Photo of William W. Abbott

By William W. Abbott

The White House puts punitive zoning regulations under the magnifying glass.

In his latest Saturday morning tweet, POTUS signaled that his love affair with local government was over. “Local government is worst enemy to making America great again. So sad. #Ihatezoning” it read. The White House released the follow-up statement. “The President is responding to news stories that local zoning regulations are impeding economic growth by imposing needless regulations. The President is working on an executive order which would cut off federal funding to cities and counties which implement restrictive zoning. The White House and Justice Department will assemble a team to closely review local zoning regulations. This is another example of overregulation standing in the way of economic progress and the President intends upon exercising every legal authority available to him to shake things up as he promised the voters when he ran for president.”

At the White House press briefing later that morning, a reporter pointed out that the only news story in the last six months involving local zoning and economic growth was a page 7 story in the National Inquirer. Sean Spicer testily responded “Look blockhead. We don’t make the news. We only respond to what you clowns write. What a pathetic life you all have spending all of your waking hours dreaming up ways to criticize the President. #gogetarealjob #gocrymeariver. Next?” Mr. Spicer went on to point out that the President had spent a lifetime battling with local governments and was an expert in the field, a first for any US President.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

 

Appellate court rejects arguments of multiple CEQA claims of procedural error concerning EIR recirculation, error in the notice of determination, insufficient rejection of suggested mitigation measures, and failure to consider late comments.

Residents Against Specific Plan 380 v. County of Riverside (February 14, 2017, E063292) ___ Cal.App.5th ___.

By William W. Abbott

A trial court and the court of appeal declined to overturn the certification of an EIR and approval of a specific plan and related land use entitlements. The legal claims touch upon a number of common procedural objections leveled at local approvals and describes how one local government successfully overcame them.

In Riverside County, an applicant brought forward a specific plan and related regulations for a mixed-use project located on 200 acres. The specific plan, as approved, included seven planning areas with different allocations of allowed land uses. The County circulated a Draft Environmental Impact Report (“DEIR”) from August 8 to September 26, 2011. The DEIR analyzed a project consisting of eight planning areas, one more than was ultimately approved, with different land use allocations across the project site than the adopted specific plan. The DEIR identified two significant and unavoidable impacts: air quality and noise. Among other commenters, the air district and nearby city both suggested mitigation measures to reduce air quality impacts. The air district’s comments focused on vehicle fleet mix and related equipment and the city recommended that the DEIR’s mitigation measure (which required compliance with the 2008 Title 24 Energy Codes) be updated to reflect the 2010 codes and the 2010 California Green Building Standards, and include requirements for attic fans, whole house fans, PV panels and solar hot water systems.

The County released the Final EIR (“FEIR”) in January 2012, and the FEIR was based upon the proposed project with the eight planning areas. The FEIR included responses to comments, including those of the air district and nearby city, but as to those comments concluded that the proposed mitigation measures were infeasible.

As is common, the Planning Commission modified the specific plan during its deliberations. County staff and its consultants confirmed for the Commission that the changes were not significant for CEQA purposes and that recirculation was not required. On December 11, 2012, the Board of Supervisors began its deliberations. The day before the meeting, counsel for the petitioner submitted comments, reiterating the suggested mitigation measures proposed by the air district and nearby city. At its hearing, the Board also modified the specific plan. The changes left the plan boundaries intact and did not change the total number of residential units or maximum non-residential uses. Staff and the consultants again confirmed that the changes to the plan did not create new or substantially increase the severity of impacts, thus concluding that recirculation of the EIR was not required. The Board then passed a motion of intent to certify the EIR and approve the entitlements. Staff worked with the applicant and the revised final documents returned to the Board for final action in November 2013. Following approval by the Board, the petitioner filed suit. The trial court ruled for the County and Real Party in Interest, and petitioner appealed.

The Court of Appeal faced six procedural objections which occur with some frequency in CEQA proceedings:

First, the appellate court held that the Board had not modified the project after approval. The appellant argued that the project was approved by the December motion. Not so according to the court. The court recognized the common practice of passing a motion of intent to approve and the later final approval. This meant that the final changes to the land use documents occurred before final action, not afterwards as argued by the petitioner.

Second, consistent with the court’s analysis of the effect of the motion of intent, the CEQA findings and statement of overriding considerations were adopted in conjunction with the final motion for adoption, and were not adopted after-the-fact as argued by the project opponents.

Third, the appellant claimed that the Notice of Determination (“NOD”) was invalid as it included an erroneous description based upon the earlier version of the project. The court found no prejudicial error, as the remedy for failure to provide a legally sufficient NOD is the expansion of the applicable statute of limitations to 180 days and the petitioner had timely filed the lawsuit.

Fourth, the appellate court also rejected the argument that recirculation was required. It found the record of proceedings included the required supporting analysis that recirculation was not required. Factually, although land uses were adjusted within the overall specific plan, the maximum intensities had not changed. That fact, coupled with the consultant and staff analysis and a limitation that any substituted future use could not create any additional impacts than those already documented in the EIR, was sufficient to support the County’s decision to not recirculate.

Fifth, the Court said substantial evidence supported the County’s decision to not add the recommended mitigation measures. As to the vehicle fleet mix requirements, staff concluded that it was not feasible based upon the developer’s expressed concerns over the availability of the new less polluting equipment. As to the energy efficiency standard, the County’s response had been that the developer in any event would have to comply with the energy standards then required by the State of California. As to the Green Energy Standards, staff found it was infeasible as it would conflict with the performance standards set by the County. As the County’s preference was for flexibility for the developer rather than a list of prescriptive measures, the specific mitigation measure was not feasible.

Finally, as to the suggested noise mitigation measure submitted the day before the Board undertook its deliberations, the Court noted that the comment was submitted fourteen months after the close of the comment period. Thus, it held the Board was not required to adopt any findings of infeasibility or to even consider the comment.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

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

By William W. Abbott

Note: Requests for depublication have been filed with the California Supreme Court.  The court extended time to review these request until March 17, 2017.

Judicial deference and absence of prejudice were the continuing themes in the recent Third Appellate District decision reviewing a challenge to an EIR and a general plan consistency analysis. The project involved McKinley Village, an infill project consisting of 328 dwelling units, (http://mckinleyvillage.com/) and the project approvals were challenged based upon allegations of deficiencies in the EIR as well as arguments regarding inconsistency with the city’s general plan. The trial court ruled in favor of the city. With one exception discussed below, the appellate court affirmed.

As to the CEQA claims, a neighborhood group East Sacramento Partnerships for a Livable City (ESPLC) argued that the EIR was deficient as a result of a defective project description, improper piecemealing, failure to analyzed health risks, failure to recognize traffic impacts and failure to disclose or mitigate methane migration. First, ESPLC argued that the project description failed to include the development agreement, a rezoning request for the multifamily units, an increase in the total units from 328 to 336 as well as variances from standard driveway widths for a limited number of dwellings.

As to the development agreement, it was disclosed to the planning commission and city council public hearings and ESPLC commented on the development agreement. This satisfied the public disclosure requirements. ESPLC further argued that the development agreement was used to modify the project at the very end of the process, when the city council, in response to citizen request, considered a second vehicular access tunnel. However, the tunnel was to become a city project and may or may not be constructed in the future. As it was not part of the developer’s project, it did not have to be part of the project description. As to the rezoning, the deletion of some single family and addition of multifamily product (a net increase of 8 units) triggered a rezoning. The impacts of the additional units were evaluated in the FEIR. The appellate court characterized this as a slight change and to be expected in the CEQA process. The opponents failed to show how the analysis was defective or how meaningful decisionmaking or public comment was precluded.

The final EIR included a discussion of a variance for driveway width in one area within the project. However, the opponents failed to demonstrate prejudice from the omission or that the modification had any significant impacts. ESPLC next argued that the city had improperly piecemealed the project. Its first argument involved the potential second tunnel, but having concluded that the tunnel was not part of the developer’s project, that there was no piecemealing issue. In response to public comment, the city included a half street closure, the effect of which was to reduce traffic impacts on one street and divert traffic to a street with greater capacity. The appellate court concluded that the minor change in response to public comment did not result in piecemeling. As part of the deliberations of the half street closure, the council directed the city manager to initiate steps to eliminate a nearby connector from the city’s general plan. While the resolution was not in the administrative record, it appears that the council direction was to consider the general plan amendment at a later date. This later action would be subject to its own CEQA review and was not considered to be piecemealing.

Turning next to health risks, the appellate court followed the Supreme Court’s holding in CBIA v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, noting that the EIR was not required to assess the impacts of the existing conditions (nearby landfill, interstate and railroad tracks). While ESPLC argued that the project would exacerbate existing conditions, those issues were already addressed in the EIR or too vague and speculative to warrant further consideration.

As to traffic, the project was consistent with the region’s sustainable communities strategy and the regional MTP, and as such was not required to address certain transportation impacts. Public Resources code section 1159.28(a). The opponent also challenged the use of intersection analysis to measure traffic impacts and ignoring roadway capacity. However, the court found substantial evidence to support the city’s methodology. EPSLC was unable to show how the city’s methodology failed to adequately assess traffic impacts.

The appellate court did agree with ESPLC on one issue. The EIR discussed that there were different general plan LOS standards for downtown (accepting higher congestion) compared those to residential neighborhoods. The court faulted the city for relying upon its general plan policies and standards, and failing to explain how the same level of traffic congestion is an impact in one neighborhood but not another. This issue resulted in the appellate court compelling the EIR be set aside, although only this one issue was required to be addressed upon remand.

Turning to ESPLC’s land use contentions, the appellate court applied a very deferential standard of review, acknowledging the weighing and balancing steps that a city or county employs in evaluating a project. (Certain of ESPLC’s arguments were based upon general plan policies which had been subsequently modified or repealed. The appellate court considered those claims to be moot.) ESPLC argued inconsistency over public health, transportation and noise policies and standards. The appellate court noted that some of ESPLCs arguments were based upon vague policies or ones which were not mandatory, and applying a deferential standard of review, the court concluded that it could not be said as a certainty that the project was inconsistent. Of note was the court’s recognition of a policy which required noise mitigation “to the extent feasible”, a concept found in many general plans. As this requirement was not mandatory in each circumstance, the appellate court could not find error.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.