In Partially Published Opinion, First District Court of Appeal Affirms Applicability of Code of Civil Procedure Section 1085 to General Plan Consistency Determination Challenges

May 19th, 2021

By: Johannah Kramer

On April 23, 2021, the First District Court of Appeal ordered partial publication of Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, a decision affirming the trial court’s denial of a writ of mandate challenging the sufficiency of an EIR for an aggregate project. The published portion of the opinion is limited to general plan consistency arguments, while the remainder of the opinion remains unpublished.

In May 2008, Syar Industries, Inc. (Applicant) filed an application for the expansion of its aggregate mine. After seven years of environmental review, Napa County certified the FEIR and approved the modified project and permit (Project). Petitioners, Stop Syar Expansion, filed a writ challenging certification of the EIR, alleging sixteen deficiencies under CEQA.

At the trial court, Petitioners alleged that the EIR failed to adequately address inconsistencies with the County’s General Plan under CEQA. The County and Applicant argued that further analysis was not required because the County had determined the Project was consistent with the General Plan, and CEQA only requires EIRs to address inconsistencies with general plans. The trial court agreed, and held that to bring their general plan consistency argument, Petitioners were required to proceed by way of a separate cause of action or a separate proceeding under Code of Civil Procedure section 1085. Petitioners appealed.

The First District Court of Appeal began the published portion of the opinion by describing CEQA’s basic principles and exhaustion principles. Turning to the general plan consistency issue, the Court affirmed the trial court in full. Relying primarily on The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, the Court held that whether a proposed project is consistent with a general plan is not a CEQA issue. Rather, an agency’s decision regarding a project’s consistency with a general plan is reviewed by ordinary mandamus under section 1085, which employs a highly deferential standard under which the agency’s consistency determination “can be reversed only if it is based on evidence from which no reasonable person could have reached the same conclusion.” Although Petitioners were made aware of the applicability of The Highway 68 Coalition, they failed to request leave to amend the writ petition to add a cause of action for ordinary mandamus under section 1085 and failed to argue inconsistency based on the ordinary mandamus standards of judicial review.

Instead, Petitioners maintained they were not required to challenge the County’s determination that the Project was consistent with the General Plan by way of ordinary mandamus. They argued that Project approval must be set aside not due to inconsistency with the General Plan as a violation of the Planning and Zoning Law, but rather because the EIR violated CEQA’s informational requirements by failing to disclose inconsistencies with the General Plan. This, in Petitioners’ view, permitted the challenge to be brought under CEQA (Public Resources Code section 21168.9), rather than section 1085.

The Court of Appeal determined that Petitioners’ argument was, in essence, challenging the County’s substantive consistency determination because it was premised on the allegation that the EIR “failed to disclose inconsistencies” with the General Plan. The Court held further that Petitioners’ reliance on CEQA Guidelines section 15125, subdivision (d), which states that an EIR must discuss any inconsistencies between the proposed project and applicable general plans, was misplaced because it in no way suggests that the term “inconsistency” has a different meaning under CEQA than it does under the Planning and Zoning Law. Similarly, Petitioners’ reliance on the recent decision in Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467 eroded their argument further. The Golden Door court did not treat the general plan consistency issue as a CEQA informational issue. Rather, it applied the standard of judicial review applicable in ordinary mandamus to conclude that the trial court erred in ruling the project at issue was “inconsistent” with the county’s general plan.

The Court of Appeal also rejected the general plan consistency challenge on the merits, reasoning that the County adequately considered the General Plan throughout the Project review process. The EIR contained a detailed discussion in each technical section evaluating consistency with the policies of the General Plan, and the County prepared a separate general plan consistency analysis report that was considered before the County’s Planning Commission and Board of Supervisors. In light of this level of analysis, the Court concluded it was the County’s prerogative to determine that the Project was consistent with its General Plan and declined to “micromanage” that decision.

Key Point

When an agency has determined that a proposed project is consistent with the governing general plan, CEQA does not require an additional general plan consistency analysis in the EIR. The CEQA analysis is only required to identify and discuss potential inconsistencies between the proposed project and the general plan.

Petitioners cannot turn a deferential general plan consistency decision under the Planning and Zoning Law into a less deferential challenge alleging failure to proceed in the manner required by CEQA.

Petitioners challenging an agency’s determination that a project is consistent with its general plan must proceed by ordinary mandamus under Code of Civil Procedure section 1085, not under CEQA (Public Resources Code section 21168.9).

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