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City Charter Must Explicitly Limit Municipal Power to Approve General Plan Amendment of Single Parcel Initiated with Project Proposal, Los Angeles Auto Mall Conversion Project Valid

Monday, October 1st, 2018

Plans for the Martin Expo Town Center in West Los Angeles show residential, retail, and office space. (Martin Town Expo Center)

In Westsiders Opposed to Overdevelopment v. City of Los Angeles (2018) 27 Cal.App.5th 1079, the Second District Court of Appeal held that a charter city may approve a general plan amendment for a single project site, even if initially requested by a project applicant, so long as the city’s charter did not “clearly and explicitly” limit or restrict such an action.

In 2013, Real Party in Interest Philena Property Management, LLC (Philena) filed for a land use permit with the City of Los Angeles (City), a charter city, to convert an auto mall into residential, retail, and office space close to a new light rail station and other transit (Project). The Project required preparation of an EIR, a development agreement between Philena and the City, several conditional use permits, and, of chief concern here, an amendment to the City’s general plan to change the project site land use designation. The City reviewed the proposal, granted the project requirements, and approved the Project in September 2016. Westsiders Opposed to Overdevelopment (Westsiders), an association of neighborhood residents, filed suit.

Westsiders alleged that the City exceeded its authority in the Los Angeles City Charter section 555 subdivisions (a) and (b) (Sections 555(a) and 555(b)) by approving a general plan amendment for a single parcel and allowing Philena to effectively initiate the amendment. The trial court held that the City did not exceed its authority or abuse its discretion in amending the general plan. Further, the trial court denied Westsiders’ request for judicial notice of early drafts and proposed amendments to Section 555 where interpreting the statute did not require review of its legislative history. Westsiders timely appealed.

The Appellate Court first addressed whether it is proper to seek a writ of mandate or administrative mandamus for relief in this situation. Westsiders contended that Code of Civil Procedure section 1094.5 applied and the award of an administrative mandamus is appropriate here “to review the final adjudicative action of an administrative body.” The Court found that this claim misplaced as a general plan amendment is a legislative action and Government Code section 65301.5 explicitly says that a legislative action is to be reviewed for a writ of mandate, pursuant to Code of Civil Procedure section 1085.

The Court then laid out that such legislative acts are presumed valid per San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498. Further, the Court must be “[m]indful of the rule that [it] cannot construe a charter to restrict municipal power without a clear mandate in the charter itself.” Such a restraint requires “clear and explicit limitations or restrictions” in the charter itself. This standard is in addition to principles of statutory construction which require the Court to, in the first instance, rely on the plain language of the statute. If clear, the Court need not go any further in its inquiry. Ultimately, the City’s interpretation of its own charter is “entitled to great weight and respect unless shown to be clearly erroneous and must be upheld if it has a reasonable basis.”

With this in mind, the Court turned to Westsiders’ arguments that the City exceeded its authority in approving the general plan amendment. Section 555(a) permits general plan amendments for, as pertinent here, “geographic areas, provided that the part or area involved has significant social, economic, or physical identity.” Westsiders claimed that a single parcel of land could not qualify as a geographic area. Relying on the dictionary definitions for each word, the Court determined that “geographic area” means any physical region. The parcel was indeed a physical region that satisfied this definition despite its singularity and small size. Second, Westsiders claimed that the parcel did not have “significant social, economic, or physical identity” as it was a car lot in a busy area with no distinctive features. The Court held that the City had no “clear and explicit” categorical limits on what it could and could not determine to be significant. Consequentially, the Court held in favor of not restricting municipal power.

Westsiders alleged that the City was required to make explicit findings that the project site qualified as a geographic area of significant economic or physical identity. The Court, after pointing out that Westsiders did not cite any authority for this claim, held that the City was not required to make explicit findings for a legislative act per San Francisco Tomorrow. The City did find that the project site had a significant physical and economic identity near a transit-oriented area and was one of the largest underutilized parcels in the area. These findings, though unnecessary, supported the City’s decision to issue a general plan amendment for the site.

The Court then addressed Westsiders’ argument that the City violated Section 555(b) by allowing Philena to initiate a general plan amendment with a project proposal. The Section provides “[t]he Council, the City Planning Commission, or the Director of the Planning Commission may propose amendments to the General Plan.” The Court found that, while the Charter outlined certain permissions for initiating an amendment, it did not provide any “clear and explicit limitation” to do so. The Court held that, absent such a limitation, the City did not violate Section 555(b) in responding to Philena’s request for the amendment.

Finally, the Court addressed Westsiders’ contention that the City’s action constituted impermissible spot zoning where there was no “substantial public need.” Since Westsiders did not raise this claim at the trial level, they waived their right to appeal the issue.

The Court affirmed the trial court’s denial of the petition.

Key Point:

Claims against a charter city’s legislative action must be supported by “clear and explicit” limitations in the plain language of the city’s charter.

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

Sunday, September 30th, 2018

Housing shortages in the State have inspired the Legislature to readjust the regulatory framework. (Joakim Lloyd Raboff)

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.

*****

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

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.

COURT OF APPEAL EXTENDS CEQA HOLDING ON RECORD PREPARATION LABOR COSTS TO OTHER ADMINISTRATIVE RECORD CASES

Monday, August 1st, 2016

After successfully defending a challenge to a resolution granting nonconforming use status to a mining operation in Santa Clara County, Respondent’s attorney filed a motion to recover costs associated with the preparation of the administrative record. This included the labor costs for the attorneys and paralegals who had assisted with the preparation of the large and complex record. Respondent was not otherwise entitled to recover attorney’s fees, and Petitioner argued that to grant these fees in the context of labor costs would be the equivalent of granting attorney’s fees.

While the trial court found that there was good reason to grant the costs due to the complexity of the record, it ultimately denied the motion because there was no appellate legal authority on point. In No Toxic Air v. Lehigh Southwest Cement Co., 2016 Cal. App. LEXIS 624, the Court of Appeal provided that authority by extending CEQA precedent to other proceedings that involve an administrative record.

In the CEQA context, this issue was definitively decided in Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60,where the court ruled that the prevailing party could recover the labor costs of attorneys and paralegals in the creation of the administrative record as long as the labor costs were reasonably and necessarily incurred. To hold otherwise, the court stated, would undermine the statutory policy of shifting the costs and expenses of preparing the administrative record.

Here, the Sixth District held that the same reasoning used in Otay Ranch applied in other cases in which an administrative record was prepared. Accordingly, the Court held that labor costs for attorneys and paralegals to prepare the administrative record are recoverable as expenses under Code of Civil Procedure, section 1094.5, subdivision (a).

Key Point: A prevailing party can recover the labor costs of attorneys and paralegals in the creation of the administrative record, even in non-CEQA administrative mandamus cases, as long as the labor costs were reasonably and necessarily incurred.

IN CENTRAL VALLEY SHOWDOWN OVER ANNEXATION, THE CITY OF KINGSBURG REIGNS (MOSTLY) SUPREME

Thursday, July 28th, 2016

In 2012, the City of Kingsburg began the process of annexing approximately 430 acres of land in Fresno County, including developed land that was home to three major facilities: a glass manufacturing plant, a grape processing facility, and a raisin processing plant. The land proposed for annexation separates the City of Kingsburg from the City of Selma, which is located approximately five miles to the north.

Before approving the annexation, Kingsburg concluded that the project would not cause any significant environmental impacts with mitigation and prepared a mitigated negative declaration (MND). When Kinsgburg certified the MND in September of 2012, it also requested that the Fresno County Local Area Formation Commission (LAFCo) initiate proceedings to approve the annexation. After continuing the annexation hearing several times, LAFCo approved the annexation on July 17, 2013.The City of Selma brought two actions challenging the decision: one against Kingsburg and one against LAFCo.

The court decided City of Selma v. City of Kingsburg, 2016 Cal. App. Unpub. LEXIS 5207 in an unpublished opinion. The City of Selma had challenged the CEQA process used by Kingsburg to approve the annexation and to repeal certain design standards applicable to the annexation area that concerned the large glass manufacturer, including a requirement to place electrical and telecommunications lines underground.

The court first held that written materials relevant to the agency’s compliance with CEQA must be included in the administrative record, even if the documents were prepared after the project was approved. Next, the court affirmed the trial court and held that Kingsburg had complied with CEQA for the annexation project by preparing an MND. In doing so, the court rejected Selma’s challenges to the adequacy and scope of the water supply analysis and Kingsburg’s ability to provide fire protection to the annexed area.

Finally, the court found that Kingsburg had failed to demonstrate that the common sense exception applied to the repeal of the design standards. The court rejected Kingsburg’s argument that the existence of other standards precluded the possibility that repealing the design standards could cause significant environmental impacts. The Court also held that Kingsburg erred by failing to reference the factual record in its notice of exemption.

The Fifth Appellate District partially published its opinion in City of Selma v. Fresno County Local Agency Formation Commission, 2016 Cal. App. LEXIS 581. For various reasons, the LAFCo hearing had originally been noticed for April 10, 2013 but was continued until July 17, 2013. Selma argued that this violated Government Code section 56666, subdivision (a)’s 70-day limitation for continuances. The court agreed, but concluded that the 70-day limitation is directory rather than mandatory pursuant to section 56106.

The court contrasted this provision with Government Code section (h), a mandatory provision which requires an annexation hearing to be scheduled for a date not more than 90 days after the annexation application was received. Because the continuance provision at issue was directory rather than mandatory, the remedy was not reversal of LAFCo’s determination.  The court acknowledged that this holding made the 70-day continuance limitation “relatively toothless.”

Key Point: Failure to comply with the continuance limitation, as opposed to the initial scheduling requirement, for LAFCo annexation proceedings will not result in a reversal of the LAFCo’s determination.

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.