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Court Action Filed To Stop SE LB "SEASP" Increased Building Hts/Comm'l Density Rezoning; Los Cerritos Wetlands Land Trust Seeks To Void Council-Approved Enviro Impact Report
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Court Action Filed To Stop SE LB "SEASP" Increased Building Hts/Comm'l Density Rezoning; Los Cerritos Wetlands Land Trust Seeks To Void Council-Approved Enviro Impact Report
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(October 23, 2017, 7:45 p.m.) -- The Los Cerritos Wetlands Land Trust (LCWLT) has filed a legal action seeking to strike down the City Council's voted certification (approval) of an Environmental Impact Report used to justify new zoning for SE LB (the "Southeast Area Specific Plan" or SEASP") that would allow higher building heights and increased commercial density along a key portion of PCH in and around 2nd St. (red areas in map below.)
A Petition for Writ of Mandate, filed in L.A. County Superior Court on Oct. 19 on behalf of LCWLT by attorneys Doug Carstens and Michelle Black of the law firm of Chatten-Brown & Carstens LLP, alleges that SEASP's environmental Impact Report (EIR) "failed to adequately disclose and mitigate all of SEASP’s likely significant adverse environmental impacts." As an example it says "the EIR failed to disclose or analyze the Project’s weekend traffic generation and improperly relies on an unenforceable traffic demand management plan for large reductions in vehicle miles travelled [and] finds that the Project has no likelihood to adversely impact wildlife, despite the proximity of Los Cerritos Wetlands."
In pertinent part it alleges:
The Council's Sept. 19 voted approval to increase certain building heights and commercial density in the SEASP area comes as city staff proposes a revised Land Use Element that invites areas of increased commercial and mixed-use residential density in various other LB areas across the city. SEASP itself is headed for separate review and a public hearing by the CA Coastal Commission...on which LB Councilman Roberto Uranga is a voting member (and voted on Sept. 19 to second several motions by Councilwoman Price to approve SEASP and certify its EIR.)
[Scroll down for further.]
...The SEASP Project’s high-density residential uses conflict with the existing General Plan vision and policies promoting low-density residential in southeast Long Beach to protect Los Cerritos Wetlands.
...The City's General Plan contains several elements that are outdated or are not correlated, as required. The General Plan also lacks legally required content implicated by SEASP.
...As SEASP implicates these deficiencies in the City's General Plan, its approval by the City was unlawful...
...As approved, SEASP would permit 2.4 million acres of commercial development, 375 hotel rooms, and 6,663 dwelling units within the SEASP area. In addition to allowing 1,164 dwelling units more than allowed by the previous SEADIP Plan, the Project would increase the
maximum heights of buildings from 35 feet to 80 feet in areas known to be frequented by migrating and resident birds.
...Recent legislation permitting density bonuses and accessory uses essentially "by right" could increase the number of houses permitted in SEASP by 35 percent beyond the number approved by the City or analyzed in the EIR. This would be more development than the
environment and roadway infrastructure can accommodate.
...While SEASP does contain some protections for wetlands, the Project defers wetland delineations to future project-specific processes and would permit development and use of areas intended as buffers between development and wetlands. SEASP also defines open space to include commercial and private space within developments, including indoor gyms, balconies, and porches that may not be publicly accessible.
...As analyzed in the EIR, the Project would mitigate significant traffic impacts at only one of 18 intersections in the year 2035. The City dismisses other mitigation as infeasible.
...The City cannot legally conclude that traffic impacts are significant and unavoidable until after it has attempted to impose all feasible alternatives and mitigation measures. Only after specific traffic measures or alternatives have been identified and
evaluated can the City dismiss them as infeasible. [citation omitted here]
...The mitigation for the Project’s significant impacts is not concrete and enforceable, as required. [citations omitted here]
...Instead of providing timelines for the implementation of improvements that would be required to mitigate Project traffic, the EIR finds, "Public realm improvements would occur as funding becomes available." (DEIR p. 3-18.) These improvements are not tied to any
particular project, the development of any particular area, or performance standards of any kind.
...The EIR concludes that the Project will have a less than significant impact on emergency access because traffic and circulation components of the Project would be designed in accordance with applicable design standards. However, the EIR fails to account for the fact
that 12 of 21 study intersections will operate at LOS E or F during one or both peak hours in 2035 if the Project is implemented
...The EIR also fails to provide analysis of impacts to emergency vehicles under future, with-Project conditions, despite existing congestion and delays in the Project area. Thus, the EIR fails to disclose a significant impact on human beings, as well as a significant
impact related to traffic and the provision of emergency services in the SEASP area.
The EIR also concludes that adding traffic to some intersections will improve traffic circulation and levels of service. These conclusions lack substantial evidence.
...The EIR fails to include any traffic mitigation that will actually be implemented, as the EIR acknowledges that nearly all of the proposed traffic mitigation relies on outside agencies or is otherwise infeasible.
...The EIR’s failure to disclose, analyze, and mitigate the project’s traffic impacts violates CEQA.
...The EIR lacks the requisite substantial evidence that significant traffic, air quality, biological resources and other environmental impacts associated with development allowed by the SEASP are mitigated by all feasible mitigation measures. Adverse traffic
impacts are significant and unavoidable.
...Feasible and effective mitigation measures, such as incorporation of a baseline land use allocation policy, elimination of 7-story buildings in the SEASP area, and the prohibition of intense, human uses of buffer areas, were suggested by Petitioner but rejected by
the City.
...Additional measures, such as the traffic demand management program and wetlands delineations, have been deferred to a future time. Without performance standards, these mitigation measures are both vague and unenforceable, and impermissibly deferred. [citations omitted]
...The City also rejected feasible alternatives to the Project, such as a version of the reduced intensity alternative with lower height limits or inclusion of a baseline density allocation, suggested by Petitioner.
...The City cannot support the findings required to adopt a Statement of Overriding Considerations for the SEASP Project...
Sponsor
Sponsor
The legal action asks the Superior Court to set aside and vacate the Council's certification of the EIR supporting SEASP, as well as any approvals based on the EIR or approvals based on consistency with the General Plan and to have the City "prepare and certify a legally adequate EIR for the project so that Respondent will have a complete disclosure document before it that identifies for the decisionmakers and public the potential significant impacts of the Project, and that enables them to formulate realistic and feasible alternatives and mitigation measures to avoid those impacts." The action also seeks the costs of the suit and reasonable attorneys' fees.
To view the Petition for Writ of Mandate in full, click here.
The Los Cerritos Wetlands Land Trust participated in pre-hearing workshops on SEASP, and provided written and oral testimony during the EIR process and Planning Commission and Council consideration of SEASP.
On Sept. 19, in a series of motions by 3rd district Councilwoman Suzie Price, with Mayor Garcia not taking a public position on the publicly polarizing Council item, the City Council voted 9-0 to remove zoning protections against building heights beyond LB's current coastal zone limit of 35 feet along part of PCH Pacific Coast Highway.
The Council approved SEASP to replace the low-rise low-density 1970's SEADIP (Southeast Area Development and Improvement Plan), effectively erasing decades of protections against higher-rise commercial density along SE LB's PCH entryway enacted as a result of public pressure 40 years ago as a trade-off to allowing increased density in downtown Long Beach. All of the Council motions were supported by (and all but one were seconded by) Councilman Roberto Uranga, a member of the Coastal Commission...where SEASP now goes for final approval.
Sponsor
At the Sept. 19 Council hearing, Councilwoman Price said that after much community discussion, the resulting SEASP version is reasonable, balanced and modest. She repeatedly said it includes "reductions" in building heights and density, which is true, compared to what city hired consultants initially proposed. However SEASP as approved does increase allowable building heights beyond levels currently allowed and admittedly will increase traffic, an impact the city acknowledges in the Council-approved EIR it can't mitigate below significance.
Councilwoman Price said SEASP will protect the wetlands and is a fair compromise, but at the Council hearing wetlands supporters said SEASP was too high and too dense adjacent to the wetlands, calling it a development plan and not a wetlands protection plan.
Some SEASP opponents supported retaining the area's current low-rise building heights, with one saying bluntly that clean air and open space are amenities.
Mayor Robert Garcia, who as a Councilmember voted in Dec. 2011 in favor of a developer-sought, city-staff supported PCH/2nd (Seaport Marina Hotel site) project (failed Council passage 3-5) that proposed even taller buildings than SEASP will allow, stated no position publicly on SEASP during the Council item.
SEASP would allow commercial property owners/developers to increase building heights along parts of the west side of PCH (between Loynes and the Seal Beach city limit) to five stories, with seven stories allowed for hotels (to occupy a portion of the "Best Buy" and "Whole Foods" areas respectively north and south of 2nd St.) while disallowing development on the adjacent wetlands areas eastward of PCH.
Under SEASP, the City will allow up to five story buildings instead of the current three stories (red areas in map above) and with up to seven stories possible (for a hotel) on up to 20% of the area on the west side of PCH north of 2nd St. (Marina Pacifica area and "Whole Foods" area south of 2nd St.) but not the "Markeplace" on the east side of PCH adjacent to the westlands.
Seven stories could be allowed in areas along the west side of PCH for buildings with roughly 20% of project areas [city staff text: "may be considered" for the following]: "Hotel or mixed use buildings containing hotel as a portion of their use, if it is demonstrated that significant community amenities are provided, above and beyond those that are required under the maximum height of five stories. Amenities can include plaza spaces, enhanced landscaping, public artwork, public parking, (See Section 5.7a Mixed Use Community Core height and FAR incentives.) Seven story buildings are intended to be an exception to the building massing for all structures within a project. The majority of the buildings within the Mixed-Use Community Core designations are intended to be constructed at or near the maximum base height. Building footprint of all buildings using seven stories cannot exceed 20% of the total acres in the MU-CC."
Page 70 of the SEASP 2060 document (Table 5-4 Building Story Requirements) also indicates that "Architectural features up to an an additional 10 feet may be approved by the Site Plan Review Committee." [Under Muni Code section 21.21.105, the Site Plan Review Committee consists of LB's Dir. of Planning & Building plus two planning officers of his/her choice.]
Sponsor
Sponsor
At the Sept. 19 Council hearing, SEASP opponents outnumbered suppoters by over two to one. Supporters included retired LB Planning Dir. Robert Paternoster, LB Area Chamber of Commerce Pres/CEO Randy Gordon and some Naples Area residents, urging Council approval of SEASP on grounds it will invite amenities, create a more fitting entryway to LB, increase property taxes and sales tax revenue and draw shoppers from the south (OC.)
Testimony in opposition came from retired 3rd dist. Councilwoman Jan Hall, Ann Cantrell (Citizens About Responsible Planning), Gordana Kajer, Melinda Cotton, Jeff Miller. Warren Blesofsky, President of LB Citizens for Responsible Development, filed an appeal to the Planning Commission's SEASP recommended approval, describing it as a gift to developers, objecting to "streamlining" future environmental review (making public opposition more difficult) and citing other items in a bullet point list.
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Councilwoman Price made some amending motions, but none sought revisions to building heights or density in city staff's final recommended SEASP elements, which recommended less intense building height increases than staff initially recommended. Price's amendments included a requirement that if the General Plan Land Use Element (currently pending) isn't completed within 5 years "the Dept. of Development Services will be required to return the SEASP plan to the Planning Commission for adjustments." In contrast, the Los Cerritos Wetlands Land Trust sought a "baseline cap" on density that would increase if shown to be justified on the merits as the city updates its citywide Land Use Element. LCWLT detailed its "baseline cap" process in a letter from attorney Doug Carstens at this link. Price's amendments also included a LEED silver building requirement, reporting to government bodies and a meet-and-confer process on some items with the Los Cerritos Wetlands Land Trust.
A number of speakers in opposition (including the Council of Neighborhood Organizations via Robert Fox) said the city's outreach process had been poor and was flawed; Councilwoman Price responded by defending the city's outreach, saying it exceeded outreach in projects in any other Council district.
Councilwoman Price said that during the process she met with multiple residents who sought various changes to SEASP, and said she'd worked to worked with them to accomplish this. Councilwoman Price voiced irritation, and in effect accused some opponents (whom she didn't name) of less than candid advocacy, saying they testified against the final result at the podium although "We spent a lot of time together, and your opinions and thoughts are reflected in this proposal...You know that what you asked for is in this proposal. I know it and you know it. You didn't say it at the podium, but that's OK. This is a great proposal and I ask my colleagues to support it."
