The City of Los Angeles' slum abatement program is categorically exempt from the California Environmental Quality Act, the Second District Court of Appeal has ruled.
The ruling is only the latest loss in apartment owners' running battle against the city's broad code enforcement effort. In January, the state Supreme Court ruled that the city's $12-per-unit annual fee on landlords was not subject to the voter-approval requirements of Proposition 218 because it was a tax on business (see CP&DR Legal Digest, February 2001). Apartment owners also lost CEQA suits over the city's temporary slum abatement program at the trial court level and in an unpublished appellate court case.
The city implemented a systematic code enforcement program with the goal of inspecting all 750,000 rental units in Los Angeles every three years. The city adopted an interim program in 1998 and made the program permanent in 1999.
The Apartment Association of Greater Los Angeles filed suit over the permanent program, claiming that the city improperly exempted the project from environmental review. The association presented two urban planning experts who said the program would lead to widespread closure and abandonment of affordable hosing, and that it could affect the environment by encouraging the transportation, use and disturbance of hazardous materials, such as pesticides and asbestos.
Los Angeles Superior Court Judge David Yaffe ruled for the city. On appeal, the Second District, Division Seven, upheld Yaffe's decision but for different reasons.
Yaffe held that the landlords could not base their challenge on their experts' testimony. Because the interim code enforcement program and the permanent program were the same, the experts should have testified when the City Council considered the temporary plan, and it was now too late to introduce their testimony now, Yaffe ruled.
The appellate court, however, ruled that the two programs are not the same. "The very fact one was temporary and the other is permanent is enough to distinguish them," Justice Earl Johnson Jr. wrote for the unanimous three-judge panel. Plus, the permanent program adds provisions regarding rent withholding, sets inspection fees and includes penalties.
But the court gave little credence to what the landlords' experts had to say. One predicted that many building owners cited for code violations would not be able to afford repairs and instead would abandon their properties or remove them from the market. That testimony directly conflicted with the city's study of what happened while the city inspected 99,000 units under the interim program. The city found that it issued abatement orders to owners of 269 properties out of the 7,200 it inspected - about 4%. One hundred of those cited came into compliance during the time of the study. Only 33 tenants were displaced from their rental units.
Furthermore, the court noted, not one member of the association - which claims thousands of members - submitted a declaration that the interim enforcement program forced him to abandon a property or imposed a financial hardship.
The landlords' other expert talked about the potential construction activity at tens of thousands of housing units, and the potential disturbance of asbestos and lead paint at older buildings - all of which may occur because of the code enforcement program. The court ruled this testimony was too speculative for CEQA purposes.
"We do not believe an expert's opinion which says nothing more than 'it is reasonable to assume' that something 'potentially ... may occur' constitutes substantial evidence necessary to invoke an exception to a categorical exemption," Johnson wrote. "'Substantial evidence' is defined in the CEQA guidelines to include 'expert opinion supported by facts.' It does not include 'argument, speculation, unsubstantiated opinion or narrative.'"
The code enforcement program did fall within guidelines for categorical exemption, the court ruled. The city's CEQA guidelines exempt projects that consist of rehabilitation of deteriorated structures and facilities to meet current standards of public health, safety and environmental protection. Because the city's program qualified for exemption, it was up to the landlords to prove that an exemption was not warranted. The landlords did not meet the burden of proof, the court held.
Apartment Association of Greater Los Angeles v. City of Los Angeles, No. B144335, 01 C.D.O.S. 6240, 2001 DJDAR 7617. Filed July 23, 2001.
For the association: Lawrence Straw Jr. and Paul Gough, Straw and Gough, (310) 826-7766.
For the city, Susan Pfann and Jack Brown, assistant city attorneys, (213) 485-5416.
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