Friends of La Vina v. County of Los Angeles

—I respectfully dissent.

One person may never adequately represent conflicting interests. Whether expressed in classic or colloquial form, few verities have been more oft reproven over the centuries. 1 Consequently, our Legislature has proclaimed in clear, unambiguous language that:

“Any evironmental impact report or negative declaration pursuant to the requirement of this division shall be prepared directly by, or under contract to, a public agency.” (Pub. Resources Code, § 21082.1.)

It is not contended, nor could it be, that this commandment was honored here. In this instance the applicant’s agent not only prepared the initial draft environmental impact report (EIR), he was permitted to make all required responses to any concerns expressed in order that the final EIR, which he also composed, would satisfy his principal’s desires. When any person’s future income is dependent solely upon his ability to achieve success for those who retain his services, no matter how capable or honorable may be his intentions, his conflicting interests are so patent that the statutory proscription forbidding public agencies from casting him in such a role would hardly seem necessary.

*1459 No…

Hamilton & Samuels, Paul Hamilton and Karen J. Lee for Real Parties in Interest and Appellants.

James K. Hahn, City Attorney (Los Angeles), Patricia V. Tubert and Curt Holguin, Deputy City Attorneys, Louise H. Renne, City Attorney (San Francisco), Judith Boyajian and Melba Yee, Deputy City Attorneys, Nossaman, Guthner, Knox & Elliott, Alvin S. Kaufer, Winfield D. Wilson, Kenneth B. Bley and Cox, Castle & Nicholson and Kenneth B. Bley as Amici Curiae on behalf of Defendant and Appellant and Real Parties in Interest and Appellants.

Proskauer, Rose, Goetz & Mendelsohn, Robert V. Kuenzel, Elizabeth F. Skolar, Nicholas P. Connor and Deborah S. Bucksbaum, for Plaintiffs and Respondents and as Amici Curiae on behalf of Plaintiffs and Respondents.

Hall & Phillips, Carlyle W. Hall, Jr., Ann Carlson, Carl H. Moor, Georganne Thomsen and Robyn Prud'homme-Bauer as Amici Curiae on behalf of Plaintiffs and Respondents.

OPINION

FUKUTO, J.

Defendant County of Los Angeles (County), and real parties in interest Cantwell-Anderson, Inc., and its joint venturer Southwest Diversified, Inc. (applicants), appeal from a judgment granting a writ of mandate requiring that County's approval of…

—Defendant County of Los Angeles (County), and real parties in interest Cantwell-Anderson, Inc., and its joint venturer Southwest Diversified, Inc. (applicants), appeal from a judgment granting a writ of mandate requiring that County’s approval of applicants’ project be set aside and work suspended pending preparation of a proper environmental impact report (EIR) in compliance with the California Environmental Quality Act (CEQA). 1 The rationale of the judgment was that CEQA does not permit a public agency, charged by sections 21082.1 and 21151 with preparing an EIR, to generate it by requiring the applicant’s consultant to draft the analytical documentation. Because we find the trial court’s construction of CEQA’s “preparation” requirement at odds with the statute, the Guidelines, and prior judicial applications, we shall reverse the judgment and remand the case for redetermination. Appellants’ further appeals from a postjudgment order denying reconsideration will be dismissed as moot.

Facts

In 1986 Cantwell-Anderson applied to the County for approval of a specific plan, rezoning, and general (community) plan amendment, to permit residential and private school…