CHATTEN-BROWN & CARSTENS

2 Jan Chatten-Brown, SBN 050275

Douglas P. Carstens, SBN 193439
3 Arthur Pugsley, SBN 252200
2601 Ocean Park Blvd, Suite 205
4 Santa Monica, CA 90405
5 310.314.8040; Fax 310.314.8050

6 Attorneys for Petitioner

7 LA Neighbors United

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 FOR THE COUNTY OF LOS ANGELES

11
LA NEIGHBORS UNITED, an ) CASE NO.:
12 unincorporated citizens' association; )
)
13 ) PETITION FOR PEREMPTORY WRIT
Petitioner,
14 ) OF MANDATE
)
v.
15 )
)
16 CITY OF LOS ANGELES ) (CALIFORNIA ENVIRONMENTAL
) QUALITY ACT)
17 Respondent, )
18 ------------------------)
and DOES 1 to 10; )
19 )
Real Parties in Interest. )
20 )
21 )
)
22 )
)
23 )
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PETITION FOR WRIT OF, MANDATE;

 1 INTRODUCTION
2 1. This action is brought pursuant to the California Environmental Quality Act
3 (CEQA) and challenges the approval of City of Los Angeles Ordinance No. 181412 (hereinafter,
4 "Community Plan Implementation Overlay Ordinance" or "CPIO Ordinance"), passed by the
5 Los Angeles City Council on November 10, 2010.
6 2. The CPIO Ordinance, according to the Planning Department staff report, is "part
7 of a suite of new zoning tools" under active consideration by the City. It establishes and defmes
8 a new Supplemental Use District (the CPIO District) to the Municipal Code.
9 3. The CPIO Ordinance amends Sections 12.04, 12.20.3, and 12.32 of the Los
10 Angeles Municipal Code, and adds a new Section 13.14 to the Los Angeles Municipal Code.
II 4. The CPIO Ordinance represents a sweeping change to the City's Zoning Code
12 with far- reaching land use, growth, transportation, housing, and environmental implications.
13 Indeed, the CPIO Ordinance is part of the biggest overhaul of the Los Angeles zoning code
14 since 1946. Yet the City refused to prepare an Environmental Impact Report (ErR) pursuant to
IS CEQA on such a large and far-ranging project. As a result, neither the City nor the public was
16 informed of the potentially significant environmental impacts associated with the CPIO
17 Ordinance or other aspects of the City' s overhaul of its zoning code prior to the City Council's
18 approval.
19 5. The Ordinance, by its own terms, is intended to "create an approval process to
20 enable infill development" and City planning staff has stated the CPIO is intended to be "used in
21 combination with existing regulations to tailor development standards within a Community Plan
22 area."
23 6. The Ordinance allows creation of CPIO districts with minimal public involvement
24 and of any size (i.e., the CPIO contains no minimum or maximum size requirements for a CPIO
25 District).
26 7. The CPIO Ordinance allows creation ofCPIO Districts anywhere in the City,
27 without respect to location near transportation or other infrastructure.
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2 PETITION FOR WRIT OF MANDATE:

 8. Once a CPIO District is established, the Zoning Administrator, an unelected
2 official in the City's Planning Department, will be able to grant administrative approvals, with
3 no public involvement, of projects as much as 20% denser than those allowed by the current
4 zoning code through a "sign-off' process.
5 9. The density of approved projects could even increase by more than the 20%
6 allowed by the "sign-off' process, since upon establishment of a CPIO District, zoning
7 variances would no longer be required for projects within the District. Rather, a proposed
8 development exceeding zoning limitations by more than 20% would only need to be granted an
9 exception to the CPIO District standards, which is subject to a lower standard for approval than
lOa varIance.
11 10. The Council adopted the Ordinance after placing it on the consent calendar,
12 frustrating those members of the public who had come to testify by denying the public even the
13 most minimal opportunity to directly confront their elected representatives on this matter of
14 City-wide importance.
15 11. Despite the refusal by the full City Council to allow live public testimony prior to
16 approving the CPIO Ordinance, Petitioner and others nonetheless submitted substantial evidence
17 to support a fair argument that the adoption of the Ordinance may have significant
18 environmental impacts.
19 12. The CPIO Ordinance is part ofa larger overhaul of the City' s zoning code that
20 currently includes nine potential zoning code revision ordinances and other zoning code changes
21 involving ground floor commercial uses and new pedestrian design standards, but the City did
22 not analyze the cumulative effects of the CPIO Ordinance with the other zoning code changes
23 under active consideration, or treat the various ordinances and other actions now under
24 consideration as components of an integrated zoning code overhaul. As these other ordinances
25 and actions are brought forward, Petitioner reserves the right to file Petitions challenging the
26 approval of the ordinances.
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3 PETITION FOR WRIT OF MANDATE·

 1 13. The City is also undertaking what it calls the "Do Real Planning" Initiative. The
2 CPIO Ordinance and other actions under consideration by the City are also apparently a part of
3 this wider initiative.
4 14. Because the record contains substantial evidence supporting a fair argument of
5 environmental impacts, the City's reliance on a Negative Declaration is improper. The City
6 violated CEQA by approving this Ordinance on the basis of a Negative Declaration, rather than
7 first preparing an EIR to fully inform it, and the public, on the potentially significant
8 environmental impacts of the CPIO Ordinance.
9

10 JURISDICTION
11 15. This Court has jurisdiction over the writ action under sections 1085 and 1094.5 of
12 the Code of Civil Procedure ("CCP"), and section 21168.5 of the Public Resources Code.
13

14 PARTIES
15 16. Petitioner is an unincorporated association whose mission is to ensure that City
16 land use decisions fulfill General Plan Framework mandates of planned, managed growth
17 supported by infrastructure, including transit infrastructure, and are made with the public
18 health, safety, and welfare as a priority. Petitioner' s members include residents and taxpayers
19 of the City of Los Angeles who will be adversely affected by impacts resulting from the
20 Ordinance described herein, and who are aggrieved by the acts, decisions and omissions of the
21 City of Los Angeles as alleged in this Petition. Petitioners bring this action as members of the
22 affected public, and in the interest of the general public.
23 17. Respondent City of Los Angeles is a political subdivision of the State of
24 California.
25 18. Real parties named as Does I to X are given fictitious names because their names
26 and capacities are unknown to Petitioner at present.
27 III
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4 PETITION FOR WRIT OF MANDATE -

 STATEMENT OF FACTS
2

3 19. In March 2009, the City hosted a lone public outreach meeting on the subject of
4 the CPIO Ordinance.
5 20. The Planning Commission approved the Ordinance in May 2009.
6 21. The City Attorney approved the proposed text of the CPIO Ordinance as to form
7 on October 4,2010.
8 22. The City Council Planning and Land Use Committee approved the CPIO
9 Ordinance on November 2, 2010.
10 23. The City Council adopted the CPIO Ordinance on November 10, 2010.
11 24. A Notice of Determination was filed with the County Clerk on November 16,
12 2010.
13 25. The Mayor transmitted his signature of the CPIO Ordinance to the City Clerk on
14 November22,2010.
IS 26. The City is separately evaluating nine other Ordinances amending various
16 sections of the zoning code. The "Core Findings" Ordinance, for example, is scheduled for a
17 Planning Commission vote on January 13,2011.
18 27. This action was timely filed.
19
20 EXHAUSTION OF ADMINISTRATIVE REMEDIES
21 AND INADEQUATE REMEDIES AT LAW
22

23 28. Petitioner's members objected to the project in the administrative process and
24 fully exhausted their administrative remedies. Petitioner's members appeared at public
25 hearings raising the issues set forth in this Petition, and submitted written testimony, including
26 factually supported expert testimony.
27 29. Petitioner has no plain, speedy or adequate remedy in the course of ordinary law
28 unless this Court grants the requested writ of mandate. In the absence of such a remedy,

5 PETITION FOR WRIT OF MANDATE '

 1 Respondent's approval of the CPIO Ordinance will form the basis for third parties proceeding
2 with development projects in violation of state law.
3 30. Petitioner is complying with Public Resources Code section 21167.7 and Code of
4 Civil Procedure section 388 by sending a copy of this petition to the California Attorney
5 General concurrent with the filing of this Pleading. (Exhibit A.)
6 31. Petitioner has complied with Public Resources Code section 21167.5 by
7 providing the City with notice of intention to commence this action. (Exhibit B.)
8 32. Petitioner elects to prepare the administrative record. (Exhibit C.)
9

10 FIRST CAUSE OF ACTION

11 (VIOLATION OF CEOA)
12
13 33. Petitioner incorporates all previous paragraphs as if fully set forth.
14 34. CEQA requires the City to conduct an adequate environmental review prior to
15 making any formal decision regarding discretionary projects subject to the Act (CEQA
16 Guidelines, 14 Cal. Code Regs. § 15004), unless a specific statutory or regulatory exemption
17 applies. No such exemption is applicable here.
18 35. The approval of the CPIO Ordinance by the City Council is a project within the
19 meaning of CEQA.
20 36. Approval of the CPIO Ordinance by the City Council is a discretionary action
21 subject to CEQA.
22 37. The City prepared an Initial Study to support its Negative Declaration, but the
23 Initial Study is little more than repetition of the boilerplate explanation that the CPIO Ordinance
24 will not have significant environmental impacts because the Ordinance does not in itself include
25 any proposals for physical development. The City completely ignores the indirect, but readily
26 forseeable, environmental impacts resulting from the city-wide development enabled by the
27 CPIO Ordinance.
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6 PETITION FOR WRIT OF MANDATE ;

 38. The threshold requirement for preparation of an EIR is low, "reflect[ing] a
2 preference for requiring an EIR to be prepared." (Mejia v. City of Los Angeles (2005) 130 Cal.
3 App. 4th 322, 332.) To prevail, Petitioner need not show that the CPIO Ordinance will have a
4 significant environmental impact, although significant impacts resulting from such a sweeping
5 change to the zoning code are highly likely. Petitioner need only show that the CPIO
6 Ordinance may have a significant environmental impact and that the record supports a "fair
7 argument" of such a potential impact. (Pub. Res. Code. § 21080 subd. (c), (d).)
8 39. In a situation such as here, where an agency approves a project while refusing to
9 conduct any studies of potentially significant environmental impacts, the scope of the "fair
10 argument" test is enlarged by lending a logical plausibility to a wider range of inferences.
11 (Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296,311.)
12 40. Petitioner presented numerous questions regarding the potentially significant
\3 impacts of the project to the City Council, but the City approved the project without answering
14 any of those questions. Nonetheless, despite the lack of City-sponsored studies in the record,
15 Petitioner submitted expert opinion supported by facts and reasonable inferences supporting a
16 fa ir argument that the approval of the CPIO Ordinance may have a significant environmental
17 impact.
18 41. The CPIO Ordinance, by its own terms, enables growth beyond that permitted by
19 existing zoning, by as much as 20% city-wide. Since the variance process is replaced within
20 CPIO Districts by a less stringent process of obtaining exceptions, growth even above and
21 beyond the additional 20% allowed by the terms of the CPIO Ordinance is forseeable. The
22 growth impacts and cumulative impacts of the CPIO Ordinance are thus potentially significant.
23 42. The City is undertaking a comprehensive overhaul of its zoning code, of which
24 the CPIO Ordinance is a part. However, the City has not discussed how the CPIO Ordinance
25 will work with the other elements ofthe initiative to facilitate new development throughout the
26 City. The cumulative impacts of the major zoning framework changes proposed by the City are
27 potentially significant.
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7 PETiTiON fOR WRIT OF MANDATE;

 43. The City has improperly piecemealed review of what amounts to a wholesale
2 rewriting of its zoning framework by approving the CPIO Ordinance separately from the other
3 proposed ordinances and other actions under consideration by the City.
4 44. The approval of the CPIO Ordinance has generated significant momentum for the
5 most significant rewriting of the Los Angeles Municipal Code since 1946. As one August 2010
6 newspaper article succinctly described the wholesale changes, "LA Hopes to Blow Up Postwar
7 Zoning Codes." The CPIO Ordinance is the opening volley in that campaign.
8 45. CEQA review must occur before a project takes on bureaucratic and financial
9 momentum, reducing any environmental review that eventually takes place to an exercise in
10 post hoc justification. (Laurel Heights Improvement Association v. Regents a/the University
II a/California (1988) 47 Cal. 3d 376, 395.) The City is unlikely to conduct detailed
12 environmental review of individual CPIO Districts, because the CPIO Ordinance allows the
13 City to designate individual (but nonetheless adjacent or conceptually related) districts of very
14 small size, allowing the City to claim that the impacts of that CPIO District designation are not
15 significant. In the alternate, the City could designate a large district with few standards, again
16 claiming that the impacts are not significant.
17 46. Even if the City subsequently conducts some level of environmental review
18 before designating individual CPIO districts, the City is highly unlikely to reconsider the
19 programmatic impacts on the City as a whole generated by the approval of the CPIO Ordinance.
20 Thus, an EIR should have been prepared prior to approv:d of the CPIO Ordinance, which has
21 generated significant bureaucratic and financial momentum behind a wholesale revision of the
22 City's zoning code.
23 47. The CPIO Ordinance may have serious adverse impacts on the quality oflife in
24 many neighborhoods throughout Los Angeles by allowing the construction of buildings out of
25 scale with the surrounding neighborhoods, including single-family residential neighborhoods,
26 and without adequate parking. Thus, impacts on aesthetics, traffic, and air quality are
27 potentially significant.
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8 PETIT ION FOR WRIT Of MANDATE;

 48. The Planning Department staff report states the CPIO Ordinance would likely
2 affect "uses, height transitions, open space and step back concerns" in commercial districts. Yet
3 the City approved the project without assessing the scope or likely impact of those concerns.
4 49 . The staff report also recognizes potential for aesthetic impacts in residential areas,
5 because the CPIO Ordinance is likely to be used to affect the "articulation, form, and massing"
6 of development proposals in multi-family residential areas.
7 50. The Planning Department staff report recognizes the likelihood for the CPIO
8 Ordinance to promote "pedestrian-oriented, mixed use development using incentives" around
9 emerging transit nodes. While this goal is laudable, promoting such development could have
10 significant impacts (for example, pedestrian-oriented development can still nonetheless
11 generate significant vehicular traffic).
12 51. The nature of the "incentives" referred to in the staff report is also unclear and
13 could lead to impacts related to increased density. While increased density may prove to be
14 appropriate and environmentally beneficial in some parts of the City, it may be undesirable in
15 others. The City should have studied the issue before approving the CPIO Ordinance that
16 allows these impacts potentially everywhere in the City.
17 52. The staff report also envisions the CPIO Ordinance being used to prevent "over-
18 concentrations of. .. drive through establishments" in certain (unidentified) neighborhoods.
19 While this is a laudable goal, it is a goal that will have significant potential impacts on traffic,
20 and may encourage sprawl of drive through establishments if not implemented carefully. Yet
21 despite the obvious traffic implications of altering patterns of drive through land uses on a
22 potentially wide geographic scale, the City conducted no traffic studies before approving the
23 CPIO Ordinance.
24 53. Petitioner submitted a factually supported traffic analysis by a recognized traffic
25 expert who concluded that "[t]he project will clearly have impacts on traffic including
26 cumulative impacts that will be significant."
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9 PETITION FOR WRIT OF MANDATE'

 54. Similarly, the increased development enabled by the CPIO Ordinance places
2 potentially significant additional demands on existing parks, libraries, and public utility
3 infrastructure.
4 55. The increased level of development enabled by the CPIO Ordinance could
5 interfere with the City's ability to provide emergency services. The City of Beverly Hills
6 commented that the CPIO Ordinance could compromise the ability of the City of Los Angeles
7 to meet its obligations to Beverly Hills pursuant to an existing mutual emergency services
8 agreement between the two cities. Impacts on public safety and emergency services are thus
9 potentially significant.
10 56. By enabling development without regard to location of pedestrian and bicycle
II infrastructure, the CPIO Ordinance has a potentially significant impact on public safety from
12 increased pedestrian-vehicular conflicts. This potential impact is especially pronounced in the
13 lower income areas of the City, where pedestrian and bicycle facilities tend to be most
14 inadequate relative to demand and need.
IS 57. The Planning Department staffreport anticipates the CPIO Ordinance will be
16 used in conjunction with other proposals under active consideration by the City, such as the
17 "Pedestrian Emphasis Design tool," but the City did not discuss the potential cumulative
18 impacts of the various measures under consideration on pedestrian or bicycle access and safety.
19 58. The CPIO Ordinance effectively decouples land use and transportation planning
20 in the City of Los Angeles, by allowing formation of CPIO Districts and associated increased
21 levels of infill development anywhere in the City, instead of targeting in fill development along
22 transportation corridors and in proximity to transit. The CPIO Ordinance thus undermines the
23 goals of Cali fomi a's landmark transportation and climate change planning law, SB 375; its
24 landmark Greenhouse Gas law, AB 32; and county Measure R, approved by voters in 2008, in
25 part, to encourage greater use of transit. Land use, transportation, and climate change impacts
26 are thus potentially significant.
27 59. The CPIO Ordinance does not include requirement for buffers around the edges
28 of CPIO Districts, and allows formation of multiple CPIO Subdistricts within existing

10 PETITION FOR WRIT OF MANOATE:

 communities. Thus, incompatible land uses could be juxtaposed at the edges of each district,
2 and existing communities divided by incompatible land uses. Land use impacts are therefore
3 potentially significant.
4 60. The CPIO Ordinance, by enabling increased development anywhere in the City,
5 including in the steep and fire-prone hillside and canyon areas of the city, undermines the City's
6 Baseline Hillside Ordinance, which was developed after years of community effort and is
7 intended to protect the hillside areas of the City from incompatible and unsustainable
8 development. Land use and safety impacts of the CPIO Ordinance are thus potentially
9 significant.
10 61. The General Plan Housing Element identifies areas within the City appropriate
11 for additional housing. The CPIO Ordinance potentially allows additional housing
12 development anywhere in the City, without regard to where capacity for such housing exists.
13 The CPIO Ordinance thus undermines the City's General Plan, and risks exacerbating ajobs-
14 housing imbalance. Land use impacts are thus potentially significant.
15 62. The approval of the CPIO Ordinance will likely affect the City's willingness to
16 pursue timely updates of its Community Plans, some of which are long overdue. Land use
17 impacts are thus potentially significant.
18 63. Historic resources outside of existing Historic Preservation Overlay Zones but
19 inside designated CPIO districts will be subject to increased development pressure. Impacts on
20 historic resources are thus potentially significant.
21 64 . The CPIO Ordinance provides for minimal public involvement in the designation
22 of individual CPIO districts, and virtually no public involvement in review of qualifying
23 projects within designated CPIO districts. Because the public is frozen out of future land use
24 decision making, the City staff, with only the development community in the position to apply
25 pressure, is more likely to approve development than would have been the case if the public had
26 been allowed to fully participate and offer a potentially countervailing perspective to City
27 officials. Thus, the indirect impact of decreased public involvement is increased development,
28 and increased impacts associated with that development.

11 PETITION FOR WRtT OF MANDATE:

 65. Once a CPIO District is designated, the Zoning Administrator, an unelected
2 official, will be able to determine whether individual projects within the District are subject to
3 CEQA. The CPIO Ordinance does not provide a mechanism to appeal this decision to an
4 elected decision making body.
5

6 WHEREFORE, Petitioner Prays:

7

8 I. For a peremptory writ of mandate ordering the City to set aside its approval of
9 the CPIO Ordinance pending full compliance with CEQA;
10 2. F or Petitioners' costs and attorney fees pursuant to Code of Civil Procedure
11 section 1021.5; and
12 3. For other and further relief as the Court finds proper.
13
14

15

16 DATED: December 7,2010 Respectfully Submitted,

CRA TTEN-BROWN & CARSTENS
17

18
By:
19 Douglas P. Carstens
20 Arthur S. Pugsley
Attorneys for Petitioners
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12 PETITION FOR WRIT OF MANDATE,

 1 VERIFICATION
2 I, the undersigned, declare that I am an officer of LA Neighbors United, the Petitioner in
3 this action. I have read the foregoing PETITION FOR PEREMPTORY WRIT OF MANDATE
4 and know the contents thereof, and the same is true of my own knowledge.
5 I declare under penalty of perjury that the foregoing is true and correct. Executed this 7th

6 day of December 20 10, in Los Angeles County, California.

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9 Cary Brazeman
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13 PETITION FOR WRIT OF MANDAT E;