On November 7, 2016, the Court of Appeal for the Third Appellate District reversed and remanded a trial court decision addressing a neighborhood group’s challenge to a 328-unit infill residential project in the City of Sacramento. East Sacramento Partnership for a Livable City v. City of Sacramento, __ Cal.App.5th __ (2016) (Case No. C079614).
The City approved the project in 2014 on a vote of six to three. East Sacramento Partnership for a Livable City, a neighborhood group, filed suit challenging the City’s approval of the project. The suit alleged various CEQA violations, including that the project environmental impact report ignored certain significant traffic impacts, and that the project is inconsistent with the City’s general plan. The trial court denied the petition and the neighborhood group appealed. My partner, Art Coon, will write about the CEQA issues on his blog, CEQA Developments.
The group’s general plan arguments focused on the project’s alleged inconsistency with policies regarding transportation, transit, health and well-being, and noise. The Court of Appeal began its analysis by citing numerous leading general plan consistency cases and their holdings, including the following:
- A 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.
- A given project need not be in perfect conformity with each and every general plan policy.
- The nature of the policy and the nature of the inconsistency as critical factors to consider.
- Inconsistencies with vague, general policies that “encourage” actions may not be fatal.
- A city’s determination that a project is consistent with its general plan carries a strong presumption of regularity and will only be revered if, based on the evidence in the record, a reasonable person could not have reached the same conclusion.
- A reviewing court accords great deference to the agency’s determination.
The Court rejected two of the group’s general plan consistency arguments because they were rendered moot during the pendency of the litigation by virtue of the City’s adoption of a new general plan that amended the policies in question. For example, the group challenged the project’s consistency with a policy requiring the developer to make improvements to the City’s transportation system in exchange for accepting LOS E and F conditions, but the new general plan no longer requires such improvements as a condition to accepting those traffic conditions. Similarly, a prior general plan policy required new neighborhoods to include traffic stops within one-half mile of all dwellings, but the new general plan only “encourages” such stops.
The Court also rejected an argument regarding the project’s alleged inconsistency with general plan policies designed to promote the health and well-being of the community by protecting the public from the adverse effects of air pollution, noise, and other health hazards, reasoning that the goal and policies in question are “vague and subjective.” In such circumstances, according to the Court, its deference to the City’s consistency finding “is the greatest because the City in its legislative capacity has unique competence to interpret those policies when applying those in its adjudicatory capacity.” The group failed to show that “a reasonable person could not have reached the same conclusion” regarding the project’s consistency with this goal and its policies.
In addition, the Court rejected the argument that the project is inconsistent with general plan noise policies, for several reasons. One such argument, for example, addressed a general plan policy that required noise mitigation for all development where the projected exterior noise levels exceed certain standards, “to the extent feasible.” The Court noted that the project included noise mitigation and held that whether additional mitigation was “feasible” was within the City’s discretion. The Court rejected two additional arguments because they were not raised under separate headings or subheadings, in violation of the California Rules of Court, and they relate to the adequacy of the EIR rather than to the project’s inconsistency with the general plan.
Curiously, given its rejection of the aforementioned arguments regarding noise policy inconsistencies because they relate, in part, to the adequacy of the EIR, the Court also rejected a rejected an argument regarding the project’s consistency with the City’s bicycle master plan, based in part on the EIR’s inconsistency about whether a dedicated bike lane is eliminated.
Although East Sacramento Partnership falls squarely within the ambit of a long line of cases involving deference to a city’s general plan consistency determinations, the case highlights the importance of the plan’s language. Given that development projects need merely be compatible with the objectives, policies, and general land uses and programs specified in the general plan, communities will have more latitude, under the reasonable person standard, to make project consistency determinations when plan policies are carefully framed so it is clear when policies are intended to be flexible and when they are meant to be mandatory. The language matters.