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

Posts Tagged ‘general plan amendment’


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

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.

Population Projections Proper Baseline for San Francisco General Plan Housing Element Update

Wednesday, August 22nd, 2018

In San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596, the First District Court of Appeal held the City of San Francisco (City) general plan housing element EIR satisfied CEQA in using 2025 population projections as a baseline for a growth-accommodating policy and adequately considered traffic impacts, water needs, and project alternatives.

In 2011, the City updated the housing element to the City’s general plan. The housing element EIR baseline was based on 2025 population projections. San Franciscans for Livable Neighborhoods (SFLN) filed suit alleging the EIR used an improper baseline and failed to adequately address various environmental impacts.

The trial court held that the City complied with CEQA in most respects. Specifically, the trial court agreed with Respondents that the general plan was not internally inconsistent, the City need not have recirculated the EIR after publication, and the EIR contained an adequate project description, sufficient impact analyses, and a reasonable range of project alternatives. However, the trial court found that the EIR was inadequate in its analysis of alternatives and findings regarding potentially feasible mitigation measures. Parties timely appealed.

Typically, CEQA requires an EIR baseline to employ present environmental conditions for the baseline analysis. However, the Appellate Court held that the use of an alternative baseline was permissible under CEQA so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach. An agency may adjust its baseline conditions at its own discretion and in appropriate circumstances in order to account for a major change in environmental conditions expected to occur before project implementation. For instance, where an amendment to a general plan takes a long view of city planning, the analysis of the amendment’s impacts may do so as well. Here, the City used a hypothetical baseline—population projections for 2025—in order to measure resulting traffic and water impacts related to the housing element. Recognizing “it would be absurd to ask the City to hypothesize the impacts of a long-term housing plan taking hold immediately,” the Court held the City acted within its discretion to define the baseline with 2025 population projections and forecast traffic and water impacts in 2025 rather than compare the existing conditions with and without the housing element.

The Court determined that the housing element sought to accommodate housing needs in response to a growing population, growth that would happen regardless of the housing element, therefore it was a growth-accommodating policy rather than a growth-inducing policy. Cases relied on by SFLN were unconvincing as they analyzed project approvals that would result in population growth in previously undeveloped areas.

With the baseline properly defined, the Court then held the EIR’s analysis of environmental impacts was sufficient. The EIR reasonably concluded that the housing element would not have a substantial impact on visual resources or neighborhood character as it encouraged residential uses in areas that were already allotted or existing and did not change any zoning.

Then focusing on the EIR traffic impact analysis, the Court held the City was not required to study in-the-pipeline projects with potential traffic impacts as they are subject to their own CEQA review and EIR process. Nonetheless, the City did so at sixty intersections and properly relied on 2025 population projections in their analysis for the above reasons.

The Court then held the EIR’s water supply impact analysis was sufficient where it acknowledged the “degree of uncertainty involved, discuss[ed] the reasonably foreseeable alternatives—including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases—and disclos[ed] the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.”

Finally, the Court held the EIR’s analysis of alternatives complied with CEQA where it identified and provided “extensive information and analysis regarding the alternatives” for at least three alternatives. SFLN failed to meet their burden to show the range of alternatives are “manifestly unreasonable or deprive[] the decision-makers and the public of information they need to evaluate the project and its impacts.” Where the EIR’s alternatives allowed decision makers a meaningful context to weigh the project’s objective against its environmental impacts, it complied with CEQA.

The Court affirmed the trial court’s holding on these issues.

Key Point:

An alternative project baseline for CEQA purposes may be proper so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach in utilizing it.

General Plan Update Size Limit Not Likely to Cause Urban Decay, Local Commercial Real Estate Agent Letter “Speculative,” Not Substantial Evidence of a Fair Argument

Thursday, January 4th, 2018

In Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, the Fifth District Court of Appeal affirmed a trial court judgment maintaining a general plan amendment and accompanying EIR limiting commercial tenants to 40,000 square feet of space. A letter from a local commercial real estate agent predicting that the size cap would cause grocers to refuse to locate in the neighborhood commercial centers leading to a “downward spiral of physical deterioration” was insufficient to support a fair argument of an environmental impact.

On October 14, 2014, Visalia City Council approved a final EIR for the City’s general plan update establishing a 40,000 square foot cap on tenants in neighborhood commercial zones. Visalia Retail, LP brought suit claiming that the potential for urban decay was not adequately addressed in the EIR. The trial court denied the petition. Visalia Retail timely appealed.

Appellant claimed that the EIR was insufficient for failing to consider the potential for urban decay as large stores would be discouraged from establishing themselves in the neighborhood under the new restriction on square footage. The Court, unconvinced, found that CEQA is focused on significant environmental effects, not purely economic impacts. Relying on Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, the Court found CEQA environmental review of potential for urban decay is only appropriate where there is a potential for physical deterioration. Absent such a showing, CEQA is satisfied.

The primary evidence of urban decay submitted by Appellant was a letter prepared by a local commercial real estate agent who claimed the 40,000 square foot cap would discourage grocers from locating in neighborhood commercial centers, “which will cause vacancies, which in turn will result in urban decay.” The real estate agency offered the following support for these claims: (1) the real estate agent was personally unaware of any grocers willing to build new stores under 40,000 square feet; (2) a “typical” large grocer requires at least 50,000 square feet to profit at any one site; (3) a recent line of 10,000 – 20,000 square foot stores was unsuccessful; and (4) three Visalia stores under 40,000 square feet went out of business.

The Court found the letter to be speculative and not rising to the level of substantial evidence on which a fair argument of urban decay could be predicated. First, the limit of the real estate agent’s personal knowledge did not preclude the existence of stores that may be willing to come into the area or have an atypical store size. Further, the fact that other stores were unsuccessful, some a quarter the size of the cap, was not evidence that stores will fail in the City in the future, especially absent discussion or explanation of why they failed. The letter demonstrated speculative causation and failed to show that urban decay would likely result from the cap.

Appellants also claimed the cap made the City’s general plan internally inconsistent by discouraging development in neighborhood commercial sites where the general plan encourages such infill. The Court, presuming the general plan amendment was correct under established precedent, clarified that “just because the general plan prioritizes infill development, avoiding urban sprawl, does not mean all of its policies must encourage all types of infill development. General plans must balance various interests and the fact that one stated goal must yield to another does not mean the general plan is fatally inconsistent.” Essentially, the general plan may give preference to infill that has a 40,000 square foot cap and still be internally consistent.

The Court affirmed the trial court judgement.

Key Point:

Evidence of economic impacts alone is insufficient to support a claim that a project will result in urban decay; urban decay need only be addressed by an EIR where there is potential for physical deterioration.

A single comment letter, unsupported by facts, explanation, or critical analysis, does not raise to the level of “substantial evidence of a fair argument” required by CEQA.