[co-author: Sarah Nagle]
In Lucas v. City of Pomona (2023) 92 Cal.App.5th 508, the Second District of the Court of Appeal affirmed the trial court’s decision that the City of Pomona’s (“City”) application of the statutory exemption under CEQA Guidelines section 15183 was proper for approval of a zoning overlay district for commercial cannabis activities (the “Project”). Applying the substantial evidence standard of review, the Court found that the Project was consistent with the development density established by the general plan, and no project-specific significant effects existed.
In 2016, California voters passed the Control, Regulate and Tax Adult Use of Marijuana Act, which legalized activities relating to the distribution and sale of cannabis products. In response, the City established a formal application process for obtaining a license to operate a commercial cannabis business within the City. To designate locations where cannabis-related land uses would be permitted, the City proposed an ordinance to establish a commercial cannabis overlay district allowing six types of proposed cannabis land uses in designated areas.
The City had developed the General Plan Update (“GPU”) in 2013 and certified an associated EIR in 2014. The City prepared a “Determination of Similarity” (“DOS) to evaluate whether the project was consistent with existing land uses and density in the General Plan and would therefore qualify for an exemption under CEQA Guidelines section 15183, which provides a statutory exemption for a project “consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified.” The City also employed a third-party consultant to prepare “Findings of Consistency” that analyzed the environmental effects of the Project. Based on the DOS and Findings of Consistency, the City concluded that the Project was consistent with the existing land uses and density in the GPU and would not have new or increased significant environmental effects beyond those identified in the 2014 GPU EIR, and therefore qualified for the exemption under section 15183.
Gregory Lucas filed a petition for writ of mandate alleging that section 15183 was incorrectly applied to the Project. The trial court denied Lucas’s petition, finding that the City was entitled to rely on section 15183 and that the Project was consistent with the GPU.
Notably, the Court of Appeal declined to address several procedural issues raised by the City, including standing, mootness, and exhaustion, in order to proceed in evaluating the merits.
As a preliminary matter, the Court concluded that the substantial evidence standard of review applies to an agency’s decision that a statutory exemption applies to a project.
Lucas argued that section 15183 did not apply to the project because the project was not consistent with the 2014 GPU, as “there [we]re no density-related standards contained in the zoning applicable to the parcels to which the [cannabis overlay] relates, [and] there is no way for the Project to be deemed ‘consistent.’” Lucas also noted that the word density was not included anywhere in the Findings of Consistency. Accordingly, he argued that the City lacked substantial evidence to support the finding that the project’s density was consistent with the 2014 GPU.
But the Court found this approach to be too literal, noting that there was no requirement that the findings use specific language, and that land distribution and density were in fact discussed in the 2014 GPU EIR. Furthermore, the DOS and Findings of Consistency expressly provided that the proposed cannabis uses had similar characteristics and were not denser than the non-cannabis uses listed in the land use districts where the commercial cannabis uses would be located.
Lucas also argued that additional environmental review was necessary because the 2014 EIR did not directly discuss marijuana or cannabis. Once again, the Court found this reading to be overly literal. The Court upheld the determination in the DOS that the commercial cannabis land use categories were practically similar to existing land uses, and therefore would not generate more environmental impacts. The Court also confirmed that no Project-specific effects were created by creation of the overlay zone.
Finally, the Court rejected Lucas’s assertion that the Project would have impacts on traffic, air quality, greenhouse gas emissions, land use, noise, and public services that were not addressed in the 2014 GPU EIR. In addressing each potential impact, the Court focused on the similarity between existing uses and those proposed by the Project. Because the Project would not alter the general land use patterns or development standards already in place, the Court concluded that these impacts would not be increased beyond what was considered in the 2014 GPU EIR. The Court likewise found that substantial evidence supported a determination that odors from cannabis operations would not be significant because the City’s municipal code already addressed such issues through its provision regulating odor control devices.
This case confirms that findings in support of application of statutory exemptions are subject to substantial evidence review. Furthermore, the Court’s willingness to uphold the City’s determinations when confronted with Lucas’s “literal” challenges demonstrates that the Court properly focused on the substance of an action rather than the language used.