The practice of allowing developers to pick their own consultants to prepare environmental impact reports could be abolished statewide if a lawsuit brought by opponents of an Altadena housing project succeeds.
The Friends of La Vina, a group opposed to the 272-unit housing project in the San Gabriel Valley that has won county approval, filed a lawsuit in January charging that the county policy of allowing developers to hire those who prepare the environmental reports constitutes a conflict of interest.
The case is the first legal challenge to a practice in place since the California Environmental Quality Act was passed in 1970, say land-use attorneys, environmentalists and planners familiar with the law's regulations.
Reflecting a growing concern about the issue raised in the lawsuit, many California cities and counties already have changed their policies and no longer allow developers to select the consultants for environmental impact reports, according to an official with the American Planning Assn. The City of Los Angeles, meanwhile, is considering making such a change in its procedures.
The lawsuit sparked by the La Vina project is the second recent legal challenge focusing on the county's handling of environmental impact reports. Opponents of the Paramount Ranch development in Agoura filed suit claiming that the county, in approving the project, relied too heavily on environmental reports submitted by developers and failed to conduct an independent review. A judge Friday rejected those arguments and ruled against the foes of the Agoura project.
Los Angeles attorney Deborah Bucksbaum, who filed the La Vina lawsuit, makes similar complaints about the county review process, but also contends that county planning officials violate the Environmental Quality Act at the very start of the report process by allowing developers to contract with consultants for the environmental studies.
"No one's challenged them and no court's ever told them they can't, but they're really not allowed to do that" under the law, Bucksbaum said of county officials.
Bucksbaum intends to argue in Los Angeles Superior Court later this month that the state's Environmental Quality Act requires cities and counties to ensure the objectivity of environmental impact reports by preparing them with their own staff or hiring consultants to do them. In both cases, developers would pay for the report.
County officials reject Bucksbaum's interpretation of the environmental act and stand by their practice of accepting reports directly from developers. They contend that past court rulings and the environmental act's guidelines clearly allow developers the right to submit information to public agencies--including environmental impact reports by consultants they have picked and paid for.
"This is the procedure we use and we believe it is in full compliance" with the law, said Richard Weiss, senior deputy county counsel.
Pam Holt, the county's supervising regional planner, acknowledged that under the procedure the county sometimes receives environmental impact reports that have obvious bias. "I won't lie to you, we have received EIRs that sound like a sales brochure for the project," he said. "We say, 'Nice try but that won't work.' "
But Holt said the county relies on a review process by county planners and staff from other departments to ensure objectivity for the final version of the reports. The review process and public hearings eliminate bias from the developers' environmental impact reports, Holt said, because "there are just too many people who get their shots at it . . . there are so many checks and balances."
Darlene Phillips, a private attorney representing the county in the La Vina case, agrees. "The issue is not so much who prepares the environmental impact report as the adequacy," Phillips said. "The court has said as long as there is an existing independent review, it is satisfactory."
Regardless of the outcome of the lawsuit over the La Vina project, many cities and counties have grown sensitive in recent years to the appearance of conflict of interest when developers chose their own consultants, said Al Herson, vice president of the California Chapter of the American Planning Assn. in Sacramento. Because of this sensitivity, Herson said, the trend has been for cities and counties to take control of the selection process.
Of 515 cities and counties statewide, about two-thirds in Northern California and half in Southern California now select and contract directly with the consultants, ending the developers' choice in the matter, Herson said. Developers simply reimburse cities and counties for the completed reports, he said.
"It's an appearance problem," Herson said. "The consultant is supposed to be objective and it constitutes an appearance of conflict of interest if he's working for the applicant."
City of Los Angeles planning officials are contemplating such a change out of concern that developer-issued environmental documents are not trusted by environmentalists and homeowners and that the review process takes too long. A report analyzing practices used in 30 other California cities is due soon.