American Planning Association California Chapter Conference October 22 2012 The Panel Jim Harnish JD Principal Mintier H arnish Al Herson JD FAICP Of Counsel Sohagi Law Group Jeff Goldman AICP ID: 1044037
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1. The General Plan and General Plan EIR: Friends or Foes?American Planning Association California Chapter ConferenceOctober 22, 2012
2. The PanelJim Harnish, JDPrincipal, Mintier HarnishAl Herson, JD, FAICPOf Counsel, Sohagi Law GroupJeff Goldman, AICPPrincipal, AECOM2
3. Panel TopicsHave GP EIRs become the tail wagging the dog?What are the legal requirements and issues for GP EIRs?How can GP and CEQA requirements best be integrated?3
4. Legal Requirements and Issues for General Plan EIRsAl Herson, JD, FAICPOf Counsel, Sohagi Law Group
5. Presentation OutlineRules for Program EIRs and tieringKey Legal IssuesLevel of detailProject descriptionBaselineToo many significant unavoidable impacts?Range of alternativesMitigation measuresLate-breaking news: impacts on public service levels5
6. GP Program EIRsGP EIRs are typically Program EIRsGP EIRs are typically stand-alone documentBut GP Guidelines allow integrated GP/EIRProgram EIRs allow the lead agency to consider cumulative impacts, broad policy alternatives, and programmatic mitigationGP Program EIRs are typically first-tier CEQA documentsSecond-tier CEQA documents can focus on project-specific impacts of plans, programs, or projects implementing the GP6
7. Use of GP EIR for Subsequent ActivitiesCertain programs or projects may be “within the scope” of the GP EIRIf within the scope, no new CEQA review requiredGP EIR must describe and evaluate subsequent activity in sufficient detailSubsequent activity must incorporate GP EIR mitigation measureCenter for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App. 4th 1156: details of oak woodland management plan were not evaluated in GP Program EIR, so second-tier CEQA review required7
8. Subsequent Activities, cont’dSecond tier CEQA review required for projects not “within the scope” of the GP EIR. Examples:Climate Action PlansZoning Ordinance AmendmentsCommunity and Specific PlansInfrastructure and development projects8
9. Second-Tier CEQA ReviewsSecond-tier projects must be consistent with General Plan, and not trigger Supplemental or Subsequent GP EIR Use Initial Study to determine scope of second-tier EIR: which impacts were not “adequately addressed” in GP EIR?Adequately addressed=mitigated through GP EIR or project-specific mitigation if GP EIR is sufficiently detailed Second-tier EIR must expressly state it is tiered, and incorporate pertinent information and mitigation measures from Program EIR (Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412)9
10. Legal Issue 1: EIR Level of DetailGP Program EIRs need not be as detailed as project-specific EIRsE.g., GP EIR need not evaluate impacts to local neighborhood streetsAnalysis of project-specific impacts and mitigation measures can be deferred to second-tier documents when first-tier approval does not determine these impactsEven if some details about second tier projects are available when Program EIR is prepared (In re Bay Delta (2008) 43 Cal.4th 1143)10
11. Level of Detail, cont’dBut, lead agency may not defer analysis of impacts that are “fundamentally important” to first-tier decisionE.g., analysis of community-wide water supply impacts cannot be deferred (Vineyard Area Citizens)Also: more detail in GP EIR can reduce need for second-tier CEQA reviews11
12. Legal Issue 2: Project DescriptionCraft project objectives to guide reasonable range of alternativesImplementation time frame: generally 20-30 years, but consider “reasonably foreseeable buildout” beyond thenAnalyze maximum theoretical buildout? Pros and consConsider policies and programs that:Prevent significant environmental impacts at the program levelSet significance thresholds for second-tier projectsFor limited scope GP amendments that, impact analysis can focus on impacts of changes12
13. Legal Issue 3: BaselineBaseline for all CEQA documents is normally existing conditions when NOP publishedThe existing General Plan is NOT the baseline (Guidelines § 15125(e))Existing General Plan=no project alternativeUse a future baseline? Case law inconsistent.If future “without GP” baseline is used, should be reasonably foreseeable and not hypotheticalShould also compare GP impacts to a second existing conditions baseline13
14. Baseline, cont’dWhat happens if several years pass between NOP and Draft EIR publication? No legal obligation to update baselinePractical advantages to updating baseline: reduces GP impacts and facilitates second-tier CEQA reviews14
15. Legal Issue 4: Too Many Significant Unavoidable Impacts?More a policy than a legal problemDecisionmakers may have concerns about overriding numerous impactsSpotlights adequacy of alternatives analysisPossible solutions:GP policies and programs that avoid significant impactsSignificance thresholds tailored to GPs, not Appendix GEffective mitigation measures15
16. Legal Issue 4: Buildout AnalysisPossible growth-inducement issue To be cautious, EIR should analyze impacts of maximum theoretical buildoutInclude either in each impact section or as stand-alone chapterAre impacts remote and speculative?Is mitigation feasible? 16
17. Legal Issue 5: Range of AlternativesSince alternatives must meet most basic project objectives, important to craft objectives carefullyAlternatives need not meet every project objectiveWatsonville Pilots Assn. v. City of Watsonville, 103 Cal.App.4th 1059: EIR must evaluate reduced growth alternativeBut they must meet “fundamental” project objectivesIn re Bay-Delta: CALFED water alternatives had to meet all four fundamental, inter-related project objectives17
18. Alternatives, cont’dEIR should include section describing alternatives considered but rejected, and explain whyFactors: inability to meet most basic project objectives, infeasibility, inability to substantially reduce significant impactsAlternatives need not reduce every significant impactBut EIR need not evaluate alternatives that do not reduce any significant impact Exception: no project alternativeFindings may reject alternatives based on “policy infeasibility”CNPS v. City of Santa Cruz (2009) 177 Cal.App. 4th 95718
19. Legal Issue 6: Mitigation MeasuresAlternative GP EIR mitigation approaches:“Self-mitigating” GP policies and implementation plans included in project description; try to include performance standardsProposed revisions to GP policies and implementation plansDeferred mitigation through implementation plans to be adopted later (must meet CEQA requirements for deferred mitigation )Other EIR programmatic mitigation19
20. Mitigation Measures, cont’dGP EIR programmatic mitigation can be general and defer details to second-tier CEQA reviewsLead agency must commit to mitigation and describe alternative approaches to be consideredIf feasible, include performance standardsExplain why it was not practical to develop detailed mitigation measures at time of GP EIR preparationFor cumulative impacts, mitigation responsibility can be assigned to other agencies, but lead agency must mitigate its “fair share” if feasibleMinimize weasel words: consider, study, strive, when appropriate, when feasible (applies to GP policies too)20
21. Late Breaking News!Impacts on public service levels per se are not CEQA physical environmental impactsCity of Hayward v. Board of Trustees (2012) 207 Cal. App. 4th 446Delayed emergency response times caused by plan are not physical environmental impactsCEQA impacts limited to construction of reasonably foreseeable facilities proposed to restore service levelsConsistent with case law holding school overcrowding per se is not physical environmental impactGP Program EIR can still voluntarily evaluate impacts on public services 21
22. The General Plan and EIR:Friends or Foes?California APA 2012 Conference: Prepare • Plan • Preserve October 22, 2012
23. Unlock the Power of the General PlanThrough policies and implementation measures: Unlock the General Plan GenieSet significance thresholdsMitigate through performance standardsReduce the number of dreaded “significant and unavoidable” conclusionsEstablish the framework and contents of implementing plans and programs:Climate Action Plans for GHG reductionPerformance zoning Environmental development standardsNew powers of the General Plan: infill, TODs, Sustainable Communities Strategies
24. Unlock the Power of the General PlanAnticipate and address environmental impacts through policies and programs for:My General PlanUp, up, and away!Complete streetsEnvironmental performance standardsCommunity growth boundariesLand use program for mixed-use centersInfrastructure planning / efficiency Specific plan performance criteriaClimate action / adaptation guidance + GHG targetAnticipate implementing plans CAPs, updated codes, infill plans, etc.
25. Examples of ImpactsGeneral Plan policies, implementation programs, and performance standards can mitigate for:Traffic LOSNoise Air qualityAesthetics / visualPublic services / facilities / utilitiesParks and recreationEven with strong General Plan policies and standards, project specific impacts must still be addressed
26. Suisun CityBurbankRiverbankCase StudiesCitrus HeightsYuba County
27. Citrus Heights General Plan
28. Citrus Heights General PlanCreate complete streets, improve pedestrian and bicycle mobilityPromote infill; transform business districts to mixed-use districtsIncrease energy efficiency + renewable energy, reduce wasteConnect neighborhoods to commercial centersProtect / restore urban streams and natural habitatsAdopt natural stormwater management
29. Citrus Heights General PlanGeneral Plan + Greenhouse Gas Reduction Plan prepared concurrentlyReduce GHG 10 to 15% below 2005 levels by 2020Qualified Greenhouse Gas Reduction Plan = CEQA streamliningFocus on Citrus Heights as built-out:Complete streets / multi-modal connectivityBuilding energy efficiencyRemaining infill + mixed-use opportunities
30. Yuba County General Plan
31. Yuba County General PlanValley Growth and foothills community boundaries:Define extent of ultimate horizontal growthProtect natural resource lands / working landscapesDirect urban land uses to existing and planned transportation / infrastructure corridorsEnsure efficient provision of infrastructure and servicesUrban development is focused around existing communities and transportation corridors
32. Yuba County General PlanLand use / transportation policies seek to:Improve air quality / reduce GHG emissionsGuide development of compact communities with mixed use centers; jobs closer to housingTie development to infrastructure; avoid leapfrog development; hold land in reserve until neededImplementing documents with specific content for mitigation:Climate Action PlanUnified / form-based development codeInfrastructure planning along SR 65 / 70 corridorEast Linda Reinvestment Plan
33. Burbank General Plan
34. EIR covers concurrent Greenhouse Gas Reduction PlanAddresses cumulative effects of GHG emissionsComplete streets strategy and enhanced transit connections (Metrolink, Amtrak)Addresses traffic impacts on existing neighborhoods from infill developmentConnects neighborhoods to commercial and employment centersCreates a comprehensive trails networkPreserves Verdugo Mountains and associated creekways as natural open space Burbank General Plan
35. Create complete streets, improve pedestrian and bicycle mobilityPromote infill; transform business districts to mixed-use districtsIncrease energy efficiency + renewable energy, reduce wasteConnect neighborhoods to commercial centersProtect / restore urban streams and natural habitatsAdopt natural stormwater managementBurbank General Plan
36. Burbank General Plan - GGRPTable 4-1Greenhouse Gas Reduction Plan Measures and Reductions for 2020 and 2035Action Areas and Measures2020(MT CO2e/yr)2035(MT CO2e/yr)Buildings and Energy14,35828,794E-1.1Energy Efficiency in New Construction7022,806E-1.2Energy Efficiency Retrofits1,9325,992E-1.3ENERGY STAR Appliances7351,601E-1.4Smart Grid Integration1,0272,382E-1.5Cool Roofs261852E-1.6BWP Energy Conservation Programs2,2912,291E-1.7Building Shade Trees6712,548E-2.1Renewable Energy Requirements3,4225,583E-2.2Solar Photovoltaic Systems3,3174,739Transportation17,23323,550T-1.1Pedestrian Enhancements191381T-1.4Bicycle Infrastructure Expansion3551,080T-2.1Transportation Management Organization Expansion16,68722,089
37. Burbank General Plan - GGRPTable 4-1Greenhouse Gas Reduction Plan Measures and Reductions for 2020 and 2035Action Areas and Measures2020(MT CO2e/yr)2035(MT CO2e/yr)Water Conservation198198W-1.1Water Conservation Programs2020W-1.2Recycled Water Use Master Plan178178Waste Reduction13,88824,806SW-1.1Food Scrap and Compostable Paper Diversion Ordinance2,0326,773SW-1.2Yard Waste Diversion Ordinance244813SW-1.3Lumber Diversion Ordinance1,0123,372SW-2.1Enhanced Methane Recovery10,60013,848Subtotal GGRP Measures45,67777,348Subtotal Statewide Reductions368,670494,944TOTAL REDUCTIONS414,347572,292Emissions with Implementation of GGRP Measures and Statewide Reductions1,445,5521,555,208Percent Reduction from 2010 Jurisdictional Emission Levels-14.1%-7.6%Service Population220,932246,020Emissions per Service Population6.56.3
38. Riverbank General PlanMitigation featuresAgricultural resource conservation + reservesGreen buffers along riverMixed use centers with higher density housingCorridor and downtown mixed usePerformance standards + design guidance for future specific plansAnticipated a downtown specific plan (focused EIR was prepared)
39. Riverbank General PlanGeneral Plan anticipated downtown specific plan and General Plan EIR addressed many impacts of the planDesign guidance ensures compatibility and addresses impacts of infill development
40. Suisun City
41. Suisun City1992 General Plan included integrated General Plan + Environmental Assessment per CEQA Guidelines (§15166) 2035 General Plan continues approach – a General Plan volume will substitute for a separate EIR
42. Suisun CityPotential effects addressed in the General Plan:Induced population growth affecting public service capacity and jurisdictional service patternsTraffic impactsImpacts on Suisun Marsh (and potential consistency with Suisun Marsh Protection Plan)Air quality impactsNoise impactsEnvironmental setting references relevant General Plan background sectionsAlternatives discussed in this chapterInitial Study attached as an appendix
43. Future General Plan Powers?Potential for streamlining under SB 375:Mixed-use projectTransit Priority projectSustainable Communities compliant projectGeneral Plan can:Map these areasDescribe baseline conditionsInclude performance standards to address impacts from development in these areas
44. The General Plan and EIR:Friends or Foes?California APA 2012 Conference: Prepare • Plan • Preserve October 22, 2012
45. The CEQA Tail is Wagging the General Plan DogJim Harnish, JDPrincipal, Mintier Harnish
46. Let’s examine this statement… The general plan is the planning Alpha Dog:46
47. ….so how come the fancy CEQA poodle gets the last word?47
48. We need to make some changes before the poodle turns our Alpha Dog…48
49. into something very different…49
50. So, what’s the problem? Here are my top 10 reasons why I think the CEQA tail is wagging the general plan dog50
51. Reason #10: CEQA Attorneys Frequently Disrupt the Planning Process51
52. Reason #9:The EIR Second-Guesses the Elected Officials’Policy-Setting Prerogative 52
53. Reason #8: The EIR is at Best Minimally Useful to Decision-Makers53
54. Reason #7: General Plan EIRs are Always Bigger Than the Plan They Analyze.54
55. Reason #6: EIRs Make the General Plan More Vulnerable to Legal Attack55
56. 56
57. Reason #5 : EIR Baseline vs. the Timing of Existing Conditions Data 2035 or57
58. Reason #4: Full Buildout vs. Plan Horizon Year Analysis 58
59. 59
60. Reason #3: Duplicative Alternatives Analysis 60
61. Reason #2: Cost 61
62. Reason #1: The General Plan Update Goes Dark While the EIR is Being Prepared62
63. The Tail is Wagging the Dog63
64. O.K, then, so what’s my solution? There are actually two solutions64
65. The General Plan is not a project as defined by CEQA 65
66. What is the overarching purpose of CEQA?66
67. What is a project? “An activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: An activity which is directly undertaken by any public agency.An activity by a person which is supported by grants, etc…An activity that involves the issuance to a person of a lease, etc…”67
68. General plans have historically been considered projects because they are: An activity - sureMay cause a direct physical change – unlikely, unless you count the trees cut down for printing the general plan EIROr, may cause a reasonably foreseeable indirect physical change – let’s talk about this68
69. Foreseeable or Speculative Impacts? Is an indirect physical change resulting from adoption of general plan goals, policies, and programs reasonably foreseeable or speculative? 69
70. And how is “speculation” defined? “Reasoning based on inconclusive evidence; conjecture or supposition.”70
71. And my other solution is… 71
72. ExemptGeneral Plansfrom CEQA72
73. Functional equivalent (certified regulatory program) --Interdisciplinary approach integrating the use of natural and social sciences--Includes environmental protection among its principal purposes--Contains authority for adoption of rules and regulations--Program rules and regulations must:Require compliance with CEQAInclude Agency consultationRespond to public commentsPublic notice of decisionDecision be available for review by public agencies73
74. To summarize… -The general plan is unique in the planning world -The general plan process is diminished by CEQA -We need to make some changes…74
75. And then we can have our Alpha Dog back…75