Charter City Exempt from General Plan Consistency Requirement

A charter city is exempt from the statutory requirement that its specific plans and zoning ordinances be consistent with its general plan absent an express, unequivocal statement of intent in the city charter to adopt the consistency requirement. Kennedy Commission v. City of Huntington Beach, No.    (4th Dist., Nov. 20, 2017).

In 2010, the City of Huntington Beach adopted the Beach Erdinger Corridor Specific Plan, which allowed up to 4,500 residential units in the Beach Erdinger area. In response to complaints by residents, the City later amended the plan to reduce the allowable units to 2,100.

In the interim, however, the City had updated the housing element of its general plan to reflect the City’s Regional Housing Need Allocation by the Department of Housing and Community Development. The housing element had assumed that the majority of the affordable housing reflected in its numbers would be developed within the Beach Erdinger Specific Plan area. But the amendment of the Beach Erdinger Plan to cut allowable housing by more than half resulted in a 320-unit shortfall in the affordable units assumed in the housing element.

The Kennedy Commission brought suit, contending that the amendment of the Beach Erdinger Plan resulted in an unlawful inconsistency between this plan and the general plan housing element, in violation of the requirement that a specific plan must be consistent with the general plan. The City argued that, because it was a charter city, it was exempt from the requirement that its specific plans be consistent with its general plan.

The court of appeal agreed, holding that the consistency requirement was inapplicable because Huntington Beach was a charter city. The court rejected the Kennedy Commission’s argument that the City, in its own zoning ordinance, had imposed the consistency requirement. Although the zoning ordinance contained language that could be interpreted to require consistency between specific plans and the general plan, the court reasoned that only an express, unequivocal statement in the City’s charter was sufficient to impose a consistency requirement notwithstanding the exemption for charter cities. Because the charter contained no such statement, the City remained exempt from any requirement that the Beach Erdinger Specific Plan be consistent with the housing element of the general plan.

Failure to Identify Preferred Alternative Dooms EIR

A draft EIR that studies five very different project alternatives without identifying a preferred alternative violates CEQA by failing to provide the public with a stable project to review, the court of appeal held in Washoe Meadows Community v. Department of Parks and Recreation, No. A145576 (1st Dist., Nov. 15, 2017).

The California Department of Parks and Recreation undertook a project to address erosion of the Upper Truckee River in Washoe Meadows State Park and Lake Valley State Recreation Area, which was a major source of sediment and nutrient runoff in Lake Tahoe. The Recreation Area contained an 18-hole golf course that had altered the river’s original course and flow. The Department issued a scoping notice that identified four alternatives for the project:

Alternative 1: No project.

Alternative 2: River restoration with reconfiguration of the 18-hole golf course.

Alternative 3: River restoration with a nine-hole golf course.

Alternative 4: River stabilization with continuation of the existing 18-hole golf course.

The scoping notice identified Alternative 2 as the preferred alternative.

The Department’s Draft EIR (which also served as a draft EIS for purposes of NEPA and the Tahoe Regional Planning Compact and Tahoe Regional Planning Agency Code of Ordinances) added a fifth alternative that would include decommissioning of the golf course. The Draft EIR did not specify a preferred alternative; rather, the Draft EIR stated that the Department would select a preferred alternative after receiving comments on the Draft EIR. The Draft EIR analyzed all five alternatives in considerable detail. In the Final EIR, the Department identified a slightly modified version of Alternative 2 as the preferred alternative.

Washoe Meadows Community filed a petition for writ of mandate seeking to set aside the Department’s certification of the Final EIR, alleging, among other claims, that the failure to identify a preferred alternative in the Draft EIR violated CEQA. The court of appeal agreed.

The court of appeal relied on County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185 (1977), in which the court stated that “[a]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” Although County of Inyo involved an EIR that inconsistently described the scope of the project, the court held that the circumstance in this case—where the Draft EIR had not selected a preferred alternative for the project—was “no less problematic.” The court explained: “For a project to be stable, the DEIR, the FEIR, and the final approval must describe substantially the same project. A DEIR that states the eventual proposed project will be somewhere in ‘a reasonable range of alternatives’ is not describing a stable proposed project. A range of alternatives simply cannot be a stable proposed project.”

The court explained that the Department’s failure to select a preferred alternative could limit meaningful public participation in the environmental review process. According to the court, it did not matter if the EIR had thoroughly analyzed the preferred alternative; the Draft EIR’s failure to identify a preferred project “impair[ed] the public’s right and ability to participate in the environmental review process.” The court explained that “[a] description of a broad range of possible projects, rather than a preferred or actual project, presents the public with a moving target.”

The court recognized that “there may be situations in which the presentation of a small number of closely related alternatives” would be acceptable, but explained that in this case the five alternatives were vastly different because each alternative “created a different set of impacts, requiring different mitigation measures.” When an agency is considering a diverse range of alternatives, the court held, it must select a preferred alternative prior to preparing a draft EIR.

Court May Seek Clarification from Agency Regarding Issue in Pending Litigation

The Sixth District Court of Appeal held that a trial court in a mandamus action had the inherent power to remand to the Board of Supervisors for clarification regarding an ambiguous general plan consistency finding. The Highway 68 Coalition v. Co. of Monterey, No. H042891 (6th Dist., Aug. 24, 2017)

The case involved a petition for writ of mandate challenging the Board’s approval of a shopping center project on, among other grounds, inconsistency with the general plan. The Monterey General Plan required a “specific finding and supporting evidence of a long-term sustainable water supply.” In approving the project, however, the Board found only that “The project has an adequate long-term water supply.”  Because the Board’s finding did not comply with the express requirement of the General Plan, the trial court concluded that the Board had abused its discretion by approving the project. However, rather than invalidating the decision, the court issued an interlocutory remand to the Board to determine specifically whether the project complied with the General Plan policy as articulated.

The Court of Appeal held that the trial court did not err in issuing an interlocutory remand. The court relied on the California Supreme Court’s holding in Voices of the Wetlands v. State Water Resources Control Board, 52 Cal. 4th 499 (2011), that courts have inherent power to issue an interlocutory remand in an administrative mandamus action to resolve ambiguities and seek clarification regarding a specific issue. Here, the discrepancy between the Board’s findings and the General Plan’s requirement essentially turned on the word “sustainable.” The Board had found only that the Project had an “adequate water supply,” as opposed to a “sustainable water supply.”  Because this was a single, discrete issue, the appellate court held that that the lower court had the authority to issue an interlocutory remand prior to final judgment consistent with Voices of the Wetlands.

Ninth Circuit Court Paves the Way for Regulation of Stormwater Discharges Under RCRA

The Ninth Circuit Court of Appeals recently ruled that the anti-duplication provisions of the Resource Conservation and Recovery Act (RCRA) do not apply in the absence of a stormwater discharge permit issued under the Clean Water Act. Therefore, unregulated stormwater discharges are potentially subject to RCRA citizen suits and specifically imminent and substantial endangerment suits under 42 USC § 6972(A)(1)(B).

In our report on this case, prepared by Jeffrey L. Hunter, we look at the background of the decision in Ecological Rights Foundation v. Pacific Gas Electric Company and the potential impact on owners of retail, commercial and warehouse facilities that are not required to obtain coverage under a stormwater discharge permit. Our report is available here.

State Authorizes Rental Inclusionary Housing Requirements

One of the 15 housing-related bills signed recently by Governor Brown could have especially significant implications for market-rate, residential rental projects in many jurisdictions, as the new legislation, AB 1505, will authorize cities and counties to adopt inclusionary housing requirements for rental units.  AB 1505 takes effect January 1, 2018.

Nearly a decade ago, the Court of Appeal held that the Costa-Hawkins Rental Housing Act prevented local agencies from imposing inclusionary requirements on rental units that did not receive governmental assistance.  Palmer/Sixth Street Properties, L.P. v. City of Los Angeles, 175 Cal. App. 4th 1396 (2009). The Costa-Hawkins Act grants residential landlords the right to set initial rental rates at the commencement of a tenancy. In Palmer, a city sought to require a rental housing developer either to construct affordable units that would be subject to rent restrictions for at least 30 years or to pay an in lieu fee the city would use to build affordable units elsewhere. The court held that the city’s inclusionary housing ordinance conflicted with and was preempted by the Costa-Hawkins Act’s vacancy decontrol provisions.

Through AB 1505, the Legislature expressly declared its intent to supersede the Palmer decision “to the extent that decision conflicts with a local jurisdiction’s authority to impose inclusionary housing ordinances.” The Legislature sought “to reaffirm” local agencies’ authority to apply affordable housing requirements to rental projects. To do so, AB 1505 specifies that cities and counties may adopt ordinances that “require, as a condition of the development of residential rental units, that the development include a certain percentage of residential rental units affordable to, and occupied by,” households at or below moderate-income levels. AB 1505 requires inclusionary housing ordinances to provide alternative means of compliance that may include in-lieu fees, land dedication, off-site development of units, or rehabilitation of existing units.

Governor Signs Housing Legislation, Including Streamlining Bill

Governor Brown has signed 15 bills designed to address the State’s severe shortage of affordable housing.  Among its other effects, the legislation will (1) generate funds for affordable housing developments; (2) require cities and counties, as they approve new development, to maintain a supply of adequate housing sites for all levels of income; (3) tighten several provisions in the Housing Accountability Act, known popularly as the “Anti-NIMBY” legislation; (4) authorize local governments to establish Workforce Housing Opportunity Zones that can provide the basis for future streamlined approvals; and (5) supersede a court decision holding that local agencies cannot impose inclusionary housing requirements on rental projects.  The bills take effect January 1, 2018, and were the result of substantial negotiation during the legislative session.

This post focuses on another bill in the housing package that, in limited circumstances, will provide a streamlined, ministerial approval process for multifamily residential developments that include affordable housing.  SB 35, shepherded through the Legislature by first-year Senator Scott Wiener, will apply to certain urban infill projects located in jurisdictions the California Department of Housing and Community Development determines are not meeting their share of regional housing needs by income category.

For eligible projects, no conditional use permit can be required, and parking standards will be limited.  SB 35 also will require that any design review or public oversight be “objective” and “strictly focused on assessing compliance with criteria required for streamlined projects, as well as any reasonable objective design standards” of broad applicability adopted by the jurisdiction before a development application was submitted.  This review will need to be completed within 90 days for a project of 150 housing units or fewer, and within 180 days for larger projects.

To be eligible for streamlining under SB 35, projects will need to include units reserved for low-income households as follows:

  • At least 10 percent of total units, if the local agency is not approving enough units for above moderate-income households; or
  • At least 50 percent of project units, if the locality is out of compliance in its provision of low-income housing.

If the city or county is out of compliance with both requirements, the developer may satisfy the lower percentage.  However, if a local inclusionary housing ordinance requires dedication of a greater percentage of units to low-income households, that ordinance will control.

In addition to the requirements identified above and others, projects will need to meet the following standards to qualify under SB 35:

  • The development, excluding any elements authorized by the Density Bonus Law, is consistent with objective zoning standards and objective design review standards;
  • At least two-thirds of square footage is designated for residential use;
  • All construction workers will be paid prevailing wages, unless a project is a public work or has 10 units or fewer; and
  • For certain projects, a “skilled and trained workforce” will be used.

Projects may be excluded from streamlining under SB 35 if located on any one of several types of sites.  Ineligibility may be triggered if a site is (1) within the coastal zone; (2) prime farmland, farmland of statewide importance, or land designated for agricultural protection; (3) wetlands; (4) within certain fire hazard severity zones; (5) a hazardous waste site; (6) within a delineated earthquake fault zone; (7) within a flood plain or floodway; or (8) identified for conservation, habitat for protected species, or under conservation easement.  A development also may be excluded if demolition of a historic structure or of certain types of housing is involved, or if specified unit sales or subdivision occurs.

SB 35 is scheduled to expire on January 1, 2026.

Legislature Seeks To Prevent Local Voters From Enacting Many Types of Pro-Development Initiatives

The California Legislature just sent another “stop me before I vote again” bill to the Governor.  Assembly Bill 890 proposes to limit severely the scope of voter-sponsored, pro-development land use initiatives.  The Governor has until October 15th to decide whether to sign the bill into law.  The actual effect of AB 890, if enacted, may need to be resolved in litigation.

The bill would enact new provisions of the Government Code that delegate exclusive authority to city councils and boards of supervisors to determine certain general plan, specific plan and zoning decisions.  Courts have determined that when the legislature delegates authority over an issue exclusively to councils and boards, voter action regarding those issues is precluded.  However, AB 890 also purports to preserve to the voters their power of referendum, and to allow councils and boards of supervisors to place pro-development measures on the ballot.  AB 890 also proposes to prohibit the approval or amendment of a development agreement by initiative, while retaining provisions of existing law which state that a development agreement is a legislative act subject to referendum.  AB 890 states that it applies to charter cities as well as general law cities.

The general plan, specific plan and zoning decisions that would be exclusively delegated under AB 890 (and therefore could not be pursued in a voter-sponsored initiative) are those that would:

  • Convert a discretionary land use approval necessary for a project to a ministerial approval.
  • Change a land use designation or zoning district to a more intensive designation or district, with the most intense use defined as industrial uses, followed by commercial uses, office uses, residential uses, and then agricultural or open-space uses.
  • Authorize more intensive land uses within an existing designation or district.

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College District’s Approval of Agreement to Buy Land Did Not Trigger CEQA

A community college district’s approval of an agreement to buy land for possible use as a new campus did not trigger CEQA review where the agreement required an EIR before the sale could be consummated and the District had not otherwise committed itself to building a new campus on the site. Bridges v. San Jacinto Community College District, No. E065213 (4th Dist., Aug. 8, 2017).

At a regularly scheduled meeting, the Board of Trustees of the San Jacinto Community College District approved an agreement to acquire 80 acres of property from a regional park district for possible use as a new college campus. There were no public comments on or objections to the agreement at or before the board meeting.

Plaintiffs subsequently sued, alleging the District violated CEQA by failing to prepare an EIR before approving the agreement. The appellate court concluded (1) plaintiffs did not exhaust administrative remedies or demonstrate they were excused from doing so by lack of notice; and (2) even if plaintiffs had exhausted, their claim foundered on the merits because the District had not committed itself to the new campus project and had expressly agreed to prepare an EIR before completing the purchase.

Plaintiffs Failed to Exhaust Administrative Remedies

A party alleging violation of CEQA must exhaust administrative remedies or demonstrate either that there was no public hearing or other opportunity to raise objections before the project was approved or that the public agency failed to give the notice required by law  (Pub. Res. Code § 21177(e)). Here, the District considered and authorized the purchase agreement at a public meeting of its board of trustees. While this was not a public hearing, it nonetheless triggered CEQA’s exhaustion requirement because it constituted an “other opportunity” for members of the public to raise objections prior to the approval of the project.

Plaintiffs contended they were nonetheless exempted from the exhaustion requirement because the District had failed to post the meeting agenda at least 72 hours in advance of the meeting as required by the Brown Act. The record, however, was silent on whether the required notice had been given. Under these circumstances, plaintiffs’ exemption claim failed because they bore the burden of proving inadequate notice. Faced with no evidence on the issue, the court concluded that it had to presume that the District’s official duty had been regularly performed. Continue Reading

City Cannot Compel State University to Collect and Remit City Taxes

UPDATE: The California Supreme Court has granted review of this case.  The issue before the court is: “Can a charter city require state universities that operate paid parking lots within the city to comply with an ordinance that requires parking lot operators to collect from their customers and remit to the city a tax on the fee charged for a parking space?”

In City and County of San Francisco v. Regents of the University of California (1st Dist., No. 144500, May 25, 2017), the court of appeal considered whether a city had the power to compel state universities that operate parking lots in the city to collect taxes from the parking users and remit them to the city. This case displayed some of the complexities in the distribution of powers between states and local governments, including the issues of preemption, sovereign immunity, and the local taxing power. Ultimately, the court concluded the city could not compel such action by a state entity.


At issue here was the application of San Francisco’s parking lot tax ordinance. The ordinance imposes the tax on parking lot users and requires parking lot operators to collect the tax. Under the ordinance, operators must hold the taxes and periodically remit them to the city. Operators are liable for failing to collect the tax. While the ordinance provides that it is not to be construed as imposing a tax on the state or state entities, it nonetheless requires such entities to collect, report, and remit the tax and pay any taxes they fail to collect. In 2011, San Francisco directed several state universities, including the University of California, to collect and remit the parking taxes. The universities refused, after which San Francisco sought a writ of mandate to force compliance.

Majority opinion

According to the majority, the issue presented by the case was a conflict between the city’s constitutional power to tax and the longstanding doctrine that exempts state entities from local regulation. This doctrine is based on the California Supreme Court’s 1956 decision in Hall v. City of Taft and its progeny under which local jurisdictions are barred from regulating state entities engaged in governmental activities. After reviewing the case law, the majority determined that the doctrine was straightforward—it exempts state entities from otherwise-valid local regulation when they are engaged in governmental activities unless a constitutional provision or statute says they are not exempt.

The majority likewise found the application of the doctrine to this case to be straightforward: providing parking for students, faculty, staff, and visitors was integral to the universities’ educational purposes and was further authorized by state statute. Therefore, under Hall, the city was precluded from forcing the universities to collect and remit taxes imposed on users of the universities’ parking facilities.

The Dissent

The dissent argued that the applicability of the Hall doctrine was far from straightforward, as Hall and its progeny involved situations where a municipality was attempting to exert regulatory control directly over state entities. These cases, according to the dissent, differed markedly from this case where the municipality was imposing the tax on third parties transacting with state entities. The dissent found that the situation presented in this case was more similar to cases addressing the scope of the municipal taxing power and urged a more “nuanced” approach that would balance the state’s sovereign interests with the municipality’s power to tax third parties.

Federal Courts Lack Jurisdiction to Hear Challenges to EPA Objections to State Water Pollution Discharge Permits

Federal courts of appeal do not have original jurisdiction under the Clean Water Act to hear a challenge to EPA’s objection to a state’s draft water pollution discharge permit, the Ninth Circuit held in Southern California Alliance of Publicly Owned Treatment Works v. EPA, 853 F.3d 1076 (9th Cir. 2017).

The Clean Water Act allows EPA to delegate primary responsibility for issuing pollution discharge permits to a state. When a state assumes permitting authority, it must submit draft permits to EPA for review. If EPA objects to a state’s draft permit, the state may either revise the permit to address EPA’s objection or, if the state does not address EPA’s objection, permitting authority will revert to EPA.

This litigation arose over discharge permits for two water reclamation plants in California, a state that has assumed primary permitting authority. EPA objected to the state’s draft permits, primarily because of concerns related to numeric limitations for whole effluent toxicity. The state revised the permits to satisfy EPA’s objections and, after receiving approval from EPA, issued the permits. The Southern California Alliance of Publicly Owned Treatment Works (SCAP) then petitioned the Ninth Circuit for review of EPA’s objection letter.

                    Environmental Protection Agency (EPA) at Federal Triangle in Washington D.C.

Before reaching the merits, the court considered whether it had subject matter jurisdiction to hear the case. The Clean Water Act gives federal courts of appeal original jurisdiction to hear challenges to certain EPA actions. In this case, SCAP relied on 33 U.S.C. §§ 1369(b)(1)(E), which allows for review of EPA action “in approving or promulgating any effluent limitation, and 1369(b)(1)(F), which allows for review of EPA action “issuing or denying any [effluent discharge] permit.” The court concluded that neither provision gave it subject matter jurisdiction to review EPA’s objection letter.

The court held that it did not have jurisdiction under section 1369(b)(1)(E) because the objection letter was not an action “approving or promulgating any effluent limitation.” The court relied on the Ninth Circuit’s decision in Crown Simpson Pulp Co. v. Costle, 599 F.2d 897 (9th Cir. 1979), which held that EPA’s veto of a state’s draft permit was not the functional equivalent of a newly promulgated regulation. The court explained that promulgating effluent limitations, which set standards for an entire industry, are different from the individualized adjudications that occur in the permitting process; section 1369(b)(1)(E) only allows review of the former.

The court further held that it did not have jurisdiction under section 1369(b)(1)(F) because the objection letter was not an action “issuing or denying any permit.” The court explained that an objection letter is merely an interim step in the permitting process. After EPA issues an objection letter, there remain several possible outcomes: EPA and the state may resolve their dispute, EPA may modify or withdraw its objection after holding a hearing on the permit, the state may agree to accept EPA’s modifications, or EPA may issue a permit itself if the state refuses to accept EPA’s modifications. The court also noted that the Seventh and Eighth Circuits had reached similar conclusions on the issue of whether they had jurisdiction under section 1369(b)(1)(F) to hear challenges to an objection letter.

Thus, the court held that it lacked subject matter jurisdiction to hear SCAP’s challenge to EPA’s objection letter and dismissed the case.

*  *  *

An aggrieved party in a state that has assumed primary permitting authority is not without recourse—it may still pursue state administrative and judicial remedies to challenge a permit that conforms to EPA’s objection letter (with the possibility of ultimate review in the U.S. Supreme Court). Federal courts of appeal, however, are not the proper forum for challenging an EPA objection letter.