The City of Sacramento received an early Christmas present with the December 18 publication of the Third District Court of Appeal’s opinion in Citizens for Positive Growth & Preservation v. City of Sacramento (2019) ___ Cal.App.5th ___, which was originally filed on November 26, 2019.  The decision affirmed a trial court judgment upholding the City’s 2035 General Plan against the plaintiff group’s Planning and Zoning Law and CEQA challenges.  The opinion’s most significant CEQA holding was that plaintiff’s challenge to the EIR’s transportation impacts analysis was moot because the applicable law currently in effect at the time of judgment in the appellate court – specifically, Public Resources Code § 20199(b)(2) (enacted as part of SB 743) – provides that auto delays measured by LOS or similar measures shall not be considered significant environmental impacts.  The Court of Appeal also rejected all of plaintiff’s other CEQA challenges, including those to the City’s non-adoption of the no-project alternative, its decision not to recirculate the EIR after adding numerous supplemental changes to the draft 2035 General Plan, and its Final EIR’s GHG and cyclist safety analyses.

Brief Background

The key changes in the City’s 2035 General Plan from its prior 2030 version were updating the planning horizon to 2035; revising acceptable traffic congestion thresholds of significance (TOS); reprioritizing transportation modes to increase sustainability; and incorporating a Climate Action Plan (CAP) and more aggressive flood protection, energy efficiency, and GHG policies.  After the City’s Planning and Design Review Commission recommended adoption of the updated General Plan with five supplemental changes and certification of the related EIR in January 2015, the City Council published notice that it would consider those matters with a number of additional supplemental changes in February 2015, and ultimately certified the Final EIR and approved the 2035 General Plan in March 2015.  Plaintiff sued to challenge those actions the next month, the trial court denied its petition for writ of mandate, and the Court of Appeal ultimately affirmed.

The Court of Appeal’s Rejection of Plaintiff’s Facial General Plan Consistency Challenge 

Plaintiff’s Planning and Zoning Law-based challenge was based on the last sentence (italicized below) of the 2035 General Plan’s introductory paragraph, which paragraph reads as follows:

“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 attainment, 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, in making a determination of consistency, the City may use its discretion to balance and harmonize policies with other complementary or countervailing policies in a manner that best achieves the City’s overall goals.”

The Court rejected plaintiff’s argument that the challenged sentence granted the City unfettered discretion to create a hierarchy of General Plan elements or to approve projects inconsistent with any General Plan policy.  Noting that the concept of general plan consistency arises at “two distinct stages” – plan adoption (which implicates the requirements of internal consistency and correlation of elements) and plan application (which implicates the rule that individual proposed projects must be compatible with general plan objectives and policies) – the Court of Appeal held the City’s General Plan was valid on its face under a deferential “arbitrary and capricious” standard, i.e., the plan is valid unless “based on the evidence before the city council, a reasonable person could not conclude that the plan is internally consistent or correlative.”  (Citing Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1195.)  Plaintiff had not demonstrated inconsistencies between the plan’s policies as written, nor did the introductory language create a hierarchy of elements as would, for example, a forbidden “precedence clause.”  (Citing Sierra Club v. Board of Supervisors (1981) 126 Cal.App.3d 698, 702-703, 708.)  The introductory language addressed the distinct issue of future determinations of a proposed project’s consistency with the General Plan, which determinations “would be subject to… as applied challenge[s] at the appropriate time” but do not implicate facial validity.  Moreover, plaintiff’s facial constitutional challenge based on State law preemption failed whether judged under a standard whereby invalidity must be shown by demonstrating conflict in a great majority of cases, or in all cases.  Nothing in the challenged language prevented the City from applying the plan lawfully, and the Court refused to entertain plaintiff’s unripe “musings” concerning City’s “hypothetical future noncompliance” in the context of its facial challenge.

The Court of Appeal’s Rejection of Plaintiff’s CEQA Challenges to the City’s EIR

Standard of Review

Applying CEQA’s “prejudicial abuse of discretion” standard of review (Pub. Resources Code, §§ 21168.5, 21005) to plaintiff’s EIR challenges, the Court of Appeal poured old wine from a new bottle, quoting and paraphrasing Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511-512, in part as follows:

“. . . Our [Supreme Court’s] decisions have thus articulated a procedural issues/factual issues dichotomy.  ‘[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence.  [Citation.]  Judicial review of these two types of error differs significantly.  While we determine de novo whether the agency has employed the correct procedures, “scrupulously enforc[ing] all legislatively mandated CEQA requirements” [citation], we accord greater deference to the agency’s substantive factual conclusions.  In reviewing for substantial evidence, the reviewing court “may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,” for, on factual questions, our task “is not to weigh conflicting evidence and determine who has the better argument.”’”

Challenge to EIR’s LOS-Based Traffic Analysis

The 2035 General Plan EIR found the plan’s traffic impacts, based on 2035 horizon year analysis and application of new, less stringent LOS standards contained in the plan’s mobility policy M1.2.2 (which the EIR adopted as thresholds of significance), would be less than significant and require no mitigation, despite acknowledged future increases in vehicle traffic due to population and employment growth.  While the 2035 General Plan’s mobility policy generally seeks to operate the City’s roadway network at LOS D, it contains numerous exceptions allowing all streets in the central city community plan area and priority investment areas, as well as 24 other specifically identified roadways to operate at LOS F, and allowing 11 additional roadways to operate at LOS E; it further allows the City to accept less than LOS D on other roadways if (1) the City determines that maintaining that standard would be infeasible and/or conflict with achieving other goals, and (2) the City or private project at issue includes provisions to improve the overall system, promote non-vehicular transportation, and/or implement vehicle trip reduction measures.  The mobility policy also specifies limits beyond which the City shall not expand the physical capacity of its planned roadway network to accommodate projects.

Plaintiff challenged the EIR’s reliance on the 2035 General Plan’s new LOS standards as thresholds of significance, arguing that doing so avoided analysis of the significance of traffic impacts degrading to LOS F and avoided required study of alternatives and mitigation measures, and that the EIR’s less-than-significant conclusion thus lacked substantial evidence support.  The Court held that this argument, which was premised on increased traffic congestion constituting a significant environmental impact under CEQA, was rendered moot by Public Resources Code § 21099(b)(2), which provides that “[u]pon certification of the guidelines by Secretary of the Natural Resources Agency pursuant to this section, automobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion shall not be considered a significant impact on the environment pursuant to [CEQA], except in locations specifically identified in the guidelines, if any.”  The corresponding CEQA Guidelines provisions – contained in § 15064.3(a)-(c) – were certified by the Secretary of the Natural Resources Agency before being approved by the Office of Administrative Law on December 28, 2018; they provide that vehicle miles traveled (VMT) is generally the most appropriate measure of transportation impacts, set forth criteria for analyzing such impacts for land use and transportation projects, and provide that the standards apply prospectively, statewide, beginning July 1, 2020, although lead agencies may elect to be governed by them immediately.  (Ibid.)

Per the Court, even though the Guideline’s mandatory VMT methodology only applies prospectively and is not yet binding on the City, the statute’s declaration that traffic delay or congestion, as measured by LOS and similar metrics, shall not constitute a significant environmental impact under CEQA (except for roadway capacity projects) became effective upon the Guidelines’ certification in late 2018.  Accordingly, since in mandate proceedings “the law to be applied is that which is current at the time of judgment in the appellate court” (quoting Callie v. Board of Supervisors (1969) 1 Cal.App.3d 13, 18-19), the 2035 General Plan’s impacts on LOS cannot constitute significant environmental impacts and plaintiff’s contrary argument was moot.  Further, in a “best of both worlds” scenario for the City, plaintiff’s argument that it erred in failing to employ a VMT methodology to analyze traffic impacts also failed because CEQA Guidelines § 15064.3 is prospective in that respect and does not yet apply to the City or other public agencies that have not voluntarily opted for early compliance.

Challenge to Non-Adoption of the “No-Project: Alternative

The Court rejected plaintiff’s next argument – challenging the City’s failure to adopt the EIR’s “no-project” alternative – as failing to demonstrate a lack of substantial evidence supporting the City’s relevant analysis and conclusions.  The no-project alternative assumed development without the project would continue to occur under the 2030 General Plan and existing land use designations.  The 2030 and 2035 General Plans were essentially the same in all areas except for energy efficiency, GHGs, and reprioritizing transportation modes to increase sustainability, with the primary difference being incorporation of the CAP and more aggressive flood protection policies into the new plan.  Under CEQA Guidelines § 15126.6(d), (e), in order to allow assessment of the comparative advantages and disadvantages of approving a project, the no-project alternative must discuss existing conditions and what would reasonably be expected to occur in the foreseeable future if the project were not approved.  By challenging only the City’s failure to adopt the no-project alternative, rather than challenging (with argument and citations to the record) the sufficiency of the alternative’s analysis, plaintiff forfeited that argument; it also failed to show the City’s finding that the no-project alternative was infeasible – because it would result in greater impacts than and not avoid any significant impacts of the 2035 plan, and would not further the objectives of incorporating the CAP, focusing infill development, and facilitating sustainable transportation infrastructure – was unsupported by substantial evidence.

Challenge Based on Lack of Recirculation

The Court likewise rejected plaintiff’s argument that four of the supplemental changes released shortly before the City Council’s final project hearing constituted significant new information requiring recirculation of the EIR.  Recirculation is not required simply because new information is added to the final EIR after the agency has made the draft EIR available for public review and conducted agency consultation (which is almost always the case); rather, the new information must be “significant” in that it changes the EIR in a way that deprives the public of a meaningful opportunity to comment on a substantial adverse project impact or a feasible way to mitigate or avoid such an effect that the project proponents decline to adopt.  (CEQA Guidelines, § 15088.5(a).)  Recirculation is the exception, rather than the general rule.  (Citing South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 328.)  An agency’s decision not to recirculate an EIR is reviewed for substantial evidence, resolving reasonable doubts in favor of its determinations; and the challenger “must lay out the evidence favorable to the other side and show why it is lacking.  Failure to do so is fatal.  A reviewing court will not independently review the record to make up for appellant’s failure to carry his burden.”  (Citing id. at 330, internal quotes omitted.)

Plaintiff failed to carry its “burden of proving a double negative, that the City’s decision not to recirculate the EIR is not supported by substantial evidence.”  (Citing ibid.)  While its reasoning is somewhat unclear, the Court found the supplemental changes – deleting volume/capacity ratios on specific roadways for which LOS F would be allowed and deleting the limitation on applying maximum volume/capacity ratios to projects requiring general plan amendments – would not change the amount of traffic on affected road segments and would thus not result in new or exacerbated impacts.  The Court further accepted the City’s explanations that the changes would not affect development assumptions or change the physical environment, and were implemented to provide flexibility to find general plan consistency where LOS goals were found infeasible, and to eliminate technical volume/capacity ratios calculations that were inappropriate at a general plan policy level.  The bottom-line is that the Court gave short shrift to plaintiff’s recirculation arguments, some of which it found cursory and unsupported by reasoned analysis or record citations, in concluding plaintiff failed to show substantial evidence did not support the City’s determination that the changes were not significant new information requiring recirculation.

Challenges to EIR’s GHG, Air Quality, and Cyclist Safety Analyses

The Court summarily rejected plaintiff’s “unsupported and undeveloped” GHG and air quality EIR challenges because they were either based on incorrect assumptions of significant traffic impacts the Court had already concluded plaintiff failed to demonstrate, or because plaintiff failed to lay out all relevant evidence and show substantial evidence did not support City’s conclusions.

Further, the Court summarily rejected plaintiff’s challenges to the EIR’s “cyclist safety” analysis as unsupported by reasoned analysis or record citations, with the sole exception of the claim that the EIR did not consider Vehicle Code § 21760’s three-foot vehicle/bicycle passing distance requirement (commonly known as the “Three Feet for Safety” law).  Regarding the latter claim, the Court rejected plaintiff’s hypothetical arguments made in support of it as “unsubstantiated opinions” and “dire predictions by non-experts” of project consequences that did not amount to substantial evidence having a factual foundation in the record.

Conclusion and Implications

The opinion’s land use analysis provides a helpful overview of, and summary of the “exacting” standards applicable to facial challenges to, general plan consistency.  Its most important CEQA holding explains how Public Resources Code § 21099, beginning with the late 2018 certification of the related CEQA Guidelines, renders automobile delay and congestion (as measured by LOS or similar metrics) obsolete and noncognizable as a measure of significant traffic and transportation impacts under CEQA, even while the Guidelines’ replacement regime – transportation impact analysis using a VMT metric – applies only prospectively and does not take mandatory effect until July 2020; this timing obviously proved to be quite felicitous for the City here.  Another practical impact of the decision very favorable to the City is that its 2035 General Plan upheld by the Court incorporated a Climate Action Plan, which presumably will serve to make the City’s future project-specific GHG/climate change analyses considerably less complicated.  Finally, while the opinion’s factual analyses and reasoning relating to its rejection of plaintiff’s no-project alternative, failure to recirculate, and other arguments is not always clear, its statements of the standard of review and other legal standards are clear and correct, and one repeated message stands out:  If an appellant making a substantial evidence challenge does not lay out all the relevant evidence and support its claim with reasoned analysis and citations to the record, its argument may be considered forfeited and summarily disregarded.

 

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.