A fence atop an historic wall in the Hollywood hills is not exempt from environmental review, the Second District Court of Appeal has ruled.
The court found that the City of Los Angeles did not have enough evidence supporting the California Environmental Quality Act (CEQA) exemption to shift the burden of proof to project opponents. Rather, the court directed the city to conduct an initial study to determine the appropriate level of environmental review.
The decision of the unanimous three-judge appellate panel appears to be first published case regarding a "Class 5" exemption for "minor alterations in land use limitations," such as minor lot-line adjustments and setback variances, according to Douglas Carstens, an attorney for the fence opponents. The case also appears to be the first published decision to cite the historic impact exception to CEQA exemptions, he said. The court found that the exemption to CEQA review did not apply because of the potential impact to an historic resource.
The city has asked the state Supreme Court to review the case. The city contends that the Court of Appeal incorrectly applied the "fair argument" standard in the case, rather than the "substantial evidence" test. The former is more favorable to project opponents.
The decision "creates confusion" for the city, said Deputy City Attorney Gerald Sato. "The city and most agencies have always felt that if there is substantial evidence [in support of an exemption], that should be enough to shift the burden of proof," Sato said. Instead, the court required the city to prove the exemption applied.
The project involves approval of an exception to a specific plan. The Hollywoodland housing tract was developed in the Hollywood Hills during the early 1920s. One of the neighborhood's primary features is the numerous granite support walls abutting the winding, hilly streets. These walls range from only a few to 20 feet in height and have no guardrails or fences. In 1992, the city adopted the Hollywoodland specific plan, which prohibits the attachment of fences to the historic walls and granite stairways.
In 2002, the owners of a house on Durand Drive built an unpermitted six-foot high wooden fence atop a wall at the rear of their property. Their yard sits at the base of a 15-foot wall, with the street above. The owners wanted the fence for privacy and safety, as both vehicles and pedestrians had tumbled into the yard in the past. The city issued a citation because the fence was on city property and, under the specific plan, had to be set back by three feet. The property owners said the setback was infeasible because it would create a chasm between the wall and the fence, so they applied for an exception to the specific plan.
While the application was pending, Robert Cutler purchased the property. A group called Hollywood Heritage urged denial of the application, arguing that an existing steel guardrail keeps cars on the street and the fence would set a bad precedent. The city's Historic Preservation Section and, initially, the Hollywoodland Design Review Board recommended denial. In late 2004, the City Planning Commission approved a specific plan exception allowing a 54-inch tall fence. The commission also adopted findings for a categorical exemption from CEQA. In April 2005, the City Council upheld the Planning Commission decision.
Historic preservation advocates sued. Los Angeles County Superior Court Judge Daniel Pratt ruled for the city, finding that the wall itself was not on the public right-of-way and that a fence on top of the curb would not affect the wall.
On appeal, the Second District, Division Seven, took the somewhat unusual step of first considering the city's approval of the project, not the environmental review. The court found there was evidence to support the specific plan exception because of unusual circumstances: The yard is below grade, making the three-foot setback problematic, the property has no real backyard, and there is a safety concern.
But after finding the exception to the specific plan — essentially, the project approval — was justified, the court rejected the project's environmental review.
"The city found the fence exempt [from CEQA review] because allowing it constituted a minor alteration to a land use limitation," Justice Laurie Zelon wrote for the court. "The record does not demonstrate, however, that the city had evidence to support the exemption and shift the burden to the challenger. First, the record is unclear whether fence posts will be drilled into the curb or the wall; whether the curb is part of the historic resource; and whether the proposed fence will harm the physical stability of the wall. Additionally, the city conceded in its findings that a fence higher than 42 inches would impair the scenic view of the granite wall from nearby streets, and the city therefore erred in failing to consider the impact of granting an exception from the height limitation in the Municipal Code.
"Second, the city failed to consider whether the circumstances of this project, namely the fence, differ from the general circumstances of projects covered by the exemption, and whether those circumstances create an environmental risk that does not exist for the general class of exempt projects," Zelon continued. "The building of a fence atop the wall will significantly impact the environment by altering the historic resource, both as to its physical integrity and its aesthetic appeal from the neighboring streets."
Thus, the court overturned the environmental review but upheld the project approval. Assuming the state Supreme Court does not accept the case, the trial court will need to determine how to implement the appellate court ruling, said attorney Carstens. "You can't have an approval without an environmental review," he said.
Sato said the court's standard for reviewing a CEQA exemption — not the fence itself — is the city's primary concern. Sato, Carstens and Justice Zelon all noted that courts are divided on whether the fair argument standard or the substantial evidence standard applies to potential exceptions to a CEQA exemption. In this case, the Second District concluded the city's exemption failed under either test.
The Case:
Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles, No. B197018, 08 C.D.O.S. 4105, 2008 DJDAR 5055. Filed March 12, 2008. Modified and ordered published April 4, 2008.
The Lawyers:
For the committee: Douglas Carstens, Chatten-Brown & Carstens, (310) 314-8040.
For the city: Gerald Sato, city attorney's office, (213) 978-7734.
For the property owner: Frank Gooch III, Gilchrist & Rutter, (310) 393-4000.
