Posted on 20 May 2011.
By John Earl
Surf City Voice
A Superior Court judge has issued a temporary ruling against all counts of a lawsuit challenging the city’s revisions to its Downtown Specific Plan (DTSP) approved in late 2009 and early 2010 and its environmental review of those revisions.
The lawsuit was brought by Huntington Beach Neighbors, a 2,000 member citizens’ group concerned with living conditions in the downtown area. The case had its day in court last March.
The area in question covers a patchwork of about 336 acres of downtown land extending outward from the intersection of Goldenwest Street and Pacific Coast Highway (PCH) at its north end to Beach Boulevard and PCH on the south, including the Main Street and Pier area.
In an eight page ruling filed on May 5, Judge Nancy Wieben Stock noted that “In a shotgun approach to litigation, and leaving no stone unturned, Petitioners argue that in approximately 33 categories of environmental review, the EIR process was wholly deficient.”
Neighbors had a difficult task because from the start the court assumed that “a public agency’s decision to certify the EIR is correct,” as Stock explained, and it was up to the plaintiffs to prove otherwise.
Stock ruled that the plaintiffs did not show that they first exhausted administrative remedies—part of the burden of proof; in other words, their issues were not brought up during the public hearing process.
“In not one instance in its Opening Brief has Petitioner met its burden here,” Stock wrote.
Stock eliminated some challenges forthwith, for the most part without further explanation, including the assertion that the EIR did not study the cumulative effects of other nearby projects or the DTSP’s effect on downtown aesthetics, noise, public service and land use.
The lawsuit claims that the EIR “does not review the entire action that is contemplated” and thus violated CEQA by “piecemealing” its environmental analysis.
Stock agreed with the city that specific projects that could bloom from the DTSP may require separate EIRs in the future, but that a conceptual or “program” EIR is sufficient for now.
Disputed Development Area
From Nov. 2009 through Jan. 2010 the City Council passed revisions to the DTSP that allowed increased densities downtown, resulting in a potential for more than 1.3 million additional square feet of commercial development in the area.
Those revisions were in addition to Pacific City, a moth balled mixed-use project south of Atlanta Avenue on PCH that covers 31.5 acres and, at its inception in 2004, included 512 luxury condos and a 165 room hotel/spa.
Pacific City combined with the DTSP revisions increases the amount of allowed downtown development by 375 percent over former plans, the lawsuit claims.
Finding that the previous DTSP had been maxed out, the 2006 City Council decided to super-size it, calling into question the purpose of development planning in the first place: what good is it if city councils can drastically change their master plans on nothing more than a political whim?
But those changes required public hearings and environmental review under the California Environmental Quality Act (CEQA). The city was required to study the environmental affects of the Downtown Specific Plan modifications and publish the results.
CEQA guidelines require a “sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of the environmental consequences,” according to guidelines published on the state website.
CEQA also requires decision makers, in this case the city staff, to answer concerns that are part of the administrative (public) record.
The city violated that process broadly, according to HB Neighbors, without providing reasons for its lack of environmental review. Nor did it respond to complaints that were part of the public record—despite attempts by Neighbors “to achieve reasonable, resident-friendly modifications to the DTSP.”
The lawsuit asks the court to revoke certification of the final EIR for the DTSP and all its updated project approvals.
Some key assertions of the lawsuit are:
1. The city’s EIR did not show that it examined traffic impacts for summer weekends when visitor numbers are highest;
2. Solid waste impact projections considered residential but not commercial impacts;
3. In an illegal “11th hour amendment” the city council passed a measure increasing downtown density;
4. Parking impacts were not properly considered;
5. The EIR did not adequately consider the cumulative effects of nearby projects, including Pacific City.
6. Impacts on cultural resources, including the Main Street Library, were not properly considered in the EIR.
Main Street Library
Stock’s ruling largely bypassed the most controversial downtown issue of all – what will become of the historical Main Street Library located in Triangle Park.
In that case, the lawsuit contends, the Main Street Library qualifies as an “historically significant” resource under CEQA, but the EIR does not list it as such. Nor were the impacts of the DTSP revisions upon the library examined as required.
The city’s EIR states that “specific development proposals are not contemplated for the project, including development on the library site.”
But the first revised plans allowed for replacing the library with a combination cultural arts center and tourist attraction that includes a gift shop, restaurant, and event rentals and would attract up to 400,000 visitors each year.
In response to thousands of complaints, the city revised the DTSP to provide for a “community oriented cultural activity area that encourages preservation and enhancement of the Main Street Library” rather than replacing it.
But that plan still allows a 24,660 square foot structure, three stories and 35 feet tall, for an additional 14,700 square feet that could hold a gift shop, small cafe and other retail uses – still in conflict with the city’s General Plan – changes that the lawsuit claims should have undergone environmental review.
Lacking that review, the public and city council were denied information vital to the decision making process; therefore, the EIR must be revoked, the lawsuit contends.
But Judge Stock made short work of those arguments. Regarding cumulative effects, they “were not raised at the administrative level by any person.” In any case, she added, the DTSP doesn’t propose any projects yet and any future projects will face environmental review.
Traffic Problems Dismissed
The lawsuit contends that the city’s traffic studies were methodologically flawed and that it made sure to “drastically” understate traffic impacts in its EIR.
The EIR failed to demonstrate that it had analyzed weekend traffic conditions during summer, despite acknowledging the “at-capacity conditions occurring during peak summer days, particularly on weekends.” Nor did the EIR consider the added traffic congestion from tourist buses, the lawsuit alleges.
But Judge Stock called the city’s traffic study exhaustive, encompassing 1,000 pages, and said that the plaintiffs failed to offer expert counter-analysis.
Furthermore, it is not the role of the Court to attempt scientific analysis of the city’s traffic study, Stock said.
Nor is it important “whether the studies are irrefutable or whether they could have been better, she explained. “The relevant issue is only whether the studies are sufficiently credible to be considered.”
Despite the EIR’s alleged failure to demonstrate a specific analysis of peak traffic periods, and without citing specifics herself, Stock concluded that the city’s analysis showed a “full appreciation of the summer and beach-proximity issues.”
Eleventh Hour Changes
If Stock’s traffic ruling doesn’t stretch credulity, her ruling on Plaintiff’s claim of a CEQA violation by “11th hour amendment” illuminates the thick line that often separates legality from morality.
At its Nov. 16, 2009, meeting the city council voted to reconsider revised density standards for one section of the downtown that it had approved at its Nov. 2 meeting.
The issue was placed on the Jan. 19, 2010 council agenda for discussion and a vote, but a slight of hand by Councilmember Don Hansen changed the purpose of the meeting.
Instead of considering a reduction in density, which was the intent of putting the issue on the agenda in the first place, Hansen made a surprise motion.
Previously in District 1 a site area of 25,000 square feet or greater was needed to build a 45 foot high, four-story building. Any lot less than 25,000 square feet was allowed a maximum building height of 35 feet and three stories, according to the Jan. 19 staff report.
Hansen’s motion shrunk the required square footage to 8,000 square feet, creating a huge increase in density. The council passed the motion, but nothing like his proposal was in the staff’s usual list of recommended actions or in the rest of its public report.
Nor was Hansen’s proposal based on information in the EIR, the lawsuit claims, despite having significantly changed the DTSP. And it violated the city’s General Plan. Therefore, Hansen’s DTSP revision must be denied, Plaintiffs argued.
Stock issued a harsh rebuke. The possibility of a four-story building on a 25,000 square foot “or less” lot had already been discussed in the Draft EIR, as well as in numerous staff reports, she wrote.
The same thing for building height. “[T]he EIR process was designed to reveal the outcomes of any amendments to the General Plan in this area,” she added.
Councilmember Joe Shaw called portions of the DTSP “severely flawed,” despite the court’s tentative ruling. “I think the residents of our downtown neighborhoods have spoken clearly about the plan and they’re not happy with it.”
The revised density, building heights and neighborhood uses are “out of sync and out of character” for the downtown neighborhoods, he said. “I hope that this city council or the next will address some of these issues.”
Councilmember Keith Bohr had a different view.
Citing numerous stakeholder interviews, community workshops, study sessions and public hearings held in the five years since the city council directed staff to update the DTSP, Bohr told the Voice that he is “pleased that we are finally nearing the finish line for this much needed update to our Downtown Specific Plan.”
Just how close the city is to that finish line remains to be seen. HB Neighbors spokesperson Angela Rainsberger told the Voice that her group will file objections with the court next Monday. If Stock rejects those objections the group will have 30 additional days to appeal, according to City Attorney Jennifer McGrath.