By Cori Badgley and Kate Hart
“When is a project consistent with a general plan?” continues to be a question faced by local governments, developers, environmental advocates, and of course, the courts. A recent case out of Solano County, Friends of Lagoon Valley v. City of Vacaville (August 28, 2007) 2007 Cal.App.LEXIS 1424, illustrates the important role the drafters of the general plan play in establishing the consistency parameters for the projects that follow.
Friends of Lagoon Valley ("FLV") challenged the City of Vacaville’s ("City") finding that the Lower Lagoon Valley Policy Plan Implementation Project ("Project") was consistent with the General Plan and Lower Lagoon Valley Policy Plan. The Project proposed to develop a large portion of Lower Lagoon Valley with a mix of residential, business, and recreational facilities while preserving 443 acres of open space. FLV specifically pointed to three areas of inconsistency: increased traffic, reduced office business park development, and increased residential development. The court dealt with each contention separately.
Under the General Plan, the City will “not permit development of such intensity or density that, if built without commensurate transportation or other infrastructure improvements, the resulting water and sewer service requirements and traffic generated will create substantial problems or unacceptable levels of service, unless an acceptable mitigation program to provide these services is implemented.” Id. at 9. The City’s main concern with traffic was the cumulative traffic impacts that would occur by the year 2025 to which the Project would contribute. Since the impact would occur on the State highway system and not local roads, Triad, the developer of the Project, agreed to pay a traffic impact fee to cover its portion of the impact. In addition, the City and CalTrans agreed to prepare a Project Study Report in order to make the improvements to the freeway necessary to absorb the impacts from increased traffic. FLV contended such mitigation was improper since there was no guarantee the mitigation measures would ever be implemented. In citing the recent cases of Save Our Peninsula and City of Marina, the court noted that nothing in CEQA requires a jurisdiction to set forth a time-specific schedule for the completion of specific roadway improvements so long as money contributed is linked to certain identified improvements. (For more information on impact fees and CEQA, see “Impact Fee Programs as Effective Tools for CEQA Mitigation: An Update.”)
The court found that the traffic impact fee constituted reasonable mitigation, and therefore, was consistent with the General Plan’s requirement of an “acceptable mitigation program.” Most of FLV’s arguments focused on the policies laid out in the General Plan, such as the policy that the City should “strive to maintain LOS C as the minimum standard at all intersections.” The court refuted all of these arguments by pointing to the flexible language used in the guiding policies. Although the policies in the City’s General Plan encouraged lower traffic rates, the policies also allowed the City to support increased traffic rates when the Project “is of clear, overall public benefit.” The court stated that the policies are not “rigid mandates” and “afford the City a high degree of flexibility in balancing traffic circulation and land use considerations.” Id.at 11.
Using similar reasoning, the court also held that the reduction of office business park development was consistent with the Lagoon Valley Policy Plan. Under the Policy Plan, the proposed business park would total over four million square feet. The Project’s business park would only total 700,000 square feet. FLV alleged that the inconsistency in the square footage meant that the Project could not be consistent with the Policy Plan. The court again pointed to the flexible language in the Policy Plan and the General Plan. The General Plan specifically allowed for balancing policies and did not require that projects achieve the maximum density permitted. Therefore, the inconsistency in square footage between the proposed business park and the Project’s business park did not constitute an inconsistency.
FLV attempted to make a similar argument about the increased amount of residential development in the Project. Once again, the court disagreed with FLV, and chastised FLV for construing “the policies expressed in the plan too rigidly and ignor[ing] the flexibility City officials have in implementing them.” Id. at 13. The court stated that the inquiry is not whether the square footage matches, “but whether the project is compatible with, and does not frustrate, the general plan’s goals and policies.” Id. Since the residential development in the Project furthers the goals and policies of the General Plan, the court found that the Project was consistent.
In a similar but unrelated claim, FLV also contended that the 40.5 percent density bonus granted to the developer violated density bonus laws by going above the maximum permitted. The court dismissed this argument, reasoning that under Government Code section 65915, ”[t]hirty-five percent was intended as a cap on what a municipality was required to give; there is no indication it was ever meant to cap what a municipality had authority to give. [Emphasis in original.]” Id. at 22. (See “Supersize this Project! The New Rules for Density Bonuses” for overview of density bonus law.)
In this case, the court correctly held the City did not abuse its discretion in approving the Project, which it deemed to be consistent with the City’s General and Policy Plans because the language of the General Plan allowed for flexibility in development. If, however, the drafters had chosen to write the General Plan with more rigid guidelines and policies, the court might have ruled in FLV’s favor. (See “General Plan Consistency and EIR Sufficiency” for an example of a different result when the general plan was drafted more narrowly.)
Cori Badgley is a law clerk and Kate Hart 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, 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.