Despite a universal wave of neighborhood opposition, the South Pasadena City Council on Feb. 17 upheld permits for a private extension of South Pasadena’s Moffatt Street that will serve a cluster of seven luxury homes to be built just over the city line in El Sereno. In the end, Council members said they felt legally bound to approve a project their constituents fervently oppose.
Newport Beach-based Planet Home Living has spent 11 months defending the street extension through four Planning Commission and three City Council meetings in South Pasadena. One of its principal concessions was to provide access to the new portion of Moffat from Lowell St, which is in Los Angeles instead of connecting it to the existing portion of Moffat, which is in South Pasadena. But its work has only now begun as the newly approved South Pasadena hillside development and tree removal permits are prerequisites to the housing permits it must now get from Los Angeles.
City Attorney Teresa Highsmith said the Council could reject the permits only if it could identify specific facts in the record showing the Planning Commission’s findings were incorrect. “There are liability issues for the city, should it refuse to grant the permit.”
Highsmith rejected the neighbors’ assertion that the city’s environmental review was legally flawed. She said the housing development is controlled by the City of Los Angeles, which deemed it “ministerial.” That means the road project qualifies as categorically exempt from the California Environmental Quality Act and cannot be considered as “cumulative,” or as an act of “illegal piecemealing.” Moreover, the matter before the Council was only the construction of the private road — along an access easement to which the developer’s title is undisputed — making it a mere “street improvement” that is also exempt from CEQA.
There was also a dispute among the parties over what the easement does and does not allow the developer to do. That however, “is beyond the ability of this Council to adjudicate,” Highsmith said. It can only be resolved by a court and the city’s obligation is only to process the permit application.
There is a related unresolved question over whether the city misplaced a document with dispositive information about the city’s controversial 1962 vacation of Moffatt Street and what easements were granted. Neighbors at the time threatened to sue the city for fear the parcels, now owned by Planet Home Living, would be landlocked.
Planet Home Living did not respond to a request for comment on the final vote.
Appellant Micah Haserjian, who owns the home most adversely affected by the road project, told the South Pasadenan News he will sue the city over alleged piecemealing and CEQA exemption violations. He and his partner Brenda Contreras Haserjian — backed by a legal opinion from Pasadena attorney Mitchell Tsai — argued the proposed houses don’t qualify for the exemptions because of the number of domiciles and square footage they represent.
“We have given the city several valid findings that they could have used to deny the project, yet they still seem to be at the mercy of their city attorney,” he wrote in an email. “The fact that the city changed the original design to route all future traffic and construction to City of Los Angeles streets (and claims that this is the main reason the alternative design is better) also shows their racist, utter disregard for the residents of El Sereno.”
The Council received significantly more public comments on the Moffat extension than on any other issue in well over a year. It also got letters from County Supervisor Hilda Solis and LA City Council Member Kevin de Leon. De Leon said folks contacting him had concerns “around potential piecemealing of environmental impacts” should the City of LA ever grant the developer permits for the houses. He asked for a commitment from the City to share all determinations and studies so authorities on both sides of the border will have the same information.
Solis, whose letter came late last year, asserted zoning in El Sereno was set to be reevaluated by the end of 2020 and so advised caution. But during the Council meeting, city staff reported that after consulting with LA Planning and Solis’ office, it was concluded the zoning evaluation is not set to commence until mid-2022.
Planning and Community Development Director Joanna Hankamer said no less than three of the conditions South Pasadena is imposing on the developer are aimed at coordination with Los Angeles: the street improvement plan won’t be OK’d until Los Angeles has approved connecting Moffat to Lowell Street; before South Pasadena will issue a grading permit, the developer must secure permits from Los Angeles for at least four of the seven houses; and both cities must approve of the name of the new private road.
Fourth District Council Member and attorney Michael Cacciotti said the city made every effort to explore options, including a long meeting with staff, Solis and de Leon. “I’ve come to the end. There is nothing else I feel we can do. I really don’t think we can make the findings. I feel for the El Sereno residents, but they are not going to have to pay the legal bills.”
Third District Council Member Jon Primuth, also an attorney, said he checked the case law and found public agencies have repeatedly tried to get around the categorical exemptions by imposing CEQA obligations or environmental impact reviews on developments that are exempt, “only to lose at the Court of Appeals.” Were it to deny the permits, the city would be going down that same path, he said. “My job is not to put the city in legal jeopardy.”
“Legally it seems we are without recourse to do anything other than to deny the appeal,” agreed Mayor Diana Mahmud, also an attorney. The fact that Los Angeles approved the parcel map for the area nearly a century ago gives that city ministerial rights to approve, which means there is no discretionary act, so no CEQA analysis.”
She once again strongly urged the developer to make use of the interest of the El Sereno Land Trust to work out a deal to rededicate one of the proposed houses as a pocket park –preferably the one nearest the Haserjians’ home — as a means to curry favor with the neighbors, whose opposition “will not evaporate,” she warned.