In Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. the Second District Court of Appeal (Division 3) invalidated the final environmental impact report (EIR) and entitlements for the Millennium Project, a controversial mixed-use development in Hollywood surrounding the historic Capitol Records Building. In a published decision, the Court held that the EIR violated the California Environmental Quality Act (CEQA) because the project description was not stable and finite. The Court stopped short of considering challenges on other grounds, holding that since the project description is the "heart of the EIR process", it was not necessary to consider additional arguments.

As a consequence of this ruling, lead agencies and project applicants will need to consider whether their project descriptions are sufficiently stable and finite, while still providing some project flexibility. In addition, as a result of the Stopthemillenniumhollywood.com decision, public agencies may take a more conservative view as to whether project changes prior to final project approval require further CEQA review. This could result in significant delays to the CEQA process.

BACKGROUND

In 2008, developer Millennium Hollywood proposed a mixed use development comprised of residential units, a luxury hotel, office space, sports club uses, commercial uses, and food and beverage uses. The project also included preservation of the historic Capitol Records and Gogerty Buildings.

Thereafter, Millennium Hollywood decided to make certain changes to the project and, in 2011, submitted a revised project application that was similar to the 2008 application, but lacked a great deal of detail. The 2011 plan was considered a conceptual plan with a range of development scenarios. The resulting Initial Study did not identify, quantify or locate the project's mix of land uses within the building site, and there were no drawings or renderings of what was proposed to be built, the number of buildings, their shape and size, or the purposes to which they would be put.

Despite objections made during the public comment period, the City did not modify the project description and approved the project. The trial court granted petitioner's writ petition, and the City sought Court of Appeal review.

PROJECT DESCRIPTION MUST BE ACCURATE, STABLE AND FINITE

The Court of Appeal affirmed the trial court's judgment holding that the project description “is an indispensable element of both a valid draft EIR and final EIR” and that it “must be accurate, stable and finite.” The Court continued:

“… the project description is not simply inconsistent, it fails to describe the siting, size, mass, or appearance of any building proposed to be built at the project site. The draft EIR does not describe a building development project at all. Rather, it presents different conceptual development scenarios that Millennium or future developers may follow for development of this site. These concepts and development scenarios – none of which may ultimately be constructed – do not meet the requirement of a stable or finite proposed project.”

Millennium Hollywood argued that the EIR analyzed the worst case scenario of the proposed project. Nevertheless, the Court held that there was nothing stopping Millennium Hollywood from providing a detailed project description, with site plans, cross sections, building elevations, and massing that would show what was to be built.

Finally, the Court held that it need not reach conclusions on other issues raised by the parties relating to Caltrans' methodology, cumulative traffic analysis, and seismic issues. The Court held that it only need consider those issues that are necessary to achieve CEQA compliance.

CONCLUSION AND IMPLICATIONS FOR DEVELOPMENT

The Court of Appeal dealt a blow to developers' flexibility in assessing the worst case scenario for an urban infill project, requiring a much greater degree of project specificity for the CEQA analysis.

For projects currently in the midst of a CEQA process, project proponents should evaluate the project description in light of the Stopthemillenniumhollywood.com decision, and consider making any changes needed to ensure the project description is stable and finite . Furthermore, project proponents should have proper site plans, elevations, and massing studies that track the project description so that the public, and if need be a court, can clearly understand the proposed project.