June 2, 2015 - From the June, 2015 issue

WWLA: The Legality of Intensified Infill Development & Density in Hollywood Debated

In a “Which Way, L.A.?” segment titled “Density, Development, and the Battle for Hollywood,” host Warren Olney moderates a conversation between attorney Robert Silverstein and developer Mott Smith. Silverstein, known for legal wins that have halted development projects in Hollywood, articulates his clients’ perspective. Smith, who founded Civic Enterprise and formerly served as editor of this publication, explains the difficulties of building infill in an environment of CEQA litigation. TPR presents edited excerpts of the discussion here.


Mott Smith

"When people are making such heroic efforts to try to respond to the market and to the community—and to build infill, which frankly, is state policy—but we still fall down half the time, that tells me there’s something wrong with the law.” —Mott Smith

"Hollywood can be developed if it’s developed responsibly, within the constraints of the law and the infrastructure that we have. My clients do not oppose good development. What they oppose is law-breaking development and dangerous development. The Millennium case is a perfect example of both.” —Robert Silverstein

Warren Olney: Los Angeles Mayor Eric Garcetti has been trying to raise height limits and increase density in Hollywood since he was the city councilmember here. But last week a local judge put the lid on the $1 billion Millennium Hollywood project, which would feature towers 39 and 35 stories high near the Capital Records building. Community groups retained a lawyer who’s been there before: Robert Silverstein is an opponent of what he calls “unhealthy government” in Los Angeles.

Mr. Silverstein, you’ve gotten a zoning plan approved by the City Council thrown out of court. You’ve stopped a Target store from being completed. Tenants are going to be evicted from a new apartment house in Hollywood. What does this all add up to, as far as you’re concerned?

Robert Silverstein: What we’re seeing here is a pattern of lawlessness by the LA mayor and the City Council that constantly elevates the interests of favored developers over the public and over the rule of law. Each one of these cases that we have fought successfully in front of multiple judges to obtain rulings against the City of Los Angeles have vindicated the public’s right to an open and transparent process. Instead, what we constantly see and what we constantly have to fight is the city disregarding the law.

Regarding the Hollywood Community Plan Update, the community groups that I represent argued for years that the city was using demonstrably false and, in fact, fraudulent population data to distort all of the environmental impact analysis in the Environmental Impact Report. They created this framework for intensified development and density that was not justified by the data, that was not justified by the population, and that was not properly analyzed by the city.

Then you have the Target case, where the city throws the zoning code out the window to allow Target to exceed the height limit for a Specific Plan that is the expression of years of work by the community to develop a framework for the type of future development they want to see.

Then you have the Old Spaghetti Factory 22-story building project. The city is now requiring the landlord to evict the tenants because the landlord, CIM Group (which is a major contributor to Mayor Garcetti), illegally demolished a 1924 structure. By city ordinance, they were required to preserve it. In exchange, they got about $10 million of taxpayer money to subsidize their project. They illegally demolished this structure overnight and didn’t give back any of the money. They avoided tens of millions of dollars in construction costs for parking by claiming originally that they couldn’t do subterranean excavation because of preservation of the older building above ground, and then they wound up “preserving” it, so to speak, in a landfill.

Warren Olney: What’s wrong with the Hollywood Millennium? 

Robert Silverstein: Do we have an hour to talk about that? The Hollywood Millennium project is the poster child for the culture of secrecy and rule-breaking that permeates LA City Hall. To approve two skyscrapers on top of what the California state geologist has now officially said is the active Hollywood Fault—a 7.0-magnitude earthquake fault that runs directly through that site—over the state geologist’s objections, over Caltrans’ objections, and over the objections of the 40 different community groups is jaw-dropping and astounding.

Not only has the City Council and Mayor Garcetti approved a project that is reckless and that would be incredibly environmentally damaging, but it would also literally imperil the lives of thousands of people that would live and work on that property if the project ever got built.

Warren Olney: All four of the cases have been won with different judges in local courts.

Let’s turn now to Mott Smith, cofounder of Civic Enterprise—that’s a planning and development firm. He also serves on the board of the Council of Infill Builders, a developers’ group. Mr. Smith, are you directly involved in any of these projects just listed by Mr. Silverstein?

Mott Smith: Thankfully, I’m not. 

Warren Olney: What’s your take on what’s going on here? Is Mr. Silverstein right that we have a reckless, lawless process that needs to be stopped? 

Mott Smith: I agree that we have a process that, frankly, nobody can trust. It’s true whether you’re a community stakeholder, a developer, or a public official.

Our land-use regulation process in California has been built entirely around what we would call a “new growth,” suburban paradigm—meaning, it works fantastically well if what you’re trying to do is plan a new subdivision out in the desert.

If instead what you’re trying to do is build a constantly evolving, creative, iterative city, the process breaks down—not just in LA, but really everywhere where there’s an established city in the state.

I wouldn’t characterize the city’s behavior as lawless. But I would say that every time we have to create something here, because of the way we’ve structured it under state and local laws, we have to basically break the system. That ruins trust on all sides of the equation.

Warren Olney: Are you saying then that these projects were inappropriately presented? What about the court rulings? Was there illegality involved?

Mott Smith: I don’t want to comment on the legality because I don’t know the specifics well enough.

But what I can say is that, in California, developers regularly spend hundreds of thousands, if not millions, of dollars hiring very expensive experts to help them try to comply with environmental law.

A recent study by the firm Holland & Knight in San Francisco looked at Environmental Impact Reports that had gone to court under challenges like the ones we’re talking about here. According to the study, the chances that a judge would overturn the EIR across the state were about 50/50. It’s a coin-toss, after you’ve spent millions of dollars trying to comply with the laws, whether or not you actually did comply with the laws.

When people are making such heroic efforts to try to respond to the market and to the community—and to build infill, which is state policy—but we still fall down half the time, that tells me there’s something wrong with the law.

Warren Olney: Mr. Silverstein, there are those who say you have made a career of going through the California Environmental Quality Act and other laws in order to find the things that will get judges to make the rulings that they have made, without regard to the overall policies that Mr. Smith just described. 

Robert Silverstein: The overall policies in the California Environmental Quality Act are accountability, transparency, and mitigation of environmental impacts.

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Take, for example, the most recent case: the Millennium Hollywood project. You had a city and a developer intent on frustrating all of those policies. There was not accountability. There was a complete disregard for two state agencies by the City Council. There wasn’t mitigation of impacts because the city refused to even study impacts to the 101 Freeway, although Caltrans was, to their credit, absolutely and tenaciously objecting to that.

Warren Olney: Is there any way that Hollywood can be developed and densified to make way for the people who now want to live there?

Robert Silverstein: Absolutely. Hollywood can be developed if it’s developed responsibly, within the constraints of the law and the infrastructure that we have. My clients do not oppose good development. What they oppose is law-breaking development and dangerous development. The Millennium case is a perfect example of both.

Responding to this idea that CEQA is being used to frustrate projects, first let me just share another important statistic: about one in 1,000 projects is challenged, ever. I think the statistic is about 0.3 percent of all projects that are approved are ever challenged under CEQA.

This notion that somehow our enforcing the environmental laws and protecting the public is harming the economy is really a canard.

Warren Olney: Mr. Smith, what do we need in order to move toward a model that you and perhaps Mr. Silverstein could agree on? 

Mott Smith: When SB 375 was passed, Senator Steinberg said that infill is good policy because the more densely we build, the more walkably we build, the more we prioritize people over cars, and the more we’re going to create a livable, affordable state that has a healthier environment.

In 2013, SB 743 was passed, which eliminated traffic congestion as an environmental impact. The bill recognized that there’s always going to be some traffic congestion, and all the things we do to mitigate congestion frankly make our cities worse, less affordable, and less healthy.

I think eliminating the automobile analysis from CEQA is a step in the right direction, for sure.

Warren Olney: Mr. Silverstein, is this all about having a more convenient place to live and making sure the views are okay?

Robert Silverstein: Views are really a non-issue. This is about having a livable and safe community—and having a City Council that actually follows the law.

The comment that nothing seems to stick in terms of our objections—actually, pretty much everything stuck last week in our trial. For two years, Caltrans consistently opposed this project and its environmentally damaging effects. Suggesting that can be brushed aside is just not proper. The state geologist expressed deep concerns. Those are human-life, health, safety, and welfare concerns that everyone should join with us in being concerned about. 

Warren Olney: Mr. Smith, what do you say to the argument that Hollywood is, in fact, outdated? If so, how should we better develop it without leading to the kinds of criticism that we’ve heard from Mr. Silverstein and many others—that developers get whatever they want from City Hall?

Mott Smith: I think developers would love it if they got whatever they wanted from City Hall. Speaking with the community of developers that I’m part of, nobody has that perception.

Our salaries are basically time-based. If a project is going to make us $100,000 over a year and then a lawsuit is filed, even if that lawsuit is dismissed but delays our project by a year, our salary just got cut in half (unless we charge twice as much for the units that we build, which sometimes happens).

I think developers would be happier if there were a cabal out there! I just don’t believe there is.

I believe there is a set of city laws and state laws that are out of synch with the policies of building a walkable, healthy, dense city around our transit system. I don’t think that we’re going to avoid the kind of complaints that Robert Silverstein and his clients are levying at the projects. The problem with our state law is that it doesn’t tolerate projects where there are such complaints. The only place you can go to avoid complaints is out in the desert, which is how we create sprawl, more traffic, more environmental un-sustainability, and a less healthy environment. 

Warren Olney: Are we ever going to see the towers of Millenium Hollywood? Are we ever going to see that Target built? Are the tenants ever going to be able to go back into the building that they’ve had to evacuate because a historic façade was torn down? 

Robert Silverstein: The tenants don’t want to be in that building—they have been victimized by the landlord. According to the LA Times, four floors of that building have been illegally leased for an Airbnb transient hotel. The LA Times reported that it’s become a public nuisance with prostitution and drugs. 

Warren Olney: It doesn’t sound like you’re going to stand for these projects being completed.

Robert Silverstein: As long as projects are completed in compliance with the law, we support them. But when the law is bent, wrenched out of shape, and ignored—which is what we routinely see—my clients are concerned.

The people who live there want a livable community. The idea that these are just privileged people who are complaining is just ironic. The LA Weekly back in January 2013 ran an article on the population loss in Hollywood called “Hollywood’s Urban Cleansing.” It noted that the population loss is primarily working-class Latinos being squeezed out by the gentrification encouraged by the city’s redevelopment.

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© 2017 The Planning Report | David Abel, Publisher, ABL, Inc.