Issuu on Google+


TABLE OF CONTENTS

1 2

I.

INTRODUCTION…………………………………………………………………………1

3

II.

PROCEDURAL HISTORY…………………………………………..………………..….1

4

III.

THE CITY’S ADOPTION OF THE MND VIOLATES CEQA………………………….2

5

A. Standard of Review Under CEQA…………………………………………………….2

6

B. Substantial Evidence in The Record Supports A Fair Argument that This Project Will Have A Significant Impacts on the Environment……………………………….……..3

7

1. The City Admits That the Truck Academy Will Cause Subsidence at the

8

Landfill Yet Failed to Study Its Profound Impact on the Site…………….…...3

9

2. The City Admits That The Truck Academy Will Cause The Release of

10

Greenhouse Gases………………………………………………………….…..4

11

3. The City is Aware LNG Trucks Present An Explosive Risk But Failed To

12 13

Evaluate That Risk……………………………………………………….…….5

14

4. The City Failed to Consider the Impact of Student Drivers on the Landfill…..6

15

5. The City Failed to Consider the Loss of Use of an “Open Space” Designated

16

Area…………………………………………………………………………….6

17

6. The City Admits to Traffic Impacts But Failed to Analyze Them………….…7

18

7. The City Admits The Trucks Will Have Noise Impacts…………………….....7

19

IV.

THE CITY ABUSED ITS DISCRETION BY APPROVING THE VARIANCE……..….8

20

A. Standard of Review for Zoning Variances……………………………………………..7

21

B. In An Unprecedented Display of Self-Promotion, The City Expedited ITS OWN

22

Application To Grant ITSELF a Variance Which Expressly Violates

23

ITS OWN City Charter and Municipal Code……………………………………..…….8

24

C. The Variance Must Be Overturned as a Matter of Law Because The Administrative

25

Record Lacks Evidence Proving ALL FIVE Required Elements…………………..…. 9

26

1. The Administrative Record Is Devoid Of Factual Evidence Proving The City

27

Will Endure Any Hardship Whatsoever………………………………………10

28 i

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


a. The Zoning Administrator Failed To Identify A Single Alleged

1

Hardship In Her Official Findings…………………………………….10

2

b. “Benefits To The Community” Have No Bearing On The Issue of

3

Hardship ……………………………………………………………...11

4

2. The Zoning Administrator’s Finding Of “Special Circumstances” Is Not

5

Supported By The Facts Or The Law…………………………………..……..11

6

3. A Variance Is Not Necessary For The Preservation and Enjoyment of A

7 8

Substantial Property Right or Use Generally Possessed By Other Property In

9

The Same Zone And Vicinity…………………………………………………12

10

4. Uncontroverted Evidence Proves The Variance Will Be Materially Detrimental

11

To The Public Welfare And Injurious To Nearby Property…………………..13

12

5. This Variance Severely Undercuts The General Plan’s Letter And Spirit……14 D. This Use Variance Is Facially Invalid As Zoning Law Requires A General Plan

13

Amendment and Zone Change…………………………………………………...….. 15

14 15

V.

CONCLUSION………………………………………………………………………...…15

16 17 18 19 20 21 22 23 24 25 26 27 28 ii

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

TABLE OF AUTHORITIES

2

CASES Allen v. Humboldt County Bd. of Supervisors (1963) 220 Cal.App.2d 877…………………………………………….…..………………8

3 4 5 6 7 8

Broadway, Laguna, Vallejo Ass’n v. Bd. of Permit Appeals of the City & County of San Francisco (1967) 66 Cal.2d 767……………………………………………………………...…..10-13 Christward Ministry v. Sup. Ct. (1986) 184 Cal.App.3d 180…………………………………………………………….…..3 Citizens for Responsible and Open Gov’t v. City of Grand Terrace (2008) 160 Cal.App.4th 1323…………………………………………………………..….3

9 10 11 12 13

City of Redlands v County of San Bernardino (2002) 96 Cal.App.4th 398……………………………………………………………..….3 City of San Marino v. Roman Catholic Archbishop of Los Angeles (1960) 180 Cal.App.2d 657……………………………………………………………….10 City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012…………………………………………………………...…..8

14 15 16 17 18 19 20

Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70…………………………...……………………………………4 County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544………………………………………………………….…..2 Heninger v. Bd. of Supervisors (1986) 186 Cal.App.3d 601…………………………………….……………………….….4 No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68……………………………………………………………….……….2

21 22 23 24 25 26 27

Orinda Ass’n v. Bd. of Supervisors of Contra Costa County (1986) 182 Cal.App.3d 1145……………………………………………………………….9 Oro Fino Gold Mining Corp. v County of El Dorado (1990) 225 Cal.App.3d 872……………………………………………………………...…5 PMI Mortgage Ins. Co. v. City of Pacific Grove (1981) 128 Cal.App.3d 724…………………………………………………………….....10 Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597…………………………………………………………...…..2

28 iii

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1 2 3

San Franciscans for Reasonable Growth v. City & County of San Francisco (1984) 151 Cal.App.3d 61………………………………………………………………….2 Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916……………………………………………………..….8,10,13

4 5 6 7 8

Sundstrom v County of Mendocino (1988) 202 Cal.App.3d 296………………………………………………………………...3 Topanga Ass’n for a Scenic Cmty. v. County of Los Angeles (1974) 11 Cal.3d 506……………………………………………………....…………….7-8 Zakessian v. City of Sausalito (1972) 28 Cal.App.3d 794…………………………….……………..…………..…...…8,10

9 10

STATUTES & CODES

13

Cal. Code Regs. Tit. 14 § 15063(b)(1)……………………………………………………………………….……3,5 § 15063(d)(4)……………………………………………………………………………....3 § 15070(b)(1)………………………………………………………………………………5 § 15382……………………………………………………………………………………..2

14

Cal. Civ. Proc. Code § 1094.5(c)…………………………………………………………………..8

11 12

15

Cal. Gov. Code § 65852…………………………………………………………………….…….15

16 17 18 19 20 21 22 23 24

Cal. Pub. Res. Code § 15382……………………………………………………………………………………..2 § 21064.5………………………………………………………………………………...…3 § 21080(c)(2)……………………………………………………………………………… 5 Los Angeles Mun. Code § 12.04.05(a), (b)……………………………………………………….………..… 8,12,15 § 12.27(D)………………………………………………………………………………8,14 OTHER AUTHORITIES Los Angeles City Charter § 554………………………………………………………………………………..……..15 § 562(c)……………………………………………………………………………...….8,10

25 26 27 28 iv

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

I.

INTRODUCTION

2

Petitioner Community Alliance for Open Space (“CAFOS”) brings this action to

3

challenge approval by the City of Los Angeles (“City”) of the Mitigated Negative Declaration

4

(“MND”) and zoning variance relating to the operation of a truck driving academy on a former

5

landfill site know as Lopez Landfill (the “Project”). The City’s decision must be overturned as a

6

matter of law because the adoption of the MND and approval of the variance violates the

7

California Environmental Quality Act (“CEQA”) and applicable zoning laws, respectively.

8

First, the MND must be aside because the City failed to analyze the Project’s cumulative

9

impact on the environment and viable mitigation measures to lessen those impacts. The Project

10

poses serious threats to people and property, yet the City never conducted the studies necessary

11

to fully evaluate the cumulative impact of such conditions as:

12

Subsidence of the methane-laden landfill,

13

Greenhouse gases emissions,

14

Explosive risks of Liquid Nitrogen Gas (“LNG”) trucks on both the landfill and

15

residential streets by student drivers, and •

16

Dangers of allowing inexperienced student drivers to maneuver these large trucks.

17

At the very minimum, these significant risks, among others addressed infra, require that the City

18

prepare an Environmental Impact Report (“EIR”).

19

Second, the City approved the unlawful use variance without sufficient evidence to

20

justify its findings. The administrative record is devoid of evidence proving all 5 of the

21

mandatory findings for granting variances. For these reasons, this Court should grant CAFOS’

22

writ, and vacate and set aside the adoption of the MND and approval of the variance.

23

II.

24

PROCEDURAL HISTORY On January 15, 2009, the Los Angeles Bureau of Sanitation (“Bureau”) circulated the

25

draft MND relating to the Project, determining that there would be no significant impact on the

26

environment that could not be mitigated. (AR-000009-AR-000145; AR-000014). On September

27

29, 2009, the Bureau applied for a zoning variance to operate the truck driving academy on the

28

Lopez Landfill. (AR-000708-AR-000709). On January 22, 2010, the Zoning Administrator 1

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

granted the variance, which allows for the use and maintenance of the truck driving academy in

2

an area zoned “open space.” (AR-000159-AR-000202).

3

CAFOS appealed the Zoning Administrator’s decision first to the North Valley Area

4

Planning Commission (“NVAPC”), and then to the City Council on the grounds that (1) an EIR

5

should have been prepared, and (2) the granting of the variance was improper under applicable

6

zoning laws. (AR-001254-001274; AR-001688-AR-001730). Hearings took place before the

7

NVAPC and the Planning and Land Use Committee of the City Council. (AR-000307-AR-

8

000398; AR-000404-AR-000445). On June 30, 2010, a public hearing took place before the

9

entire City Council. (AR-000450-AR000490). At the conclusion, the City Council adopted the

10

MND and approved the granting of the variance. (AR-000002-AR-000006).

11

III. THE CITY’S ADOPTION OF THE MND VIOLATES CEQA

12

CEQA’s “purposes are manifold, but chief among them is that of providing public

13

agencies and the general public with detailed information about the effects of a proposed project

14

on the environment.” (emph. added) San Franciscans for Reasonable Growth v. City & County

15

of San Francisco (1984) 151 Cal.App.3d 61, 72.

16

A. Standard of Review Under CEQA

17

CEQA sets a low threshold for the preparation of an EIR. An agency must prepare an

18

EIR whenever substantial evidence in the record supports a fair argument that a project may have

19

a significant effect on the environment. No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68,

20

75, 82; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th

21

1597, 1602. Impact evaluation should extend to all potential impacts, including onsite and

22

offsite impacts, project-level and cumulative impacts, direct and indirect impacts, and

23

construction and operational impacts. Cal. Code Regs. tit. 14, Appendix G at ¶ 2. Significant

24

effect on the environment is defined as “a substantial or potentially substantial adverse change in

25

the environment.” Cal. Code Regs. tit. 14, § 15382. If any aspect of the project may result in a

26

significant impact, an EIR must be prepared even if the overall effect of the project is

27

beneficial. Cal. Code Regs. tit. 14, § 15063(b)(1); County Sanitation Dist. No. 2 v. County of

28

Kern (2005) 127 Cal.App.4th 1544, 1580. Piecemeal environmental review that ignores the 2

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

environmental impacts of the end result is not permitted. Christward Ministry v. Sup. Ct. (1986)

2

184 Cal.App.3d 180.

3

In this instance, the City prepared and adopted a MND in lieu of drafting an EIR. The

4

initial study supporting a MND must include a discussion of ways to mitigate the significant

5

effects that are identified, and is only appropriate if project revisions would 1) mitigate the

6

potentially significant effects “to the point where clearly no significant effect on the environment

7

would occur” and, 2) there is no substantial evidence in the record before the agency that “the

8

project, as revised, may have a significant effect on the environment.” Cal. Code Regs. tit. 14, §

9

15063(d)(4); Cal. Pub. Res. Code § 21064.5. An MND must be set aside if there is substantial

10

evidence in the record that the conditions attached to its adoption are insufficient to mitigate the

11

project impacts. Citizens for Responsible and Open Gov’t v. City of Grand Terrace (2008) 160

12

Cal.App.4th 1323, 1340-1341.

13

Further, an agency's finding that the project will have no significant environmental

14

impacts must also be set aside if there is no support in the record. Sundstrom v County of

15

Mendocino (1988) 202 Cal.App.3d 296, 311. An "agency should not be allowed to hide behind

16

its own failure to gather relevant data." Id.; see also, City of Redlands v. County of San

17

Bernardino (2002) 96 Cal.App.4th 398. As shown below, the MND fails as a matter of law

18

because there is no support in the record for the City’s findings of no significant impacts.

19

Various community organizations raised specific deficiencies with the MND, but the Project was

20

approved nonetheless without further study.1

21

B.

22

Substantial Evidence in The Record Supports A Fair Argument that This Project Will Have A Significant Impacts on the Environment 1. The City Admits That the Truck Academy Will Cause Subsidence at the Landfill Yet Failed to Study Its Profound Impact on the Site

23 24

Despite knowing of the subsidence, the City failed to conduct the necessary analysis to 25 determine the full extent of harm posed by the Project. The landfill is capped asphalt to contain 26 the methane gas. Methane gas is both a greenhouse gas and explosive. The landfill has a 27 28

1

See i.e. AR-000594-000599; AR-000601; AR-000718; AR-000785; AR-000786-788; AR000840-AR-000842; AR-001393; AR-001425-AR-0001429; AR-001605-AR-001606; AR001775-AR-001779. 3

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

complex series of above-ground and underground piping to capture the methane. (AR-000030-

2

AR-000031).

3

The City admits in the MND that the weight of the truck academy could cause the asphalt

4

cap containing methane to be jeopardized, which would lead to subsidence. (AR-000021). This

5

poses a major risk to the underground piping as it could result in the release of methane gas into

6

the environment creating explosive risks. As the landfill is located within the Angeles National

7

Forest, any fire or explosion could result in a major brushfire, threatening hundreds of thousands

8

of acres of forest and nearby homes. (See AR-000030).

9

Also, the City readily acknowledges the landfill is within an earthquake fault zone, yet

10

failed to analyze the effect of subsidence, including the danger posed to students and teachers

11

that will be on the property each day. Instead, the City summarily dismissed these dangers on the

12

untenable ground that state law restrictions on fault zones are “concerned mostly with permanent

13

structures or those intended for human residential occupancy.” (emph. added) (AR-000021).

14

Nor did City analyze the impact of subsidence on the release of methane gas. The City

15

also failed to evaluate whether the subsidence would crush underground piping and/or whether

16

an additional fire risk is present. Moreover, there is no evidence whatsoever that the City

17

considered whether these potential impacts could be mitigated. The Integrated Waste

18

Management Board and The County of Los Angeles raised concerns regarding the issues of

19

subsidence and fault rupture on the landfill. The City ignored the regulatory agency concerns.

20

(See AR-000592-AR-000593; AR-000610-AR-000613; see also, AR-002258; AR002329-

21

AR2330; AR-002332-AR-002338. The only way to evaluate the subsidence impact is to require

22

an EIR.2

23

2. The City Admits That The Truck Academy Will Cause The Release of Greenhouse Gases

24

It is well recognized in case law under CEQA that greenhouse gas emissions must be

25

considered as a potential impact on a project. See, Communities for a Better Environment v. City

26

2

27 28

In Heninger v. Bd. of Supervisors (1986) 186 Cal.App.3d 601, the court granted a petition for writ of mandate based on a negative declaration that contemplated potential environmental impacts from “any failure, malfunction or breakdown of any private sewage system . . .’" Id. at 608. The exact same scenario exists here as the City has raised a potentially significant adverse impact, choosing to address it at some later time if it occurs. (See AR-000021 at “Less Than Significant” at ¶ 3). 4

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

of Richmond (2010) 184 Cal.App.4th 70. The City admits the truck academy will cause the

2

release of greenhouse gases and claims to “mitigate” the impact of these emissions by eventually

3

switching to LNG trucks. (AR-000019). However, the LNG trucks do not currently exist, nor is

4

there any evidence in the record of funding available for their purchase. Accordingly, the

5

“future” mitigation measure appears too unlikely ever to occur, and instead it is more probable

6

that non-LNG trucks will be used. The City failed to consider the impact on greenhouse gas

7

emissions should the funding for the LNG trucks not magically appear and non-LNG trucks

8

continue to be used. The MND fails on this issue, as future hypothetical mitigation measured are

9

improper under CEQA. See, Cal. Pub. Res. Code §21080(c)(2); 14 Cal. Code Regs

10

§15070(b)(1); see also, Oro Fino Gold Mining Corp. v County of El Dorado (1990) 225

11

Cal.App.3d 872, 884.

12

Further, the Bureau currently operates trucks on the site as part of its mulching operation.

13

(AR-000030). The City completely fails to assess the cumulative air quality impacts of adding

14

additional trucks (whether diesel or LNG) to a project site where trucks are already operating.

15

(AR-000017-AR-000020; AR-000025; AR-000056-AR-000058).

16 17 18 19 20 21 22 23 24 25 26 27 28

3. The City is Aware LNG Trucks Present An Explosive Risk But Failed To Evaluate That Risk Unlike standard diesel trucks, evidence in the record demonstrates that LNG trucks contain highly explosive liquid nitrogen gas which essentially makes each vehicle the equivalent of a large rolling bomb with the potential of causing explosive destruction blocks away. (See AR-002256-AR-002258; AR-002263-AR-002288; AR-002290-AR-002295; AR-002297-AR002327). In addition, because LNG gas is almost odorless, leaks cannot be detected without the use of specialized monitors. (See AR-002290-AR-002291 at 3.3.4.2 Safety Issues (a)). Further, the City proposes that student drivers (we all know how “safe” student drivers are) be given control of these rolling LNG “bombs” to drive on city streets, through residential neighborhoods, and by schools and parks. If an accident were to occur, hundreds, if not thousands of people, including school children, would be put at risk. The City failed to analyze the safety of these vehicles for student driver use, and failed to analyze the potential routes to determine the area of

5

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

impact and the potential devastation that could be caused by an accident, including the number

2

of residents and children killed. These risks were not evaluated, nor were potential

3

mitigation measures considered.

4

The LNG trucks also will be operating on top of a landfill with a known risk of landfill

5

fire. The LNG trucks have the potential to ignite and/or create an landfill fire, which could burn

6

for months and release toxic emissions into the air and also cause a fire in the local national

7

forest. These risks were not evaluated, nor were potential mitigation measures considered.

8 9 10 11 12 13 14 15 16 17 18 19 20

4. The City Failed to Consider the Impact of Student Drivers on the Landfill As discussed supra, the landfill is criss-crossed by above-ground piping containing explosive methane gas. The piping is unprotected and could be seriously damaged if impacted by a truck. The proposal to have “student drivers” learning how to operate trucks in the immediate vicinity of and adjacent to above-ground gas piping containing explosive gases creates a serious potential risk in the case of an accident caused by a “wrong turn” by a “student driver.” The City did not evaluate these risks, nor were any mitigation measures contemplated like barriers or other mechanisms to protect the surface piping. In this instance, a fire caused by an accident by a “student driver” not only has the potential to cause an explosion and ignite the landfill, but also could trigger a brush fire in the national forest consuming thousands of acres and homes. Thus, the City must prepare an EIR to evaluate these risks. 5. The City Failed to Consider the Loss of Use of an “Open Space” Designated Area

21 The City previously designated this area as an open-space zone, which is adjacent to the 22 national forest. (AR-000030). The planned use (i.e., industrial use) is entirely inconsistent with 23 the open-space designation and has the potential to impact the nearby national forest, including 24 plants and animals that utilize this open space for habitat. In similar fashion, the City failed to 25 analyze the potential impacts on nearby land, plants, and animals. (AR-000024). Supervisor 26 Antonovich with the County of Los Angeles commented on both the insufficiency of the MND 27 on this specific issue to no avail. (AR-000857-AR-000861). 28 6

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

6. The City Admits to Traffic Impacts But Failed to Analyze Them

2

The City readily admits that the use of nearby residential streets, impacted intersections

3

and roadways has the potential to impact traffic. (AR-000027-000028). This is particularly true

4

when the proposal is to have “student drivers” learning to drive the trucks on these residential

5

streets, intersections and roadways, which is likely to cause accidents and further congestion.3

6

Despite its own admission, the City failed to analyze these impacts and instead plans to use

7

unknown and unstudied truck routes and that were not disclosed to the public for comment. In

8

addition, “student drivers” are highly likely to cause accidents and traffic congestion, and have

9

other significant and unknown impacts on residential streets, near schools and parks,

10

intersections and roadways. The proper studies would not only reveal these impacts to the

11

public, but would also allow for alternative mitigation measures to reduce those impacts. Until

12

the City prepares an EIR, these measures cannot be put in place.

13

7. The City Admits The Trucks Will Have Noise Impacts

14

Trucks are noisy and loud vehicles with airbrakes, loud engines, back-up alarms, and air

15

horns. (AR-000025). The City plans to have “student drivers” operate the trucks on nearby

16

residential streets during the daytime and on unknown routes. The noise impacts and potential

17

routes of operation must be analyzed to evaluate the effect on the nearby residential

18

neighborhood, including potential mitigation measures. Further, there has been absolutely no

19

analysis of the cumulative impact of adding additional noisy trucks to the noise currently

20

created by the City’s mulching operations. (See AR-00025). Thus, cumulative impacts must be

21

addressed in an EIR.

22

IV. THE CITY ABUSED ITS DISCRETION BY APPROVING THE VARIANCE

23

A. Standard of Review for Zoning Variances

24

In reviewing the granting of a zoning variance, the reviewing court must determine

25

whether the agency prejudicially abused its discretion. Cal. Civ. Proc. Code § 1094.5(c); see also

26

Allen v. Humboldt County Bd. of Supervisors (1963) 220 Cal.App.2d 877, 881-82; Topanga

27

3

28

Both the County Department of Public Works and the County of Los Angeles objected to the allowing of trucks on residential streets at any time by student drivers. (See AR-000586-AR000587; AR-000610-AR-000613). 7

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

Assn. for a Scenic Cmty. v. County of Los Angeles (1974) 11 Cal.3d 506. In the area of land use

2

regulation, abuse of discretion is established by the substantial evidence rule. Cal. Civ. Proc.

3

Code § 1094.5(c); City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012,

4

1016; see, Zakessian v. City of Sausalito (1972) 28 Cal. App. 3d 794, 798 (Agency’s findings

5

must “suffice to establish compliance with all of the statutory criteria and are supported by

6

substantial evidence in the record.” (emph. added)). In evaluating the evidence, the reviewing

7

court must scrutinize the record to determine: (1) whether substantial evidence supports the

8

administrative agency’s findings, and (2) whether these findings support the agency’s decision.

9

Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, 922. The reviewing court must

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

resolve reasonable doubts in favor of the administrative findings and decisions. Id. B. In An Unprecedented Display of Self-Promotion, The City Expedited ITS OWN Application To Grant ITSELF a Variance Which Expressly Violates ITS OWN City Charter and Municipal Code The City’s own Municipal Code expressly prohibits the precise type of variance granted in this case. Pursuant to the Code, “A variance shall not be used to grant a special privilege or to permit a use substantially inconsistent with the limitations upon other properties in the same zone and vicinity.” (emph. added) Los Angeles, Cal., Municipal Code § 12.27(D); Los Angeles City Charter § 562(c). The variance runs afoul of the Code in both respects as it grants the City the special privilege of operating a non-conforming use in an otherwise highly-restrictive zone. The Lopez Landfill is currently zoned “open space.” (AR-000159). This zoning designation aims to protect and preserve natural resources, to enhance environmental quality, and to encourage the maintenance of open-space uses on all publicly owned park and recreation land, among others. Los Angeles Mun. Code § 12.04.05(a). Given the intensely-industrial nature of a truck driving academy, the open-space zoning regulation prohibits this use on open-space land. See, Los Angeles Mun. Code § 12.04.05(b). Yet the City moved forward despite the Code, receiving approval for the variance in record time – less than 2 months – a far cry from the 6 to 8 month period most applicants (i.e., 8

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

private landowners without authority to approve their own variance requests) are required to

2

wait. (AR-001580). The City approved the variance to advance its own interests, irrespective of

3

the law, exercising liberties which are not available to the average tax-paying citizen. See,

4

Orinda Ass’n v. Bd. of Supervisors (1986) 182 Cal.App.3d 1145, 1167 (Variance amounted to

5

unlawful “special privilege” where agency granted variance based on project benefits and

6

desirability, despite express violations of zoning ordinance).

7

In light of the special privileges and inconsistent use awarded under this variance, the

8

City’s approval must be overturned on this basis alone. To make matters worse, the Zoning

9

Administrator failed to make the mandatory factual findings required to grant the variance, as

10

discussed infra. Therefore, the variance also fails on each independent ground discussed below.

11

C. The Variance Must Be Overturned as a Matter of Law Because The Administrative Record Lacks Evidence Proving ALL FIVE Required Elements

12

The variance must be overturned as a matter of law because evidence in the record falls

13 14 15 16 17

well short of satisfying all mandatory requirements. Before granting a variance, the Zoning Administrator must make affirmative findings on five (5) separate legal grounds. These required findings include: 1.

That the strict application of the provisions of the zoning ordinance would result in practical difficulties or unnecessary hardships inconsistent with the general purposes and intent of the zoning regulations;

2.

That there are special circumstances applicable to the subject property such as size, shape, topography, location or surroundings that do not apply generally to other property in the same zone and vicinity;

3.

That the variance is necessary for the preservation and enjoyment of a substantial property right or use generally possessed by other property in the same zone and vicinity but which, because of the special circumstances and practical difficulties or unnecessary hardships, is denied to the property in question;

4.

That the granting of the variance will not be materially detrimental to the public welfare, or injurious to the property or improvements in the same zone or vicinity in which the property is located; and

5.

That the granting of the variance will not adversely affect any element of the General Plan. (emph. added) Los Angeles, Cal., Mun. Code § 12.27(D); Los Angeles City Charter § 562(c).

18 19 20 21 22 23 24 25 26 27 28

Failure to make any of the required findings results in the mandatory denial of the variance 9

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

application. City of San Marino v. Roman Catholic Archbishop (1960) 180 Cal.App.2d 657, 671-

2

72. Therefore, in the absence of sufficient evidence for any one of the five findings, this Court

3

must strike down the variance as a matter of law.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

1. The Administrative Record Is Devoid Of Factual Evidence Proving The City Will Endure Any Hardship Whatsoever The variance must be overturned as a matter of law because the City failed to put forth any evidence whatsoever of “unnecessary hardship” or “practical difficulties.” An essential requirement of a variance is showing that strict enforcement of the zoning regulation would cause unnecessary hardship. PMI Mortgage Ins. Co. v. City of Pacific Grove (1981) 128 Cal.App.3d 724, 731. A keystone feature of unnecessary hardship is the uniqueness of hardship to the particular property as distinguished from other property in the same use district. Zakessian, supra, 28 Cal. App. 3d at 799-800. Thus, only burdens upon the variance applicant should be considered. Broadway, Laguna, Vallejo Ass’n v. Bd. of Permit Appeals (1967) 66 Cal.2d 767, 777-778 (Court vacated order granting variance and held that “benefits to the community” were irrelevant as a matter of law in evaluating undue hardship); see, e.g., Stolman, supra, 114 Cal.App.4th at 927, (Court invalidated variance where applicant failed to put forth sufficient evidence that applicant would face “dire financial hardship” without the variance); PMI Mortgage, supra, 128 Cal.App.3d at 732 (Court properly denied variance where property was subject to same restrictions as other properties in the district and where no variance for a similar alteration had been granted previously). a. The Zoning Administrator Failed To Identify A Single Alleged Hardship In Her Official Findings

22 Here, the administrative record contains no evidence whatsoever of unnecessary 23 hardship. Within her mandatory findings, the Zoning Administrator discusses general site 24 characteristics and beneficial features of the proposed driving school. (AR-000212 – AR25 000213). However, she never articulates how complying with the open-space zoning ordinance 26 will unfairly burden the City in any way. Id. If any undue hardship results at all, it will be upon 27 the local residents forced to endure the disruptive and hazardous nature of an industrial truck 28 10

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

driving facility in their backyards – land which they had every reason to believe would preserved

2

under the open-space zoning ordinance. The Zoning Administrator does not argue unnecessary

3

burden, nor does the administrative record contain even a scintilla of evidence to support such a

4

notion. Therefore, the variance must be overturned on this basis alone because there is no

5

evidence to support this finding.

6 7

b. “Benefits To The Community” Have No Bearing On The Issue of Hardship

8

Instead of addressing hardship, the Zoning Administrator took the exact opposite

9

approach of explaining how the City will directly benefit from the project. (AR-000213).

10

Contrary to this approach, the court expressly held in Broadway that benefits to the community

11

are irrelevant to the determination of undue hardship. 66 Cal.2d at 777-778. Thus, these

12

discussions are superfluous and irrelevant as a matter of law, and in no way establish the first

13

finding. As a matter of law, the City failed to make the necessary finding of unnecessary

14

hardship. Therefore, in the absence of such evidence, the Court must set aside the City’s

15

approval and overturn the variance.

16

2. The Zoning Administrator’s Finding Of “Special Circumstances” Is Not Supported By The Facts Or The Law

17 The variance is also invalid on this independent ground because the administrative record 18 contains no evidence of “special circumstances.” The Zoning Administrator purported to find 19 three ‘special circumstances’ in this case: (1) the site’s proximity to the Angeles National Forest, 20 (2) the proposed use represents only one quarter of one percent (.025%) of the site, and (3) the 21 30-year prohibition of the site for public use. (AR-000172 at ¶ 5). As shown below, the Zoning 22 Administrator’s evaluation fails in all respects. 23 First, the Zoning Administrator fails to offer any evidence comparing the physical 24 characteristics of Lopez Landfill to other open-space zoned landfills in the same vicinity. (AR25 000182 – AR000183). Without such evidence, the Zoning Administrator’s analysis fails in its 26 entirety on this basis alone. 27 Next, the open-space zoning designation of the Lopez Landfill is entirely consistent with 28 11

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

its proximity to the Angeles National Forest. Strict enforcement of the open-space ordinance

2

allows for the preservation of natural resources and provides outdoor recreation opportunities in

3

and around wilderness areas such as the Angeles National Forest. See, Los Angeles Mun. Code §

4

12.04.05(a). It absolutely defies common sense to relax the open-space restrictions in a case

5

such as this where a highly-intensive, industrialized truck driving school would be allowed to

6

operate next to national forest lands. Quite tellingly, the Zoning Administrator cites no evidence

7

that the site’s proximity to a national forest is unique to open-space landfills in the same vicinity.

8

(AR-000172 at ¶ 5).

9

In addition, the Zoning Administrator’s claim that the 30-year monitoring period

10

applicable to closed landfills prevents the property from being used in any beneficial manner is

11

simply false. (See AR-000168 at ¶ 1, stating “unsupervised public use” is prohibited on the site).

12

In truth, supervised activities which are allowed in open-space zones may be conducted now,

13

notwithstanding the 30-year restriction. (AR-001751 at ¶1).

14

Further, “special circumstances” do not exist where the City fails to investigate

15

alternative sites. (AR-000215 at ¶2). The Bureau of Sanitation expressly admitted that

16

“alternative sites were not pursued” once Lopez Landfill had been identified. (AR-000214 at

17

¶4). Nor do “special circumstances” exist where the City arbitrarily rejects alternative sites.

18

(AR-000215 at ¶2). After receiving multiple recommendations for alternative properties, the City

19

arbitrarily excluded evidence of privately-owned sites from consideration simply because the

20

City would have to pay to lease them. (AR-000215 at ¶ 1; AR-000423 – AR-000424). As

21

recognized by the Broadway court, however, “profit motive is not an adequate ground for a

22

variance.” (emph. added) 66 Cal.2d at 775. Each of the foregoing is a separate justification for

23

this Court to overrule the variance. Based on insufficient evidence in the record proving “special

24

circumstances,” the Court must overrule the variance as a matter of law.

25 26 27 28

3. A Variance Is Not Necessary For The Preservation and Enjoyment of A Substantial Property Right or Use Generally Possessed By Other Property In The Same Zone And Vicinity The variance fails on this ground as well because the administrative record lacks evidence of any meaningful comparison of Lopez Landfill with other comparable properties in 12

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

the same zone and vicinity. Variances must be denied where there is no evidence of any

2

comparable properties (i.e., “same zone”) within reasonably close proximity of the subject site

3

(i.e., “vicinity). Stolman, 114 Cal.App.4th at 929. Under Stolman, the City is barred from

4

examining the rights possessed by similar businesses outside the immediate vicinity of the Lopez

5

Landfill. In Stolman, the zoning administrator abused her discretion by failing to provide

6

evidence of comparable properties located any closer than 20 miles from the subject site. Id.

7

Here, other than providing the name of a gravel mining operation known as Hansen Dam,

8

the Zoning Administrator offers no additional information such as the particular zoning

9

ordinance in effect or its location relative to Lopez Landfill, both of which are required for a

10

meaningful comparison. (AR-000172 at ¶ 4). According to former Los Angeles Zoning

11

Administrator, Jon Perica, the mining operations of Hansen Dam occurred over two miles away

12

and did not require a variance since it was a preexisting use in operation for many decades before

13

open-space zoning was adopted. (AR-001753 at ¶ 2).

14

The Office of Zoning Administration policy defines “vicinity” as a distance of 500 feet.

15

(AR-001753 at ¶ 3). Thus, the distance of approximately 2.25 miles between the Hansen Dam

16

and the Lopez Landfill is outside the acceptable “vicinity” for purposes of this comparison. Id.

17

Furthermore, because Hansen Dam did not require a variance, the two properties cannot be

18

compared for purposes of evaluating precedent. Together, these important facts preclude the

19

possibility of any meaningful comparison of the two properties. Id. Therefore, the variance fails

20

on this ground as well based on insufficient evidence of comparable properties in the immediate

21

vicinity of the Lopez Landfill.

22 23 24 25 26 27 28

4. Uncontroverted Evidence Proves The Variance Will Be Materially Detrimental To The Public Welfare And Injurious To Nearby Property The evidence presented in this case is undeniable: operating this intensely-industrial truck driving facility within an open-space zone poses serious threats which have not yet been accounted for. At discussed at length above, the City admits the project is riddled with potential problem areas, yet failed to conduct the studies necessary to fully evaluate their cumulative impact. For example:

13

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE


1

2 3

failed to study its impact in connection with the explosive methane gas at the site. •

4 5

The City admits the project will cause greenhouse gases to be released, but conducted no study to evaluate the impacts.

6 7

The City readily acknowledges the project will cause subsidence at the landfill, yet

The City recognizes the explosive risks of LNG trucks, but failed to evaluate them in the context of “student drivers” and high fire hazard areas.

The City acknowledges the traffic and noise impacts, but failed to conduct studies in all

8

affected areas.

9

The administrative record is lacking any substantive explanation or studies fully

10

addressing these and other potential impacts. Nor do the proposed mitigation measures address

11

the full gamut of potential impacts. (AR-000187). Until all studies are conducted in an EIR, the

12

City has no legal basis for approving the variance due to the lack of evidence of the project’s

13

detrimental effects. Therefore, in the absence of this evidence, the Court must overturn the

14

variance as a matter of law because the City abused its discretion.

15 16

5. This Variance Severely Undercuts The General Plan’s Letter And Spirit The variance fails on this additional ground as the Zoning Administrator’s findings

17

directly contradict the City’s own General Plan. By law, the variance must not adversely affect

18

“any element” of the General Plan, which extends to local community plans and city-wide

19

elements such as Conservation, Land Use, and Open Space. Los Angeles Mun. Code § 12.27(D);

20

see also, AR-001579. The General Plan holds the City to a high standard when it comes to

21

preserving open space, something the City appears to have overlooked in this case:

22

“Open Space owned by City Departments and Agencies and other jurisdictions

23

shall be retained for open space use wherever feasible.” (emph. added)(AR-

24

001579).

25

Preserving open space certainly is feasible here – the City simply has another agenda. The City

26

cut corners to approve this project in record time without addressing its impacts on each

27

element. In fact, the Zoning Administrator only discusses the community plan’s broad goals

28

(e.g., “economic, social, physical health, safety, welfare and convenience of the people”) and 14

PETITIONER’S OPENING BRIEF IN SUPPORT OF WRIT OF MANDATE



CAFOS Opening Brief In Support of Writ of Mandate