by William W. Abbott and Robert T. Yamachika

The 1st Appellate District recently decided a specific plan/CEQA case, Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342. While it involves a general law county and not a charter city, the legal principles as they relate to the specific plans provide good guidance for a city, and the CEQA holdings unquestionably apply.

In 1986, Napa County adopted a specific plan for its airport area. In 1998, the County adopted an update to the specific plan. The original plan was approved based upon an EIR, and a subsequent EIR was used for the later update. The updated plan triggered a series of land use and CEQA claims, the most important of which, and their resolution, are summarized below.

1. In 1998, the County found that a mitigation measure incorporated into the 1986 specific plan was no longer feasible. The appellate court determined that there was nothing sacred about the original mitigation measure, and that the County could delete the measure in the course of updating the plan. “Logic dictates against a conclusion that a mitigation measure once adopted may not be deleted. A county’s needs necessarily change over time in light of such matters as the development of surrounding communities, state and federal action and/or natural disasters. It follows that a county must have the power to modify its land-use plans as circumstances dictate.” Recognizing that there is a presumption that the mitigation measure was presumably incorporated into the plan for a good reason, the court went on to hold as follows: “We therefore hold that a governing body must state a legitimate reason for deleting an earlier-adopted mitigation measure, and must support that statement of reason with substantial evidence. If no legitimate reason for the deletion has been stated, or if the evidence does not support the governing body’s finding, the land-use plan, as modified by the deletion or deletions, is invalid and cannot be enforced.”

2. As the lead agency, the County analyzed traffic issues, including overall regional traffic patterns. Several commentors on the EIR had disputed reliance upon the 1986 traffic mitigation measures (for example, these measures contemplated Caltrans funding) and, accordingly, the EIR concluded that the previously identified mitigation was infeasible. The EIR also concluded that the funds raised by the County for area improvements would be inadequate to fund the previously assumed mitigation measures. The EIR rejected mitigation measures on the basis that individually or aggregated, such measures would not reduce impacts to a level of less than significant. The EIR then called for a generalized mitigation strategy. “A corridor-wide study of traffic impacts . . . should be initiated by the County with the support of all jurisdictions neighboring the Airport Specific Plan Area . . . . A study, such as that proposed by the County, may be a mitigation measure if there is a definite commitment both to produce the study and to take such mitigation measures as are recommended by it.” As noted later on in the court decision, the County’s commitment at the time of the specific plan adoption fell short.

3. Because the Napa project was a major job generator (industrial park adjacent to the airport), the EIR was required to consider the secondary impacts on housing demand, “but not in great detail.”fn1 The level of detail is less strict. The appellate court drew a distinction between this issue and the secondary related impacts considered in the City of Antioch v. City Council (1986) 187 Cal.App.3d 1325 and Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144. Thus, this decision should not be viewed as an open invitation to lightly consider less direct impacts which have been historically required to be analyzed in an EIR.

The Court then determined that a needs/supply analysis which was included in the EIR satisfied this analysis. The Court also held that there was no duty to identify mitigation measures.

4. The Court then determined that the analysis of water and wastewater services was inadequate. In both cases, although based upon different facts, future services were contingent upon the actions of other agencies, and that there were known constraints. The Court then concluded that where uncertainty exists, that the lead agency simply could not identify the potential impacts as speculative, but rather needed to consider impacts on alternative sources. The Court noted that with respect to mitigation, “In theory, at least, the FSEIR also could state a mitigation measure that would prevent development if the identified sources fail to materialize.”

5. The Court then shifted focus to the land use claims, creating new law along the way. The County tried to hold the Court’s conclusions of conflict in circumstances in which the general plan contained an affirmative planning standard or objective. Given that the plan contained the traditional broad language regarding overall planning policy, this strategy would pose little risk. The Court took a different approach finding that it was insufficient for the County to rely upon a generalized concept of consistency. First, the Court defined the relationship of the specific plan and the general plan by stating “The proper question is whether development of the Project Area under the Updated Specific Plan is compatible with and will not frustrate the General Plan’s goals and policies. If the Updated Specific Plan will frustrate the General Plan’s goals and policies, it is inconsistent with the County’s General Plan unless it also includes definite affirmative commitments to mitigate the adverse effect or effects.” The Court discussed with favor the holding in the Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90, stating “Nonetheless, the essential holding of the court in Concerned Citizens was that … an inconsistency was created if the implementation of one provision will frustrate a policy stated in a second provision and there is no affirmative commitment to mitigate that adverse effect.” The Court went on then to hold the specific plan as inconsistent with broadly stated policies regarding housing and circulation. “The County cannot state a policy of reducing traffic congestion, recognize that an increase in traffic will cause unacceptable congestion and at the same time approve a project that will increase traffic congestion without taking affirmative steps to handle that increase. It also cannot state goals of providing adequate housing to meet the needs of persons living in the area, and at the same time approve a project that will increase the need for housing without taking affirmative steps to handle that increase.” The danger in the Court’s approach appears to be the expectation that a specific plan is expected to be consistent with all material aspects of the General Plan. As illustrated by the Napa case, a project which serves to be solely an employment generator can never by itself implement the non-economic development issues otherwise found in the General Plan.

6. Finally, coastal steelhead trout were listed as threatened or endangered after the draft EIR was released. As the potential impacts to steelhead were raised to the County’s attention immediately after EIR certification but 6 months before the specific plan was approved, it was an abuse of discretion to approve the plan without updating the environmental document.

fn1 “The FSEIR should, at a minimum, identity the number and type of housing units that persons working with the Project area can be anticipated to require, and identify the probable location of those units. The FSEIR also should consider whether the identified communities have sufficient housing units, and sufficient services, to accommodate the anticipated increase in population. If it is concluded that communities lack sufficient units and/or services, the FSEIR should identify that fact and explain that action will need to be taken to provide those units or services, or both. Because it cannot be known if the Project will cause growth in any particular area, and because the Project most likely will not be the sole contributor to growth in any particular area, it is not, however, reasonable to require the FSEIR to undertake a detailed analysis of such growth.”

Bill Abbott is a partner and Rob Yamachika is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.