Elfin Forest Harmony Grove Town Council v. County of San Diego CA4/1 (2021) · DecisionDepot

Elfin Forest Harmony Grove Town Council v. County of San Diego CA4/1

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California Court of Appeal Oct 14, 2021 No. D077611Unpublished

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Holding. The court held that the Project's greenhouse gas mitigation measures were legally inadequate for lacking objective performance criteria and improperly deferring mitigation, and that the County erred in finding the Project consistent with its General Plan's affordable housing requirements. However, the court affirmed the EIR's adequacy regarding fire safety, evacuation, and consistency with regional air quality and transportation plans.

Issues

Whether the Project's greenhouse gas mitigation measures (M-GHG-1 and M-GHG-2) comply with CEQA.
Whether the EIR adequately addressed fire safety and evacuation risks.
Whether the Project is consistent with the County's General Plan regarding affordable housing.
Whether the Project conflicts with the Elfin Forest and Harmony Grove Community Plan regarding septic systems.

Disposition. Affirmed in part, reversed in part and remanded with directions.

Filed 10/14/21 Elfin Forest Harmony Grove Town Council v. County of San Diego CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ELFIN FOREST HARMONY GROVE D077611, D078101 TOWN COUNCIL et al.,

Plaintiffs and Respondents, (Super. Ct. No. v. 37-2018-00042927-CU-TT-CTL)

COUNTY OF SAN DIEGO,

Defendant and Appellant,

RCS-HARMONY PARTNERS, LLC,

Real Party in Interest and Appellant.

CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County, Katherine Bacal, Judge. Affirmed in part, reversed in part and remanded with directions.

Hecht Solberg Robinson Goldberg & Bagley and Beth Abramson, Sadaf Behdin; Richard A. Schulman, for Real Party in Interest and Appellant.

Shute, Mihaly & Weinberger and Winter King, Tori Gibbons for Plaintiffs and Respondents.

In these consolidated appeals,1 appellant and real party in interest RCS-Harmony Partners, LLC challenges an order granting the writ of mandate of respondents Elfin Forest Harmony Grove Town Council, Endangered Habitats League, and Cleveland National Forest Foundation, which challenged the County of San Diego’s (County) approval of the Harmony Grove Village South project (the Project) and certification of a final Environmental Impact Report (EIR) for the Project under the California

Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).2 The superior court ordered County to set aside its approval of the Project, finding the EIR relied on unsupported greenhouse gas mitigation measures and failed to address certain fire safety issues or relied on unsupported fire evacuation measures. It found County failed to proceed in the manner required by CEQA by not including certain forecasts or analyses relevant to

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less-than-significant level. Among other things, the draft EIR included a section on greenhouse gas emissions and a Greenhouse Gas Analyses Report. It stated the Project would be consistent with local and State plans and policies to reduce GHG emissions, and thus impacts from such emissions would not be significant. As for wildland fire hazards, the draft EIR explained that after the 2003 wildfires, County had included fire prevention strategies into its CEQA review process, including requiring a Fire Protection Plan (fire plan) for wildland urban interface areas. It outlined numerous fire protective features of the Project (discussed more fully below), which included incorporating philosophies and physical attributes of “shelter in place” communities such as ignition-resistant structures built to latest codes, defensible landscape, available water supply throughout, and last-resort temporary refuge if early and safe evacuation was not possible. The draft EIR concluded that impacts associated with wildland fire hazards would be less than significant; the Project would not expose people or structures to a significant risk of loss, injury or death from wildland fire given the numerous design features, the presence of a planned nearby fire station 1.3 miles from any structure on the Project site, and its compliance with fire codes and the fire plan, which had been accepted by the San Diego County fire authority. Public comments on the draft EIR complained about its analysis of the Project’s air quality impacts and contribution to climate change, and treatment of greenhouse gas emissions. Other comments focused on the Project’s consistency with County’s General Plan as well as its compliance with County standards for protection against wildfire threats, including secondary egress requirements and the draft EIR’s analysis of fire hazards, mitigation measures, and evacuation risk. Respondent Elfin Forest Harmony Grove Town Council (Town Council) specifically challenged the draft EIR’s

chosen registry is reputable assures that that registry’s credits are legitimate and the offsets will result in net zero [greenhouse gas] emissions.” The court further found the EIR’s analysis insufficient on the question of fire safety and evacuation times: the EIR did not address how adding new residents would affect the potential for wildfires to start, and there was no evidence that mitigation measures, including adding a new travel lane to Country Club Drive, would be effective in the event the sole evacuation route was blocked by fire. It found the EIR failed to actually analyze the Project’s conflicts with the RAQS because its statistics about population growth were not included in the EIR and thus County failed to proceed in the manner required by CEQA. The court also found the Project did not contain an affordable housing component and County failed to show it was legally precluded from requiring developers to provide such a component; as a result it ruled the Project was inconsistent with County’s General Plan policy H-1.9, which required an affordable housing component if requesting a General Plan amendment “ ‘when this is legally permissible.’ ” The court further found the Project fundamentally conflicted with a policy of the Community Plan that any development in Elfin Forest be served only by septic systems. Several months after the superior court issued its ruling, this court decided Golden Door, supra, 50 Cal.App.5th 467, which involved County’s third attempt to adopt a viable climate action plan (at times, CAP) and related CEQA documents for it. (Id. at p. 483.) The climate action plan was to serve as mitigation to reduce greenhouse gas emissions resulting from land development under County’s 2011 General Plan update. (Id. at p. 490.) As we more fully explain below, the climate action plan’s greenhouse gas emissions projections assumed the effective implementation of a carbon-offset mitigation measure—M-GHG-1—which we determined violated CEQA

not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo.” (Vineyard Area Citizens, supra, 40 Cal.4th at p. 427.) We assess the agency’s determinations and findings under CEQA for abuse of discretion. (Sierra Club, supra, 6 Cal.5th at p. 512.) In Sierra Club, the court explained there is a “procedural issues/factual issues dichotomy. ‘[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, “scrupulously enforc[ing] all legislatively mandated CEQA requirements’’ [citation], we accord greater deference to the agency’s substantive factual conclusions. In reviewing for substantial evidence, the reviewing court “may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,” for, on factual questions, our task is “not to weigh conflicting evidence and determine who has the better argument.” ’ ” (Sierra Club, 6 Cal.5th at p. 512; see also Golden Door, supra, 50 Cal.App.5th at p. 512; Preserve Wild Santee, supra, 210 Cal.App.4th at p. 275.) “[I]n reviewing an EIR for CEQA compliance, we adjust our ‘scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts.’ [Citation.] For example, where a petitioner claims an agency failed to include required information in its environmental analysis, our task is to determine whether the agency failed to proceed in the manner prescribed by CEQA.” (Preserve Wild Santee, supra, 210 Cal.App.4th at p. 275.) However, the analysis of “whether an agency has followed proper procedures is not always so clear. This is especially so when the issue is whether the EIR’s discussion

of environmental impacts is adequate, that is, whether the discussion sufficiently performs the function of facilitating ‘informed agency decisionmaking and informed public participation.’ ” (Sierra Club, 6 Cal.5th at pp. 512-513.) Such adequacy-of-discussion issues are not typically amenable to substantial evidence review. (Id. at p. 515.) What is clear is that in reviewing the adequacy of an EIR’s discussion, a court does not “require technical perfection or scientific certainty: ‘ “ ‘[T]he courts have looked not for an exhaustive analysis but for adequacy, completeness and a good-faith effort at full disclosure.’ ” ’ ” (Ibid.) When faced with such claims, we are guided by three basic principles: “(1) An agency has considerable discretion to decide the manner of the discussion of potentially significant effects in an EIR. (2) However, a reviewing court must determine whether the discussion of a potentially significant effect is sufficient or insufficient, i.e., whether the EIR comports with its intended function of including ‘ “ ‘detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ ” ’ [Citation.] (3) The determination whether a discussion is sufficient is not solely a matter of discerning whether there is substantial evidence to support the agency's factual conclusions. [¶] The ultimate inquiry . . . is whether the EIR includes enough detail ‘to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ [Citations.] The inquiry presents a mixed question of law and fact. As such, it is generally subject to independent review. However, underlying factual determinations—including, for example, an agency’s decision as to which methodologies to employ for analyzing an environmental effect—may warrant deference. [Citations.] Thus, to the extent a mixed question

7 County’s climate action plan and its greenhouse gas reduction measures (unchallenged by the plaintiffs in Golden Door and different from the mitigation measure at issue in that case) applied to projects consistent with land use allowed under its 2011 General Plan. (Golden Door, supra, 50 Cal.App.5th at pp. 490, 493, fn. 14, 494, 500.) But the plan’s greenhouse gas projections did not include certain in-process and future development projects requiring a general plan amendment (with density or intensity beyond that allowed under the General Plan). (Id. at pp. 494, 500.) The SEIR for the plan concluded they could result in significant greenhouse gas impacts and may impact County’s ability to meet its climate action plan targets. (Ibid.) Thus, the SEIR required those projects to use the measure invalided in Golden Door— M-GHG-1—to mitigate greenhouse gas emissions to within the threshold of significance, that is, not to exceed the climate action plan’s greenhouse gas emission projections. (Ibid.) Respondents in this case have requested that we take judicial notice of the 2018 SEIR (section 2.7 related to greenhouse gas emissions in the supplement to the 2011 General Plan Update Program EIR) as an official act of a public entity (Evid. Code, § 452, subd. (b)) and also as a publicly available document that is capable of immediate and accurate determination (Evid. Code, § 452, subd. (h)). In a supporting declaration, respondents’ counsel does not say that the 2018 SEIR, or any of the other documents mentioned in the request (CAL FIRE summary reports of the 2018 and 2020 fire seasons and draft bills for the 2021-2022 legislative session) were before the superior court. Appellant states they were not part of the administrative record. We deny the request for judicial notice on that ground (see Golden Door, supra, 50 Cal.App.5th at p. 516 [denying request for judicial notice of document not within administrative record]; Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1192 [same]), and on the further ground respondents have not shown these items existed before County made its July 2018 decision approving the Project. (See Guidelines, § 15162, subd. (c) [“Information appearing after an approval does not require reopening of that approval”]; Manderson-Saleh v. Regents of University of California (2021) 60 Cal.App.5th 674, 694-695 [exceptions allowing admission of extra-record evidence do not apply when the evidence is submitted merely to raise a question regarding the wisdom of an administrative agency’s quasi-legislative decision such as a CEQA ruling].) 19

countries because the mitigation measure “does not require use of an Assem[bly] Bill No. 32 compliant protocol”].) An improper deferral issue is presented by the fact that the Director is allowed to decide whether to approve offset credits on grounds a non-Board- approved registry is “reputable” to the Director’s “satisfaction.” As we held in Golden Door, such language “allow[s] the Director to determine whether any particular offset program is acceptable based on unidentified and subjective criteria.” (Golden Door, supra, 50 Cal.App.5th at p. 518.) It also means that achieving the goals set out in M-GHG-1 and M-GHG-2 “depends on implementing unspecified and undefined protocols, occurring in unspecified locations (including foreign countries), the specifics of which are deferred to those meeting one person’s subjective satisfaction.” (Id. at p. 520.) This sort of improper deferral causes these measures to violate CEQA. (Ibid.; see Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503, 525 [rule against deferral essentially prohibits “ ‘loose or open-ended performance criteria’ ” that afford a potential means of avoiding mitigation during project implementation, making it “ ‘unreasonable to conclude that implementing the measures will reduce impacts to less than significant levels’ ”].) We are not persuaded by appellant’s arguments as to the validity of the measures. It asserts that the Project’s measures do not depend on County’s climate action plan or on that plan’s M-GHG-1. But the Project EIR here explained its greenhouse gas analysis was consistent with that plan and that its goal of “net zero” emissions effects was “in accord with the . . . M-GHG-1” that this court invalidated in Golden Door. The Project’s Greenhouse Gas Analyses Report (Appendix J) likewise represents that the Project’s M-GHG-1 and M-GHG-2 mitigation measures “require the Project to purchase and retire carbon offsets in a quantity sufficient to achieve net zero emissions, in

court agreed with these arguments, and ruled the EIR did not address how adding new residents would “affect the potential for wildfires to start.” On appeal, respondents repeat their assertions about the risks of fire ignition from additional residents, but add that the EIR’s analysis assertedly did not address the risks to existing residents, nor did it assess “all the known ignitions and areas for high historic wildfire risk . . . .” They say “[t]he County should have had to explain precisely why bringing 1,400 additional people to a non-General Plan compliant development project in a Very High Fire Hazard Severity Zone outweighs the grave fire ignition risk to existing residents.” They criticize the EIR for mentioning that the Project would introduce potential ignition sources and acknowledging typical human causes of fire in the vicinity, but not explaining, discussing or “undertak[ing] a thorough analysis of” those matters and the increased risk. According to respondents, it is not enough that Project features make homes there safer; the EIR was to analyze how the additional homes and people increase the fire danger, and without it, the public and decisionmakers had no way of knowing whether the mitigation measures would reduce the risk to a level of insignificance. They argue the Project features “do nothing to stop Project residents from engaging in activities in the surrounding areas that could increase wildfire ignition risk, such as driving a car or smoking.” They argue there is no evidence in the record that the mitigation measures will “decrease human ignition risk.” We conclude the EIR contains a CEQA-compliant discussion of the potential wildland fire risks or exacerbation caused by the Project and the fire risks in the Project’s vicinity, and that substantial evidence supports its conclusion that the Project measures would reduce them to a level of insignificance. The fire plan is incorporated into the EIR as an appendix and

thus was presented in a manner calculated to adequately inform the public of its conclusions. (Stop Syar Expansion v. County of Napa, supra, 63 Cal.App.5th at p. 460.) It refers to the applicable standard of significance, asking whether the Project would “expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands.” The EIR addresses the “wildland fire risk in the vicinity of the Project site,” the Project’s impact on the frequency of wildfires, and the Project’s introduction of potential “ignition sources.” The EIR quotes from the fire plan, stating: “Based on fire behavior modeling, the [fire plan] determined that wildfires may occur in wildland areas to the west, east, south, and southwest of the Project site, but would not be significantly increased in frequency, duration, or size with the construction of the Project.” It continues: “One reason is that the developing [Harmony Valley Grove] project has created a large lower risk area in alignment with north/northeast wind directions, reducing the fire threat at the Project site. In addition, various Project features would result in a site that is less susceptible to wildfire than surrounding landscapes and that would facilitate firefighter and medical aid response as well as Project resident evacuation in a wildfire emergency. The Project is providing code-exceeding measures . . . through a layered and redundant fire protection and evacuation system that would result in a highly defensible community, offer a means of equivalent egress, and provide contingency planning if evacuation from the site is considered unsafe.” The EIR points out that among other things, utility lines would be placed underground, addressing at least one human-caused ignition source. While this appears in the EIR’s land use section (1.2.2.2), it nevertheless is within the EIR, contrary to respondents’ assertion otherwise. (See San Diego

sufficient basis to conclude an EIR is inadequate. (Stop Syar Expansion v. County of Napa, supra, 63 Cal.App.5th at p. 460.) Our conclusion is bolstered by the fact that Dr. Rahn’s 95 percent statistic is a bare assertion that does not support the proposition that increased human population significantly increases the wildfire risk. Dr. Rahn later cites a study for the proposition that “human-caused ignition events are predicted to increase with population.” (Italics added.) County reasonably could reject the proposition that a nexus exits between population growth, which is a social change, and any significant consequence to the public health and safety, or the physical environment. (See Chico Advocates for a Responsible Economy v. City of Chico, supra, 40 Cal.App.5th at pp. 847- 848 [CEQA requires social and economic changes to be addressed if they will cause changes in the physical environment].) Further, we reject the assertion that the EIR should have evaluated “all the known” ignition sources. “ ‘ “[A]n EIR need not include all information available on a subject” . . . [all that is required is] sufficient information and analysis to enable the public to discern the analytical route the agency traveled from evidence to action.’ [Citation.] ‘A project opponent or reviewing court can always imagine some additional study or analysis that might provide helpful information. It is not for them to design the EIR. That further study . . . might be helpful does not make it necessary.’ [Citation.] ‘Although others might well assess the significance of [a] risk . . . differently, it [is] error for the court to substitute its judgment for that of the Agency.’ ” (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 639-640; see Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 415 (Laurel Heights); Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th

exacerbate the wildfire risks in the area or cause safety problems. (Guidelines, § 15126.2; Sierra Club, supra, 6 Cal.5th at p. 520.) Certainly there is a potential for the Project to impact safety related to protecting Project and other existing residents in the very high fire area. But the accompanying studies are anything but summary with respect to evacuation scenarios and alternatives. They sufficiently state “the reasons for determining that [the effects of the Project on safety relating to fire risk] are not significant . . . .” (§ 21100.) That respondents presented Rahn’s or other experts’ competing conclusions does not render the EIR inadequate. As we have pointed out, it is well established that “ ‘[disagreement] among experts does not make an EIR inadequate.’ ” (Laurel Heights, supra, 47 Cal.3d at p. 409; Guidelines, § 15151; see also Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1069 [the substantiality of evidence is not undermined by the parties’ differing expert opinions].) And it is fundamental that this court’s “review does not encompass ‘ “the correctness of the EIR’s environmental conclusions, but only its sufficiency as an informative document. [Citation.] ‘We may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. “Our limited function is consistent with the principle that ‘[t]he purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.’ ” [Citation.] We may not, in sum, substitute our judgment for that of the people and their local representatives. We can and must, however, scrupulously enforce all legislatively mandated CEQA requirements.’ ” ’ ” (High Sierra Rural Alliance v. County of Plumas

(2018) 29 Cal.App.5th 102, 121; see Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564; Laurel Heights, supra, 47 Cal.3d at p. 409 [reviewing court “ ‘does not have the duty of passing on the validity of the conclusions expressed in the EIR, but only on the sufficiency of the report as an informative document’ ”].) Respondents’ arguments concerning the analysis of evacuation times are unavailing. The EIR engaged in a calculation of the evacuation time on Country Club Drive using the capacity of vehicles per hour, in keeping with the formula set out in County’s Operational Area Emergency Operations Plan. Respondents complain that this calculation did not relate evacuation time all the way to safety or to safe refuge locations beyond the Harmony Grove Road intersection, but this challenges the methodology used and does not invalidate or render insufficient the analysis engaged in by the fire plan and the other studies. (Chico Advocates for a Responsible Economy v. City of Chico, supra, 40 Cal.App.5th at p. 851.) The evacuation plan stated that one of its objectives was to “[p]rovide for evacuation to appropriate transportation points, evacuation points, and shelters” and explains that the sheriff and incident commander coordinate with the responding fire agency to decide locations to use as temporary evacuation point which serve as safe zones for evacuees, listing such potential locations. We disagree that further quantification of evacuation time to these locations was needed. Again, the issue is whether the evacuation plan is sufficiently credible to be considered as part of the total evidence supporting County’s the agency’s decision. (Laurel Heights, supra, 47 Cal.3d at p. 409; Chico Advocates, at p. 851; Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 372; see also National Parks & Conservation Assn. v. County of Riverside (1999) 71 Cal.App.4th 1341, 1362 [“an expert can make a

In challenging the EIR on this point, respondents argued County should have described the increase in air pollutant emissions that would result from the Project’s unplanned growth, and the EIR thus failed to inform the public and decisionmakers of the severity of the air quality impact. The trial court found fault with County’s finding, ruling that the information on which it relied for its population growth conclusions (a staff report and an e- mail with statistical charts pertaining to San Diego’s regional needs housing assessment) must have been explicitly incorporated into the EIR. It ruled the “EIR should have actually analyzed the conflicts with RAQS. By not doing so, the County failed to proceed in the manner required by CEQA.” Appellant contends the EIR properly evaluated the Project’s impact on the RAQS, which establishes a population-based air quality strategy. It characterizes the EIR as finding a “paper impact, not a physical one” requiring only the eventual inclusion of the population information into the regional plan, an approach this court upheld in San Diego Navy Broadway Complex Coalition v. California Coastal Commission (2019) 40 Cal.App.5th 563 (San Diego Navy). In San Diego Navy, the proposed mitigation for a project’s inconsistency with growth projections in a regional plan was for the regional air district to amend the plan. (Id. at pp. 602-603.) Reviewing County’s determination directly as we must (Vineyard Area Citizens, supra, 40 Cal.4th at p. 427), we hold the County did not err in its findings, and that its treatment of consistency with the RAQS (analyzed as a “planning document conflict”) was adequate. We agree County’s finding is akin to that of the Coastal Commission in San Diego Navy, supra, 40 Cal.App.5th 563 that a Port District master plan amendment would “ ‘ensure consistency with San Diego Air Pollution Control District’s . . . requirements upon amendment of the Air District’s growth projections to

reflect the increased growth anticipated in the Port Master Plan area.’ ” (Id. at p. 602.) In that case, the EIR described the role of the Air Pollution Control District and its RAQS, explaining that because the project there would result in greater density, it would be “inconsistent with the RAQS . . . until [it and the State Implementation Plan] were updated.” (Id. at p. 603.) The “proposed mitigation required the Port and City to request that the Air [Pollution Control] District amend growth assumptions to incorporate the Project prior to the next triennial review.” (Ibid.) “The Port’s Coastal consistency analysis found that the Project would be inconsistent with the RAQS and SIP until they were revised in the next review.” (Ibid.) In part based on the presumption that an agency carries out its official obligation absent contrary evidence (Evid. Code, § 664), we upheld the Commission’s finding: “As reflected in the EIR and Port [District] analysis, there was a plan to ensure air quality consistent with the Air [Pollution Control] District’s existing review obligations, notwithstanding questions about when it would occur. The [Coastal] Commission could reasonably find that the Air [Pollution Control] District would comply with its duties and account for Project impacts in its next review cycle, thus minimizing any substantial adverse environmental impact.” (San Diego Navy, at p. 603.) We rejected the challenge that the Coastal Commission “approve[d] polluting development and uses just because another regulatory agency has jurisdiction over pollution,” stating the Coastal Commission “neither allowed polluting development, nor let the Air [Pollution Control] District decide whether to do so. Rather, it determined that the Air [Pollution Control] District’s review process would account for emissions increases from the Project.” (Ibid.) The same reasoning applies here, where the Project’s inconsistency with the RAQS planning document—its addition of dwelling units beyond the

required infrastructure improvements and the number and length of car trips, while increasing community livability and preserving open space. As to land use, the EIR pointed out additionally the Project has a variety of housing densities and levels of affordability; it would connect the Harmony Grove Village commercial area with the Project’s residential areas, park and commercial uses so as to contribute to the pursuit of healthy lifestyle choices (walking and biking) promoted by the regional plan; it would cluster development in portions of the site to preserve a large area of permanent open space; and it would enhance water resources through enhancements to Escondido creek. The EIR stated the Project would not be in conflict with San Diego Forward’s objectives, and potential impacts associated with the regional plan and policies would be less than significant. It stated “[t]he Project could be included in the next update of both the Sustainable Communities Strategy and the [regional transportation plan] as contained in San Diego Forward.” In responses to comments related to the Project’s increased density, County cited and incorporated by reference a San Diego Regional Chamber of Commerce website containing housing information showing it was only projected to issue building permits for 26 percent of the over 22,000 units allocated to it, and thus was behind in projected housing. It explained that the issue was where the housing would be located, and that the analysis of the Project’s efforts to reduce vehicle emissions through design, location and minimization of off-site vehicle trips complied with County’s efforts to reduce sprawl and associated emissions. County stated the Project’s exclusion from the forecasted land use development patterns contained in the 2050 regional transportation plan was not dispositive of the Project’s consistency with Senate Bill No. 375, because sustainable communities strategies do not control or regulate land use. It

(1998) 62 Cal.App.4th 1332, 1341 (FUTURE).) “ ‘[G]eneral and specific plans attempt to balance a range of competing interests. It follows that it is nearly, if not absolutely, impossible for a project to be in perfect conformity with each and every policy set forth in the applicable plan . . . . It is enough that the proposed project will be compatible with the objectives, policies, general land uses and programs specified in the applicable plan.’ ” (Holden, at p. 412.) A project will nevertheless be “inconsistent if it conflicts with a general plan policy that is fundamental, mandatory, and clear.” (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782; see also FUTURE, supra, 62 Cal.App.4th at p. 1338.) “ ‘[T]he nature of the policy and the nature of the inconsistency are critical factors to consider’ ” because “general consistencies with plan polices cannot overcome ‘specific, mandatory and fundamental inconsistencies’ with plan policies.” (Clover Valley Foundation v. City of Rocklin, supra, 197 Cal.App.4th at p. 238; Spring Valley Lake Assn. v. City of Victorville, supra, 248 Cal.App.4th at p. 101; FUTURE, at p. 1341.) In such cases, a contrary consistency finding will be unsupported by substantial evidence. (See San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498, 518.) A public agency’s determination that a development approval is consistent with its general plan is “fundamentally adjudicatory.” (Orange Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, 155.) “In such circumstances, a consistency determination is entitled to deference as an extension of a planning agency’s ‘ “unique competence to interpret [its] policies when applying them in its adjudicatory capacity.” ’ [Citation.] Reviewing courts must defer to a procedurally proper consistency finding unless no reasonable person could have reached the same conclusion.” (Ibid.; see Holden v. City of San Diego, supra, 43 Cal.App.5th at p. 412.)

clear, but one of many policies that must be balanced together with one another. It points out the policy “refers to a Project’s ‘component’ but does not specify a number of units or price level.” According to appellant, “[t]he Project contains a naturally affordable component: smaller units as part of a range of housing sizes.” It points to County staff’s assertion that “ ‘[i]n terms of housing affordability, multi-family units as well as smaller lots and house sizes tend to be more affordable’ ” and explains the project will have a variety of sizes and lots, including a 1,462 square foot lot with 800 square feet of living space. Appellant argues this satisfies the General Plan and its housing element. Additionally, appellant maintains that placing an affordable housing condition on the Project without an inclusionary housing ordinance would have required County to impose a specific condition on a subdivision map, which was “not legally permissible” as both unconstitutional and in violation of the Subdivision Map Act. As we have stated, we give “great deference” to this finding of consistency; we simply decide “ ‘ “whether the . . . officials considered the applicable policies and the extent to which the proposed project conforms with those policies.” ’ ” (Holden v. City of San Diego, supra, 43 Cal.App.5th at p. 412.) We may reverse the finding only if it is based on evidence from which no reasonable person could have reached the same conclusion. (Ibid.) However, we conclude that County unreasonably found that the Project, which it acknowledged did not include any affordable housing within the meaning of the General Plan, furthered the General Plan’s vision, policies and objectives of providing affordable housing choices in villages (villages “that will provide affordable housing choices,” italics added). This is particularly evident when policy H-1.9 of the General Plan requires developers seeking a general plan amendment, as appellant is here, to

novo’ ”].) The position was unavailing in view of the primacy of the General Plan—the adoption of which is a legislative act—on land use and development. (See Orange Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, 152-153; DeVita v. County of Napa (1995) 9 Cal.4th 763, 773; Molloy v. Vu (2019) 42 Cal.App.5th 746, 758.) The general plan is the “ ‘ “constitution” for future development’ ” within a city or county “located at the top of ‘the hierarchy of local government law regulating land use.’ ” (DeVita, at p. 773; Carson Harbor Village, Ltd. v. City of Carson (2015) 239 Cal.App.4th 56, 62 [general plan is the basic charter governing the direction of future land use within a locality].) Ordinances are subsidiary enactments that must be consistent with the general plan or else be invalid. (Orange Citizens, at p. 153; Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 541 [“The general plan is the charter to which the [zoning and development code] must conform”; “The tail [the planning and zoning law] does not wag the dog [the general plan]”]; Denham, LLC v. City of Richmond (2019) 41 Cal.App.5th 340, 353.) Appellant asserts an affordable housing component for this Project would be legally impermissible in the absence of an ordinance because “County would have had to craft a specific condition for this Project based on how the Project would create a problem whose solution was such a condition,” rendering the condition unconstitutional. For this proposition, appellant cites California Building Industry Assn. v. City of San Jose, supra, 61 Cal.4th at pages 470-471, where the court rejected the building industry’s argument that San Remo Hotel L.P. v. City And County Of San Francisco (2002) 27 Cal.4th 643 held that inclusionary housing conditions would be valid only if they “ ‘bear a reasonable relationship, in both intended use and amount, to the deleterious public impact of the development.’ ” (California Building

Elfin Forest Harmony Grove Town Council v. County of San Diego CA4/1

AI Brief

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

COUNTY OF SAN DIEGO,

RCS-HARMONY PARTNERS, LLC,

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AI Brief