Read the Appeal Letters the City Council Doesn’t Want You to See

MemoryHoleAt the conclusion of the vote Councilman Krekorian attempted to exclude the appeal of Stop The Millennium from the administrative record.

He said that there wasn’t enough time to consider it so close to a scheduled vote.

In fact, it would violate CEQA law to exclude the appeal because the City is actually in violation of State law by having no procedural rules in place. CEQA allows argument and evidence to be filed up to the close “of the last public hearing.”

Well, funny thing.  Krekorian threw a fit over our submittal but said nothing about the documents from the City.

If the City Council wanted to be fair about it they would have said that there was also no way for the appellants to review the documents from City so they, too, should not be part of the Administrative Record.

Krekorian’s complaint is really to mask the fact that the City Council does not want to be confused by the facts. They already had their minds made up.

The rational action would have been to continue the hearing until the facts and arguments in the appeal could be given a review and discussion by the Council members.

The State Geologist gave notice to the City Council three days before the hearing that the California Geological Survey was initiating an investigation of the Hollywood Fault for inclusion into the Alquist-Priolo Act Fault Zone Map.

The City Council was trying to rush the project approval through in an attempt to avoid having the site be subject to the rules for an Alquist-Priolo Fault Zone.

The developer has now declared that he will begin construction by the end of the year, before the State Geologist can complete his study of the Hollywood Fault.

Complete Appeal Letter

Following is the addendum to the Appeal:

July 24, 2013

Hon. Herb Wesson, President and
Los Angeles City Council
c/o June Lagmay, City Clerk
City of Los Angeles
200 North Spring Street
City Hall – Room 360
Los Angeles, California  90012

Re:            Objections to Millennium Hollywood Project;
Appeals of VTTM-71837-CN-1A and
CPC-2008-3440-VZC-CUB-CU-ZV-HD; ENV-2011-0675-EIR

Dear Honorable Wesson and Members of the City Council:

  1. I.               INTRODUCTION.

Yesterday, the Millennium Developer’s attorneys, Sheppard Mullin, submitted to the City Council file for the Millennium Project a 311-page letter containing new argument, including a substantial new geologic analysis of the Millennium Project Site.  CURD, as an appellant in a land use case before the Los Angeles City Council, was and has been denied due process of law.

The Los Angeles City Council has failed to adopt procedural hearing rules for land use appeals required by state law and the City’s allowing such a 311-page letter to be considered and part of its administrative record to try to paper over violations of the California Environmental Quality Act (“CEQA”) and Government Code Section 1090 is unlawful.

For many years the Los Angeles City Council has acted as if land use appellants are merely public commenters under the Brown Act.  This is untrue.  Land use appellants are exercising rights under the City’s Charter, state law, and municipal code that is separate and distinct from mere participation in a public meeting.  They also pay appeal fees to the City as part of the exercise of their right to appeal and enforce legal duties of the City and project developers.

The failure of the City to adopt fair hearing procedural rules as mandated by Government Code Section 65804 rules is ongoing and repeated violations of the due process rights of Appellants who, like CURD, are politically sandbagged by Applicants and City Hall partisans working to ram real estate development projects through without an opportunity of land use Appellants and the commenting public to submit argument and evidence to respond and rebut new arguments and substantial new studies that have a habit of showing up in the administrative record at the last minute – presumably because the City Council actively seeks to assure that no one can respond.  This is not the act of a “Temple of Democracy” as Mayor Eric Garcetti has termed the Los Angeles City Council.  It is a lawless abuse of fair hearing procedures against their own constituents.

The City has already been successfully sued by this law firm for deprivation of due process hearing rights in the case of La Mirada Avenue Neighborhood Association of Hollywood v. City of Los Angeles (LASC Case No. BS 132533).  Attached is a copy of the Court’s judgment and order and the LA Weekly’s article about the case “LA Illegally Defiles Due Process”.  This case involved another Hollywood skyscraper project in which the Applicant’s attorneys attached to their final comment letter before the City Council’s Planning and Land Use Committee a substantial new parking study which was relied upon in revised project findings without ever re-circulating the study as part of CEQA and a recirculated Draft EIR.

The trial court specifically found that the City Council’s process violated the public’s right of participation under CEQA and that the attempt to slide massive new argument and new expert studies into the record deprived La Mirada of its due process rights to a fair hearing.

Despite the court’s ruling in La Mirada, the City Council has yet to adopt fair hearing rules for Applicants and Appellants.  The City Council knows it continues to violate the law and it does so with full knowledge of the willful nature of these acts.

The developer and its representatives have conspired with City officials to wait until the eleventh hour to submit this new argument and data dump, depriving CURD of the ability to even read the letter and supporting materials and formulate a full and complete response.

We object that the Los Angeles City Council continues to act above the law of this state with respect to its duty to provide fair hearing procedural rules.  Yesterday’s submittal is just the latest example of the harm imposed on land use appellants and the public by this pernicious practice.

II.            THE SHEPPARD MULLIN JULY 23, 2013 NEW ARGUMENTS ON THE GOVERNMENT CODE SECTION 1090 VIOLATION ARE WITHOUT MERIT AND THEIR LAST MINUTE SUBMISSION DEPRIVES CURD OF DUE PROCESS OF LAW IN ITS LAND USE HEARING BEFORE THE CITYCOUNCIL.

Given that CURD’s counsel has had only a short time to skim the Sheppard Mullin letter and supporting exhibits, the following response cannot possibly be a full and complete one which is a right of a land use Appellant.

Sheppard Mullin twists CURD’s Section 1090 conflict of interest argument.  Such sophistry does not deflect from the fact that William Roschen, as a paid consultant to the Developer, has a disqualifying interest in BOTH the now withdrawn Development Agreement and the CPC Entitlement Contract.  Millennium’s withdrawal of the Development Agreement did not “solve” the conflict of interest problem.  Because Section 1090 is construed by the Court as broadly as possible to reach every kind of possible corruption, it will easily reach the enforceable Covenant and Agreement that the City and Developer execute as an integral part of approving the Project.

Sheppard Mullin desperately asserts that CURD cited no legal authority in support of the proposition that the Covenant and Agreement is not an agreement.  It claims that because the Covenant and Agreement grew out of the City’s municipal corporation authority to zone land and approve projects it is somehow “different” and “not a contract” in which William Roschen has a disqualifying interest.

First, CURD did cite contract law and Civil Code provisions in its argument to illustrate how such contract principles would apply to find that the City’s offer to the Developer to execute a Covenant and Agreement for the project conditions would constitute the making of a contract under California law.

Second, the law and broad interpretation of Section 1090 are not affected by the fact that the contract arises out of the City’s approval of development projects under its police power.  A contract is a contract.  Elsewhere Sheppard Mullin has conceded, indeed touted, that the project entitlements are “enforceable” and this means the Millennium Developer concedes that the Covenant and Agreement is an enforceable contract.

Because Sheppard Mullin knows that CURD’s legal analysis of its cited case law would likely show it is inapplicable or distinguishable, it seeks unfair advantage by submitting this argument at the last moment before final project action by the City Council.  This violates the due process rights of a land use appellant like CURD to formulate a full and complete response to rebut the new arguments of Sheppard Mullin on behalf of the Millennium Developer.

That the new City Attorney, Mike Feuer, has passively sat on the sidelines while allowing a real estate developer to misrepresent Section 1090 law demonstrates the ongoing dereliction of the City’s duty to enforce the conflict of interest laws of this state.

Accordingly, all Millennium project entitlements are void and merely await the issuance of an injunction to halt this massive violation of law.

III.            THE SHEPPARD MULLIN JULY 23, 2013 SUBMITTAL OF A SUBSTANTIAL NEW EXPERT GEOLOGIC REBUTTAL BY GEOLOGISTS NOW UNDER DISCIPLINARY INVESTIGATION FOR PROFESSIONALLY DEFICIENT REPORTS ON THE MILLENNIUM PROJECT ARE FILLED WITH FURTHER MATERIALLY MISLEADING INFORMATION AND EVEN LEGAL ARGUMENT AND ITS LAST MINUTE SUBMISSION, JUST LIKE THE HOLLYWOOD GOWER CASE, DEPRIVES CURD OF DUE PROCESS OF LAW IN ITS LAND USE HEARING BEFORE THE CITY COUNCIL.

This law firm has already obtained writ and injunctive relief against the City of Los Angeles in the La Mirada case involving the Hollywood Gower Tower.  In that case, the last minute submission of expert study materials and reliance of the City on those submittals to make “findings” of no significant impact and no new information requiring revision and recirculation of the environmental documents “derailed” the public participation rights of CEQA.  It was also a denial of due process of law.

Only two significant points can be made in the scant time available to prepare a response to this massive new report of hundreds of pages.  First, the Langan geologists twist Mr. Wilson’s comments about the deficiencies in using the City’s ZIMAS system for anything into a preposterous claim that Mr. Wilson “relied” on the ZIMAS system to locate the Hollywood Fault.  On page 2 of his report, Mr. Wilson makes clear he was critiquing the complete inadequacy of Langan’s use of ZIMAS as any kind of authoritative source of information about fault location.  The name of the system “Zoning Information Map Access System” speaks volumes.  It is the City’s GIS system for zoning information, not geologic data.  If anything, its rough data on fault locations is only a starting point for investigation, not an authoritative end point.  Moreover, ZIMAS provides no maps of fault locations.

Second, throughout the Langan Rebuttal attached to the Sheppard Mullin letter, both geologists and attorneys for the developer talk out of both sides of their mouth.  At some points, without citation to any authority, they try to claim that the November 2012 Langan Fault Investigation Report was not required by “CEQA” but rather was required as part of the tract map application.  Then at other points, they say that although the Fault Investigation Report was not required to be disclosed to the public as part of the CEQA comment process, nonetheless, they will put it into the administrative record in support of the conclusions in the DEIR and FEIR.

This is a blatant failure to proceed in accordance with law.  The City required the preparation of a Fault Investigation Report.  It was required to be circulated with the Draft EIR and could have been.  Instead the City circulated the DEIR without any mention of it.  Both the DEIR and FEIR contain the unsubstantiated claim that the Hollywood Fault (as if it is only one line which every geologist in Southern California knows it is not) is 0.4 miles away from the Project Site.  It was suppressed until now when the City, having “derailed” the CEQA comment process, wants to include it in the administrative record to defend its actions in court.  This it may not lawfully do.

IV.            CONCLUSION.
For these reasons, the Millennium Project must be sent back to the Planning Department for proper environmental analysis of its serious defects and the project should not be approved today.

Very truly yours,

ROBERT P. SILVERSTEIN
FOR THE SILVERSTEIN LAW FIRM

 

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