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Sierra Club et al v. County of Tehama et al

November 30, 2012


(Super. Ct. No. CI62008)

The opinion of the court was delivered by: Murray , J.

Sierra Club v. County of Tehama



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this case claiming a county's General Plan Update (GPU) violated the Planning and Zoning Law (Gov. Code, § 65000 et seq.) and the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq., hereafter CEQA;*fn1 Cal. Code Regs., tit. 14, § 15000 et seq., hereafter Guidelines*fn2 ), appellants Sierra Club and Citizens Alliance for Rural Environmental Sustainability appeal from the trial court's denial of their petition for a writ of mandate (Code Civ. Proc., § 1085) against the County of Tehama and the Tehama County Board of Supervisors (collectively, the County). Appellants contend the GPU violates planning laws because it is internally inconsistent, uses false population projections, fails to state building intensity for commercial and other specific land use designations, and violates the Open Space Lands Act (Gov. Code, §§ 65560-65570). Appellants also contend the County violated CEQA because its environmental impact report (EIR) failed to fulfill its informational purpose, misrepresented greenhouse gas emissions, failed to adopt feasible mitigation measures for impacts, failed to include an adequate alternatives analysis, and made findings unsupported by substantial evidence. We affirm the judgment.


Tehama County covers about 2,951 square miles, roughly midway between Sacramento and the Oregon border. The County jurisdictional lands amount to about 1,395,264 acres, or about 73.7 percent of the total acreage in the county. The general plan planning area consists of all areas in the county except the incorporated cities of Corning, Red Bluff, and Tehama, which are responsible for preparing their own general plans. About 26 percent of the planning area lands are within the jurisdiction of the National Forest Service, the Bureau of Land Management, or other state or federal entities. In 2007, the State Department of Finance (DOF) estimated the population of the unincorporated area at 40,917 people, with an average annual growth rate of 1.9 percent over a seven-year period. A 1983 general plan reflected the strong heritage of agriculture in the County.

In 2002, the County formed a General Plan Revision Project Advisory Committee. The committee made recommendations for a "General Plan Update 2008-2028," which was subjected to public discussion and debate. The committee's recommendation for a preferred land use map was rejected by County staff and was ultimately analyzed in the EIR as "Alternative 2" or the "majority opinion land use diagram."

The County held 10 public meetings in July and August 2005 for public input regarding the GPU. In the summer of 2005, the County adopted an updated housing element (which was later readopted with the GPU adopted on March 31, 2009; an updated housing element was due by August 31, 2009). A background report for the GPU was prepared between 2005 and 2007.

In April 2007, the County released a draft GPU to the public, which stated an intent that agriculture remain one of the primary uses of land in the county, but which would allow urban development to supplant more than 35,000 acres of agricultural land. The County held a series of six public meetings in August and September of 2007.

On September 19, 2008, the County released for public review and comment a CEQA Draft Environmental Impact Report (DEIR) for the GPU (the CEQA Project).*fn3

The planning commission held a public hearing on the Final Environmental Impact Report (FEIR or EIR) on February 5, 2009, received testimony, and voted 3:1:1 to recommend that the Board of Supervisors certify the FEIR and adopt the GPU.

During this review process, a major point of contention concerned population growth. The EIR set out a specific projection of growth at a rate of 2.2 percent per year, which totaled 55 percent over the span of the 2008-2028 GPU. At 2.2 percent per year, the estimated population in 2028 would be 63,647. But the EIR also spoke of a theoretical "buildout" population of 918 percent*fn4 for an estimated population of over 400,000 people. The theoretical buildout was derived by multiplying the number of acres in the County by the maximum potential buildout allowed by land use designations in the GPU. The EIR said the buildout was unlikely to happen during the GPU period of 2008 to 2028, yet the EIR considered the buildout in its cumulative impacts analysis, while using the 2.2 annual percent rate (55 percent total) to describe other various impacts. The EIR concluded that with the buildout there would be significant, unavoidable impacts.

Appellants and others complained during the administrative process that this dichotomy between 55 percent and 918 percent rendered the EIR vague and inadequate.

Appellants and others also complained that the projected 55 percent growth rate over 20 years was unjustified, because that number could be reached within a few years due to pending development projects and "concept plans." These included (1) Sun City Tehama, approved for 3,700 housing units, (2) Morgan Ranch, on track for approval of 3,950 housing units, and (3) "concept plans"*fn5 submitted for Moore Ranch (5,026 housing units), Lake California (2,198 units) and Sunset Hills (8,308 units). Appellants and others commented that the projects approved and pending, coupled with "concept plans," totaled about 25,000 housing units, which conflicted with the GPU's projection of 10,068 new housing units (2.2 percent annual population growth) between 2008 and 2028. In its response to comments, the County acknowledged pending and approved development projects totaling 8,450 housing units but did not address the "concept plans."

Because theoretical buildout is a recurring theme in appellants' contentions, we set forth the background of this issue in some detail.

The DEIR stated:

"Buildout Projection

"Implementation of the 2008-2028 General Plan land use plan would allow for more housing, and therefore more potential population, than the existing General Plan. Buildout is defined as the development of land to its theoretical capacity as permitted under the land use designation. However, buildout assumes theoretical optimum conditions by simply multiplying the number of acres by the maximum number of housing units allowed per acre. Buildout calculations do not take into account site-specific constraints, economic factors, market forces, and regulatory requirements imposed by local, state and federal agencies. Therefore, while the theoretical maximum buildout potential may produce 184,498 dwelling units with a resultant population of 416,197, the reality is that this number of units will not be built within the planning horizon of this General Plan. The existing General Plan does not include buildout projections. In order to compare the proposed project and the existing General Plan buildout potential, an analysis of the two documents was completed using the 2000 Census person per household statistics. Table 4.0-1 illustrates the differences in buildout projections."

"Planning Horizon Population and Housing Units

"The land use forecasts estimate the number of new dwelling units that could be anticipated within the County through the planning horizon (2028) as well as the number of dwelling units that could be accommodated through buildout of residential land use designations. Population forecasts for the unincorporated area of Tehama County were derived by using the DOF population projections for Tehama County."

The DEIR further said, "For the 2008-2028 lifespan of the General Plan update, the population and housing unit count will be based on growth scenario #3 [2.2 percent annual growth] which establishes a 2028 population of 63,647 and a housing unit count of 28,215 for the unincorporated county area. Under cumulative conditions, the EIR will utilize the buildout projections shown in Table 4.0-1 for impact analysis."

The DEIR's "[Section] 4.11 POPULATION AND HOUSING," under a discussion of cumulative impacts and mitigation measures, said that, using the theoretical buildout figures, the GPU could have a "cumulatively considerable" impact in population and housing growth. The DEIR said the "buildout potential" represented substantial growth and "will have a potentially significant physical effect on the environment. Implementation of the Tehama County 2008-2028 General Plan and the associated land use designations would directly cause growth and the proposed General Plan does not contain any policies which would limit population growth. [¶] In Section 4.0, Introduction to the Environmental Analysis and Assumptions Used, there is a comparison of the theoretical maximum buildout of the 2008-2028 General Plan, with its 2008-2028 timeframe, to the buildout that could theoretically result from the current 1983 General Plan. (See Table 4.0-1) Full buildout of the 1983 General Plan could result in a hypothetical population of 321,580 living in an estimated 139,125 housing units. Based on that analysis, the 2008-2028 General Plan could theoretically result in 45,374 more houses and a buildout population of 95,387 more people than the 1983 General Plan buildout.

"Mitigation Measures

"The EIR contains mitigation measures where appropriate to reduce or eliminate potentially significant impacts associated with population growth in the County. For instance, as a result of population growth under the 2008-2028 General Plan there are lands that are currently vacant that will be converted to residential uses, which will ultimately increase the water supply needs of the County among other things. The proposed General Plan Open Space and Conservation Element contains policies that assist in reducing potential impacts to water supply resources (see Section 4.8 of this DEIR). However, even with implementation of 2008-2028 General Plan policies and mitigation measures, population growth will inevitably occur and housing and other services would need to be provided to accommodate this growth. Implementation of the Tehama County 2008-2028 General Plan and the associated land use designations would be a major factor that will contribute to the generation of growth. Furthermore, the 2008-2028 General Plan does not contain policies that significantly discourage growth. New housing and population growth in Tehama County, when added to growth that is occurring in Shasta County and other adjoining counties, will also contribute incrementally to the cumulative population in the region. Related secondary impacts (e.g., traffic) are addressed in the topic-specific sections of this EIR. Overall, impacts related to housing and population growth as proposed in the proposed [GPU] would be cumulatively considerable and significant and unavoidable." (Original boldface.)

This same discussion was repeated in the DEIR's Section 6.0 "CUMULATIVE IMPACTS SUMMARY."

In response to citizen comments about the DEIR, the FEIR stated in its "Master Responses":


"There are a number of comments expressing concern over the projected population and housing unit growth which may result with implementation of the 2008-2028 General Plan presented in the Draft EIR. As is stated numerous times in the Draft EIR, the maximum buildout population (416,197) and housing units (184,489) is not anticipated to occur during the 2008-2028 General Plan planning period. As stated in the Draft EIR, page 4.0-1:

" '[B]uildout assumes theoretical optimum conditions by simply multiplying the number of acres by the maximum number of housing units allowed per acre. Buildout calculations do not take into account site-specific constraints, economic factors, market forces, and regulatory requirements imposed by local, state and federal agencies. Therefore, while the theoretical maximum buildout potential may produce 184,498 dwelling units with a resultant population of 416,197, the reality is that this number of units will not be built within the planning horizon of this General Plan.'

"This determination was based on a number of factors, for instance: the fact that Tehama County has been in existence for 152 years (formed in 1856) and currently only has a population of 40,936, the historical growth at its highest point since 1970 was only 3.1 percent (1970 to 1980), a 3.1 percent annual growth rate would result in a 2028 population of 75,384 in the unincorporated County which nowhere near [sic] the buildout population. In fact, the unincorporated County population would have to grow[] by approximately 26 percent annually to reach the buildout population by 2028. As a result of the unlikelihood that the County can reach the buildout population during the planning period of the 2008-2028 General Plan, an analysis was conducted to determine a more realistic population and housing units potential, as well as commercial and industrial growth potential during the 2008-2028 planning period.

"As discussed in Section 4.0, starting on page 4.0-2, the Draft EIR analyzed three planning period growth scenarios based on published and readily accepted data. The planning period growth is based on the U.S. Census historic population growth and population projections published by the California Department of Finance (DOF) for Tehama County. The Draft EIR uses the planning period's largest growth scenario for existing conditions analysis. These projections are used as they are considered to be based on the latest, most accurate State of California approved information available at the publication of the Draft EIR. This analysis determined that the potential growth with implementation of the 2008-2028 General Plan would result in a 2028 population of approximately 63,647 and increase of 22,711 over the 2008 population. The number of housing units in 2028 was projected to be 28,215, an increase of 10,068 over the 2008 housing units. Therefore, the projected population and housing unit growth for the proposed General Plan is considered acceptable for environmental impact analysis.

"The Draft EIR clearly states on page 4.0-7: [¶] 'For the 2008-2028 planning period of the General Plan update, the population and housing unit count will be based on growth scenario #3 which establishes a 2028 population of 63,647 and a housing unit count of 28,215 for the unincorporated county area. Under cumulative conditions, the EIR will utilize the buildout projections shown in Table 4.0-1 for impact analysis.'

"Additionally, the potential population increase was analyzed for its environmental impact, in Impact 4.11.1 of the Draft EIR. A limit on growth was discussed in under [sic] this impact. It was determined that other than implementation of an alternative land use plan that reduces the potential for future growth below that of the existing General Plan, or adopting a limitation on the issuance of building permits throughout the county, there are no other mitigation measures that would reduce future growth in Tehama County. Unlike a project-level document where the direct effect of a project on population growth can be determined, in this instance the 2008-2028 General Plan as a policy document can only suggest where growth would be appropriate, and rely on market forces to determine when or if that growth will occur. By establishing special planning areas focusing growth adjacent to the I-5 corridor, including policies to encourage compact urban forms, efficient provision of services and the potential for transit oriented design, the 2008-2028 General Plan reduces, but cannot reduce to a less than significant level, the impacts associated with population growth. As a result this impact remains significant and unavoidable.

"Therefore, the projected population and housing unit growth for the proposed General Plan is considered acceptable for environmental impact analysis." (Boldface omitted.)

On March 9, 2009, appellants submitted to the County a letter commenting on the FEIR, reiterating their concerns.

On March 16, 2009, the Board of Supervisors conducted a public hearing and voted 4:1 to direct staff to prepare findings and a statement of overriding considerations*fn6 supporting certification of the FEIR and adoption of the GPU.

On March 31, 2009, the Board of Supervisors adopted a resolution certifying the FEIR for the GPU by a 3-2 vote and filed a Notice of Determination with the County Clerk. (§ 21152.) The Board adopted 137 pages of findings detailing the grounds for its determination, including findings that the GPU is internally consistent and in compliance with Government Code section 65300 et seq. (authority for and scope of general plans) and Government Code section 65560 (open space lands).

County Resolution No. 21-2009, which certified the FEIR, explained in its "INTRODUCTORY FINDINGS" on population growth forecast:

". . . [The] 'buildout' estimate is speculative and does not provide a reliable basis upon which to evaluate the direct environmental impacts of the [GPU].

"Numerous factors make it speculative and unlikely that such worst case buildout growth will actually occur as a consequence of the [GPU], including various site[-]specific constraints that preclude maximum density development on any given property (e.g., slope, wetlands, floodplains, soils unsuitable for building, etc.), social and economic forces limiting population increase and development in Tehama County, market forces that control demand for growth in Tehama County (i.e., limit the number of persons desiring to reside, do business in, or otherwise pursue or generate development in, Tehama County), and future discretionary actions of the Tehama County Board of Supervisors and other regulatory agencies. The Board specifically notes that a considerable portion of the worst case 'buildout' population estimate is related to the Special Planning Areas identified in the [GPU]. As set forth in the [GPU], the Board has reserved complete discretionary authority to determine whether and when development occurs in those areas, and at what density. Absent future affirmative discretionary actions by the Board, these areas are reserved exclusively for agricultural use. Any such decisions will require further separate review under CEQA. The reservation of such complete discretion, and the requirement of further CEQA review (including incorporation of feasible mitigations identified at that time), further renders speculative the possibility of such worst case maximum density growth actually occurring, and further makes such maximum density 'buildout' growth an unreliable basis for environmental review.

"The Draft and Final [EIR] contain[] an analysis of the amount of growth that is likely to occur as a consequence of the [GPU], based upon population growth statistics and projections provided by the [DOF] (i.e., a 2028 population of 62,647). Having received, reviewed, and considered the entire record, both written and oral, relating to the Tehama County 2008-2028 [GPU] and associated Draft and Final [EIR], the Board of Supervisors concurs with the analysis and conclusions of the Draft and Final [EIR] and finds that the amount of growth forecast by the EIR is accurate and reasonable, and provides a reliable basis for environmental review of the direct impacts of the [GPU]. The Board specifically disagrees with the alternative population growth (and associated development) estimates presented by various parties and contained in the administrative record, and concludes, based on the analysis and information contained in the Draft and Final [EIR] and the administrative record, that the population growth analysis set forth in the Draft and Final [EIR] is accurate and reasonable and provides the reliable data necessary to evaluate the direct environmental effects of the [GPU] and to permit preparation of a meaningful and accurate report on those impacts.

"The Draft and Final [EIR] utilize the maximum density 'buildout' population growth estimate to evaluate the combined cumulative impacts of the [GPU] and other reasonably foreseeable projects. Although there remains considerable uncertainty that the maximum density population growth estimate and associated development will actually occur even under cumulative conditions, the EIR adopts a deliberatively conservative approach and assumes that this growth estimate could occur under cumulative conditions. Without contradicting, or reducing the import of, the Board's findings regarding the evaluation of the [GPU's] direct impacts, the Board concludes that such a conservative approach is appropriate for evaluation of cumulative impacts (which necessarily requires consideration of future projects in addition to the [GPU] itself)."

Regarding unfeasibility of a growth cap, the Board's findings said, ". . . During the public review and hearing process, several commenters and members of the public proposed that the [GPU] include specific limitations on the amount of future growth, and consequent residential, commercial, industrial, and other development, permitted by the County (i.e., a growth cap). Such a limitation, if implemented, could reduce or avoid many of the significant and unavoidable impacts identified in the EIR (but could make other impacts more severe, due to an inability to establish the amount, density, and compactness of development needed to fund and support the infrastructure necessary to mitigate those impacts). . . . [T]he Board finds that specific economic, legal, social, technological, or other considerations make imposition of such a growth cap infeasible and undesirable for each of the following separate, independent, and severable reasons:

" Such a growth cap would interfere with the attainment of the Project Objectives calling for the County to '[a]ccommodate a reasonable amount of growth,' '[f]ocus growth adjacent to the I-5 corridor in the northern portion of the County,' and '[a]ddress . . . the need for moderate priced workforce housing'; and

" Such a growth cap would make achieving the amount, density, and compactness of development necessary to support and fund the infrastructure . . . contemplated by numerous goals, policies, and implementation measures of the [GPU] (including goals, policies, and implementation measures that serve to mitigate various environmental impacts) impracticable and infeasible.

" Such a growth cap would significantly impede the development of the Special Planning Areas designated in the [GPU], the existence of which is central to the County's strategy for coordinated development in Tehama County, and assists in reducing development pressure on agricultural and resources lands elsewhere. A growth cap would mandate that development occur slowly, which is impracticable and infeasible for master-planned developments of the nature contemplated for the Special Planning Areas.

" While the best available evidence shows that population growth in Tehama County will occur at an average [original italics] of 2.2% per year, it is predictable that the actual growth rate will fluctuate above and below this amount from year to year. Moreover, such fluctuations may be desirable if, for example, an upward deviation is caused by the development of a master-planned community in a Special Planning Area in one or more years, and accompanied by a downward deviation in later years as demand for housing is thereby satisfied. An annual growth cap would eliminate the flexibility necessary for the County to take advantage of such fluctuations.

" Such a growth cap would conflict with numerous Goals, Policies, and Implementation Measures set forth in the Economic Development Element of the [GPU] . . . ."

Appellants filed a petition for writ of mandate on April 28, 2009.*fn7 The petition complained the GPU was internally inconsistent and violated planning laws by failing to provide for protection of permanent undeveloped open space, including protection of biological resources, agricultural lands and scenic viewshed resources. The petition complained the FEIR violated CEQA by having an inadequate Project description; an inadequate alternatives analysis; an inadequate analysis regarding impacts to agricultural resources, air quality, land use, traffic and circulation, water resources, water quality and public services; an inadequate evaluation of the Project's contribution to global warming; and an inadequate analysis of cumulative impacts. The petition asked the trial court (1) to order the County to vacate its approval of the FEIR and GPU and prepare a new EIR, and (2) to enjoin the County from issuing approvals/permits or undertaking any construction/development without full compliance with California law.

After briefing and a hearing of counsels' arguments, the trial court issued a written ruling on June 25, 2010 denying the writ petition and the request for injunctive relief. On October 5, 2010, the trial court issued a 55-page statement of decision.

On October 25, 2010, the trial court entered judgment in favor of the County.

On December 14, 2010, the trial court entered an amended judgment in favor of the County, adding a cost award and incorporating by reference its statement of decision.

On December 14, 2010, appellants filed a notice of appeal from the October 25, 2010 judgment. We will liberally construe the notice to be an appeal from the amended judgment entered on December 14, 2010. (Cal. Rules of Court, rule 8.100(a)(2) ["notice of appeal must be liberally construed"].)


I. Land Use Planning Laws

A. General Principles and Standard of Review

Government Code section 65300 requires each city and county to adopt "a comprehensive, long-term general plan for the physical development of the county or city, and of any land outside its boundaries which in the planning agency's judgment bears relation to its planning." Government Code section 65302 requires that a general plan include a diagram or diagrams and text setting forth "objectives, principles, standards, and plan proposals," and include (a) a land use element, (b) a circulation element, (c) a housing element, (d) a conservation element, (e) an open space element, (f) a noise element, and (g) a safety element.

The adoption of a general plan or an amendment to a general plan is a legislative act reviewable by traditional mandamus. (Gov. Code, § 65301.5 ["adoption of the general plan . . . or the adoption of any amendment to such plan or any part or element thereof is a legislative act which shall be reviewable pursuant to Section 1085 of the Code of Civil Procedure"].)

Government Code section 65751 states, "Any action to challenge a general plan or any element thereof on the grounds that such plan or element does not substantially comply with the requirements of Article 5 (commencing with Section 65300) shall be brought pursuant to Section 1085 of the Code of Civil Procedure."

". . . A legislative act is presumed valid, and a city [or county] need not make explicit findings to support its action. [Citations.] A court cannot inquire into the wisdom of a legislative act or review the merits of a local government's policy decisions. [Citation.] Judicial review of a legislative act under Code of Civil Procedure section 1085 is limited to determining whether the public agency's action was arbitrary, capricious, entirely without evidentiary support, or procedurally unfair. [Citations.] A court therefore cannot disturb a general plan based on violation of the internal consistency and correlation requirements unless, based on the evidence before [the city or county], a reasonable person could not conclude that the plan is internally consistent or correlative. [Citation.]" (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1195 (Federation Hillside II).)

B. Land Use Element

Appellants argue the land use element violates Government Code section 65302, subdivision (a),*fn8 by failing to provide "population densities" or "building intensities" for the nonurban land use designations "commercial," "industrial," "resource lands," "public facilities," and "special planning." In response, the County argues, as it did in the trial court, that this contention is barred by the failure to exhaust administrative remedies. The trial court agreed with the County, as do we.

Exhaustion of administrative remedies is a jurisdictional prerequisite to judicial relief. (Endangered Habitats League, Inc. v. State Water Resources Control Bd. (1997) 63 Cal.App.4th 227, 237 (Endangered Habitats).)

When the public agency complies with its CEQA duty to give a public hearing or other opportunity for public participation, section 21177 prohibits the filing of a CEQA writ petition "unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." (§ 21177, subd. (a).) The party filing the petition must have "objected to the approval of the project orally or in writing. . . ." (§ 21177, subd. (b).) The Legislature designed section 21177 to codify the exhaustion of remedies doctrine. (Endangered Habitats, supra, 63 Cal.App.4th at p. 238.) The doctrine of exhaustion of administrative remedies requires that appellants or someone else must have raised the issue with particularity during the administrative proceedings. (California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 616 (California Native Plant); Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 909.)

Here, appellants claim the issue was raised in the administrative proceeding on two occasions.

First, on March 9, 2009, appellants submitted a letter to the County, commenting on the FEIR. The entire comment under the heading "Violation of State Planning Laws" stated:

"A. GP is internally inconsistent

"Under California law, a general plan must be integrated and internally consistent, both among the elements and within each element. (Gov[]. Code[,] § 65300.5.) If there is internal inconsistency, the general plan is legally inadequate. Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90, 103 (Concerned Citizens).)

"Caltrans noted in its comments that the GP has competing goals and policies, 'where one encourages infill and concentric growth adjacent to existing developed areas with little discussion in the General Plan or DEIR. The other, provides substantial discussion of the characteristics desired to allow growth at higher densities, to encourage leap frog development away from existing communities as long as the parcels are large enough to financially support basic services.

"In response to Comment Letter 17, County simply states that the Housing Element will need to be updated in August of 2009, and that the 2.2% growth assumed in the GP is similar to the growth assumed in the existing Housing Element. The response ignores the vast difference between the growth actually provided for by the GP and the average annual growth of 1.8 to 2.1 percent used in the Housing Element. The GP and the Housing Element are inconsistent.

"In response to Caltrans, County dismisses the comments as raising planning issues, but California law requires internal consistency in a general plan. This legal requirement is mandatory, and not up to a discretionary determination by the decision makers of a willingness to comply.

"B. Open Space Lands Act of 1972 (Gov[]. Code[,] § 65560 et seq.)

"The GP also violates the Open Space Lands Act of 1972. (Gov[]. Code[,] § 65560 et seq.) There are multiple Government Code sections contained in the Act that require a County to provide for protection of open space. (See Gov[]. Code[,] §§ 65561, 65562, 65563, 65566 and 65567.) The County must have an open space preservation plan, and any action taken by the County to update its general plan must be consistent with the required plan. (Id.) The GP violates this statutory scheme and the EIR failed to account for the requirements." (Original boldface and italics.)

Nothing in appellants' letter raised the issue they seek to raise in the courts about a failure to provide "population densities" or "building intensities" for nonurban "commercial," "industrial," "resource lands," "public facilities," and "special planning" land use designations.

Appellants claim the issue was also raised in a November 2008 letter from a citizen (Letter 22) commenting on the DEIR, which said, "At the heart of most of the problem with the Update and the DEIR lies the Plan's failure to provide a comprehensive land use program for the County, Government Code [section] 65000 et seq. [Fn. omitted.] The statute requires that the general plan provide clarity regarding land use designations and population densities, and the fact that the GPU does not do so renders the Plan invalid." A footnote in the letter referred to an attachment which quoted part of section 65302 and then said, "The distribution and general location of land uses is almost impossible to discern from the Plan documents. While the Plan does identify a number of land use designations, it does not include any maps or diagrams or the acreage available for development within each designation. [¶] Ultimately, it appears that, rather than being a 'constitution' for future development, the GPU will largely leave the shape of new developments, in amount and in location, primarily in the control of an administrator, planner and a consultant."

The County responded: "The commenter suggests that the problem with the proposed General Plan is the failure to provide a comprehensive land use program for the County. [¶] The commenter is referred to Figure 2.0-2 of the 2008-2028 General Plan for a visual representation of proposed County land use designations as well as Table 2-2 of the General Plan for acreages by land use type. Land use designations and their associated development density allowances are also described in the 2008-2028 General Plan (pages 2.0-13 through 2.0-24). [¶] The commenter does not raise any issues related to the adequacy of the Draft EIR and is referred to Master Response 2.4.1 for a discussion of the informational and analytical requirements of Environmental Impact Reports."

Nothing in Letter 22 raised the issue appellants seek to raise in the courts concerning deficiencies in densities and intensities of nonurban "commercial," "industrial," "resource lands," "public facilities," and "special planning" designations.

We conclude the doctrine of failure to exhaust administrative remedies bars appellants' challenge to the land use element.

C. Internal Consistency

Appellants argue the GPU lacks internal consistency in violation of Government Code section 65300.5, which provides, "In construing the provisions of this article, the Legislature intends that the general plan and elements and parts thereof comprise an integrated, internally consistent and compatible statement of policies for the adopting agency." Appellants fail to show grounds for reversal.

Courts have uniformly construed Government Code section 65300.5 as promulgating "a judicially reviewable requirement 'that the elements of the general plan comprise an integrated internally consistent and compatible statement of policies.' [Citations.]" (Concerned Citizens, supra, 166 Cal.App.3d at p. 97.) In Concerned Citizens, this court found facial inconsistency in a general plan that indicated current county roads would be able to accommodate projected traffic during the life of the plan, but also said problems would surface in future years as homes and businesses were constructed. (Id. at p. 98.) There was also a lack of correlation in that the land use element called for substantial population increases without discussing the inadequacy of state highways, and the circulation element identified problems with state highways but said funds were unavailable for recommended modification and offered no solution other than to seek funding from other government agencies. (Id. at pp. 100-103.) This court said: "The requirements of internal integration and consistency . . . must be read in light of the recognized purposes of a general plan. . . . 'The general plan is atop the hierarchy of local government law regulating land use. It has been aptly analogized to "a constitution for all future developments." [Citation.] The Legislature has endorsed this view in finding that "decisions involving the future growth of the state, most of which are made and will continue to be made at the local level, should be guided by an effective planning process, including the local general plan, and should proceed within the framework of officially approved statewide goals and policies directed to land use, population growth and distribution, development, open space, resource preservation and utilization, air and water quality, and other related physical, social and economic development factors." ([Gov. Code,] § 65030.1.)' " (Concerned Citizens, supra, 166 Cal.App.3d at p. 97.) "If a general plan is to fulfill its function as a 'constitution' guiding 'an effective planning process,' a general plan must be reasonably consistent and integrated on its face. A document that, on its face, displays substantial contradictions and inconsistencies cannot serve as an effective plan because those subject to the plan cannot tell what it says should happen or not happen. When a court rules a facially inconsistent plan unlawful and requires a local agency to adopt a consistent plan, the court is not evaluating the merits of the plan; rather, the court is simply directing the local agency to state with reasonable clarity what its plan is." (Ibid.)

A court cannot disturb a general plan based on violation of the internal consistency requirement unless, based on the evidence before the city or county, a reasonable person could not conclude that the plan is internally consistent. (Federation Hillside II, supra, 126 Cal.App.4th at p. 1195.) The city or county has broad discretion to weigh and balance competing interests in formulating development policies, and a court cannot review the wisdom of those decisions under the guise of reviewing a general plan's internal consistency and correlation. (Id. at p. 1196 [claim that lack of available funding guarantees rendered circulation element inadequate to accommodate future population growth did not render general plan inconsistent].)

In Environmental Council v. Board of Supervisors (1982) 135 Cal.App.3d 428 (Environmental Council), this court rejected a claim that a general plan amendment redesignating a 190-acre parcel from permanent agricultural to agricultural-residential was internally inconsistent with the long-term goals of the general plan. This court said, "While it may be true that the Sacramento County general plan expresses general policies of maintaining and enhancing the agricultural environment by minimizing urban expansion in directions which would conflict with agricultural pursuits, and that the policy planning staff has consistently opposed the agricultural-residential use of the property in question, it does not necessarily follow that the Board's decision reclassifying the property from agricultural to agricultural-residential is inconsistent with the broad policy expressed in the general plan to maintain agricultural lands. 'Obviously, the fact that the Legislature provided for amendments of a general plan indicates that it recognized the need for review, updating and correcting.' [Citations.] We cannot say as a matter of law that the Board acted arbitrarily or ...

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