The City also conducted a streamlined CEQA review. CEQA authorizes the less intense review for a type of residential mixed-use development such as the proposed project which, because of its proximity to mass transit services, may help reduce regional greenhouse gas emissions by generating less use of motor vehicles.
In a petition for writ of mandate, plaintiff argued that approving the project under the general plan policy violated constitutional law and an implied-in-law zoning contract that required identicаl uses in a zoning district to be treated uniformly and prohibited a delegation of legislative authority without sufficient standards to govern its use. Plaintiff also claimed the City violated CEQA because the streamlined review did not analyze all of the project's environmental effects. The trial court denied plaintiff's petition. We affirm the trial court's order and judgment.
FACTS AND PROCEEDINGS
Real party applied to the City for permits to build a mixed-use condominium building at the southeast corner of 25th and J Streets in Midtown. The site is .44
Development on land designated as Urban Corridor Low is authorized to have a floor-area ratio of 0.3-3.0. The proposed building will have a floor-area ratio of 9.22. The general plan also recommends as a guideline that buildings in the Urban Corridor Low designation be from two to six stories high.
We note that in addition to building intensity standards, the general plan includes density standards based on the number of residential units per acre that may be built under the land use designation. Plaintiff argues the project also violates these density standards. Land designated as Urban Corridor Low is authorized to have a density of 20-110 residential units per acre. However, this density range does not apply to mixed-use developments such as the Yamanee project that includes residential uses because thе allowable floor-area ratio includes commercial square footage.
The City's zoning code designates the site as General Commercial/Midtown Commercial (C-2-MC). There is no dispute the proposed use of the site is authorized in the C-2 zone except that the project conflicts with the zone's height limitation and building intensity standard. The maximum height allowed in the C-2 zone is 65 feet. The project will slightly exceed 174 feet. The permitted floor-area ratios in the C-2 zone are those that are set forth in the general plan.
Despite the project's noncompliance with the floor-area ratio and height limits, the City's planning staff recommended the project be approved pursuant to a unique provision in the general plan. That provision, LU 1.1.10, gives the City authority to approve projects that do not conform with building intensity standards if the projects provide significant public benefits. LU 1.1.10 states: "The City may allow new development to exceed the maximum allowed FAR [floor-area ratio] or density if it is determined that the project provides a significant community benefit."
The planning staff stated LU 1.1.10 "allows that there may be a circumstance where the City determines that the benefit the community would derive from the project outweighs strict adherence to the General Plan's
The planning staff reviewed the project's environmental effects under CEQA. Staff determined the project as mitigated
Relying on LU 1.1.10, the City's planning and design commission approved the project's entitlements and its environmental review. The entitlements consisted of a tentative subdivision map to divide the condominium spaces and a site plan and design review. Plaintiff appealed the commission's decision to the city council. Following a public hearing, the city council unanimously denied the appeal, adopted the SCEA, and approved the tentative map and the site plan and design review.
Plaintiff petitioned the superior court for a writ of mandate, claiming the approval violated state planning and zoning law and CEQA. The court denied the petition.
DISCUSSION
I
Planning and Zoning Law Contentions
Plaintiff contends the City's approval violates planning and zoning law in three respects: (1) the approval is contrary to a constitutionally-derived doctrine of zoning uniformity and a similar implied-in-law zoning contract; (2) the approval resulted from an unlawful delegation of legislative authority; and (3) the City committed various procedural errors in approving the project. We disagree with each contention.
A. Standard of review
The bulk of plaintiff's argument raises questions of constitutional law. We exercise our independent judgment on questions of law that arise in mandate
The City's approval of the project's tentative map was a quasi-adjudicatory action reviewable for abuse of discretion under Code of Civil Procedure section 1094.5. ( Youngblood v. Board of Supervisors (1978)
The City's approval of the site plan and design review is similarly reviewed for substantial evidence. Under this standard, we review the administrative record to determine whether substantial evidence supports the City's findings and whether the findings support the City's decision. The burden is on plaintiff to show there is insufficient evidence to support the City's findings. ( Breneric Associates v. City of Del Mar (1998)
We review decisions regarding a project's consistency with a general plan for an abuse of discretiоn. While there is disagreement in the courts of appeal over whether a finding of consistency is a quasi-legislative or quasi-judicial action, the standard of review under either is not materially different. ( San Francisco Tomorrow v. City and County of San Francisco (2014)
We give substantial deference to the City's determination that the project is consistent with the general plan. "[C]ourts accord great deference to a local governmental agency's determination of consistency with its own general plan, recognizing that 'the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity.' " ( San Franciscans Upholding the Downtown Plan v. City & County of San Francisco (2002)
B. Zoning uniformity
Plaintiff asserts the City's reliance on LU 1.1.10 to approve the project violated a doctrine of zoning uniformity. This doctrine, according to plaintiff, requires zoning ordinances to be uniform for each kind of building throughout a zoning district. Zoning regulations must " 'be uniform and equal in operation and effect, and provide those in similar circumstances, among whom no reasonable basis for distinction exists, with equal protection of the law ....' " (Quoting 8 McQuillin, Mun. Corp. (3d ed.) § 25.65, fns. omitted.)
Government Code section 65852 requires zoning uniformity in general law cities. That statute requires zoning ordinances to be "uniform for each class or kind of building or use of land throughout each zone." ( Gov. Code, § 65852.) But as plaintiff acknowledges, the City is a charter city, and Government Code section 65852 does not apply to charter cities. ( Gov. Code, § 65803.)
Lacking a statutory basis to impose zoning uniformity on the City, plaintiff argues this law of zoning uniformity is derived from the equal protection and due process clauses of the Fourteenth Amendment and the California Constitution and from a zoning "contract" implied in law between citizens and the government. Under this contract, landowners forego the right to use their land as they wish in return for assurance that the use of neighboring property will be similarly restricted. (See Topanga Assn. for a Scenic Community v. County of Los Angeles (1974)
The guarantees of equal protection and due process do not mandate such a high standard of uniformity in zoning. Neither the federal constitution nor the
A California city derives its power to control land use from its inherent police power. (
A city's authority to exercise police power in land use matters is broad. "We begin with the well-established principle that under the California Constitution a municipality has broad authority, under its general police power, to regulate the development and use of real property within its jurisdiction to promote the public welfare.... As a general matter, so long as a land use restriction or regulation bears a reasonable relationship to the public welfare, the restriction or regulation is constitutionally permissible. " ( California Building Industry Assn. v. City of San Jose (2015)
A city's authority to regulate land use, although broad, is not unlimited. "A city's power to enact zoning regulation derives from the police power and, as such, zoning regulations must be reasonably necessary and reasonably related to the health, safety, morals, or general welfare of the community. ( In re White (1925)
Other limits on a city's land use authority exist. Even though the City is a charter city, when exercising its police power to regulate land use, it is subject to limits imposed by the federal and state constitutions, the terms of its charter, preempting federal and state legislation, and laws which the Legislature requires charter cities to obey. (U.S. Const., art. VI, § 2; Cal. Const., art. XI, § 5(a); Gov. Code, § 65700 ; People ex rel. Deukmejian v. County of Mendocino (1984)
However, the police power "is not to be lightly limited." ( Miller v. Board of Public Works (1925)
Asserting that zoning uniformity derives from the 14th Amendment, plaintiff argues the approval violated equal protection and due process guarantees. Regarding the former guarantee, plaintiff contends equal protection requires that restrictions on one parcel in a zone apply to all parcels in the zone and that each parcel in the zone have the same opportunity to develop as any other parcel in the zone. Plaintiff asserts the use of LU 1.1.10 to approve the project violated equal protection and was effectively an unlawful spot zoning without a zoning amendment.
The project approval and LU 1.1.10 do not violate the equal protection clause. Equal protection does not require zoning uniformity where, as here, the different treatment is rationally related to a legitimate governmental purpose.
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essеntially a direction that all persons similarly situated should be treated alike.... The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest .... When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude [citations], and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." ( City of Cleburne v. Cleburne Living Center (1985)
The approval and LU 1.1.10 do not violate the equal protection clause because they are rationally related to a legitimate public interest. By adopting LU 1.1.10 and approving the project, the City exercised its police power to provide "high quality infill development" which the general plan and zoning code may not have otherwise allowed.
Applying LU 1.1.10 here, the planning staff stated to the city council that its evaluation of a project's significant community benefit considered "the unique offerings of a development, the context of that development, and the cumulative value of the benefit." The staff identified numerous community benefits the Yamanee project would provide. We quote the staff report at length: "Staff has identified several community benefits that this project offers, including a high level of design, home ownership opportunities, sustainable construction, abundant private and publicly accessible open space, pedestrian connectivity, alley activation, infill with vertical density, and pedestrian connectivity.
"The design features that this project offers far exceed the City's minimum standards for design by providing architecture that achieves quality design, including a high degree of transparency on both J and 25th Streets that promote pedestrian engagement. This transparency is contrasted against highly finish [sic ], quality wood veneer panels and a vertical vegetation on the exterior of the building that offers an interesting feature that softens the building planes while offering visual variety.
"The abundant open space proposed, both private and publicly accessible, emphasizes the indoor/outdoor living that is embraced in Sacramento, and the project's design includes a pedestrian passage on the east side of the building and alley-facing uses that will emphasize alley activation while improving the public's safety and experience.
"Overall, this proposed project would create an active and engaging prominent corner that showcases the possibilities of signature Sacramento architecture."
Based on these factors, staff recommended the City approve the project under LU 1.1.10: "General Plan Policy LU 1.1.10 was specifically intended to allow the City to take advantage of unique opportunities such as the Yamanee proposal. This mixed-use project has strong design and sustainability features that are consistent with numerous City goals and policies and the project site is an appropriate location for the additional height and density, which results in a significant community benefit."
The city council accepted staff's recommendations and made similar findings of fact to justify approving the project under LU 1.1.10. As the record attests, LU 1.1.10 and the project approval under LU 1.1.10 were rationally related to the city's legitimate goal of obtaining quality infill development that provided significant community benefit. The equal protection clause was satisfied.
Plaintiff contends that allowing the project to exceed the floor-area ratio under LU 1.1.10 acts as an unlawful spot zoning. It does not. " 'Spot zoning occurs where a small parcel is restricted and given lesser rights than the surrounding property, as where a lot in the center of a business or commercial district is limited to uses for residential purposes thereby creating an "island" in the middle of a
This is not a spot zoning case, as the property has not been given lesser development rights than its neighboring parcels. Plaintiff asserts the neighboring parcels have been given lesser development rights by the City approving the project under LU 1.1.10, but there is no evidence in the record that any
Even if the City's approval was somеhow seen as spot zoning, it would be subject to the same rational basis test that applies in equal protection analyses. Spot zoning may be invalidated where the limitation is "unreasonable, oppressive and unwarranted." ( Hamer v. Town of Ross (1963)
In addition to alleging a violation of equal protection guarantees, plaintiff claims LU 1.1.10 violates the Fourteenth Amendment because its standard of "significant community benefit" is too vague in violation of the due process clause. Plaintiff asserts the policy's standard vests unbridled discretion in the City, as the general plan does not state how to determine whether a project meets the standard and the City has never implemented the standard in its zoning code. In effect, there is no standard by which the City can justify approving a project under LU 1.1.10. Plaintiff contends the City uses the policy ad hoc with no limits.
The phrase "significant community benefit" is not unconstitutionally vague. "[D]ue process rights are not violated because zoning and licensing ordinances ... state somewhat imprecise guidelines for issuing a permit or license or vest a large degree of discretion in the issuing agеncy. ' "California courts permit vague standards because they are sensitive to the need of government in large urban areas to delegate broad discretionary power to administrative bodies if the community's zoning business is to be done without paralyzing the legislative process." ' ( People v. Gates (1974)
The phrase "significant community benefit" in LU 1.1.10 is no less vague than "general welfare." In fact, it may be more descriptive than "general
Plaintiff's assertion of a constitutionally derived doctrine of zoning uniformity cannot stand when the constitutional provisions on which the doctrine is purportedly based do not require uniformity. Even the municipal law treatise cited by plaintiff as authority for the uniformity doctrine recognizes the limited scope of equal protection and due process rights in matters of zoning. The treatise states: "Zoning ordinances must be uniform and equal in operation and effect, and provide those in similar circumstances, among whom no reasonable basis for distinction exists , with equal protection of the law, as is constitutionally required of all ordinances." (8 McQuillin, Mun. Corp., supra , § 25.65, italics added, fns. omitted.)
A doctrine of zoning uniformity also cannot be derived from a social contract. Plaintiff's argument for a zoning contract is based on language found in Topanga, supra , 11 Cal.3d at pages 517-518,
The Topanga court stated that requiring factual findings promoted meaningful judicial review of an agency's quasi-judicial action to grant a variance. It is in this context that the сourt referenced a contract. The court wrote: "By setting forth a reasonable requirement for findings and clarifying the standard of judicial review, we believe we promote the achievement of the intended scheme of land use control. Vigorous and meaningful judicial review facilitates, among other factors, the intended division of decision-making labor. Whereas the adoption of zoning regulations is a legislative function ( Gov. Code, § 65850 ), the granting of variances is a quasi-judicial, administrative one. [Citations.] If the judiciary were to review grants of variances superficially, administrative boards could subvert this intended decision-making structure. [Citation.] They could '[amend] ... the zoning code in the guise of a variance' ( Cow Hollow Improvement Club v. Board of Permit Appeals [ (1966)
"Moreover," the high court continued, "courts must meaningfully review grants of variances in order to protect the interests of those who hold rights in property nearby the parcel for which a variance is sought. A zoning scheme,
Topanga's analogy of zoning to a contract-and it was only an analogy-does not establish a constitutional or common law doctrine of zoning uniformity. Even the court realized the analogy worked only "in some respects." There is no doubt "the purpose of comprehensive zoning is the attainment of unity in the construction and development of a city, along lines of reasonable regulations which tend to promote the health, safety, morals, and general welfare of the community[.]" ( Miller v. Board of Public Works, supra ,
But, obviously, there is a difference between contractual rights and constitutional power. No California court has held that a charter city, merely by enacting a zoning ordinance, agrees to impose stricter limits on the exercise of its police power over land use than those imposed by the equal protection and due process clauses. Zoning may be based on theories of mutual benefit and reciprocity, but there is no constitutional doctrine or common law social contract in California that compels zoning legislation and land use permits to meet a standard higher than the rationality and reasonableness rеquired by the Fourteenth Amendment. Plaintiff's reliance on out-of-state authorities does not compel a different conclusion.
Indeed, the holding of Topanga rests on the constitutional imperative that local agencies acting in a quasi-judicial capacity act reasonably, rationally, and in compliance with governing statutes. Administrative findings allow a court to protect a neighbor's interest in enforcing the zoning ordinance. But a reviewing court will still look to see only that the local agency did not abuse its discretion and that its decision is supported by substantial evidence. ( Topanga, supra , 11 Cal.3d at pp. 514-515,
Plaintiff argues that Neighbors in Support of Appropriate Land Use v. County of Tuolumne, supra ,
Uniformity may be "a fundamental rule in zoning" (
C. Delegation of legislative authority
Plaintiff contends the City's approval of the project under LU 1.1.10 resulted from an unconstitutional delegation of legislative authority. It argues the City's approach in approving the project was an unconstitutional delegation in two ways. First, the significant community benefit standard in LU 1.1.10 does not "clarify the fundamental policy issue of how City staff are to balance the positive and negative effects of a project exceeding zoning standards on the local community vis a vis effects on [the] City ...." Second, LU 1.1.10 contains no objective standards "to constrain the discretion of City staff called on to determine whether a development project confers 'significant benefits' on the community ...."
LU 1.1.10 is not an unconstitutional delegation of legislative authority. "An unconstitutional delegation of authority occurs only when a legislative body (1) leaves the resolution of fundamental policy issues to others or (2) fails to provide adequate direction for the implementation of that policy." ( Carson Mobilehome Park Owners' Assn. v. City of Carson (1983)
LU 1.1.10 has neither of these faults. First, planning staff did not decide a fundamental policy issue. The city council decided the fundamental policy
Second, LU 1.1.10 provides enough direction to implement that policy. "[A] general welfare standard is a sufficient guideline to enable an agency to act constitutionally." ( Rodriguez v. Solis (1991)
D. Procedural errors
Plaintiff contends the City committed various procedural errors when it approved the project. The City allegedly made no findings regarding the "significant community benefit" standard and the deviation from zoning, and it did not identify the deviations as "entitlements" or provide this information in its notices and final resolution.
The real party has filed a motion to strike this portion of plaintiff's argument, contending plaintiff did not raise these issues either in hearings before the City or in the trial court. Plaintiff admits in opposing the motion to strike that it did not identify or raise these issues in the trial court. It nonetheless contends we may review
Plaintiff has forfeited the issues. " 'As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere to the theory (or theories) on which their cases were tried. This rule is based on fairness-it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal....' (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2015) ¶ 8:229 ; p. 8-167.) ... ' "Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider.... Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that
This is especially true where, as here, the new issues raise questions of fact. The exception to the forfeiture rule for issues of law raised for the first time on appeal does not apply to unresolved factual issues. ( Araiza v. Younkin (2010)
II
CEQA Contentions
Plaintiff contends the City's approval of the project violated CEQA in two respects: (1) the City could not rely on a regional transportation and emissions reduction plan to justify reviewing the project in an SCEA because the plan was inadequate for that purpose; and (2) the SCEA improperly tiered to prior environmental impact reports to avoid analyzing the project's cumulative impacts. Again, we disagree.
A. Background
The Sustainable Communities and Climate Protection Act, commonly known as SB 375, sought to integrate transportation and land use planning to reduce greenhouse gas emissions. (Stats. 2008, ch. 728, § 1; Stats. 2009, ch. 354, § 5.) SB 375 directed the state Air Resources Board to develop regional emission reduction targets for automobiles and light trucks. ( Gov. Code, § 65080, subd. (b)(2)(A).) In turn, federally-designated metropolitan planning organizations that prepare regional transportation plans must include in those plans a "sustаinable communities strategy" to achieve the emission targets. ( Gov. Code, § 65080, subd. (b)(2)(B).) The parties refer to this combined transportation plan and emissions strategy as a metropolitan transportation plan/sustainable communities strategy (MTP/SCS). (For ease of reference, we will refer to the MTP/SCS as the strategy in most instances.)
The strategy directs the location and intensity of future land use development on a regional scale to reduce greenhouse gas emissions from motor vehicles. It must "identify the general location of uses, residential densities, and building intensities within the region," identify areas within the region sufficient to house the
One type of development the Legislature determined can help reduce greenhouse gas emissions from motor vehicles is a "transit priority project." A transit priority project is a development project that contains at least 50 percent residential use, provides a minimum density of at least 20 units per acre, and is located within one-half mile of a major transit stop or transit corridor. ( Pub. Resources Code, § 21155, subd. (b).)
To encourage the development of transit priority projects, the Legislature in SB 375 limited the extent of environmental review that a local agency must perform under CEQA to approve them. If a transit priority project (1) "is consistent with the general use designation, density, building intensity, and applicable policies specified for the project area" in the strategy; and (2) incorporatеs all feasible mitigation measures, performance standards, and criteria set forth "in the prior applicable environmental impact reports" and which were adopted as findings, then the local agency may review the project's environmental effects in a streamlined manner using an SCEA. ( Pub. Resources Code, §§ 21155, subd. (a), 21155.2, subds. (a), (b).)
The review is streamlined because an SCEA is not required to analyze certain types of environmental impacts. It is not required to discuss growth inducing impacts or any project-specific or cumulative impacts on global warming or the regional transportation network that may arise from automobile and light-duty truck trips generated by the project. ( Pub. Resources Code, § 21159.28, subd. (a).) Also, where the lead agency determines that a cumulative effect has been adequately addressed and mitigated in prior applicable certified environmental impact reports, that cumulative effect shall not be treated as cumulatively considerable and subject to further environmental review. ( Pub. Resources Code, § 21155.2, subd. (b)(1).) In addition, the SCEA is not required to analyze off-site alternatives, nor is it required to reference, describe, or discuss a reduced residential density alternative to address the effects of car and light-duty truck trips generated by the project. ( Pub. Resources Code, §§ 21155.2, subd. (c)(2) ; 21159.28, subd. (b).)
In its amicus brief, SACOG explains how it developed the strategy and how it and member cities may determine whether a proposed project is consistent with its
The strategy locates the Yamanee project in the central city subarea of a Center and Corridor Community. It states Center and Corridor Communities "are typically higher density and more mixed than surrounding land uses. Centers and Corridors are identified in local plans as historic downtowns, main streets, commercial corridors, rail station areas, central business districts, town centers, or other high density destinations. They typically have more compact development patterns, a greater mix of uses, and a wider variety of transportation infrastructure compared to the rest of the region."
SACOG organized the strategy in such a way that its policies for reducing greenhouse gas emissions were embedded in the strategy's metrics and growth forecast assumptions. Thus, projects that were consistent with the strategy's growth forecasts were automatically consistent with the strategy's emissions policies.
The City determined the Yamanee project qualified as a transit priority project
The SCEA addressed the project's cumulative effects except where excused under SB 375. In doing so, it incorporated the relevant cumulative impacts analysis contained in the environmental impacts reports that were prepared for the City's general plan and for the strategy.
When the City denied plaintiff's appeal, adopted the SCEA, and approved the project, it found the project was "consistent with the general use designations, density, building intensity, and applicable policies specified for the project area" in the strategy. The City also found that the project's cumulative effects were "adequately addressed and mitigated in prior appliсable certified [EIRs and are not considered] cumulatively considerable" for the purposes of this SCEA.
Plaintiff contends the City violated CEQA by (1) relying on the strategy to justify use of an SCEA because the strategy is too vague for determining the
B. Standard of review
We review plaintiff's CEQA challenge under the administrative writ statute, Code of Civil Procedure section 1094.5. An action attacking a public agency's decision on the grounds of noncompliance with CEQA, where the agency made its decision following a hearing required by law at which the agency took evidence and exercised discretion in determining facts, is reviewed under Code of Civil Procedure section 1094.5. ( Pub. Resources Code, § 21168.) Under that statute, we ask whether "there was any prejudicial abuse of discretion. Abuse of discretion is established if [the City] has not proceeded in the manner required by law, the order or decision is nоt supported by the findings, or the findings are not supported by the evidence." ( Code Civ. Proc., § 1094.5, subd. (b).) We review the City's decision to analyze and approve a transit priority project through an SCEA under the substantial evidence standard. ( Pub. Resources Code, § 21155.2, subd. (b)(7).) We do not exercise our independent judgment on the evidence but only determine whether the agency's decision is supported by substantial evidence considering the whole record. ( Pub. Resources Code, § 21168.)
Judicial review of procedural error and factual error differs significantly. " 'While we determine de novo whether the agency has employed the correct procedures, "scrupulously enforc[ing] all legislatively mandated CEQA requirements" ( Citizens of Goleta Valley v. Board of Supervisors (1990)
C. Reliance on the strategy
Plaintiff claims the City erred by relying on the strategy to justify using an SCEA. Plaintiff argues that beсause the strategy lacks specific density and
Plaintiff argues the strategy did not identify "residential densities and building intensities within the region" to the extent necessary to enable a project's significant effects to be mitigated, and thus it cannot form the basis for justifying streamlined CEQA review under SB 375. The City should be authorized to streamline review of the project only if the project's actual density and intensity are consistent with a density or intensity analyzed in a "regional plan for Midtown." Plaintiff does not еxplain what such a plan is or would be.
Plaintiff misunderstands the strategy's role. The strategy does not regulate land use in the manner plaintiff argues. Indeed, a strategy may "not regulate land use." ( Gov. Code, § 65080, subd. (b)(2)(K).) "[A] sustainable communities strategy does not regulate land use and is not subject to state approval other than as prescribed. Nothing in a sustainable communities strategy is to 'be interpreted as superseding the exercise of the land use authority of cities and counties within the region,' nor shall anything 'require a city's or county's land use policies and regulations, including its general plan, to be consistent with the regional transportation plan.' ( [Gov. Code,] § 65080, subd. (b)(2)(K).)" ( Bay Area Citizens v. Association of Bay Area Governments, supra ,
The strategy's purpose is to establish a regional pattern of development, not a site-specific zoning ordinance. It is "a forecasted development pattern for the region" which, if implemented by SACOG's member governments, will reduce greenhouse gas emissions from automobiles and light trucks that would otherwise result from new development. ( Gov. Code, § 65080, subd. (b)(2)(B).) In order to meet regional greеnhouse gas emission reduction targets, the strategy is required to identify "the general location of uses, residential densities, and building intensities within the region," identify areas within the region sufficient to house the region's projected population, identify a transportation network to service that regional population, and
Nothing in SB 375 required the strategy to establish building intensity standards any more specific than what it did. The strategy identified the general location of uses, residential densities, and building intensities in the region, and it forecast where and how future development of those uses could best achieve greenhouse gas emission reductions. It based its forecast in part on the planning assumptions of еach SACOG member's local general plans. ( Gov. Code, § 65080, subd. (b)(2)(B).) Its policies and recommendations were supported by review in an environmental impact report that confirmed emissions would be reduced under the plan's land use assumptions. The Air Resources Board accepted the strategy, determining it met the state-mandated greenhouse gas emission reduction target.
SB 375 authorized the City to review the project in an SCEA if the project was consistent with the strategy. There is no dispute that substantial evidence supports the City's determination that the project was consistent with the strategy. Plaintiff's concern that some type of environmental review may not occur by using an SCEA in this instance is a complaint to take to the Legislature. The Legislature provided the CEQA streamlining provisions in SB 375 to "encourage[ ] developers to submit applications and local governments to make land use decisions that will help the state achieve its climate goals ...., assist in the achievement of state and federal air quality standards, and increase petroleum conservation." (Stats. 2008, ch. 728, § 1.) If it chоse to exempt certain types of development from full environmental review based on those rational bases, we are not at liberty to question their wisdom.
D. Cumulative impacts
Plaintiff asserts the City erred by relying on the environmental impact reports prepared for the general plan and the strategy to avoid analyzing the project's cumulative impacts. Plaintiff claims streamlined review here is inappropriate because no prior environmental analysis has ever considered the cumulative impacts of high-rise development in Midtown approved pursuant
CEQA required the City, before drafting its SCEA, to prepare an initial study. The initial study was to identify the project's significant or potentially significant impacts, including cumulative impacts, except for growth inducing impacts or any project specific or cumulative impacts from cars and light-duty truck trips generated by the project on global warming or the regional transрortation network based on substantial evidence in light of the whole record. ( Pub. Resources Code, §§ 21155.2, subd. (b)(1) ; 21159.28, subd. (a).) The initial study had to identify any cumulative effects that had been adequately addressed and mitigated in prior applicable environmental impact reports. If the City determined a cumulative effect was adequately addressed and mitigated, it did not need to analyze that effect further in the SCEA. ( Pub. Resources Code, § 21155.2, subd. (b)(1).)
The City's initial study on the Yamanee project, which is included as part of the SCEA, complied with these requirements. It relied upon and incorporated analysis and mitigation measures contained in the general plan and strategy environmental
Plaintiff worries the project may change the density and building intensity over time in Midtown. This concern goes to the project's growth-inducing impacts, which CEQA did not require the SCEA to review. ( Pub. Resources Code, § 21159.28, subd. (a).)
And contrary to plaintiff's assertion, the project's cumulative effects of building significantly more housing on this site than otherwise allowed in the zoning code were reviewed on a regional basis in the strategy's environmental impact report. That report considered the cumulative effects of building over 300,000 new housing units in SACOG's six-county area, including 27,000 new residential units in the central city, not just the 134 units this project would add. The City did not err by relying on cumulative impact analysis performed in the general plan and strategy environmental impact reports.
The judgment is affirmed. Costs on appeal are awarded to the City and the real party. ( Cal. Rules of Court, rule 8.278(a).)
We concur:
BUTZ, J.
DUARTE, J.
Notes
Legislative classifications based on race, alienage, national origin, gender and illegitimacy or that affect other fundamental interests are reviewed under higher standards of review (City of Cleburne v. Cleburne Living Center,