The Public Law Journal - Summer 2013
California law imposes substantial obligations on cities and counties with regard to enforcement of general plans and compliance with the California Environmental Quality Act (“CEQA”)[i]. These dueling obligations can come into conflict and result in a fundamental problem that often goes overlooked. If a city or county’s CEQA review for a project concludes that the project will result in an environmental imp act that is significant but unavoidable and that impact reflects a conflict with a mandatory policy in the city or county’s general plan, the city or county is, arguably, prohibited from approving the project. This result occurs despite the fact that CEQA permits a city or county to approve projects that have significant and unavoidable impacts. How did two laws focused on different goals come to be intertwined and is there any way out of this conundrum?
The Intersection of General Plans With CEQA
California law requires each city and county to adopt a general plan, a comprehensive long-term plan for the development of that city or county, famously referred to by the state Supreme Court as the “constitution for future development.”[ii] A general plan must contain seven mandatory “elements,” including a “land use element” to designate the level of intensity and general distribution of land uses, a “circulation element” to identify the general location and extent of existing and proposed roadways, and a “noise element” to identify and appraise noise problems in the community.[iii] Critically, “the propriety of virtually any local decision affecting land use and development depends upon [a finding of] consistency with the applicable general plan and its elements. ”[iv]
Findings of general plan consistency also arise in the context of the CEQA,[v] which imposes a second, and slightly different, obligation on cities and counties with regard to assessing consistency with their general plans.[vi] Cities and counties, when acting as lead agencies under CEQA, follow the CEQA Guidelines,[vii] which provide that a lead agency conducting environmental review of a project must consider whether the project would “conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over a project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect.”[viii]
Of course, this is a more limited inquiry than the one cities and counties must conduct when making their general plan consistency findings for a project, as the inquiry only extends to general plan policies “adopted for the purpose of mitigating an environmental effect,” but nonetheless, it brings the topic of general plan consistency squarely into the realm of CEQA. While courts have repeatedly affirmed that CEQA does not require an EIR to contain a detailed discussion of a project’s consistency with a general plan,”[ix] the analysis still must be conducted and provided.
EIRs and Mandatory General Plan Policies
Environmental impact reports (EIRs) are becoming ensnarled in general plan consistency problems. It all comes down to the use, in many general plans, of mandatory language (i.e. “shall” or “must”) in policies concerning topics such as traffic and noise levels. For instance, a general plan’s circulation element may include a policy that certain (or all) roadways “must” be maintained at a certain “level of service” (a measure used by traffic engineers to describe the degree to which a roadway has free flowing operations) such as Level of Service “C.” Another example would be a general plan’s noise element that establishes a mandatory noise limit of 65 decibels for exterior noise levels near residential developments. Indeed, the Office of Planning and Research’s General Plan Guidelines advocates for the use of such mandatory language in general plan policies:
For a policy to be useful as a guide to action it must be clear and unambiguous. . . . Clear policies are particularly important when it comes to judging whether or not zoning decisions, subdivisions, public works projects, etc., are consistent with the general plan. When writing policies, be aware of the difference between “shall” and “should.” “Shall” indicates an unequivocal directive. “Should” signifies a less rigid directive, to be honored in the absence of compelling or contravening considerations. Use of the word “should” to give the impression of more commitment than actually intended is a common but unacceptable practice. It is better to adopt no policy than to adopt a policy with no backbone.[x]
When a lead agency prepares an EIR, it must select a “threshold of significance” to determine whether the project under review will have a significant impact on the environment.[xi] Because every project is subject to different conditions, the lead agency has discretion to develop its own thresholds of significance by determining how it will identify those adverse impacts it finds to be significant.[xii] Given that courts have upheld lead agencies use of general plan standards as thresholds of significance in CEQA documents[xiii] it is quite typical for a lead agency to look to its general plan when selecting the thresholds of significance to use in an EIR – including general plan policies containing mandatory language. For example, when assessing a project’s traffic impacts a lead agency may look to the applicable general plan traffic policy to serve as its threshold of significance, meaning that the threshold against which the project will be measured would ask whether the project will result in any roadway operating at worse than Level of Service “C.” In the noise impact context, a lead agency might employ a threshold of significance taken from a general plan policy regarding exterior noise levels in order to determine if new roadway (or other) noise produced by the project is significant by asking whether noise levels will exceed 65 decibels near residential developments.
Further, even if a lead agency does not select general plan policies as its thresholds of significance for assessing topics like traffic or noise impacts, or does not select general plan policies containing mandatory language as a thresholds of significance, the lead agency must still address the project’s consistency with all applicable policies as part of its CEQA review – whether these policies contain mandatory language or not. It is fairly obvious that circulation and noise policies were adopted as part of general plans “for the purpose of avoiding or mitigating an environmental effect” – namely, mitigating traffic and noise impacts – and so must be considered when conducting CEQA review. [xiv]
EIR Determinations Can Highlight General Plan Inconsistencies
The trouble starts when a lead agency determines in an EIR that a project will cause a roadway to operate at worse than a Level of Service “C” or will result in any increase in exterior noise levels near a residential development above 65 decibels. While the EIR can recommend mitigation to reduce traffic impacts to achieve Level of Service “C,” or to reduce noise impacts below 65 decibels, reliably accomplishing that reduction will not always be possible. Physical constraints, such as existing developments that preclude the widening of a road to improve its Level of Service, or legal constraints that preclude the construction of a noise wall to reduce exterior noise impacts to a residential development, can make mitigation of significant impacts infeasible.
Under CEQA, a project’s inability to feasibly mitigate an impact to a less than significant level is not an insurmountable obstacle to the project’s approval. CEQA allows a lead agency that has prepared an EIR to conclude that a project will have a significant and unavoidable impact on the environment, but still chose to approve the project by adopting a statement of overriding consideration that explains why the lead agency found that the project’s benefits outweigh such impacts.[xv] This approach is taken by lead agencies across the state every day. However, the lead agency is still left with a major problem – by making a finding that an impact that was assessed pursuant to a mandatory general plan policy is significant and unavoidable and adopting a statement of overriding consideration to approve the project anyway, arguably the agency has now publically documented the project’s inconsistency with its general plan.
What Do The Court’s Make of This?
Generally, a city or county’s determination that a project is consistent with its general plan will be upheld by a court if it is supported by substantial evidence. Moreover, courts must resolve any reasonable doubts in favor of a city or county’s finding of general plan consistency. This deferential standard of review derives from long-standing judicial recognition that “the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity.”[xvi] Further, a court’s review of a city’s or county’s interpretation of its general plan is highly deferential because “policies in a general plan reflect a range of competing interests, [and] the [city] must be allowed to weigh and balance the plan’s policies when applying them, and it has broad discretion to construe its policies in light of the plan’s purposes.”[xvii]
This deference is well demonstrated in Sequoyah Hills Homeowners Assn. v. City of Oakland[xviii] where an appellant argued that a project was in conflict with certain plan policies and so could not be approved. The Court of Appeal rejected this argument finding that “none of the policies on which appellant relies is mandatory, and [the] project need not be in perfect conformity with each and every  policy.” But, what about those general plan policies that are mandatory?
However, in 2009, the Court of Appeal overturned a project approval on grounds of general plan inconsistency. In California Native Plant Society v. City of Rancho Cordova[xix] the Court of Appeal considered a general plan policy that would “require mitigation of impacts to certain species and provide that the required mitigation was to ‘be designed by the City in coordination with the U.S. Fish and Wildlife Service  and the California Department of Fish and Game (CDFG).’” The Court found that the City’s mere “solicitation and rejection of input from the agencies with which the City is required to coordinate” did not comply with the policy and thus, even under the highly deferential standard of review court apply to cities determinations of general plan consistency, the project was inconsistent with the city’s general plan.[xx]
There is no published case law expressly considering a claim of general plan inconsistency where a lead agency has made a CEQA finding regarding a significant and unavoidable impact that arguably relates to the alleged inconsistency , but such lawsuits have been brought (and quickly settled), suggesting that it is only a matter of time before there is a published decision squarely on this issue.
What’s a city or county to do? It could concede that, arguably, a project that cannot meet a standard established by a mandatory general plan policy cannot be approved, even if it is willing to adopt a statement of overriding consideration regarding the adverse impacts of that inconsistency pursuant to the requirements of CEQA. This would mean denying approval to such projects on general plan inconsistency grounds alone, and potentially reducing the development potential of lands within the city or county’s jurisdiction.
The city or county could look to the Court of Appeal’s ruling in Sequoyah Hills Homeowners and make consistency findings that concede a project’s lack of perfect conformity with certain general plan policies, but argue for the presence of overarching consistency based on a project’s consistency with other policies. Such an approach will certainly face the litigation risks outlined in California Native Plant Society straight on, but could find a sympathetic judicial ear given the deference courts generally show to general plan consistency determinations.
The city or county could pursue some type of general plan amendment. It could require that the developer of the project in question process a general plan amendment to remove the inconsistency(ies). While this approach seems simple on its face, general plan policy that applies city or county-wide is difficult to amend without also undertaking jurisdiction-wide environmental analysis as to the impacts of modifying the policy. Suddenly a single development project could trigger the need for a city or county-wide reevaluation of key portions of a general plan’s circulation or noise element.
Finally, the city or county could choose to be proactive and pursue a full update of its general plan now, working to identify and address the policies governing some or all of its jurisdiction where these types of problems discussed above are likely to play out. There is a cost in time and money to such an approach, but it may be the only certain solution to getting out of the CEQA rock and the general plan hard place.
[i] Public Resources Code § 21000 et seq.
[ii] Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540.
[iii] Government Code § 65302
[iv] Resource Defense Fund v. County of Santa Cruz (1982) 133 Cal.App.3rd 800, 806.
[v] Public Resources Code § 21000 et seq.
[vi] California Code of Regulation, Title 14, Chapter 3, §15125(d)
[vii] California Code of Regulation, Title 14, Chapter 3
[viii] California Code of Regulation, Title 14, Chapter 3, Appendix G, §X, Land Use and Planning
[ix] North Coast Rivers Alliance et al. v. Marin Municipal Water District (2013) 216 Cal.App.4th 614, 633
[x] Office of Planning and Research General Plan Guidelines (2003) at p. 15.
[xi] California Code of Regulation, Title 14, Chapter 3 §15064(b).
[xiii] National Parks & Conservation Association v County of Riverside (1999) 71 Cal.App. 4th 1341, 1358.
[xiv] California Code of Regulation, Title 14, Chapter 3, Appendix G, §X, Land Use and Planning
[xv] California Code of Regulation, Title 14, Chapter 3 §15043.
[xvi] Save Our Peninsula Com. v. County of Monterey (2001) 87 Cal.App.4th 99, 142.
[xvii] Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 816.
[xviii] (1993) 23 Cal.App.4th 704, 719.
[xix] (2009) 172 Cal.App.4th 603, 635
* First published in the California Public Law Journal, a quarterly publication of the Public Law Section of the State Bar of California. Reprinted by permission of the State Bar of California.