Cities and counties across the state have revised their general plan policies to address the interrelated issues of greenhouse gas (GHG) emissions and energy consumption by new commercial and residential development, often in proactive and innovative ways. However, the rubber only meets the road when those projects undergo CEQA review, and courts evaluate whether those paper policies translate into real-world action. The Fourth Appellate District recently weighed in on one such situation – and found that key information got lost in translation.
In Spring Valley Lake Association v. City of Victorville (May 25, 2016), a local association challenged the construction of an approximately 215,000 square foot commercial retail development in the City of Victorville, which included an approximately 185,000 square foot Wal-Mart store. The challenge included claims under CEQA, state Planning and Zoning Law provisions concerning general plan consistency, and the Subdivision Map Act.
The San Bernardino County Superior Court granted the petition in part, holding that (1) the EIR failed to adequately analyze both the project’s impacts on GHG emissions and the project’s consistency with the general plan’s on-site electricity generation requirement, and (2) there was insufficient evidence to support a finding that the project’s parcel map and zone change were consistent with the general plan’s on-site electricity generation requirement. The lower court rejected the project opponent’s other claims: that the City violated CEQA by failing to recirculate the EIR after revising the EIR’s analysis of numerous project impacts; and that the City violated the Subdivision Map Act by not making all of the findings specified in Government Code section 66474. Both the project opponent and Wal-Mart Stores, Inc. (“Wal-Mart,” the real party in interest) appealed.
Wal-Mart sought reversal of the lower court judgment that found the EIR’s GHG emissions impacts analysis inadequate, claiming there was substantial evidence in the record to demonstrate compliance with a general plan policy incorporating state energy efficiency standards. The EIR’s GHG impacts analysis had relied on compliance with this policy to demonstrate that the project’s GHG impacts were below the threshold of significance. However, the court rejected Wal-Mart’s argument, finding several inconsistencies in the record regarding the project’s actual capacity to meet the energy efficiency standards.
The EIR’s air quality impacts analysis discussed the project’s GHG emissions impacts, consistent with CEQA Guidelines section 15064.5(b), and concluded that the project (1) did not substantially increase GHG emissions over baseline, (2) would support and not hinder the state’s GHG reduction goals, and (3) that although there were no local or regional GHG reduction mitigation or reduction plans, the project’s design features would likely comply with any future adopted plans. Notably, each of the City’s conclusions was partially dependent on the project’s compliance with a general plan policy that requires all new commercial construction in the City to attain a 15 percent efficiency increase over 2008 Title 24 (Cal. Code Regs.) Building Energy Efficiency Standards. The Court found that the City’s conclusions in this regard were not supported by the record. In two separate places, the EIR stated that the project would achieve only a minimum of 10 percent increased efficiency over the Title 24 Standards. In another, it stated the project would achieve a minimum of 14 percent increased efficiency. Finally, in response to a comment, the City acknowledged that the project was “currently not in conformity” with the general plan policy, and asserted only that “several of the Project’s current energy efficient measures likely meet the 15% requirement” (emphasis added). The court held that, at most, the record showed that the project may comply with the policy, not that it will comply, and therefore the City’s determination that the project will have no significant GHG emissions impacts was not supported by substantial evidence.
The appellate court also affirmed the trial court’s ruling that there was no substantial evidence to support the City’s finding of consistency with another general plan requirement: that all new commercial or industrial development generate electricity on-site to the maximum extent feasible. The EIR explained that the project was being developed as “solar ready,” but concluded that it was infeasible for the City to require rooftop solar panel installation due to uncertainties concerning the availability of tax credits and other financial incentives. The court of appeal held this was insufficient, noting that the EIR also stated that “there are many factors to be considered in determining the feasibility of solar power generation,” but failed to state what those factors might be or to discuss their application to this project. The EIR also did not include any discussion of the feasibility of other types of on-site electricity generation, such as wind power. For these reasons, the City could not demonstrate general plan consistency with substantial evidence, and the City therefore failed to comply with both CEQA and the Planning and Zoning Law requirements concerning such consistency (CEQA Guidelines section 15125(d); Govt. Code sections 65860(a), 66473.5).
Lastly, the appellate court partially reversed the trial court’s ruling on recirculation of the EIR, holding that certain revisions to the EIR constituted “significant new information” within the meaning of section 21092.1 of CEQA. The court held that revisions to the air quality impacts analysis added analysis of the project’s consistency with several general plan policies and implementation measures and – without recirculation – deprived the public of a meaningful opportunity to comment on the information. Similarly, recirculation was required for revisions to the hydrology and water quality impacts analysis that included a “complete redesign” of the project’s stormwater management plan and essentially replaced 26 pages of the EIR’s text with 350 pages of technical reports.
Subdivision Map Act Claim
The appellate court also held that the City violated the Subdivision Map Act by failing to make all of the findings specified in Government Code section 66474 when it approved the parcel map for the project. On its face, section 66474 requires only that a city deny approval of a parcel map (or a tentative map) if it makes any one of seven findings enumerated at subsections(a)-(g), concerning consistency with general and specific plans, site suitability, conflicts with public access easements, and impacts on the environment, wildlife, public health. The statute does not explicitly address whether a city must affirmatively make those findings before approving a map. However, the panel concluded that affirmative findings are, in fact, required for each of 66474’s enumerated subsections. In reaching this conclusion, the court relied on the requirements of a related Government Code provision, section 66473.5 (which requires affirmative findings as to general and specific plan consistency), a 1975 Attorney General opinion stating that both sections require affirmative findings, and some case law and secondary source authority supporting the Attorney General’s interpretation.
With respect to CEQA and general plan consistency, the Fourth District’s decision does not break new ground. But it does reinforce a key tenet of CEQA compliance that often does not get enough attention – even from experienced CEQA lead agencies and sophisticated project applicants. This tenet can be reduced to a familiar saying: the devil is in the details. If public comment on an EIR suggests an absence of information supporting a conclusion or a finding, there will be significant litigation risk unless the lead agency can point to clear, unambiguous evidence in the administrative record on that issue.
However, with respect to the Subdivision Map Act, this decision lays out a standard of compliance that all local agencies must now heed. Previously, there had been no appellate authority clearly adopting the Attorney General’s interpretation of section 66474. Now there is. Any local agency that was not already making all of the section 66474 findings in conjunction with map approvals will need to do so.