Citing Legal Procedure Before Reaching Litigation's Merits, Judge Dismisses Environmental Legal Action Challenging Riverwalk Development; Issue Now Shifts To 8th Dist. Council Race

The issue now shifts to the court of public opinion...with vote by mail ballots flying now in the 8th Council district where candidate Laurie Angel has criticized Council incumbent Al Austin for his votes approving the development despite its neighborhood impacts and density. Challenger Wesley Turnbow has faulted the city's approval process, without squarely criticizing the project or its density.

In ruling for the developer's legal position, the court effectively acknowledged that a Deputy City Attorney and separately, a city planner, had provided two members of the public -- Mike Kowal and Ann Cantrell -- with a date on which a time-triggering document [Notice of Determination or NOD] had been filed that led the community members to conclude they had more time to file their challenge than they did.

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Superior Court Judge Richard L. Fruin reasoned as follows:

[Text from court ruling] "Petitioner's members [Kowal and Cantrell] did not ask whether an earlier NOD for the project had been filed. The November 18, 2015 NOD that Cantrell received from the City Planner stated, moreover, that the City had taken earlier action on the project on November 10, 2015 by amending the General Plan and making certain determinations "pursuant to the provisions of CEQA."

Judge Fruin declined to acknowledge that the developer and the city were "estopped" [prevented from asserting] the 30 day time limit because "the information provided by the City employees responded accurately to the questions put to them and, therefore, was not the cause of Petitioner's failure to act in a timely manner. The court rejects Petitioner's estoppel argument as a basis to avoid the Legislative deadlines for the filing of a CEQA challenge [citations in ruling text below.]

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Text of court ruling, filed Mar. 23

...The court on March 15, 2016 heard argument and took under submission three motions. The parties, at the court's request, provided a transcript and the court has reviewed the transcript. The court before the hearing issued a tentative ruling but withdrew the tentative ruling when it took the motions under submission. The court issues the following rulings.

A. RULING ON MOTION OF REAL PARTIES IN INTEREST THE LONG BEACH PROJECT, LLC, DEM INVESTMENT CO., LLC and INTEGRAL COMMUNITIES I, INC. [and JOINED BY RESPONDENT CITY OF LONG BEACH] FOR JUDGMENT ON THE PLEADINGS:

The court GRANTS the motion for judgment on the pleadings. The Verified Petition is barred as it was not filed within 30 days of the filing of the initial Notice of Determination (NOD).

Petitioner [CARP] challenges the City's certification of the EIR and approval of discretionary approvals for the development of a 1 0.56 acre parcel with a gated community of 1 31 single-family homes.

The Petition alleges that the City's actions/approvals do not comply with CEQA. Those claims must be filed within 30 days from the City's filing of the Notice of Determination (NOD). Public Resources Code section 21167(c); CEQA Guidelines section 15112(c) (1) and 15352(b).

TIMELINE:

11/10/15: City Council first approved the subject Project at a meeting by (i) certifying the EIR; and approving (ii) General Plan Amendments; (iii) a tentative tract map; and (iv) a site plan, all of which took effect immediately and required no further action by the City.

11/12/15: City filed an NOD with the County Clerk, which informed the public of these approvals and that the City "has determined to carry out the ... project." Request for Judicial Notice ("RJN"), Ex. A. The NOD gives notice, among other things, that the project "will not have a significant effect on the environment."

11/17/15: City Council held second reading on and approved certain amendments to ordinances necessary to subject Project.

11/18/15: City file an NOD with the County Clerk, which informed the public of the Council's action to approve amendments to ordinances. The NOD also recited that 'The City Council previously determined to carry out the above described project on November 10, 201 5 by [describing Project]." RJN, Exh. C. (underlying original).

12/7/15: Michael Kowal, CARP member, calls deputy city attorney "to ask when the... NOD was filed" for project; deputy city attorney by email responds "the file date was November 18th." Kowal decl., para. 6, Exh. A.

12/8/15: Ann Cantrell, CARP member, calls city planner "to ask when ... NOD was filed" for project. The planner in response sends a file-stamped copy of NOD filed on November 18 and states "[t]his NOD was filed with the Los Angeles County Clerk ... on 11 /18/1 5, the day after the Council hearing approving this project."

12/14/15: Date by which Petition had to be filed if filing required is within 30 days from the filing of the first NOD.

12/18/l5: Petitioner filed this action, captioned "Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief," challenging CITY's approval of the EIR, etc.

The court takes judicial notice of the NOD documents that are included in MP's Request for Judicial Notice and Supplemental Request for Judicial Notice, specifically including the NOD that is dated and filed on November 12, 2015 with the County Recorder. RJN, Exh. A. That NOD provides notice of the detailed actions taken on November 10, 201 5 on a CEQA project and thus starts the 30- day period within which any judicial challenge to the City's action on the project must be filed. Public Resources Code section 21167(c); CEQA Guidelines section 1 5112(c) (1) and 153 52(b); Committee for Green Foothills v. Santa Clara County Bd. Of Supervisors (2010) 48 Cal.4th 32, 47.

The fact that the City a week later took further action on the same project, and that further action is noticed in a subsequent NOD, does not establish a new period within which a judicial challenge may be filed. Van de Kamps Coalition v. Board of Trustees (2012) 206 Cal.App.4th 1036, 1039. Petitioner, in its opposition, argues that Real Party and Respondent are estopped to rely on a 30-day limitations period. Petitioner relies on the fact that a Deputy City Attorney and, separately, a City Planner when asked by Michael Kowal and Ann Cantrell when the NOD for the project was filed responded that the City had filed an NOD on November 18, 2015. A file-stamped copy of the November 18, 2015 NOD was emailed to Cantrell by the City Planner. The City Planner's email attached to the Cantrell declaration states: ''This NOD was filed with the Los Angeles County Clerk at their Norwalk office on 11 /18/15." (Cantrell decl, Exh. A, underlying added.) The information provided by the City employees was correct-the NOD filed November 18 was the NOD reporting the most recent City action taken with respect to the project. Petitioner's members did not ask whether an earlier NOD for the project had been filed. The November 18, 2015 NOD that Cantrell received from the City Planner stated, moreover, that the City had taken earlier action on the project on November 10, 2015 by amending the General Plan and making certain determinations "pursuant to the provisions of CEQA."

No estoppel arises, as the information provided by the City employees responded accurately to the questions put to them and, therefore, was not the cause of Petitioner's failure to act in a timely manner. The court rejects Petitioner's estoppel argument as a basis to avoid the Legislative deadlines for the filing of a CEQA challenge. Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App. 3d. 11 80, 1186-11 87 (conceding the bar of Gov. Code 21167 for CEQA claims; non-CEQA claims barred by 90-day limitations under Gov. Code. 65907(a)); Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 528-529 (applying the limitations period specified in Gov. Code 65009(c) (1 )(E)).

The court denies petitioner's motion to strike filed in support to its opposition to the JOP motion.

B. RULING ON REAL PARTY'S MOTION FOR SANCTIONS: DENIED. Petitioner's estoppel argument required judicial decision.

C. RULING ON PETITIONER'S MOTION TO FILE FIRST AMENDED PETITION:

DENIED, per ruling on Motion A.

As the Petition was not timely filed, and for that reason is dismissed, there is no underlying action that may be amended. Davaloo v. State Farms Ins. Co. (2005) 135 Cal.App.4th 409.

Background And Developing

On Nov. 10, Councilman Al Austin voted to make a series of motions to approve the Riverwalk development after the Council heard testimony pro and con, with much of it opposed (including a petition signed by over 200 individuals.) A second set of approvals came to the Council on Nov. 17.

The owner/developer has said its Riverwalk project will improve the neighborhood, increase property values and provide amenities for the development's residents...and also agreed to build at its expense a new park on Del Amo Blvd. for general public use.

Image from agendized materials

Council candidate Laurie Angel was among those who testified in opposition at the Nov. 10 City Council meeting (alleging density inappropriate for that particular site.) At a Mar. 9, 2016 candidate forum, Ms. Angel criticized incumbent Austin for his votes to approve the project, in particular its density and neighborhood impacts. Challenger Wesley Turnbow faulted the city's approval process...but didn't squarely criticize the project or its density. Incumbent Austin defended his public involvement as well as its density and other project elements (including a developer agreement to build a new park at Del Amo/Daisy.)

During a Mar. 9 candidate forum organized by the Los Cerritos Neighborhood Association, the incumbent and his two challengers were asked, citing as an example the Riverwalk development, how they would balance the desires of their 8th district constituents with the desires of other Council districts and the Mayor on issues that might affect the 8th district.

Candidate Angel replied, "I'd listen to the residents, because the majority of residents that live in that neighborhood did not want that development [Riverwalk] with that level of density." Ms. Angel continued, "We have to have the discussion with the public beforehand, on all these issues, we have to talk about balance. We can't let some people suffer for the benefit of others and that's citywide. It's the same thing with the airport; it has to be about balance; you can't be unduly be impacted in the 8th district so everybody else can have a trip to Mexico, you can't do that. It's not right and it's not fair."

Councilman Austin said, "That sounds great. The real issue with Riverwalk is the fact the Boy Scouts decided to sell their property. [Audience shouts "no."]...It was a private transaction...There were several meetings [audience laughter, scoffing] I was at a meeting just the other night with the Dominguez Gap neighborhood association...and most of the residents there are in favor of the project...Ms. Angel wasn't engaged in that outreach because she didn't live in the neighborhood...and I reject the fact that somehow Riverwalk is going to impact Los Cerritos in anyway, because it won't. There will be no car traffic trips in Los Cerritos...The density of Riverwalk is very similar to the density of another gated community [in Los Cerritos], that's Crowne Point [audience shouts "no, no."] Amid shouts of "no, no" Councilman Austin added, "You guys put me in office to do something and not do nothing, so if it means developing park space, if it means improving infrastructure, in a neighborhood that's been neglected for decades...that's a positive."

Ms. Angel responded; "I did go to the meetings from the beginning. I did sign the petition against it, as 250 people in the neighborhood did...The public had meetings, but [the project] was already done. Nothing changed on that project after it came [to the Council.] It may be similar density [to Crown Pointe] but there's no accommodation for vehicles. You have 2 and 3 story homes with 3-5 bedrooms that have a two car garage, no driveways and you can't park on the street...and then it is setting the tone for other projects..."

On the "private transaction" aspect of the issue, Mr. Turnbow said the city started to develop brand new zoning, but didn't go through with that process and didn't go through with the normal process of the project coming to the Council with Councilmembers negotiating with the developer for lesser density. "The City got involved [in two ways] in a private transaction and got it wrong," he said.

Vote by mail ballots are flying now in the 8th dist. Election day is April 12.

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