Filed 4/22/16; part. pub. order 5/20/16 (see end of opn)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
PEOPLE FOR PROPER PLANNING,
Plaintiff and Appellant, E062725
v. (Super.Ct.No. PSC1301691)
CITY OF PALM SPRINGS et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.
Reversed with directions.
Law Office of Babak Naficy and Babak Naficy for Plaintiff and Appellant.
Woodruff, Spradlin & Smart, David A. DeBerry and Ricia R. Hagar for
Plaintiff and appellant People for Proper Planning (PFPP) appeals from the
judgment denying its petition for peremptory writ of mandate and complaint for
declaratory and injunctive relief filed against defendants and respondents City of Palm
1 Springs and Palm Springs City Council (herein collectively referred to as City). In its
petition, PFPP challenged the City’s adoption of Resolution No. 23415, which approved
an Amendment to the City’s General Plan (Amendment) removing the minimum density
requirements for each residential development. The trial court denied PFPP’s challenge,
and it appeals, contending that the Amendment (1) is not exempt from the requirements
of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et
seq.) because it is not a minor land use alteration; (2) is inconsistent with the General
Plan (General Plan), such that it now makes the General Plan internally inconsistent; and
(3) violates statutory requirements that the City accommodate its fair share of regional
housing needs for all income levels, including low and very low income levels. For the
reasons stated herein, we determine the Amendment is not exempted from CEQA
requirements, and thus, reverse the judgment. In light of this determination, we need not
address the other issues raised by PFPP.
I. PROCEDURAL BACKGROUND AND FACTS
PFPP is, according to its complaint, a California nonprofit membership
organization “whose objective is to promote planning and development in Palm Springs
in conformity with all applicable laws and regulations.” Prior to September 4, 2013, the
City’s General Plan, in some parts, designated a minimum and maximum density of
residential units allowed in each land use category. For example, a high density
designation allowed for a range of “15.1 to 30” dwelling units per acre, while a medium
density designation allowed for a range of “6.1 to 15” dwelling units per acre. In other
2 parts, the General Plan did not set a lower end of the range, but rather simply provided
for a high density of “30” dwelling units per acre, or a medium density of “22” dwelling
units per acre. The General Plan explained that “[e]ach of the residential land use
designations includes a range of allowable densities. The maximum density signifies the
maximum number of dwelling units per gross acre that are allowed in each residential
area,” while “[t]he lower threshold figure for each of these categories represents a
minimum amount of development anticipated, provided that all other required conditions
can be met.” (Italics added.)
While the General Plan sets forth the City’s “permitted density of residential
development . . . the Zoning Ordinance provides specific guidance on applicable
development standards.” Thus, the zoning ordinance provides for the property
development standards in residential zones, including the minimum lot, yard and building
standards. In reference to planned residential development districts, the zoning ordinance
provides that such a district “may include a multiplicity of housing types; provided, the
density does not exceed the general plan requirements,” and “[t]he form and type of
development on the [planned development] site boundary shall be compatible with the
existing or potential development of the surrounding neighborhoods.” Thus, within a
specific General Plan category, there are often several different zoning categories that
dictate development standards and actual density allowances.
In 2013, the City sought to amend its General Plan to eliminate minimum density
requirements for all residential land use categories, based on the planning commission
3 staff report’s recommendation. The City held a public hearing on the proposed
Amendment. PFPP opposed the proposed Amendment. On September 4, 2013, by a vote
of 3 to 2, the City adopted Resolution No. 23415, which amended the General Plan by
removing any reference to minimum density requirements for each residential
development. According to Resolution No. 23415, “the past and current practice of the
City, including without limitation, the City Council, the Planning Commission, and the
Director of Planning, is to consider only the maximum density allowed within each land
category and consider and approve lower density project[s.]” The City concluded the
change was exempt from CEQA based on a categorical exception.
On October 9, 2013, PFPP filed a petition for peremptory writ of mandate and
complaint for declaratory and injunctive relief, seeking to set aside the City’s approval of
the Amendment on the grounds it is “inconsistent with the General Plan and violates
Government Code [section] 65863, which prohibits cities and counties from reducing
residential densities or allowing residential development of any parcel at lower residential
densities absent certain findings not made here.” The City answered the petition and both
sides submitted briefs to the trial court. A hearing was held on November 7, 2014. After
taking the matter under submission, the trial court denied the petition.1
1 The trial court found that the elimination of the minimum density limits in the General Plan merely conformed “the density ranges in the General Plan to the City’s practice relative to the General Plan’s actual treatment of zoning density and the zoning ordinance.” The court noted that the Amendment did not violate Government Code section 65863 because it “creates no change in the standards applied to project approvals [footnote continued on next page]
4 II. DISCUSSION
A Standard of Review
Generally, an appellate court reviewing a trial court’s ruling on a petition for writ
of mandate is confined to inquiring whether the findings and judgment of the trial court
are supported by substantial evidence. Nevertheless, an appellate court must
independently decide questions of law without deference to the trial court’s conclusions.
(Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398, 407; Kreeft v. City of
Oakland (1998) 68 Cal.App.4th 46, 53.)
Examples of questions of law relevant to this appeal include (1) determining the
meaning of a statute (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th
415, 432), and (2) determining the meaning of a provision of a general plan because a
charter city’s adoption of such plan is a legislative act (Gov. Code, § 65700, subd. (a); see
Chandis Securities Co. v. City of Dana Point (1996) 52 Cal.App.4th 475, 481). Although
a trial court’s conclusions on questions of law are not entitled to deference, “the City’s
legislative enactments are entitled to some deference; there is a presumption that both the
[footnote continued from previous page]
because the governing zoning ordinances, which include no lower limits, are unchanged.” Finally, the court concluded that PFPP had failed to show a “reasonable possibility of an adverse environmental impact sufficient to remove the project from the categorically exempt class,” because the “‘baseline’ or existing environment,” i.e., the manner in which residential densities were treated prior to the Amendment, “was that the City had never interpreted the General Plan to mandate minimum densities and the zoning ordinance, under which all residential development is processed, had not during any relevant time period mandated minimum densities.”
5 general plan and the initiative measures amending such are valid [citation], and so long as
reasonable minds might differ as to the necessity or propriety of the enactment, the
municipality’s (or electorate’s) determination of policy must be upheld. [Citation.] The
only issue to be resolved is whether, applying the standard that the legislation, unless
clearly arbitrary, capricious, or entirely lacking in evidentiary support, must be upheld
[citation], the general plan, as amended, substantially complies with state law, i.e.,
whether there has been ‘“actual compliance in respect to the substance essential to every
reasonable objective of the statute,” as distinguished from “mere technical imperfections
of form.” [Citation.]’ [Citation.]” (Garat v. City of Riverside (1991) 2 Cal.App.4th 259,
292, disapproved on other grounds as stated in Morehart v. County of Santa Barbara
(1994) 7 Cal.4th 725, 743, fn. 11.)
B. The City Erred in Relying on a Categorical Exemption
PFPP contends the City erred by relying on a categorical exemption because the
Amendment is not a minor alteration of a land use limitation; furthermore, even if the
exemption could apply, it would not here because the Amendment has a strong possibility
of having an adverse impact on the environment. We agree.
“To achieve its objectives of environmental protection, CEQA has a three-tiered
structure. [Citations.] First, if a project falls into an exempt category, or ‘“it can be seen
with certainty that the activity in question will not have a significant effect on the
environment” [citation], no further agency evaluation is required.’ [Citation.] Second, if
there is a possibility the project will have a significant effect on the environment, the
6 agency must undertake an initial threshold study; if that study indicates that the project
will not have a significant effect, the agency may issue a negative declaration. Finally, if
the project will have a significant effect on the environment, an environmental impact
report (EIR) is required. [Citation.]” (Committee to Save the Hollywoodland Specific
Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1185-1186 (Committee to Save
the Hollywoodland).)
Here, the City never undertook an initial threshold study because it found the
Amendment to fall into an exempt category. “The Legislature has made certain
categories of projects exempt from CEQA. Many of these exemptions appear in Public
Resources Code section 21080, subdivision (b). [Citations.] Public Resources Code
section 21080, subdivision (b)(9) exempts from CEQA ‘[a]ll classes of projects
designated pursuant to [Public Resources Code] [s]ection 21084.’ [¶] Public Resources
Code section 21084 authorizes the Secretary of Resources Agency to include in the
Guidelines[2] a list of classes of projects exempt from CEQA provided the Secretary
makes ‘a finding that the listed classes . . . do not have a significant effect on the
environment.’ The classes of projects identified by the Secretary of the Resources
Agency appear in Guideline section 15300 et seq. and are sometimes referred to as
2 CEQA Guidelines (Cal. Code of Regs., tit. 14, §§ 15000 et seq.) developed by the Office of Planning and Research and adopted by the California Resources Agency. (Pub. Resources Code, § 21083.)
7 ‘categorical exemptions.’” (Azusa Land Reclamation Co. v. Main San Gabriel Basin
Watermaster (1997) 52 Cal.App.4th 1165, 1191 (Azusa).)
“The agency decides whether a project is categorically exempt as a part of its
preliminary review without reference to any mitigation measures. [Citation.] If the
agency establishes the project is within an exempt class, the burden shifts to the party
challenging the exemption to show that it falls into one of the exceptions. [Citation.]
Generally, courts apply the substantial evidence test to the agency’s factual determination
that the exemption applies in the first instance; courts are divided on the question of
whether the ‘fair argument’ standard (whether the record contains evidence of a fair
argument that the project may have a significant effect on the environment) [citation], or
the substantial evidence test applies to the second step of the analysis, namely
determination of whether an exception to the exemption exists.[3] We do not substitute
our judgment for that of the state agency and must resolve reasonable doubts in favor of
its decision. [Citation.]” (Committee to Save Hollywoodland, supra, 161 Cal.App.4th at
pp. 1186-1187, fn. omitted.) When an agency relies on a categorical exemption, the
exemption must be narrowly construed. (Azusa, supra, 52 Cal.App.4th at p. 1192.)
The City found the Amendment to be exempt from CEQA review. The exemption
at issue here, a class 5 exemption, exempts projects that “consist[] of minor alterations in
land use limitations in areas with an average slope of less than 20%, which do not result
3 We need not decide that issue here, however, as the result is the same under either test.
8 in any changes in land use or density, including but not limited to: [¶] (a) Minor lot line
adjustments, side yard, and set back variances not resulting in the creation of any new
parcel; [¶] (b) Issuance of minor encroachment permits; [¶] (c) Reversion to acreage in
accordance with the Subdivision Map Act.” (Cal. Code Regs., tit. 14, §§ 15000 et seq.
(CEQA Guidelines), 15305, italics added.) The City found the Amendment exempt
because its “proposed change reflects past and current practice and retains existing
density maximum standards.” The trial court agreed. We do not.
Because the Amendment does not retain existing density minimum standards on
its face, it apparently results in a change to land density. The City’s argument to the
contrary discounts minimum density standards on the ground that the General Plan
qualifies that minimum number as “anticipated.” Moreover, the City argues that the
Amendment “did not alter any language in the Housing Element or any tables either in
the Land Use Element or Housing Element”; that “[i]t did not alter estimates of housing
stock with the Housing Element”; and “[t]he ranges of density were left alone in some
places as they still remain useful in noting the minimums that can be anticipated and
continue to give meaning to the General Plan’s description of the lower threshold.” In
sum, the City’s argument is that the Amendment did not result in a change to land
density.
Notwithstanding the above, even if we accepted the City’s argument and assumed
the Amendment qualified as a class 5 exemption, we conclude that PFPP met its burden
of showing that the Amendment falls into one of the exceptions to exemption. PFPP
9 presented sufficient evidence supporting a fair argument that the Amendment will result
in a significant impact on the environment due to its across-the-board change in land use
regulation that affects every residential area identified by the General Plan. Moreover,
the Amendment is capable of causing significant cumulative impacts on the City’s stock
of high-density, low and moderate income housing due to its elimination of the minimum
density allowances. In order to evaluate how the Amendment will impact the
environment, we begin with the EIR that was prepared in support of the 2007 General
Plan (2007 EIR).
According to the 2007 EIR, residential land uses accounted for approximately 41
percent of the urban and developed land uses within the City, with only 3 percent of total
acreage designated for high density. In support of the 2007 General Plan update, which
set the anticipated range of density, the City identified the following policies and actions
that were designed to reduce potential land use and planning impacts of future
development. Regarding land use, the City sought to “[e]ncourage, where appropriate,
high density projects to maximize the use of land.” As for the housing element, the City
wanted to encourage a broad range of housing opportunities, “[m]aintain a range of
housing densities through general plan land use designations and zoning to facilitate and
encourage single-family homes, apartments and townhomes, mobile homes, and special
needs housing,” facilitate the development of affordable housing, and “[p]rohibit the
encroachment of significant housing development into areas designated as open space,
desert, or conservation areas without appropriate environmental review and approvals.”
10 The 2007 EIR noted that the housing element of the General Plan update
“provides a thorough discussion as well as goals and policies to address issues of housing
affordability.” Recognizing that Government Code section 65863 “restricts cities’ ability
to reduce the maximum allowable density in areas already designated or zoned for
residential uses to a level below the density used by the [state] when determining whether
a city’s housing element complies with state law,” the 2007 EIR noted that the City could
not permit the “reduction of density of any such residentially designated parcel unless the
city finds the proposed reduction in density is consistent with the General Plan,” and
there are remaining sites adequate to accommodate the City’s share of the regional
housing needs. While the Amendment does not reduce the maximum allowable density
for residential areas, its elimination of the minimum allowable density changes the
density range, effecting a lower average density for residential areas than that anticipated
in the 2007 EIR. The City’s claim that the Amendment is exempt from CEQA analysis
begs the question: Is the City able to accommodate its share of the regional housing
needs if there is no minimum (and a lower average) density for residential areas as
originally identified and required in the General Plan?
According to the City, the minimum density identified in the General Plan is
irrelevant because it was never really considered. It contends that the “‘baseline’ or
existing environment” remains unchanged given the City’s practice of never interpreting
the General Plan as mandating minimum densities, and the Zoning Ordinance (under
which all residential development is processed) as never mandating minimum densities.
11 The City adds that this was the existing environment when the General Plan was adopted
in 2007 and will remain so with the Amendment. The trial court agreed, finding the
Amendment did not change the existing environmental baseline. We are not persuaded.
While we agree that the physical environmental conditions in the vicinity of the
project normally constitute what is known as the baseline (Cal. Code Regs., tit. 14,
§§ 15000 et seq. (CEQA Guidelines), 15125, subd. (a)), we do not agree that such is the
case here. Once the City adopted the General Plan in 2007, the General Plan itself
provided the baseline for future projects. (Save Our Peninsula Committee v. Monterey
County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 125-126 [“[W]here the issue
involves an impact on traffic levels, the EIR might necessarily take into account the
normal increase in traffic over time. Since the environmental review process can take a
number of years, traffic levels as of the time the project is approved may be a more
accurate representation of the existing baseline against which to measure the impact of
the project.”].) Here, the City is required to accommodate its share of the regional
housing needs. The 2007 EIR identified closed density ranges that met this requirement.
By eliminating the minimum density, the Amendment will impact the availability of high
density, low and moderate income housing because high density designated parcels may
now be considered for low-density development. Thus, the Amendment lowers the
average density for residential areas and changes the land use regulation to the detriment
of every parcel designated as residential by the General Plan, potentially causing
significant cumulative impacts on the City’s stock of high density, low and moderate
12 income housing. Moreover, permitting low density residential development in areas
previously set aside for high density projects will necessarily reduce the range of housing
types, prices and opportunities available in the City to the frustration of the General
Plan’s goal of facilitating a broad range of housing types. The City recognized that the
Amendment embraces a trend towards low density, small lot single-family dwellings.
Thus, arguably, the Amendment changes the diversity of residential densities established
in General Plan. Given this change, it is unclear whether the City will be able to
accommodate its share of the regional housing needs.
Further, we find the City’s reliance on its zoning ordinance as providing guidance
on “whether the [Amendment] ha[s] the potential to reduce residential densities” to be
misplaced. As the City acknowledges, the zoning ordinance sets no minimums on
residential density. However, the General Plan does. The General Plan is a
“‘“constitution” for future development’ [citation] located at the top of ‘the hierarchy of
local government law regulating land use’ [citation].” (DeVita v. County of Napa (1995)
9 Cal.4th 763, 772-773.) “A zoning ordinance is consistent with the city’s general plan
where, considering all of its aspects, the ordinance furthers the objectives and policies of
the general plan and does not obstruct their attainment. [Citation.] . . . . [¶] . . . [¶]
... ‘A zoning ordinance that is inconsistent with the general plan is invalid when passed
[citations] and one that was originally consistent but has become inconsistent must be
brought into conformity with the general plan. [Citation.] The Planning and Zoning Law
does not contemplate that general plans will be amended to conform to zoning
13 ordinances. The tail does not wag the dog. The general plan is the charter to which the
ordinance must conform.’ [Citation.] The same rule applies to this case.” (City of Irvine
v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868, 879.)
Given the above, we conclude that the City may not rely on an exemption from
CEQA, it must proceed to the next step of the analysis and conduct an initial threshold
study to see if the proposed Amendment will have a significant impact upon the
environment to determine whether a negative declaration may be issued. (See Committee
to Save Hollywoodland, supra, 161 Cal.App.4th at p. 1187.)
III. DISPOSITION
The judgment is reversed. The trial court is directed to grant PFPP’s petition for a
writ of mandamus and require the City to vacate both its issuance of an exemption under
CEQA concerning the Amendment, and its September 4, 2013, Resolution No. 23415
certifying and approving the Amendment. PFPP is awarded its costs on appeal.
HOLLENHORST J. We concur:
RAMIREZ P.J.
SLOUGH J.
14 Filed 5/20/16
CERTIFIED FOR PARTIAL PUBLICATION
CITY OF PALM SPRINGS et al., ORDER CERTIFYING OPINION FOR PARTIAL PUBLICATION Defendants and Respondents.
A request having been made to this court pursuant to California Rules of Court, rule 8.1120(a) for publication of a nonpublished opinion heretofore filed in the above- entitled matter on April 22, 2016, and it appearing that the opinion meets the standard for publication as specified in California Rules of Court, rule 8.1105(c);
IT IS ORDERED that said opinion be certified for partial publication pursuant to California Rules of Court, rule 8.1105(b). The opinion filed in this matter on April 22, 2016, is certified for publication in full with the following exception: Omit the first full paragraph commencing on page 13 beginning with “Further, we find the City’s reliance” and ending at the top of page 14 with the citation “(City of Irvine v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868, 879.)”
HOLLENHORST J. We concur: RAMIREZ P. J. SLOUGH J.