20 Cal. App. 5th 1
Cal. Ct. App. 5th2018Background
- Visalia updated its general plan and adopted policy LU-P-67 (formerly LU-P-66) limiting any single tenant in a "Neighborhood Commercial" center to 40,000 sq ft; council adopted the cap after staff and public discussion.
- An EIR was prepared and certified; the EIR did not analyze "urban decay" as a potential environmental impact of the tenant-size cap.
- Appellant (Thomason Development/Visalia Retail) submitted an expert report (Anderson, commercial broker) arguing the cap would deter typical supermarket anchors, produce vacancies or lower-quality anchors, reduce landlords’ maintenance revenue, and thereby cause urban decay/physical deterioration.
- Appellant sued to invalidate certification of the EIR and the general plan amendment on CEQA grounds, claimed internal inconsistency of the plan, and alleged inadequate notice under Planning & Zoning Law.
- Trial court denied relief; the appellate court affirmed, holding appellant failed to present substantial evidence supporting a fair argument that LU-P-67 may cause significant physical environmental effects (urban decay), the plan is not internally inconsistent, and the notice claim fails.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the EIR had to analyze urban decay under CEQA | Anderson's report shows the 40,000 sq ft cap will deter anchors, cause vacancies and reduced maintenance leading to urban decay (a physical environmental effect) | The Anderson report is speculative, relies on limited or inapposite examples, and shows at most economic impacts not physical environmental harm | Held: No. Plaintiff failed to produce substantial evidence to support a fair argument that LU-P-67 may cause significant physical environmental effects; EIR need not be revised |
| Whether the general plan amendment is internally inconsistent | LU-P-67 conflicts with plan goals encouraging infill, retail growth, flexibility, and mixed commercial uses | City argues plan balances competing goals; larger retail can locate in Commercial Mixed Use and plan can favor certain types of infill | Held: No. A reasonable person could conclude LU-P-67 is consistent with plan goals; legislative policy choices are presumptively valid |
| Whether Visalia violated Planning & Zoning Law notice requirements | October 14 meeting lacked 10 days' notice required by Gov. Code §65090 for adoption of a general plan amendment | City held a properly noticed public hearing on Sept 8 (published Aug 27) and complied with the statutory requirement of at least one noticed hearing under Gov. Code §65355 | Held: No. The statute requires only one properly noticed public hearing; additional meetings need not meet the 10-day notice requirement |
| Whether Bakersfield Citizens (BCLC) requires a different CEQA result | Appellant relied on BCLC to argue urban decay analysis was required here | City distinguishes BCLC (large new shopping centers with strong evidence of decay risk) from this case (policy change with speculative evidence) | Held: BCLC does not compel a different result; plaintiff still must produce substantial evidence supporting a fair argument of physical effects |
Key Cases Cited
- Laurel Heights Improvement Assn. v. Regents of Univ. of Cal., 6 Cal.4th 1112 (1993) (EIR duty and "fair argument" standard for CEQA review)
- California Building Industry Assn. v. Bay Area Air Quality Mgmt. Dist., 62 Cal.4th 369 (2015) (EIR purpose and balancing of environmental impacts with other considerations)
- Joshua Tree Downtown Business Alliance v. County of San Bernardino, 1 Cal.App.5th 677 (2016) (economic harms alone do not trigger CEQA; only economic effects that cause physical environmental change do)
- South Orange County Wastewater Auth. v. City of Dana Point, 196 Cal.App.4th 1604 (2011) (distinguishing economic impacts from CEQA-covered physical effects)
- Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184 (2004) (EIR must analyze potential for projects to indirectly cause urban/suburban decay when supported by evidence)
- Protect the Historic Amador Waterways v. Amador Water Agency, 116 Cal.App.4th 1099 (2004) (agency must consider and resolve every fair argument about possible significant environmental effects)
- Orange Citizens for Parks & Recreation v. Superior Court, 2 Cal.5th 141 (2016) (general plan internal consistency requirement)
- DeVita v. County of Napa, 9 Cal.4th 763 (1995) (amendments to general plans must be internally consistent)
- Perley v. Board of Supervisors, 137 Cal.App.3d 424 (1982) ("may" means a reasonable possibility under CEQA)
- Citizen Action to Serve All Students v. Thornley, 222 Cal.App.3d 748 (1990) (interpretation of "may" as reasonable possibility in CEQA context)
- Environmental Council of Sacramento v. City of Sacramento, 142 Cal.App.4th 1018 (2006) (CEQA is about compliance with environmental review, not the wisdom of local policy choices)