Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 2019 Cal. App. LEXIS 1274

December 30th, 2019

By: Johannah Kramer

2009, the City of Sacramento (City) adopted its 2030 General Plan. In October
2012, the City initiated its five-year technical update to the 2030 General
Plan (hereafter referred to as “2035 General Plan” or “Plan”). The City
released the draft Plan and draft EIR for public review in August 2014. Changes
from the 2030 General Plan included a revised traffic threshold of significance
from LOS to VMT. On March 3, 2015, the City approved the Plan and certified the
EIR with the proposed changes. On April 1, 2015, Citizens for Positive Growth
and Preservation (Citizens) filed suit challenging the facial validity of the
Plan and raised numerous challenges to the adequacy of the 2035 General Plan
EIR including challenges to the impacts analyses related to traffic, greenhouse
gas emissions, air quality, cyclist safety, and the “no project alternative”.
The superior court denied the petition and Citizens timely appealed.

contended that the Plan was insufficient due to internal inconsistencies
between its introductory language and policies. The Third District noted that
because the adoption of a general plan is a presumptively valid legislative
act, Citizens were required to demonstrate that the City’s action was an abuse
of discretion. The Court found that Citizens failed to cite evidence sufficient
to meet this standard. Even if the City were to “create a hierarchy of General
Plan elements, or to approve projects inconsistent with any policy of the
General Plan” in the future it would not render the Plan invalid because a
determination made separate from the approval of a general plan cannot render
the general plan internally inconsistent.

also challenged the Plan based on its use of the level of service (LOS) metric
instead of the vehicle miles traveled (VMT) metric in the transportation
impacts section. In enacting Public Resources Code section 21099, the
Legislature directed that traffic analyses prepared to comply with CEQA move
away from LOS to encourage infill development and focus CEQA’s traffic analysis
on potential traffic-related environmental impacts, rather than inconvenience
associated with traffic congestion. Section 21099(b)(2) defines automobile
delay as described solely by LOS as not “a significant impact on the
environment pursuant to [CEQA] except in locations specifically identified in
the guidelines”. In 2018, the Secretary of the Natural Resources Agency
promulgated and certified CEQA Guidelines section 15064.3 to implement Public
Resources Code section 21099(b)(2). Citizens argued that because CEQA
Guidelines section 15064.3 applies prospectively, and because the EIR was
certified before the guideline was certified, a LOS impact still constitutes a
potentially significant traffic impact of the Plan for the purposes of CEQA.

Court rejected this interpretation, and held that the plain language of Public
Resources Code section 21099(b)(2) provides that “[u]pon certification of
the guidelines
by the Secretary of the Natural Resources Agency pursuant to
this section, automobile delay, as described solely by level of service or
similar measures of vehicular capacity or traffic congestion shall not be
considered a significant impact
on the environment pursuant to this
division, except in locations specifically identified in the guidelines, if
any.” The Court held that, in mandamus proceedings, “the law to be applied is
that which is current at the time of judgment in the appellate court”. On that
basis, the Court concluded that the Plan’s LOS determinations could not
constitute a significant environmental impact.

Citizens also argued that if potential
automobile delay caused by the Plan’s LOS determinations did not constitute a significant
impact pursuant to Public Resources Code section 21099(b)(2), then the City
should have been required to conduct a VMT analysis pursuant to CEQA Guidelines
section 15064.3. The Court disagreed because the City’s EIR was certified
before CEQA Guidelines section 15064.3 was enacted, and the criteria set forth
therein only apply prospectively.

In addition, the Court rejected Citizens’
challenge to the no project alterative, greenhouse gas emissions, air quality,
and cyclist safety because Citizens failed to cite to substantial evidence to
support those arguments. Similarly, the Court rejected Citizens’ argument that
recirculation was required because Citizens did not cite to substantial
evidence of significant new information requiring recirculation.