Channel Law Group, LLP 8200 Wilshire Blvd. Suite 300 Beverly Hills, CA 90211 Phone: (310) 347-0050 Fax: (323) 723-3960 www.channellawgroup.com JULIAN K. QUATTLEBAUM, III * Writer s Direct Line: (310) 982-1760 JAMIE T. HALL ** jamie.hall@channellawgroup.com CHARLES J. McLURKIN *ALSO Admitted in Colorado **ALSO Admitted in Texas December 12, 2017 VIA PERSONAL DELIVERY City of Los Angeles Office of the City Clerk c/o Zina Cheng 3rd Floor, Room 395 Los Angeles, CA Re: Appeal of Haul Route Permit for 2334-2354 North Lake Shore Drive (Board File Number 170128; ENV-2017-2495-CE Dear President Wesson and Honorable City Council Members: This firm represents Friends of Kite Hill ( Appellant or Association ). On or about December 12, 2017 the Planning and Land Use Management Committee ( PLUM ) voted to recommend that the City Council deny the haul route appeal associated with the four-home development project located at 2334-2354 North Lake Shore Drive ( Project ). This letter supplements the appeal justification letter submitted on or about November 22, 2017. I. The Project Does Not Qualify for the Class 32 Exemption As explained in the prior appeal justification letter submitted, the Project does not qualify for a Class 32 Exemption pursuant to the California Environmental Quality Act ( CEQA ). The City cannot legitimately find that the project site has no value as habitat for endangered, rare or threatened species. CEQA Guidelines Section 15332(c). There are seven California Black Walnuts Trees on the project site as noted in the Justification for Exemption issued by the City. The black walnut tree is a threatened species 1 and the project site clearly provides value as habitat for this species. Despite this, the Justification for Exemption issued by the City concludes 1 For more information regarding the threatened nature of this tree visit https://www.fs.fed.us/database/feis/plants/tree/jugcal/all.html and http://www.iucnredlist.org/details/35154/0.
that the site is surrounded by development and therefore is not and has no value as a habitat for endangered, rare or threatened species. The City completely failed to acknowledge the threatened status of the California Black Walnuts. Further, the mere fact that the developer will be required to replace the two black walnuts proposed to be removed at a four to one ratio is irrelevant. The fact remains that the project site provide value as habitat for endangered, rare or threatened species. The CEQA Guidelines do not state that there will be no significant effect on endangered, rare or threatened species. Rather, the exemption simply does not apply when a project provides some value as habitat for these species. If a project is not exempt from CEQA, an agency must determine whether the project may have a significant effect on the environment. If the agency decides the project will not have such an effect, it must adopt a negative declaration to that effect. Public Resources Code 21080, subd. (c); see Cal.Code Regs., tit. 14, 15070; Muzzy Ranch Co. v. Solano County Airport Land Use Com., 60 Cal.Rptr.3d 247; Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 286. The December 8, 2017 letter from the applicant s attorney (Gaines & Stacey) concludes its discussion of the criteria contained in subdivision (c) of section 15332 with, the Project will result in no significant impacts to protected trees. That may or may not be true, but it is irrelevant to the question of whether the project site has any value as a habitat for threatened black walnut trees. The developer seems to be taking a tack that might be appropriate if the criteria in question were the one contained in subdivision (d), which reads: (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. But subdivision (c) contains no reference to significant effects. II. The City Cannot a Mitigation Measure to Deem a Project Exempt from CEQA In evaluating whether a categorical exemption may apply, an agency may not rely on mitigation measures as a basis for concluding that a project is categorically exempt, or as a basis for determining that one of the significant effects exceptions does not apply. Salmon Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098. The City has explained in the Justification for Exemption that the arborist hired by the developer has recommended that the trees be replaced with eight 5-gallon Southern California Black Walnut Trees at the rear of the property. The use of an environmental mitigation measure such as this removes the ability of the City to use a categorical exemption for the Project. III. The City Failed to Analyze the Substandard Nature of the Road Appellant explained in the prior appeal letter that the Project requires a Zoning Administrator s Determination pursuant to Los Angeles Municipal Code ( LAMC ) Section 12.28 due to the substandard nature of the road (less than 20 feet). The pictures below further evidence that the road is substandard. 2
Picture of Measuring Tape in Front of Project Site Close Up Picture of Measuring Tape in Front of Project Site 3
The plot plans for the building permits for the four homes evidence that the developer has no intention to widen the road to avoid the requirement to obtain a ZAD. Marked Up Screenshot of Plot Plan for 2344 Lake Shore Drive Marked Up Screenshot of Plot Plan for 2350 Lake Shore Drive 4
Marked Up Screenshot of Plot Plan for 2354 Lake Shore Drive Marked Up Screenshot of Plot Plan for 2335 Lake Shore Drive 5
IV. The Project May Have an Impact on Environmental Resource of Hazardous Concern CEQA Guidelines Section 15300.2(a) specifically excepts a project such as this from the Class 32 Exemption where the project may impact on an environmental resource of hazardous or critical concern where officially designated. Here, the property has been officially mapped in a Very High Fire Hazard Severity Zone due to its location in a fire-prone hillside area of the City. Marked Up Screenshot from ZIMAS Further, the property has been officially mapped in a fault zone and liquefaction zone as evidence by the City s ZIMAS. Additionally, a map from the County of Los Angeles, Bureau of Land Management is shown below. Marked Up Screenshot from ZIMAS 6
Map from LA County Bureau of Land Management V. The City Has Failed to Analyze the Retaining Walls Required for Project In 2005, the City adopted Ordinance No. 176,445, which regulates retaining walls in hillside areas, which is codified at LAMC Section 12.21C8. This portion of the LAMC states as follows: 12.21.C8. Retaining Walls in Hillside Areas. (Added by Ord. No. 176,445, Eff. 3/9/05.) This subdivision applies to retaining walls that meet all of the following criteria: located in the A or R Zones (including the RA Zone), located on land designated as a Hillside Area on the Bureau of Engineering Basic Grid Map No. A-13372, and located on a lot developed or to be developed with dwelling units. For purposes of this subdivision, a "retaining wall" shall be defined as a freestanding continuous structure, as viewed from the top, intended to support earth, which is not attached to a building. Retaining walls are subject to the following restrictions: (a) A maximum of one free standing vertical or approximately vertical retaining wall may be built on any lot with a maximum height of 12 feet as measured from the top of the wall to the lower side of the adjacent ground elevation. However, as shown in the diagram below, a maximum of two vertical or approximately vertical walls or portions of a wall can be built if they comply with the following: 7
(i) The minimum horizontal distance between the two walls is three feet, (ii) Neither of the two walls exceed a height of 10 feet measured from the top of each wall to the lower side of the adjacent ground elevation at each wall, and (iii) In no case shall the height of a wall located in a required yard exceed the height allowed by Section 12.20 C.20.(f) of this Code. Pursuant to LAMC Section 12.21C8(c), the applicant is required to seek approval for walls over ten feet in height pursuant to LAMC Section 12.21C8(a)(ii). However, the applicant has not even applied for permits to construct retaining walls or applied for the required variance. Clearly, retaining walls will be required for the Project. On or about May 15, 2017, the City issued a Geology and Soils Report Approval Letter ( Approval Letter ) for the Project, a true and correct copy of which is attached to the Final Action letter issued by the Board of Building and Safety Commission for the haul route permit. The Approval Letter at Page 5 states as follows: Retaining walls at the base of ascending slopes shall be provided with a minimum freeboard of 2 feet. as recommended. 2 The proposed lots are steep upslope lots. For example, at 2344 Lake Shore there is a 48 percent slope (roughly 22 vertical to 45 horizontal v/h= 48% slope). Upslope lots will certainly require retaining walls for the house and for the toe of slope retaining wall behind the proposed houses. Such retaining walls are required in the event the hillside upslope fails and fell onto the site. The City requires that a flat space for the dirt to fall i.e. the toe of slope. The maximum requirement for the toe of slope is 15-foot of flat area behind the houses. The City has completely failed to even consider the retaining walls for the project and the negative aesthetic impacts that may result from their construction. This amounts to unlawful piecemealing under CEQA. The City has acknowledged these impacts. When the City adopted the Ordinance in 2005, the report to the Planning Commission noted that large retaining walls are often used to enable construction of housing in hillsides often creating unsightly and oppressive impacts on neighbors and neighborhoods. 3 Based on these facts, the Ordinance was unanimously adopted by the City Council to stem the negative impacts of retaining walls in communities. VI. Conclusion Friends of Kite Hill respectfully request that the City Council grant the appeal. The Project is not exempt from the CEQA and, in any event, the environmental clearance document prepared by the City is deficient. Further, the Project will endanger the public health, safety and welfare pursuant to LAMC 91.7006.7.5. Sincerely, Jamie T. Hall 2 So-called freeboard is the portion of a retaining wall at the top not containing earth. 3 The entire Council File (CF 03-0238) for Ordinance No. 176445 (the Retaining Wall Ordinance) can be accessed at http://clkrep.lacity.org/onlinedocs/2003/03-0238.pdf 8