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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from August, 2018

California Supreme Court Allows Referendum Vote That Would Make Zoning Ordinance Inconsistent with General Plan for “Reasonable Time”

Thursday, August 23rd, 2018

The notable hillside El Toro raises behind the prominent community of Morgan Hill. (Phillip Stoffer/Paula Messina)

In City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, the California Supreme Court held that a local referendum challenging a zoning ordinance amendment in the City of Morgan Hill (a general law city) was valid even where the referendum, if adopted by the local electorate, would be inconsistent with the general plan, so long as the city has the means to make the two consistent within a “reasonable amount” of time.

Seeking the construction of a hotel, the City of Morgan Hill, amended the city’s general plan to change a parcel designation from industrial use to commercial use in 2014; the zoning ordinance remained unchanged. Subsequently, in early 2015, the city approved rezoning the parcel from “ML-Light Industrial” to “CG-General Commercial.” Local hotel owners established the Morgan Hill Hotel Coalition (Coalition) to challenge the city’s approval of the rezone by referendum. The city declined to place the referendum on the ballot concluding that it was invalid because, if adopted by the local electorate, it would result in an inconsistency between the city’s current general plan and zoning ordinance. Coalition brought suit challenging the city’s decision not to place the referendum on the ballot.

The trial court, following the holding in deBottari v. City of Norco (1985) 171 Cal.App.3d 1204 (deBottari) that a referendum that “enacts” a zoning ordinance inconsistent with the general plan is invalid, held in favor of the city. Coalition filed an appeal.

The appellate court disagreed with the holding in deBottari and reversed the trial court, holding that referendums are not per se invalid if they contradict the general plan. Citing Government Code section 65860, subsection (c), the appellate court held, where a city could adopt a new designation within a “reasonable time,” a referendum may be valid. (City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34.) The California Supreme Court granted review.

The Court first emphasized the importance of the referendum power to alter local government policy, subject to preemption by the state legislature in only a few cases. At a local level, this power may only be preempted where there is a “definite indication” or “clear showing” that it was within the ambit of the Legislature’s purpose to restrict those rights. For instance, the Court elaborated, there is no reason to maintain the referendum power over ministerial or administrative tasks of local governments, they have no discretion. In addition, the Legislature maintains some power over local government authority to guide land use where it is an issue of “statewide concern,” for example the mandate to have a general plan.

Turning to the issue at hand, the City claimed that the referendum was invalid because it was “essentially an initiative causing the zoning ordinance and general plan to conflict.” The Court held that a referendum is not null simply because of an inconsistency with the general plan. Relying on Government Code section 65860, subdivision (a), the Court explained that such a referendum is not the final imposition where a local government “can use other means to bring consistency to the zoning ordinance and the general plan.” Here, the Court found that, if the referendum passed, the city was at liberty to change the zoning ordinance to another conforming use that was in line with the general plan. Essentially, the city was not without options.

The Court clarified that the referendum power should not be viewed as the power to repeal an ordinance or revive another, instead it provides the ability of the electorate to weigh in on a local government decision. Thus, the trial court was wrong to say the referendum would “enact” an ordinance. A referendum, rather than rewriting and establishing a specific ordinance, merely prevents a certain type of change from happening and directs the local government to take a different direction.

The Court concluded:

Given our duty to protect the referendum power, we conclude the Court of Appeal was correct to hold that a referendum can be used to challenge a zoning ordinance amendment that attempts to make the zoning ordinance consistent with an amended general plan. But it is not clear if other zoning designations were available for the property here, or whether the City has other means to comply with a successful referendum while making the zoning ordinance and the general plan consistent with one another. So we vacate the judgment of the Court of Appeal and remand the case to the Court of Appeal with directions to remand to the trial court to address these questions.


Key Point:

A referendum that results in a zoning ordinance inconsistent with the general plan may be valid so long as the local government may be able to bring them in to congruence with one another within a “reasonable time.”  In reaching its holding, the Court focused on Government Code section 65860, which applies to general law cities and certain charter cities (pursuant to subdivision (d) of the statute).  Therefore, the Court’s holding does not directly apply to charter cities that are not subject to Government Code section 65860.

Fact-Based Residents’ Comments Substantial Evidence Meriting CEQA Review, Special Commission’s Findings Substantial Evidence Meriting CEQA Review

Wednesday, August 22nd, 2018

The Niles Historic District’s distinctive style is clear on the building facades of the District’s downtown area. (Craig Miyamoto)

In Protect Niles v. City of Fremont (2018) 2018 Cal.App.LEXIS 700, the First District Court of Appeal held the Niles Historical Architectural Review Board’s (HARB) factual findings and members’ collective opinions about the compatibility of a project with the Niles Historic Overlay District rose to the level of substantial evidence when given by a special commission with particular knowledge. Further, fact-based comments in the record by residents, city officials and staff, and professional consultants, notwithstanding a traffic impact study to the contrary, amounted to substantial evidence supporting a fair argument of a significant traffic impact.

Niles Historic Overlay District (HOD) is an officially-designated historic district within the City of Fremont subject to guidelines and regulations to maintain the distinctive look and character of the area. Projects in the HOD area are initially proposed to HARB for review in light of HOD guidelines. HARB then recommends approval or denial of the project to the city council.

In 2014, Real Parties in Interest Doug Rich and Valley Oak Partners (Valley Oak) submitted an application to build 80-90 residential townhouses on a vacant six acre lot; HARB recommended the Project be denied. Taking this into consideration, and amidst ample critical comments, the city approved the Project with a mitigated negative declaration (MND).

Community action group Protect Niles petitioned the trial court for a writ of mandamus to set aside the Project approval and prepare an EIR analyzing a handful of environmental impacts. The trial court found substantial evidence in the record supported a fair argument of significant impacts on community aesthetics and traffic only and set aside the Project approval until an EIR was complete on these issues. Valley Oak appealed this decision.

The Court established that, despite Protect Niles’ claims to the contrary and the Court’s discretion to determine either way, the appeal was not moot. The Valley Oak had already submitted a revised Project application and the city had published a draft EIR therefore “voluntarily complied.” However, this was not tantamount to Valley Oak withdrawing the original Project or abandoning its claims so the Court continued.

The Court set out that CEQA is interpreted to afford the fullest possible protection to the environment. Because of this, an EIR is required where there is any substantial evidence in the record, contradicted or not, supporting a fair argument that a project may have a significant effect. Public participation is an essential element of that determination.

There were numerous comments within the record that the Project did not fit the aesthetic of the neighborhood. Per the CEQA Guidelines, an aesthetic impact is where a project has the potential to substantially degrade the existing visual character or quality of the site and its surroundings. Within that framework, aesthetic impacts are highly context-specific. Here, the record contained opinions of the HARB commissioners and Niles residents that the Project’s height, density, massing, and architectural style were inconsistent with the Niles HOD. These comments “differed sharply as to the Project’s aesthetic compatibility with the historic district.” The comments were not conjecture or speculative but grounded in inconsistencies with the prevailing building heights and architectural styles of the HOD. Thus, the Court found there was substantial evidence of an adverse impact on the unusual setting of the Niles HOD as mapped and officially recognized by the city and the city’s reliance on a MND was improper.

Briefly, the Court established that this analysis does not undermine CEQA environmental review of historical resources as that is a more comprehensive analysis, focusing on “direct physical changes to historical resources themselves that materially impair those resources’ historical significance, not a project’s aesthetic impact on its historical setting.”

The Court then criticized the traffic impact analysis. The city had conducted a professional traffic study concluding the impacts would fall below the city’s threshold of significance. Despite this, the Court found the study was shortsighted for operating under the presumption drivers follow the speed limit. The city was also culpable for failing to implement the study’s recommendation to establish a left-turn pocket lane. The record contained critical comments by residents, city officials and staff, and professional consultants based on their personal experiences driving in the area. The Court found, notwithstanding the traffic study, these fact-based comments constituted substantial evidence supporting a fair argument the Project will have significant adverse traffic impacts.

The Court affirmed, awarding costs to Protect Niles and directing the city to prepare an EIR if it were to go through with the original project design.

Key Point:

Personal observations on nontechnical issues can constitute substantial evidence of a fair argument of a significant environmental impact. Specifically, residents’ observations of environmental conditions where they live and commute may constitute substantial evidence even if they contradict the conclusions of a professional study.

Argument and Speculation that a Project will Violate Local Code Requirements is Insufficient to Support a Fair Argument that a Project may have a Potentially Significant Impact on the Environment

Friday, August 10th, 2018

A topigrahical map of riverside, California. (Ryan Niemi /Sunset Dynamics)

In Friends of Riverside’s Hills v. City of Riverside (2018) 26 Cal.App.5th 1137, the Fourth District Court of Appeal denied a neighborhood group’s petition to set aside the City of Riverside’s (City) approval of a six single-family housing development (Project) where there was no substantial evidence supporting a fair argument of a violation of the land use ordinances and no evidence of an abuse of discretion.

Before this controversy arose, the City established a residential conservation zone in order to protect the hills, canyons, and unique natural views of the area. Within this zone, planned residential developments (PRD) meeting eight criteria are permitted to deviate from conventional subdivisions requirements in specified ways. The purpose of this allowance is to provide more flexibility in site density and individual lot size for PRDs. A PRD applicant may also pursue a “density bonus.” To do this, the PRD plan must cluster residences in the less steep portions of the site, appoint a conservation group to maintain open space areas, and achieve at least six of eleven “superior design elements” that promote environmentally conscious design.

In November 2013, Real Parties in Interest Carlton and Raye Lofgren (the Lofgrens) submitted plans for a PRD with a density bonus to subdivide a 12-acre site into six lots with designated open space. The Planning Commission recommended the City Council approve the Project and adopt a negative declaration. The City Council ultimately approved the Project and adopted a negative declaration with a revised tract map showing the site as 11.6 acres with six lots clustered on the less steep parts of the site and the remainder of the site designated as open space.

Friends of Riverside’s Hills (FRH) brought suit challenging the City’s approval. FRH alleged the Project failed to properly cluster the residences as required to qualify as a PRD, and failed to seek a variance from the City’s standard lot size requirement. The trial court denied the petition in its entirety. FRH appealed.

On appeal, FRH advanced numerous arguments alleging that the Project violated the City’s code.  The Court concluded that the record established that the Project, as approved, did not violate the City’s code.

First, the Court explained that FRH’s claims that the Lofgrens would not comply with the Project’s conditions of approval and that the homes would be unlawfully placed in high grade portions of each lot were speculative.  The tract map approved by the City showed division of the site into lots but not where the residence would be on each lot. FRH’s claim that the Lofgrens would not build each residence in accordance with the municipal code was therefore speculative, absent any additional evidence.

Next, the Court rejected FRH’s argument that the City violated its code by failing to require the Lofgrens seek individual variances for each lot. The Court explained that, pursuant to the express requirements of the City’s code, individual lot variances are only required for conventional residential developments, not PRDs.

In reaching its holding, the court distinguished Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 (Pocket Protectors).  In Pocket Protectors, “ample” evidence supported the conclusion that the project violated the city’s land use provisions and those violations had the potential to result in significant environmental impacts. Here, while the Court concluded that the code provisions identified by FRH were adopted to potentially avoid or mitigate environmental impacts of development, the Court held that the City did not violate its code in approving the Project.  As a result, the Court necessarily concluded that FRH could not make a “fair argument” that an EIR was necessary in reliance on the alleged code violations.

FRH also argued that the City abused its discretion in approving the Project because the City’s conclusion that the natural slope of the lots was between 15 and 30 percent was not supported by substantial evidence and because it was improper for the City to allow developer to defer selection between design elements authorized by the City until the grading permit stage.  The Court quickly rejected the slope argument stating that it “borders on frivolous” because Lofgren’s engineer submitted many reports throughout the approval process demonstrating that the slope does not exceed 30 percent.

Finally, in rejecting, FRH’s deferred design element argument. The court first noted that at the time the City approved the Project the Lofgrens had already demonstrated in their proposed plans which designs they proposed to utilize. Thus, this information was before the City when it approved the Project. Moreover, per the municipal code, an applicant is not required to choose the design elements at this stage of the approval process because it is difficult, if not impossible, to know which building or landscaping elements are feasible at this stage.

Key Point:

Where a challenger alleges violations of local code as a basis for asserting a fair argument that a project may have a significant environmental impact, the challenger has the burden to both demonstrate a violation or conflict with the local code exists and that the local code provisions at issue were adopted for the purpose of avoiding or mitigating an environmental effect.