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In an opinion issued April 9, 2015, Sacramento Superior Court Judge Timothy Frawley denied a petition for a writ of mandate challenging the environmental impact report (EIR) for the McKinley Village infill development project in East Sacramento. The court also rejected petitioner’s argument that McKinley Village conflicted with the City of Sacramento’s General Plan. Thomas Law Group successfully represented the developer in defending against the suit.

The McKinley Village project broke ground in summer 2014 on 336 residential units and associated infrastructure. The vacant 49-acre lot is bounded by a freeway to the north and railroad tracks to the south along with a former landfill site beyond the freeway to the north. Following a recommendation by the City’s Planning and Design Commission, the City Council certified the EIR and approved the McKinley Village project. Petitioner “East Sacramento Partnerships for a Livable City” subsequently filed a petition seeking to set aside the City’s approval of the project.

Petitioner first claimed the EIR did not adequately analyze how the project’s proximity to a freeway, railroad tracks, and former landfill site may adversely affect the health and safety of future McKinley Village residents. However, the court held the California Environmental Quality Act (CEQA) only requires a lead agency to analyze the impacts a project will have on the existing environment––as opposed to the affects the environment will have on a project. Therefore, the City could not have violated CEQA by failing to “adequately” analyze the impacts of the existing environmental conditions on the project because CEQA did not require any analysis of those impacts at all.

Next, petitioner contended the City violated CEQA by not recirculating the EIR after making “significant and fundamental” changes to the project. The purported changes compelling recirculation included a third vehicular access at Alhambra Boulevard, a proposal to remove Sutter’s Landing Parkway from the City’s General Plan, a half-street closure at the intersection of 28th and C streets, as well as approvals for a development agreement, a rezoning request to allow multi-family residential uses, and a variance for driveway widths.

The court held neither the proposal to consider another vehicular underpass at Alhambra Boulevard access nor the proposal to remove Sutter’s Landing Parkway from the City’s General Plan were part of the project approved by the City. As the City would have to complete additional environmental review if either proposal moved forward, the City did not have to recirculate the EIR due to these proposals.

With respect to the development agreement and driveway variance, the court agreed with petitioner that they should have been included in the draft EIR as approvals needed to implement the project. However, the City’s failure to include them did not preclude public participation and therefore was not a prejudicial abuse of discretion. Additionally, while the City decided to rezone to allow multi-family dwelling units after circulating the draft EIR, the court held petitioner failed to satisfy its burden of showing this constituted significant new information and the City did not abuse its discretion by not recirculating the EIR.

Similarly, the court held the half-street closure at 28th and C streets did not constitute significant new information. The court agreed with the City that the closure diverted traffic to another street with greater capacity and did not substantially increase the severity of traffic impacts in the EIR.

Petitioner also contended the EIR violated CEQA because it failed to properly identify, analyze and mitigate traffic impacts. However, the court held substantial evidence supported the City’s traffic impact conclusions. Further, the City did not abuse its discretion by using a flexible Level of Service (LOS) metric from the General Plan as the significance threshold to measure the traffic impacts on intersections. Although using the flexible LOS standard allowed otherwise significant levels of traffic congestion to exist without constituting a significant impact, it avoided more detrimental mitigation measures to reduce traffic impacts such as widening lanes and building new roads.

Finally, the court rejected petitioner’s argument that the McKinley Village project was inconsistent with the City’s General Plan. Petitioner listed eighteen General Plan policies that allegedly conflicted with the project; however, the court explained that many of the policies were amorphous and subjective such as “supporting transit service” and “promoting complete neighborhoods.” Accordingly, petitioner’s perceived inconsistencies with these imprecise policies was insufficient to render the project inconsistent with the General Plan as a whole. Where the policies were more discrete in nature such as investigating the site for hazardous materials, the court held adequate evidence supported a finding of consistency.

Only one General Plan policy gave the court pause––a requirement that new neighborhoods include transit stops within a half mile of all dwellings. The court ultimately concluded that given other portions of the General Plan discouraging users from focusing on individual General Plan elements, the City reasonably could have concluded the policy was an advisory policy and strict compliance was not mandatory. Therefore, the court held the City did not abuse its discretion in finding McKinley Village was consistent with the General Plan.

Following the court’s decision, an attorney for the petitioner told the Sacramento Business Journal the petitioner is considering its options including whether to file an appeal.


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