Naraghi Lakes Neighborhood Preservation v. City of Modesto (June 7, 2016, F071768) ___ Cal.App.4th ___.
By William W. Abbott
Why Words Matter In Your General Plan: Resolving Issues Of Horizontal And Vertical Consistency.
When does language in a general plan regarding the size of a shopping center denote a mandatory or directory requirement for purposes of determining consistency? It all depends upon the wording according to the Fifth Appellate District. At issue was the City of Modesto General Plan and the policies adopted (in 1974) in the general plan as part of the Neighborhood Plan Prototype (NPP). Within neighborhoods (estimated at 480 acres), the NPP called for a 7-9 acre shopping center with 60000-100,000 square feet of gross leasable area. In 2011, a developer proposed an 18 acre shopping center with approximately 170,000 square feet of gross leasable area. While the City initially processed a negative declaration, the CEQA processing shifted to an EIR. The project was opposed by neighboring property owners, and following City approval of the project, the neighbors filed suit on both land use and CEQA grounds. The trial court ruled for the City, and the neighbors appealed. The appellate court upheld the City’s decision, but published only the portion of the opinion pertaining to the land use claims.
The land use claim tested the consistency of the shopping center with the NPP, given that it was significantly larger than the acreage range contained within the NPP. The court cited the established rule that the consistency does not require exact conformity, but general compatibility. Sequoya Hills Homeowners Association v. City of Oakland (1993) 23 Cal.App.4th 704 and Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807. The court also noted that a city or county was entitled to deference when making those findings. The City’s findings had noted that the acreage notations in the NPP were for guidance purpose, and also noted that the City had approved a number of commercial centers in excess of the 7-9 acre range. While there was a legal debate as to whether the referenced centers were subject to the NPP, the appellate court concluded that it did not matter in the end. In the court’s view, there was substantial evidence in the record to support the City’s consistency determination in that the site fit the City’s location criteria for commercial centers and conformed to all of the other policies. One troubling argument involved the language of the NPP which recognized the need for potential minor adjustments to accommodate existing development in the area. The neighbors used this exception language to argue that the acreage range was in fact a mandatory standard. The appellate court concluded that this language, by its terms, only concerned itself with existing development and was not controlling as the question of whether or not the other NPP policies were mandatory and binding.
Comment: It is all about the staff report and findings. As this case illustrates, a city or county needs to make the case for consistency and other required determinations while the project is being processed. The reward for doing your homework is judicial deference, a worthy incentive.
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.