CEQA’s infill exemption (Guidelines section 15332) is a very useful tool in the toolbox for streamlining CEQA review. This Guideline applies in cities and can be applied to sites up to five acres in size if substantially surrounded by urban development. (Note to the California Legislature: if you are serious about CEQA reform, do something useful such as expanding this provision to include counties and increase the maximum acreage limitation.) The use of this provision requires, among other provisions, consistency with “the applicable general plan designation and all applicable general plan policies as well as the applicable zoning designation and regulations.”
As noted in United Neighborhoods for Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074, 1097, “all applicable general plan policies” doesn’t mean consistency with just some policies. At issue in United Neighborhoods was a teardown of existing rent-stabilized units replaced by a hotel project. The use of the infill exemption was approved by the City but later appealed. Both the trial court and the Court of Appeal agreed with project opponents that the City’s consideration of “applicable” policies was too narrow, and as a consequence, substantial evidence did not support the City’s use of a CEQA exemption.
The problem faced by the City, and this would be true under many local housing elements, is that it is common to have broadly drafted goals and policies. While broadly stated goals and policies may allow for flexibility for consistency determinations under general plan law (Sequoyah Hills Homeowners Association vs City of Oakland (1993) 23 Cal.App.4th 704), that same flexibility in balancing competing policies does not extend to CEQA. This impacted the City’s defenses. The City argued that the hotel project was not a “housing” project, so policies regarding affordable housing did not apply. But the appellate court concluded that there was nothing in the general plan which carved out existing housing stock from the goals for adequate housing. The City also argued that it could engage in balancing, but the appellate court rejected that argument based upon the reference to “all applicable” in the Guidelines. Finally, the City argued that a reviewing court was required to give deference to the City in interpreting its own general plan goals and policies. The appellate court agreed with this in principle, however, the same deference did not apply to the determination of what goals and policies were required to be considered.
Bill Abbott is Of Counsel 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.