The City of Arcadia is likely to get slapped with a lawsuit by Caruso Affiliated in the coming days, according to sources.
Scott Hettrick
The suit would come as Arcadia is still fighting off a mega-lawsuit by Westfield over Caruso Affiliated’s proposed Shops at Santa Anita.
The new suit would be regarding an unrelated request by Westfield Santa Anita to put restaurants in 13,500 square feet of vacant space designated for retail stores at its new Promenade expansion area that the mall has been unable to lease.
Sources close to the Caruso camp say the company feels Westfield is showing blatant disregard for the same level of attention and concern relative to environmental impact issues and legalities in Arcadia as Westfield and their Arcadia First! entity have established as demands for Arcadia and the Shops at Santa Anita.
Westfield Santa Anita Promenade Grand Opening May 7
We could all see this one coming for the past two months – Caruso’s lawyers even suggested as much at a couple different public hearings, the latest one being Tuesday evening. That’s when the Arcadia City Council, with a divided vote of 3-2, gave Westfield a battle victory of approval, touching off a full-scale war likely to commence this week.
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The only saving grace is that the City is not on the hook for any of the legal expenses in either lawsuit, with Caruso covering the City’s costs on the first one and Westfield obligated to do the same if the lawsuit is filed by Caruso in this matter.
But there is collateral damage all around.
Councilman Bob Harbicht gave his vote of approval begrudgingly and only after he lambasted Westfield for their “disgusting” behavior in regards to their lawsuit against Caruso that has held the City, the School District, and local residents hostage for several years already. With Westfield continuing to file even more legal appeals in that case, it will likely be at least three or four more years that we’ll be without any of the millions of dollars of much-needed sales tax revenue that would have been flowing by now from the Shops at Santa Anita, and without the office space the school district had initially counted on as a new home for the district offices being demolished to make room for a performing arts center and other new buildings.
The other two votes of approval Tuesday came from Councilman Roger Chandler and Mayor John Wuo, neither of whom is up for re-election next year. Wuo is termed out and will be leaving the Council.
Councilmen Gary Kovacic and Peter Amundson voted against approval of the Westfield request, with Kovacic suggesting there was enough question about the legalities concerning environmental law that it would be worth at least taking the steps of studying the potential impact to see what, if any, level of further reporting needed to be done to be in legal compliance. Amundson said he was uncomfortable with Westfield’s “piecemeal” approach to revising their plans.
Interestingly, Kovacic is the only current Councilman who was not on the Council during the unanimous vote of approval for the Shops at Santa Anita. And Amundson was the last to come on board.
The Council’s approval and the likely lawsuit mean that no one gets what they wanted and everyone is now embroiled in further litigation and heightened acrimony amongst all three parties.
Why did it need to go this way?
It doesn’t seem on the surface like such a big request by Westfield.
What do most of us care if there are more restaurants instead of retail space?
Wouldn’t it be best for the success of the mall and therefore taxpayers in Arcadia if Westfield filled empty space with viable businesses? After all, Westfield with its tenants is collectively the largest single contributor to sales tax revenue in the city. There are already plenty of restaurants and a food court in the mall; who cares if they add three more?
The problem is that restaurants inherently draw a different sort of customer with different tendencies than retail stores. For instance, more waste is generated by restaurants; potentially more traffic and more parking is required for restaurants, etc. (Mary Dougherty detailed numerous environmental concerns last week in her blog here at ArcadiasBest.com.)
Since early June the City Council has been grappling with this request relative to the legal issues it triggers regarding state and federal laws relative to environmental impact and potential studies and reviews that may be required. One term thrown around a lot was whether this request qualified as a “categorical exemption” and therefore did not require further environmental impact study.
That determination was up to the City Council following recommended approval of Westfield’s request by the Planning Commission and City staff.
I understand that the Council cannot and should not base their vote on the threat of a lawsuit. But there were lots of compelling legal opinions presented by both sides and some less-than-certain responses by legal counsel and Councilmen. That would seem to indicate that, at best, there are elements that are not clear-cut and could potentially be challenged successfully in court. We’ve been down this road before and are still going down this path with Westfield’s lawsuit re: Shops at Santa Anita.
So why not take the more cautious approach and vote for at least looking into a more thorough environmental review? After all, it’s no more than Westfield and Arcadia First! have strongly demanded in the case of the Shops at Santa Anita.
It’s curious (or maybe not so) why none of the members of Arcadia First! offered any public comment of concerns about increased traffic or pollution for this latest request by Westfield or, in fact, for its initial revised plan for the Promenade expansion itself right during the heat of their objections to the Shops at Santa Anita. Former Mayor Gail Marshall suggested Tuesday that just as she noted during the Shops at Santa Anita hearings when it appeared that Westfield was suggesting that Westfield traffic is good and Caruso’s traffic is bad, it appears that scenario is in play again this time around – Westfield’s expansions create no environmental impacts worth worrying about, but every single nuance of Caruso’s proposal should be challenged repeatedly in court.
I don’t know if there is really enough difference in the environmental impact of restaurants versus retail or whether the requested changes fall under the EIR of a few years ago, but it seemed like some of the City leaders weren’t 100% sure either.
So, if there’s a question or a grey area, why take a chance, especially when you’re already fending off years of challenges to a position you took relative to environmental impacts for Shops at Santa Anita that you thought were as iron-clad defensible as could be and you were unanimous in that approval? And especially when those legal challenges to Shops at Santa Anita are being raised by the very entity now asking you for approval of their own project revision without being subjected to any further environmental scrutiny?
This doesn’t have to be lowered to the level of retribution or tit-for-tat. The two issues are unrelated and should be treated accordingly. But Westfield has proven just how legally challengeable environmental law is. So, wouldn’t it be prudent to learn from that lesson and go the extra mile to cover every possible challenge? Had the Council done that, it might have meant some delays for Westfield but those delays would not have been as long as they will be held up now by a lawsuit. And most importantly, regardless of the Caruso factor, there would have been no ambiguity about whether Westfield and the City were in full compliance with environmental law.