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--- 105 Cal.Rptr.2d 262 ---- ELLER MEDIA COMPANY,
Plaintiff and Appellant, v. CITY OF LOS ANGELES et al.,
Defendants and Respondents. No. B142004. Court of Appeal, Second
District, Division 4, California. March 21, 2001. SUMMARY Billboard lessor sued city, seeking to have lessor's
applications for permits to erect billboard structures deemed approved under
Permit Streamlining Act (PSA) due to city and community redevelopment agency's
(CRA) failure to make any determination on those applications. The Superior
Court, Los Angeles County, No. BS060011, Dzintra Janavs, J., sustained
defendants' demurrers. Lessor appealed. The Court of Appeal, Epstein, J., held
that: (1) time for approval or disapproval of applications pursuant to PSA did
not begin to run until supplemental environmental impact report (EIR) was
prepared for first sign, or mitigated negative declaration issued for second
sign, and (2) there could be no "deemed approval" under California
Environmental Quality Act (CEQA). Affirmed. COUNSEL Richard Hamlin, Sacramento, Attorneys and Paul A.
Jacobs, Culver City, for Plaintiff and Appellant. James K. Hahn, City Attorney, Claudia McGee Henry,
Senior Assistant City Attorney, Sharon Siedorf Cardenas, Assistant City
Attorney, and John C. Cotti, Deputy City Attorney, for Defendant and Respondent
City of Los Angeles. Law Offices of Kathryn Reimann, Kathryn Reimann,
Monterey; Dov S. Lesel, and Curt Holguin, Los Angeles, for Defendant and
Respondent Community Redevelopment Agency of the City of Los Angeles. EPSTEIN, J. In this case we hold that the trial court correctly
sustained demurrers to a complaint seeking an order that applications for
permits to erect billboard structures be deemed approved. FACTUAL AND PROCEDURAL
SUMMARY Appellant Eller Media Company constructs outdoor
billboard structures for the purpose of renting to advertisers. In April, May,
and June of 1999, it applied to the Department of Building and Safety of the
City of Los Angeles (City) for permits to construct three billboard structures.
One was to be constructed on Sunset Boulevard, one on Cahuenga Boulevard, and
one on Pico Boulevard. Only the first two applications remain at issue;
appellant has received approval on the third. Both the Sunset and Cahuenga sites are within the
Hollywood Redevelopment Project area. Pursuant to Health and Safety Code
section 33372, the Community Redevelopment Agency of the City of Los Angeles
(CRA) is authorized to carry out the Hollywood Redevelopment Plan. Accordingly,
the City referred appellant's applications to CRA to determine if they complied
with the Plan. [FN1] FN1 See section 504 of the Hollywood Redevelopment
Plan: "No ... building permit, shall be issued in the Project Area from
the date of adoption of this Plan unless and until the application therefor has
been reviewed by the Agency and determined to be in conformance with the Plan
and any applicable Design for Development." Neither the City nor CRA made any determination on the
applications. On October 25, 1999, appellant filed this action seeking to have
its applications deemed approved pursuant to the Permit Streamlining Act (PSA;
Gov.Code, ' 65920 et seq.). [FN2] According to the allegations of the
second amended complaint, the charging pleading, respondents City and CRA
failed to approve appellant's billboard applications within the time limits set
out in the PSA. For that reason, appellant claimed the applications should be
deemed approved pursuant to section 65956, subdivision (b), and sought a writ
of mandate directing respondents to issue the permits. The trial court
sustained respondents' demurrers without leave to amend, and dismissed the
action. This is a timely appeal from the judgment (order of dismissal). FN2 All statutory references are to the Government
Code unless otherwise indicated. DISCUSSION The PSA was enacted in 1977 "to relieve
applicants from protracted and unjustified governmental delays in processing
their permit applications." (Bickel v. City of Piedmont (1997) 16
Cal.4th 1040, 1046, 68 Cal.Rptr.2d 758, 946 P.2d 427.) [FN3] To expedite
decisions on development projects, the PSA sets out specific time limits within
which a government agency must approve or disapprove an application for a
land-use permit. (' 65950.) If the agency fails to expressly approve or disapprove
an application within the applicable period, "the failure to act shall be
deemed approval of the permit application for the development project." ('
65956, subd. (b).) FN3 Subsequent legislation effected the holding in Bickel
concerning waiver of time limits under the PSA. (Stats.1998, ch. 283, ' 5; see Riverwatch
v. County of San Diego (1999) 76 Cal.App.4th 1428, 1439, 91 Cal.Rptr.2d
322.) That issue is not presented in the case before us. The PSA measures all time limits for final approval or
disapproval of an application in terms of the environmental review process
established by the California Environmental Quality Act (CEQA; Pub. Resources
Code, ' 21000 et seq.) A public agency must approve or disapprove a project
within 180 days from the certification of an environmental impact report (EIR);
60 days from the adoption of a negative declaration; or 60 days from a
determination that a development project is exempt from CEQA. (' 65950, subd.
(a).) Appellant alleged that CRA failed to review its applications
and failed to determine whether they should be approved within the time
limitations provided by CEQA guidelines. Appellant also alleged that the City
failed to make a determination under the provisions of CEQA as to whether
appellant's applications "are even subject to CEQA provisions, and if so,
whether they are subject to a Negative Declaration." As we have explained, the PSA measures time limits for
approval or disapproval of an application from specific CEQA actions: the
determination that a project is exempt from CEQA, the adoption of a negative
declaration, or the certification of an environmental impact report.
Appellant's allegations, and the matters judicially noticed by the trial court,
establish that none of those actions had been completed when appellant filed
its suit. Prior to hearing on the demurrers to the second
amended complaint, CRA issued initial studies for both applications. As to the
Sunset Boulevard sign, the initial study required preparation and certification
of a Supplemental EIR. For the Cahuenga Boulevard sign, the initial study
required modification of the proposal before CRA could prepare a Mitigated
Negative Declaration. Until the Supplemental EIR was prepared for the Sunset
sign, or the Mitigated Negative Declaration issued for the Cahuenga sign, the
time for approval or disapproval pursuant to the PSA did not begin to run. [FN4]
Appellant therefore cannot state a cause of action establishing a right to
have its applications deemed approved pursuant to section 65956, subdivision
(b). FN4 These actions had not been completed at the time
the demurrers were heard. Appellant also alleged that respondents failed to
issue their initial studies within the time required by CEQA guidelines. (See
Cal.Code Regs., tit. 14, ' 15102.) Unlike the PSA, CEQA contains no
"deemed approval" provision for cases where an agency fails to comply
with the time requirements for environmental determinations. (See Land Waste
Management v. Contra Costa County Bd. of Supervisors (1990) 222 Cal.App.3d
950, 962, 271 Cal.Rptr. 909; Meridian Ocean Systems, Inc. v. State Lands
Com. (1990) 222 Cal.App.3d 153, 168, 271 Cal.Rptr. 445.) contains no automatic approval provisions and its time limits are directory
rather than mandatory." (Riverwatch v. County of San Diego, supra,
76 Cal.App.4th at pp. 1440-1441, 91 Cal.Rptr.2d 322.) Imposing an automatic
approval process on CEQA is not dictated by the terms of either CEQA or the
PSA, "and is inconsistent with the obvious distinct treatment environmental
issues are accorded under the PSA...." (Id. at p. 1441, 91
Cal.Rptr.2d 322.) Allegations that the CEQA determinations were not performed
in a timely manner are not sufficient to state a cause of action for
"deemed approval" of the applications. The affirmative factual allegations in appellant's
second amended complaint establish that appellant cannot state a cause of
action establishing a right to have its permit applications deemed approved.
The trial court properly sustained respondents' demurrers without leave to
amend. Other interesting questions are presented by the
parties, including designation of the lead and responsible agency,
applicability of the PSA to a project which requires both ministerial and
discretionary approvals, and the availability of administrative remedies, but
it is not appropriate to reach them in light of our ruling on the issue we have
decided on this appeal. DISPOSITION The judgment is affirmed. CHARLES S. VOGEL, P.J., and HASTINGS, J., concur. Cal.App. 2 Dist.,2001. END OF DOCUMENT CERTIFIED FOR PUBLICATION ![]() Document URL: http://resources.ca.gov/ceqa/cases/2001/Eller_Media-2001.html Copyright © 1998 California Resources Agency. All rights reserved. |