Archive for November, 2017


In Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, the First District Court of Appeal upheld the trial court’s decision directing the Department of Parks and Recreation and the State Park and Recreation Commission to set aside project approvals where the draft EIR analyzed five alternative projects in detail, but did not identify one preferred alternative.

In 1984, the Department of Parks and Recreation acquired 777 acres of land in the Lake Tahoe Basin—608 acres of the property were designated as Washoe Meadows State Park and the remainder contained an existing golf course. Studies conducted in the early 2000s indicated that the layout of the golf course was contributing to sediment running into Lake Tahoe, which contributed to deterioration of habitat and water quality in the lake.

In 2010, the Department circulated a draft EIR to address the concerns about the golf course. The draft EIR analyzed five alternatives in equal detail, with the stated purpose of “improv[ing] geomorphic processes, ecological functions, and habitat values of the Upper Truckee River within the study area, helping to reduce the river’s discharge of nutrients and sediment that diminish Lake Tahoe’s clarity while providing access to public recreation opportunities ….” The draft EIR did not identify one preferred alternative. In the final EIR, the Department identified the preferred alternative as a refined version of the original alternative 2, which provided for river restoration and reconfiguration of the golf course. In 2012, the Department certified the EIR and approved the preferred alternative.

Framing the issue as a question of law, the court found that the draft EIR did not “provide the public with an accurate, stable and finite description of the project,” because it did not identify a preferred alternative. The court found that by describing a range of possible projects, the Department had presented the public with “a moving target,” which required the public to comment on all of the alternatives rather than just one project. The court determined that this presented an undue burden on the public.

The court compared the draft EIR to County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, where the court found an EIR insufficient because the project description described a much smaller project than was analyzed in other sections of the EIR. The court in Washoe Meadows found that rather than providing inconsistent descriptions like in County of Inyo, the draft EIR had not described a project at all. Thus, the court directed the Department to set aside the project approvals.

On October 31, 2017 in Kennedy Commission v. City of Huntington Beach  (2017) 16 Cal.App.5th 841, the Fourth Appellate District reversed the lower court,  finding for defendants on the first cause of action under state housing element, zoning, and planning laws. The court of appeal allowed plaintiffs leave to refile their third to sixth causes of actions, which had been dismissed without prejudice in the court below. A separate ruling on plaintiffs’ fee award from the court below is pending.

Background

The California Department of Housing and Community Development (HCD) determines each region’s Regional Housing Need Allocation (RHNA), including each region’s share of lower income housing. HCD then determines if the housing element of a general plan is compliant and reflects the agency’s share of the RHNA. HCD approved Huntington Beach’s general plan housing element in 2013. At the time, the majority of lower income housing was zoned for the Beach Edinger Corridor Specific Plan area (BECSP). Residents complained about the rapid pace of development in this area. In response, in 2015, the city amended the BECSP, cutting the amount of housing in this area by half. This resulted in a 350-unit shortfall of lower income housing for Huntington Beach. The city then sought to amend the housing element of the general plan to provide for lower-income housing in other areas of the city.

Plaintiffs, a fair housing advocacy organization and two lower-income Huntington Beach renters, filed a writ of mandate with six causes of action. The first cause of action was under state housing element law, for adopting a specific plan that was inconsistent with an approved general plan. The second cause of action was for failure to implement the general plan. The third and fourth causes of action were based on Article XI, section 7 of the California Constitution, alleging that the amended BECSP was preempted by state law. The fifth and sixth causes of action were allegations of housing discrimination, for adverse impacts to racial and ethnic minorities.

In an expedited trial, the trial court found that the amended BECSP violated state housing law because it no longer complied with the general plan (plaintiffs’ first cause of action). The trial court found that under Government Code section 65454, a municipality may not amend a specific plan unless the amendment is consistent with the general plan. The city, in violation of this provision, amended the specific plan without first amending the housing element to find other areas where lower income housing could be built. The BECSP amendment was void when passed and could not be enforced. The third through sixth causes of action were dismissed without prejudice. The second cause of action was not pursued on appeal.

Appellate Court Ruling

For the first time on appeal, the city raised the defense that as a charter city, Huntington Beach was exempt from requirements under Government Code sections 65860 and 65454, requiring that zoning ordinances and specific plans be consistent with the general plan. Charter cities with less than two million residents are exempt from these requirements, per Government Code 65803 (zoning) and 65700 (local planning). An exception to this exemption is when the charter city expressly states, in either its charter or by ordinance, that it intends to adopt the consistency requirement, which Huntington Beach alleged that it had not done. Therefore, the defendants argued, while they were required to provide for their share of lower income housing as determined by the RHNA, the city was permitted to amend the general plan to be compliant. To support this argument, the city moved for the appellate court to take judicial notice of the city’s charter and population, providing the factual basis for the city’s charter city exemption.

First, as a threshold matter, the court of appeal exercised its discretion to take judicial notice of documents that were not before the trial court, that are of substantial consequence in the determination of the action. The court chose to exercise its discretion here, because the trial court had not restricted the issues in its expedited hearing. Although this was not a justification for defendants’ failure to raise the issue, this decision afforded the defendants some latitude in this regard.

As to the merits, the court found that Huntington Beach met the requirements for the charter city exemption, and that the exception to this exemption was inapplicable. First, the court found that the consistency requirement was not adopted by the city in its charter. The court then examined Huntington Beach’s zoning ordinance concerning specific plans and determined that the city did not intend to adopt a consistency requirement there, either. In making this determination, the court heavily relied on its decision in Garat v. City of Riverside (1991) 2 Cal.App.4th 259. In Garat, Riverside, also a charter city, enacted two voter initiatives which changed the zoning to favor agricultural uses in specified areas, creating an inconsistency with the general plan.

In Garat, the court rejected the argument that the adoption of any specific plans, even if they were intended to be consistent with the general plan, creates either a presumption that all specific plans in the general plan area must also be consistent, or that a city has generally adopted the consistency requirement in its land use planning.

More importantly, Garat established that Government Code section 67000 exempts charter cities from local planning requirements, in virtually the same way that section 65803 exempts charter cities from the provisions requiring consistency with to specific plans, and these exemptions are strictly construed.

Turning to Huntington Beach’s zoning ordinance, the city did not explicitly state that any specific plan that was not consistent with the general plan was void. The ordinance did use language concerning consistency, but fell short of expressly adopting the language of Government Code section 65454. To adopt the consistency requirement, a zoning ordinance must state that “[n]o specific plan may be adopted or amended” unless it is consistent with the general plan, or else it is void. Absent this, plaintiffs’ attempt to imbue a consistency requirement in the zoning ordinance must fail, as it did in Garat.

The court also rejected plaintiffs’ argument that even if the charter city exemption applied, the amended BECSP should be considered void, as violating state law. Even if the court were to accept that the BECSP violated state law, the remedy would not be to render the BECSP void. Rather, the remedy would be to grant the city time to amend its housing element. The city is already implementing this remedy. The amendment process can proceed, while leaving the amended BECSP in force.

 The court noted while one may question the wisdom of creating the charter city exemption for certain aspects of land use planning, this was clearly the legislative intent.

The ruling is notable for several reasons. It set a high bar for plaintiffs in the Fourth District who are seeking to establish that a charter city has adopted specific plan consistency requirements, absent express adoption of the language of Government Code section 65454. Additionally, the city’s victory may be pyrrhic. As the city conceded, and the court concurred, the general plan’s housing element will ultimately require amendment to provide the city’s designated share of the RHNA. While the city achieved its goal of slowing down the pace of development, plaintiffs may yet refile and potentially prevail on their claims of housing discrimination, incurring liability for the city. Finally, although the court did decide to exercise its discretion and take judicial notice of the city’s charter, if it had not, the court would have had no basis for finding merit in the city’s defense under the charter city exemption. By not raising this defense in trial, the city came close to forfeiting this ultimately successful defense. Therefore, municipalities would do well to note if they are a charter city, and be prepared to argue that defense where applicable in the first instance.

The Sixth District Court of Appeal held in the partially-published opinion, Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, that general plan consistency is not a CEQA issue, and therefore mandate procedures for CEQA violations are inapplicable.

The Trial Court Proceedings

In 2012, Monterey County certified an EIR for an 11-acre shopping center project. The county’s general plan requires a specific finding of “a long-term sustainable water supply,” but in approving the project the board of supervisors determined only that the project had an “adequate long-term water supply.” After the county approved the project, Highway 68 Coalition filed a petition for writ of mandate challenging approval of the project on both CEQA and general plan consistency grounds. The trial court rejected the CEQA claims, but issued an order of interlocutory remand to the county to clarify whether there was a long-term sustainable water supply using the specific language mandated by a general plan policy. The board of supervisors held a hearing on remand and made the specific findings required by the general plan.

Highway 68 then filed, and the court granted, a motion for leave to file a supplemental writ petition regarding the county’s subsequent findings. Highway 68 argued that the county had violated procedural due process and had violated CEQA during the remand proceedings. The trial court denied Highway 68’s claims, finding that the county’s procedures on remand had not violated due process, and substantial evidence supported the board’s findings regarding water supply. The trial court lifted the prior stay and denied the petition for writ of mandate.

The Appeal

On appeal, Highway 68 argued that the trial court erred in issuing interlocutory remand in a CEQA writ of mandate case; the county violated due process requirements on interlocutory remand; and the EIR’s analysis of consistency with the general plan, traffic analysis, and segmentation of environmental review was insufficient under CEQA. The Court of Appeal found that because the issue of whether a proposed project is consistent with a county’s general plan is not a CEQA issue, CEQA’s mandate procedures do not apply. Thus, the court held that because this was a single, discrete issue of general plan consistency, which is reviewed by ordinary mandamus, the trial court did not err when it ordered interlocutory remand. In addition, the court held that Highway 68 did not meet its burden to show, based on the evidence in the record, why the board’s determination was unreasonable. Thus, the court upheld the finding of general plan consistency and affirmed the trial court’s denial of the petition for writ of mandate.