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Victory for Carson Marketplace Project

California Environmental Quality Act lawsuit victory

Aleshire & Wynder attorneys Anthony Taylor and Pam Lee prevailed on behalf of the City of Carson and the Carson Redevelopment Agency in this lawsuit entitled Carson Coalition For Healthy Families v. City of Carson, et al. both before the trial court in August of 2006 and (more recently) before the Court of Appeal in November, 2007.

By way of background, the Carson Marketplace (the “Project”) is a 168-acre mixed-use development located southwest of the 405 Freeway at and north of the Avalon Boulevard interchange in the City and is one of the largest projects in Los Angeles County.  The Project includes 1,550 residential units, a 300-room hotel, and 1,995,125 square feet of commercial floor area.

The Project is also the site of a former municipal landfill that operated in the late 1950’s through the early 1960’s (and closed before the City was incorporated in 1968).  As such, the Project was carefully designed to include mitigation measures to address concerns over the Project site being a former landfill and to ensure public safety.

An environmental review process pursuant to the California Environmental Quality Act (CEQA) was performed for the Project and a Draft Environmental Impact Report (DEIR) was prepared for the Project site.  The DEIR was completed on November 1, 2005 and was then circulated for public comment.  Comments were received and responses to those comments were prepared for the DEIR.

Hearings were conducted before the Carson Planning Commission concerning the Project and the DEIR on November 29, 2005, January 24, 2006 and on January 31, 2006.  A Final EIR was prepared in January of 2006.  The Agency held a duly noticed public meeting on the EIR on February 8, 2006.

At that meeting on February 8, 2006, the Agency Board voted unanimously to adopt Resolution No. 06-07 which: (1) certified the Final EIR for the Carson Marketplace, (2) adopted findings of fact and a statement of overriding considerations, and (3) adopted a mitigation monitoring and mitigation program.  A Notice of Determination for the Project was filed with Los Angeles County on February 9, 2006.

Petitioner, Carson Coalition For Healthy Families subsequently filed a Petition for Writ of Mandate (L.A. Superior Court Case No. BS102076), alleging that the Agency and City violated CEQA in approving the Project and certifying the EIR for the same.

The primary issue in the lawsuit was Petitioner’s contention that the Agency improperly deferred its environmental analysis of any preexisting hazards of the former landfill site to the California Department of Toxic Substance Control (DTSC) to analyze under Health & Safety Code §§ 25100 et seq., rather than the Agency analyzing each of these hazards independently before certifying its EIR.

The DTSC reviewed the Project and determined that with mitigation measures it can be built safely and the Agency adopted this determination by the DTSC in certifying the EIR.  Until the Project is built, however, the DTSC will not issue final approval of the remedial systems for the Project and Petitioner argued that the Agency improperly certified the EIR before the final approval for the Project was issued by the DTSC.

Petitioner also challenged the Agency’s EIR by claiming that it failed to sufficiently analyze: (1) hazards and hazardous materials, (2) traffic, circulation and parking impacts, (3) air quality impacts, (4) noise impacts, and (5) alternatives to the Project.

The matter was fully briefed by the parties and the trial court heard the case on August 30, 2006.

At that hearing, the trial court permitted live witness testimony and extensive oral argument.  Thereafter, the trial court rejected Petitioner’s argument that the Agency improperly deferred analyzing any preexisting hazards of the former landfill site to the DTSC.  Additionally, the trial court held that the Agency’s EIR complied with CEQA in all other respects (including in analyzing potential hazards and hazardous materials, traffic, circulation and parking impacts, air quality impacts, noise impacts, and alternatives to the Project).

The trial court entered judgment in favor of the City and the Agency accordingly.  Petitioner appealed that judgment (Appellate Case No. B194923).

In response to this appeal, we developed a coordinated approach with counsel for the developers of the Project to respond to the Petitioner’s arguments on appeal.  We then completed extensive briefing and oral argument in the appeal. Many detailed questions were asked of us during oral argument by the Justices about the interrelation between the DTSC and the Agency, and we carefully responded to the same.

Ultimately, the Court of Appeal affirmed the decision by the trial court in favor of the City and the Agency in a 37 page opinion that it issued on November 16, 2007.  This case represents a major victory for the City of Carson in giving a “green light” to the Carson Marketplace Project.