Tag: Subdivision Map Act

Fourth District Court of Appeal Holds Wal-Mart Project Inconsistent with General Plan Renewable Energy Requirements; CEQA Required City to Recirculate the EIR based on 350-Pages of New Analysis

In Spring Valley Lake Association v. City of Victorville (2016) 248 Cal.App.4th 91, Division One of the Fourth District Court of Appeal reversed the San Bernardino County Superior Court’s decision in part, agreeing with the petitioner that revisions to impact analyses after the Draft EIR had been circulated for review constituted significant new information triggering recirculation, and that the Subdivision Map Act required the respondent city to adopt affirmative findings prior to approving a parcel map. The court also held that the project—a commercial retail development anchored by a Wal-Mart—was inconsistent with the city’s general plan.

Subdivision Map Act

The Court of Appeal held that the City of Victorville violated the Subdivision Map Act by failing, in approving the proposed parcel map associated with the project, to make the findings addressing the issues enumerated in Government Code section 66474, subdivisions (a) through (g). On its face, this section seems only to require that a local agency deny approval of a proposal parcel map if it makes any one of the specified findings. The section does not explicitly address what findings must be made in approving a proposed parcel map. The court held, however, that section 66474 does apply in the latter situation, and requires city and county legislative bodies, in approving parcel maps, to make affirmative findings on each matter addressed in subdivisions (a) through (g) of that section. In reaching this conclusion, the court relied on the following: (i) a related provision of the Subdivision Map Act (Government section 66473.5), which requires local legislative bodies, in approving parcel maps, to affirmatively find that such maps are consistent with the governing general plan and any applicable specific plan; (ii) a 1975 opinion from the Attorney General concluding that section 66474 requires affirmative findings for parcel map approvals as well as parcel map denials; and (iii) case law and secondary sources supporting the Attorney General’s broad interpretation of section 66474.

Consistency with General Plan

The Court of Appeal agreed with the trial court’s decision that the city’s finding that the project was consistent with the general plan’s requirement for on-site generation of electricity was not supported by substantial evidence. The general plan requires that all new commercial projects generate on-site electricity to the maximum extent feasible. As part of the project approvals, however, the city did not require the project to generate on-site electricity. In doing so, the city effectively found that generation of on-site electricity was infeasible. In support of this outcome, the EIR stated that there were many factors considered in determining whether the use of solar panels is cost effective, and described the project as being “solar ready.” But the EIR provided no discussion of those factors or how they applied to the project. Nor did the EIR discuss the feasibility of other alternatives such as wind power. The appellate court therefore held that the city’s finding that the project complied with the general plan requirement that commercial projects generate electricity on-site to the maximum extent feasible was not supported by substantial evidence. It is not clear why the court applied the substantial evidence standard to petitioner’s general plan consistency claims, rather than the traditional arbitrary and capricious standard.

Greenhouse Gas Emissions

The appellate court affirmed the trial court’s decision that the EIR failed to adequately address the project’s impact on greenhouse gas (GHG) emissions. In concluding the project would have no significant impacts on GHG emissions, the city relied on the project’s compliance with the general plan policy to exceed the Title 24 Building Energy Efficiency Standards for Residential and Nonresidential Buildings by 15 percent. The appellate court determined that this conclusion was not supported by the record. First, the court pointed out inconsistencies in the EIR. In one place, the EIR stated that the project would achieve a minimum of 14 percent increased efficiency over Title 24 Standards. In other places, including the technical reports, the EIR stated the project would only be a minimum of ten percent more efficient than Title 24 Standards. Second, in responding to comments, the city acknowledged that the EIR was “currently not in conformity” with the general plan policy that the project would comply with the new energy efficiency standards at the time of construction, and stated that “several of the project’s current energy efficient measures likely meet the 15 percent requirement.” The court found that, at most, the record showed that the project may comply, but not that it would comply with the general plan policy. Therefore, the city’s conclusion that the project would have no significant air quality impacts from GHG emissions was not supported by substantial evidence.

Recirculation under CEQA

Finally, the appellate court also held that the city’s revisions to analyses of certain impact topics constituted “significant new information” triggering recirculation of portions of the Draft EIR. First, the city added to the Final EIR information analyzing the project’s consistency with general plan air quality policies that had inadvertently been omitted from the Draft EIR. Noting that the public did not have a meaningful opportunity to comment on this information, the court found this information disclosed a substantial adverse effect, and therefore triggered the obligation to recirculate the draft EIR. Second, after the city circulated the draft EIR, the applicant substantially revised the project’s storm water management plan. Although no new impacts were identified, the final EIR included 350-pages of new water quality and hydrology analysis. The court held the new information triggered the duty to recirculate. As the court reasoned: “Given their breadth, complexity, and purpose, the revisions to the hydrology and water quality analysis deprived the public of a meaningful opportunity to comment on an ostensibly feasible way to mitigate a substantial adverse environmental effect.” Notably, the court reached these conclusions without attempting to relate its reasoning to the four examples within CEQA Guidelines section 15088.5, subdivision (a), of situations requiring recirculation.


California Supreme Court Holds Coastal Act and Mello Act Apply to Conversions of Rental Mobilehome Parks to Residential Ownership

On November 29, 2012, the Supreme Court of California in Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles, (2012) __ Cal.4th __ (Case No. S187243) affirmed the judgment of the Second District Court of Appeal, finding a mobilehome park conversion is a “subdivision” under the Subdivision Map Act and also a “development” subject to permitting requirements of the Coastal Act.

The controversy in this case arose after the City of Los Angeles (City) rejected an application from Palisades Bowl Mobile Estates, LLC to convert its 170-unit mobilehome park, which is within the coastal zone, from tenant occupancy to resident ownership. The City asserted Palisades Bowl had failed to include applications for a coastal development permit or for Mello Act approvals. Rather than submit these applications, Palisades Bowl filed a petition for writ of mandate and complaint for injunctive and declaratory relief.

At the trial court, Palisades Bowl argued the proposed conversion from tenant occupancy to resident ownership was not subject to the Coastal Act because it was not a “development” as defined by that act. The trial court agreed and also found that Government Code section 66427.5 precluded the City from imposing conditions and requirements mandated by the Coastal and Mello Acts. The court of appeal reversed the trial court’s decision, and the Supreme Court subsequently granted review.

The Supreme Court’s Decision

i.        The Coastal Act

The Supreme Court first addressed whether the Coastal Act requires a permit for mobilehome park ownership conversions. The Coastal Act requires a coastal development permit for “any development” in the coastal zone. Public Resources Code section 30106 defines “development” as a “change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act.” The Court pointed out that the Subdivision Map Act specifically refers to mobilehome park conversion as a form of subdivision.

Palisades Bowl argued the conversion of the mobilehome park was not a development under the Coastal Act because it would not alter the density or intensity of land use. The Supreme Court disagreed and cited to Public Resources Code section 30106, which lists “subdivision” in a non-exclusive list of projects subject to the Coastal Act. Furthermore, the Court noted that section 30106 addresses changes in the intensity of land uses. Therefore, Palisades Bowl’s assumption that the Coastal Act only applied to projects increasing density or intensity of use was mistaken.

The Supreme Court held that all subdivisions, even conversions of mobilehome parks that do not immediately alter use of land, are “developments” for the purposes of the Coastal Act. The Court also concluded that a broad interpretation of “development” as used in the Coastal Act is consistent with what the Legislature intended.

ii.      The Mello Act

The Supreme Court next considered whether the requirements of the housing elements law, Government Code sections 65580-65589.8, applies to conversions of residential units within the coastal zone. Under these Government Code sections, local governments are required to adopt a “housing element” as part of their general plans. The housing element must identify and analyze existing and projected housing needs, among numerous other requirements. The Mello Act supplements the housing element requirements by establishing “minimum requirements for housing within the coastal zone for persons and families of low or moderate income.” Specifically, local governments are prohibited from authorizing the conversion or demolition of occupied low or moderate income residential units without making provisions for the replacement of those units.

The Supreme Court held the Mello Act expressly applies to “most conversions” of residential units in the coastal zone, including the conversion of the ownership structure of a mobilehome park.

iii.    The Subdivision Map Act

Lastly, the Supreme Court considered Palisades Bowl’s argument that Government Code section 66427.5 of the Subdivision Map Act exempts mobilehome park conversions from other state laws, regulations, or policies. Palisades Bowl argued that this section prohibits local governmental entities from enforcing compliance with any state law requirements other than those imposed by section 66427.5.

Government Code section 66427.5 imposes several requirements on subdividers and seeks to prevent the economic displacement of all nonpurchasing residents during the conversion of a rental mobilehome park to resident ownership. Part of the procedure required by section 66527.5 involves a hearing before the relevant decision-making body which is limited in scope to the issue of compliance with section 66427.5. Palisades Bowl argued that by limiting the scope of the required hearing, the Legislature intended to define the full extent of local government’s obligation and power to review an application for an ownership conversion of a mobilehome park. By this reasoning, the City lacked authority to reject Palisades Bowl’s application for failure to comply with the Coastal and Mello Acts.

The Supreme Court disagreed with Palisades Bowl, holding Government Code section 66427.5 does not exempt conversions of mobilehome parks to resident ownership from compliance with the Coastal Act and Mello Act. The Supreme Court construed the hearing requirement of section 66427.5 to allow local agencies to establish procedures and conduct additional hearings required by other state laws, including the Coastal and Mello Acts.