IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION FIVE
SECOND APPELLATE DISTRICT, DIVISION FIVE
No. B232415
SAUNDERS
ET AL. v. CITY OF LOS ANGELES
Consolidated with
Consolidated with
FIX THE CITY, Appellant/Petitioner v. CITY OF LOS
ANGELES,
Respondent/Defendant.
Respondent/Defendant.
Appeal from the Superior Court,
State of California, County of Los Angeles
Case No. BS115435
State of California, County of Los Angeles
Case No. BS115435
The Honorable Judge John. A. Torribio
APPELLANT
FIX THE CITY'S OPENING BRIEF
CHATTEN-BROWN
& CARSTENSJan Chatten-Brown (Bar No. 50275)
Douglas P. Carstens (Bar No. 193439)
Michelle N. Black (Bar No. 261962)
2601 Ocean Park Blvd, Suite 205
Santa Monica, CA 90405-3219
Ph: 310-314-8040, Fax: 310-314-8050
Attorneys for Appellant/Petitioner
Fix the City
Fix the City
TO
BE FILED IN THE COURT OF APPEAL APP-008
COURT OF
APPEAL, Second APPELLATE
DISTRICT, DIVISION Five
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Court of Appeal Case Number:
No. B23415
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ATTORNEY
OR PARTY WITHOUT ATTORNEY (Name,
Slate Bar number, and address):
Douglas Carstens (SBN 193439)
— Chatten-Brown & Carstens
2601 Ocean Park Blvd. Suite 205
Santa Monica, CA 90405
TELEPHONE NO.: (310) 314-8040 FAX NO. (Optional): (310) 314-8050
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Superior Court Case Number:
No. BS115435
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FOR COURT USE ONLY
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APPELLANT/PETITIONER:
Fix the City
RESPONDENT/REAL PARTY IN
INTEREST: City of Log Angeles
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CERTIFICATE OF
INTERESTED ENTITIES OR PERSONS
(Check one): I ΓΌ I INITIAL CERTIFICATE I I SUPPLEMENTAL CERTIFICATE |
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Notice: Please read rules 8.208 and 8.488 before
completing this form. You may use this form for the initial certificate in an
appeal when you file your brief or a prebriefing motion, application, or
opposition to such a motion or application
in the Court of Appeal, and when you file a petition for an extraordinary
writ. You may also use this form as a supplemental certificate when
you learn of changed or additional information that must be disclosed.
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1. 
This form is being
submitted on behalf of the following party (name): Fix the City
This form is being
submitted on behalf of the following party (name): Fix the City
2.
a. I 11
There are no interested entities or persons that must be
listed in this certificate under rule 8.208. b. I I Interested entities or persons required to be
listed under rule 8.208 are as follows:
3.
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Full name of interested
entity or person |
Nature of interest
(Explain): |
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Continued on attachment 2.
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The undersigned certifies that the above-listed persons or entities
(corporations, partnerships, firms, or any other association, but not including
government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a
financial or other interest in the outcome of the proceeding that the justices should
consider in determining whether to disqualify themselves, as defined in rule
8.208(e)(2).
Date: October 13, 2011 Douglas Carstens
(TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY)
Page 1 of 1
Form Approved
for Optional Use
Judicial Council of California APP-008 [Rev. January 1,2009] |
CERTIFICATE
OF INTERESTED ENTITIES OR PERSONS
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Cal. Rules of
Court, rules 8.208, 8.488
www.courtinfo.cagov
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TABLE OF CONTENTS
Page No.
I. INTRODUCTION.................................................................................... 1
II. STATEMENT OF
APPEALABILITY.......................................... 3
III. STATEMENT OF
FACTS.......................................................... 3
A. Administrative History of the Framework Element and
Annual Growth and Infrastructure
Reports ............................ 3
1.
Approval of the Framework Element and Challenges
to It..................................................................................... 3
2.
Contents
of the Framework Element........................... 6
3.
The Requirement to Prepare An Annual Report on
Growth and Infrastructure Was Part of the Mechanism to Mitigate the Cumulative Effects of Growth in the City......................................... 9
Growth and Infrastructure Was Part of the Mechanism to Mitigate the Cumulative Effects of Growth in the City......................................... 9
4.
Partial Annual Growth and Infrastructure Reporting
Began in 1996 But Ended in 2000.............................. 11
B. Trial Court Proceedings............................................................ 13
IV. STANDARD OF
REVIEW....................................................... 14
V. THE CITY MUST PREPARE AND
IMPLEMENT ANNUAL GROWTH
AND INFRASTRUCTURE REPORTING TO PROVIDE
ORDERLY GROWTH AND SUFFICIENT INFRASTRUCTURE................................................................................ 16
A.
The General Plan Framework Mandates Preparation and
Review of Annual Reports....................................................... 16
B.
The General Plan Framework Element Has the Force of
Law.............................................................................................. 18
C.
Mitigation Measures for Significant Impacts Must Be
Implemented............................................................................... 19
D.
The Annual Report is An Essential Part of the System
Imposed to Mitigate the impacts
of Growth.......................... 21
1. The Annual Report Requirement Was Adopted as Part
of a Mandatory Mitigation Measure
for Growth Impacts 21
a.
The Annual Report
is Mandatory Because it is One of Two
Components of the City's Mitigation
Monitoring and Reporting Program for
the Framework Element................................................................ 22
b.
The FEIR for the Framework Element Shows the Annual Growth and Infrastructure Report is Part of a System Adopted as a
Mitigation Measure.............................................................................. 22
c.
The Statement of Overriding Considerations and Findings Show Preparation of the Annual Reports Is Mandatory............... 23
d.
Litigation Over the Framework Element Confirms
the City Viewed Preparation of the Annual Reports as a Critical and Enforceable
Mitigation Measure............................................................... 23
2.
The Annual Growth and Infrastructure Reports are Relied Upon By Various Sections
of the City's General
Plan......................................... 24
3.
Annual Growth and Infrastructure Reports are Necessary For Numerous Purposes Including Policy Revision and Incentive Analysis 26
4.
Annual Growth Reports Are Necessary to Consolidate
Scattered Information in a Readable and Analytical Format 27
Scattered Information in a Readable and Analytical Format 27
E.
The City Does Not
Have Discretion to Dispense with Annual
Growth and Infrastructure Reports......................................... 28
F.
The City Interpreted its Duty to Prepare Annual Growth and Infrastructure Reports as Mandatory When Prior Growth
Reports Were Prepared Contemporaneously With the Framework Element's Adoption............................................. 31
G.
The City Council Did Not Rescind the Annual Report
Requirement............................................................................... 32
VI. THE CITY FAILED TO PERFORM ITS
MANDATORY DUTY TO
PUBLISH AND USE ANNUAL GROWTH REPORTS........................................................................... 34
A. The
City's Various Monitoring Activities Do Not Meet the
Mitigation Requirement of the
Annual Growth and Infrastructure
Report System 34
1.
Mere Monitoring Without Analysis or Action Based
on the Analysis Does Not Result in Mitigation............... 34
on the Analysis Does Not Result in Mitigation............... 34
2.
Trigger Levels for Taking Action Are Not Identified
Through Website Based Monitoring........................... 38
3.
Website Based Monitoring, Without Analysis or
Action Using Annual Growth and Infrastructure Reports, Does Not Comply with the Framework Element Mitigation System..................... 39
Action Using Annual Growth and Infrastructure Reports, Does Not Comply with the Framework Element Mitigation System..................... 39
4.
The City's
Declarations From Planners About Various
Websites Do Not Show Compliance with the Annual Report Requirement 41
Websites Do Not Show Compliance with the Annual Report Requirement 41
VII. FIX THE CITY SEEKS A
DECLARATION THAT THE CITY MUST PREPARE AND USE ANNUAL GROWTH REPORTS AND THAT IT HAS NOT DONE SO 42
VIII. CONCLUSION.......................................................................................... 43
TABLE OF AUTHORITIES
Page No.
STATE CASES
Big Creek Lumber Co. v. County of Santa Cruz
(2006) 38 Cal. 4th 1139................................................................. 16, 29
Camp v. Board of Supervisors
(1981) 123 Cal.App.3d 334.................................................................. 16
Copley Press, Inc. v. Superior Court
(2006) 39 Cal. 4th
1272, 1291.............................................................. 15
County of San Diego v. State of
California
(2008) 164 Cal.App.4th 580, 606........................................................ 42
Culligan Water Conditioning v. State
Bd. of Equalization
(1976) 17 Cal.3d 86............................................................................... 32
DaFonte v. Up-Right, Inc.
(1992) 2 Cal. 4th 593........................................................................... 15
deBottari v. City Council of the
City of Norco
(1985) 171 Cal.App.3d 1204............................................................... 15
DeVita v. County of Napa
(1995) 9 Cal.4th 763............................................................................. 15
Endangered Habitats League, Inc. v.
County of Orange
(2005) 131 Cal.App.4th 777............................................................... 28
Environmental Defense Project of Sierra County v. County
of Sierra
(2008) 158 Cal.App.4th 877................................................................ 42
Federation of
Hillside and Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252 4, 5,
19, 26
Federation of
Hillside and Canyon Associations v. City of Los Angeles (2005) 126 Cal.App.4th 1180 4, 5, 19, 23
Ham v. County of Los Angeles
(1920) 46 Cal.App.148 ....................................................................... 30
In Re Conservatorship of Whitley
(2010) 50 Ca1.4th 1206 ..................................................................... 15
Lincoln Place Tenants Assn. v. City
of Los Angeles
(2005) 130 Cal.App.4th 1491 ....................................................... 19, 20
Lincoln Place Tenants Assn. v. City
of Los Angeles
(2007) 155 Cal.App.4th 425 ......................................................... 16, 24
Los Angeles County Professional Peace
Officers' Association v. County of Los Angeles
(2004) 115 Cal.App.4th 866................................................................. 14
North Beverly Park Homeowners
Association v. Bisno
(2007) 147 Cal.App.4th 762................................................................. 40
People v. Woodhead
(1987) 43 Cal. 3d 1002 ....................................................................... 21
Rancho Murieta Airport, Inc. v.
County of Sacramento
(2006) 142 Cal.App.4th 323................................................................. 17
Redwood Coast Watersheds Alliance v.
State Board of Forestry and Fire Protection
(1999) 70 Cal.App.4th 962............................................................ 29, 30
San Franciscans for Reasonable
Growth v. City and County of San Francisco
(1984) 151 Cal.App.3d 61.................................................................... 21
Scott v. Common Council of San
Bernardino
(1996) 44 Cal.App.4th 684................................................................... 29
Searles Valley Minerals Operations, Inc. v. State Bd. of
Equalization
(2008) 160 Cal.App.4th 514................................................................. 40
Sierra Club v. Board of Supervisors
(1981) 126 Cal.App.3d 698 ................................................................ 18
Yamaha Corp. of America v. State Board of Equalization
(1998) 19 Ca1.4th 1....................................
CODE OF CIVIL PROCEDURE
Section 904.1...........................................................
Section 1085............................................................
Section 1060............................................................
GOVERNMENT CODE
Section 14.................................................................
PUBLIC RESOURCES CODE
Section 21081.6.......................................................
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20,
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31,
19, |
32,
37,
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33
3
14
42
16
43
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I. INTRODUCTION
This action challenges the failure of the City of Los Angeles
("City") to fulfill its legal obligation to implement and monitor a
critical measure required to mitigate growth impacts
associated with its 1996 approval of the General Plan
Framework Element ("General Plan Framework" or "Framework
Element"). The City's General Plan Framework Enviromnental Impact Report ("EIR") contained a well-defined
system that was found to be feasible
in reducing growth impacts that were predicted to be significant even with mitigation. That
mitigation system required annual monitoring
of the infrastructure, reporting about it, and, if any aspect of the infrastructure
was threatened, that threat would be addressed through adding infrastructure capacity or limiting development. The City has failed to implement this system for controlling
the adverse impacts of growth. Fix
the City asks this Court to require the City to implement the reporting and mitigation measure monitoring as
required by state law and as promised
by the City when it adopted policies in its General Plan Framework to ensure
mitigation would occur.
The General
Plan Framework mandated the preparation and use of a
report entitled the Annual Report on Growth and Infrastructure (Annual Report). These Annual Reports would be the enabling documents that
provide the current state of the infrastructure in the City and analysis of growth trends to identify any threats to the infrastructure and then to
direct the measures that are required to address them. If
updated and implemented annually as directed by the General
Plan, these Annual Reports would provide a single-source baseline for
development in the City. As described by the City in
the Framework Element of the General Plan, these
mandatory Annual Reports provide a critical feedback loop to evaluate and, if necessary, modify policies that encourage growth in
various areas of the City. Through this feedback loop, the
effectiveness of
measures to prevent overloading firefighter and police services, transportation infrastructure, water, power and wastewater capacity could
be measured and adjusted to ensure their effectiveness.
The City also described these Annual Reports as being essential in determining
which General Plan elements and community plans need
updating and how. The Annual Reports were intended to
inform the City when City
infrastructure was threatened with overload, and
what steps would be necessary to ensure it did not reach or
exceed capacity.
Despite its clear commitment to prepare and use Annual Reports, the City has not implemented the required mitigation or monitoring, and has
failed for the past decade to produce any form of an Annual Report. The result of this failure is a dangerous lack of information available to
the City Council and public as to the status of the City's
infrastructure relating to such things as whether or not
the City has adequate police and firefighter capability,
has adequate water and power supplies, or has the transportation infrastructure to support its population and how to address shortfalls.
The infrastructure impact mitigation measures, including the Annual Reports required
by the Framework Element, are the foundation upon which other General Plan elements would rest. Overwhelming facts in the historical record demonstrate the City's
intention, and legal obligation, to make
the Annual Reports a mandatory requirement. These facts include the City's reliance on the Annual Reports in other
General Plan elements, in the EIR
and the statement of overriding consideration adopted in support of the City's
approval of the General Plan Framework, and in City briefs filed with the Court of Appeal arguing for the
sufficiency of the General Plan Framework review. The historical facts
also include the City's contemporaneous
interpretation shortly after the General Plan Framework's
adoption that Annual Reports were a mandatory requirement. All these factors point to the conclusion that the City has a legal obligation to implement and monitor infrastructure mitigation as informed by the Annual
Reports.
Despite the clear requirements of the Framework Element, the City has failed to
prepare these vital reports for the past decade. The City's failure to prepare and use the required Annual
Reports has far-reaching consequences. As the City continues to approve
projects, including community plan
amendments and other long-range initiatives, without current infonnation that would be provided in
Annual Reports, planning mistakes are
carried forward and become woven into the fabric of the City. Inadequate infrastructure becomes more difficult
to update as additional growth adds
ever increasing burdens. To preserve the integrity of the General Plan, to provide a measure of consistency
in evaluating the impacts of proposed
projects, and to preserve the public safety, the City must be compelled to
prepare and use Annual Reports to implement and monitor mitigation measures found feasible in its General
Plan Framework EIR and adopted as
policies in its General Plan Framework.
II. STATEMENT OF
APPEALABILITY
The trial court's final judgment denying Appellant's petition for writ of
mandate was entered on March 2, 2011. (Joint Appellant's Appendix (hereinafter "AA"), volume 15, tab 51, page 2167 (hereinafter
"volume: tab: page").) It is appealable pursuant to Code
of Civil Procedure section 904.1 subd. (a) (1).
III. STATEMENT OF FACTS
A. Administrative History of the Framework Element
and
Annual Growth and Infrastructure
Reports.
1. Approval of
the Framework Element and
Challenges to It.
To provide specific policies on how to deal with ever-growing demands on
the City's infrastructure, the City developed and adopted a General Plan Framework Element in 1996. The City's General Plan is composed of various elements including the Framework Element, the Land Use Element, and other elements mandated by the Government Code.
The Land Use Element is composed of 37 community plans that establish land use policies within various community plan areas. (Federation of Hillside and Canyon Associations v. City of Los
Angeles (2000) 83 Cal.App.4th 1252, 1255 ("Federation of Hillside and Canyon 1").)
The Framework
Element is a critical component of the City's General
Plan. It is meant to establish a strategy for long-term growth, with a citywide context to inform the environmental
review process, including updating of
community plans and citywide elements contained in the General Plan. (AA 2:10:119.) The Framework Element
"states policies, objectives,
and goals for the long-term growth of the city. The General Plan Framework influences but is separate from other
general plan elements, which together
comprise the general plan." (Federation of
Hillside and Canyon Associations v. City of Los
Angeles (2005) 126 Cal.App.4th 1180, 1188-1189 ("Federation of
Hillside & Canyon II").)
The Framework Element was originally adopted in 1996 based upon a final EIR and statement of overriding considerations for the land use
and growth policies that would have significant impacts even
with mitigation measures. (Federation of Hillside & Canyon 1, supra, 83 Cal.App.4th at
1257.) The EIR for the Framework Element found that transportation impacts would be reduced due to the inclusion of a proposed
"Transportation Improvement
Mitigation Plan" (TIMP). (Ibid.)
A community association called the Federation of Hillside and Canyon Associations challenged the adoption of the final EIR and approval
of the General Plan Framework Element. The Court of Appeal
found "that there was no substantial evidence to
support the city's finding that transportation
impacts would be mitigated because the city had acknowledged
that funding for the TIMP was highly uncertain and made no provision to ensure that the TIMP would actually be implemented." (Federation of Hillside and Canyon II, supra 126 Cal.App.4th at 1191.) In response to
the Court of Appeal's decision, the City amended the Framework Element in August 2001. (Id., at 1192.) It adopted a statement of overriding
considerations and made a finding that all feasible mitigation measures had been adopted. (AA 3:10:381 et seq.) Among those mitigation measures was the requirement to prepare Annual Reports which would consolidate current and historical data, forecast future trends,
and determine if any infrastructure element was threatened with overload. The City would then increase infrastructure capacity or put building controls
in place to prevent that overload. (AA 4:10:437 [stating
fundamental premise of community plan is monitoring population through
"the City's Annual Report on Growth and Infrastructure"]; see also at
AA 4:10:424 and 4:10:427.)
The City
adopted as General Plan Framework Policy 3.3.2 the
following measure:
Monitor
population, development, and infrastructure and service capacities within the
City and each community plan area. . . . The results of this monitoring effort
will be annually reported to the City Council and shall be used
in part as a basis
to . . . . Consider regulating the
type, location, and /or timing of development.
(AA 2:10:158, emphasis added.) The Court of Appeal
in Federation of Hillside and
Canyon Associations I, supra, 83 Cal.App.4th 1252 quoted a portion this policy. (Id. at p. 1255.)
The infrastructure mitigation measure embodied in Policy 3.3.2 of the Framework Element correlated allowable growth with available or planned infrastructure through Annual Reports. This correlation was
described by the City in its General Plan Framework EIR and was relied upon throughout as a mitigation measure. For example, the Framework Element mitigation measure relating to fire and emergency medical
services states:
Mitigation through Framework Policy
3.3.2 directs monitoring of infrastructure and public service
capacities to determine need within each CPA [Community Plan Area] for
improvements based upon planning standards. This policy also directs
determinations of the
level of growth that should correlate
with the level of capital, facility, or service improvement
that are necessary to accommodate that level of growth. In addition,
the policy directs the establishment of programs for infrastructure and
public service improvements to accommodate development in areas the General
Plan Framework targets for growth. Lastly, the policy
requires that type, amount, and location of development be
correlated with the provision of adequate supporting infrastructure and
services.
(Respondents' Certified CEQA Administrative Record (hereinafter "SAU"), page 866, emphasis added.) Other types of City services
relied on similar explanations of how sufficient capacity
would be ensured. (SAU 873[Police]; SAU 883[Schools].) The
General Plan Framework Element's reporting and
mitigation requirement, contained in Policy 3.3.2, is thus relied upon throughout the General Plan Framework Element EIR.
2. Contents of the Framework Element.
The
Framework Element "establish[es] policies to best
accommodate [the
City's] growth when and if it should occur" and "provides a
means for accommodating new population and employment in a manner which enhances rather than
degrades the environment." (AA 2:10:120
and 119.) To this end, the Framework Element includes proposed operational
and physical improvements to traffic systems and
infrastructure; policies to encourage
the use of public transit and reduce vehicle
trips; and other measures to reduce traffic congestion and improve accessibility.
(AA 2:10:123-125.)
In order to
detelinine whether City infrastructure and services (such as fire and paramedic services,
police, wastewater treatment, water supply and
transportation infrastructure) meet the City's current and future population
growth's needs (and thus whether and how development should be approved), the
Framework Element requires the City to analyze: (1) population projections
provided by Southern California Association of Governments ("SCAG"); and (2) the City's own actual monitoring
of the City's population growth, infrastructure and services to gauge
the appropriateness of the estimates. (AA
2:10:120.) The City is then to provide
for modification of infrastructure resources over time, so actual growth
can be accommodated when and if shortfalls should occur. (AA 2:10:120-121.) The Framework Element required the
linkage between future growth and
infrastructure capacity through the implementation of a monitoring program that provides information
regarding actual demand and service levels in order to guide public decisions
regarding infrastructure and service investments. (AA 2:10:236.)
The General Plan Framework EIR stated:
Given the limited surplus of funds,
it is unlikely that fire services could be expanded to the levels identified in this
analysis. Furthermore, if economic
conditions do not result in full utilization
of commercial and industrial designated areas, there may be insufficient
revenue to maintain, let alone expand, fire services to serve the
buildout population.
However,
because the Framework Plan contains Policy 3.3.2 which
considers monitoring the type and
location of development and population the negative fiscal
effects of the Framework Plan could be minimized.
(SAU 866, emphasis added.) The infrastructure mitigation embodied by Policy 3.3.2 and informed by the Annual Report is thus woven into the
fabric of the General Plan.
The infrastructure impact mitigation mechanism is described in one of the City's community plans as follows:
...if this monitoring finds that population in the Plan
area is occurring faster than projected;
and, that infrastructure resource capacities
are threatened, particularly critical ones such as water and sewerage; and, that there is not a clear
commitment to at least begin the
necessary improvements within twelve months; then building controls should be put into effect, for all or
portions of the West Los Angeles
Community, until land use designations for the Community Plan and corresponding zoning are revised to
limit development.
(AA 4:10:440; see also AA 4:10:427
[San Pedro].)
The Annual Report is the essential document that allows for infrastructure impacts to be monitored and mitigated. The Annual Report
is to be based on infrastructure and growth monitoring,
combined with trigger levels and budget forecasts for
determining when infrastructure and the City's ability to
fund needed improvements to the infrastructure are threatened. The City
described Annual Reports as containing:
the
information that is essential in shaping growth in a manner that
can mitigate its [the General Plan
growth] impacts, minimize development costs, conserve natural resources, and
enhance the quality of life in the City.
(AA 2:10:133.)
The implementation of infrastructure mitigation through the information provided in the Annual Report is critical to the preservation
of the environment and the assurance that public services,
including emergency firefighting and police services, are
available to the residents of the City. The City relied on the
infrastructure mitigation to specifically mitigate possible
impacts on police and firefighting services. (SAU 866 and 873.)
The City underscored the mandatory nature of its obligation to prepare and use Annual Reports when it responded to a comment made during the DEIR process which questioned the commitment of the City in implementing mitigation measures for growth. In response to the question,
the City revised the EIR to state:
The Mitigation Measures defined by
this EIR in many instances
encompass the policies contained in
the proposed General Plan Framework. This fulfills the legislative intent for
general plans and the CEQA process stipulating that 'mitigation measures
developed through the environmental review process can and should
serve as the basis for policies and implementation measures.' The
inclusion of policies as environmental mitigation measures
acknowledge the
role that has been defined by the
State specifying that a general plan's policies represent a 'clear
commitment of the local legislative body for implementation.' For these
reasons, the policies defined as mitigation measures are assumed by
the DEIR to be fully implemented.
(SAU 154, emphasis added.)
The use of the mandatory language throughout the Framework Element to require preparation and use of Annual Reports is consistent
with the City's "clear commitment" to implementing
policies to mitigate growth impacts identified in its
response above.
3. The
Requirement to Prepare An Annual Report on
Growth and Infrastructure Was Part of the Mechanism to Mitigate the Cumulative Effects of Growth in the City.
The Framework Element provides a system whereby the City is supposed to monitor population and employment growth and the effects on transportation and infrastructure, prepare Annual Reports of the results
of that monitoring and the analysis of it, and then respond
appropriately to the reported information. The Framework
Element requires the City to systematically monitor its
actual population growth; the sufficiency of City infrastructure and services; and to periodically report the data
collected as a result of the monitoring. (AA
2:10:120-121; 125; 3:10:275.) The data and analysis is to be
reported to the City's decisionmakers, including the City Council, for the express purpose of informing all development decisions within the City specifically whether infrastructure capacity must be increased or development controls must be implemented. (Ibid.) The consolidated
reporting, analysis, mitigation monitoring, and determination of required actions to prevent infrastructure overload is intended to be
available to the general public, the City's commissions, and the City's
Neighborhood Councils, among others. The Framework Element directed that "The
information from such a monitoring system will be presented to the City Council
in the form of an Annual Report on Growth and Infrastructure."
(AA 2:10:140, emphasis added.)
Chapter 10 of the Framework Element includes programs for implementing the goals of the Framework Element. (AA 2:10:258.) It identifies thirteen of the sixty programs as "principal programs
that are essential in carrying out the policy direction of the Framework
Element." Program 43, requiring an Annual
Report, is identified as one of the essential
programs. (AA2:10: 258-259.) The Framework Element's Program 43 requires
the City to:
Prepare an
Annual Report on Growth and Infrastructure based on the results of the
Monitoring Program, which will be published at the end of each fiscal
year and shall include information such as population estimates and an inventory of new development. This report is
intended to provide City staff, the City Council, and service providers with information
that can facilitate the programming and funding of capital improvements and
services. Additionally, this report will inform the general plan amendment
process. Information shall be documented by relevant geographic boundaries, such as
service areas, Community Plan Areas, or City Council Districts.
(AA 3:10:275, emphasis added.) The Annual Report in the Framework Element is described in the statement of overriding considerations for
the City's adoption of the General Plan Framework as follows:
The Framework Element includes an
on-going monitoring program to update the demographic forecasts that underpin
the plan and its Environmental Impact Report [EIR]. The monitoring system
will result in the issuance of an Annual Report on Growth and Infrastructure which will be used
to modify plan and EIR assumptions and serve
as the basis for evaluating the effectiveness of the Framework Element's objectives, policies, programs and mitigation measures.
(SAU 90.)
4. Partial Annual Growth and Infrastructure
Reporting Began in 1996 But Ended in
2000.
Three times after its 1996 adoption of the Framework Element, the City
prepared a document titled the "Annual Growth and Infrastructure Report" in an attempt to fulfill the requirements of the Framework
Element. The record contains copies of the Annual Reports
that were done in the years 1996, 1998, and 2000. (AA
4:10:446- 556, 4:10:557-5:10:718, 5:10:719-6:10:878.)
Each of these Annual Reports contained a similar
table of contents, and various data and projections for the years
covered. These Annual Reports had some consolidated data but
entirely failed to make assessments on whether any
infrastructure element was threatened with overload or
even to establish criteria for determining if a threat existed. As such, they might be used to see existing conditions, but they
did not contain the analysis necessary to use the reports
to identify trends or to implement their stated purpose of linking development
with the provision of adequate
infrastructure.
On or about April 20, 2000, the City prepared its third and last, "Annual Report on Growth and Infrastructure." (AA5:10:719.) The
2000 Report stated:
It is our [the City Department of
Planning's] hope that this and future
reports become useful tools in understanding change in the city, analyzing need, developing plans, monitoring
progress and informing public debate. The Department of City
Planning is commit[t] ed to providing this information to you and the public, and to
assisting you in making public policy and decisions based on this
information.
(AA 5:10:720, emphasis added.)
The executive summary of the 2000 Report states, "The preparation of
this report fulfills a requirement of the General Plan Framework Element to monitor growth
and to report on the adequacy of supporting public services and infrastructure." (AA 5:10:722, emphasis added.) Despite
the stated commitment to provide necessary reports to the City Council and to the public, and notwithstanding acknowledgement of this legal
requirement, City planning staff decided in April 2000 to not prepare Annual
Reports in subsequent years. (AA 14:26: 1946 [Howe Decl., ¶
8].) Not coincidently the two City planners that had
previously worked on preparing the Annual Reports were
reassigned. (Id. at ¶ 5.)
On November 2, 2007, in connection
with the review of a proposed development project, the Miracle Mile Residents
Association attempted to gain a better understanding of the project's
potential impacts by reviewing the Annual Reports that would address the area
around the development.
However, upon discovering the Reports were not done, the Association asked that the City complete the
required reports. (AA 3:10:282-284.) Tract
No. 7260 Association, Inc., representing an area containing over 1000 homes, also asked the City to "complete this
critical analysis of the state of our
infrastructure." (AA 3:10:285.) There is no record evidence the City ever responded to either of these letters.
B. Trial Court Proceedings.
When the City did not respond to repeated requests
to prepare an Annual Report, community members were left with no choice
but to seek judicial relief. Petitioners Lucille Saunders, the La
Brea-Willoughby Coalition, and others ("Saunders Petitioners")
filed a petition for writ of mandate on June 20, 2008. Fix the City filed a
petition for writ of mandate on November 12, 2008. Both petitions sought an
order compelling the City to prepare and use the Annual Reports, as mandated by
the Framework Element of the General Plan. Notices of related cases were
filed, and the cases were consolidated on February 19, 2009. On October
9, 2009, the Saunders
Petitioners (but not Fix The City) amended their petition to include a cause of action alleging that the
City's failure to prepare the Annual Reports violated the California
Environmental Quality Act (CEQA).
During briefing, the City submitted declarations from
its Planning Department staff or former staff members that sought to show the
City complied with the Annual Report requirement through posting information on a website.
(AA 14:26:1946 [Howe Decl., ¶ 6].) Briefing was completed in September
2010. A month after completion of briefing and less than two weeks before
the trial court hearing, the City on October 19, 2010 filed the
Declaration of Naomi Guth with a Request for Judicial Notice of 59 city websites purporting to provide information that would otherwise be included in an
Annual Report. (AA 15:37:2132-2143.) The summary attached to Ms. Guth's declaration states that she compiled the summary based on her research related to the City's
compliance with the Framework Element.
(AA 15:37:2132-2133.) Her research included interviewing City personnel and reviewing documents, as well as
reviewing websites listed in her
summary. (Ibid.) There is no evidence
that any websites named in the Guth declaration contained a
document entitled "Annual Report on Growth and
Infrastructure." Many of the websites cited in the Guth Declaration belonged to non-City entities. Fix the City and the Saunders Petitioners
objected to the Guth declaration as inadmissible. (AA 15:39:2154-2155.)
A hearing was held on November 3, 2010 in Los Angeles Superior Court. The trial court denied the petition for writ of mandate,
declaratory relief, and injunctive relief, holding the
Framework Element did "not impose any mandatory
duties," and even if it did, that the "City substantially
complied" with the Framework Element's requirements through its website.
(AA 15:40:2161.)
Fix the City made it clear that Fix The City was not seeking an
injunction on development in the City, but merely sought implementation of a
required reporting, monitoring and mitigation system as specified by the City's Framework Element. (15:34:2103.) In fact, it is Fix The City's
position that no one can fully know what needs to be done
as no monitoring, consolidation, analysis and reporting
has been completed. Regardless, the trial court deemed
injunctive relief unwieldy because "the court cannot
simply stop all development in the City and it certainly does not have the time nor the expertise to review each proposed amendment to land use regulations..." (AA 15:40:2162.) The Judgment was filed on March 2, 2011 and was timely appealed.
IV. STANDA OF REVIEW
Traditional
mandamus pursuant to Code of Civil Procedure section
1085 is the proper remedy to compel a city to perform its mandatory
duties. (Los Angeles County Professional Peace Officers'
Assin v. County of Los Angeles (2004) 115 Cal.App.4th 866, 869.)
Because the instant case involves the Framework Element of the General Plan, the following principles of general plan law are relevant.
A general plan is the "constitution for future
development." (DeVita v. Napa (1995) 9 Ca1.4th 763, 773.) Since all land use approvals must be
consistent with the general plan, it has "the force of
law." (deBottari v. City
Council (1985) 171 Cal.App.3d 1204,
1213.) Therefore, Fix the City agrees with the City's statement
of the standard of review at trial:
The
resolution of this case revolves around the interpretation of the
language of the Framework Element. The interpretation of a general plan is a
question of law. In construing the Framework Element, the court's primary task
is
to ascertain the intent of the City Council so as to effectuate the purpose
of the law.
(AA 14:25:1909,11. 8-10.)
The first step in determining the intent of the legislative body is an examination of the words of the statute itself, giving those words their ordinary meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal. 4th 593, 601.) If words of
the ordinance are clear and unambiguous, no further judicial construction is required to determine legislative intent and the plain meaning of the ordinance governs. (In re
Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)
Only if the legislative requirement is ambiguous does a reviewing court look to the canons of statutory interpretation for guidance. (Copley
Press, Inc. v.
Superior Court (2006) 39 Cal. 4th 1272, 1291.) As explained
recently:
We do not
construe statutes in isolation, but rather read each statute with
reference to the entire scheme of law of which it is part so
that the whole may be harmonized and retain its effectiveness.... [W]e will
choose the construction that comports most closely with the Legislature's
apparent intent, and endeavor to promote rather than defeat the statute's general
purpose, and avoid a construction that would lead to absurd
consequences.
( Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 440.) Courts thus
must interpret a statutory provision so as to harmonize with
the statutory scheme of which it forms a part. (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal. 4th 1139, 1153.)
ARGUMENT
V. THE CITY MUST PREPARE AND
IMPLEMENT ANNUAL GROWTH AND
INFRASTRUCTURE REPORTING TO PROVIDE 0 1 ERLY GROWTH AND SUFFICIENT
INFRASTRUCTURE.
A. The General Plan Framework
Element Mandates
Preparation and Review of Annual Reports.
Preparation and Review of Annual Reports.
The City has a mandatory duty to prepare Annual Reports because the Framework Element directs that the City "shall" prepare
them, and that the Annual Reports "shall"
include various types of information. (AA 2:10:136 and 275.)
The Government Code states 'Shall' means mandatory." (Gov.
Code. § 14.) Specifically in the context of interpreting a general plan, "The word 'shall' is to be construed as mandatory in
this context." (Camp v. Board of Supervisors (1981)
123 Cal.App.3d 334, 348.)
The City's General Plan Framework Element requires the City to prepare an Annual
Report that "shall include information such as population estimates and an inventory of new
development" and that "shall
be documented by
relevant geographic boundaries." (AA 2:10:275, emphasis added.) The
requirements for preparation and review of an Annual Report are thus mandatory. (AA 2:10:136
["Planning shall annually
review . . . [A]nnual review shall be reported to the City Planning Commission, the City Council, and
the Mayor through the Annual Report on Growth and Infrastructure"; " This report
shall recommend which citywide element or
community plan should be updated and why."])
Clear, directory language such as set forth in the Framework Element has been found to place a mandatory duty on a
public agency to perform a ministerial
action. In Rancho Murieta Airport, Inc. v. County of Sacramento (2006) 142 Cal.App.4th 323, the Court found that a
county had a mandatory duty to trim or
remove trees that were located in an airport's clear zone under a section of the Public Utilities Code which stated
that "no person shall ... permit
any natural growth to grow at a height which exceeds the obstruction
standards" set out by the Federal Aviation Administration. The county also
was found to have a mandatory duty to remove or trim the trees that obstructed flights
pursuant to its own county ordinance
that stated "no tree or other object of natural growth shall be allowed to grow ... to exceed the height limits
developed for aircraft approach and
take-off areas." (Id. at p. 325.) The Court found this
to be a very simple
case: the county was required to do something specific that did not require discretion. The
county did not do what it was required to do. Thus, it was necessary to issue a writ of mandate to compel the
county's compliance with its ministerial duty. That the county claimed it
should not be required to pay for the tree trimming or removal was not a
legitimate defense.
As in the Rancho Murieta case, the clear mandatory
language in the Framework
Element for preparation of Annual Reports imposes a duty on the City that must be performed. Furthermore, in the
context of the Annual
Reports
representing an adopted mitigation measure, the preparation and use of the Annual Report must be
mandatory. Even absent the clear use of the
mandatory word "shall" throughout the General Plan, as discussed below, inclusion of the Annual Reports as a
mitigation measure for growth impacts
associated with the Framework Element requires that their preparation is
a mandatory duty.
B. The General Plan
Framework Element Has the Force of
Law.
"We have
recognized that a wide variety of factors may illuminate the legislative
design, such as context, the object in view, the evils to be remedied, the
history of the time and of legislation upon the same subject, public policy
and contemporaneous construction." (Walters v. Weed (1988) 45 Ca1.3d 1, 10, internal citations
omitted.)
Although the
mandatory language of the Framework Element is clear, the City argued at trial that it has discretion
not to prepare Annual Reports because the
Framework Element is an optional element of the general plan. Even though the City was not required to adopt a Framework
Element, once it was adopted as part of the City's General Plan, it
attained
the force of
law. "Once an optional element has been adopted, it becomes a full-fledged part of the general
plan, with the same legal force and effect as the mandatory elements."
(Curtin's Land Use, 24th Edition, Solano Press, 2004, p. 18.) All elements, mandatory and
optional, have equal legal status and no element may be made subordinate to
another. (Sierra Club v.
Board of Sup. (1981) 126
Cal.App.3d 698, 708.)
An examination of the context,
purpose, history, and contemporaneous
interpretation of the Annual Report requirement reinforces the conclusion that the preparation and use of such reports
was intended to be mandatory because they were a crucial part of an
overarching system of mitigation of growth impacts and they are relied on
by numerous other elements of the General Plan.
Thus the Framework Element is not simply a superfluous guidance document that may be dispensed with as the City argues. Instead, it is
fundamental to the City's General Plan process, including its development of
"dramatic new measures" to mitigate anticipated growth that would otherwise "severely impair transportation and accessibility." (Federation of Hillside and Canyon I, supra, 83 Cal.App.4th at 1255.)
C. Mitigation Measures for
Significant Impacts Must Be Implemented.
The Annual Report mechanism is part of a system for controlling growth impacts associated with the General Plan that the City acknowledged would be significant. As part of a mitigation measure embedded in a General Plan policy, it is mandatory that the Annual Report
requirement be implemented. A mitigation measure, once
adopted, must be enforceable. (Pub. Resources Code § 21081.6 subd. (b) ["A
public agency shall provide the measures to mitigate or
avoid significant effects on the environment are fully
enforceable. . . ."]; Federation of Hillside & Canyon II, supra, 126 Cal.App.4th at 1198.) As
stated by the Court of Appeal:
Mitigating
conditions are not mere expressions of hope. Section 21002.1, subdivision
(b) states: "Each public agency shall mitigate or avoid the
significant effects on the environment of projects that it carries out or
approves whenever it is feasible to do so. . . . The purpose of these requirements
is to ensure that feasible mitigation measures will actually be implemented
as a condition of development, and not merely adopted and then neglected or
disregarded."
(Lincoln Place Tenants Assn. v. City of Los Angeles (2005) 130 Cal.App.4th 1491, 1508 ( Lincoln Place ).) Mitigation measures also must
be monitored
after they have been implemented. (Pub. Resources Code § 21081.6 subd. (a)(1).)
In Lincoln Place, supra, 130 Cal.App.4th 1491, the owners of
an apartment complex built in 1951 sought to demolish the apartments and replace them with new structures. (Id. at
p. 1495.) However, the Court of Appeal held the City had imposed
mitigation measures on the project that had
not been completed. Before the owners could proceed with the project, the mitigation measures had to be completed. The
Court concluded "Having placed these conditions on the demolition
segment of the redevelopment project, the
city cannot simply ignore them." (Lincoln Place, supra, 130 Cal.App.4th at 1508.)
The duty to
comply with CEQA mitigation measures, particularly the requirement
for the City to prepare and use Annual Reports, is a continuing duty because it has been
specifically found to be a feasible mitigation
measure and adopted in the City's General Plan by the City Council. There is no evidence that the City
Council determined preparation of the Annual Reports is somehow infeasible.
The City Council did not determine that
annual reporting should be curtailed or that its role in reducing growth
impacts was no longer necessary or feasible.
Rather, the determination to
discontinue Annual Reports was made by a staff member in the Planning
Department. As such, his unilateral interpretation of the Framework Element's
requirement is not entitled to deference. (Yamaha Corp. of America v. State
Bd. of Equalization (1998)
19 Cal.4th 1, 24 [staff member
determination "without public input" is not entitled to as much deference as formal action
"after a notice and comment period"].)
When a comment was made expressing concern that certain policies used as
mitigation measures might not be enforceable, the City reinforced their status as enforceable mitigation measures. (SAU 154
["the policies defined as
mitigation measures are assumed by the DEIR to be fully implemented."]) Therefore, the City may
not now claim they are optional measures that need not be enforced.
D. The Annual Report is An Essential Part of the
System
Imposed to Mitigate the Impacts of
Growth.
1. The Annual
Report Requirement Was Adopted as
Part of a Mandatory Mitigation
Measure for Growth Impacts.
The legislative intent must be effectuated in interpreting a statute. (People v. Woodhead (1987) 43 Cal. 3d 1002, 1010.)
The City Council's intent in adopting the Annual Report
component of the General Plan Framework was to make it mandatory and
enforceable as a mitigation measure for anticipated future
growth. In San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, the court stated that "without a
mechanism for addressing the cumulative effects
of individual projects, there could never be any awareness of or control over
the speed and manner of downtown development." (Id. at p. 77.) Without
such control, "piecemeal development would inevitably cause havoc in virtually every aspect of the urban environment." (Ibid.) To
avoid the type of chaotic outcome anticipated in San Franciscans, the City included a requirement for preparation and use of Annual Reports in its General Plan Framework Element. The manner in which the City integrated the Annual Report requirement in its mitigation monitoring and
reporting program, relied upon it as a mitigation measure, included it in its statement of overriding considerations, and relied upon it during
litigation over its General Plan Framework confirm that it was the clear intent
of the City to establish the duty to prepare the Annual
Report as a mandatory rather than discretionary duty.
a.
The Annual Report is Mandatory Because it is One of Two
Components of the City's Mitigation Monitoring and Reporting Program for the Framework Element.
The mitigation
monitoring plan adopted by the City for its approval of the Framework Element pursuant to
Public Resources Code section 21081.6
consisted of two components: the "Annual Report on Growth and Infrastructure"
and the "Annual Report on Status of the General Plan Implementation
Programs." (AA 3:10:357.)
The monitoring
program would confirm the accuracy of future growth estimates and document
what has actually happened with respect to the distribution of that population
growth across the City, focusing on the availability of public infrastructure
and services. (AA 2:10:140; 3:10:275). This information would be used to determine infrastructure
funding needs and provide a basis for the
management of growth. (AA 3:10:378.) Because
the "Annual Report on Growth and Infrastructure" was adopted as part of the City's mitigation monitoring and
reporting program, its performance is mandatory.
b.
The FEIR for the Framework Element Shows the
Annual Growth and
Infrastructure Report is Part of a
System Adopted as a Mitigation Measure.
The Framework
Element requires the City to annually assess each community plan area's ability to
accommodate growth and to scale-back growth
if infrastructure is insufficient. (AA 3:10: 399 ["requires the City to correlate
the type, amount, and location of development with the provision of adequate supporting infrastructure and public
services"].) The Final EIR for
the Framework Element explained the Framework Element's dual role as a
key aspect of the General Plan element and as a CEQA mitigation measure. (SAU 154.) The City affirmed that it made
a "strong
commitment to implementation of the reporting and mitigation mechanisms of the General Plan Framework." (SAU 154.)
c.
The Statement of Overriding Considerations and Findings Show Preparation of
the Annual Reports Is Mandatory.
The findings and statement of overriding considerations adopted for the approval of the Framework Element states that the Annual Report is to
"be used to modify plan and EIR assumptions and serve as the basis for evaluating the effectiveness of the Framework Element's objectives, policies, programs, and mitigation measures." (AA 3:10:385.) The
City later argued in court that the analysis contained in
Annual Report is a "triggering mechanism to tie
infrastructure to new development." (AA 3:10:322, ln.
26.) The Framework Element EIR, findings, and statement of overriding consideration describe ways in which the reporting and mitigation mechanism serve as CEQA mitigation for continued growth in the City. Under the heading, "Police," the Statement of
Overriding Consideration states, "the Framework element includes a policy that requires the City to correlate the type, amount,
and location of development with the
provision of adequate supporting infrastructure and public services." (AA 3:10:399.) The Final EIR's
response to comments specify this "policy" as Policy 3.3.2.
(SAU 866, 873, 883.) With regard to air quality,
the EIR notes, "General Plan Framework policies . . . also serve as
air quality mitigation" (AA
3:10:390.)
d.
Litigation Over the Framework Element Confirms the
City Viewed Preparation of the Annual Reports as a Critical and Enforceable Mitigation Measure.
Further confirmation of the reporting and mitigation mechanism's purpose as a CEQA mitigation measure that it had committed to implement
is contained in the court's decision in Federation
of Hillside and Canyon Associations II, supra, 126 Cal.App.4th 1180, in which the court
rejected the Federation's CEQA challenge to the General Plan, finding that the
adoption of the Framework Element and its specific policies provided adequate
mitigation under CEQA for the General Plan's foreseeable environmental impacts. During this litigation, the City touted the Framework Element's inclusion of annual reporting by stating:
What became clear was that a crucial
feature of dealing with growth impacts was contained in the GPF [General Plan
Framework] — its program for timing allowable development with available infrastructure
and frequent updating of its data along with a formal monitoring
program. For this reason, the City concluded that the GPF was the
environmentally desirable alternative, because it had the best
combination of land use policies tied to mitigation measures tied to
annual reporting.
(AA 3:10:323, emphasis added.) Thus, the City clarified its legislative intent and underscored the importance of its commitment to preparing the mandatory Annual Reports as a "crucial feature" of its system
for dealing with growth impacts.
2. The Annual
Growth and Infrastructure Reports
are Relied Upon By Various Sections
of the City's General Plan.
The legal framework surrounding an enactment is relevant to interpreting its provisions. (Lincoln Place
Tenants Assn. v. City of Los Angeles v. City of
Los Angeles (2007) 155 Cal.App.4th 425, 440.) In this case, the extensive
reliance of other portions of the General Plan on the Framework Element's mandate for Annual Growth and Infrastructure reporting shows the provision was intended as a mandatory part of the overall General Plan mitigation scheme.
If Annual Reports
were not prepared, then other sections of the General Plan which rely on the Annual Report for mitigation
would be impermissibly relying on an illusory, contingent mitigation measure.
The Framework Element's reporting and mitigation mechanism is relied upon in the City's
community plans. For example, the San Pedro Community
Plan states as one of its three "fundamental premises" that there
would be "monitoring of population growth and infrastructure improvements
through the City's Annual Report on Growth and Infrastructure." (AA
4:10:427; see also 4:10:440
[West Los Angeles Community Plan].)
The Central City Community Plan states, "the Plan has a land use capacity greater than the projected development likely
to occur during the Plan period. During the
life of the plan, growth will be monitored and reported in the City's Annual
Report on Growth and Infrastructure which will be submitted to the City
Planning Commission, Mayor, and City Council."
(AA 4:10:437.) Other community plans have similar language. (e.g, AA 4:10:424 [West Adams-Baldwin
Hills-Leimert Community Plan]; AA 4:10:438 [West Los Angeles Community
Plan].)
Various community
plans rely on a program to "Utilize the City's `Annual Growth Report' to monitor locations for growth and potential new
school sites." (AA 4:10:430
[San Pedro]; AA 4:10:432 [South Central]; AA 4:10:435 [Southeast Los
Angeles]; AA 4:10:442 [West Los Angeles].)
The reliance of numerous elements of the City's General Plan on the Annual Report shows that the
inclusion of this requirement in the Framework Element is essential and that its preparation
and use is mandatory.
Without preparation of an Annual Report, the various provisions of community plans
that rely on them are rendered meaningless, thus
undercutting their ability to control the impacts of growth and development
within the community plan areas.
3. Annual
Reports are Necessary For Numerous
Purposes Including Policy Revision
and Incentive Analysis.
Annual Reports are required to fulfill many purposes that are not limited to ascertaining if growth was occurring faster than predicted. As
stated within the Framework Element itself, other purposes of the these reports include recommending "which citywide element or community
plan should be updated and why" (AA 2:10:136); being
"used as the basis for revision of policies as needed
to meet the goals of the Framework Element" (AA
2:10:140); determining the "status of environmental mitigation requirements" so "policies can be changed if desired results
are not being obtained" (AA 2:10:140) and evaluating
"whether the incentives that are linked to targeted
growth areas are working effectively with market forces to attract new
development" (AA 8:12:1152). A court evaluating a challenge to the City's approval of the EIR for the general plan stated
"The GPF [General Plan
Framework] stated that the city would . . . monitor growth and its effects on infrastructure and service
capacities annually in order to
'consider regulating' development if the infrastructure remains inadequate
(Policy 3.3.2(d))." (Federation of Hillside and Canyon Associations I, supra, 83 Cal.App.4th at 1255.) These many purposes of these reports
extend far beyond merely ascertaining if growth is outstripping infrastructure,
since they also address analyzing how and where
growth is occurring for long range planning
purposes some of which are unrelated to infrastructure, such as affordable
housing policies. As the West L.A. Community Plan (and many
others) indicate, the City is to rely on the Annual Report to decide if
building controls should be put into effect.
The Annual Report, as is demonstrated by the various community
plans which reference it, is to provide the City with two options for maintaining its infrastructure. They state that if "infrastructure
resource capacities are threatened "and "that there is not a clear
commitment to at least begin the necessary improvements
within twelve months. . . then building controls should be put into
effect." (AA 4:10:440; see also AA 4:10:427.) The
Annual Report is essential to the system of checks and balances intended to prevent growth from outstripping infrastructure in
the City of Los Angeles and to ensure that growth is occurring in the places
and in the ways that the City plans. Absent a report that provides the ability
to determine if an infrastructure element is threatened and
then to determine if funding exists to increase capacity,
the City is unable to reduce growth or increase
infrastructure as necessary.
4. Annual
Reports Are Necessary to Consolidate
Scattered Information in a Readable
and Analytical Format.
Annual Reports present growth and infrastructure infolination to the public in a clear and readable format that represents consolidated data, analysis, and monitoring of past actions taken to mitigate the impacts of
growth. Additionally, even if information such as raw data
about housing is available, Annual Reports are required to
provide an analysis of that raw information as it
relates to the City's policies regarding growth and its infrastructure capacity. A fundamental purpose of the Annual Report is to
collect information and present it in a single document
with analysis and trend lines that decisiomnakers and
the public can use to determine if an infrastructure element is threatened with
overload. The report must also provide analysis as to whether
the City can make a "clear commitment" to "begin the
necessary improvements within twelve months." (AA 4:10:440.) Only after that analysis is complete can determinations on proposed development be considered.
The City claimed at trial that it could rely upon the availability of some information on various City department websites to obviate the need for Annual Reports. (AA 14:25:1914.) However, this claim is similar to
the one rejected by the court in Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777. In Endangered Habitats League, the
court rejected the County of Orange's claims that it should be able to substitute a different means for measuring traffic levels from
the method specifically required in its general plan. (Id. at
p. 783.) The County's general plan required it to analyze new
project's traffic impacts according to the methods
described in the Highway Capacity Manual (HCM). Because the
County instead measured the traffic impacts under the volume/capacity (V/C) ratio, the Court required the approval of the project be set aside, stating:
The general
plan requires LOS C as determined under the HCM method, and the project does not
comply. That it does so under the V/C method is of no import, since the general
plan
is unambiguous in demanding the evaluation be made by the HCM
method.
(Id. at p. 783.) In the same way the
County's effort to comply by using an alternative traffic
analysis method was of "no import" in Endangered Habitats League, in the present case, it does not
matter that the City posts pieces of information in various
places among its various departments' websites. Rather,
the Framework Element mandates that an Annual Report be prepared and used. The City has failed to do so since 2000.
E. The City Does Not Have Discretion to Dispense
with
Annual Reports.
At trial, the City argued, and the court below agreed, that it had discretion to eliminate preparation of the Annual Reports without
changing the General Plan Framework. The City relied on the
portion of the
Framework Element which states "Program implementation is contingent
on the availability of adequate funding. . . . detailed
work scope of programs may be changed without requesting
amendments to the General Plan Framework Element."
(AA 3:10:258.) While the City has considerable
discretion over how to prepare Annual Reports within the constraints of its
budget, in view of the mandatory language directing their preparation and the importance of them as part of the City's growth
mitigation system, the City may not dispense with their preparation and implementation altogether. The meaning of a statute must be interpreted with reference to the context of the statutory scheme of which it is a part. (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal. 4th 1139, 1153.) if based upon budgetary constraints the City could reject performance of any measure in the General Plan Framework Element as non-mandatory, none of its provisions would be binding on the City.
A public agency may not fail to perform a mandatory duty based upon
budgetary shortfalls. (Scott v. Common Council of San
Bernardino (1996) 44 Cal.App.4th 684, 697 ("Scott").)
In
Scott,
the
City of San Bernardino's charter required
the city attorney to prosecute certain legal violations. (Id. at p. 686.) After encountering financial difficulty, the city council passed a
budget that eliminated the city attorney's only investigatory positions. (Ibid.) In response, a citizens
group filed a petition for writ of mandate, alleging the city council breached
its legal obligation
to ensure that the city attorney can carry out his charter-mandated
functions when it eliminated funding for these positions. (Id. at p. 687.) The trial court granted the writ and the Court of Appeal affirmed. The Court held that, even in the face of "unprecedented restriction of funds,"
the city "cannot act in excess of its authority by first
eliminating mandatory government functions" before "eliminating
functions not mandated in the City Charter." (Id. at p. 697.)
The court in Redwood Coast Watersheds Alliance v.
State Board of Forestry and Fire Protection (1999) 70 Cal.App.4th 962, affirmed a trial court
decision that a state board had a "mandatory or ministerial duty to adopt MSP
[maximum sustained production] regulations, while it has a discretionary
duty to determine the content of the regulations as long as the content is
consistent with the objectives of the FPA." (Id. at p. 970.)
The court stated
The board does not have a choice whether to adopt
such regulations: the
FPA [Forest Practices Act] unqualifiedly requires
it to adopt them. 'To the extent that its performance is unqualifiedly required, it is not
discretionary, even though the manner
of its performance may be discretionary.'
(Id. at p. 970, quoting Ham v. County of Los Angeles (1920) 46 Cal.App.148,
162.)
In the same way the public agency had a mandatory
duty to adopt regulations in Redwood Coast Watersheds Alliance, but
discretion with regard to the content of those regulations, the City has a
mandatory duty to prepare and use Annual Reports, though it has discretion
to determine the content and method of delivery of those Annual Reports, so
long as the content is consistent with the objectives of the Framework
Element to provide usable information "to the
City Council and pertinent service departments and agencies." (AA 2:10:133,
emphasis added.)
The commitment to carrying out the mitigation and
monitoring programs made in the City's findings supporting its
statement of overriding considerations did not make implementation of those
mitigation measures conditional on funding availability. Instead, the final
EIR proposed, and the City adopted, findings that the Framework Element
contains policies and programs to ensure that sufficient infrastructure,
such as Wastewater capacity, would be available to accommodate future growth.
(AA 3:10: 395 ["The Framework Element includes policies and
programs . . . which
ensure that the
demand for wastewater treatment can be met."]) The findings and
overriding considerations stated:
The
monitoring system will result in the issuance of an Annual Report on Growth and Infrastructure which will be used to modify
plan and EIR assumptions and serve as the basis for evaluating the
effectiveness of the Framework Element's objectives, policies, programs, and
mitigation measures.
(AA 3:10: 385.) As these findings did
not state that such policies and programs
were contingent on the availability of adequate funding, nor did the findings contemplate the cessation of the
programs, they were mandatory without regard to availability of funding.
F. The City Interpreted its Duty to Prepare Annual
Growth
and Infrastructure Reports as Mandatory When Prior Annual Reports Were Prepared Contemporaneously
With the Framework Element's Adoption.
Whether a particular interpretation
of a legal requirement was contemporaneous with the enactment of the statute
being interpreted is a factor used in
weighing the interpretation. (Yamaha, supra, 19 Cal.4th. at
p. 13.) In this case, each of the three times the City prepared an Annual
Report shortly after the Framework Element was adopted, it stated either that it
"fulfills a requirement" of the General Plan (AA 5:10:722 and 4:10:560) or was
"undertaken in compliance" with the General Plan (AA 4:10:562). The
executive summary of the 2000 Report, written by Con Howe, states,
"The preparation of this report fulfills a requirement of the General Plan
Framework Element to monitor growth and to report on the adequacy of supporting
public services and infrastructure." (AA 5:10:722.) The two prior
Annual Reports made similar statements. (AA 4:10:560 ["this report
fulfills a requirement of the General Plan Framework Element"];
AA 4:10:450 ["This effort is undertaken in compliance with the [CEQA] mitigation monitoring
requirements. . . The Framework Element .
. . commits the Department of City Planning to . . . prepare an annual
report on growth and infrastructure for public
officials"].) The City's first three interpretations (AA
5:10:722, 4:10:550 and 4:10:450) of the Annual Report requirement as a mandatory mitigation measure are entitled to great
weight, since they are the interpretations the City reached
immediately after the Framework Element was passed, and
thus are more in tune with the purposes of the City Council in
its adoption. Thus, under the principle of attaching weight to
contemporaneous implementation set forth in Yamaha, supra, 19 Cal.4th at 13, the City's
interpretation of the requirement as mandatory is
entitled to great weight.
The later, contrary interpretation apparent in the declaration of Con
Howe submitted during the present litigation that the Framework was not intended as a mandatory mitigation measure (AA, 14:26:1947 [Howe Decl., ¶ 9) is not entitled to great weight. Howe's declaration was submitted
with a request for judicial notice and is thus a litigation
position of the City that is entitled to less regard than
contemporaneous statements included in the Annual Reports that
were prepared until 2000. In Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Ca1.3d 86, the Supreme Court found that
such litigating positions are not entitled to as great a level of deference as
administrative rulings that were "embodied in any formal regulation" or interpretations. (Id. at p. 92.)
G. The City Council Did Not Rescind the Annual
Report
Mitigation Measure Requirement.
At trial, the City argued that the City Council, Mayor, and City Planning Commission were notified that the data previously contained in the Annual Reports would now be contained only on City websites. Because
there was no feedback, the City argued this constituted silent consent to those
changes. (AA 14:25:1914.) However, the City Council
did not revoke the mandatory Framework Element requirement for Annual Reports.
Howe's declaration establishes that he unilaterally decided to discontinue
preparing any type of Annual Reports, without public review or comment, or
affirmative City Council approval, by reassigning the two City planners who
had previously worked on preparing the Annual Reports. (AA,
14:26:1946 [Howe Decl., ¶ 5.)
Among the relevant factors to consider in reviewing
the reasonableness of an administrative interpretation such as Howe's decision to
discontinue Annual Reports is whether it is " 'contained in a regulation adopted after
public notice and comment [rather than one] contained in an advice
letter prepared by a single staff member' "; whether the
interpretation is long-standing and has been consistently maintained; and
whether
the interpretation was contemporaneous with the legislative enactment of
the statute being interpreted. (Yamaha, supra, 19 Cal.4th.
at 13.) In this case, Howe's interpretation was made by a single staff
member without public notice and comment on the discontinuance of Annual Reports. His
interpretation of Annual Reports as fulfilling "a requirement" of the
Framework Element was relatively contemporaneous with adoption of the
Framework Element but his recent declaration disclaiming a binding requirement
to prepare Annual Reports is not.
Furthermore, Howe's Annual Report transmittal letter
of April 20, 2000 of the third and last Annual Report stated sections
of Annual Reports would
be made available on the Internet as they were ready. (AA 5:10:720.) It also stated "Appropriate
sections of the report will be placed in
a published, hard copy report in the near future." (AA 5:10:720.) Therefore,
any councilmember or member of the public reading Mr. Howe's transmittal letter would expect a
"published, hard copy" in addition to the Annual
Report on the Internet, not as an alternative to that
material. Furthermore, the transmittal letter states that sections
of the report would be
available on the Internet, not just raw data at different websites. It is
immaterial whether the text of an Annual Report exists in
physical or virtual form. However, it is critical that the
Annual Report is prepared and used.
VI. THE CITY FAILED TO PERFORM
ITS MANDATORY DUTY TO PUBLISH AND
USE ANNUAL REPORTS.
A. The
City's Various Monitoring Activities Do Not Meet the
Mitigation
Requirement of the Annual Report System.
The General Plan Framework Element imposes a mitigation system for
General Plan growth that encompasses monitoring growth throughout the City, reporting the growth and infrastructure capacity through preparation of Annual Reports, then responding to those Annual Reports by
taking appropriate action. Such actions include expanding
infrastructure or adopting building controls until
community plans can be revised. However, the system is not
possible without preparation and use of the Annual Reports. The various disparate monitoring efforts the City undertakes do not accomplish the mitigation purpose of the system because they never progress to the review and response stage.
1. Mere Monitoring Without Analysis or Action
Based on the Analysis Does Not Result in Mitigation.
While the preparation of Annual Reports is an essential part of the system imposed as a mitigation measure for growth, it is not the entire system assuring that growth is supported by the necessary infrastructure.
After the Annual Reports are prepared, they must be
reviewed and used by the City Council so that appropriate action can be taken.
The Framework Element specifically directs that the Annual Report "will be published at
the end of each fiscal year." (AA 3:10:275, emphasis added.) It
further states that they must be presented to the City Council:
The information from such a
monitoring system will be presented to the City Council in the form of an Annual
Report on Growth and Infrastructure, which can be
used as the basis for revision of policies as needed to meet the goals of
the Framework Element.
(AA 8:12:1152, emphasis added.)
Thus, availability of the Annual Reports for City Council,
and consequently the public, to review is a key component of the program. At the trial
court, the City Attorney clarified that "the annual growth and infrastructure
report is not to be reported to the public. It's to be reported to the city
planning commission, city council, and mayor." (Reporter's Transcript,
November 3, 2010, p. 10, lns. 17-20.) This "clarification" is irrelevant since there is no
evidence that Annual Reports have been prepared
or reported to anyone since 2000. The only information available since then is raw data available from websites
known to Planning Department staff.
There is no guarantee that the units of measurement,
time frames or geographical areas used among the various websites allow
for "apples-to-apples" comparison, or that the scattered information
and analysis is complete.
The City admitted at trial that it does not prepare
documents entitled "Annual Growth and Infrastructure Reports"
because of a concern about their "format and utility." (AA
14:25:1913.) However, the Annual Reports are not mere documents to be
prepared and then left on a shelf to gather dust. While their form (whether
hardcopy or electronic) does not matter, their function as part of the
mitigation system mechanism for regulating growth cannot be fulfilled if they
are never prepared in the first place.
The City admitted infrastructure information is
"no longer included in the Annual Growth Reports due to its static
nature." (AA, 14:25:1914.)
Infrastructure may be static in certain limited cases. However, water supply, power supply, degradation of infrastructure (such as streets, sidewalks and water pipes) are hardly static. Schools, streets, police stations and fire stations deteriorate over time, thus requiring attention
as demand on them remains constant or increases. (AA
8:10:1075 [reporting overcrowding in schools].) Budget
cuts also impact the availability of infrastructure elements. As the recently
well-documented failures in infrastructure such as
sinkholes and broken wastewater or water mains attest,
infrastructure is not as "static" as the City claims. (AA 7:10:1004 ["LA Admits Sewer Spills"]; AA 8:10:1052].) Without compliance
with the Framework Element's requirement for preparation of
Annual Reports, the City's plan for addressing
infrastructure failures becomes reactive, haphazard,
inconsistent and expensive, rather than proactive and well-planned as required in the Framework Element.
Instead of providing useful information in an Annual Report, the City claims the annual reporting requirement is fulfilled by various
other activities it undertakes. The City argued at trial
that its Planning Department regularly monitors
population estimates and projections. The requirement that
Annual Reports "shall include information such as population estimates and an inventory
of new development" (AA 3:10:275, emphasis added)
shows that population information is only one type of information that is
required. It is not the sole type of information. Furthermore, there is no evidence
the infrastructure and public services information is "published" by
promulgating it to the public and decisiorunakers,
as in an Annual Report. Relying upon documents placed in obscure locations on
the City's website does not meet the requirement that they be "published" at the end of each fiscal year. Such
documents are not readily accessible,
and not accessible at all to members of the public
without access to computers or those that are not prepared to spend substantial amounts of time searching the websites of various
departments.
Additionally, a population monitoring program is distinct from the Annual Reports, since the City must both monitor and report, not just do one or the
other. The monitoring is the first step in the mitigation system process; preparation of Annual Reports is the next step; using the Annual
Reports to calibrate growth policies and community plans
and then reporting the results is the last necessary step. By
failing to report the results of monitoring or using the
information that should be reported, the City never gets past
the first step in the mitigation process that was set up by the Framework Element.
The Annual Reports are supposed to provide usable information regarding trends over time. It is intended to "annually document
what has actually happened to the City's population levels, housing construction, employment levels, and the availability of public infrastructure and
public services." (AA 2:10:140, emphasis added.) As
with any type of report, they may be used far in the future
depending upon the information they contain. However, such Annual Reports
cannot be used if they are not prepared. An analysis of
historical trends over time is only possible by comparing
Annual Reports from different years. Some of the most useful analysis would occur by comparing one report to another, not merely examining the information contained within a single report.
Finally, the EIR for the Framework Element distinguished between monitoring and the Annual Report. It lists a "Monitoring
Program," a "Citywide Environmental
Database," a "Capital Improvement Program" and, separately, the "Annual Report on Growth and
Infrastructure." (AA 3:10:378.) The intent for the
Annual Report on Growth and Infrastructure is stated as follows:
It is the
intent of the Report to provide City staff, the City Council and service
providers with information that can facilitate the programming and funding of
improvements and/or service as the
basis for the management of growth when deficiencies occur.
(AA 3:10:378.) Thus, any argument that monitoring and a database of resources is the same as preparation of the Annual Report is proven false
by the City's own EIR for the General Plan Framework.
Finally, the City is required to monitor mitigation measures as they are implemented. (Pub. Resources Code § 21081.6 subd. (a)(1).) There is no evidence that the Annual Report mitigation measure has been monitored because it has not been implemented by the City.
2. Trigger Levels for Taking Action Are Not Identified Through Website
Based Monitoring.
The various websites cited by the City's planners contain some
information about the condition of various pieces of City infrastructure. However, they do not fulfill the Framework Element's requirement for
Annual Reports because there is no comparison to identify if an infrastructure element is threatened with overload. There must be trigger
levels that will cause measures such as growth controls to
be implemented. The City has not identified trigger
levels that when reached suggest various infrastructure resources
are threatened. Without any analysis of when infrastructure
resources would be threatened by past and anticipated future growth, the City cannot set levels that trigger mitigation requirements
to restrict growth or increase infrastructure. It is also
important to note that the Framework Element and Land Use Element specify the
mitigation trigger is when infrastructure capacity is
threatened, not when it is exceeded. The threat analysis
requires a knowledge of the past so trend lines can be established, and a
knowledge of funding projections so that future infrastructure
capacity levels for core services such as fire protection can be included. When current or projected demand exceeds current or projected
capacity, a threat can be identified. Only with the Annual Report and its
analysis
can core services be protected from unexpected demand or decreased
capacity that would lead to failures in services and decreases in public
safety.
The only mention in the Framework Element of a
potential trigger level for considering "whether additional growth
should be accommodated" is stated in Framework Element Policy 3.3.2 (c). (AA 2:10:158.) That Policy states "Initiate a study . . . when 75
percent of the forecast of any
one or more category listed in Table 2-2 (see Chapter 2: Growth and Capacity) is
attained within a community plan area." (AA 2:10:158.) If such a study
becomes necessary, it would determine the level of growth that should
be accommodated and correlate that level with the capital, facility, or
service improvements or demand reduction programs that are necessary to
accommodate that level. However, without the Annual Reports,
there is no way to know if the 75 percent forecast of any category listed has
been attained in any community plan area. Therefore, the City's failure to
prepare Annual Reports prevents it from ever taking the next step of
preparation of a study to consider whether additional growth should be accommodated.
The record is replete with references to the
importance of trigger mechanisms for determining threats of infrastructure
overload. For example, the alternatives analysis in the statement of
overriding consideration for the "Theoretical Buildout Alternative"
states:
Under this alternative, there would be no trigger mechanisms available to
generate additional review when infrastructure improvements are not able to
keep up with the demands placed on them by new development.
(AA 3:10: 418.) The City thus rejected the Theoretical Buildout Alternative
because it had no trigger mechanisms to generate review, as would be
provided under the Framework Element's requirement for Annual Reports.
That the triggers in the Framework Element's Annual Report
requirement were relied upon in the City's adoption of the Framework Element and
that those triggers have never been determined is proof positive
that the City has failed to implement the required mitigation.
3. Website Based Monitoring, Without
Analysis or Action Using Annual Growth and Infrastructure
Reports, Does Not Comply with the Framework Element Mitigation
System.
The City does not comply with the Annual Report
requirement through its website monitoring because website monitoring
provides no coherent analysis of the data that is monitored,
determination of threats to infrastructure capacity, or required actions to
reduce the threats to infrastructure that are identified.
Mitigation of growth impacts as contemplated by the
Framework Element
requires that the City take action in response to infrastructure being threatened. This can only be accomplished by
relying on a report that sets
triggering criteria for determining when a threat exists, then analyzing monitoring data to determine if the triggering
level has been reached now
or would likely be reached in the future. The West Los Angeles Community
Plan provides that if monitoring shows :
that infrastructure resource capacities are threatened, particularly critical
ones such as water and sewerage; and, that there is not a clear commitment
to at least begin the
necessary improvements within twelve months; then building
controls
should be put into effect, for all or portions of the
West Los Angeles Community, until land use
designations for the Community Plan and corresponding zoning are
revised to limit
development.
(AA 4:10:440, emphasis added.) Various City
community plans have similar language stating the underlying fundamental
premises of the City preparing and using the Annual Reports to ensure
infrastructure resource capacities are sufficient. (e.g, 4:10:445 and
4:10:427.) One contemplated action would be to reduce growth if anticipated
growth exceeds planned
growth. Another
would be to recalibrate growth if it was occurring in the wrong locations or pursuant to the
wrong incentives.
The Framework
Element calls for using the Annual Reports to make recommendations for changes
that should be made to community plans, policy changes that should be implemented, or other
measures. There is no way to base recommendations on the scattered collection
of websites that the City proffers as its
compliance with the Annual Report requirements.
B. The City's Declarations From Planners About Various
Websites Do Not Show Compliance with
the Annual Report Requirement.
The trial court
took judicial notice of the existence of the websites proffered for
judicial notice by the City. (AA 15:40:2162.) The websites cited by the
City contain inadmissible hearsay and as such, should not have been admitted. (North Beverly Park Homeowners Ass'n v. Bisno (2007) 147 Cal.App.4th
762, 778.) Although the Court might take judicial notice of the existence of the websites, it does not have
sufficient information to take notice of
their contents. (Searles Valley Minerals
Operations, Inc. v. State Bd. of Equalization (2008) 160
Cal.App.4th 514, 519 [denial of judicial notice of the factual content
of materials contained on the website pages of the U.S. Department of Energy was proper].)
The list of
websites provided in Respondents' Request for Judicial Notice does not
meet the Framework Element's requirement that the City establish and
implement a Monitoring Program and prepare Annual Reports. Neither
the websites nor the description of the sites provides the analysis required
by the Framework Element. Guth's declaration admits that even the summary of
alleged sources for raw data did not exist until this litigation, and in fact was
created just before trial. Further, there is no discussion of how the projected
and realized growth would impact existing
infrastructure, or if infrastructure is threatened. There is no evidence
presented that the data included on these websites is used to comprehensively analyze the funding required for infrastructure in the
City. There is also no evidence presented that the
information included on these websites is used by the City to
manage growth within the City as required by the Framework
Element.
Further, the information non-City websites contain one day may not be available to the City or the public the next day. Annual Reports, in contrast with website information, would be available for review and use many years after they are prepared. Thus, it is possible to review the Annual Reports that were prepared in 1996, 1997 and 2000, because they are available in report form in the record. (AA 4:10:446 et seq., 557 et
seq., and 5:10:719 et seq.) The City's reliance on the
availability of information on its and other agencies' websites does not fulfill
the requirement to prepare and publish
Annual Reports.
VII. FIX THE CITY
SEEKS A DECLARATION THAT THE CITY
MUST PREPARE AND USE ANNUAL REPORTS AND THAT IT HAS NOT DONE SO.
Declaratory relief pursuant to Code of Civil Procedure section 1060 is appropriate because there is an actual controversy that can only be resolved by a judicial determination of the rights of various parties. In
such circumstances, declaratory relief is appropriate. (County of San Diego v. State (2008) 164 Cal.App.4th 580, 606; Environmental
Defense Project of Sierra County v. County of
Sierra (2008) 158 Cal.App.4th 877, 885.)
Appellant Fix the City requests a declaration that the City must prepare and use Annual Reports and that for the past decade it has failed
to do so. The City denies both that its duty to prepare
Annual Reports is mandatory and that it has failed to
produce Annual Reports sufficiently. As discussed above,
the City is wrong on both counts.
The City spent a great deal of its briefing at trial arguing that injunctive relief would stop all development in the City. (AA
14:25:1917.) Rejection of this remedy figured largely in the
trial court's ruling. (AA 15:40:2162.) Fix the City did
not request at trial, nor does it request now, a halt to
development in the City. Instead, it is necessary that the City be compelled to implement the mitigation measures it adopted at the time of approval of the Framework Element by preparing Annual Reports. Only then can the actual state of the City's infrastructure be determined and
only then can it be determined whether infrastructure capacity
should be augmented or building controls implemented. Until
then, the City fails to comply with the requirement of its
own Framework Element or to implement the mandatory
mitigation measures it adopted as support for its statement of overriding considerations for the adoption of the Framework Element. As a direct result, no one, including officials of the City
itself, knows the state of key services such as firefighting, police, water and power.
IX. CONCLUSION
The City is obligated by the Framework Element and Public Resources Code section 21081.6 to prepare Annual Reports on Growth and Infrastructure. The City has failed to prepare such a report since at
least 2000, despite requests from the public that it do
so. Therefore, the City must be ordered to prepare them.
The ramifications of this failure on the part of the City are substantial. The effects predicted by the City of significant cumulative impacts from growth in the absence of the Annual Report's role in controlling those impacts have materialized. Water main breaks, fire and police service cutbacks, park and library cutbacks, roadway
deterioration, increasing traffic all represent
threats to the infrastructure that have materialized due to
incomplete information, poor planning and the resulting need for crisis-based management. As a result of the City's failure to
implement the
required mitigation measure of preparing Annual Reports and acting on
them, the foundation upon which the General Plan was built for planning future
growth is a house of cards, crumbling under the weight of infrastructure demands and
inadequate infrastructure capacity.
Fix the City
respectfully asks this Court to re-affirm the mandatory duty of the City to prepare and use
the Annual Report on Growth and Infrastructure as mandated in the General Plan
Framework Element.
DATE: October 13, 2011 Respectfully Submitted,
Douglas P.
Carstens CHATTEN-BROWN & CARSTENS
I certify that
the total word count of this brief, including footnotes, is 12,732 words, as
determined by the word count of the Microsoft Word program on which this brief was
prepared.
DATE: October 13, 2011 Respectfully Submitted,
Douglas P.
Carstens CHATTEN-BROWN & CARSTENS
DECLARATION OF SERVICE BY U.S. MAIL
STATE OF CALIFORNIA
) ss. COUNTY OF LOS ANGELES )
I am
employed in the County of Los Angeles, State of California. I am over the
age of eighteen and am not a party to the within action; my business
address is 2601 Ocean Park Boulevard, Suite 205, Santa Monica, California
90405.
On October 14, 2011, I served
the foregoing document(s) described
as:
APPELLANT FIX THE CITY'S OPENING BRIEF
to the interested parties in this
action, listed on the attached Service List.
[ X ] BY U.S. MAIL
I am
"readily familiar" with firm's practice of collection and processing
correspondence for U.S. Mail. It is deposited with the U.S. Mail on that same
day in the ordinary course of business. I am aware that on motion of party
served, service is presumed invalid if postal cancellation date or
postage meter date is more than one day after date of deposit for mailing in
affidavit.
I declare under penalty of perjury
that the foregoing is true and correct. Executed on October 14, 2011 at Santa
Monica, California.
SERVICE LIST
Counsel for Respondent
Terry Kaufmann Macias
Mary
Decker
Los Angeles City Attorney's Office 800 City Hall
East
200 North Main Street
Los Angeles, CA 90012
Counsel for Appellant Saunders Sabrina Venskus
Law Offices of Sabrina Venskus
21 South California Street, Suite
204 Ventura, CA 93001
Supreme Court
(Four Copies)
Supreme Court of California 350
McAllister Street
San Francisco, CA 94102-4797
Superior Court
Hon. Judge John A. Torribio
Los Angeles Superior Court
Southeast District, Norwalk
Courthouse 12720 Norwalk Blvd.
Norwalk, CA 90650
