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Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698, 704.

Thursday, November 21st, 2019

Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698, 704.

The Yamanee project, a 10-story mixed-use condominium development in Midtown Sacramento, (Project) exceeded both the density and height limits of its parcel’s zone. A Sacramento General Plan provision allows the City Council to authorize projects at densities higher than the applicable zoning if they are found to provide a significant community benefit. The City found that the Project would create a number of such benefits, including a reduction of residents’ dependence on personal vehicles and the furtherance of the City’s goal to construct 10,000 new residential units in the downtown area. Sacramentans for Fair Planning filed a writ of mandate in the superior court, alleging the City violated zoning law and CEQA by approving the Project. The court denied the petition and Sacramentans appealed to the Third District Court of Appeal.

On appeal, the Court found that under SB 375, if a project is statutorily defined as a transit priority project, a lead agency may utilize a streamlined sustainable communities environmental assessment instead of typical CEQA review methods (an EIR or negative declaration). For a project to qualify as a transit priority project, it must, in part, be consistent with the use designation, density, building intensity, and applicable policies specified for the project area in the regional sustainable communities strategy (SCS).

Sacramentans challenged the City’s use of a Sustainable Communities Environmental Assessment (SCEA) to approve the Project on the basis that SCS development policies in the area were too vague. For instance, the SCS did not identify specific residential densities or building densities for the area. Sacramentans argued that the lack of specificity rendered the SCS unusable as a basis for justifying streamlined CEQA review with an SCEA.

The SCS forecasts a preferred growth scenario for the region which, if followed, would lead to reduced greenhouse gas emissions. To that end, the SCS divides the region into areas and subareas, each forecasted to receive specified amounts and types of development. The SCS designated the Project site as within the central city subarea of the Center and Corridor Community area. This designation allows for relatively dense mixed-use development. As the Court noted, the SCS forecast for the Project area includes a unique capacity for new office, residential, and mixed-use buildings exceeding 3-4 stories, with the potential to more than double the number of housing units in the subarea.

The Court found that Sacramentans misunderstood the role of SCS in their argument when alleging that it was too vague. “The strategy’s purpose is to establish a regional pattern of development, not a site-specific zoning ordinance.” The Court clarified that nothing in SB 375 requires building intensity standards in the SCS more specific than what it contained.

With respect to Sacramentans’ allegation that the lack of specificity rendered streamlining improper, the Court clarified such concerns should be directed to the Legislature, not the Court. The Court stated there was no dispute that the City’s determination of project consistency with the SCS was supported by substantial evidence. Therefore, the Court held that the City was entitled to rely on its consistency determination when using the SCEA.

Sacramentans also asserted that the City erred by relying on EIRs prepared for the General Plan and SCS to avoid analyzing the Project’s cumulative impacts. Sacramentans claimed streamlined review was inappropriate because no prior environmental analysis “has ever considered the cumulative impacts of high-rise development in Midtown approved pursuant to the General Plan.” The Court rejected this argument, and found that CEQA authorized the City to rely on the prior reports as part of its streamlined review of the Project. CEQA required the City, before drafting its SCEA, to prepare an initial study identifying significant or potentially significant impacts, including cumulative impacts. The initial study had to identify any cumulative effects that had been adequately addressed and mitigated in prior applicable environmental impact reports. The Court held that the City’s initial study on the Project, included as part of the SCEA, properly complied with these requirements.

The Court denied the petition, and affirmed the decision of the superior court.

South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal. App. 5th 321

Thursday, November 21st, 2019

South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal. App. 5th 321

In 2014, Forest City California Residential Development, Inc. proposed a mixed-use business and residential project known as “5M” in the area bounded by Mission, Fifth, Howard, and Sixth Streets in San Francisco. The 5M site included seven parking lots and eight buildings with office and commercial uses. The San Francisco Planning Department released a DEIR on October 15, 2014, which described two “options” for 5M—an “office scheme” and a “residential scheme”. Under both, 5M would result in new active ground floor space, office use, residential dwelling units, and open space. Both schemes would reserve and rehabilitate two of the existing buildings on the site, and demolish the six remaining structures. The DEIR discussed nine alternatives to 5M, and rejected five as infeasible.

The San Francisco Planning Commission held an informal hearing on the DEIR, accepted public comment until January 2015, and published the FEIR. Following certification of the EIR, South of Market Community Action Network, Save Our SOMA, and Friends of Boeddeker Park (collectively, Plaintiffs) appealed the decision to the San Francisco Board of Supervisors. The Board of Supervisors denied the appeal. Plaintiffs filed a petition for writ of mandate in superior court alleging CEQA violations. The court heard arguments and denied the writ. Plaintiffs appealed to the Fifth District Court of Appeal, arguing deficiencies in the EIR’s discussion of the project description, cumulative impacts, traffic and circulation impacts, wind impacts, open space impacts, shade and shadow impacts, area plan consistency, and statement of overriding considerations. (For the purposes of this outline, only the project description portion of the Opinion is analyzed in detail.)

Plaintiffs alleged the EIR failed to provide a stable and accurate project description. They argued that the “office scheme” and “residential scheme” alternatives were “confusing” and hampered commenters’ ability to understand the project that was actually proposed and analyzed. The Court found Plaintiffs’ claim that the DEIR presented multiple possible Projects (rather than a description of a single project with two possible buildout schemes) “specious”. The Court noted that Plaintiffs failed to attack the project description on grounds related to CEQA’s technical requirements, or point to erroneously omitted information.

The DEIR’s project description stated that 5M is a mixed-use project on a four-acre site in downtown San Francisco featuring two project options with substantially the same overall gross square footage but with a varying mix of residential and office uses. It set forth measurements of gross square footage for each scheme along with site plans, illustrative massing, building elevations, cross sections, and representative floor plans. The DEIR also evaluated the environmental impacts of each scheme independently. The Court found that this level of detail, along with response to public comment when contentions of confusion arose, constituted an appropriate project description and served the informational nature of the document to allow for public participation.

The Court dispensed with Plaintiff’s reliance on County of Inyo v. City of Los Angeles (1977) 71 Cal. App. 3d 185and Washoe Meadows Community v. Department of Parks and recreation (2017) 17 Cal.App.5th 277, noting that unlike those cases, here, there were no fluctuations in the project description during the EIR process, the initial project description was not misleading and a small fragment of the ultimately approved project, and the project description clearly identified what was going to be built in either proposed scheme.

Plaintiffs alternatively alleged the 5M project description was deficient because the FEIR ultimately adopted a proposed plan based not on the two described schemes, but rather, based on a “revised” variant of the preservation alternative identified in the DEIR. The Court found Plaintiffs failed to identify any component of the revised project unaddressed in the DEIR, and stated that the CEQA reporting process is intended to be flexible to allow for the implementation of “unforeseen insights” gained during the project consideration. The Court stated that the whole point of requiring evaluation of alternatives in a DEIR is to allow thoughtful consideration and public participation regarding other options that may be less harmful to the environment. If the approved action must be a blanket approval of the entire project as initially described in the EIR, the informational value of the document would be “sacrificed”. The Court concluded that although the project description did not include a verbatim description of the ultimately approved Project, the adopted characteristics came from one of the proposed alternatives; satisfying “one of the key purposes of the CEQA process”.

The First District similarly dismissed Plaintiffs’ remaining arguments relating to cumulative impacts, traffic and circulation, wind, open space, shade and shadow, area plan consistency, and statement of overriding considerations. Accordingly, the Court upheld the judgement of the superior court in full.

Governor Brown Signs Pro-Density, Pro-Housing Bills to Close Legislative Session

Sunday, September 30th, 2018

In the last evening of the last legislative session of his governorship, California Governor Jerry Brown signed two bills directed at increasing housing availability in the State. He signed each September 30, 2018 with no instructive message.

Senate Bill 828, proposed by San Francisco Democratic Senator Scott Wiener, requires local governments to report more data to the State in order to determine local housing needs pursuant to the Regional Housing Need Allocation (RHNA) law, including percentages of people spending more than 30 percent of their income on housing. The bill sets a minimum target vacancy rate of 5 percent as “healthy.” Areas that fail to meet this goal will need to zone for more housing.

Localities will also be required to zone for housing based on both projected needs and current shortages. Previously, the law only required local governments to zone for projected needs and, therefore, allowed shortages already prevalent in the community to be overlooked. As originally proposed, the bill required localities to zone for 200 percent of projected housing needs in order to boost housing production statewide. However, this figure was reduced to 100 percent in committee review and floor debates.

Developers around the State could see more dense residential zoning in cities that previously had few development opportunities. Opponents of the bill argued that the bill transfers too much planning power away from local governments and into the hands of the State.

Assembly Bill 1771, proposed by Santa Monica Democratic Assemblymember Richard Bloom, amends RHNA requirements by focusing more on job-housing balance metrics. RHNA previously required local governments to plan for an increase of the overall housing supply in a way that includes a mix of housing types and affordability across the region “in an equitable manner.” AB 1771 added that this must be done to “avoid displacement,” increase access of “high opportunity” jobs for low-income residents, and “affirmatively further fair housing.”

Proponents of the bill see it as forcing affluent municipalities to build their fair share of affordable housing. Specifically, the bill represents an effort to force wealthy cities like Beverly Hills and those surrounding San Francisco to plan for additional affordable housing so that existing low-income communities are not solely saddled with the burden of producing more housing.

Both bills support the Legislature’s recent push to use housing supply laws to make it harder for cities to say no to projects that would help alleviate the housing crisis in California.

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Other housing bills that the governor signed include the following

SB 1227 – Provides density bonuses for developments to be occupied by college students

AB 829 — Prohibits any letter of acknowledge requirement for state-assisted projects

AB 2238—Requires LAFCOs to consider regional housing need, fire hazard and other emergencies in project proposals

AB 2372—Allows city or county to award floor area ratio bonus by ordinance, upon developer request

AB 2753 –Requires city or county provide project applicant determination of density and parking bonus

AB 2797— Provides density, parking, and other bonuses be permitted in a manner consistent with the Coastal Act

AB 2923 –BART required to adopt transit oriented development (TOD) standards for each station

Endangered Species Act Proposed Rules Lighten Required Considerations for Threatened Species, Narrows Agency Responsibilities for Critical Habitats

Friday, July 20th, 2018

On Thursday, July 19, 2018 the U.S. Fish and Wildlife Service (USDFW) and the National Oceanic Atmospheric Administration (NOAA) released proposed revisions to the federal Endangered Species Act (ESA). These proposals amend procedures for species protection by changing requisite considerations and protections afforded “threatened” species, limiting the time scope for such considerations, and streamlining agency consultation.

The Endangered Species Act prohibits federal agencies from authorizing, funding, or carrying out any action that would jeopardize a critical habitat that an endangered or threatened species relies on. Specifically, it is prohibited that any project “take,” or harm, any plants, animals or invertebrates that are listed as threatened or protected. Originally passed in 1973, the Act has been significantly amended in 1978, 1982, and 1988 to meet modern demands.

The proposed rules would extinguish the “blanket rule” under section 4(d) of the ESA, which provides the same level of consideration and protection to threatened species as it does to endangered species. Threatened species are those that are likely to become endangered but are not currently endangered, at risk of extinction. Currently, protections that shield threatened species mirror those for endangered species unless otherwise specified. The proposed rules would permit USDFW to craft specific plans for each threatened species determination that are “necessary and advisable for the conservation of the species,” according to the USDFW press release. While NOAA currently employs a similar practice, it may make it more difficult to shield species.

The proposed rules would shorten the requisite timeline for species endangerment considerations. Currently, “threatened” means “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The vagueness of “foreseeable future” has been useful for environmental advocates to promote consideration of how climate change may affect the species. The proposed rules would change this section to mean only so far as can be “reasonably determined” that both the future threats and the species’ responses to those threats are foreseeable. This means that climate change considerations may not be required.

In the same vein, the proposed rules would repeal the prohibition on considering economic factors when deciding whether or not a species should be protected and the procedure to delist a species will now be the same standard as decisions to list the species.

Section 4 also deals with the procedures for listing, recovery and designating of critical habitats, or areas essential to support the conservation of a species. The proposed rules would revise the procedure for designating critical habitat by incorporating a non-exhaustive list of circumstances where they may find that designation of a critical habitat for a particular species would not be prudent. The agency will first evaluate areas currently occupied by the species before considering unoccupied areas. Additionally, the proposed changes would clarify when they may determine unoccupied areas are essential or not to the conservation of the species.

While none of these changes will be retroactive, they are part of the Trump Administration’s refocusing of federal environmental laws. Last month the administration began the process of overhauling the National Environmental Policy Act (NEPA). The Environmental Protection Agency, meanwhile, has used industry guidance documents and policy memos to dial back its oversight of air pollution under the Clean Air Act.

Deputy Secretary of the Interior Department described the ESA rule proposals as streamlining and improving the regulatory process. Indeed, per the USDFW press release, the changes are meant to narrow consultation requirements and allow federal agencies to simplify their actions with shorter ESA consideration. Opponents are concerned the changes will vacate protections for threatened species and weaken USDFW and NOAA’s abilities to address climate change.

The public has 60 days to issue comments on the proposed rules before the Interior Department and the Department of Commerce finalizes them.

Fourth District Court of Appeal Finds Project Approval Improper in Seaside Subdivision; Cites Inconsistency with Local Law, Health and Safety Violations

Thursday, February 8th, 2018

In Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034, the Fourth District Court of Appeal reversed the trial court and upheld the City Council’s findings that a mitigated negative declaration (“MND”) prepared for a vesting tentative parcel map and related construction permits (“Project”) was inadequate.

The Project proposed subdividing a 1.45-acre lot into four lots, retaining an existing two-story residence on one lot, and constructing a new residence on each of the three remaining lots. The Project site is located in the La Playa neighborhood of the Peninsula Community Plan (“Plan”) area, which includes large single-family homes of various ages and architectural styles.

The proposed four lots would share a private driveway, but the slope of the driveway would be too steep for fire trucks to access the property. Accordingly, the Project would include the installation of standpipes near the furthest three residences, which would provide fire personnel with direct access to water connections in an emergency. The Project requested deviations from applicable development regulations, including the minimum rear yard setback, the minimum street frontage, and the maximum height for side yard retaining walls.

After the local community planning board recommended denial of the project based on concerns about fire safety, fire truck access, density, and the appropriateness of the requested deviation, the Planning Commission certified the MND and approved the Project. A citizen appealed the Planning Commission’s decision to the City Council, which found the MND inadequate and reversed the Planning Commission’s decision to approve the Project. The City Council denied the Project because it found it did not meet applicable City requirements, including consistency with the Plan and provisions for public health, safety, and welfare. The owners of the Project site sued the City, alleging violation of their civil rights, inverse condemnation, mandamus, and nuisance. The trial court held for the owners.

On appeal, the court held that evidence in the record supported the City’s findings that the Project was inconsistent with the Plan, particularly the Plan’s goals of conserving the character of existing single-family neighborhoods. The court found that opinions and objections of neighbors, along with expertly prepared renderings of the Project and photographs of the surrounding neighborhood, that lend credence to the neighbors’ opinions, sufficed to support the City’s findings.

The court also held that evidence in the record supported the City’s findings that the Project would be detrimental to public health, safety, and welfare. The record contained expert evidence showing flaws and omissions in the Project’s geotechnical report, as well as evidence showing that the configuration of the residences and steepness of the shared private driveway would present significant challenges for fire services personnel.

Key Point:

To succeed in recourse for City Council disapproval of a project previously approved at Planning Commission, it is essential that the project is aligned with local building requirements and is not detrimental to public health, safety, or welfare.

COURT OF APPEAL PARTIALLY PUBLISHES RECENT URBAN DECAY MND CASE

Thursday, July 14th, 2016

On July 13, 2016, the Fourth Appellate District ordered the partial publication of its recent decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino. Thomas Law Group requested publication on behalf of the California Infill Builders Federation.

The opinion addresses challenges to a proposed retail store on the basis of alleged urban decay impacts and community plan inconsistencies. While these issues frequently arise in California Environmental Quality Act challenges to a Mitigated Negative Declaration (MND), existing published case law is sparse. Significantly, the opinion is the first published decision in nearly a decade to address an urban decay challenge in the context of an MND. In addition, the opinion articulates that the abuse of discretion standard of review, as opposed to the fair argument standard, is appropriate for land use plan consistency determinations relating to policies that “were not adopted to mitigate environmental impacts.”

The only portion of the opinion that was not published by the Court was Section IV, which addresses whether the County was required to disclose that the future occupant of the project was Dollar General.

For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

COURT OF APPEAL PARTIALLY PUBLISHES RECENT GENERAL PLAN CONSISTENCY CASE

Tuesday, July 5th, 2016

On July 1, 2016, the Fifth Appellate District granted Thomas Law Group’s request to publish the general plan consistency argument in Naraghi Lakes Neighborhood Preservation Association v. City of Modesto. This newly published discussion is a useful aid to practitioners and local governments, providing clarification on when general plan policies should be treated as “mandatory development standards.” The sections on the rezoning findings and CEQA arguments remain unpublished. For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

FOURTH DISTRICT UPHOLDS COUNTY’S MITIGATED NEGATIVE DECLARATION FOR DOLLAR GENERAL STORE IN JOSHUA TREE

Friday, July 1st, 2016

In an unpublished opinion, Joshua Tree Downtown Business Alliance v. County of San Bernardino, 2016 Cal. App. Unpub. LEXIS 4405, the Fourth Appellate District rejected a challenge to the County’s approval of a 9,100-square-foot Dollar General store (“Project”) proposed by Dynamic Development (“Dynamic”) in Joshua Tree.

The County circulated an initial study and proposed negative declaration in August 2012. Many of the nearby property owners raised concerns that the Project would be out of character with the family-owned business community in Joshua Tree. In response to such concerns, the County changed its environmental determination from a negative declaration to a mitigated negative declaration and recirculated it in November 2012. After the County Board of Supervisors approved the Project in January 2013, the Joshua Tree Downtown Business Alliance (“Alliance”) filed a petition for writ of mandate, alleging that the County violated the California Environmental Quality Act (“CEQA”) by failing to analyze the Project’s potential for causing urban decay and blight. The Alliance also alleged that the County violated CEQA by attempting to hide the identity of the intended occupant and by approving a project that was inconsistent with the Joshua Tree Community Plan (“Community Plan”).

The trial court held that an EIR was required because there was substantial evidence to support a fair argument that the Project could cause urban decay. The trial court relied on the comments made by Ms. Doyle, a member of the Alliance and a lawyer who had previously counseled on land use issues as an Assistant Attorney General in the Oregon Department of Justice. The trial court reasoned that her experience demonstrated sufficient relevant personal observations that constituted substantial evidence under CEQA. Dynamic appealed and the Alliance cross-appealed on the remaining claims.

On appeal, the court reversed the trial court on the urban decay claim, holding that the mere fact that the Project may have potential economic impacts did not require an EIR where the economic impacts would not cause reasonably foreseeable indirect environmental impacts. The court found that the County properly considered that this was a “small box” retail project rather than the typical “big box” retail project analyzed in urban decay cases. The court also rejected the Alliance’s contention that Ms. Doyle’s opinions should have been considered substantial evidence. The court explained that Ms. Doyle was not qualified to opine on the Project’s economic impacts because she was not an economist and, moreover, her conclusions that urban decay would occur were speculative because they had no factual basis.

Next, the court rejected the Alliance’s allegation that the County violated CEQA by failing to identify the end user of the Project. The court recognized that CEQA does not require a lead agency to disclose an end user generally, but there may be times where the identity of the end user would be considered “environmentally relevant.” That was not the case here because Alliance did not produce any evidence that a Dollar General would have adverse environmental impacts beyond that of a “general retail store.”

Finally, the court rejected the Alliance’s argument that Project required an EIR because it was inconsistent with the Community Plan. The court declined Alliance’s request to view this as a CEQA issue that should be reviewed under the fair argument standard. Instead, the court applied the usual standard for a claim of inconsistency with a land use plan: abuse of discretion. The court held that the mere fact that the Project might compete with established local businesses did not make it inconsistent with the Community Plan’s provisions encouraging small businesses, and found that the terms “encourage” and “support” to be amorphous policy terms that gave the County discretion when making its consistency determination. Accordingly, the court found that the County had not abused its discretion.

NEWLY PUBLISHED FOURTH DISTRICT OPINION FINDS WAL-MART PROJECT INCONSISTENT WITH GENERAL PLAN AND CREATES NEW FINDINGS REQUIREMENT FOR PARCEL MAP APPROVALS

Monday, June 20th, 2016

On June 15, 2016, the Fourth District Court of Appeal published its opinion in Spring Valley Lake Association v. City of Victorville (D069442). The case involved a CEQA and Planning and Zoning Law challenge to a Wal-Mart project (“Project”) that was approved by the City of Victorville. After the trial court found in favor of Petitioner Spring Valley Lake Association (“Petitioner”) on some of its claims, Real Party in Interest Wal-Mart appealed and Petitioner cross-appealed.

Wal-Mart’s Appeal

Wal-Mart appealed the trial court’s determinations that: (1) there was no substantial evidence in support of the City’s general plan consistency finding; and (2) the EIR had inadequately analyzed the Project’s greenhouse gas emissions impacts. The appellate court affirmed the trial court’s judgment on both issues.

The general plan consistency issue turned on one policy, IM 7.1.1.4, which requires all new commercial or industrial development to generate electricity on-site “to the maximum extent feasible.” The Project was developed to be solar ready, but Wal-Mart did not commit to the installation of panels because, as explained in a response to comment, it was uncertain whether the $750,000 cost would be offset by any federal tax credits or California incentives. Without the offsets, the response stated that the installation was economically infeasible. The court interpreted this response as effectively finding that “there was no extent to which it would be feasible to require the project to generate electricity on-site, whether by solar or other means.” The court held that this finding was not supported by substantial evidence in the record because there was no mention of why non-solar methods of generating electricity on-site were infeasible. The court showed little deference to the City’s own interpretation of what was considered “feasible” in this situation.

Surprisingly, despite the policy’s ambiguous language “to the maximum extent feasible,” the court held that this was a “fundamental, mandatory, and clear” policy. As such, the Project’s failure to be in conformance with this one policy was sufficient for the court to reject the City’s general plan consistency determination. (See Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782.)

Turning to the EIR’s greenhouse gas analysis, the court held there was conflicting evidence about whether the Project would achieve a 15-percent reduction above Title 24 standards. References in the EIR stated in some places that the figure would be 14-percent, and in others, 10-percent. Because the record did not show the Project would actually achieve the 15 percent reduction, the court held that there was no support for the City’s determination that the Project would not have significant greenhouse gas emissions impacts.

Petitioner’s Cross-Appeal

Petitioner cross-appealed the trial court’s determination that the City did not violate CEQA by failing to recirculate the EIR after it revised the traffic, air quality, hydrology, and biological resources impacts analyses. The court of appeal held that recirculation was required only for the air quality and hydrology analyses because the revisions to those sections constituted “significant new information” and the public did not have a meaningful opportunity to comment on those changes.

Petitioner also argued on appeal that the City violated the Planning and Zoning Law by failing to make all the findings required by Government Code section 66474 before approving the Project’s parcel map. In what appears to be an issue of first impression, the court agreed, relying on an Attorney General’s Opinion from 1975.

Key Point: Going forward, local governments should affirmatively address that the approval of the parcel map does not create any of the issues listed in Government Code section 66474. Local governments should also continue to make findings under Government Code section 66473.5 when approving a parcel map.

Thomas Law Group is requesting depublication of the Court’s general plan consistency discussion as it departs from the existing case law’s emphasis on deference to the agency’s determination of consistency.

FIFTH APPELLATE DISTRICT REJECTS GENERAL PLAN CONSISTENCY AND CEQA CHALLENGES TO LARGE SHOPPING CENTER PROJECT IN AN UNPUBLISHED OPINION

Thursday, June 16th, 2016

A neighborhood group, Naraghi Lakes Neighborhood Preservation Association (“Petitioner”), challenged the City of Modesto’s approval of a 170,000 square foot shopping center project (“Project”) on an 18-acre site adjacent to an established residential neighborhood. Petitioner alleged that the City’s approval was inconsistent with Modesto’s General Plan and did not comply with CEQA. On June 7, 2016, the Fifth District ruled in favor of the City in an unpublished opinion, Naraghi Lakes Neighborhood Preservation Association v. City of Modesto, 2016 Cal. App. Unpub. LEXIS 4149.

The Project area was within the General Plan’s “Neighborhood Plan Prototypes,” which were designed to create a blueprint for residential neighborhood development. One of the Neighborhood Plan Prototype’s policies requires: “A 7-9 acre neighborhood shopping center, containing 60,000 to 100,000 square feet gross leasable space.” Petitioner argued that the large size of the Project was inconsistent with this policy. The court disagreed, finding that the prototypes were meant to provide guidance, not inflexible mandates, and that the Project was in conformance with other General Plan policies. The court emphasized that perfect conformity will all policies is not required and that a finding of consistency should be upheld unless “no reasonable person could have reached the same conclusion.”

Next, the court found that the City had made the appropriate findings required by the General Plan to rezone the property and rejected Petitioner’s argument that the proposed environmental mitigation was not “adequate” because some traffic impacts were not mitigated to less than significant levels. Because other policies in the General Plan allowed the City to avoid making infeasible or prohibitively expensive traffic improvements, the court did not agree with Petitioner’s interpretation of “adequate” mitigation. The court did not consider other general plan consistency arguments proffered by Petitioner because these contentions were not raised in the administrative proceedings.

Finally, the court addressed Petitioner’s argument that the City failed to comply with CEQA because: (1) the findings of infeasibility as to certain mitigation measures were not supported by substantial evidence; (2) the EIR did not adequately analyze a reduced project alternative; (3) the urban decay findings were not supported by substantial evidence; and (4) the findings made in connection with the statement of overriding considerations were not supported by substantial evidence. The court held that there was sufficient evidence in the record to support the various findings singled-out by Petitioner and found that the City’s alternatives analysis complied with CEQA.

Accordingly, the appellate court affirmed the trial court’s judgment in favor of the City.