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HomeMy WebLinkAboutItem 4.03 JoinAmicusLOCC Brief . . . . CITY CLERK File # D[6][z;J[Q]-[iJ(Q] AGENDA STATEMENT CITY COUNCIL MEETING DATE: November 18,1997 SUBJECT: EXHIBITS ATTACHED: RECOMMENDATION:.~~ \ FINANCIAL STATEMENT: 0 Request to Join as Amicus in LOCC Brief (Long Beach Heritage v. Board of Harbor Commissioners) (Report prepared by Elizabeth H. Silver, City Attorney) Letter from Long Beach City Attorney dated October 16, 1997 Authorize City Attorney to add City of Dublin to amicus brief in Long Beach Heritage v. Board of Harbor Commissiehers case on appeal None DESCRIPTION: The League of California Cities has authorized the preparation of an amicus curiae brief in Long Beach Heritage v. Board of Harbor Commissioners, which is on appeal before the Court of Appeal. The issue in this case is whether a city can conduct preliminary planning activities prior to completion ofCEQA review. The trial court held that the actions of the staff of the City of Long Beach, including a "statement of intent" and planning activities, constituted a "pre-commitment" by the decision-making body. The case and its implications are more fully discussed in the attachment. City Staffhas been processing a number of planning applications and anticipates many more planning applications in the next few years as development in Eastern Dublin continues. A decision in this case upholding the trial court's decision could adversely impact the City's actions with respect to these planning applications. Staff recommends that the Council authorize adding the City of Dublin to the list of cities joining the amicus brief There is no cost to the City to do so. K2/G/I 1-18-97/as-amics. doc J:\ \\'PD\MNRSW\114\O 1 \AGE1'.'DA\AMlSCDS.029 EHS:1ja ~.__.__..__.._.._.._.._.._u_.._n_.._n_n_n_n_n_.._n_.._.._.._..._..____n____..._.._.._..._...._n_.._u_.._...._n_n_n_n_n_n_..._n_..._...._..._n_...._n____....____..._...._..._..._n_.._.._..._....-....--.-..-- COPIES TO: ITEM NO. 4., . . . ~ JOHN R. CALH,oUN CITY ATIORNEY OFFICE OF THE CITY ATTORNEY OF LONG BEACH CIty Hell 333 WeEl OcI;l:lI'\ Soull!v3rO Long Beach. California 90802-4664 (1562) ,ro.z.zoo FA)( (562) 435-1579 ROBERT E. SHANNON ASSISTANT October 16, 1997 WORKERS' COMPENSATION SE:CTION (562) 570-2245 "AX (582) 570-2220 TO: California Cities and City Attorneys RE: Request to Cities to Join as Amic~e in the League of California Cities' CEQA Brief in Support of the City of Long Beach in Long Beach Heritage v. f3oard. of Harbor Commissioners. et al., 2 Civil No. B112374 , On behalf of the City of Long Beach, we join with the California League of Cities in urging you to add your city's name to an'amicus brief which will be filed with the Second District Court of Appeal on behalf of Long Beach in Lona Beach Heritage v. Board of Harbor Commissioners, et al., 2 Civil No. Bl12374. By Board action on October 12/ 1997, the League of Cities recommended that cities join the amicus brief which is being prepared by the Offices of the City Attorney of Los Angeles and Torrance under the supervision of Marsha Moutrie, City Attorney for Santa Monica, for the League. Several cities and the County of Los Angeles have already indicated their support for Long Beach's position. This appeal may have a direct impact on your city's planning and CEQA compliance process. The issue is whether a local agency can enter into non-binding letters ot intent or conduct preliminary planning activities prior to the completion of CEQA review, or is this npr~disposition" on the part of the decision-makers making the subsequent environmental review nothing more than a post-hoc rationalization. If this case is affirmed on appeal, it: will also mean that your' city can no longer rely upon the running of . CEQA'g short statute of limitations. Previously unchallenged agency or staff actions could be used years later to allege pre-determination. Last month, a judgment was entered by Judge Robert O'Brien of the LOG Angeles Superior Court in the consolidated CEOA challenges to the reuse of the Long Beach Naval Station located on Terminal Island in Long Beach. The Station was ordered closed by Congress in ~991. The proje:ct involved converting the Station into a marine oontainer terminal. Long Beach Heritage challenged the project based upon their members' 4 desire to preserve the 1940s buildings at the Naval. Station. The judgment affirms the adequacy of the EIR prepared fo~ the reuse project in all respects, but nonetheless authorizes the issuance of a writ of mandate directing the Long Beach Board of Harbor Commissioners to set aside its approval of the project based upon Long Beach Heritage's theory that the Board was improperly "pre-cornrnittedll to approving the project. The critical issue in this appeal involves whether preliminary staff actions relating to a project rise to the level of a "pre-commitment" by the decision-making body itself, thereby precluding that body from rendering meaningful CEQA determinations. I All lead agencies in California should b~ grayely concerned about this case because the trial court found "pre- commitment.1 and IIpre-determinationll by the Board ba.sed only upon the following staff actions: 1) the signing of a non-binding II statement of intent 11 by the executive director of the Harbor Department -- which was never authori2ed or ratified by the Board -- setting forth certain preliminary terms ~nd Btating the partiea~ int8ntion to I,legotiate a lease of the container terminal which would be subj ect to the approval of the deci.sion-makers for both parties; and 2) planning activities by planning staff, undertaken without ratification, as much as four years t1led. the Harbor Department' s . Board authorization or betore the lawsuit was Based upon these staff activities, Juc;3.ge O'Brien speculated that the Board had improperly pre-conunitted itself to the project in advance of its certification of the EIR for the project. He reached this conclusion despite a City charter provision which provides that a lease can only be approved by an ordinance adopted by the Board. Thus, he concluded that even though the EIR was fully satisfactory in all respects, the Eoard's decision was tainted by the staff'~ action. Perhaps the most troubling aspect of Judge O'Brien's ruling is the public agency's lack of ability to cure the alleged CEQA violation. Despite the fact tha.t two interlocutory remands to the Board were ordered by Judge 0' Brien, during which the Board rescinded every action that it took regarding the project, the Judge still did not feel the Board had adequately purged itself of the pre-determination taint. The amicus brief will argue that these staff actions are not project approvals, and are not subject to CEQA. Logic dictates this result, as do existing authorities on the pre- commitment issue. 2 . . . This type of intrusion into the mental processes of a decision-makers violates the fundamental doctrine of separation of powers, and could bring the planning process to a hal t. Staff planning and proj ect analysis is vi tal to all proj ects. Letters of intent are useful in many proj ects. Courts should not interfere in this way with the legislative process. Currently, Long Beach's opening brief is due on November 3, 1997. Because of the limited time for' the preparation and submission of the amicus brief, we request that you obtain any necessary authority and notify us via the enclosed consent form by November ~O, ~997. If you have any further questions about the case I please call Deputy City Attorney Dominic Holzhaus at (562) 570-22~2. Very truly yours, . JRC;DH;dmp Encl_ ~~~~ UJOHN R. CALHOUN CITY ATTORNEY . 3 \ CONSBN'I' TO JOIN AS AMICUS CURIAE TO: John R. Calhoun, City Attorney Dominic T. Holzhaus, Deputy City Attorney 333 West Ocean Boulevard, 11th Floor Long Beach, California 90802 Phone: FAX: (562) 570-2212 (56.2) 436-1579 Please add the city of to the amious curiae brief being prepared by the League of California Cities on behalf of the City of Long Beach in the appeal of. Lona Beach Heri tage v. Board of Harbor Commissioners. et al. I and consolidated actions, 2 Civil No. Bl12374; CONTACT PERSON AND ADDRESS; PHONE: FAX: . . . .