Tag: General Plan

SECOND DISTRICT HOLDS HOUSING PROJECT DOES NOT QUALIFY FOR CLASS 32 IN-FILL EXEMPTION BECAUSE OF INCONSISTENCIES WITH GENERAL PLAN POLICIES

General Posted by   

In United Neighborhoods for Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074, the court held that the City of Los Angeles failed to consider the project’s consistency with the general plan’s applicable housing element polices, and that the challenging petitioner group sufficiently exhausted its administrative remedies regarding the inconsistencies by contesting the project’s consistency with the housing element’s general goals, without referencing the specific policies.

 Background

The City approved a project that would replace 40 apartment units subject to the City’s rent stabilization ordinance with a 156-room hotel, and determined the project was exempt from CEQA pursuant to the Class 32 in-fill exemption. United Neighborhoods for Los Angeles sought a writ of mandate arguing that the in-fill exemption does not apply because the project is not consistent with a general plan policy regarding the preservation of affordable housing. The trial court granted the writ, halting the project pending CEQA review or the City making a finding that the project is consistent with the policy at issue. The City appealed.

Court of Appeal’s Opinion

Exhaustion

The court concluded that United Neighborhoods exhausted its administrative remedies because its comments that the project’s demolition of the rent stabilized apartment units would conflict with the first goal of the housing element were sufficient to apprise the City of the issues raised in litigation. The court explained that United Neighborhoods’s references to the housing element’s general goals, rather than its specific policies, was immaterial because a general plan is structured in such a way that a project that is inconsistent with housing element goals will also conflict with the housing element policies. Moreover, the court found United Neighborhoods’s objection concerned multiple housing element policies relating to the preservation of, as opposed to the production of, affordable housing, and was therefore sufficient to apprise the City of the policies that United Neighborhoods’s objection implicated. Finally, the court emphasized that the City expressly acknowledged that United Neighborhoods’s objection was that the project’s removal of the apartment units would conflict with the housing element.

Consistency with General Plan Policies

The court held that substantial evidence does not support the City’s determination that the housing element policies are inapplicable, and that the City did not consider the project’s consistency with the applicable policies.

First, the court explained that the housing element policies are applicable to the project because the project will have an impact on the preservation of housing reflected in several of the housing element’s goals, objectives, and policies. The court found that the City focused only on the portions of the housing element that related to the production of new housing.

The court also rejected the City’s argument that “affordable housing” is a term of art that does not include rent stabilized housing units. The court explained that nothing in the housing element suggests that “affordable housing” is a term that deviates from its ordinary meaning, and therefore must refer to the dictionary definition: “housing that can be afforded by those on low or median incomes; spec. housing made available to those on lower incomes at a price below normal market value, as the result of legislation or subsidy by a local authority or the state.” Accordingly, the court determined that rent stabilized units are a form of “affordable housing” because they prohibit landlords from raising rents to reflect normal market value under certain circumstances. While the court acknowledged that deference is typically given to an agency’s finding of consistency with its own general plan, such deference is not given with respect to the City’s determination of which policies apply to the project.

Second, the court rejected the City’s argument that its consideration of the project’s consistency with the housing element can be inferred from its express discussion of other related policies. The court explained that the other policies that the City expressly discussed did not mention affordable housing and were less specific than the housing element policies.

The court was also not persuaded that the City’s conditional approval of the project on compliance with the Ellis Act—a requirement in the housing element—implied that it considered applicable housing element policies. It explained that the conditions of approval indicated that the Ellis Act condition is derived from the City’s Municipal Code, and therefore does not demonstrate the City’s consideration of the housing element policies.

While the court emphasized that the City was not required to make formal findings that housing element policies are outweighed by competing polices favoring the project, or that such a decision would necessarily conflict with the general plan, it concluded that a court cannot defer to the City’s weighing and balancing of general plan policies without supporting evidence that the City did weigh and balance all applicable policies.

Therefore, because the Class 32 in-fill exemption requires consistency with all applicable general plan policies, the court upheld the trial court’s determination that the City’s application of the exemption was unlawful.

FIRST DISTRICT HOLDS LACK OF A LEGALLY COMPLIANT LAND USE DESIGNATION ALONE DOES NOT PRECLUDE AN AGENCY FROM DENYING A PROJECT FOR UNRELATED REASONS

General Posted by   

In Lafayette Bollinger Development LLC v. Town of Moraga (2023) 93 Cal.App.5th 752, the First District Court of Appeal upheld the Town of Moraga’s denial of a development application based on unrelated inconsistencies with the general plan, despite the fact that Moraga’s land use element included a land use designation for the project site that was out of compliance with the law.

Background

The Town of Moraga denied Lafayette Bollinger Development LLC’s and Joan and David Bruzzone’s application to develop housing on the developers’ property and certify the EIR for the project because the project was not consistent with portions of the general plan related to public safety, residential density, grading volumes, location of other proposed development relative to the site, and impacts to natural resources. Moraga also denied the developers’ request for a general plan amendment and to change the zoning of the subject property from a “Study” designation to “residential.” The “Study” designation was originally intended to be temporary, but remained in place for approximately two decades and only allowed agricultural and accessory building uses. The developers sued Moraga, challenging its denial of the development application and general plan and zoning changes. The trial court issued a peremptory writ of mandate in favor of the developers, directing Moraga to issue a legally compliant land use designation, but rejecting the developers’ other claims regarding the denial of the development application, including takings, equal protection, and due process violations. The developers appealed.

Court of Appeal’s Opinion

 While the Court of Appeal agreed that the “Study” designation violates Government Code section 65302, subdivision (a), it rejected the developers’ argument that the improper land use designation rendered Moraga’s entire land use element unlawful, and that Moraga was therefore unauthorized to reject its development application. The court concluded that a lack of a legally compliant land use designation alone does not preclude a local agency from denying a project application for unrelated reasons.

Procedural Issues

The court rejected Moraga’s argument that the developers’ challenge of the illegal land use designation is time barred because the court agreed that Moraga forfeited this argument by failing to raise it before the trial court.

The court also rejected Moraga’s argument that the developers failed to exhaust their administrative remedies by not requesting that Moraga adopt a land use designation independent of the development application. The court determined that the developers had repeatedly challenged the designation during the administrative proceedings—including specifically arguing that the designation prevented them from developing the property, that there was no legal precedent for leaving the designation in place for an extended duration, and that Moraga had an obligation to change it. Therefore, the court concluded, Moraga had sufficient notice of these claims.

Unlawful “Study” Land Use Designation

The parties did not contest that the “Study” land use designation violates section 65302, subdivision (a) because, as the court explained, the designation fails to describe a use of land and there is no dispute that the designation was a placeholder until Moraga could determine the appropriate permanent category. The court agreed with the trial court that Moraga had a mandatory duty to adopt a legally compliant land use designation for the property and that the trial court properly issued a writ directing Moraga to fulfill its duty.

The court further held, however, that this deficiency in the general plan did not void Moraga’s denial of the project application. The court explained that the developers failed to identify any law that prohibited Moraga from denying the project application simply because the general plan’s land use element did not comply with section 65302, subdivision (a). Here, the reasons given for the denial of the application involved public safety concerns and environmental impacts, and had nothing to do with the improper designation. If the developers were to prevail on their argument, the court reasoned, any deficiency in the general plan would preclude a local government from making any land use decision until the deficiency was corrected. Therefore, the developers failed to demonstrate a prejudicial abuse of discretion in the denial of their project application.

Takings

The court upheld the trial court’s determination that the developers’ takings claim was ripe as to the denial of the development project application and the land use designation, but not smaller potential projects, because neither Moraga or the developers explained why the trial court’s holding was unsound. Therefore, both parties forfeited their ripeness arguments.

The court rejected the developers’ takings claim on the merits. The court held that the illegal land use designation did not prevent the developers from seeking to develop the property, as the project application was not denied because of the land use designation and Moraga’s denial of the project did not deprive developers of all economically beneficial use of the property. The developers failed to argue otherwise on appeal, or show that smaller projects would not be economically beneficial or that they had no other reasonable use of the property. Moreover, the court also reiterated the trial court’s finding that the developers did not have a reasonable expectation of building the number of homes for which it claimed it had an “investment-backed” expectation because the character of the land might have limited the number of residences that could be built.

Equal Protection & Substantive Due Process

The court rejected the developers’ claim that Moraga’s actions denied them equal protection. The court determined that although Moraga’s actions resulted in an unreasonably long delay in adopting a permanent land use designation to comply with Government Code section 65302, Moraga had a rational basis in the delay to gather more information about the property due to the property’s unique aspects, including significant slopes and grading. Moreover, the court reiterated that the unlawful land use designation did not make it impossible for developers to develop the property or prevent them from submitting a project application, as they were able to propose a permanent designation in conjunction with the project application. Lastly, the developers failed to explain why Moraga’s denial of the project application had no rational basis beyond those involving the land use designation.

The court also rejected the developers’ substantive due process claims based on Moraga’s failure to issue a permanent and lawful land use designation for similar reasons. The court reiterated that there were rational reasons to retain the “Study” land use designation, and that it did not prevent other development or substantially hinder use of the property.

Third District Upholds Plumas County’s General Plan EIR and Holds that a Local Government May Base Its Impact Analysis on Reasonably Foreseeable Levels of Growth and Development, as Opposed to Theoretically Possible Levels

General Posted by   

On November 15, 2018, the Third District Court of Appeal certified for publication its decision in High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102. Rejecting arguments that Plumas County violated the Timberland Productivity Act (Timberland Act) and the California Environmental Quality Act (CEQA) when it adopted a general plan update, the appellate court affirmed the trial court’s judgment in the County’s favor. The opinion is the first precedent to explore the intersections of CEQA and the Timberland Act. It is also the first CEQA precedent clearly holding that a local government, in preparing an EIR for a general plan update, may base its impact analysis on reasonably foreseeable levels of population growth and development, as opposed to theoretically possible levels.

In 2005, the County began efforts to update its 1984 General Plan. Over the next eight years, the County engaged in a robust community engagement and education process to create the 2035 General Plan Update (GPU) that reflected the County’s planning goals and values. In December 2013, the County’s Board of Supervisors certified the Final Environmental Impact Report (EIR) and adopted the GPU. High Sierra Rural Alliance (High Sierra) filed suit, arguing that the GPU conflicted with the Timberland Act and that the EIR for the GPU did not adequately analyze impacts of potential growth outside of designated planning areas. The trial court disagreed and denied the petition and complaint in its entirety.

The Third District’s opinion begins with a brief description contrasting the County’s large size with its small population. Although the County covers approximately 2,613 square miles or over 1.67 million acres, its vast lands supported only 20,007 residents in 2010. The court also highlighted the minimal expected population growth, with the Department of Finance estimating the County’s population to remain under 21,000 until 2025, at which point the population is expected to decline.

Turning to High Sierra’s Timberland Act claims, the opinion provides an overview of the Act and the GPU policies related to timberland production zone (TPZ) lands. The opinion then settles a heretofore unresolved question under the Timberland Act–– namely, whether any residence approved on land zoned for timberland production must be “necessary for” the management of the relevant parcel as timberland. The court agreed with the County’s interpretation of Government Code section 51104, subdivision (h)(6), as providing that any “residence” on TPZ lands must be “necessary for” and “compatible with” the management of land zoned as timberland production. The court also made clear that “section 51104 suffices to supply the restrictions on residences and structures on timberland production zone parcels,” and thus the County’s GPU did not conflict with the Timberland Act simply because it failed to recite the statutory language in Section 51104 in its relevant policies.

In discussing the Timberland Act arguments, the court explained that “the finding [required by the Timberland Act] that a residence or structure is necessary for the management of a timberland production zoned parcel is not an exercise of discretion as used in the CEQA context.” The court provides local agencies and legal practitioners with important guidance on this issue by citing and quoting the discussion in the Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 272, which provides that an agency can exercise CEQA discretion only where it has “the power (that is, the discretion) to stop or modify” a project in a “way which would mitigate the environmental damage in any significant way.” Because the court concluded that “the Timberland Act affords the County no discretion to stop or request modification of the proposed residence or structure in order to mitigate environmental impacts,” the court rejected High Sierra’s argument.

Next, the court rejected High Sierra’s CEQA claims. High Sierra argued that the EIR failed to acknowledge and analyze the potential for rural sprawl. But the EIR explained that full build-out under the GPU would not occur for another three hundred years. Based on the substantial evidence in the record, the court concluded that the County could properly focus its analysis on the reasonably foreseeable growth occurring under the GPU through year 2035. The court also agreed with the County that historic land use data supported the conclusion that growth would occur almost exclusively within the planning areas. The court rejected High Sierra’s speculation that one of the GPU policies would open the floodgates to residential subdivisions on agricultural, timber, and mining lands. High Sierra’s reliance on a working paper about real estate markets in the Northern Rockies failed to persuade the court because the paper did not cite any data specific to Plumas County.

Finally, the court held that the County did not violate CEQA by failing to recirculate the EIR. The court was unconvinced by High Sierra’s argument that the inclusion in the Final EIR of building intensity standards and more accurate maps showing potential development outside of planning areas triggered recirculation.

 

RMM Senior Partner James G. Moose and Associate L. Elizabeth Sarine represented Plumas County.

 

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.

Fourth District Court of Appeal Upholds Mitigated Negative Declaration Against Urban Decay Challenge—Lay Witness Opinion Not Substantial Evidence of Economic Impacts

General Posted by   

In Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, certified for partial publication, the Fourth District Court of Appeal upheld a mitigated negative declaration providing insight on the subjects of urban decay and general plan consistency.

San Bernardino County adopted a mitigated negative declaration approving a 9,100 square foot general retail store. The intended occupant was Dollar General. The Joshua Tree Downtown Business Alliance, a group of local business owners, challenged the project on several grounds: (1) failure to adequately consider the project’s potential to cause urban decay; (2) failure to complete an EIR based on substantial evidence supporting a fair argument that the project would cause urban decay; (3) inconsistency with various economic goals and policies incorporated in the general plan; and (4) failure to disclose the intended occupant’s identity.

The Fourth District agreed with the lower court’s ruling that the county had considered urban decay but had simply concluded that because there was no evidence of a negative economic impact—there was likewise no evidence of urban decay. The court stated that economic impacts, alone, are not enough to require an EIR. By adopting a mitigated negative declaration, the county expressly found that there were no significant impacts through which economic impacts and urban decay could ultimately be traced.

The court further held that lay opinion regarding economic impacts did not qualify as substantial evidence. A business owner and former attorney with the Oregon Department of Justice provided extensive comments on the project’s potential to cause urban decay. The court stated that she was not an expert and was therefore not qualified to opine on whether the project would cause urban decay. Moreover, she had not provided any factual basis for her assertions. The county exercised appropriate discretion in deeming her testimony not substantial evidence.

The Fourth District also rejected petitioner’s claims that the project was inconsistent with the economic goals and policies in the general plan. Applying the abuse of discretion standard—rather than the fair argument standard as argued by petitioners—the court found that the county could reasonably conclude that the project was consistent with the general plan. The court stated that words in the policies such as “encourage” and “support” were “amorphous policy terms” that give the local agency some discretion.

Finally, in the unpublished portion of the opinion, the court rejected petitioner’s claim that the county had improperly withheld the identity of Dollar General as the intended occupant. CEQA did not require the county, in this instance, to identify the end user. In dicta, however, the court left open the possibility that disclosure of the end user may be required where it is “environmentally relevant.”

Written by Christina Berglund

Court Upholds the City of Newport Beach’s EIR and Concludes that the City’s Actions Complied with Its General Plan, Distinguishing and Disagreeing with California Native Plant Society v. City of Rancho Cordova

General Posted by   

In Banning Ranch Conservancy v. City of Newport Beach, the Court of Appeal upheld the city’s EIR for the Newport Banning Ranch Project and held that the city complied with its own general plan. In reaching the latter conclusion, the Fourth Appellate District both distinguished and disagreed with the Third Appellate District’s holding in California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603.

In 2012, the City of Newport Beach approved the Newport Banning Ranch Project. The project is located on 400 acres of coastal property in Orange County. The project site is home to both oil wells and endangered species. Because the property is in the city’s sphere of influence, the city was asked to approve the project. The city studied the environmental impacts of the project in a 9,000 page EIR before conditionally approving the project. The approvals recognized that the project could not go forward without a number of subsequent actions by other agencies. For the purposes of the litigation, the most important approvals would come from the California Coastal Commission.

The litigation focused on two issues related to the Commission and the Coastal Act. The petitioner argued that the city violated CEQA when it did not identify “environmentally sensitive habitat area” or ESHA in the EIR. The city, for its part, pointed out that EIR evaluated the biological impacts in detail, identifying potential impacts to species and habitat, and adopting mitigation for those impacts. The city insisted, however, that the designation of ESHA was not a biological determination to be made in the EIR, but rather was a legal and policy determination that would ultimately be made by the Commission under the Coastal Act. The city argued that by providing all of the data and scientific analysis that the Commission would need to make such a conclusion, it satisfied CEQA; it argued that the EIR did not speculate as to the Commission’s ultimate conclusions citing Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209. The court agreed. It held that the city did not have to “prognosticate as to the likelihood of ESHA determinations” in the EIR.

The more significant issue tackled by the court was a claim under the Planning and Zoning Law. The city has a policy in its general plan which requires it to “work with” various resource agencies to identify wetlands and other habitat to be preserved, restored, and developed on the Banning Ranch property. The city did reach some consensus with some agencies on these points, but did not reach an amical point with the Coastal Commission. Indeed, the city consulted and met in person with the commission on a couple of occasions, but a meeting of the minds appeared remote at the time of project approval.

The petitioner cited to the Third District Court of Appeal’s opinion California Native Plant Society v. City of Rancho Cordova, arguing that the City of Newport Beach had to do more to try to reach agreement with the Coastal Commission before approving the project. California Native Plant Society v. City of Rancho Cordova involved a similar policy in Rancho Cordova’s general plan. Rancho Cordova’s policy required the city to “coordinate” with resources agencies to develop mitigation prior to project approval. The Third District in that case held that this policy required something more than merely consulting with the agency, soliciting comments, and responding to them. The court held that “coordination” meant something more than consultation, although whatever that “something more” was it did not have to amount to “abdication.”

The Fourth District considered whether the City of Newport Beach’s policy was similar to Rancho Cordova’s. The court concluded that it was not altogether similar, but it was similar enough that the two could not be readily distinguished. The court nevertheless upheld the City of Newport Beach’s actions. In doing so, the Fourth District rejected the reasoning of the Third District in California Native Plant Society. It held that the Third District’s holding was “incompatible with our deferential review of the City’s legislative acts.” While requiring agencies to work together to reach a consensus “might be good or bad ideas,” the obligations were not set out in either general plan. Without some standard by which to guide the city’s behavior, the court could not readily enforce the obligation to “coordinate with” but not necessarily “capitulate to” the will of another agency, without treading on the legislative authority of the city. The court held that such an obligation should not be invented out of thin air, and in any event was unworkable.

RMM attorneys Whit Manley and Jennifer Holman represented the City of Newport Beach.