Tag: Infill

City of San Diego Appropriately Relied on CEQA’s In-Fill Exemption in Approving Residential Development, Although Project Less Dense than Typically Required by the general plan, Fourth District Holds

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In Holden v. City of San Diego (2019) 43 Cal.App.5th 404, the Fourth District Court of Appeal upheld the City of San Diego’s reliance on CEQA’s in-fill exemption for a seven unit residential project on environmentally sensitive land in the city’s North Park community. The court rejected plaintiff’s claim that the city erred in relying on the in-fill exemption because the project was less dense than the standards established in the city’s general plan. The court held that substantial evidence supported the city’s reliance on the exemption because the general plan, together with an applicable community plan, allowed the city to deviate from the density standards for projects in environmentally sensitive areas.

Background

In 2014, the developer applied to the city to demolish two houses and to construct seven new residential condos on a 0.517-acre site located on a canyon hillside. City staff initially informed the developer that the project did not comply with the minimum density standards for the site under the general plan and an applicable community plan. Specifically, staff determined Policy LU-C.4 of the general plan and the housing element of the community plan required a minimum of 16 dwelling units on the site. Later, however, city staff concluded that a reduced density of seven units was appropriate because the site is considered environmentally sensitive.

The city determined that the project was categorically exempt from CEQA under the infill exemption set forth in CEQA Guidelines section 15332. To qualify for this exemption, a project must be consistent with the general plan’s designations and policies. On April 18, 2017, at the planning commission’s recommendation, the city council unanimously voted to approve the project.

The petitioner filed a petition for writ of mandate challenging the city’s determination that the project is exempt from CEQA and the city’s approval of the project. The trial court denied the petition. The petitioner appealed.

The Court of Appeal’s Opinion

On appeal, petitioner contended that the city erred in finding the project is exempt from CEQA under the infill exemption because the project provides less residential density than is required by the general plan. In so arguing, petitioner relied primarily on a policy of the general plan to “‘[e]nsure efficient use of remaining land available for residential development … by requiring that new development meet the density minimums of appliable plan designations.’” The general plan recommended that residential areas designated “Medium High”—including the project site—provide multi-family housing with a density range of 30- to 44-dwelling units per acre. Because the project did not meet this standard, petitioner argued the project was inconsistent with the general plan, and, therefore, the city abused its discretion in relying on CEQA’s in-fill exemption.

The court rejected the petitioner’s argument as too rigid of an interpretation of the general plan. The court explained that the city’s determination that the project is consistent with the general plan is entitled to great weight because the city is in the best position to interpret it. The general plan consistency requirement does not require rigid conformity to the general plan. A project is consistent with the general plan if it will further the plan’s objectives and policies, and not obstruct their attainment.

Although the general plan’s density standards would ordinarily require 16 or more units on the site, the city council adopted extensive findings explaining why the project was consistent with the general plan, despite its lower density. In support of its findings, the city council cited a note in the community plan, which states that the residential density recommendations “‘may be subject to modification.’” Further, the community plan provided that modifications could be made to the recommended densities. The general plan provides that the community plans are integral components of the general plan; thus, the court held, the city appropriately considered these statements in the community plan as part of the general plan. The city council found that the project, at seven units, struck a reasonable balance of meeting the city’s housing goals, while also respecting the environmentally sensitive canyons. The city’s code limits development on steep hillsides, and the project proposed design was consistent with the city’s hillside development standards. Further, the project would provide infill residential housing, consistent with the city’s housing policies. As stated by the city council, the project’s “‘creation of seven new dwellings, where there existed two units, would assist the housing needs of the North Park area community.’”

The Court of Appeal concluded that the city’s extensive general plan consistency findings demonstrated that the city considered the general plan, the community plan, and the city’s steep hillside development regulations in approving the project and balanced the competing interest of those plans and regulations. Based on its review of the record, the court concluded that the city acted reasonably and did not abuse its discretion by balancing those competing policies and regulations to determine the project is consistent with the general plan. Accordingly, the court held that substantial evidence supported the city’s reliance on the in-fill exemption.

 

Laura Harris

Governor signs SB 743, the “Kings Arena” CEQA bill

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Signed by Governor Brown on September 27, 2013, Senate Bill (SB) 743 includes streamlining provisions to help expedite judicial review of the proposed downtown Sacramento Kings arena. The bill also affects judicial review of environmental leadership projects and procedural requirements for certain infill projects.

The bill lays out requirements for the proposed arena such as carbon-neutral operation which, if met, subject any CEQA challenges to a 270-day resolution timeframe and new rules of court. Snags may arise if the new court rules are not adopted by July 1, 2014, or if litigation precedes that date.

“Environmental leadership projects,” which are projects satisfying particular requirements related to state investment, job creation, and greenhouse gas emissions, qualify for the same 270-day resolution under the bill. SB 743 also extends by six months the period in which to obtain certification for one of these projects, so more projects may receive certification by the new deadline of December 30, 2015.

With SB 743, infill projects in transit priority areas – those near rail stations and other transportation terminals – will no longer have to account for aesthetic and parking impacts under CEQA when undergoing review, since such impacts are no longer considered significant, although any relevant local policies would still need to be considered. The Governor’s Office of Planning and Research is tasked with creating guidelines for assessing transportation impacts within priority areas.

California Natural Resources Agency moves forward with regulations for streamlined environmental review for qualified infill projects.

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On July 27th, the California Natural Resources Agency took the next step toward rulemaking for streamlined environmental review for qualified infill projects. The action proposed is to add a new section 15183.3 to the CEQA Guidelines, as well as a new Appendix M and N to the Guidelines, pursuant to SB 226 (which added Pub. Resources Code section 21094.5.5, directing the Resources Agency’s rulemaking). The written comment period will remain open until 5:00 p.m. on September 10, 2012. Two public hearings have been scheduled, the first on September 7, 2012 in Los Angeles, and the second on September 10, 2012 in Sacramento.

While existing law already permits streamlined CEQA review for qualified infill projects under SB 226, the Natural Resources Agency’s proposed guidelines would establish a process for documenting and applying SB 226’s streamlining provisions. The proposed rules also clarify the type of specific environmental review required, which may include a checklist approach, more information about the evidence standard for lead agencies, an explanation of the threshold amount of allowable environmental impact, further guidance on which additional policy documents may be used in the streamlined process, and a discussion of mitigation measures.

The proposal also details the performance standards needed for streamlining eligibility as required by SB 226 to ensure that infill development advances state policies with respect to GHG emissions, public health, and water and resource management. Overall, SB 226 and the implementing Guideline section are intended to promote infill development over greenfield development, and to make environmental review less burdensome for qualifying projects. (By Holly W. Roberson)

More information can be found at: http://ceres.ca.gov/ceqa/docs/SB226_Guideline_Updates_Notice.pdf.

 

California Supreme Court holds that exhaustion of administrative remedies is required for challenges to categorical exemptions under CEQA where public hearings are held.

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On June 14, 2012, the California Supreme Court decided Tomlinson v. County of Alameda (Case No. S188161), holding that the requirement for exhaustion of administrative remedies found in Public Resources Code section 21177, subdivision (a) of the California Environmental Quality Act (CEQA) applies to an agency’s decision that a project is categorically exempt from compliance with CEQA, so long as the public agency gives notice of the grounds for its exemption determination, and that determination is preceded by a public hearing at which members of the public had the opportunity to raise objections to the project.

In its decision the Court carefully considered conflicting holdings in Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 and Hines v. California Coastal Commission (2010) 186 Cal.App.4th 830.

Azusa held that section 21177’s exhaustion requirement does not apply to a challenge to a public agency’s decision that a project is categorically exempt from CEQA compliance, whereas Hines held to the contrary.

Procedurally, the issue is that while section 21777 requires that petitioners exhaust their administrative remedies during the public comment period or during a public hearing on the project before issuance of a notice of determination, CEQA does not provide for a public comment period prior to an agency’s determination of a categorical exemption. Further, no public hearing typically precedes the agency’s notice of determination in this situation, because a notice of determination is not generally filed for a categorical exemption.

Under Hines, an exhaustion provision does apply for categorical exemptions, where there was ample notice of a public hearing. The Court followed Hines rather than Azusa because it found that in this case, as in Hines, the agency did hold public hearings on the project which gave interested parties the opportunity to raise objections to the project before the agency’s exemption finding.

The Supreme Court did not reach the petitioners’ arguments that the public agency’s description of the requirements for the infill exemption was misleading, where the County omitted any mention of the infill exemption’s criterion requiring that the project be located “within city limits.” In Tomlinson, the County did not quote the full language in CEQA Guidelines section 15332 in any of its notices and staff reports. Instead, it substituted “in an established urban area” for the exemption’s language “within city limits” in all of its summaries of the exemption criteria in project materials. Petitioners asserted that this substitution misled and prevented them from raising the specific issue of whether the “city limits” restriction disqualified the project from using the infill exemption. The Court also did not address the argument that the petitioner’s extensive objections to the project on multiple issues at public hearings were sufficient to satisfy the exhaustion requirement.

The Court remanded the case to the Court of Appeal to determine whether the claims the petitioners raised were adequate to put the County on notice that the infill exemption did not apply, and whether the County’s omission of key criteria for a categorical exemption excuses the petitioner’s duty to exhaust on that issue.

This case continues to have important precedential value: it is still important to resolve whether an agency must provide full and accurate information in order to successfully assert the affirmative defense of failure to exhaust administrative remedies in CEQA litigation. The Tomlinson petitioners were represented by RMM partner Sabrina V. Teller.