Archives: December 2018

Third District Upholds Plumas County’s General Plan EIR and Holds that a Local Government May Base Its Impact Analysis on Reasonably Foreseeable Levels of Growth and Development, as Opposed to Theoretically Possible Levels

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On November 15, 2018, the Third District Court of Appeal certified for publication its decision in High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102. Rejecting arguments that Plumas County violated the Timberland Productivity Act (Timberland Act) and the California Environmental Quality Act (CEQA) when it adopted a general plan update, the appellate court affirmed the trial court’s judgment in the County’s favor. The opinion is the first precedent to explore the intersections of CEQA and the Timberland Act. It is also the first CEQA precedent clearly holding that a local government, in preparing an EIR for a general plan update, may base its impact analysis on reasonably foreseeable levels of population growth and development, as opposed to theoretically possible levels.

In 2005, the County began efforts to update its 1984 General Plan. Over the next eight years, the County engaged in a robust community engagement and education process to create the 2035 General Plan Update (GPU) that reflected the County’s planning goals and values. In December 2013, the County’s Board of Supervisors certified the Final Environmental Impact Report (EIR) and adopted the GPU. High Sierra Rural Alliance (High Sierra) filed suit, arguing that the GPU conflicted with the Timberland Act and that the EIR for the GPU did not adequately analyze impacts of potential growth outside of designated planning areas. The trial court disagreed and denied the petition and complaint in its entirety.

The Third District’s opinion begins with a brief description contrasting the County’s large size with its small population. Although the County covers approximately 2,613 square miles or over 1.67 million acres, its vast lands supported only 20,007 residents in 2010. The court also highlighted the minimal expected population growth, with the Department of Finance estimating the County’s population to remain under 21,000 until 2025, at which point the population is expected to decline.

Turning to High Sierra’s Timberland Act claims, the opinion provides an overview of the Act and the GPU policies related to timberland production zone (TPZ) lands. The opinion then settles a heretofore unresolved question under the Timberland Act–– namely, whether any residence approved on land zoned for timberland production must be “necessary for” the management of the relevant parcel as timberland. The court agreed with the County’s interpretation of Government Code section 51104, subdivision (h)(6), as providing that any “residence” on TPZ lands must be “necessary for” and “compatible with” the management of land zoned as timberland production. The court also made clear that “section 51104 suffices to supply the restrictions on residences and structures on timberland production zone parcels,” and thus the County’s GPU did not conflict with the Timberland Act simply because it failed to recite the statutory language in Section 51104 in its relevant policies.

In discussing the Timberland Act arguments, the court explained that “the finding [required by the Timberland Act] that a residence or structure is necessary for the management of a timberland production zoned parcel is not an exercise of discretion as used in the CEQA context.” The court provides local agencies and legal practitioners with important guidance on this issue by citing and quoting the discussion in the Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 272, which provides that an agency can exercise CEQA discretion only where it has “the power (that is, the discretion) to stop or modify” a project in a “way which would mitigate the environmental damage in any significant way.” Because the court concluded that “the Timberland Act affords the County no discretion to stop or request modification of the proposed residence or structure in order to mitigate environmental impacts,” the court rejected High Sierra’s argument.

Next, the court rejected High Sierra’s CEQA claims. High Sierra argued that the EIR failed to acknowledge and analyze the potential for rural sprawl. But the EIR explained that full build-out under the GPU would not occur for another three hundred years. Based on the substantial evidence in the record, the court concluded that the County could properly focus its analysis on the reasonably foreseeable growth occurring under the GPU through year 2035. The court also agreed with the County that historic land use data supported the conclusion that growth would occur almost exclusively within the planning areas. The court rejected High Sierra’s speculation that one of the GPU policies would open the floodgates to residential subdivisions on agricultural, timber, and mining lands. High Sierra’s reliance on a working paper about real estate markets in the Northern Rockies failed to persuade the court because the paper did not cite any data specific to Plumas County.

Finally, the court held that the County did not violate CEQA by failing to recirculate the EIR. The court was unconvinced by High Sierra’s argument that the inclusion in the Final EIR of building intensity standards and more accurate maps showing potential development outside of planning areas triggered recirculation.

 

RMM Senior Partner James G. Moose and Associate L. Elizabeth Sarine represented Plumas County.

 

Fourth District Finds LUP Policies Constitutional; Other Challenges Barred as Untimely Under CCP § 1094.5

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In Beach and Bluff Conservancy v. City of Solano Beach (2018) ­­28 Cal.App.5th 244, filed October 17, 2018, the Fourth Appellate District concluded that a petitioner’s remedy for challenges to policies under the California Coastal Act was exclusively limited to a writ of administrative mandamus (Code Civil Proc., § 1094.5) and that to the extent the challenge raised constitutional claims, those challenges failed on the merits.

In 2014, the California Coastal Commission approved the city’s amended land use plan (ALUP), pursuant to its local coastal program under the provisions of the Coastal Act. The amendments provided conditions and restrictions on the use, expansion, and repair of private coastal access stairways and retaining walls to protect new development or accessory buildings, and conditions under which private access stairways must be converted to public use.

Petitioner Beach and Bluff Conservancy alleged that the ALUP policies violated the Coastal Act, were unconstitutional, or both, and filed both a writ of mandate under traditional mandamus (CCP § 1085) and complaint for declaratory relief. The lower court ruled for the Conservancy, finding two of seven policies inconsistent with the Coastal Act. This appeal and cross-appeal followed.

First, the court found that, as the Coastal Act expressly provides, a writ of mandate is the exclusive remedy for a challenge to a Commission-certified policy on the ground that it is inconsistent with the Act. The Coastal Act requires the Commission to certify a local government’s LUP and amendments as consistent with the Act, by vote of the commissioners, pursuant to a noticed public hearing followed by written findings. In doing so, the Commission clearly acts in a quasi-judicial capacity, under CCP section 1094.5. It is well-established that an action for declaratory relief is not appropriate to review an administrative decision. Accordingly, the court held that the petitioner’s challenges to four ALUP policies alleging they were inconsistent with the Act were barred by the petitioner’s failure to file a timely writ petition for administrative mandamus.

Although the Conservancy’s facial constitutional challenges were not subject to CCP’s section 1094.5 filing procedures, the court held that these allegations failed on the merits.  Facial constitutional challenges are generally disfavored because they often rest on speculation and may lead to premature interpretation of the enactment on the basis of a “bare-bones” record.  A petitioner has a heavy burden to demonstrate that an enactment is facially unconstitutional.

The court found that the petitioner’s regulatory takings challenge failed because they could not demonstrate that the enactments effected a physical taking or deprived the owners of all economically beneficial or viable use of their property. The policy that provided for conversions of private stairways to a public stairways could not be deemed to facially conflict with constitutional takings principles, because the policy did not inevitably require a property conversion. Rather, the policy provided that conversion would occur only if specified conditions are met (when public access can be feasibly provided and the stairway already uses some public land per a deed restriction or public easement).

The court also ruled that allegations under the “unconstitutional conditions doctrine,” which limits the government’s power to require surrender of a constitutional right in exchange for a discretionary benefit, also failed. The doctrine applies only where the condition constitutes an exaction in the form of a conveyance of a property interest or the payment of money. It does not apply where, as here, the government simply restricts the use of property without demanding an exaction. And, the Nollan/Dolan test developed to determine if an exaction is permissible applies only to permit approvals, and not to facial constitutional challenges.

Lastly, the court opined that the disposition of this appeal does not preclude future “as-applied” constitutional challenges to the ALUP. Citing federal law with approval, the court stated that the doctrine of res judicata (and collateral estoppel) does not bar claims that arise from events that postdate the filing of the initial complaint. Affected property owners can always challenge the application of these policies as applied to their properties.