In a decision filed May 25, and belatedly ordered published June 15, 2016, the Fourth District Court of Appeal affirmed and reversed in part a judgment of the San Bernardino County Superior Court.  It affirmed the judgment to the extent it held the Wal-Mart Tamarisk Marketplace Project (Project) EIR inadequately analyzed the Project’s GHG emissions and that the Project was inconsistent with the City of Victorville’s (City) General Plan; it reversed to the extent the judgment failed to also find that City violated CEQA by not recirculating the EIR and violated the Subdivision Map Act (Map Act) by failing to make all findings required by Government Code § 66474.  (Spring Valley Lake Association v. City of Victorville (Wal-Mart Stores, Inc., Real Party in Interest) (4th Dist., Div. 1) ___ Cal.App.4th ___, 2016 WL 3098915.)

The Project And Lawsuit

The Project proposed 214,596 square feet of commercial retail uses, including a 184,946 square-foot Wal-Mart store, on a vacant and undeveloped 23.72-acre tract of land.  Project approvals included a general plan amendment, rezoning, site plan, conditional use permit, and parcel map.  The Association challenged the approved Project with a six-cause of action Petition and Complaint, alleging CEQA, Map Act and Planning and Zoning Law violations.

The Trial Court’s Judgment, Wal-Mart’s Appeal, And The Association’s Cross-Appeal

The trial court granted the Association’s Petition in part.  It found the EIR failed to adequately analyze the Project’s GHG emissions and its inconsistency with a general plan requirement to generate electricity on-site to the maximum extent feasible, and that there was insufficient evidence to support a finding that the Project’s parcel map and zone change were consistent with that general plan requirement.  It denied the petition’s claims that the EIR was required to be recirculated due to City’s addition of significant new information, and that City’s parcel map approval was invalid for failure to make all findings required by Government Code § 66474.  It directed all Project approvals be set aside and that City take appropriate action to comply with CEQA and the Planning and Zoning Law.

Wal-Mart appealed the portions of the judgment against it, and the Association cross-appealed those portions in Wal-Mart’s favor.

The Court Of Appeal’s Decision

The Court of Appeal’s 25-page opinion rejected all the claims raised by Wal-Mart’s appeal, but found merit in several of the Association’s cross-appeal arguments.  Key points include:

• The general plan is the land use “constitution” with which virtually any local land use decision – including zoning and subdivision map approvals – must be consistent. (Citing Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 570; Gov. Code, § 65860(a) [zoning must be consistent with general plan]; Gov. Code, §§ 66473.5, 66474(a), (b) [tentative subdivision and parcel maps must be consistent with general plan].)  Additionally, an EIR must discuss any inconsistencies between the project and general plan.  (CEQA Guidelines, § 15125(d).)
• City’s general plan Policy 7.1.1 supports development of solar, hybrid, wind, and other alternative energy generation; Implementation Measure (IM) 7.1.1.4 requires all new commercial or industrial development to generate electricity on-site to the maximum extent feasible. The City’s Project approvals did not require Wal-Mart to generate any electricity on-site, effectively finding that it was not feasible to any extent, but this conclusion was based on an EIR discussion that focused only on the cost-effectiveness of solar power generation, did not analyze all relevant factors, did not analyze the feasibility of other on-site power generation alternatives (such as wind), did not discuss the non-Wal-Mart portion of the Project, and did “not provide facts, reasonable assumptions, or expert opinion amounting to substantial evidence to support a conclusion solar power generation or other alternatives for on-site electricity generation are completely infeasible.”  Accordingly, even under the applicable standard of review that defers to an agency’s factual general plan consistency finding “unless no reasonable person could have reached the same conclusion on the evidence before it” (quoting California Native Plant Society v. City of Rancho Cordova (2009) 472 Cal.App.4th 603, 637), the Court found substantial evidence did not support the finding here.
• Despite what some might perceive to be an ambiguous term – “feasible” – giving the City some flexibility in interpretation, the Court found the general plan mandate to be clear, specific and fundamental – and to have teeth. Per the Court:  “Despite Wal-Mart’s contrary assertion, IM 7.1.1.4 is specific, mandatory and fundamental.  It unequivocally requires all new commercial or industrial projects to generate electricity on-site to the maximum extent feasible.  While it is conceivable there may be projects for which the maximum extent feasible equates to completely infeasible, there must still be evidence to support this determination ….  [S]uch evidence is wholly lacking here ….”
• In affirming the trial court’s finding that the EIR’s GHG analysis and findings were inadequate, the Court focused on the linchpin of the City’s conclusions in this regard, which was that the Project would meet a general plan requirement (Policy 7.2.1, IM 7.2.1.5) that all new construction be 15% more efficient than 2008 Title 24 standards. Substantial evidence did not support this finding, however, despite a discussion added to the EIR after circulation stating the Project would comply.  The EIR was inconsistent throughout, stating in one place that the Project would be 14% more efficient, and in others that it would be 10% more efficient than the 2008 Title 24 benchmark, while the technical reports it relied on supported only the 10% figure.  Due to these inconsistencies, the Court concluded that no substantial record evidence supported the finding that the Project would not have significant air quality/GHG emissions impacts.
• In partially granting the Association’s cross-appeal, the Court held City’s parcel map approval findings failed to comply with Government Code § 66474. That Map Act statute provides the “legislative body … shall deny approval of a tentative map … if it makes any [of seven specified] … findings[,]” including that the proposed map, or the subdivision’s design or improvement, are not consistent with the general or specific plans; that the site is not physically suitable for the type or density of proposed development; or that the subdivision’s design or proposed improvements are likely to cause substantial environmental damage or serious public health problems, or conflict with public easements.  Facially, the statute does not explicitly and affirmatively require findings on these various subjects, just that if a legislative body does make any such findings it must deny approval of the map.  By contrast, section 66473.5 explicitly requires an affirmative finding of general and specific plan consistency by prohibiting map approval without such a finding.
• Rejecting Wal-Mart’s facially plausible assertion that Government Code § 66474 applies only when an agency disapproves a map, and relying on a 1975 Attorney General Opinion it held persuasive and entitled to great weight, as well as one 1989 Court of Appeal case and two secondary sources, the Court held “the City was required to affirmatively address all of the matters covered by Government Code section 66474 before approving the parcel map.” In other words, although the statute as phrased sets forth a list of findings that if made require map disapproval, it nonetheless actually requires an agency to affirmatively make the converse of all such findings to validly support map approval.
• Recirculation of the EIR should have been required because the City added “significant new information” in the analyses of two impact areas after the Draft EIR was circulated. New information is “significant” under CEQA if an EIR is changed so as to deprive the public of a meaningful opportunity to comment on a substantial adverse project impact or a feasible way to mitigate or avoid the same.  (See, Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1129; Pub. Resources Code, § 21092; CEQA Guidelines, § 15088.5(a).)  An agency’s determination that new information is not so “significant” as to require circulation is upheld if supported by any substantial evidence.  (See, Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 447.)
• Here, substantial evidence supported City’s determination not to recirculate based on post-circulation revisions to the EIR’s traffic and biological resources analyses. The traffic analysis revisions merely clarified how the City’s decision to delay a nearby road realignment would impact LOS at affected intersections, none of which would drop to a deficient level.  Likewise, changes in the biological resources analysis to update the size of potentially affected streambed area and add a number of additional special-status plant species in the required spring surveys did not change the nature of potential impacts, their likelihood of occurrence, or required mitigation.
• City’s changes to the EIR’s air quality and hydrology/water quality impacts analyses were a different story, however, and these required EIR recirculation. Because (as previously discussed) substantial evidence did not support a finding of Project compliance with general plan energy efficiency standards used as the threshold of significance – information omitted from the Draft EIR – the public had no meaningful opportunity to comment on the Project’s significant air quality/GHG impacts.  Likewise, City’s complete redesign of the Project’s stormwater management plan – “replac[ing] 26 pages of the EIR’s text with 350 pages of technical reports and bald assurance the new design is an environmentally superior alternative” – were changes of a “breadth, complexity, and purpose [that] … deprived the public of a meaningful opportunity to comment on an ostensibly feasible way to mitigate a substantial adverse environmental impact[,]” thus constituting “significant new information requiring recirculation.”

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A project that is inconsistent with the governing general plan cannot be approved.  This case illustrates that, while highly deferential, a court’s general plan consistency determination review can still have teeth, and local agencies need to take seriously the need for substantial record evidence to support compliance with specific, mandatory and fundamental general plan provisions.  Moreover, sloppy EIRs with materially conflicting quantitative energy savings figures (and deficient technical report support) are not a recipe to support a finding that a mandatory numerical threshold of significance in this area has been met.  Perhaps the most interesting part of the Court’s opinion is its holding that Government Code § 66474, despite its seemingly contrary wording, imposes mandatory, affirmative findings requirements for approval of a subdivision map – a prudent practice already followed by cautious agencies and Map Act practitioners, and one now squarely held to be mandatory.