In an opinion originally filed on July 31, and belatedly ordered partially published on August 24, 2017, the Sixth District Court of Appeal affirmed the trial court’s judgment denying a writ petition brought by a citizens group (Highway 68) on CEQA and Planning and Zoning Law grounds, and upheld the Monterey County Board of Supervisors’ 2012 approval of a shopping center project. The Highway 68 Coalition v. County of Monterey, et al. (Omni Resources LLC, Real Party in Interest) (6th Dist. 2017) 14 Cal.App.5th 883.
In relevant (published) part, the Court upheld the trial court’s interlocutory remand to the County’s Board of Supervisors to clarify or make further findings required to demonstrate the project’s consistency with certain provisions of County’s General Plan requiring express, evidence-supported findings that the project has “a long-term sustainable water supply”; in so doing it rejected arguments that this procedure violated CEQA’s remedies statute (Public Resources Code, § 21168.9), which generally prescribes writ relief for CEQA violations. (The much lengthier, unpublished portion of the Court’s opinion, which will not be addressed in detail in this post, rejected Highway 68’s remaining non-general plan CEQA arguments alleging: violations of due process in the remand proceedings; CEQA violations in the EIR’s analysis of the Project’s water rights, and water balance, demand and recharge scheme, groundwater/soil contamination, and traffic analysis methodology; and violation of CEQA’s prohibition on “segmentation” or “piecemealing” of environmental review.)
The basic facts giving rise to the principal issue are straightforward. After issuing an intended decision and hearing argument on objections, the trial court entered an order of interlocutory remand that included its rulings denying all of Highway 68’s CEQA claims. The order found the Board abused its discretion as to one discrete general plan consistency issue by failing to make an express finding required by its General Plan that the project has a “long term sustainable water supply”; instead, it had found the project has an “adequate long-term water supply.” Upon remand, the Board explicitly made, and clarified that it had previously intended to make, the required finding. The trial court, after further briefing and oral argument, accepted the Board’s clarifying findings, found them supported by substantial evidence, rejected petitioner’s various challenges to the Board’s notice and procedures on interlocutory remand, and entered a final judgment denying the petition for writ of mandate.
Highway 68 argued on appeal that an interlocutory remand is an unauthorized remedy under CEQA when an agency has abused its discretion, and that the only available procedure is a writ of mandate issued under Public Resources Code, § 21168.9 compelling compliance with CEQA. Real party developer Omni and the County argued that an interlocutory remand was within the trial court’s inherent powers, and Omni further argued that County complied with CEQA because the FEIR’s finding of adequate long-term water supply was sufficient, and CEQA Guideline § 15125(d) does not require analysis of a project’s consistency with the general plan.
Agreeing with Omni, the Court of Appeal held: “We determine that the issue of whether a proposed project is consistent with a county’s general plan is not a CEQA issue, and therefore the mandate procedures provided for CEQA violations at section 21168.9 do not apply.” It observed that while CEQA Guidelines § 15125(d) requires an EIR to discuss any inconsistencies between a proposed project and applicable general plans, specific plans and regional plans, there is no requirement that an EIR analyze consistencies with such plans, or that the EIR itself be consistent with the relevant general plan. Further, because an agency’s general plan consistency determinations are reviewed by ordinary mandamus (see San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498, 515), it is well established that courts in such actions have inherent power in appropriate circumstances to remand to the agency for further proceedings prior to entering a final judgment. (Citing Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 527 [citing and following authorities recognizing interlocutory remand procedure]; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 81 [holding “trial court has inherent power in mandamus action to remand a matter to an administrative agency for clarification of ambiguous findings”]; Keeler v. Superior Court (1956) 46 Cal.2d 596, 600 [“court’s inherent power to control the course of litigation includes “the power to remand a cause in mandamus for further proceedings which are deemed necessary for a proper determination””].)
The Court of Appeal expressly rejected all of Highway 68’s general plan consistency arguments – i.e., that the FEIR failed to analyze whether the project was consistent with the general plan, that the County did not seek the advice of the relevant water agency’s general manager, and that the County’s long-term sustainable water supply finding on interlocutory remand was not supported by substantial evidence. The Court first agreed with County that “general plan consistency is not an issue reviewed under CEQA,” and next held “that Highway 68 fail[ed] to meet its burden to show that no reasonable person would have reached the Board[’s] . . . conclusion that Omni’s project has a long-term sustainable water supply consistent with [the relevant] general plan policies . . . .” The Court supported this conclusion by citing to numerous authorities establishing, among other things, the following key principles:
- “An action, program, or project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment. . . . State law does not require perfect conformity between a proposed project and the applicable general plan. . . .” (Internal quotes and citations omitted.)
- In “review[ing] an agency’s decision for consistency with its own general plan, [courts] accord great deference to the agency’s determination. This is because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies while applying them in its adjudicatory capacity. . . . A reviewing court’s role is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies.” (Internal quotes and citations omitted.)
- “[A]n agency’s findings that the project is consistent with its general plan can be reversed only if it is based on evidence from which no reasonable person could have reached the same conclusion. . . . The party challenging a city’s determination of general plan consistency has the burden to show why, based on all of the evidence in the record, the determination was unreasonable.” (Internal quotes and citations omitted.
Applying these standards, the Court of Appeal held “that Highway 68 has not met its burden to show why, based on all of the evidence in the records, the [general plan consistency] determination of the Board of Supervisors [made on interlocutory remand] was unreasonable.”
Mischief can result when courts confuse what are purely planning and zoning law issues with CEQA issues because the standards for judicial review of such claims can be very different. The Court here got it right and reached a practical, common sense result.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.