. at pp. 1180-1181; compare Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1221 ["No discrete or severable aspects of the projects are unaffected by the omitted analyses"].)
City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1455-1456, is to the same effect. There the Court of Appeal held San Diego County could continue to use a detention facility pending California Environmental Quality Act compliance: "Recognizing the emergency situation concerning countywide jail overcrowding and the good faith attempt of the county to comply with court limits on that overcrowding and the closing of the Vista detention facility, and in light of the ongoing permanent jail expansion projects, we believe [the California Environmental Quality Act] will not be thwarted by allowing the existing temporary detention facility to remain at Las Colinas pending the new [environmental impact report] process. . . . [¶] . . . [T]here is no evidence the environment is being adversely affected beyond the scope of the present [environmental impact report]. As the defects in the [environmental impact report] relate to future activities that the [environmental impact report] failed to address, . . . the general public might be unduly prejudiced if we were to enjoin the use of the expanded Las Colinas facility. Thus we hold the County may continue use of that facility until a new [environmental impact report] is certified and the project reapproved by the Board." (Id. at p. 1456; see Burbank-Glendale-Pasadena Airport Authority v. Hensler, supra, 233 Cal.App.3d at p. 596, fn. 4.)
Decisional authority does not specifically address the standard of review on appeal from a trial courts section 21168.9, subdivision (b) severability determination. But a trial court must find: a project activity is severable; severance will not prejudice California Environmental Quality Act compliance; and there is no California Environmental Quality Act noncompliance finding as to the remainder of the project. (§ 21168.9, subd. (b).) Accordingly, we conclude substantial evidence is the appropriate standard of review. (See County of Amador v. City of Plymouth (2007) 149 Cal.App.4th 1089, 1112-1113; Anderson First Coalition v. City of Anderson, supra, 130 Cal.App.4th at pp. 1180-1181; Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1383 [remand for severability determination]; San Bernardino Valley Audubon Soc. v. Metropolitan Water Dist. of Southern California, supra, 89 Cal.App.4th at pp. 1107, 1108 [remand for appropriate section 21168.9 findings].)
Plaintiff contends there can be no severance when no environmental review has occurred. Plaintiff reasons: "The plain reason for this rule is that it is impossible for a court to determine that the project activity proposed to be severed is in compliance with [the California Environmental Quality Act] if no [California Environmental Quality Act] review has occurred. . . . [W]ithout [California Environmental Quality Act] review a court cannot determine what the environmental consequences of the project might be." We disagree that environmental review must in all cases precede a severability finding under section 21168.9, subdivision (b). Section 21168.9 by its terms allows a trial court to issue a peremptory writ of mandate directing a public agency to take specific action necessary to ensure California Environmental Quality Act compliance. Section 21168.9, subdivision (b), as amended in 1993, was intended to allow flexibility in fashioning remedies in California Environmental Quality Act cases. (Anderson First Coalition v. City of Anderson, supra, 130 Cal.App.4th at p. 1181; San Bernardino Valley Audubon Soc. v. Metropolitan Water Dist. of Southern California, supra, 89 Cal.App.4th at pp. 1103-1105.) Nothing in the statutory language requires environmental review occur before a severance order is issued. Here, the trial court ordered the city and the developers not to develop or change the use of the parking lot so as to alter the physical environment absent California Environmental Quality Act compliance. The judgment maintains the status quo—the existence of the parking lot and its use as such without change—pending a decision to develop the land in a particular way, at which time environmental review will occur. This was a reasonable application of section 21168.9 under the circumstances.
Plaintiff argues the judgment prejudices complete and full California Environmental Quality Act compliance by: "(1) depriving decision[-]makers and the public of their right to meaningfully review and comment on the [Warner Theater Complex] Project before the [parking lot] was sold; (2) depriving the City of its broadest power to influence project design and impose mitigation measures; and (3) failing to preserve the status quo." Plaintiff asserts the city should have prepared an environmental impact report on the proposed Warner Theater Complex before the parking lot was sold; further, the only way to remedy the California Environmental Quality Act violations is for the sale to be set aside. But the Warner Theater Complex project, or an alternative thereto, has yet to undergo environmental review. When that occurs, the city and the public will have the opportunity to review and comment on the plan; moreover, the city will be able to exercise all of its California Environmental Quality Act rights, including the imposition of appropriate mitigating conditions. Here, to paraphrase the analysis in Anderson First Coalition v. City of Anderson, supra, 130 Cal.App.4th at page 1181, "[N]o free passes from environmental review have been issued. Should the [Warner Theater Complex project] ever be proposed again, it will have to be environmentally reviewed . . . ."
Plaintiff argues the parking lot sale should be subject to California Environmental Quality Act review insofar as it impacts parking availability. Plaintiff asserts the parking lot sale results in a loss of parking that will never be considered in any environmental review. Plaintiff predicts that the developers will immediately "relocate" available parking, leading to a loss of spaces where cars may be parked. Plaintiff asserts that when environmental review does occur, it will occur "against a baseline [physical environmental condition] where no parking spaces exist and there is no future obligation" to provide such. Plaintiff concludes, "If the sale is not vacated, the City will have squandered the opportunity to evaluate the [Warner Theater Complex project] when it could have imposed mitigation measures, such as those for loss of parking, while it still had the power to do so."
This argument as to parking availability is unpersuasive. First, the record before us contains no evidence of any change in parking availability. There is no evidence the number of parking spaces available has or will be reduced. The developers are obligated to provide at least 242 parking spaces for 10 years. The proposed parking garage would contain more than 800 parking spaces. Moreover, absent California Environmental Quality Act review, the developers must use the lot solely for parking.
Second, a shortfall in parking availability by itself is not a matter that must be the subject of environmental review. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 695-698; Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 Cal.App.4th 786, 798-799.) In San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at pages 696-697, the plaintiffs objected to a project requiring that an historic building be demolished. They argued in part that the environmental impact report did not adequately address the demand for new parking the project would generate. The environmental impact report discussed means to mitigate the secondary environmental impacts of an increased demand for parking. (Id. at p. 696-697.) The Court of Appeal held: "Contrary to appellants apparent assumption, there is no statutory or case authority requiring an [environmental impact report] to identify specific measures to provide additional parking spaces in order to meet an anticipated shortfall in parking availability. The social inconvenience of having to hunt for scarce parking spaces is not an environmental impact; the secondary effect of scarce parking on traffic and air quality is. Under [the California Environmental Quality Act], a projects social impacts need not be treated as significant impacts on the environment. An [environmental impact report] need only address the secondary physical impacts that could be triggered by a social impact. (Guidelines [for Implementation of the California Environmental Quality Act], § 15131, subd. (a).) [¶] Thus, the [environmental impact report] correctly concluded that `[p]arking shortfalls relative to demand are not considered significant environmental impacts in the urban context of San Francisco. Parking deficits are an inconvenience to drivers, but not a significant physical impact on the environment. (Italics added.)" (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at p. 697; 4 Cal. Real Est. Digest 3d Pollution and Conservation Laws § 2.5.)
The Guidelines for the Implementation of the California Environmental Quality Act, California Code of Regulations, title 14, section 15131 provides: "Economic or social information may be included in an [environmental impact report] or may be presented in whatever form the agency desires. [¶] (a) Economic or social effects of a project shall not be treated as significant effects on the environment. An [environmental impact report] may trace a chain of cause and effect from a proposed decision on a project through anticipated economic or social changes resulting from the project to physical changes caused in turn by the economic or social changes. The intermediate economic or social changes need not be analyzed in any detail greater than necessary to trace the chain of cause and effect. The focus of the analysis shall be on the physical changes." (<http://ceres.ca.gov/topic/env_law/ceqa/guidelines>.)
Santa Monica Chamber of Commerce v. City of Santa Monica, supra, 101 Cal.App.4th at pages 798-799, contains a similar discussion. The city had created a parking district where residential parking permits would be required. Opponents argued an environmental impact report was necessary. The Court of Appeal disagreed. The Court of Appeal found there was no substantial evidence of any "[California Environmental Quality Act]-cognizable significant effect" on the environment. (Id. at pp. 800-801.) The Court of Appeal stated, "[T]he . . . social and/or economic impacts [noted above] do not contribute to, and are not caused by physical impacts on the environment." (Id. at p. 800.)
In the present case, we conclude there is no evidence of a parking shortfall or of any resulting secondary environmental impacts. Moreover, nothing about the parking lot sale prevents the city from imposing mitigating conditions with respect to parking availabilitys environmental effects when the Warner Theater Complex project or an alternative development is subject to California Environmental Quality Act review.
Plaintiff contends the parking lot sale must be vacated in order to preserve the status quo. Plaintiff asserts, "If the sale is not set aside, the momentum behind [the developers] [Warner Theater Complex project] will build and environmental review may occur too late to make a difference." Plaintiff theorizes the developers will: attempt to manipulate the approval process; piecemeal the development; and build a parking structure as a podium to accommodate future development. This argument, based purely on speculation, is without merit. (See Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 777; Yuzon v. Collins (2004) 116 Cal.App.4th 149, 166.)
IV. DISPOSITION
The judgment is affirmed. Defendants, the City of Culver City and the City Council of the City of Culver City, and the real parties in interest, Conjunctive Points Warner Development, LLP, Samitaur Constructs, and Frederick Samitaur Smith, are to recover their costs on appeal from plaintiff, 8461 Warner Drive, LLC.
We concur:
MOSK, J.
KRIEGLER, J.