“Fundamental, Mandatory and Clear” Policies Invalidate Project Approval

Spring Valley Lake Association v. City of Victorville (2016) 248 Cal.App.4th 91

Why It Matters: Despite recognizing that a court must generally defer to an agency’s factual findings, this decision held the city to a higher standard of evidence when it comes to a General Plan policy that is “fundamental, mandatory, and clear.” It serves as a caution to both land use practitioners and agency planners in making General Plan consistency findings as part of project approvals.

Facts: The City of Victorville (City) approved the development of a retail strip mall dominated by a proposed big-box retailer. The project approvals included a General Plan Amendment, zone change, site plan, conditional use permit and a parcel map. As required, the General Plan land use amendment and the parcel map approvals included the required findings that the project was consistent with the General Plan, and the Environmental Impact Report (EIR) purportedly included an analysis of inconsistencies between the proposed project and the General Plan.

The project approval was challenged, and in its decision, the trial court focused on two particular Implementation Measures (IMs) under the City’s General Plan. IM 7.1.1.4 required all new commercial or industrial developments to generate electricity on-site to the maximum extent feasible. IM 7.2.1.5 required all new construction to be 15% more efficient than 2008 Title 24 standards.

With regard to IM 7.1.1.4, the EIR included a discussion that the project would be “solar ready” because the roof of the store would be designed to accommodate photovoltaic panels. The EIR then explained that the retailer’s commitment to the solar panels at the time of project approval would not be economically feasible largely because the future availability of tax credits and other incentives was uncertain and solar providers were unwilling to lock in long-term pricing.

With regard to IM 7.2.1.5, the EIR contained inconsistent statements about the actual percentage of greater efficiency, stating in many places that the project would achieve at minimum 10% more efficiency than required by Title 24.

The Decision: The Court of Appeal specifically acknowledged that it must defer to an agency’s factual finding of consistency unless no reasonable person could have reached the same conclusion on evidence before it. The court further acknowledged that a project does not need to conform perfectly to every policy to be consistent with the General Plan. Rather, the court explained that in determining whether a project conflicts with a General Plan, “the nature of the policy and the nature of the inconsistency are critical factors to consider.”

The court went on to clarify that a project is inconsistent with a General Plan if it conflicts with a General Plan policy that is “fundamental, mandatory, and clear,” and in the opinion of the court, the two IMs at issue were such mandatory requirements. Accordingly, the court dismissed the argument that the project was generally consistent with the General Plan as a whole.

While IM 7.1.1.4 did not absolutely require the project to generate on-site electricity, it did require the generation of on-site electricity to the maximum extent feasible. Thus, the court held that if the City was concluding that the generation of on-site electricity was completely infeasible, then the record needed to include substantial evidence demonstrating that partial solar installation or other potential forms of on-site generation were also infeasible. Additionally, the court found that the scant information in the EIR about the economic infeasibility of solar installation because of the uncertainty of future tax credits and other incentives was insufficient to bridge the analytical gap between the raw evidence and the City’s decision.

Similarly, the court found that the EIR and the administrative record did not include sufficient evidence to conclude that the project would meet the mandatory policy under IM 7.2.1.5 requiring 15% greater efficiency than Title 24 standards. Consequently, the EIR did not adequately analyze the project’s consistency with the General Plan, and the findings in the approval that concluded the project was consistent with the General Plan were not supported by substantial evidence.

Practice Pointers:

  • CEQA preparers and land use professionals should pay particular attention to General Plan policies that are “fundamental, mandatory and clear.” According to this opinion, findings of consistency cannot skirt these mandatory policies by declaring that the project is generally consistent with other policies.
  • While an EIR may resort to a statement of overriding considerations for significant inconsistencies, pursuant to the Subdivision Map Act, an agency cannot approve a parcel map if it is not consistent with the General Plan.
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