Court Of Appeal Applies Traditional Deferential Standard Of Review To Questions Of General Plan And Consistency Determinations Including Requirements Enacted By The Local Voters

By William W. Abbott

San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498

Are general plan policies adopted by the citizens through an initiative, entitled to special consideration for purposes of determining consistency of projects with the general plan? Faced with that question in the context of planning policies adopted nearly 30 years ago in San Francisco, the Court of Appeal, First Appellate District, declined to elevate the legal significance of citizen crafted measures as compared to other regulatory requirements adopted through traditional means. Approximately 30 years ago, the voters in San Francisco adopted new land use requirements. Jumping ahead three decades, the court of appeal had to resolve whether a major private redevelopment undertaking was consistent with the relevant city regulations and policies, including those adopted by the voters.

The development project in controversy involves an existing development known as Parkmerced, 3000+ residential units located on 152 acres in San Francisco. Originally built in the 1940s, the owner proposed to demolish and replace a number of existing units over a 20-30 year period, as well as adding over 5000 more dwelling units. The proposal included additional commercial and retail services as well. From a land use perspective, the project necessitated an EIR and amendments to the general plan, zoning map and planning code, along with a local coastal permit and a development agreement. Following a recommendation for approval by the planning commission and approval by the Board of Supervisors, opponents filed suit, arguing general plan planning adequacy, consistency, due process, CEQA, and administrative record issues. The appellate court ordered published those portions of its decision pertaining to general adequacy, project consistency, due process, and the administrative record.

While cities, counties and applicants may take questions of general plan adequacy for granted, this case is a reminder that legal sufficiency is an issue of ongoing relevance, long after a general plan has been adopted or amended. Opponents challenged standards of population density, building intensity and correlation of the circulation element with the land use element. In terms of the standard of review, the appellate court agreed with the trial court in applying the standard of whether a reasonable person could conclude that a combination of housing element tables and maps within the general plan satisfied the standards for recommended population density (which were sufficient in the eyes of the trial and appellate courts.) Turning to the challenged building intensity standards, the court determined that the respondent had satisfied this requirement through various maps and text of general plan, along with provisions of the Parkmerced special use district (a zoning district added to development code.) Finally, challenging the general plan under the correlation requirement (Government Code section 65302(b), the opponents argued that in the absence of building intensity standards, the circulation element could not be correlated with the land use element. The appellate court, having determined that sufficient intensity standards existed, rejected their argument as well. The court went on to note that the correlation requirement did not compel local governments to limit population growth or to avoid adverse impacts on transportation facilities.

The appellate court then turned to the matter of general plan consistency, with the opponents arguing that the traditional deference to local agency interpretation of general plan policies did not apply when the policies were adopted by the citizenry. In the particular instance, this question had the added nuance in that the citizen measures were self labelled as priority measures. Nevertheless, the appellate court applied the traditional deferential standard of review of the Board’s interpretation of its own land use documents. The appellate court’s conclusion was that the priority policies were not of the character found in the FUTURE (Families Unafraid to Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332) case which would warrant elevated significance in a consistency determination. The court then reviewed the Board’s consistency, finding and substantial evidence, and under the acknowledged deferential standard of review, upheld the Board’s determinations.

The opponents also argued that the appellate court should overturn a demurrer granted by the trial court. In the trial court, the opponents included cause of action based upon the alleged violation of due process rights of the tenants. This argument was based upon the development agreement. The appellate court however, concluded that the development was a legislative act, and therefore did not trigger the due process rights as set forth in the opponent’s legal claim. Accordingly, the demurrer was appropriately granted.

While the court did not publish the CEQA portion of the decision, the court did publish the portion dealing with the dispute over the record of proceedings. The opponents were arguing to keep documents out of the record of proceedings (a role reversal compared to most other CEQA cases.) The appellate court noted however, that record of proceedings is expansive as recognized in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, and that the opponents failed to demonstrate error by the trial court by its refusal to reject the disputed materials. The appellate court then addressed the question of prejudicial error, assuming for the sake of argument that documents were improperly included. The burden was on the opponents to show the prejudicial error, which burden the opponents failed to carry.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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