by Elias E. Guzman

In Endangered Habitats League v. County of Orange (2005) 131 Cal.App.4th 777, an appellate court determined that project approvals and findings must be consistent with a county’s general plan. The court also found that an environmental impact report (“EIR”) must provide sufficient information to the lead agency in order to make an informed decision.

The disputed project was situated in the Santa Ana Mountains in the County of Orange (“County”). The land to be developed included two sites located within the Foothill/Trabuco Specific Plan (“Specific Plan”) area. The area plans were approved by the County Planning Commission and were subsequently appealed by environmental groups to the County of Orange Board of Supervisors (“Board”). The Board denied the appeals. The County then approved the area plans, declared the project was consistent with the General Plan, and certified the EIR as complying with CEQA. Endangered Habitats League and other environmental groups (collectively “EHL”) challenged the Board’s resolutions and findings. The trial judge denied the petitions and EHL appealed.

The standard of review in reviewing quasi-legislative acts or decisions concerning consistency with the general plan is the “arbitrary and capricious” standard. The inquiry centers on whether or not the decision was arbitrary, capricious, entirely lacking of evidentiary support, unlawful, or procedurally unfair. Deference is given to an agency’s finding of consistency unless no other person could have reached the same conclusion on the evidence before it.

Project Inconsistency with the General Plan
EHL first successfully argued that the project was inconsistent with the County’s General Plan because it would cause an impermissible increase in traffic. The County’s Growth Management element of its General Plan established policies for traffic improvement because growth and development required an adequate circulation system. The County policy stated that improvements to Santiago Canyon Road had to achieve a level of service (“LOS”) of at least C. The policy required compliance to be evaluated according to the County’s Transportation Implementation Manual, which in turn required that the Highway Capacity Manual (“HCM”) methodology be used in determining the LOS of a road.

The EIR revealed that under the HCM method the project would cause the LOS on Santiago Canyon Road to fall to D/E in 2005 and to E by 2020. But, the same EIR also reasoned that under the Volume/Capacity Ratio (“V/C”) method, an alternative, the results would be an acceptable LOS B. The EIR concluded the V/C methodology was more representative and relied upon it and found no significant impacts on Santiago Canyon Road.

The court determined that the General Plan required a LOS C on Santiago Canyon Road, as determined under the HCM method, irrespective of what it did under the V/C method. The EIR failed to state how the mitigated impacts would be less than significant under the required HCM method. Accordingly, the “inescapable conclusion” was that the project conflicted with the General Plan because the impact it would have on traffic along Santiago Canyon Road.

Specific Plan Amendment Inconsistency with General Plan
Next, EHL successfully argued that the Specific Plan amendment was inconsistent with the General Plan. The amendment allowed for a balancing of requirements, rather than compliance with all of them and exempted the project from mandatory requirements.

The General Plan called for new development in the Specific Plan area to be rural in character and said that the development shall comply with policies of that plan in order to maintain a buffer between urban development and a national forest. The Specific Plan appendix indicates that “shall” is a mandatory regulation to which there are no exceptions, while “should” indicates a non-mandatory guideline. The planning commission could approve deviations from the guidelines only if the project was in overall compliance with the guidelines and consistent with the goals and objectives of the Specific Plan. The Specific Plan amendment introduced a balancing provision and enacted new “relaxed” regulations on tree preservation, grading, and open space that only applied to the project. These new regulations effectively exempted the project from specific plan requirements.

Developer attempted to justify the new regulations in the Specific Plan amendment and claimed that the tree regulations promoted an environmentally superior project, grading satisfied the alternative grading standards, and the amended open space requirement was essentially the same as the original. Nonetheless, the court held that the amendment’s new regulations were inconsistent with the General Plan because they relaxed Specific Plan regulations otherwise applicable to this project, a direct contradiction of the General Plan policy that all new development must comply with specific plan policies.

Incorrect Legal Standard and Improperly Deferred Mitigation in EIR

An EIR will be upheld if there is substantial evidence in the record to support the agency’s decision that the EIR is adequate and complies with CEQA. CEQA requires a good faith effort at full disclosure, not perfection nor an exhaustive analysis. Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26. Here, the project EIR set out “thresholds of significance to determine whether or not the project caused significant environmental impacts on biological resources.” This was qualified by the definition that “[s]ubstantial effect means significant loss or harm of a magnitude which. . .1) would cause a species or a native plant or animal community to drop below self perpetuating levels on a statewide or regional basis, or, would cause a species to becomes threatened or endangered.” The court held this standard was too lenient, as it effectively stated an impact would be significant only if it results in a substantial effect on the listed criteria. The court held this was an improper legal standard for identifying significant environmental impacts.

EHL also contended that the EIR improperly deferred analysis and mitigation. Deferral of the specifics of a mitigation measure is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed, and possibly incorporated in the mitigation plan. On the other end, an agency goes too far when it only requires a biological report and compliance with the report recommendations. EHL argued that eleven project impacts improperly deferred mitigation, but the court only accepted EHL’s argument with respect to construction interference. The EIR required an acoustical report to be submitted to demonstrate the structures were designed to meet exterior and interior noise standards satisfactory to the County building permit manager. The court held this alone was inadequate, as the EIR gave no further criteria or alternatives to be considered. Adequate mitigation requires more than a mere report or approval of a County official absent standards. As such, the court held that the construction interference impact improperly deferred mitigation. The remaining mitigation standards challenged by EHL were sufficient, since they committed to mitigation and set out standards for a plan to follow.

In the end, the Court held that the project, the Specific Plan amendment, and the EIR proved to be riddled with inconsistencies with the General Plan and inadequate as a matter of law.

Elias E. Guzman 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.