Archives: October 2018

First District Court of Appeal Allows City to Recover Costs of “Extracting” and Producing Video Recordings Requested Under the California Public Records Act

On September 28, 2018, the First District issued its decision in National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937.* Concluding that the trial court misinterpreted applicable provisions of the California Public Records Act (CPRA), the appellate court reversed the trial court’s decision to issue a writ directing the City of Hayward to refund the National Lawyers Guild for payments that the Guild made to cover the city’s costs in producing videos responsive to the Guild’s request for public records.

In January 2015, the Guild served the city with requests for public records relating to a demonstration in Berkeley protesting police violence. The city’s police department provided security for the demonstration that was held in December 2014. In response to the Guilds’ CPRA request, the city provided the Guild with over 200 public records, including six hours of police body camera videos from the Berkeley demonstration. In May 2015, the city sent the Guild an invoice for $2,939.58 to cover the costs incurred by city employees in preparing the videos for production, including editing the videos to redact exempt material. The Guild paid this first invoice under protest and submitted another request for a second set of videos. The city informed the Guild that the second set of videos could be produced for a cost of $308.89. The Guild paid the second invoice, but not before it filed a petition for writ of mandate seeking a refund of what it had paid to the city.

The trial court concluded that Government Code sections 6253 and 6253.9 do not permit the city to charge a public records requester for costs incurred in redacting material from a video that is a public record. After the trial court ruled in favor of the Guild, the city appealed.

The appellate court began with an overview of the statutory framework and public policies behind the CPRA. Then the court focused on the plain language in Section 6253 and Section 6253.9, subdivision (b)(2). The main dispute between the city and the Guild centered on the term “extract” in Section 6253.9, subdivision (b), which provides: “the requester shall bear the cost of producing a copy of the record” when compliance with the request for an electronic record “would require data compilation, extraction, or programming to produce the record.” (Gov. Code, § 6253.9, subd. (b).)

The court decided that it must consider legislative history because it was not clear from the statutory text what the Legislature intended. Based on various documents that the court judicially noticed for purposes of the appeal, the court concluded that lawmakers drafted Section 6253.9(b) to “expand the circumstances under which a public agency could be reimbursed by a CPRA requester to include” a scenario where “the agency must incur costs to acquire and utilize special computer programming (e.g., the Windows Movie Maker software) to extract exempt material from otherwise disclosable electronic public records.” The court reversed the trial court’s judgment, allowing the city to recover the costs it incurred in providing the Guild with redacted videos.

*Review granted, December 19, 2018.

First District Finds CEQA Claim Timely Filed in Case Challenging Approval of Tree Removal

In Save Lafayette Trees v. City of Lafayette (Oct. 23, 2018, A154168)* ___ Cal.App.5th___, the First District Court of Appeal held that the 90-day statute of limitations period set forth in the Planning and Zoning Law did not apply to petitioners’ CEQA cause of action. Therefore, although the trial court correctly granted the demurrer to petitioners’ Planning and Zoning Law claim, the trial court erred in dismissing petitioners’ CEQA claim.

The case involves the City of Lafayette’s approval of an agreement with Pacific Gas and Electric Company (PG&E) authorizing the removal of up to 272 trees within PG&E’s natural gas pipeline rights-of-way. City staff and PG&E disagreed as to whether PG&E was required to comply with the city’s tree protection ordinance. Rather than requiring PG&E to comply with the city’s tree protection ordinance, however, the city agreed to allow PG&E to remove the trees under a provision of the Lafayette Municipal Code allowing removal of protected trees “to protect the health, safety, and general welfare of the community.”

Petitioners filed a lawsuit challenging the city’s approval of the tree-removal agreement. The petition alleged that the city failed to comply with the Planning and Zoning Law and CEQA in approving the agreement. It also alleged that the city violated the petitioners’ due process rights by failing to give sufficient notice of the hearing at which the agreement was approved.

PG&E filed a demurrer, in which the city joined, asserting that the petition was barred by Government Code section 65009, subdivision (c)(1)(E), which requires that an action challenging a zoning permit be filed and served within 90 days of the decision. The trial court sustained the demurrer without leave to amend, finding that the petition had not been served within the 90-day filing and service period. Based on this, the trial court dismissed the petition in full.

The Court of Appeal agreed with the trial court that petitioners’ Planning and Zoning Law claim was time-barred because petitioners had not served the petition within 90 days, as required by Government Code section 65009, subdivision (c)(1)(E). Government Code section 65009 applies to “any decision” by a legislative body regarding a permit. Although the approval of the agreement was not labeled a “permit,” it was, in effect, a permit authorizing the removal of trees, so section 65009, subdivision (c)(1)(E) applied. Although section 65009’s legislative findings discuss the need for a short limitations period to provide certainty to housing developers, nothing in section 65009 restricts its application to decisions involving houses. The longer statute of limitations found in the city’s Municipal Code did not apply because the shorter limitations period of the Government Code preempted that of the city’s code. Because the due process cause of action derived from the Planning and Zoning Law, the 90-day statute of limitations under the Planning and Zoning Law also barred petitioners’ due process claim.

The 180-day statute of limitations found in Public Resources Code section section 21167.6, subdivision (a), applied to the CEQA cause of action. Because the petition had been filed and served within that time, the trial court erred in dismissing the CEQA claim. Because the CEQA limitations period was twice as long as that of the Government Code, the two statutes of limitations could not be reconciled. Therefore, the statute of limitations under the Planning and Zoning Law did not control the CEQA cause of action.

*Previously published at: 28 Cal.App.5th 622, Rehearing Granted, Opinion Not Citeable November 26, 2018.

Fourth District Court of Appeal Declines Invitation to Invalidate CEQA Guidelines Section 15164, Affirming Agency’s Ability to Rely on Addendum to an EIR

The Fourth District Court of Appeal found that the addendum process under CEQA Guidelines section 15164 fills a procedural gap in the statute and is not invalid. The court also ruled that Public Resources Code section 21081 findings are not required again with an addendum. (Save Our Heritage Organisation v. City of San Diego (2018) 28 Cal.App.5th 656.

The City of San Diego certified an EIR and approved a project in 2012 to restore pedestrian and park uses to portions of Balboa Park. Save Our Heritage Organisation (SOHO) filed a petition for writ of mandamus challenging the project. The superior court granted the petition and directed the City to rescind the project approval. The Real Party in Interest and SOHO each appealed the judgment, and the court of appeal reversed the trial court’s judgment and upheld the EIR. The Real Party in Interest filed a motion seeking an award of attorney fees, which the trial court denied and the appellate court affirmed.

While the appeals were pending, several physical changes occurred to the project’s environmental setting. In 2016, the City adopted an addendum to the EIR to address modifications to the project. The addendum concluded that:

  1. There were no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects;
  2. There were no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and
  3. There was no new, previously unknown or unknowable, information of substantial importance showing: (a) the project will have significant effects not discussed in the EIR; (b) the project will have substantially more severe significant effects than shown in the EIR; (c) previously infeasible mitigation measures and project alternatives are now feasible and would substantially reduce significant environment effects; or (d) considerably different mitigation measures than analyzed in the EIR would substantially reduce significant environmental effects.

The City incorporated these findings into its resolution adopting the addendum.

CEQA Guidelines Section 15164

The court found that SOHO did not meet its burden of proof to show that CEQA Guidelines section 15164, which allows for preparation of addenda, is invalid. The court explained the difference between quasi-legislative rules (those in which the Legislature has delegated a portion of its lawmaking power) and interpretive rules (those in which an agency interprets a statute’s meaning and effect). Although the California Supreme Court has not ruled on which category applies to the CEQA Guidelines, the court explained that such a distinction was not necessary to make here because, either way, SOHO did not establish that section 15164 is invalid.

The court determined that Guidelines section 15164 is both (1) consistent and not in conflict with CEQA; and (2) reasonably necessary to effectuate the purpose of CEQA.

The court explained that the Resources Agency promulgated Guideline 15164 to implement Public Resources Code section 21166, which describes the circumstances under which an agency must conduct subsequent or supplemental review. That section, explained the court, creates a presumption against further environmental review once an EIR has been finalized. And, although section 21166 does not expressly authorize an “addendum,” the court explained that Guidelines section 15164 fills in the gap for CEQA projects where there is a previously certified EIR that should be revised, but the conditions that warrant preparation of a subsequent EIR under section 21166 are not met. Furthermore, the court said, Guidelines section 15164 is consistent with and furthers the objectives of section 21166 because it requires an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review.

The court also explained that the absence of a public review process for an addendum does not render Guidelines section 15164 inconsistent with CEQA. Instead, the absence of public review reflects the finality of adopted EIRs, and the proscription against further environmental review except in specified circumstances in section 21166. In addition, the court pointed to the analogous requirement that a Final EIR must be recirculated before certification only where revisions add significant new information. Finally, the court emphasized that the Resources Agency first promulgated Guidelines section 15164 in 1983, and the Legislature has not modified CEQA since then to eliminate the addendum process.

Findings Required Under Section 21081

SOHO argued that the City was required to make new findings under section 21081, but the court disagreed. Section 21081 provides that a public agency shall not approve or carry out a project for which an EIR has been certified unless the agency makes specific findings with respect to identified significant effects. The court explained that neither the Code nor the Guidelines suggests new findings are required when an addendum is prepared. And, the court explained, the only purpose of findings is to address new significant effects, but an addendum is only proper where no new significant environmental impacts are discovered. Where there are no new significant impacts, there is no need for findings. Therefore, the court held, findings are not required for an addendum.

Second District Upholds City’s Interpretation of Its Charter Allowing General Plan Amendment for Transit Oriented Development Project

In Westsiders Opposed to Overdevelopment v. City of Los Angeles et al.(2018) 27 Cal.App.5th 1079, the Second District Court of Appeal upheld the trial court’s conclusion that the City of Los Angeles did not misinterpret its City Charter when it amended its general plan to change the land use designation of a nearly five-acre parcel for a transit-oriented development project on the west side of the city.

In 2015, Real Parties in Interest, Dana Martin, Jr., Philena Properties, L.P. and Philena Property Management, LLC (Philena) applied to develop a mixed-use, transit oriented development project on a former car dealership site of approximately five acres. The site is on the corner of Bundy Drive and West Olympic Boulevard in West Los Angeles, less than 500 feet from a new light rail station. As part of its application, Philena requested that the City change the site’s general plan land use designation from light industrial to general commercial, and several other entitlements. The City prepared an EIR for the project and in September 2016, approved the project and the general plan amendment. Appellant, Westsiders Opposed to Overdevelopment sued, challenging the amendment under City Charter section 555, subdivisions (a) and (b).

Los Angeles City Charter section 555 governs general plan amendments in the city. Relevant here, subdivision (a) allows the plan to be amended “by geographic areas, provided that the … area involved has significant social, economic or physical identity.” Subdivision (b) of that section states, in pertinent part, that “[t]he Council, the City Planning Commission or the Director of Planning may propose amendments to the General Plan.” Westsiders argued that both of these provisions prevented the City from approving the amendment in this case. Westsiders alleged that the general plan could not be amended for a single project or parcel because a single parcel did not qualify as a “geographic area” with “significant social, economic or physical identity” as required by section 555, subdivision (a). Petitioner also argued that, by requesting the general plan amendment, Philena had effectively “initiated” the amendment in violation of section 555, subdivision (b), which restricts the authority to start that process to the council, planning commission or planning director. The trial court denied the petition and found that the city did not exceed its authority under its charter in approving the amendment in this case. Westsiders appealed.

The court of appeal found that, because the challenge was to the city’s amendment of the general plan, Government Code section 65301.5 required that the city’s action be reviewed under Code of Civil Procedure section 1085, governing traditional mandamus. In doing so, the court rejected Westsiders’ argument that, because the general plan amendment was for a single project and parcel, review should be under Code of Civil Procedure section 1094.5, governing administrative mandamus. In discussing the appropriate standard of review, the court recognized that charter cities are presumed to have power over municipal affairs, and that any limitation or restriction on that power in the charter must be clear and explicit. The court also stated that, while construing the charter was a legal issue subject to de novo review, the city’s interpretation of its own charter is entitled to great weight unless it is clearly erroneous, and must be upheld if it has a reasonable basis.

In interpreting the charter, the court found that the plain meaning of the terms “geographic area” and “significant social, economic or physical identity” did not contain any clear and explicit limitation on the size or number of parcels involved in amending the general plan by geographic area. The court rejected Westsiders’ request for judicial notice, which contained several documents that Westsiders claimed were legislative history showing that the voters had intended to include such a limitation. The court also rejected Westsiders’ argument that, in considering whether a geographic area has “significant social, economic or physical identity” the city may not consider the proposed project and future uses of the site. The court found that the city’s determination that the site had significant economic and physical identity because it was one of the largest underutilized sites with close proximity to transit in West Los Angeles, and that the project would be the first major transit oriented development met the requirements of Charter section 555, subdivision (a). The court also pointed out that not every lot in the city would necessarily meet the requirements of the charter and qualify for a general plan amendment.

Interpreting Charter section 555, subdivision (b), the court rejected Westsiders’ argument that, by filling out a land use application requesting that the city amend the general plan, Philena had improperly “initiated” the amendment in violation of the charter. Similar to its analysis of subdivision (a), the court found that section 555, subdivision (b) did not contain a clear and explicit limitation on who could request that the city amend the charter. The court also stated that city followed the procedures required by the charter because, after Philena made its request, it was the planning director who formally initiated the amendment process.

Next, the court found that, because amending the general plan is a legislative act, the city was not required to make explicit findings to support its decision. The court rejected Westsiders’ argument that the city was required to make findings that “bridge the analytical gap between the raw evidence and ultimate decision” in this case (quoting Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515). The court found that this requirement did not apply to legislative acts, such as the amendment of the general plan. The court also rejected Westsiders’ argument that the city’s use of the word “unique” in discussing the site’s identity (as opposed to “significant”) made its “findings” inadequate. The court found that the city’s analysis showed that the site had significant economic and physical characteristics and met the requirements of section 555, subdivision (a).

Lastly, the court rejected Westsiders’ argument that the city impermissibly “spot-zoned” the project through the general plan amendment. The court found that Westsiders had failed to raise this argument in the trial court and was thus barred from raising it on appeal. The court affirmed the trial court’s judgment dismissing the petition for writ of mandate.

Fourth District Finds San Diego County’s Climate Change Guidance Document Contains Improperly Adopted Thresholds of Significance that Violate CEQA and a Previously Issued Writ of Mandate

In Golden Door Properties, LLC v. County of San Diego (2018) _ Cal.App.5th _ (Case No. D072406—consolidated with Case No. D072433), Division One of the Fourth District Court of Appeal upheld the trial court’s determination that the County of San Diego’s “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document” (“2016 GHG Guidance”) was ripe for adjudication, constituted piecemeal environmental review, and contained an improper threshold of significance, in violation of CEQA and a previously-issued writ of mandate.

In 2011, the county updated its general plan. The Environmental Impact Report for the update incorporated mitigation measures to address greenhouse gas emissions from county operations. Two such measures are at issue here. First, Mitigation Measure CC-1.2 required the county to prepare a Climate Action Plan (CAP), and to adopt GHG emission targets and deadlines for achieving the targets. Second, Mitigation Measure CC-1.8 required the county to revise its guidelines for determining GHG significance based on the CAP. The county adopted a CAP, which was set aside when the court granted a petition for writ of mandate filed by the Sierra Club. While that case was on appeal, the county adopted the “2013 Guidelines for Determining Significance for Climate Change” (“2013 Guidelines”). Sierra Club challenged the 2013 Guidelines through a supplemental petition, which the parties stipulated to stay pending the appeal. In 2014, the court of appeal upheld the trial court’s decision to set aside the CAP. On remand, the trial court issued a supplemental writ directing the county to set aside both the CAP and the 2013 Guidelines and retained jurisdiction to ensure compliance.

In 2016, while in the process of developing the CAP, the county published the 2016 GHG Guidance. In one section, the county stated that it represented “one potential set of criteria and methodologies, along with supporting evidence that would be appropriate for Climate Change Analysis,” while in another section it stated that “[t]he County Efficiency Metric is the recognized and recommended method by which a project may make impact significance determinations.” Sierra Club filed a second amended petition in the trial court, and Golden Door Properties, LLC filed a separate challenge to the 2016 GHG Guidance. The cases were consolidated through a stipulation and the trial court determined that the claims were ripe, that the 2016 GHG Guidance created a threshold of significance, violated Mitigation Measures CC-1.2 and CC-1.8, was not supported by substantial evidence, and violated the previous writ of mandate because it constituted piecemeal review. The county appealed.

First, the court addressed the issue of ripeness. The county argued that the action was not ripe because it was still developing the CAP and because the controversy did not involve a specific set of facts (that is, no project using the 2016 GHG Guidance to perform Climate Change Analysis had been challenged). The court disagreed, finding that the situation here involved a threshold of significance that would “be used routinely to determine environmental effects…” and thus generally applicable. The court distinguished Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158 because that case involved a challenge to policies in a guidance document, under which the Commission might impose certain permit conditions should any of the landowner/plaintiffs apply for such a permit. The court found that, although the 2016 GHG Guidance acknowledged that other methods for determining significance may apply, the efficiency metric was stated to be “the recognized and recommended method” for determining GHG significance, making it generally applicable and thus justiciable.

The county argued that the 2016 GHG Guidance did not set a threshold of significance, but instead, provided a recommended method for evaluating GHG emissions. The court disagreed and found that, because the 2016 GHG Guidance provided one “recognized and recommended” efficiency metric to measure the significance of a project’s GHG emissions, the efficiency metric was a threshold of significance. That the county’s 2013 Guidelines were more explicit than the 2016 GHG Guidance did not make the efficiency metric any less of a threshold of significance. The court found that the metric violated CEQA because the county had failed to follow the adoption procedures for such thresholds laid out in CEQA Guidelines section 15064.7, which required formal action by the county after a public review period. The court also found that Mitigation Measure CC-1.8 required the county to adopt the CAP before updating its guidance documents because Measure CC-1.8 required the updated guidance to be based on the CAP.

The court also found that the threshold of significance was not supported by substantial evidence. Specifically, the court held that the county needed to support the efficiency metric with substantial evidence establishing a relationship between the statewide data used to establish the metric and the county’s reduction targets. The 2016 GHG Guidance stated that the efficiency metric represented the county’s “fair share” of statewide emissions mandates, but did not explain why that was so. Additionally, the efficiency metric was recommended for all projects, but the 2016 GHG Guidance did not explain why the efficiency metric (based on service population) would be appropriate across all project types.

The court also agreed with the plaintiffs that the county had “piecemealed” its environmental review because the 2016 GHG Guidance preceded the completion of the CAP. The county argued that, because the CAP was on schedule to be released in compliance with the previous writ, the 2016 GHG Guidance did not violate the writ. The court applied the law-of-the-case doctrine and stated that its previous decision held that the CAP and the updated county guidance were a single project for CEQA purposes. For that reason, the CAP and updated guidance must be publicly reviewed and adopted by the county together. Because the CAP had not been adopted when the 2016 GHG Guidance was issued by the county, the 2016 GHG Guidance violated the writ.

 

First District Holds that Claims that Could Have Been Raised in Prior Litigation Are Barred by the Doctrine of Res Judicata

In Atwell v. City of Rohnert Park (2018) 27 Cal.App.5th 692,  the First District Court of Appeal upheld a lower court’s ruling in favor of the respondent city on a motion for judgment on the pleadings, finding that petitioner’s claims were barred by the doctrine of res judicata. The First District’s opinion, not originally slated for publication, held that subsequent individual petitioners were in privity with the Sierra Club in a prior suit, that the same claim of inconsistency with the general plan could have been raised in that prior suit, and the public interest exemption to the doctrine of res judicata did not apply in the circumstances of the instant case.

In 2010, the city certified an EIR and related approvals for Walmart to expand an existing store to include a 24-hour supermarket. The city found that the project was consistent with its General Plan’s Policy LU-7, concerning land use for grocery stores. Sierra Club filed suit in 2012 under the California Environmental Quality Act (CEQA) and the state Planning and Zoning law (“Sierra Club action”). While Sierra Club raised the general plan consistency issue in its initial pleading, it did not argue it in its briefing. The court in the Sierra Club action consequently did not address the issue in its decision invalidating the EIR.

The city prepared a revised EIR in 2015, but it did not alter the consistency analysis involving Policy LU-7. The city subsequently reapproved the project. In its 2015 findings, the city stated that the project was even more consistent with Policy LU-7 than before, as it would serve several neighborhoods that were now coming online in the store’s vicinity. Petitioners in the instant action, who had not participated in the prior Sierra Club action, filed this suit. The city successfully moved for a judgement on the pleadings, and this appeal followed.

Following a final judgment on the merits, the doctrine of res judicata bars a party, and persons in privity with that party, from relitigating a claim that was actually litigated or that could have been litigated in the prior action. At issue is whether the current petitioners are in privity with Sierra Club, and if the general plan consistency claim was litigated in the prior action.

The court concluded that the two petitions raised the same general issue, as both alleged inconsistencies with the same general plan policy. The court considered it irrelevant that Sierra Club did not argue this issue in its briefing, even though it raised it, as res judicata extends to claims that could have been litigated, even if they weren’t.

In reaching this decision, the court dismissed the petitioners’ argument that the claims were different because they challenged the newer 2015 findings. For purposes of res judicata, plaintiffs have suffered the same injury when the same primary right is at stake, even if there are different theories of recovery, different forms of relief sought, or if there are new facts supporting recovery. The court distinguished the instant case from other decisions in the land use and CEQA context, where the second suit was a factually-distinct attempt to comply with CEQA and concerned distinct episodes of noncompliance. That was not the case here. Even though the city’s 2015 resolutions were “new” and revisions were made to other sections of the EIR as a result of the Sierra Club action, the court decided that the later petition did not raise concerns about those revisions, and those revisions were unrelated to Policy LU-7.

The court found that the instant and previous parties were in privity, even though the later petitioners were unaffiliated with Sierra Club, did not otherwise coordinate with or collaborate with the Sierra Club, did not participate in the prior suit, and were seeking redress for both public and private harms.

A nonparty is in privity with a prior party if they have an interest so similar to that party’s interest that the party acted as the nonparty’s virtual representative in the first action, such that the nonparty can reasonably expect to be bound by the prior decision. The actual relationship between the parties is not the key question, but rather, those entities’ relationship to the subject matter of the litigation.

Here, both appellants’ petition and the prior petition alleged claims as members of the public and harms that would be suffered by the community. The petitioners failed to distinguish the harms that they would suffer, directly or indirectly, from the harms alleged in the Sierra Club action, nor could the court find meaningful distinction.

The petitioners were adequately represented in the prior suit, even though Sierra Club ultimately decided not to pursue the general plan consistency claim. Lack of adequate representation has been found when the prior petitioner abnegated its role as a public agent, committed a procedural error that prejudiced the outcome, or lacked the funding to pursue the claim. There was no such evidence in this case. The court therefore assumed that the Sierra Club diligently litigated their petition, and made an informed decision not to pursue the consistency argument. The current petitioners were bound by this tactical decision.

The court rejected the petitioners’ argument under the public policy exception. The public policy exception holds that when the issue is a question of law rather than of fact, the prior determination is not conclusive either if injustice would result or if the public interest requires that relitigation not be foreclosed. The petitioners argued that they raised a unique and important issue of statutory construction. But this situation was not a question of law regarding statutory interpretation. Rather, at issue was the interpretation of an ordinance as applied to a project approval. Such a claim inherently requires the court to consider the facts and circumstances surrounding the project, and not just questions of law.

Finally, the court stated that even if the claims were not barred by res judicata, the city’s finding of consistency was not arbitrary and capricious. The city had discretion to interpret its own policies, and could determine that the project would meet that policy’s goal of creating neighborhood-serving supermarkets.

Claims Raised by Environmental Groups Barred by Res Judicata, Fourth District Rules

In Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, the Fourth District upheld a lower court’s ruling sustaining the city’s demurrer without leave to amend, finding that the petitioners’ claims under CEQA and the Water Code were barred by the doctrine of res judicata.

This action relates to a proposed development pending in various permutations for decades in the Highland Hills area of San Bernardino. In 1982, the city approved a specific plan and EIR for the project. The EIR was promptly challenged by a homeowners association, one of the same petitioners in this case. The parties resolved the suit through a settlement agreement. A later addendum to the agreement stipulated that if future project modifications met specified criteria (i.e., did not increase the level of development or result in greater impacts), then those changes would be considered “minor modifications.” Minor modifications would not be subject to additional CEQA review.  The project was not built at that time.

In 2014, the original developers’ successors in interest wanted to proceed with the project. The city approved the project, agreeing that proposed modifications were minor, and did not require further environmental review. The HOA sued (the related action). Respondents requested and received a court order confirming that the modifications complied with the terms of the settlement agreement, were minor in nature, and that no further CEQA review was required.

This suit was then brought by the original petitioner, the HOA, and joined by two environmental groups (CREED-21 and Inland Oversight Committee). Petitioners asserted that the project as modified violated CEQA and the Water Code.  Respondents successfully moved for a demurrer without leave to amend. This appeal followed.

The court ruled that the petitioners’ claims were barred by res judicata, because the issue of whether further environmental review was required was resolved in the related action. Under the doctrine of res judicata, a valid, final judgment on the merits is a bar to subsequent action by parties or their privies in the same cause of action. In California, whether causes of action in two suits are the same for the purpose of res judicata depends on whether they involve the same primary right. In the CEQA context, the same primary right is at issue if the actions involve the same general subject matter, provided that they are not distinct episodes of noncompliance.

The allegations of noncompliance with the settlement agreement were the same in both this suit and the prior related matter. In both, the petitioners contended that the city violated CEQA by not conducting further environmental review. As the court held in the related matter, the updated proposal is a minor modification, and no further environmental review is required. That decision was final.

The court rejected the contention by the environmental group petitioners that they were not in privity with the HOA. Privity is found if the party’s interests are so similar that the party in the prior action was the current party’s virtual representative. The court found that standard applied here, because the environmental groups and the HOA both opposed the project and sought to invalidate its approvals. Even accepting the contention that the environmental groups were acting in public interest, and that the HOA acted in its own private interest, the petitioners failed to articulate how those interests were not aligned. The HOA did not, for example, assert any particular private harm that was not shared with the public at large. This holding is consistent with other persuasive authority finding privity between individuals asserting private interests and nonprofit organizations asserting public interests, both on similar grounds.

The court also found that the petitioners’ Water Code claims (alleging that a water supply analysis was required) were similarly barred by res judicata. As with the CEQA claims, the Water Code allegations rested on the petitioners’ key assertion—that the project was not a minor modification of the original project, and that further environmental review was required. That claim was litigated and decided; as such, a water supply analysis could not be required.

The court further briefly noted that petitioner’s claims would also be barred under the doctrine of collateral estoppel.

(Sara F. Dudley)

High Court Decides that Voters Can Challenge Zoning Ordinance by Referendum, Even When It Results in a More Prolonged Period of Inconsistency Between Zoning Ordinance and General Plan

In City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, the California Supreme Court upheld the decision of the court of appeal, and ruled that voters can challenge a zoning ordinance by way of referendum, even if this results in a more prolonged period of inconsistency between the zoning ordinance and general plan, at least when local government has other means available to them to make the zoning ordinance and the general plan consistent. Furthermore, the referendum process does not violate a Planning and Zoning Law provision (Gov. Code, § 65860) which mandates that inconsistencies between a zoning ordinance and a general plan be reconciled within a “reasonable time.” The court remanded the matter back to the trial court to resolve whether there were other means available to the local agency to make the general plan consistent with the referendum, should it be successful. Justice Chin filed a brief concurrence.

In making this ruling, the court expressly disapproved of deBotarri v. City of Norco (1985) 171 Cal.App.3d 1204 and cited with approval the reasoning of the recently decided Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657.

Factual and Procedural History

In November 2014, the City of Morgan Hill amended its general plan to change the land use designation of a vacant parcel from industrial to commercial, in order to allow the applicant to develop a hotel on the site. The zoning designation in the zoning code, ML-Light Industrial, remained unchanged. In April 2015, the city council voted to approve a zoning change for the site from ML-Light Industrial to CG-General Commercial, to make the zoning consistent with the amended General Plan. General Commercial is one of 12 potential commercial zoning designations in the city. Shortly afterwards, voters successfully petitioned to put forward a referendum challenging the zoning ordinance change. However, the city council directed the city clerk to discontinue processing the ordinance, believing it would make the General Plan and zoning ordinance inconsistent. In 2016, the council placed referendum on the ballot, and petitioned for a writ of mandate to have the referendum invalidated.

The trial court found for the city, relying on deBotarri for the proposition that a referendum is invalid when it would enact a zoning ordinance that is inconsistent with the general plan.

The Sixth District Court of Appeal reversed in a published decision, City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34. The court of appeal expressly disagreed with deBotarri’s holding that referendums are always invalid if they reject a zoning ordinance which was enacted by the local government in order to bring a property’s zoning into compliance with the jurisdiction’s general plan. The California Supreme Court granted review.

The Supreme Court Decision

The California Constitution reserves the power of referendum for the people. It allows voters to approve or reject statutes, or parts of statutes, including enactments by local government. This power is subject to a “limited preemption” by the Legislature, and can only be abrogated by a “definite indication” or “strong showing” that preemption was intended.  Local control over land use is subject to the State Planning and Zoning Law (Gov. Code, § 65000 et seq.), which mandates that the land use element of a general plan must be consistent with local zoning ordinance, and that if an inconsistency exists, that it be reconciled within a “reasonable time” (Gov. Code, § 65860). The statutory scheme does not define “reasonable time” or give benchmarks for determining when the passage of time becomes unreasonable. To avoid the uncertainty inherent in such inconsistencies, the Government Code strongly encourages simultaneous general plan amendments and zoning code changes, although this is not required.

The core question is whether the Legislature, in enacting Government Code section 65860, intended to preempt the power of referendum, such that voters would be prohibited from placing a referendum on the ballot that, if successful, would prolong or create a create an inconsistency between the zoning and the general plan.  A related question is whether a “reasonable time” to bring a general plan and a zoning ordinance into harmony can include the time to hold a referendum, and, if successful, pursue another means of making the general plan and zoning consistent.

The court accepted the petitioner’s contention that, generally, local voters can exercise their referendum power without creating a conflict with section 65860, at least when there are other zoning designations available that would be consistent with the general plan. In announcing this rule, the court rejected defendant’s supposition that a successful referendum “revives” an out-of-compliance zoning ordinance, because a referendum does not enact a law. Rather, a successful referendum merely rejects an amendment before it takes effect. Here, even though the referendum sought to overturn the new, consistent zoning designation, the referendum would not be invalid because the original designation was valid when it was enacted (that is, the general plan amendment created the inconsistency, a situation which the Government Code permits, for a “reasonable time”).

The court acknowledged that a referendum such as this creates or prolongs a period of inconsistency between a general plan and the applicable zoning, but the Government Code allowed for such periods “to ensure an orderly process of bringing the regulatory law into conformity…”(quoting Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 546 (Lesher)). Relatedly, while the “reasonable time” allowed for city or county to conduct an “orderly process” is not defined, the court reasoned that the term was context-dependent, and, given the court’s duty to protect the referendum power, a “reasonable time” within the meaning of section 65860 must include the time necessary to bring at least one referendum challenge, and to rectify the inconsistency between the zoning ordinance and the general plan in a manner consistent with the referendum.

Answering the questions before it as it did led the court to expressly disapprove of the reasoning in deBottari and its progeny, because, although Government Code section 65860, subdivision (a) voids enactments, including initiatives from creating zoning ordinances inconsistent with the general plan, a referendum that creates a temporary period of inconsistency falls within the exception in subdivision (c) of that statute. The court also rejected the city’s argument that allowing the referendum could create a period of inconsistency lasting months if not years, finding that its duty was to harmonize, to the extent possible, the government code with the referendum power. Moreover, the inconsistency could be avoided altogether by amending the general plan and zoning code simultaneously, as suggested in the Government Code itself.

Consistent with its general rule, the court provided guidance on the types of tools that local governments have available to maintain consistency. Here, the city has twelve potential other commercial zoning designations, six of which allow hotels. The city and the petitioners disagreed as to the extent that the other zoning designations were viable for this site, but that issue was never addressed by the trial court. Nor did either party fully address the possibility that the city could create a new zoning designation that would be compliant with the general plan as amended, if no current zoning options were suitable. For these reasons the court remanded the case back to the trial court to determine whether it would be impossible for the city to make the zoning ordinance and general plan consistent.

The court also stated that the city could amend its general plan to make it consistent with zoning ordinance, and the referendum. The court noted that, in Lesher, supra, 52 Cal.3d 531, it had determined that an initiative instituting an invalid zoning ordinance cannot be used to alter a general plan, but the question of whether a referendum would be void if the city or county’s only option was to amend the general plan had not been answered. Nor did the court consider whether a local government could show that it would be futile to amend the zoning code, because no zoning designation consistent with the general plan amendment would be consistent with the intent of the referendum.

Justice Chin’s brief concurrence noted that a remand might not have been necessary, given that there appear to be other designations available. But, he acknowledged that the city could still challenge the validity of the referendum, if the city could establish that it would be impossible to make the general plan and zoning code consistent, should the referendum succeed.

Sara F. Dudley