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Photo by Debra DiPaoloMarina del Rey’s Marriott Hotel was jammed last week as hundreds of Westsiders came to hear about the massive Playa Vista development. The crowd fell silent watching documentary footage of the great blue herons, pelicans and foxes that live in the Ballona Wetlands and surrounding open space. They moaned loudly at pictures of bulldozers and gasped at the news that Playa Vista, with its 30,000 residents and 20,000 office workers, would generate more than 200,000 car trips per day. Filmmaker and Ballona activist Bruce Robertson stepped up to the podium to issue a rallying cry: “Please remember, Playa Vista is not a done deal!”
The audience roared with approval. After years of staging demonstrations and guerrilla theater, the movement to stop Playa Vista is finally reaching the mainstream. But is it too late? Just a mile down Lincoln Boulevard from the Marriott, 15-foot-tall dirt berms loom as testament to Playa Vista’s advance. It’s not just dirt that’s moving, either. On May 12, the Los Angeles City Council voted unanimously to approve $35 million in subsidies to developers Playa Capital and DreamWorks SKG for job creation at the thousand-acre project.
Yet despite the public financing, the official approvals and the late arrival of popular opposition, this could yet prove a long and tortuous summer for the would-be builders of Playa Vista. The real action is expected to take place in the state and federal courts, where hearings and decisions are scheduled on a series of related lawsuits.
On June 29, lawyers for three of the environmental organizations that make up the 90-group coalition Citizens United to Save All of Ballona will appear in Los Angeles Superior Court to argue for a preliminary injunction to stop construction at Playa Vista. Wetlands Action Network, the Southwest Center for Biological Diversity, and California Public Interest Research Group (CalPIRG) want the injunction pending trial of a sweeping civil lawsuit alleging that Playa Capital and DreamWorks violated numerous municipal, state and federal environmental laws and permit requirements.
Malibu-based Wetlands Action Network also filed a second suit in state court alleging that the city of Los Angeles violated state law by issuing the final "tract map" required to subdivide parts of Playa Vista even though the developer had not met the city’s legal requirements concerning storm-water drainage. Finally, in a case that could bear on both of the state suits, the federal 9th Circuit Court of Appeals is expected to rule on a June 1998 decision by a federal district judge revoking dredge-and-fill permits issued by the Army Corps of Engineers to drain wetlands and build the storm-water flood-control system for the whole development.
The case to be heard on the 29th involves a number of allegations. By photographing just where Playa Capital’s bulldozers and graders have cleared the ground and comparing those photographs to Los Angeles grading permits, the environmental plaintiffs claim to have discovered numerous violations — including bulldozing in areas west of Lincoln Boulevard for which no permits were issued. A second count says Playa Capital illegally constructed a road, or "haul route," on land west of Lincoln Boulevard without first asking for an amended permit from the California Coastal Commission — necessary since half the 1,087 acres at Playa Vista are in the coastal zone. And the developers are accused of violating the federal Water Pollution Control Act because they never submitted plans to the Regional Water Quality Control Board to prevent polluted storm-water runoff during construction.
The environmentalists also claim that several federal and state permits Playa Capital and DreamWorks have been using to bulldoze Ballona have been invalid since last year’s federal decision rescinding permits for dredging and filling wetlands. Permits from the California Coastal Commission, the Department of Fish and Game, and the Regional Water Quality Control Board all make extensive references to the necessity of Playa Vista’s planned 51-acre storm-water retention and drainage system (what the developers call a "fresh-water marsh" and "riparian corridor"). Environmentalists say that when developers lost their federal permits to drain and fill 16.1 acres of wetlands to build this drainage system, then all other permits conditioned on this system were rendered invalid.
The Superior Court suits point up just how important the federal 9th Circuit’s decision will be. If the appeals court overturns the federal district court ruling and restores Playa Capital’s dredge-and-fill permits, then half the charges brought by the three environmental plaintiffs, and most of the charges against the city for allowing Playa Capital to begin subdividing the property, would be moot.
But if the appeals court upholds the decision rescinding the permits, then the legal chess game becomes more complex. District Judge Ronald S. Lew found last year that the Army Corps of Engineers had issued permits on the basis of a cursory Environmental Assessment, rather than a much more detailed Environmental Impact Statement (EIS), which requires that alternative project designs be analyzed. The judge criticized the Corps for not studying the environmental impacts of the whole Playa Vista development on federally protected wetlands, and for not analyzing how runoff from Playa Vista would affect the proposed freshwater marsh. "The Corps should have analyzed the entire project as functionally interdependent," wrote Judge Lew.
But the injunction Lew issued stopped construction only on 16.1 acres reserved for the storm-water treatment system, not the entire project. Consequently the plaintiffs have asked the appeals court to broaden the injunction to stop all construction while a full-scale EIS is prepared. Their attorney, Steve Crandall, argues that "If these construction activities are allowed to continue while an EIS is being prepared, then the remaining wetlands will become hopelessly fragmented, isolated and destroyed, the remaining project alternatives will be eliminated, and the entire NEPA process [federal environmental review] will be rendered meaningless since the massive project will be built before the required analysis is done."
A full EIS for Playa Vista could take two years to complete — the sort of delay that could scramble financing for the development. In addition, a full EIS might find additional wetlands. The project would then have to protect them, or to create new wetlands nearby as mitigation.
If the appeals court chooses a middle course, upholding Lew’s ruling on storm-water treatment without halting construction on the whole project, then, as Crandall predicts, conducting an EIS seems unlikely to bring any significant change in Playa Vista. Still, revocation of the dredge-and-fill permits could strengthen the claims pending in state court. State verdicts requiring Playa Capital and DreamWorks to restore Ballona while reapplying for state and federal permits to develop the property might destabilize the project.
Playa Vista’s developers say they’re ready to handle whatever rulings might issue from state court. "In the unlikely event that any of their current lawsuits succeed," said David Herbst, vice president of Playa Capital, "we have contingency plans ready for submission to the city of Los Angeles that will allow Playa Vista to proceed." Herbst was referring to a new "covenant agreement" between the city and Playa Capital. Gordon Hamilton, deputy director of planning for Los Angeles, calls the covenant "a contingency protection plan that would allow the city to go in and design and build a new storm-water system." It would be financed by proposed Mello-Roos bonds for Playa Vista (project-backed tax-exempt bonds which will be used to build the infrastructure for the development).
Crandall doubts that, if upheld in the courts, the Ballona lawsuits can be so readily outflanked. "I don’t know if that covenant is legally valid," says Crandall. "There’s a million questions you can ask, and they are all legitimate fodder for a lawsuit."
New delays and new studies would also open the door to new political opposition — especially from the Santa Monica City Council, where the election of Richard Bloom this spring gave opponents of Playa Vista a solid majority. Already the council has asked the city attorney to re-examine a previous agreement in which Santa Monica accepted $1.2 million from the developers as mitigation for increased traffic from Phase I. City officials are also researching legal options in opposing Phase II development west of Lincoln Boulevard. "We have asked our staff to challenge Los Angeles on regional loss of open space," says Councilman Mike Feinstein.
For years, the activists opposed to Ballona relied on the courts as their last defense against unfettered development. But the new tone on the Santa Monica council, and the crowd at the Marina last week, suggest a dramatic shift in public concern. This summer's court rulings could stymie large-scale development at Ballona, but with public opposition growing, legal victories for Playa Vista could now represent the project's last, best chance to move forward.