In 2015, the City of Sacramento adopted an update to its general plan. The 2015 general plan amendment (“2015 Update”) was an update to a comprehensive 2030 plan adopted in 2009. The 2015 Update included an extension of the general plan to a 2035 horizon date and revisions to the traffic thresholds of significance. Following a recommendation of approval of the draft 2015 Update by the planning commission, the City Council notice consideration of the 2015 Update at a March council meeting. This notice referenced 13 supplemental changes to the general plan, including eight not considered by the commission. Following adoption, the petitioner (Citizens) filed a timely action arguing that the general plan was invalid as it violated the internal consistency doctrine and that the EIR failed to comply with CEQA. Both the trial court and court of appeal upheld the 2015 Update and the EIR.
The General Plan Challenge
Petitioner presented a singular challenge to the 2015 Update, arguing that the inclusion of one sentence violated the general plan internal consistency requirement (Gov. Code §65300.5.) The challenged sentence read “The City, in its sole discretion, shall determine a proposed project’s consistency with the City’s General Plan. Consistency is achieved if a project will further the overall objectives and policies of the General Plan and not obstruct their obtainment, recognizing that a proposed project may be consistent with the overall objectives of the General Plan, but not with each and every policy thereof. In all instances, the City may use its discretion to balance and harmonize policies with other countervailing policies in a manner that best achieves the City’s overall goals.”
The appellate court found no facial violation of the internal consistency requirement or conflict with the General Plan Guidelines. The opponents failed to identify any specific conflicting policies. At best, the opponents complained of what the City might do in the future. From the appellate court’s perspective, there was nothing in the challenged language which presented “a total and fatal conflict with applicable statutory prohibitions or the conduct is likely to occur in the great majority of circumstances.” The opponent’s string of hypothetical future decisions was insufficient to set aside the general plan. The court then turned to the CEQA claims.
The CEQA Challenge
Adios LOS. As to traffic impacts, the General Plan included LOS standards, but recognized that exceptions to the standards were permitted in certain circumstances. Notwithstanding that certain roadways would operate at LOS E and F in 2035, the City concluded that as a result of various general plan policies including an emphasis in multi-modal mobility and a shift away from just considering automobile delay and travel times, that the impact was less than significant, and no mitigation was required. Citizens challenged the LOS revisions, but the appellate court concluded that the challenge was moot as a result of Public Resources Code section 21099(b)(2) which provides that “automobile delay, as described solely by level of service or similar measure of vehicle capacity or traffic congestion shall not be considered a significant impact on the environment” except for roadway capacity projects. The court also concluded that, because the vehicle miles traveled (“VMT”) provisions of the CEQA Guidelines (§15064.3) were not yet mandatory for the City, Citizens’ alternative argument that the City failed to perform a VMT analysis also failed.
The “No Project” Alternative. The No Project alternative was based upon buildout of the 2030 General Plan. Although the estimated buildout for 2030 and 2035 were assumed to be the same, the 2035 plan included energy efficiency provisions, greenhouse gas reductions, a climate action plan and more aggressive flood protection policies. Citizens objected, and the court of appeal viewed the challenge not as a substantive failure of the No Project alternative, but as a challenge to the City’s rejection of the No Project alternative, which the City rejected because if failed to achieve objectives sought by the 2035 plan. As Citizens failed to properly cite to the record to show a lack of substantial evidence in support of the City’s rejection, its challenge to the No Project alternative failed.
EIR Recirculation Was Not Required. A lead agency’s decision not to recirculate must be supported by substantial evidence. However, a challenger must prove a “double negative” “that is, [Citizens] must demonstrate that there is no substantial evidence to support a determination that the [changes were] not significant new information” quoting from South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 330. Among other arguments, Citizens asserted that the modification to the LOS standards in the plan required recirculation. The court noted that the policy changes did not trigger an impact and that there would be no changes in the physical impacts otherwise anticipated to occur. Thus, the court concluded that there was not a new impact or a substantial increase in the severity of an impact.
Remaining Issues. The appellate court rejected Citizens’ greenhouse gas arguments because (a) the change in LOS policy did not change physical impacts; and (b) Citizens failed to cite to any record evidence in support of its position. Citizens final argument was that the EIR was deficient for failure to address bicycle safety and conflict with Vehicle Code section 21760. However, Citizen’s challenge consisted of argument not based upon evidence in the appellate record and as such, did not constitute substantial evidence. “Thus, ‘project opponents must produce evidence, other than their unsubstantiated opinions, that a project will produce a particular adverse effect.’” Citizens failed to cite relevant evidence in the record in support or its assertion of significant impacts.
 This is a practice that I describe as road mapping the general plan. A general plan has three audiences: the public, the decision makers, and a judge. By addressing how the plan is to be implemented within the four corners of the general plan itself, a city or county can present a clear road map to all three audiences as to how the general plan is to be administered in the long run. In the experience of this author, this practice will enhance the local government’s ability to successfully defend against claims of inconsistency.
William Abbott is an attorney 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.