In a recent opinion certified for publication on December 18, 2019, Citizens for Positive Growth & Preservation v. City of Sacramento, __ Cal.App.5th __ (2019), the Third District Court of Appeal rejected a citizens group’s challenge under California’s Planning and Zoning Law and CEQA to the City of Sacramento’s recently updated 2035 General Plan.  The group contended that a single sentence in the introductory paragraph of the City’s updated General Plan allegedly violates and conflicts with state planning laws and that the EIR for the project contained substantial supplemental changes that required recirculation.

That paragraph provides as follows:

“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.”

According to Citizens, the last sentence on its face gives the City unfettered discretion to “create a hierarchy of General Plan elements, or to approve projects inconsistent with any part of the General Plan.”  In response, the City argued that the General Plan is internally consistent as written and that the last sentence of the introductory paragraph is consistent with precedent acknowledging the City’s discretion to “weigh and balance competing interests” in establishing and applying development policies.

California’s general plan consistency requirement arises at two distinct stages.  It arises first when a city adopts a general plan, at which time a general plan and each of its elements must “comprise an integrated, internally consistent and compatible statement of policies.”  Government Code § 65300.5.  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.

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

Among many long-standing fundamental land use principles, a city’s adoption of a general plan is a presumptively valid legislative act.  See, e.g., Federation of Hillside & Canyon Assns. v. City of Los Angeles, 126 Cal.App.4th 1180, 1195 (2004).  Courts will not disturb a general plan based on violation of the internal consistency requirement unless, based on the evidence before the city council, a reasonable person could not conclude that the plan is internally consistent.

The Court of Appeal affirmed the trial court’s decision upholding the City’s 2035 General Plan, reasoning that there is nothing in the General Plan as written and nothing in the introductory language that creates an inconsistency or establishes a hierarchy between the General Plan elements.  While the introductory language concerns the City’s future determinations of a project’s consistency with the General Plan, any such future decision would be subject to an as-applied challenge at that time.  Nothing in the introductory language precludes the City from administering the General Plan lawfully, and the Court refused to presume the City intends to violate state planning laws based on unripe hypotheticals.

Citizens is a helpful new decision addressing and applying California’s general plan consistency doctrine.  While the facts are perhaps novel—a facial challenge based on a single sentence in an introductory paragraph—the governing legal principles and the high bar they establish to a plausible consistency challenge remain the same.