Judge: Maurice A. Leiter, Case: 22STCP03038, Date: 2023-09-29 Tentative Ruling

Case Number: 22STCP03038    Hearing Date: September 29, 2023    Dept: 54

Trial Date: September 29, 2023

Department 54, Judge Maurice Leiter

Petition for Writ of Mandate, and Declaratory and Injunctive Relief

Moving Party: Petitioner Save Our Rural Town  

Responding Parties: Respondents County of Los Angeles and Los Angeles County Board of Supervisors

T/R:    PETITIONER’S PETITION FOR WRIT OF MANDATE IS GRANTED IN PART. RESPONDENT COUNTY IS ORDERED TO COMPLY WITH GOVERNMENT CODE SECTION 65302(g)(5). THE PETITION FOR WRIT OF MANDATE IS OTHERWISE DENIED.

           PETITIONER’S REQUEST FOR DECLARATORY RELIEF IS GRANTED WITH RESPECT TO GOVERNMENT CODE SECTION 65302(g)(5). THE REQUEST FOR DECLARTORY RELIEF IS OTHERWISE DENIED.

           PETITIONER’S REQUEST FOR INJUNCTIVE RELIEF IS DENIED.

PETITIONER TO NOTICE.

           The Court considers the Opening Brief, Opposition Brief, and Reply Brief.

I.     STATEMENT OF FACTS

A.    Project

On December 15, 2021, the Los Angeles County Regional Planning Commission conducted a public hearing to update the Safety Plan Element of its General Plan. (AR 4208.) On July 12, 2022, Respondents County of Los Angeles and Los Angeles County Board of Supervisors (collectively, “Respondents” or “County”) adopted amendments to the General Plan (the “Project”) and certified a negative declaration pursuant to the California Environmental Quality Act (“CEQA”). (AR 18-20.)

The Project includes new and revised goals and policies in the Safety Element to address climate adaptation. The Project incorporated the “OurCounty Sustainability Plan” into the General Plan, which is an “ongoing” plan that includes programs such as an urban forest management plan, a heat island reduction plan, and a resilient integrated water system. (AR 73.) The Project also included the adoption of Policy S 4.1 which imposes limitations on new subdivisions in Very High Fire Hazard Severity Zones (“VHFHSZs”). (AR 12.) The Safety Element includes a table to comply with Senate Bill 99, which requires identification of residential developments in hazard areas with limited evacuation routes. (AR 8-9.) 

The County prepared an initial study to evaluate the environmental impacts of the Project. (AR 114-197.) The County concluded that the Project would not have a significant effect on the environment and that a negative declaration should be prepared. (AR 124.) On December 15, 2021, the Regional Planning Commission conducted a public hearing on the Project and voted 5-0 to recommend approval to the Board of Supervisors. (AR 4208.) The Board held a public hearing, where it indicated its intention to adopt the negative declaration and approve the Project. (AR 7, 11-12.) On July 12, 2022, the Board adopted the negative declaration and approved the Project. (AR 20.)

B.    Previous CEQA Challenge

Petitioner previously challenged the County’s 2019 adoption of the “OurCounty” Sustainability Plan under CEQA. (RJN Ex. 1.) Petitioner argued that the County violated CEQA because it failed to prepare an EIR to address the potential environmental effects of the OurCounty Sustainability Plan. The trial court found that the Sustainability Plan was not a project for purposes of CEQA. (RJN Ex. 1, p. 21, 25.) The Court of Appeal affirmed, also finding that the Plan was not a project for purposes of CEQA. (Save Our Rural Town v. County of Los Angeles (Cal. Ct. App., Jan. 26, 2022, No. B309992) 2022 WL 224163, *1.)

II.     THE PETITION AT ISSUE HERE

On June 9, 2023, Save Our Rural Town (“Petitioner”) filed against Respondents a Verified Petition and Complaint for Writ of Mandate.  The Petition asserts four causes of action, for (1) Writ of Mandate under Code of Civil Procedure § 1085 and Public Resources Code §§ 21168.5 and 21168.9; (2) Writ of Administrative Mandamus under Code of Civil Procedure § 1094.5 and Public Resources Code § 21168 and 21168.9; (3) Declaratory Relief; and (4) Injunctive Relief.

Petitioner requests: (1) issuance of a writ that: (a) commands the County to set aside and vacate the adoption of the General Plan update and other related approvals, and immediately cease all activities stemming from the General Plan update, (b) commands the County to prepare and certify an EIR for the General Plan update, and (c) retains jurisdiction over this matter until the County successfully completes the return on the writ; (2) granting of declaratory relief that the County violated CEQA, Government Code § 65302(g)(5), and the Map Act; and (3) issuance of a permanent injunction prohibiting and enjoining County from taking action to implement the General Plan update until after the County prepares and certifies an EIR and the return on the writ is discharged.

Petitioner challenges the adoption of the negative declaration under CEQA, arguing that the County failed to analyze the environmental impacts associated with the “OurCounty” Sustainability Plan programs. Petitioner also argues that the adoption of Policy S 4.1, which prohibits new residential subdivisions, serves no legitimate governmental purpose, will cause significant environmental impacts, and violates the Map Act. And Petitioner argues that the Safety Element fails to comply with Government Code § 65302(g)(5) because it fails to identify residential developments in hazard areas that do not have two emergency evacuation routes.

III.     REQUEST FOR JUDICIAL NOTICE

Petitioner’s Request for Judicial Notice of (1) the Los Angeles Superior Court’s December 9^th, 2020 order in Save Our Rural Town v. County of Los Angeles, 20STCP00419 and (2) the Senate Rules Committee Office of Senate Floor Analysis for Senate Bill 99 from June 24, 2019 is GRANTED, pursuant to Evidence Code § 452 (c) and (d).

Respondent’s Request for Judicial Notice of the OurCounty Sustainability Plan Annual Progress Report and Annual Priorities Report dated October 31, 2022 is DENIED. Even if this report could be considered judicially noticeable as an official act of the County, it is not relevant to this Court’s determination because it was not included in the certified administrative record and post-dates the Board’s approval of the Project. (See Richardson v. City and County of San Francisco (2013) 214 Cal.App.4th 671, 702 [“As a general rule, a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.”]; Evid. Code § 210.)

IV.     STANDARD OF REVIEW

A party may seek to set aside an agency decision by petitioning for a writ of administrative mandamus (CCP § 1094.5) or traditional mandamus (CCP § 1085).

A.    Administrative Mandamus – CEQA

A petition for administrative mandamus is appropriate when the party seeks review of a “determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with [CEQA].” (Pub. Resources Code § 21168.)

In an action challenging an agency’s decision under CEQA, the trial court reviews the agency’s decision for a prejudicial abuse of discretion. (Pub. Resources Code § 21168.5.) “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (Ibid.; see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.)

When an agency decides to adopt a negative declaration instead of preparing an EIR, the Court reviews under the “fair argument” standard. If the Court finds that there is substantial evidence in the record that the project “may” cause one or more significant environmental effects, the decision to rely on a negative declaration must be overturned. (Guidelines § 15064(a)(1); Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1337, 1348.) “May” means “a reasonable possibility.” (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 309.)

A petitioner challenging a negative declaration bears the burden “to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact.” (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375.) “Substantial evidence” includes “facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts;” substantial evidence does not include “argument, speculation, unsubstantiated opinion or narrative, [or] evidence that is clearly inaccurate or erroneous.” (Pub. Resources Code, §§ 21080(e), 21082.2(c); CEQA Guidelines § 15384.)

Whenever there is substantial evidence supporting a fair argument that a proposed project may have a significant effect on the environment, an EIR is normally required. (Citizens for Responsible and Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1331.) The "fair argument" standard is a low threshold test. It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency's determination. (Ibid.) Review is de novo with a preference for resolving doubts in favor of environmental review. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928.) If substantial evidence exists supporting a fair argument that an EIR is required, the court must set aside the agency's decision as an abuse of discretion for failing to proceed in a manner required by law. (Citizens for Responsible Government, supra, 160 Cal.App.4th at 1332.)

B.    Traditional Mandamus

“[W]here an agency is exercising a quasi-legislative function, judicial review must proceed under ordinary or traditional mandamus.” (Langsam¿v. City of Sausalito¿(1987) 190 Cal.App.3d 871, 879.)¿ “Generally speaking, a¿legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts.” (Strumsky¿v. San Diego County Employees Retirement Assn.¿(1974) 11 Cal.3d 28, 34, fn. 2.)¿ Generally, the petitioner “bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.”  (California Correctional Peace Officers Assn. v. State Personnel Bd.  (1995) 10 Cal.4th 1133, 1154.)¿  

There are two¿essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty.¿ (California¿Ass’n¿for Health Services at Home v. Department of Health Services¿(2007) 148 Cal.App.4th 696, 704.)¿¿¿ 

“Normally, mandate will not lie to control a public agency’s discretion, that is to say, force the exercise of discretion in a particular manner.  However, it will lie to correct abuses of discretion.  In determining whether a public agency has abused its discretion,¿the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency’s action, its determination must be upheld.  A court must ask whether the public agency’s action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.”  (County of Los Angeles v. City of Los Angeles¿(2013) 214 Cal.App.4th 643, 654.)¿¿¿

V.     ANALYSIS

First, Petitioner argues that the County violated CEQA by failing to analyze the environmental impacts associated with the OurCounty Sustainability Plan programs. Second, Petitioner contends that the adoption of Policy S 4.1, which limits new residential subdivisions in VHFHSZ’s, serves no legitimate government purpose, violates CEQA by failing to identify significant environmental impacts, and is preempted by state law. Third, Petitioner claims that the County failed to comply with Government Code § 65302(g)(5) by failing to identify residential developments in hazard areas that do not have two emergency evacuation routes.

A.    OurCounty Sustainability Plan Programs

Petitioner argues that the County violated CEQA by failing to analyze the potential environmental impacts caused by implementing the OurCounty Sustainability Plan programs, particularly the resilient integrated water system program and the heat island reduction program (“OurCounty programs”). Petitioner says that these programs have the potential to cause significant environmental impacts. In response, the County argues that its designation of the Sustainability Plan as a General Plan implementation program is not equivalent to approval of any specific program or action and need not be analyzed under CEQA. The County also contends there is no evidence in the record supporting a fair argument that the implementation of these programs will have a significant environmental impact.

“Before granting any approval of a project subject to CEQA, every lead agency or responsible agency shall consider a final EIR or negative declaration.” (Guidelines § 15004(a).) A project is “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Guidelines § 15378(a).) “A direct physical change in the environment is a physical change in the environment which is caused by and immediately related to the project,” such as “the dust, noise, and traffic of heavy equipment that would result from construction of a sewage treatment plant and possible odors from operation of the plant.” (Guidelines, § 15064(d)(1).) “An indirect physical change in the environment is a physical change in the environment which is not immediately related to the project, but which is caused indirectly by the project,” such as, in the sewage treatment plant example, an increase in air pollution caused by increased population itself attributable to increased sewage treatment capacity. (Guidelines § 15064(d)(2).) Indirect physical changes are not reasonably foreseeable if they are speculative or unlikely to occur. (Guidelines § 15064, subd. (d)(3).)

Where an agency's approval of a project is “an essential step leading to potential environmental impacts,” the activity may be a project subject to environmental review. (Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, 383.) The determination of whether something is a project subject to CEQA is made without considering whether the potential effects will actually occur. (Id. at 381.)

General plans are projects subject to CEQA. (Guidelines § 15378(a)(1).) Government Code § 65400 requires each county to develop and adopt a general plan and make recommendations regarding “reasonable and practical means for implementing the general plan.” (Gov. Code § 65400(a)(1).) General plans “embody fundamental land use decisions that guide the future growth and development of cities and counties,” and zoning ordinances and subdivisions are required to be consistent with general plans. (City of Santa Ana v. City of Garden Grove (1979) 100 Cal.App.3d 521, 532; Gov. Code §§ 66473.5, 65860.) Thus, the legislature has found that general plans do have an ultimate effect upon physical changes in the environment. (City of Santa Ana, supra, 100 Cal.App.3d at 531.)

The Project here is an update to the Safety Element of the General Plan that includes the addition of nine “general plan implementation programs.” (AR 71-74.) One program is the “continued implementation of the OurCounty Sustainability Plan.” (AR 9, 73.) In Petitioner’s previous case, the Court of Appeal concluded that OurCounty is not “akin to a binding, modern “general plan” that governs fundamental land use decisions.” (See Save Our Rural Town v. County of Los Angeles (Cal. Ct. App., Jan. 26, 2022, No. B309992) 2022 WL 224163, *6.) By adopting OurCounty as a General Plan implementation program, it became a “project” subject to CEQA review. (Guidelines § 15378(a)(1).)

But the fact that the OurCounty Sustainability Plan was adopted as part of the General Plan does not mandate that its effects be considered in an EIR or MND. Not all future action related to a proposed project is required to be analyzed under CEQA. (See Laurel Heights Improvement Assn. (Laurel Heights I) v. Regents of the University of California (1988) 47 Cal.3d 376, 395.) An environmental analysis “should be prepared as early as feasible in the planning process to enable environmental considerations to influence project program and design and yet late enough to provide meaningful information for environmental assessment.” (Guidelines § 15004(b).) Environmental review of a project is "premature if the agency action in question occurs too early in the planning process to allow meaningful analysis of potential impacts." (Friends of the Sierra Railroad v. Tuolumne Park and Recreation District (2007) 147 Cal.App.4th 643, 654-55.) CEQA does not “require discussion… of specific future action that is merely contemplated or a gleam in a planner’s eye.” (Laurel Heights I, supra, 47 Cal.3d 376, 398.) An EIR or a negative declaration must include an analysis of the environmental effects of future action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will change the scope or nature of the initial project or its environmental effects. (Id. at 396.)

In Laurel Heights I, the court found that the future expansion of a project was reasonably foreseeable because the draft EIR explained that UCSF would occupy the whole facility at issue and estimated the number of faculty, staff, and students that would occupy the facility. (Laurel Heights I, supra, 47 Cal.3d at 396.) The court concluded it was not unclear whether a parcel of land would be developed or activity would commence. (Ibid.) Evidence in the record showed that the University had made decisions or formulated reasonably definite proposals as to future uses of the building. (Id. at 397.)

In contrast, in Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, a petitioner challenged the adoption of ordinances that extended minor exceptions to zoning site standards and altered certain height, density, and parking requirements for hotels, arguing that the negative declaration was inadequate because it failed to take into consideration the impacts from future developments that would now be permitted. (Id. at 272, 289.) The court noted that when evaluating the potential environmental impact of a project that has growth inducing effects, an agency is not excused from environmental review simply because it is unclear what future developments may take place. (Id. at 292-293.) However, the court found that, although there was some evidence to support the argument that the county adopted the ordinance to possibly stimulate the development of hotels, there was nothing in the record to demonstrate that increased development is reasonably foreseeable, rather than “an optimistic gleam in the [the County’s] eye.” (Id. at 294.) The court also found there was no substantial evidence supporting a fair argument that the ordinance would have a significant impact, aside from “vague arguments that the ordinance will encourage development of higher density hotels.” (Id. at 295.)

Similarly, in Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 559, the court upheld a county’s reliance on a negative declaration for approval of an integrated waste management plan that identified sites for potential landfill development. Opponents of the waste management plan claimed an EIR was needed to analyze the impacts of the potential landfill sites, but the court found nothing in the record to suggest the potential landfill sites would be developed and determined preparation of an EIR to analyze impacts of development at those potential sites would be premature and wholly speculative. (Id. at p. 575.) The court noted that the county did not impermissibly approve a project which envisions future action without future environmental review. (Id. at 577 (citing Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 373.) The siting element at issue specifically stated that the inclusion of a proposed facility does not substitute for any required environmental review. (Id. at 578.)

Berkeley Keep Jets Over the Bay Comm. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344 (Berkeley Keep Jets) also is instructive. There, opponents of an airport development plan claimed the EIR prepared for the plan should have considered the impacts of future airport projects, such as extension of an existing runway. (Id. at 1352-1353.) Even though the EIR identified these future projects, the record was “silent with regard to any meaningful planning, decisionmaking, or any other activity by the Port moving forward with implementation of such long-range plans.” (Id. at 1361.) The court found that the EIR’s references to future projects were “simply statements that at some undefined point in the future, the Port might try to undertake these projects.” (Ibid.) The court rejected petitioner’s challenge, concluding, “[T]he mere fact that a lead agency acknowledges that it contemplates such a long-range goal is not, by itself, sufficient to conclude that it is a ‘reasonably foreseeable consequence of the initial project.’” (Id. at p. 1362, quoting Laurel Heights I, supra, 47 Cal.3d at 396.)

Courts have found that the record must show that potential impacts of future actions are reasonably foreseeable and contemplated by the project to require CEQA analysis. (See City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 409 [the record indicated the existence of potential future development and at least one project already undergoing environmental review]; City of Antioch v. City Council (1986) 187 Cal.App.3d 1325, 1337 [the creation of a sewage line was a catalyst for future development, the future development was foreseeable and the sewage line was expressly created to facilitate future development in the area]; Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144, 154 [the planning department had already determined in a prior initial study that the development of a country club would have a growth-inducing effect]; City of Carmel v. Board of Supervisors (1986) 183 Cal.App.3d 229, 244 [a rezoning of a resort hotel by the city represented a commitment to expanded use of the property and there was evidence in the record that the changes might increase noise pollution, traffic, and population density, in addition to permitting uses that did not presently exist].)

           In Petitioner’s earlier case, the Court of Appeal found that the OurCounty Sustainability Plan was not a project. It stated:

Here, although it is reasonably foreseeable that the goals, strategies, and actions enumerated in OurCounty may in the long run have some impact on the environment, the plan is at this stage merely nascent and its eventual effects highly speculative. For instance, using the action exemplar above, “a comprehensive heat mitigation strategy and implementation plan that addresses cool pavements and roofs, pavement reduction, and urban greening” may take any number of forms and call for numerous activities in different areas of the county, each of which would potentially have a multitude of direct and indirect environmental effects. Without knowing more about the ultimate form heat mitigation and pavement reduction may take, any environmental assessment of this action would be premature. None of the numerous OurCounty strategies and actions SORT highlights is any more definite.” (Save Our Rural Town v. County of Los Angeles (Cal. Ct. App., Jan. 26, 2022, No. B309992) 2022 WL 224163, *6.)

This Court has found nothing in the record that suggests that the effects of the OurCounty programs are any more definite than they were at the time of the Court of Appeal’s decision. The record does not show how, where, or when the implementation of the OurCounty programs will occur. Petitioner argues that there are committees working on the OurCounty programs, but Petitioner’s citations to the record do not show any sufficiently definite implementation proposals. (See AR 2558 [memo stating that “the Urban Heat Island Mitigation Committee will work to secure recourses for incorporating the draft Urban Heat Island Reduction Plan into a comprehensive strategy that implements the program”]; 3907-3908 [discussing refining performance measures in a draft plan and the creation of a future implementation plan “contingent on funding”]; 3910, 3832 [progress reports discussing the future development of a local water supply plan, stating it anticipates releasing a “draft Water Plan for public comment”]; 2517-2531 [powerpoint showing Water Plan development process]; 15512 [progress report stating that the Department of Public Health will work to finalize a heat island mitigation strategy and develop an implementation plan”]; 3769-3777 [draft Water Plan discussing preliminary strategies and actions]. These documents show merely preliminary discussions for the future development of implementation plans. Likewise, Petitioner’s comments in the record about the implementation of these programs are speculative and do not show any County commitment to any definite action. (See AR 3471, 1484, 5141.)

Petitioner cites to the goals of the OurCounty programs. (See AR1710-1712 [increasing the amount of locally sourced water using actions such as cleaning up contaminated aquifers and increasing accessibility to alternative water sources]; AR 1702 [conversion of heat-trapping surfaces to cool or green surfaces by developing an implementation plan that creates cool pavements and roofs and builds shade structures].) But how the County plans to reach these goals is unclear from the record and could take “any number of forms and call for numerous activities in different areas of the county, each of which would potentially have a multitude of direct and indirect environmental effects.” (See Save Our Rural Town v. County of Los Angeles (Cal. Ct. App., Jan. 26, 2022, No. B309992) 2022 WL 224163, *6.) And planning staff advised Petitioner that the heat island reduction program plan was “not yet underway and information is not available to assess.” (AR 13277.) Staff explained that certain programs under the Sustainability Plan “have moved forward and included their own CEQA analysis as needed… Implementation Programs will continue to undergo a separate environmental analysis at the time the implementation project is initiated.” (AR 13277.)

The Court finds that the implementation of the OurCounty programs is still a future action that is too early in the planning process to allow meaningful analysis of any potential impacts. Unlike Laurel Heights I, the County here has not made decisions or formulated reasonably definite proposals relating to the OurCounty programs. Though the General Plan has identified these future projects, the record is “silent with regard to any meaningful planning, decisionmaking, or any other activity” showing that the County is moving forward with implementation of these OurCounty programs. (See Berkeley Keep Jets, supra, 91 Cal.App.4th at 1361.) Any environmental review would be premature and wholly speculative.

           Nor is there substantial evidence in the record supporting a fair argument that the OurCounty programs would have a significant impact, aside from vague arguments by Petitioner that the County would have to create extensive new facilities and infrastructure to recycle and treat water, which would alter stormwater flow patterns and groundwater levels (AR 1484, 1504), and resurfacing miles of roadways would increase pollution, traffic congestion, and construction waste. (AR 5141.) These speculative comments are not substantial evidence under Guidelines § 15384. Because Petitioner fails to identify any substantial evidence supporting a fair argument that the Project may have a significant environmental impact, CEQA does not require consideration of the environmental impacts of the Sustainability Programs, and the County’s negative declaration is proper.

B.    Policy S 4.1

Petitioner argues that the General Plan’s adoption of Policy S 4.1 is unlawful. First, Petitioner claims that Policy S 4.1 serves no legitimate government purpose and is arbitrary and unreasonable. Second, Petitioner contends that Policy S 4.1 will cause significant environmental impacts and requires an EIR under CEQA. Third, Petitioner argues that Policy S 4.1 is preempted by Government Code § 65302(g)(3) and the Map Act.

The Safety Plan Update included Policy S 4.1 which states:

“[p]rohibit new subdivisions in VHFHSZs unless: (1) the new subdivision is generally surrounded by existing or entitled development or is located in an existing approved specific plan or is within the boundaries of a communities facility district adopted by the County prior to January 1, 2022, including any improvement areas and future annexation areas identified in the County resolution approving such district; (2) the County determines there is sufficient secondary egress; and (3) the County determines the adjoining major highways and street networks are sufficient for evacuation as well as safe access for emergency responders under a range of emergency scenarios, as determined by the County. Discourage new subdivisions in all other FHSZs.” (AR 12.)

1.     No legitimate government purpose

Petitioner claims there is no legitimate purpose advanced by Policy S 4.1 and it represents an arbitrary and unreasonable prohibition on land development.

Adoption of Policy S 4.1 is a legislative act reviewable under section 1085 of the Code of Civil Procedure. (See Gov. Code § 65301.5.) “Judicial review of agency actions that are quasi-legislative in character is under a more deferential, arbitrary and capricious standard.” (Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 572.)  Under this standard, “judicial review is limited to an examination of the proceedings ... to determine whether [the agency's] action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether [the agency] has failed to follow the procedure and give the notices required by law.” (Major v. Memorial Hosps. Assn. (1999) 71 Cal.App.4th 1380, 1398.) Although the Policy at issue is not specifically a zoning ordinance, a zoning ordinance will be upheld if it has a reasonable relationship to the public welfare. (Associated Home Builders Inc. v. City of Livermore (1976) 18 Cal.3d 582, 604; see Euclid v. Ambler Co. (1926) 272 U.S. 365, 395.)

The Court finds this Policy advances a legitimate government purpose that bears a reasonable relationship to the public welfare. The County enacted this policy to support the General Plan’s goal to prevent or minimize “personal injury, loss of life, and property damage due to fire hazards.” (AR 48.) The Safety Element Update explains the dangers of increased residential development in the Wildland Urban Interface (“WUI”) and the Very High Fire Hazard Safety Zones (“VHFHSZs”), including increased risk of fire ignitions and spread and the decreased ability for fire protection agencies to protect homes and residents in these areas. (AR 45-46.)

The County points out that Policy S 4.1 is consistent with the recommendations of the Community Planning Assistance for Wildfire (“CPAW”) program, developed with staff from the County Department of Regional Planning and Fire Departments after the 2018 Woolsey Fire to reduce wildfire risk. (AR 9620.) A CPAW Report recommends the County “[p]rohibit the construction of new dwelling units in the VHFHSZ.” (AR9621.) The CPAW Report also recommends that any residential developments built in hazard zones be “clustered” to provide for more localized and effective fire protection measures. (AR9644.) The Los Angeles County Fire Department 2020 Strategic Plan (“LACFD Fire Plan”) observed that “large WUI areas within Los Angeles County are where native fuels and residential communities come together and provide a dangerous wildfire environment. (AR 6727.) Fire ecology experts agree that “[w]hen houses are built close to forests or other types of natural vegetation…there will be more wildfires due to human ignitions” and “wildfires that occur will pose a greater risk to lives and homes, they will be hard to fight, and letting natural fires burn becomes impossible.” (AR 7410.)

Limiting subdivisions in hazard zones also is consistent with the State Office Office of Planning and Research’s (“OPR”) “Fire Hazard Planning, General Plan Technical Advice” (“2015 Technical Advice”) and the 2020 Draft Update. The 2015 Technical Advice recommends “[a]voiding or minimizing the wildfire hazards associated with the new uses of land,” and recommends that local governments should “[a]void, where feasible, approving new development in areas subject to wildfire risk.” (AR 5431, 5439.) A 2020 update to the Technical Advice observes, “[p]olicies governing land use and future growth also provide an opportunity to integrate resilience into long range plans by avoiding placing new development or new growth…in areas with extreme threat or elevated hazard severity that pose an unreasonable risk, or introducing new zoning or building code requirements that help to avoid or minimize risks in such areas.” (AR 5575.)

This evidence shows a legitimate government and public welfare interest in reducing fire risk. The Policy bears a reasonable relationship to this interest by preventing new subdivision development in less developed high-risk areas that do not have proper infrastructure for evacuations. Although Petitioner points to other, purportedly less extreme recommendations, such as retrofitting strategies for subdivisions that have limited points of ingress/egress, and imposing conditions on new subdivisions such as mandating separation buffers and fire protection measures, (AR 7453, 5606), Petitioner cites to no authority mandating that the County implement these measures instead.

Petitioner argues that clustering residences can increase wildfire risks, citing to its comments submitted to the County that show photographs and maps of previous wildfire damage that occurred in developed areas. (AR 1491-1494.) This evidence shows that wildfire damage can be severe in developed areas, but it does not show that a policy limiting subdivision development in high-risk areas is arbitrary or unreasonable.

Petitioner’s case citations do not advance Petitioner’s cause. People ex rel. Younger and Sail’er Inn involved total prohibitions on constitutionally protected matters. (People ex rel. Younger v. County of El Dorado (1979) 96 Cal.App.3d 403 [a total prohibition of access to a naviagable stream was not a permissible special-use designation, nor a reasonable sanitation and pollution control measure]; Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 20 [no compelling reason to ban women bartenders, a ban which also violated the California Constitution, Civil Rights Act, and Equal Protection].) Dolan and Nollan involved government “takings,” where the government imposed conditions on permits. (Dolan v. City of Tigard (1994) 512 U.S. 374, 394 [no reasonable relationship between the floodplain easement and proposed new building]; Nollan v. California Coastal Commission (1987) 483 U.S. 825, 837 [a lateral public easement along petitioner’s beachfront property in exchange for a permit did not promote the state interest of promoting views of the ocean].)

Policy S 4.1 does not impose a total prohibition on the development of subdivisions, but rather imposes certain specific limitations on building residential subdivisions in very high fire risk areas. Petitioner cites to no constitutionally protected right to build new residential subdivisions. And as discussed, the limitations are reasonably related to protecting the public welfare from wildfire danger. Nor does Policy S 4.1 involve a government taking; the Policy does not impose conditions or eliminate existing or proposed subdivisions.  

The Court does not find that Policy S 4.1 is arbitrary or capricious.

2.     Significant environmental impacts

Petitioner argues that the negative declaration omits any discussion of Policy S 4.1 because it assumed that prohibiting subdivisions would prevent only significant impacts. Petitioner says that Policy S 4.1 will have significant impacts because it will cause growth to be displaced to other areas and will increase fire risk in those areas.

A petitioner challenging a negative declaration bears the burden “to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact.” (Gentry, supra, 36 Cal.App.4th 1359, 1375.)

The initial study found that Policy S 4.1 would not have a significant environmental impact. (AR 222.) Petitioner argues that the subdivision ban will cause growth that would normally have proceeded in rural communities to be displaced to other areas. Petitioner cites to its comments submitted to the draft Safety Element Update and its Motion for Writ and Injunction in the previous CEQA case, where it argued that development will be displaced to other areas of the county, particularly southern regions which already are heavily urbanized. (AR 1483, 1953.) Petitioner contends this will increase the number of persons exposed to seismic activity and will impact emergency services. (AR 1953-1954.) Petitioner also contends this will alter patterns of urban development and have an impact on energy use and greenhouse gas emissions. (AR 1954.) Petitioner further argues that Policy S 4.1 will lead to community stagnation, closing of schools, and deterioration of homes and businesses. (AR 2070.) And Petitioner’s comments express concern that more densely populated areas will increase fire risk because closer spacing can lead to structure-to-structure ignition. (AR 1491-1494.)

Impacts associated with displacement and growth inducement are required to be analyzed under CEQA. (Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 367-368.) In Napa Citizens, the project at issue was an updated specific plan to develop a 2,945-acre area surrounding the county airport to accommodate industrial development. (Id. at 352.) The county argued that, because there was no provision for housing units within the specific plan area, the proposed development would have no direct impact on housing and thus no significant effect on the environment. (Id. at 367.) The court found that the EIR “must discuss growth-inducing impacts even though those impacts are not themselves a part of the project under consideration, and even though the growth is difficult to calculate.” (Id. at 368.) The court found that the EIR should identify the number and types of housing units that persons working within the Project area can be anticipated to require and consider whether the identified communities have sufficient housing and services to accommodate the anticipated increase in population. (Id. at 370.)

Likewise in City of Antioch v. City Council (1986) 187 Cal.App.3d 1325, 1337-1338, the court found that a project required an EIR even though the project itself only involved the construction of a road and sewer project which did not in and of themselves have a significant effect on the environment. The court recognized that the sole reason for the construction was to provide a catalyst for further development in the immediate area. (Ibid.) The court held that because achievement of the project’s purpose would almost certainly have significant environmental impacts, the impacts were required to be analyzed under CEQA. (Ibid.)

This case is different from Napa Citizens and City of Antioch because Policy S 4.1 does not itself cause growth or displacement. Unlike Napa Citizens, Policy S 4.1 is not a project that brings people into the area to work, causing an anticipated increase in population that needs housing. Unlike City of Antioch, Policy S 4.1 was not created for the purpose of catalyzing further development in the surrounding area. Policy S 4.1 discourages development in these high fire hazard areas, applies only to new subdivisions, and does not propose to displace approved or existing residential communities. (AR 12.) Although Policy S 4.1 may cause new subdivisions to be built outside of the very high fire risk areas instead of within these high-risk areas, the Project does not propose or indirectly encourage approval of additional development. (AR 129.) Additional development in other areas of the county would be speculative and not a reasonably foreseeable result of the project. (Guidelines § 15064, subd. (d)(3).)

Moreover, Petitioner relies only on Petitioner’s own comments. Petitioner cites to no additional evidence in the record showing a factual basis for these alleged environmental effects. “[I]n the absence of a specific factual foundation in the record, dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence.” (Gentry, supra, 36 Cal.App.4th 1359, 1417.) “An absence of evidence in the record on a particular issue does not automatically invalidate a negative declaration.” (Id. at 1379.)

There is no substantial evidence to support a fair argument that Policy S 4.1 will have significant environmental impacts.

3.     Preemption – Government Code § 65302(g) and Map Act

Petitioner argues that Policy S 4.1 is preempted by Government Code § 65302(g) and the Map Act.

The party claiming that general state law preempts a local ordinance has the burden of demonstrating preemption.” (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149.) Preemption may be established where a local ordinance duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 751-752.) However, “when local government regulates in an area over which it traditionally has exercised control, such as the location of particular land uses, California courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted by state statute.” (Big Creek, supra, 38 Cal.4th at p. 1149.)

Government Code § 65302(g)(3) requires that safety element policies established for very high fire hazard areas be reviewed and updated to consider advice issued by the OPR’s most recent publication of “Fire Hazard Planning, General Plan Technical Advice Series.” Section 65302(g)(3)(A) requires that policies include information regarding fire hazards, including information about wildfire hazard areas that may be available from the United States Geological Survey (“USGS”).

Petitioner claims that Policy S 4.1 is not consistent with either OPR publication because neither recommends subdivision prohibitions. But there is no requirement in Government Code § 65302(g) that the Safety Element be entirely consistent with OPR’s recommendations; it requires only that the County consider the guidance. The record demonstrates that the County considered OPR’s guidance. (AR 8677, 14652.) The record also shows that staff reviewed the State Fire Marshal’s fire hazard severity zone maps and information about wildfire hazard areas from the United States Geological Survey. (AR 14650, 14673, 9.)  And as discussed above there is evidence that Policy S 4.1 is consistent with OPR advice. (AR 5439, 5571, 7451 [recommending avoiding land use in high fire risk areas].)

The Court does not find that the Policy S 4.1 is preempted by Government Code § 65302(g)(3).

Petitioner next argues that Policy S 4.1 is preempted by the Map Act. The Map Act states:

“[A] legislative body of a city or county shall deny approval of a tentative map, or a parcel map for which a tentative map was not required, if it makes any of the following findings”: (1) the proposed map or subdivision is not consistent with applicable general and specific plans, (2) the site is not physically suitable for the type of development; (3) the site is not physically suitable for the proposed density of development; (4) the design of the subdivision or improvements are likely to cause substantial environmental damage or substantially injure fish or wildlife or their habitat or cause serious public health problems; or (5) the design of the subdivision or the type of improvements conflict with public easements.” (Gov. Code, § 66474.)

Local ordinances regulating subdivisions generally are not preempted unless in direct conflict with the Map Act. (Griffin Dev. Co v. City of Oxnard (1985) 39 Cal.3d 256, 262 [Map Act did not preempt condominium conversion ordinance and the Map Act did not itself evince a legislative intent to occupy the entire field of condominium conversion regulation]; McMullan v. Santa Monica Rent Control Bd. (1985) 168 Cal.App.3d 960, 963 [Map Act “does not purport and may not be understood to be preemptive of all land use regulation”].)

Petitioner contends that the Map Act does not authorize the County to impose additional requirements on where a subdivision can be built, and Policy S 4.1 impermissibly expands the physical circumstances under which a proposed subdivision map can be denied.

The Map Act enumerates circumstances under which a county must deny approval of a tentative map. It does not expressly state that these are the only circumstances under which a tentative subdivision map can be denied. (See Gov. Code § 66474.) Nor does Petitioner point to any authority showing that courts have interpreted the statute as such. And there is no indication that the Legislature intended the Map Act to preempt local regulation of subdivisions. In fact, the Map Act expressly vests regulation of the design and improvement of subdivisions in local agencies. (Gov. Code § 66411.)

The cases which Petitioner cites to are not relevant because those cases dealt with the County’s limited powers regarding the conditions a county can impose on a subdivider in exchange for subdivision privileges. (See Ayers v. City Council of City of Los Angeles (1949) 34 Cal.2d 31; Associated Home Builders Inc. v. City of Walnut Creek (1971) 4 Cal.3d 633.) Policy S 4.1 does not involve conditions imposed on subdividers.  

Petitioner has not met its burden of showing that Policy S 4.1 is preempted by state law.

C.    Senate Bill 99 – Government Code § 65302(g)(5)

Petitioner argues that the updated Safety Element fails to identify residential developments in hazard areas that do not have two emergency evacuation routes and thus fails to comply with Government Code § 65302(g)(5). Senate Bill 99, codified as Government Code section 65302(g)(5), requires local agencies to update their Safety Element to "identify residential developments in any hazard area identified in the safety element that do not have at least two emergency evacuation routes."

Petitioner does not clearly state what standard of review applies to this argument; Petitioner appears to ask that this action by the County be reviewed under traditional mandamus. “[W]here an agency is exercising a quasi-legislative function, judicial review must proceed under ordinary or traditional mandamus.”  (Langsam¿v. City of Sausalito¿(1987) 190 Cal.App.3d 871, 879.) There are two¿essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty.¿ (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.)¿¿¿ 

The actions of an agency are presumed to be valid and a regular performance of an official duty. The burden is on Petitioner to demonstrate that the County failed to perform a specific duty mandated by law. (See Bownds v. City of Glendale (1980) 113 Cal.App.3d 875, 883.)

Petitioner argues that the County identified only communities with residential developments in hazard areas, rather than identifying all residential developments that are in hazard areas and do not have two emergency evacuation routes. In its efforts to comply with Government Code § 65302(g)(5), the County first located residential developments based on zones that allow for residential development. Evacuation routes were overlaid to determine if these residential developments could access two possible evacuation routes. The County then used the Countywide Statistical Areas (CSAs) as the unit basis for determining whether a community contained a residential development with access to fewer than two possible evacuation routes. If a minimum of one residential development within the CSA had access to fewer than two possible evacuation routes, the CSA would be identified as having limited egress. (AR 97.) The County ultimately compiled a list of “Unincorporated Communities with Residential Development(s) with Limited Egress” which identifies 82 separate communities that include at least one residential development with only a single evacuation route. (AR 56-58.)

It appears from the record that the process employed by the County properly identified specific residential developments that had only a single point of egress. The County used this information to compile the list of communities which contained these residential developments. (See AR 6415-6418 [showing presentation slides titled “identifying single-egress residential developments”]; 6421 [showing example that Altadena community has three residential developments within the community that only have one egress].) However, the Court cannot locate in the record where the residential developments within these communities are specifically identified in the Safety Element. Petitioner also cites to a page in County’s materials which states: “We do not guarantee that we found all the residential developments within the CSA that have limited evacuation routes, only that there is one res[idential] dev[elopement] within the CSA.” (AR 6422.) 

“Our fundamental task in interpreting a statute is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.” (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.)  

Petitioner argues that the plain language of the statute requires Respondents to identify specific residential neighborhoods, and the intent of the statute is not met by identifying communities in high fire areas where one or more of these neighborhoods exist. The Court agrees.

The updated Safety Element must identify residential developments that do not have two or more emergency evacuation routes. (Govt. Code § 65302(g)(5).) It is clear from the record that County understood there was a distinction between specific residential developments and the communities that contained them, as it distinguished between residential developments and communities throughout the record. (See AR 97, 6415-6418, 6421-6422.) While the County appears to have identified specific residential developments, the Safety Element only lists the communities that contain at least one of the residential developments with limited egress.

The purpose of SB 99 was to address inadequate evacuation routes as to existing developments, stating “This bill dovetails with recent legislation that requires the Board to work with local governments to identify and update a list of at-risk subdivisions by laying the groundwork at the local level.” (Petitioner’s RJN Ex. 2, p. 3-4.) The purpose of this legislation is to identify “subdivisions” rather than the communities that contain these subdivisions. The identification of all specific residential developments will assist local and state authorities in ensuring that specific subdivisions are connected to adequate emergency evacuation routes. (See RJN Ex. 2, p. 3-4.)

The County has a duty under Government Code § 65302(g)(5) to identify the residential developments within the communities with fewer than two evacuation routes. The County failed to do so by identifying only the communities that contained residential developments with fewer than two evacuation routes. Traditional mandamus is the proper vehicle to compel the County to comply with the statutory requirement.  Relief is appropriate under Civil Code § 1085.

D.    Declaratory and Injunctive Relief

Petitioner’s fourth and fifth causes of action for declaratory and injunctive relief are derivative of the causes of action for writ of mandate. (Petition ¶ 54-61.) For the reasons discussed above, the Court grants declaratory relief as to Government Code § 65302(g)(5). The Court denies declaratory relief as to Petitioner’s other contentions.

The Court denies Petitioner’s request for injunctive relief. Petitioner has not shown that enjoining the County from implementing the Safety Element will redress Petitioner’s injuries incurred by the County’s violation of Government Code § 65304(g)(5).