CITIZENS FOR POSITIVE GROWTH & PRESERVATION, Plaintiff and Appellant,
v.
CITY OF SACRAMENTO et al., Defendants and Respondents.
[255
Cal.Rptr.3d 894] APPEAL from a judgment of the Superior Court
of Sacramento County, Michael P. Kenny, Judge. Affirmed.
(Super. Ct. No. 34201580002058CUWMGDS)
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COUNSEL
Brown
Rudnick, Stephen R. Cook, Irvine, Soshana B. Kaiser; Larsen
Willis & Woodard and Geoffrey K. Willis, Irvine, for
Plaintiff and Appellant.
Susana
A. Wood, City Attorney, Brett M. Witter, Senior Deputy City
Attorney; Stoel Rives, Timothy M. Taylor, Allison C. Smith,
Sacramento, Parissa E. Florez for Defendants and Respondents.
OPINION
Robie,
J.
Page 616
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.
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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 [255 Cal.Rptr.3d 895]
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
Page 618
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’ [255 Cal.Rptr.3d 896] 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, 24 Cal.Rptr.3d 543');">24 Cal.Rptr.3d 543.)
Page 619
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,
127 Cal.Rptr.3d 636.)
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, 204 Cal.Rptr.3d 67, 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, 65
Cal.Rptr.3d 251.)
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, 24 Cal.Rptr.3d 543');">24 Cal.Rptr.3d 543; Gov. Code, � 65301.5.) As the
parties point out,
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"[a] petitioner may challenge a general [255 Cal.Rptr.3d
897] 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, 24 Cal.Rptr.3d 543');">24 Cal.Rptr.3d 543; 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, 176
Cal.Rptr. 620, 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 ...