Real Estate and Land Use

Supreme Court Holds City Bound by Publicly Available General Plan

Orange Citizens for Parks and Recreation v. Superior Court (2016) 2 Cal.5th 141, 211 Cal.Rptr.3d 230

Why It Matters: The California Supreme Court unanimously set aside the City of Orange City Council’s finding of a project’s consistency with the City General Plan based on a 1973 City resolution that was not incorporated into the publicly available version of the General Plan. The City’s published General Plan designated the project site as Open Space, and the City adopted a General Plan Amendment to change the project site from Open Space to Residential. When presented with a referendum on the General Plan Amendment, the City determined that a 1973 resolution adopted by the Planning Commission and City Council had changed the designation to Other Open Space and Low Density, but these changes were never made to the published versions of the General Plan. Holding that “public access has little value if the general plan’s policies are not readily discernible,” the Supreme Court held that the City was bound by the published version of the General Plan.

Facts: In 2007, applications to develop a 39-unit low density project on a former golf course were submitted to the City. In 2009, during the project’s entitlement process, a 1973 Planning Commission resolution was discovered recommending that the land use designation for the project site be changed to “Other Open Space and Low Density (1 acre),” and that this recommendation was subsequently adopted by the City Council, thus permitting low-density residential development on the site. In 1977, the City Council amended the General Plan to permit low-density residential development in Orange Park Acres where the project site is located and directed that the Orange Park Acres Plan be revised accordingly. Despite this direction, the General Plan land use map was never changed to reflect the low density designation. As a result, in 1989, the City adopted a General Plan that designated the project site as “Open Space/Golf” and again in 2010 when the City updated its General Plan, the project site was designated “Open Space.” The official land use map in the General Plan showed the site as “Open Space.”

Because of what was reflected in the General Plan, the applicant requested an amendment to change the General Plan land use designation from Open Space to Estate Residential. After the City Council approved the project, a citizens group initiated a referendum on the General Plan Amendment and collected sufficient signatures to place the measure on the ballot. The General Plan Amendment was subsequently rejected by the voters.

While the referendum was pending, the City concluded that the failure to incorporate the 1973 Planning Commission and City Council actions into the General Plan was a “clerical error” and that the true designation for the site was “Other Open Space and Low-Density Residential (1 acre),” and thus the General Plan Amendment was not required to permit the Project to go forward and the pending referendum would not negate the entitlements. The applicant then filed a lawsuit to stop the referendum, to which the citizens group cross-complained.

In July 2012, the trial court entered judgment in favor of the applicant ordering the referendum to be removed from the ballot and that the project could move forward in accordance with the “Other Open Space and Low-Density Residential (1 acre)” land use designation. The citizens group requested relief from the Court of Appeal, and later in July the Court of Appeal granted a stay of the trail court’s decision and allowed the referendum to remain on the ballot. In November 2012, the voters rejected the General Plan Amendment. Nevertheless, in July 2013, the Court of Appeal upheld the trial court decision and the project’s entitlements. Although the Court of Appeal found considerable ambiguity in the City’s planning documents, it held that “this uncertainty counseled in favor of deferring to the City Council’s judgment.” The citizens group appealed to the California Supreme Court.

The Decision: Before the Supreme Court, the City argued that the City’s interpretation as to what comprised the applicable General Plan was entitled to deference. The Supreme Court, however, held that “deference has its limits.” Based on the published version of the General Plan, no reasonable person could interpret the Plan as permitting residential development on the site. The Supreme Court also pointed out that the City’s consistency finding only considered the General Plan as it was proposed to be amended, which amendment had been rejected by the voters. The City itself had never really considered the issue of consistency with the pre-existing 2010 General Plan; but even if it had, the official map in the 2010 General Plan was the controlling document, notwithstanding the City’s assertion that the map was not accurate due to a clerical error. The public is entitled to be informed as to the applicable law with regard to land use decisions.

Practice Pointers:

  • This case reflects the strong policy that the public input and transparency are key components of the General Plan process. Care should be taken to ensure that that the public notice and hearing process are fully complied with and transparent. We should anticipate that future court decisions will reflect the policy statements in this opinion that underscore the need for transparency in land use decisionmaking.
  • In this case, had the City Council specifically considered the scrivener’s error and published corrected documents before the public hearings, this result could have been avoided. Correcting an error does not require a public hearing or additional CEQA review.

Compliance With a General Plan Policy Does Not Equate to “No Significant Impact”

East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th.281

Why It Matters: A project EIR that relied on General Plan traffic policies as thresholds of significance to find that a decrease in level of service (LOS) conditions were not significant impacts was set aside as inadequate. The court concluded that compliance with a General Plan policy does not conclusively establish that there is no significant environmental impact, and that the EIR failed to explain why no significant environmental impact was found.

Facts: The City of East Sacramento approved a 328-unit residential infill development project (Project) and certified the final EIR for the Project. The EIR found there were no project specific or cumulative impacts that could not be avoided and concluded that all impacts could be mitigated to a less-than-significant level. The EIR analyzed traffic using level of service (LOS) policies and the City’s General Plan policies. It found significant traffic impact at some intersections under cumulative plus project conditions and included traffic mitigation measures to reduce that impact to less than significant. ESPLC, a neighborhood group, filed a petition for a writ of mandate challenging the City’s approval of the project based on several CEQA grounds including that the EIR ignored significant traffic impact. Trial court denied the petition and ESPLC appealed.

The Decision: In reversing the trial court’s denial of the petition, the Court of Appeal rejected all but one of ESPLC’s arguments: that the EIR improperly relied on General Plan traffic policies to find that LOS E and LOS F conditions on City streets did not amount to significant impact.

The Draft EIR explained that the thresholds of significance used to evaluate the project’s traffic impact were based on the thresholds adopted by the City in its General Plan, previous environmental documents and professional judgment. For intersections, the thresholds of significance provided that there was a significant impact if traffic generated by the project degraded LOS from an acceptable to an unacceptable LOS, and if the LOS was already unacceptable, a significant impact would occur when traffic generated by the project increased the average vehicle delay by five seconds or more. The General Plan traffic policies allowed for flexible LOS standards, and LOS F conditions were considered acceptable to achieve other goals, “provided there are improvements to the overall system or non-vehicular transportation is promoted.” Applying the General Plan policy as the threshold of significance, the EIR found no significant impact even where existing plus project conditions resulted in the level of service being degraded from LOS C to LOS E at certain street segments and intersections, and where cumulative plus project conditions resulted in impact at LOS F.

The court observed that, while CEQA grants agencies discretion to develop their own thresholds of significance, that discretion is not unbounded, and the determination that a project has no significant environmental impact must be supported by substantial evidence. The court relied upon decisions addressing thresholds of significance in the context of an agency determining whether preparation of an EIR was required in the first instance, holding that they equally apply in the context of a completed EIR’s application of significance thresholds. The cases cited to as precedent establish that a regulatory standard cannot be applied so as to foreclose consideration of substantial evidence showing a significant environmental impact from a project. A project’s effects can be significant for the purpose of making a significance determination in an EIR, even if they are not greater than those deemed acceptable in a General Plan. Based on this deficiency, the court reversed the trial court’s denial of ESPLC’s petition and remanded the case for issuance of a writ directing the City to set aside its certification of the final EIR and to correct the deficiency in the transportation and circulation section of the EIR.

In its decision, the court addressed and rejected ESPLC’s remaining CEQA arguments. Notably, in rejecting ESPLC’s argument that the EIR failed to analyze and propose mitigation for the project’s impact on freeways, the court found that the City properly relied upon the CEQA statute expressly allowing the streamlining of transportation impact for a project based on sustainable communities strategies (SCS), and explained that under CEQA Section 21159.28, if a project is consistent with the region’s SCS—i.e., the Sacramento Area Council of Governments’ SCS and Metropolitan Transportation Plan—the EIR is not required to reference, describe or discuss a project or cumulative effects on the regional transportation network, provided the project incorporates mitigation measures from prior environmental documents. ESPLC argued that the intent of the CEQA streamlining statute was not met and the City improperly relied on the streamlining statute as an excuse to not analyze and address the Project’s significant freeway impact, pointing to the fact that the City had no regional traffic impact fee and that the General Plan EIR did not include any non-construction-related transportation mitigation measures. The court rejected this argument, clarifying that CEQA “does not require specific mitigation measures, only that if there are such measures, the project incorporate them.” The record indicated the Project would be developed consistent with the applicable mitigation measures in the SACOG MTP/SCS Program EIR.

Practice Pointers:

  • When establishing thresholds of significance, the record must include substantial evidence supporting the use of the threshold.
  • EIR preparers must be very cautious when using regulatory standards as thresholds of significance. A project that complies with General Plan policies or local ordinances, such as construction noise ordinances, might still generate significant impact and in those situations, a significance finding may be required.
  • Senate Bill 743, passed in 2013, recognized the conflict between considering vehicle delay as an environmental impact, and encouraging infill projects to reduce greenhouse gas emissions and traffic-related air pollution. SB 743 required the Office of Planning and Research to prepare new guidelines for establishing criteria for determining the significance of the transportation impact of certain infill projects and replacing the LOS method for evaluating transportation impact with the Vehicle Miles Traveled (VMT) metric. It is anticipated that the new guidelines will be submitted to the Natural Resources Agency in 2017, and the Office of Planning and Research may provide for a two-year period for cities and counties for compliance with the new rules. However, some jurisdictions, including San Francisco, Pasadena and Oakland, have already adopted or are in the process of adopting, the proposed guidelines eliminating automobile delay as a significant impact and establishing VMT thresholds of significance. Even where VMT thresholds are adopted, however, if a city’s General Plan includes LOS policies, a finding of consistency with those policies will still be required, thus making traffic mitigation for new development much more complicated.