Citizens For Positive Growth & Preservation v. City of Sacramento

          Certified for Publication 12/18/19

          APPEAL from a judgment of the Superior Court of Sacramento County No. 34201580002058CUWMGDS, Michael P. Kenny, Judge. Affirmed.

          Brown Rudnick, Stephen R. Cook, Soshana B. Kaiser; Larsen Willis & Woodard and Geoffrey K. Willis for Plaintiff and Appellant.

          Susana A. Wood, City Attorney, Brett M. Witter, Senior Deputy City Attorney; Stoel Rives, Timothy M. Taylor, Allison C. Smith, Parissa E. Florez for Defendants and Respondents.

          ROBIE, J.

         Defendant the City of Sacramento (City) approved and adopted the 2035 General Plan in March 2015. At the same time, the City certified the environmental impact report (EIR) for the 2035 General Plan in accordance with the California Environmental Quality Act (CEQA; Pub. Resources Code, ^[1] § 21000 et seq.). Plaintiff Citizens for Positive Growth & Preservation (Citizens) filed a petition for writ of mandate and injunctive relief and a complaint for declaratory relief (petition) against the City and its city council seeking to set aside both administrative actions. The trial court denied the petition, upholding both actions; Citizens appeals.

         On appeal, Citizens challenges the validity of the 2035 General Plan and the EIR. It contends we should vacate the trial court's ruling regarding the 2035 General Plan and order the City to rescind its approval thereof because a sentence in the introductory paragraph violates and conflicts with state planning laws. It argues we should do the same as to the EIR because the City's analyses pertaining to traffic, greenhouse gas emissions, air quality, cyclist safety, and the “no project” alternative failed to comply with CEQA, and the City was required to recirculate the EIR after releasing substantial supplemental changes shortly before the city council's public hearing.

         Finding no merit in Citizens's arguments, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         For the reader's ease, we provide a summary of the general factual and procedural background here and include the pertinent facts as to each issue in the applicable portion of the Discussion.

         The City adopted its 2030 General Plan in March 2009. In October 2012, the City initiated a five-year technical update to the 2030 General Plan, culminating in the City's 2035 General Plan. The key changes included updating the planning forecast horizon through 2035 and revising the traffic thresholds of significance standards used in the 2030 General Plan.

         The City released its draft 2035 General Plan and draft EIR for public review in August 2014. On January 15, 2015, the planning and design commission voted to forward to the city council a recommendation to certify the EIR and adopt the 2035 General Plan, including five supplemental changes to the draft 2035 General Plan and EIR considered by the commission.

         On February 24, 2015, the City issued a “special reminder” that the city council would consider adopting the 2035 General Plan and certifying the EIR at a meeting on March 3, 2015. In the reminder, the City provided a hyperlink to a document containing a “list of supplemental changes to the Draft 2035 General Plan.” The document outlined 13 changes to the draft 2035 General Plan and EIR, including the five changes previously considered by the planning and design commission.

         The City approved the 2035 General Plan and certified the EIR with the proposed changes on March 3, 2015. Citizens filed suit on April 1, 2015.

         DISCUSSION

         I

         The 2035 General Plan

         Citizens presents a facial challenge to the 2035 General Plan, arguing the introductory paragraph violates Government Code section 65300.5, the Governor's Office of Planning and Research's General Plan Guidelines (General Plan Guidelines), ^[2] and “state planning laws” because it purports to grant to the City unfettered discretion to “create a hierarchy of General Plan elements, or to approve projects inconsistent with any policy of the General Plan.” Citizens requests we vacate the trial court's ruling and order the City to rescind approval of the 2035 General Plan.

         The introductory paragraph provides: “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.” It is the last sentence that contains the language offensive to Citizens.

         The City argues the 2035 General Plan comports with governing law because it is internally consistent as written and the introductory paragraph “is consistent with precedent that acknowledges the City's discretion to weigh and balance competing interests in establishing development policies and in applying them.” As we explain, the introductory paragraph does not conflict with or violate governing law and does not render the 2035 General Plan invalid on its face.

         A

         General Plan Consistency Requirements Generally

         “A city or county must adopt a ‘comprehensive, long-term general plan' for its physical development. [Citation.] The general plan must include ‘a statement of development policies and... objectives, principles, standards, and plan proposals' and elements addressing land use, circulation, housing, conservation, open space, noise, and safety. [Citation.] The general plan serves as a ‘charter for future development' [citation] embodying fundamental policy decisions [citation]. The policies in a general plan typically reflect a range of competing interests.” (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1194.)

         The concept of consistency arises in the context of a general plan at two distinct stages. It first arises when a city adopts a general plan. Government Code section 65300.5 provides a general plan and each of its elements must “comprise an integrated, internally consistent and compatible statement of policies.” “A general plan is internally inconsistent when one required element impedes or frustrates another element or when one part of an element contradicts another part of the same element. For example, a land use element calling for substantial increases in population is inconsistent with a circulation element acknowledging that existing roads are inadequate to handle more traffic and offering no practical way to obtain better roads.” (South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1619.)

         The General Plan Guidelines state “[t]he concept of internal consistency holds that no policy conflicts can exist, either textual or diagrammatic, between the components of an otherwise complete and adequate general plan. Different policies must be balanced and reconciled within the plan.” (General Plan Guidelines, at p. 12.) Without such consistency, “[d]ecision-makers will face conflicting directives; citizens will be confused about the policies and standards the community has selected; findings of consistency of subordinate land use decisions such as rezonings and subdivisions will be difficult to make; and land owners, business, and industry will be unable to rely on the general plan's stated priorities and standards for their own individual decision-making. Beyond this, inconsistencies in the general plan can expose the jurisdiction to expensive and lengthy litigation.” (Id. at p. 13.)

         The concept of consistency arises at the second stage when a proposed project is presented for a city's consideration and approval. “The rule of general plan consistency is that the project must at least be compatible with the objectives and policies of the general plan.” (Naraghi Lakes Neighborhood Preservation Assn. v. City of Modesto (2016) 1 Cal.App.5th 9, 17, italics omitted.) “ ‘ “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.”' ” (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 817.)

         B

         The 2035 General Plan Is Valid On Its Face

         The adoption of a general plan is a legislative act and is presumed valid. (Federation of Hillside & Canyon Assns. v. City of Los Angeles, supra, 126 Cal.App.4th at p. 1195; Gov. Code, § 65301.5.) As the parties point out, “[a] petitioner may challenge a general plan on the ground that it does not substantially comply with [the requirements in Government Code sections 65300 to 65307] by way of petition for writ of mandate under Code of Civil Procedure section 1085.” (Federation of Hillside, at p. 1195; Gov. Code, § 65751.) “ ‘Substantial compliance... means actual compliance in respect to the substance essential to every reasonable objective of the statute,' as distinguished from ‘mere technical imperfections of form.' ” (Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 348, italics omitted.)

         “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 council, a reasonable person could not conclude that the plan is internally consistent or correlative.” (Federation of Hillside & Canyon Assns. v. City of Los Angeles, supra, 126 Cal.App.4th at p. 1195.)

         The introductory language does not violate Government Code section 65300.5 or the General Plan Guidelines, as Citizens contends. Government Code section 65300.5 and the General Plan Guidelines require the policies in a general plan as written to be integrated, internally consistent, and compatible. Citizens points us to no inconsistency between policies in the 2035 General Plan as written and nothing in the introductory language creates an inconsistency between the policies either. The introductory language also says nothing about establishing a hierarchy between the general plan elements. (Cf. Sierra Club v. Board of Supervisors (1981) 126 Cal.App.3d 698, 702-703, 708 [a “precedence clause” contained in the land use element of a county's general plan was void where such clause provided that if any conflict existed between the open space and conservation elements of the general plan, the land use element would take precedence].) The language instead concerns the City's future determinations of a project's consistency with the general plan, which is a different and separate issue from whether the policies within the general plan are internally consistent with one another as required by Government Code section 65300.5 and the General Plan Guidelines.

         Even if the City were to do what Citizens anticipates -- that is, to “create a hierarchy of General Plan elements, or to approve projects inconsistent with any policy of the General Plan” in the future -- it would not render the 2035 General Plan invalid. A finding or determination made separate and independent from the approval of a general plan and not included as part thereof cannot render the general plan internally inconsistent or noncorrelative. (Federation of Hillside & Canyon Assns. v. City of Los Angeles, supra, 126 Cal.App.4th at p. 1197 [a finding not part of the general plan “cannot make the general plan internally inconsistent or noncorrelative”].) Rather, any such future decision would be subject to an as-applied challenge at the appropriate time.

         Citizens's challenge faces another substantial obstacle (not addressed by the parties) because it essentially raises a facial constitutional challenge to the 2035 General Plan^[3] on the ground of preemption for conflicting with governing state law. (See T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1116.) This type of challenge is exacting, but it is also the subject of some confusion. As our Supreme Court recently explained: “Some cases have held that legislation is invalid if it conflicts in the generality or great majority of cases. [Citation.] Others have articulated a stricter standard, holding that legislation is invalid only if it presents a total and fatal conflict with applicable constitutional [or statutory] prohibitions.” (Id. at p. 1117, fn. 6.) Under either standard, however, Citizens's challenge fails.

         Nothing in the introductory language precludes the City from administering the 2035 General Plan in a lawful and valid manner. Citizens has, therefore, failed to show it is unavoidable the City will approve projects inconsistent with the 2035 General Plan such that the introductory language presents a total and fatal conflict with applicable statutory prohibitions or the conduct is likely to occur in the great majority of cases. Instead, Citizens attempts to use the following hypothetical to support its argument: “[The City] could determine, for example, that even though approval of a new industrial plant would conflict with policies in the General Plan's Environmental Resources element, the plant, nevertheless, could be approved as consistent with policies relating to economic growth.” Citizens's musings on future potential actions by the City does not, however, support an invalidation of the 2035 General Plan on its face. The City may avoid unlawful project/general plan consistency determinations in the future; we decline to presume the City intends to violate governing law or to consider any hypothetical future noncompliance with the 2035 General Plan because such disputes are not ripe or before us. Accordingly, we affirm the trial court's ruling upholding the 2035 General Plan.

         II

         The EIR

         A

         General CEQA Principles

         “ ‘The foremost principle under CEQA is that the Legislature intended the act “to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”' [Citations.] ‘With narrow exceptions, CEQA requires an EIR whenever a public agency proposes to approve or to carry out a project that may have a significant effect on the environment.' ” (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511.) A project will have a significant effect on the environment if it will cause “a substantial, or potentially substantial, adverse change in” “the physical conditions which exist within the area which will be affected by [the] project, including land, air, water, minerals, flora, fauna, ...