GENERAL PLAN CONSISTENCY ANALYSIS IS INSUFFICIENT TO ESTABLISH PROJECT CONFORMITY WITH A "FUNDAMENTAL" GENERAL PLAN IMPLEMENTATION ACTION
Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal. App. 4th 91
By William W. Abbott
The Tamarisk shopping center project in Victorville consists of 214,596 square feet of commercial retail uses on approximately 23.72 acres of land, currently vacant and undeveloped. Among the project's proposed commercial retail uses includes a Walmart store of approximately 184,946 square feet. The land use approvals included a general plan amendment, a zone change, a site plan, a conditional use permit, and a parcel map. The City approved the project, and the Association filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief (petition) challenging the City's decision, alleging land use and CEQA claims. The trial court granted partial relief, holding that the EIR did not adequately discuss the project’s consistency with the City’s onsite electrical generation policy or project impacts on greenhouse gas emissions. The trial court also concluded that there was insufficient evidence of consistency with the onsite electrical generation policy to support the zoning change and parcel map. Wal-Mart appealed the lower court decision contending that there is substantial evidence to support the City's finding the project is consistent with the general plan and the project's EIR adequately analyzed the project's greenhouse gas emissions impacts. The Association cross-appealed, contending that the City violated CEQA by failing to recirculate the EIR after the City revised the traffic and circulation impacts analysis, air quality impacts analysis, hydrology and water quality impacts analysis, and biological resources impacts analysis. The Association also contended that the City violated the Planning and Zoning Law by failing to make all of the findings required by Government Code section 66474 before approving the project's parcel map. The appellate court rejected Wal-Mart’s arguments on appeal, and granted additional relief to the Association.
The case largely turns on an implementation measure of one policy contained within the general plan. That implementation measure (IM 18.104.22.168) “requires all new commercial or industrial development to generate electricity on-site to the maximum extent feasible.” The EIR discussed the feasibility of onsite generation, and noted that feasibility was determined in part by the availability of tax credits along with other information relevant to the feasibility of onsite solar generation. The EIR also noted that the roof would be “solar ready” in the event that solar installation became financially feasibility. No enough according to the appellate court. Citing Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the cornerstone case on administrative findings in California, the EIR analysis was insufficient to adequately explain the infeasibility of solar, and did not discuss any other onsite generation options. Wal-Mart also argued that a project is not required to be consistent with every goal and policy which the appellate court recognized as a general proposition, but the court applied the exception for “fundamental” policies (Families Unafraid v. County of El Dorado (1998) 62 Cal.App.4th 1332).
The court then turned to the EIR evaluation of greenhouse gases. The analysis concluded that the project would not substantially contribute to GHG emissions, resting in part upon a general plan requirement that a project exceed Title 24 standards by 15 percent. However, the EIR included information suggesting that the project would exceed the Title 24 standards by at least 10 percent and in another part of the EIR, by 14 percent. Because of this conflict, the court concluded that the record did not support the City’s determination that the project’s contribution was less than significant based upon meeting the 15 percent target over Title 24.
With respect to the Association’s cross appeal, the appellate court agreed that a city or county must address both the affirmative and negative findings of the Subdivision Map Act. Government Code section 66474. Thus, tentative map approvals, including parcel maps, must include findings relating to general plan consistency, physical suitability of the site for the type and density of development, impacts to fish, wildlife and habitat, public health problems and public access easements.
The Association’s final issue on cross appeal asserted that the City was required to recirculate the FEIR due to revisions pertaining to traffic, biological resources, air quality, and hydrology and water quality. As to traffic, the text dealt with the effect of a delay in an assumed improvement and the information indicated that service would degrade, but the significance level would not change. With respect to biological resources, the revisions reflected that the streambed impact area would increase, and that the number of special status species tested in spring surveys would also increase. None of these revisions constituted substantial new information or deprived the public of a meaningful opportunity to comment. The appellate court agreed with the Association as to air quality and hydrology. Because the appellate court had concluded that there was a lack of substantial evidence to support the conclusion of consistency with the general plan implementation measures, the appellate court concluded that there was a significant adverse impact and that the public had been denied a meaningful opportunity to comment. The revisions to the hydrology section was a significant rewrite and redesign (replacing 26 pages with 350 pages of technical reports.) The changes were sufficient in degree (and no redline of changes was included to facilitate tracking) that the court concluded the revisions denied the public a meaningful opportunity to review and comment.
- I think that decision potentially overstates the EIR’s obligation to discuss general plan consistency issues. The court noted that nowhere in the record was there evidence to explain consistency with the policy, leaving the door open that the requisite explanation and supporting evidence may lie elsewhere. To this practitioner, the EIR is not intended nor designed to be the resolution of broader general plan consistency issues as the CEQA Guidelines provisions on general plans are specific and narrow. See CEQA Guidelines sections 15063(d)(5) (initial study); section 15125 (environmental setting); section 15130 (cumulative impacts); Appendix G, section N. A robust consistency analysis is best addressed through the staff report. Best practices in an EIR would include language directing the reader to the staff report for an evaluation of project consistency with the general plan.
- The decision draws no distinction between legislative and adjudicatory findings, although ultimately this would not have been determinative.
- General plan practitioners should ponder the ramifications of the court’s use of the general plan. The case vividly illustrates the risk of over committing future action in a general plan and supports the idea of under promising when drafting general plan text. As this case also illustrates, the court should not be left to its own devices to determine which policies or implementation measures are fundamental and mandatory in every instance. Best practices suggests inclusion of language in a general plan specifically disavowing characterization of policies as “fundamental” unless specifically noted as such.
- The court’s decision on the SMA findings will not come as a surprise or burden to many cities and counties. The court’s conclusion begs the question as to the other denial findings found in chapter 4 of the SMA. Cities and counties may be well served to develop and apply a comprehensive list of all the approval/denial related findings to every tentative subdivision and parcel map.
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.