Blog

Fourth District Holds Substantial Conformance Review Is Not Subject to Administrative Appeal to the City Council under Public Resources Code Section 21151, subdivision (c).

General Posted by   

In San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, the Fourth District Court of Appeal upheld the City of San Diego’s denial of an administrative appeal of the City Planning Commission’s determination that an applicant’s modified design plans substantially conformed to the conditions and requirements of a previously issued development permit and that there was no need for further environmental review.

The challenged project involved a master plan, initially approved in 1997 and modified several times, for a mixed-use, industrial, commercial, and residential development. In 2012 the city approved a planned development permit to allow construction of the first phase of development. In November 2013, the applicant proposed design changes triggering the city’s Substantial Conformance Review (SCR) process under the permit. City staff reviewed the proposed changes to determine if the modified project was consistent with the previously approved project, including the existing environmental mitigation conditions. On January 30, 2014, the city’s development services department issued a written notice of decision approving the project and finding it to be in substantial conformance.

The petitioners appealed the decision to the planning commission, contending that the changes were substantial and that SCR review was not appropriate. The commission denied the appeal and upheld the SCR decision. The petitioners then attempted to appeal the decision to the city council, but the city refused to process the appeal, citing CEQA Guidelines section 15162 and San Diego Municipal Code section 113.0103. The petitioners filed a petition for writ of mandate asserting they were entitled to an administrative appeal before the city council. The trial court denied the petition and the petitioners appealed.

The court first rejected the petitioners’ arguments that they were entitled to an administrative appeal to the city council under Public Resources Code section 21151, subdivision (c). That section provides that if a “nonelected decisionmaking body of a local lead agency certifies an environmental impact report, approves a negative declaration or mitigated negative declaration, or determines that a project is not subject” to CEQA, that decision can be appealed to the agency’s elected decision-making body, if any. The court held that section 21151, subdivision (c), did not apply because the SCR decision did not certify an EIR, approve a negative declaration or mitigated negative declaration, or decide that the project was not subject to CEQA.

The petitioners further argued that the SCR decision was a decision that the project is not subject to CEQA, but the court rejected this argument. The court stated that city had already held that the project was subject to CEQA, and had required several environmental review documents and a mitigation monitoring and reporting program, all of which were considered as part of SCR process.

The petitioners also argued that a provision of the San Diego Municipal Code allowed appeals of “environmental determinations” to the city council, but the court disagreed. The court observed that the municipal code provision defining “environmental determination” was substantially similar to the activities in Public Resources Code section 21151, subdivision (c). Hence, the petitioners were not entitled to an administrative appeal of the planning commission’s decision to the city council under CEQA or the municipal code.

California Supreme Court Rules that Land Use Designation Made by Decades-Old Resolution, but Not Referenced in General Plan Is Not Part of the General Plan

General Posted by   

In Orange Citizens for Parks and Recreation et al. v. Superior Court of Orange County (2016) 2 Cal.5th 141, the City of Orange approved a proposed 39-unit residential development on a former golf course. The project was controversial because the private development would replace open space. Nevertheless, the city approved the project’s proposed general plan amendment to allow residential development on the property. In response, petitioners Orange Citizens for Parks and Recreation et al. challenged the city’s amendment to the general plan by referendum. The city then changed its position, claiming that there was no need to amend its general plan for the development project in the first place, since a resolution from 1973 allowed residential development on the property. The city thus concluded that whatever the outcome of the referendum, it would have no effect on the development. In November 2012, a majority of voters rejected the project’s general plan amendment. The Supreme Court’s decision honored the voters’ intent, holding that the city abused its discretion in determining that the project was consistent with the city’s general plan.

Background

The case has a complicated—and, it is hoped, unique—factual background. Orange Park Acres, the property at issue in the case, is located in the foothills of the Santa Ana Mountains. In 1973, the city established an Orange Park Acres development committee to resolve disputes about what to do with the land. After several weeks of outreach, the development committee adopted the Orange Park Acres Specific Plan (OPA Plan). The OPA Plan designated the property at issue for use as a golf course, or should that prove economically infeasible, for recreation and open space.

The city planning commission considered the OPA Plan, and after hearing, in November 1973, adopted a resolution recommending the city council to adopt the OPA Plan, but with a significant amendment: the OPA Plan should designate the property for open space and low density (1 acre) instead of open space. The City Council adopted the OPA Plan on December 26, 1973. Curiously, however, neither the city council resolution approving the OPA Plan, nor the OPA Plan itself, described the planning commission’s proposed amendments to the OPA Plan.

In 1977, the city council passed a resolution that would allow low-density development in Oak Park Acres, and to update the land use map to reflect this change. Again, for reasons that are unclear, the city never made these changes. Neither the text of the OPA Plan, nor its attached land use policy map, were updated to designate the property low-density residential.

The city again revised its general plan in 1989. The intent of the 1989 General Plan was to establish “definitive land use and development policy to guide the City into the next century.” The 1989 land use policy map, which the general plan described as the “most important” feature of the land use element, designated the property for open space/golf. The 1989 General Plan also incorporated the OPA Plan under the heading “Area Plans”— but the version of the OPA Plan that was publically available designated the property as open space.

In view of these facts, in 2007, when the developer for the residential project at issue submitted its development application, the developer requested a general plan amendment to change the property’s land use designation from “open space” to “estate residential.” In 2009, while the city was still processing the application, the developer’s counsel discovered the 1973 resolution that recommended the OPA Plan designate the property for open space and low-density residential. The developer’s counsel promptly conveyed the resolution to the city attorney, prompting the city to conduct a comprehensive review of its planning documents concerning the property. Based on this investigation, the city attorney concluded: (1) 1973 OPA Plan is part of the general plan; and (2) the OPA Plan designates the property as “Other Open Space and Low Density (1 acre).”

Around that same time, the city was again in the process of revising its general plan. A final version of the general plan was approved in March 2010. The 2010 General Plan identifies the project site as “open space.” But it also references the OPA Plan and states that development must be consistent with the OPA Plan.

On June 14, 2011, the city council certified a final EIR for the project. The final EIR explained that the OPA Plan was part of the general plan, and that at the time the OPA Plan was adopted, the city council intended the project site to be designated for one-acre residential development. Due to a clerical oversight, however, this designation did not make it into the plan itself. The final EIR further reported that the project’s proposed general plan amendment would remove any uncertainty pertaining to the project site’s land use designation and honor the city council’s original intent for the project site.

The city council approved the project, including the project’s proposed general plan amendment. A few days later, the petitioners circulated a referendum petition challenging the city’s general plan amendment. The city council thereafter approved the project’s proposed zone change, concluding that the zone change was consistent with the 2010 General Plan.

Around that same time, the developer’s counsel wrote the city attorney with an “elegant solution” to the referendum: to take the position that the 1973 Planning Commission resolution designated the property for low-density residential, and the clerical error of not recording the designation did not alter the site’s true designation. The city attorney adopted this position, and prepared a report explaining that the project would remain consistent with the general plan regardless of the outcome of the referendum.

In November 2012, the voters rejected the project’s general plan amendment.

The Supreme Court’s Decision

The trial court and the Court of Appeal sided with the city and the developer, holding that the project was consistent with the 2010 General Plan because the 1973 designations applied to the project site, and the clerical failing to record the designations did not alter this fact. The Supreme Court reversed.

In the opinion, authored by Justice Liu, the court first explained that a local agency’s determination of whether a project is consistent with a general plan is a quasi-adjudicative, rather than a quasi-legislative determination. As such, the question before the court was whether the city abused its discretion in finding the project consistent with the 2010 General Plan. The court explained that reviewing courts “must defer to a procedurally proper consistency finding unless no reasonable person could have reached the same conclusion.” (Italics added.) The court determined that under the facts before it, no reasonable person could conclude the residential project was consistent with the city’s 2010 General Plan.

In reaching this conclusion, the court was especially swayed by the fact that members of the public, seeking to review the General Plan, would have no way of knowing that General Plan designated the project site for low-density residential. To the contrary, based on the publically available 2010 General Plan, members of the public would have thought the OPA Plan was consistent with the general plan map designating the property as open space. Indeed, even the city and the developer believed this to be the case—as evidence by the fact that the project proposed a general plan amendment.

The developer argued that the city should not be bound by a clerical error because doing so, in the developer’s view, would give greater power to staff than to the city council. But, explained the court, a city official cannot exercise a “power” that is by definition inadvertently exercised. Nor was there any evidence that staff purposely failed to carry out the intent of the 1973 resolution. And, in any event, the city council could have made it clear that the site was designated for low-density residential when it adopted the 2010 General Plan, but it did not.

Adding to the unreasonableness of the city’s conclusion that the project was consistent with the 2010 general plan was the fact that voters had rejected the project’s general amendment via referendum. As eloquently stated by Justice Liu:

The open space designation for the Property in the 2010 General Plan did not inform the public that the Property would be subject to residential development. The City’s proposed general plan amendment puts its citizenry on notice that such development would be possible. In response, Orange Citizens successfully conducted a referendum campaign against the amendment. If “legislative bodies cannot nullify [the referendum] power by voting to enact a law identical to a recently rejected referendum measure,” then the City cannot now do the same by means of an unreasonable “administrative correction” to its general plan undertaken “’with the intent to evade the effect of the referendum petition.’” [Citation.]

Conclusion

Although there is no specific format a general plan must take, a general plan must still comprise an integrated, internally consistent, and compatible statement of policies for future development. In this case, anyone reviewing the city’s general plan would have concluded that the project site was designated to remain in open space. While one can easily imagine the glee the developer and its attorney must have felt upon discovering the 1973 resolution designating the property low-density residential, in the view of the court, it was too little, too late. If the site was designated low-density residential, the planning documents should have reflected this. After voters expressed their intent not to have the site designated low-density residential, the city should have respected that intent, rather than attempting to re-write 35 years of planning documents. The opinion seems to affirm, however, that in general, the courts must defer to a city or county’s conclusion that a project is consistent with the general plan. Only where—as in this case—no reasonable person could conclude that the project is consistent with the general plan should the courts interfere with the city or county’s determination of general plan consistency.

Ninth Circuit Rejects Challenges to EIS for Major L.A. Transit Project

General Posted by   

The Ninth Circuit Court of Appeals has rejected two challenges to the EIS for the Regional Connector project proposed by the Los Angeles County Metropolitan Transportation Authority (Metro). The project would provide a critical link in the light-rail transit system in Los Angeles by closing the gap between the Gold Line and the Blue and Expo Lines in downtown Los Angeles. Two property owners—Japanese Village Plaza and the Bonaventure Hotel—oppose the project because of impacts construction will have on their properties. The Ninth Circuit rejected the property owners’ claims, finding that: the Record of Decision was properly assembled; Metro and the FTA adequately analyzed groundborne noise and vibration impacts during construction and operation and appropriately considered and adopted mitigation measures; the EIS adequately analyzed impacts and mitigation for potential subsidence during construction; the EIS adequately analyzed parking impacts, impacts due to grade separation in roadways during construction, and emergency ingress and egress during construction; the EIS properly found that alternative construction methods are infeasible; and the EIS did not improperly defer the formulation of mitigation. These lawsuits are two of the several lawsuits the property owners have filed against Metro seeking to stop construction of the project. Previously, the Second District Court of Appeal rejected the property owners’ CEQA claims.
RMM Attorneys Tiffany Wright and Whit Manley represent Metro.

EIR for Mission Bay Warriors Arena Upheld by Court of Appeal

General Posted by   

The First District Court of Appeal issued a published opinion upholding the EIR for the Warriors arena in the Mission Bay area of San Francisco. The court held that the EIR adequately analyzed impacts related to biological resources, air quality, greenhouse gases, noise, traffic, and local and regional transit, among others. The court also held that the EIR adequately considered potential land use impacts and that ample evidence supported the EIR’s conclusion that the arena would not impede other exiting uses in the area, including a nearby hospital. The court rejected all of the petitioners’ non-CEQA claims as well. The court found the project complied with local zoning requirements and that the issuance of a place of entertainment permit by the city’s entertainment commission complied with all applicable laws. Because the project was certified as an “Environmental Leadership and Development Project” under Assembly Bill (AB) 900, this case was subject to an expedited litigation schedule.
RMM attorneys Whit Manley, Jim Moose, and Chris Stiles represent the Warriors.

Fourth District Court of Appeal Upholds Trial Court’s Ruling that Enactment of Medical Marijuana Ordinance was Not a ‘Project’ Under CEQA

General Posted by   

In Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103, the Fourth District Court of Appeal affirmed the trial court’s denial of a challenge to the City of San Diego’s enactment of a medical marijuana ordinance. The court found the ordinance was not a ‘project’ under CEQA.

Union of Medical Marijuana Patients, Inc., in another challenge to a City’s medical marijuana ordinance, filed a petition for writ of mandate against the City of San Diego’s adoption of an ordinance allowing medical marijuana facilities. The ordinance amends the city’s municipal code to regulate the establishment and location of medical marijuana consumer cooperatives. The city did not conduct CEQA review prior to adopting the ordinance.

UMMP argued that the ordinance was a ‘project’ subject to CEQA, and therefore the city was required to comply with CEQA before adopting the ordinance. The court analyzed whether, as a matter of law, enactment of the ordinance was an activity “undertaken by a public agency” that “may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.” Because an ordinance passed by a city is clearly “undertaken by a public agency,” and UMMP did not argue that the ordinance would have a direct impact on the environment, the analysis focused on whether the ordinance would cause a reasonably foreseeable indirect physical change.

First, UMMP argued that a zoning ordinance necessarily constitutes a project as a matter of law, relying on language in Public Resources Code section 21080, subdivision (a). The court rejected this argument, reasoning that although that section lists “the enactment and amendment of zoning ordinances,” the examples provided therein illustrate activities undertaken by a public agency. Such activities may or may not qualify as “discretionary projects,” and therefore are not necessarily subject to CEQA.

Next, UMMP argued that the ordinance would result in a reasonably foreseeable indirect physical change in the environment in three ways—by increasing traffic and air pollution, causing increased cultivation of marijuana, and resulting in new construction activity. The court rejected each of these assertions, explaining that the arguments relied on false assumptions that were unsupported by the record. The court found that the ordinance was intended to increase access to medical marijuana and there was no evidence that it would be more burdensome for patients to travel to cooperatives after enactment of the ordinance, and it was purely speculative to assume any new buildings would be constructed as a result of the ordinance. And if new buildings were constructed, the court said, approval of a new conditional use permit would require appropriate CEQA review for that construction project anyway.

Thus, the court concluded that enactment of the ordinance did not constitute a ‘project’ under CEQA.

Ninth Circuit Upholds EIS for TRPA’s Regional Plan Update

General Posted by   

On November 2, 2016, the Ninth Circuit Court of Appeals upheld the Environmental Impact Statement (EIS) for the Tahoe Regional Planning Agency’s 2012 Regional Plan Update (RPU).

TRPA adopted the RPU as the general governing document for development and environmental protection in the Lake Tahoe region. The RPU generally restricts future development to areas that are already developed, and sets forth the amount of further development that will be permitted in those areas. The precise nature of that development is to be determined in “Area Plans” to be adopted later. Before approving the RPU, TRPA prepared an extensive EIS examining the potential environmental effects of the update.

Shortly after TRPA approved the RPU, the plaintiffs filed a lawsuit in the U.S. District Court alleging that TRPA’s actions violated the Lake Tahoe Regional Planning Compact in various respects. Their principal contentions were that the RPU failed to adequately address the localized effects of runoff created by the amount of development permitted, and that the RPU improperly assumed that best management practices (BMPs) could be utilized to achieve the RPU’s planning goals, despite TRPA’s poor record of enforcing BMPs in the past. The district court granted summary judgment in favor of TRPA. The Ninth Circuit affirmed.

The Ninth Circuit held that the EIS adequately addressed potential impacts regarding water quality, soil conservation, and cumulative effects on biological resources. Applying a standard similar to the one used for evaluating environmental impact statements under NEPA, the court held that the RPU and EIS took the requisite “hard look” at these resource areas, despite that fact that the analysis was generally intended to be region-wide with additional site-specific review occurring later during the approval of Area Plans.

In finding that the EIS adequately addressed the localized effects of runoff, the court upheld TRPA’s reliance on the Total Maximum Daily Load (TMDL) model, which aims to reduce the total flow of certain pollutants into the lake, and noted that the EIS’s storm-water modeling simulation addressed localized effects of runoff near concentrated development areas. The court concluded that the EIS adequately explained its basis for finding that concentrating development in community centers would not result in more concentrated runoff or other water quality impacts.

Regarding soil conservation, the court held that TRPA was not required to perform site-specific analysis of impacts because evaluation of coverage at a more localized scale would occur, as part of the Area Plan process, prior to development taking place.

Finally, upholding the EIS’s reliance on BMPs despite historically less-than-perfect enforcement by TRPA, the court noted that the EIS explained the steps that had been taken to improve enforcement. For example, TRPA’s BMP handbook acknowledged past failures in maintenance and incorporated that experience into updated BMP guidelines. The court also noted that the RPU provided incentives for redevelopment, and thus, was designed to move properties from TRPA’s retrofit program into its mandatory permitting program for new development, which requires BMP maintenance plans and logs. Thus, the court concluded that TRPA reasonably relied on data in the record in concluding that the RPU would have a less-than-significant effect on water quality.

Ninth Circuit Upholds EIS for Tahoe Regional Planning Agency’s Regional Plan Update

General Posted by   

On November 2, 2016, the Ninth Circuit Court of Appeals issued a published opinion upholding the Tahoe Regional Planning Agency’s environmental impact statement (EIS) for TRPA’s Regional Plan Update. The panel unanimously affirmed the district court’s summary judgment in favor of TRPA and against the Plaintiffs Sierra Club and Friends of West Shore. The published opinion explains that TRPA’s EIS adequately addressed the Regional Plan Update’s significant environmental impacts and that TPRA’s reliance on best management practices to reduce water quality impacts was not arbitrary or capricious and was supported by substantial evidence. The panel also affirmed the district court’s award of costs for preparation of the administrative record in favor of TRPA. The ruling is a significant step in TRPA’s efforts to restore Lake Tahoe’s treasured environment and revitalize Tahoe’s communities. RMM attorneys Whit Manley and Chip Wilkins represent TPRA in the litigation.

You can read more from the Sacramento Bee.

Fifth District Court of Appeal Disagrees, in Part, with “Hayward Area Planning” Decision and Awards Costs for Record Preparation to Real Party in Interest

General Posted by   

The Fifth District Court of Appeal, in a partially-published opinion, ruled on a cost award in Citizens for Ceres v. City of Ceres (2016) 3 Cal.App.5th 237. The court disagreed in part with the decision in Hayward Area Planning Association v. City of Hayward (2005) 128 Cal.App.4th 176 (“Hayward Area Planning”), and granted real party in interest’s request for the cost of preparation of the administrative record.

Citizens for Ceres (“Citizens”) filed a petition for writ of mandate under CEQA challenging the City of Ceres’ approval of a Wal-Mart shopping center. At Citizens’ request, the city prepared the administrative record, through its outside counsel. Pursuant to agreement with the city, real party in interest Wal-Mart subsequently reimbursed the city $48,889.71 for the costs of preparing the record.

After the city and real party in interest won on the merits at the trial court, Wal-Mart filed a memorandum of costs requesting payment for the cost of preparation of the administrative record. In response, Citizens filed a motion to tax costs, arguing that the city could have recovered the cost of preparation of the record, but Wal-Mart could not. The trial court granted Citizens’ motion, based on the holding in Hayward Area Planning, and denied Wal-Mart’s request for costs.

The Fifth District Court of Appeal disagreed with the trial court and found that Public Resources Code section 21167.6, subdivisions (b)(1) and (b)(2), do not bar a real party in interest from recovering the cost of record preparation where the petitioner requested that the lead agency prepare the record, and the real party reimbursed the agency. Section 21167.6 provides three express options for preparation of the administrative record in a CEQA action: (i) the agency can prepare the record; (ii) the plaintiff can prepare the record subject to the agency’s certification; or (iii) the agency and the plaintiff can agree on a different procedure. The First District Court of Appeal in Hayward Area Planning held that prevailing parties are entitled to seek an award of the cost of preparing an administrative record only when the record was prepared in one of the three approved ways. The Hayward Area Planning court held that a real party in interest could not recover costs when the petitioner directed the agency to prepare the record and the agency delegated that task to the real party interest.

The Fifth District Court of Appeal explained that Section 21167.6(b)(1) requires the parties to “pay any reasonable costs or fees imposed for the preparation of the record of proceedings in conformance with any law or rule of court.” Wal-Mart applied to recover costs under Code of Civil Procedure sections 1032 and 1033.5, and the court found that there is nothing in section 21167.6 limiting such recovery so long as the record was prepared in one of the three specified ways. Here, the record was prepared in one of those ways—it was prepared by the agency—and contrary to the holding in Hayward Area Planning, the right to recover is not limited any further.

The Court of Appeal reversed the trial court’s order granting Citizens’ motion to tax costs and remanded for the lower court to determine whether the requested administrative record costs were reasonable.

California Continues its Leadership in the Fight Against Climate Change

General Posted by   

Governor Brown recently signed Senate Bill 32 and Assembly Bill 197 continuing California’s leadership on climate change. SB 32 and AB 197 were inextricably linked—each bill requiring the passage of the other.

SB 32 significantly increases the state’s targets for greenhouse gas emissions reductions. It calls for a reduction in greenhouse gas emissions of at least 40 percent below the statewide limit by 2030.

AB 197 requires CARB to prioritize direct emission reductions and consider social costs when adopting regulations to reduce greenhouse gas emissions as a means to protect the state’s “most impacted and disadvantaged communities.” Social costs are defined as “an estimate of the economic damages, including, but not limited to, changes in net agricultural productivity; impacts to public health; climate adaptation impacts, such as property damages from increased flood risk; and changes in energy system costs, per metric ton of greenhouse gas emission per year.” The legislation requires CARB to prioritize those rules and regulations that would result in direct emissions reductions at large stationary and mobile sources. AB 197 also creates oversight of future CARB greenhouse gas emissions reductions strategies by adding two legislators to the state board as ex-officio nonvoting members and creating a joint legislative committee that will make recommendations to the legislature concerning the state’s programs, policies, and investments related to climate change.

 

2223242526