Friends of South Livermore v. City of Livermore CA1/2 ( 2022 )

Filed 12/6/22 Friends of South Livermore v. City of Livermore CA1/2
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi-
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
FRIENDS OF SOUTH
LIVERMORE,
A162471
Plaintiff and Appellant,
v. (Alameda County Super. Ct.
CITY OF LIVERMORE, No. RG20054362)
Defendant and
Respondent,
LWCI, LLC et al.,
Real Parties in Interest
and Respondents.
Opponents of a commercial development project, having failed at the
administrative level and in the trial court, appeal to this court. We conclude
the opponents have demonstrated that the City of Livermore City Council’s
(City Council) approval of the project must be reversed because a feature of
the project conflicts with a fundamental and mandatory part of the city’s
general plan.
1
BACKGROUND
I.
The Proposed Development and Administrative Process
Friends of South Livermore (Friends) describes itself as “an
unincorporated association of citizens, property owners, taxpayers, and
electors residing in the City of Livermore . . . advocating for just, equitable
and responsible land use planning and policy, as well as diligent enforcement
of planning and environmental laws in and around Livermore, and
particularly in the South Livermore Valley.”
The South Livermore Valley is about six miles in length and comprises
almost 1900 acres and was once exclusively agricultural and devoted to
vineyards. The City of Livermore (City) adopted the South Livermore Valley
Specific Plan (SLVSP) in 1997 and amended it in 2004 to govern residential
and commercial growth in the valley while retaining its reputation as “a
premium wine-producing region.” Another aim was to foster tourism with
“tourist-related projects” and “tourist serving retail uses.” “[S]uch uses could
include a wine museum, a culinary institute, conference center, or a resort
hotel. These destination-type uses would be complimented by tourist-serving
retail uses, such as restaurants, bicycle rentals, art galleries, or other small-
scale uses that would contribute to the creation of an attractive, full-service
destination for visitors to the wine country.”
As will be shown, one of the commercial uses anticipated by the SLVSP
was a “Wine Country Inn,” which was described as follows: “Hotel facility
with no more than 30 guest rooms. May have a large restaurant associated
with it. Maximum site size is 3 acres. Maximum FAR [floor area ratio] is
0.25.” The proposal to build this project is at the center of this dispute.
Friends opposed the proposal of LWCI, LLC and Michelle Boss (real
parties in interest) to construct a 29,345-square foot, two-story building for a
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30-room “Wine Country Inn” that would have a 77-seat restaurant, a lobby
with a wine bar and reception area, a lounge area with outdoor seating, a
manager’s office, a conference room, kitchen, parking lot for 61 vehicles, and
a caretaker’s unit, all on a 3.2-acre parcel.
In November 2019, the Livermore Planning Commission approved the
site plan design review and conditional use permit application and issued a
mitigated negative declaration (MND) under the California Environmental
Quality Act (Pub. Resources Code, § 21000 et seq. (CEQA)). The Commission
made various findings, including that the project “conforms to all setback
standards.” Friends appealed the decision to the City Council, which
affirmed the Planning Commission’s decisions and adopted its findings as the
Council’s own.
II.
The Lawsuit
After its administrative opposition failed and the City approved the
project, Friends moved to the courts, alleging that the approval contravened:
(1) the City’s General Plan; (2) its SLVSP (which is a “special” plan and a
component of the General Plan); (3) its Planned Unit Development
Amendment (PUDA); and (4) its Municipal Code. Specifically, Friends
alleged that “The Project’s inconsistencies and incompatibilities with these
planning documents include, but are not necessarily limited to, violations of
the roadway setback requirements contained in the SLVSP; violations of the
commercial design standards and guidelines contained in the SLVSP;
violations of the land use restrictions contained in the SLVSLP and PUDA
01-001; and violation of the parking requirements of the Livermore Municipal
Code.” According to Friends, the City “abused its discretion by approving the
Project notwithstanding these inconsistencies and incompatibilities and by
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adopting findings of consistency that are clearly erroneous and not supported
by substantial evidence.”
Friends further alleged that the City violated CEQA by adopting a
mitigated negative declaration (MND) for the project. According to Friends,
CEQA allows an MND “only if an initial study shows there is no substantial
evidence in light of the whole record before the agency that the project may
have a significant effect on the environment.” “Here, there is substantial
evidence in light of the whole record before the City that the Project not only
may but will have significant direct, indirect, and cumulative effects on the
environment, in areas including but not limited to traffic and circulation,
public safety, noise, aesthetics and visual resources, and biological resources.
The City therefore had a mandatory duty under CEQA to prepare and
circulate a full EIR [Environmental Impact Report] for the Project before
taking any action to approve it.”
III.
The Trial Court Decision
The trial court ruled against Friends. The relevant portions of the
court’s Order Re: Petition for Writ of Mandate—omitting an issue not raised
in this appeal and including minor non-substantive editorial modifications—
read as follows:
“Standard of Review
“The applicable standard of review is whether the City abused its
discretion when it approved the Project. (Code Civ. Proc., § 1094.5, subd. (b).)
The City’s determination that the Project is consistent with the SLVSP ‘is
entitled to deference as an extension of [its] “unique competence to interpret
[its] policies when applying them in its adjudicatory capacity.” ’ (Orange
Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, 155
[Orange Citizens], citing San Franciscans Upholding the Downtown Plan v.
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City & County of San Francisco (2002) 102 Cal.App.4th 656, 678 (‘San
Franciscans’).) A court should look to a city’s determination ‘with a strong
presumption of regularity.’ (Sequoyah Hills Homeowners Assn. v. City of
Oakland (1993) 23 Cal.App.4th 704, 717 (‘Sequoyah Hills’).) Friends has the
burden of proof and ‘the reviewing court must resolve reasonable doubts in
favor of the administrative findings and determination.’ (Sierra Club v.
County of Napa (2004) 121 Cal.App.4th 1490, 1497-1498 (‘County of Napa’),
citing San Franciscans, supra, 102 Cal.App.4th at [p.] 674.) It is
impermissible for a court to substitute its view ‘for that of the city council,
nor reweigh conflicting evidence presented to that body.’ (Sequoyah Hills,
supra, 23 Cal.App.4th at p. 717.) [¶] It is the petitioner’s burden to prove that
a project directly conflicts with ‘very specific and mandatory policies’ such
that ‘no reasonable person’ could conclude they were consistent. (San
Francisco Tomorrow v. City and County of San Francisco (2014)
229 Cal.App.4th 498, 518 (‘San Francisco Tomorrow’).) The law does not
require an exact match between a proposed development project and the
applicable land use plan. (Id. at [p.] 514 quoting Friends of Lagoon Valley v.
City of Vacaville (2007) 154 Cal.App.4th 807, 817.) Rather, to be ‘ “consistent,
a [project] must be compatible with the objectives, policies, general land uses,
and programs” ’ in the applicable plan. (County of Napa, supra,
121 Cal.App.4th at [p.] 1509, italics added, quoting Families Unafraid to
Uphold Rural El Dorado County v. Board of Supervisors (1998)
62 Cal.App.4th 1332, 1336 (‘FUTURE’).)
“Setbacks in the SLVSP
“As approved, the Project has a 50' setback from Hansen Road and
within that area is both landscaping and parking spaces. Friends argues
that this setback is in direct conflict with the SLVSP, which requires a 100'
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setback from ‘all’ public roadways, and that those setbacks must be planted
with vineyards and orchards. Friends asserts that, among other things, the
use of the word ‘shall’ makes this language mandatory and fundamental to
the SLVSP. It its opening brief, Friends also contends:
“Maintaining broad, planted, agricultural setbacks of at least 100 feet
from all roadways is a primary means—if not the primary means—of
ensuring the ‘gradual and graceful transition from urban to rural,’ while
providing the ‘softer edge’ separating agricultural from commercial uses.
Policy 4-7 is therefore ‘fundamental’ to the SLVSP’s overarching policy vision
and goals.
“Friends concludes that the City’s failure to require the 100' setback
along Hansen Road, when it approved the Project, constitutes an abuse of
discretion.
“The Court rejects Friends’ argument for two reasons.
“First, the section of Hansen Road that is at issue in this case did not
exist when the SLVSP was adopted. While the SLVSP noted the potential for
a road to continue as an extension of Hansen Road to the west of Arroyo
Road, the public roadway was not there. Friends has not provided any
information from the record that clearly demonstrates how, if at all, the City
contemplated it would address the width and landscaping of setbacks for
future roads that were not in existence at the time of the approval of the
SLVSP. Instead, the clearest indication of how the City viewed the
appropriate interpretation of the setback language in the SLVSP is how it in
fact . . . interpreted that language when it approved the Public Unit
Development Permit four years later (in 2001), which was at or about the
time Hansen Road was constructed to the west of Arroyo Road. . . . [T]he
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Planned Unit Development Permit states that for 5D2 [the site designation
for the project]:
“Setbacks:
“a. Building setbacks for all commercial uses shall be 100 feet from
road frontages (setback shall be measured from the closest commercial
building to the nearest right-of-way frontage). Setback areas shall be planted
with orchard or vineyards.
“b. Setbacks from Hansen Way: 50 feet.
“c. Side and rear yard: none, provided consistent with Chapter 12 of
the Specific Plan.
“Thus, the first time the City evaluated how to address a setback from
the newly constructed Hansen Road, it concluded, now twenty years ago, that
the appropriate setback from Hansen Road was 50΄, with no specific
landscaping requirements. This Court views the City’s determination
regarding the setback from Hansen Road ‘with a strong presumption of
regularity’ and finds that a reasonable person could conclude that the SLVSP
and the PUD Permit are consistent in this regard. As a result, the Court
finds that the City did not abuse its discretion when it approved the Project
with the 50΄ setback from Hansen Road.
“Second, even if the SLVSP and the PUD Permit are inconsistent with
regard to the setback from Hansen Road, the Court should only set aside a
project approval if there is a conflict with a ‘[1] fundamental, [2] mandatory
and [3] specific land use policy.’ (FUTURE, supra, 62 Cal.App.4th at
[p.] 1341.) Friends has failed to meet its burden of proof that a 100'
landscaped setback from Hansen Road was fundamental, mandatory and
specific to achieving the goals of the plan. It is clear that the SLVSP
contemplated the development of a wine country inn, which was in turn
7
further supported in the PUD Permit. The City has now approved a wine
country inn in the area that was specifically anticipated in both documents.
While setbacks and landscaping play a role in the aesthetics of a development
project, the City concluded that approving the Project with a wine country
inn with a setback of 50' (instead of 100') along one side of the property, and
planting trees (instead of vines) in that setback, met the applicable policies
and development standards as set forth in the SLVSP and the PUD Permit.
This Court does not find that no reasonable person could have come to the
same conclusion as the City. Therefore, on this related point, the Court finds
the City did not abuse its discretion when it approved the Project with the 50΄
setback from Hansen Road.
“Floor Area Ratio
“Next, Friends alleges that the Project’s Floor Area Ratio unlawfully
exceeds the SLVSP’s mandatory limit of 25. Specifically, Friends contends
that the City improperly omitted the square footage of the inn’s enclosed
balconies and decks, and the caretaker’s residence. The City addressed this
issue in both its Opposition brief and during oral argument and stated that
because the Project has many spaces that are partially enclosed (e.g., covered
decks and walkways), it conducted a detailed analysis to assess the square
footage and concluded the Project as approved comports with the FAR
requirements of the SLVSP. The Court finds that Friends failed to meet its
burden to show that the City’s determination that the Project complies with
all applicable development regulations, including FAR limitations, was
unreasonable or unsupported by substantial evidence. The Court denies
Friends’ request for writ of mandate as to this issue.
****
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“The City’s Determination that the Project Would have no Significant
Impacts
“Friends’ final argument is cumulative. Friends contends that for the
reasons set forth in its previous arguments, the City’s Initial Study prepared
pursuant to CEQA, wrongfully determined the Project would have no
significant impacts on land use and planning. Because the Court has rejected
Friends’ previous arguments as addressed above, the Court denies Friends’
request for writ of mandate as to this final issue.”
Friends purported to file a notice of appeal from the Order Re: Petition
for Writ of Mandate, but that was a non-appealable interlocutory order, as
shown by the fact that an actual judgment was subsequently entered.
However, pursuant to the policy of liberally construing a notice of appeal in
favor of its sufficiency (Cal. Rules of Court, rule 8.100(a)(2)), Friends’ notice
will be treated as sufficient to commence a valid, if premature, appeal from
the subsequent judgment (id., rule 8.104(d)(2)).
DISCUSSION
I.
Opening Comments and Legal Standards
Although Friends has on occasion characterized this as “a CEQA case,”
that characterization is somewhat misleading. In its 47-page opening brief,
there is argument on a single CEQA issue, which is made last and occupies
barely more than a page. The CEQA issue framed by Friends is predicated
on the claims addressed by 46 of the 47 pages that the City’s approval of the
project violated local law, specifically, two of the policies in the City’s own
SLVSP. Thus, the CEQA claim is merely an extension of the local law
claims.
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Accordingly, the primary issues in this appeal concern whether
approval of the project was in conformity with municipal law, specifically the
SLVSP. But the SLVSP is not a run of the mill local ordinance.
“The Legislature has mandated that every county and city must adopt
a ‘comprehensive, long-term general plan for the physical development of the
county or city, and of any land outside its boundaries which in the planning
agency’s judgment bears relation to its planning.’ (Gov. Code, § 65300.) [1]
The general plan has been aptly described as the ‘constitution for all future
developments’ within the city or county. [Citations.] ‘[T]he propriety of virtu-
ally any local decision affecting land use and development depends upon con-
sistency with the applicable general plan and its elements.’ [Citation.] To be
sure, the general plan is not immutable, far from it. But it may not be trifled
with lightly . . . .” (Citizens of Goleta Valley v. Bd. of Supervisors (1990)
52 Cal.3d 553, 570-571; accord, Orange Citizens, supra, 2 Cal.5th at pp. 152-
153.)
“ ‘ “The consistency doctrine has been described as ‘the linchpin of
California’s land use and development laws; it is the principle which infuse[s]
the concept of planned growth with the force of law’. . . .” [Citation.]’ ”
(County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th
931, 949-950.) A general plan can only be amended by the local legislative
body (§§ 65356, 65358)2 and only in a specified manner. (§ 65356; see
generally Orange Citizens, at pp. 152-154 [describing required opportunities
for involvement of public input from specified public entities, public hearings,
Statutory references are to the Government Code unless otherwise
1
indicated.
The initiative and referendum power may also be exercised to amend
2
or prevent the amendment of the general plan. (DeVita v. County of Napa
(1995) 9 Cal.4th 763, 777.)
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and production of internally consistent and compatible statement of policies].)
It must include at least “ ‘seven elements—land use, circulation,
conservation, housing, noise, safety and open space—and address [them] in
whatever level of detail local conditions require.’ ” (Foothill Communities
Coalition v. County of Orange (2014) 222 Cal.App.4th 1302, 1310 (Foothill
Communities).) “ ‘General plans are also required to be “comprehensive [and]
long[]term” [citation] as well as “internally consistent.” [Citation.] The
planning law thus compels cities and counties to undergo the discipline of
drafting a master plan to guide future local land use decisions.’ ” (Ibid.)
A specific plan generally is on the rung very slightly below the general
plan (7 Miller & Starr, Cal. Real Estate (4th ed. 2022) Land Use, Planning
and Zoning Laws, § 21:7) and is used to implement the general plan in all or
part of the geographical area covered by the general plan. (§ 65450.) A
specific plan must be consistent with the local government’s general plan
(§ 65454), must address certain subjects (§ 65451) and may include other
subjects deemed necessary to implement the general plan (§ 65452).
A zoning ordinance is the third rung on the ladder and must be
consistent with the general and any specific plan. (§§ 65454-65455; 7 Miller
& Starr, Cal. Real Estate, supra, § 21:8.)
Subordinate decisions and approvals, such as subdivision maps,
development agreements, conditional use permits and building permits must
be consistent with the general plan and any existing specific plan.
(§ 65867.5; see Neighborhood Action Group v. County of Calaveras (1984)
156 Cal.App.3d 1176, 1184-1185; Friends of “B” Street v. City of Hayward
(1980) 106 Cal.App.3d 988, 998-999; Foothill Communities, supra,
222 Cal.App.4th at pp. 1310-1311.)
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The SLVSP was adopted by the City Council in 1997 as “an extension of
[the City’s] General Plan,”3 which directs that it be “used as both a policy and
a regulatory document to guide the quantity, location and character of
development in the South Livermore area.” In adopting the SLVSP, the City
Council provided that, “[f]or projects within the South Livermore Valley
Specific Plan Area, polices and standards in the Specific Plan will take
precedence over more general policies and standards applied throughout the
rest of the City.” In essence, the City Council placed the SLVSP as high as or
higher on the regulatory ladder than the general plan itself with respect to
land use in the area covered by the SLVSP. Not surprisingly, the parties
analyze the issue of consistency with the SLVSP as if it were the general
plan, and we will do the same.
In general, the judicial attitude on review of local government decisions
about conformity with a general plan is deferential. “A project need not
conform perfectly to every general plan policy to be consistent with the
general plan. [Citation.] The rule of general plan consistency is that the
project ‘must be “compatible with the objectives, policies, general land uses,
and programs specified in” ’ the general plan. [Citation.] ‘[C]ourts accord
great deference to a local governmental agency’s determination of consistency
with its own general plan, recognizing that “the body which adopted the
general plan policies in its legislative capacity has unique competence to
interpret those policies when applying them in its adjudicatory capacity.
[Citations.] Because policies in a general plan reflect a range of competing
interests, the governmental agency must be allowed to weigh and balance the
3 The SLVSP covers an unincorporated area along the City of
Livermore’s southern boundary. The County of Alameda and the Cities of
Livermore and Pleasanton worked together with other stakeholders to
develop the plan, which the City of Livermore then adopted.
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plan’s policies when applying them, and it has broad discretion to construe its
policies in light of the plan’s purposes.” (Golden Door Properties, LLC v.
County of San Diego (2020) 50 Cal.App.5th 467, 501.)
This court has said: “It is, emphatically, not the role of the courts to
micro-manage these development decisions. Our function is simply to decide
whether the city officials considered the applicable policies and the extent to
which the proposed project conforms with those policies, whether the city offi-
cials made appropriate findings on this issue, and whether those findings are
supported by substantial evidence.” (Sequoyah Hills, supra, 23 Cal.App.4th
at pp. 719-720.)
We also held that the city officials’ decision comes with “a strong pre-
sumption of regularity,” and “[w]e may neither substitute our view for that of
the city council, nor reweigh conflicting evidence presented to that body.”
(Sequoyah Hills, supra, 23 Cal.App.4th at p. 717.) Hence, “ ‘[t]he party chal-
lenging a city’s determination of general plan consistency has the burden to
show why, based on all of the evidence in the record, the determination was
unreasonable.’ ” (Stop Syar Expansion v. County of Napa (2021)
63 Cal.App.5th 444, 461; Clews Land & Livestock, LLC v. City of San Diego
(2017) 19 Cal.App.5th 161, 201.)
“If the agency’s decision is not arbitrary, capricious, unsupported, or
procedurally unfair, it is upheld.” (Anderson First Coalition v. City of Ander-
son (2005) 130 Cal.App.4th 1173, 1192.) According to our Supreme Court:
“Reviewing courts must defer to a procedurally proper consistency finding un-
less no reasonable person could have reached the same conclusion.” (Orange
Citizens, supra, 2 Cal.5th at p. 155.) The same deferential standard of review
pertains to appellate and trial court decisions. “ ‘We review the agency’s deci-
sion regarding consistency with its general plan “directly, and are not bound
13
by the trial court’s conclusions.” ’ ” (Joshua Tree Downtown Business Alliance
v. County of San Bernadino (2016) 1 Cal.App.5th 677, 696 (Joshua Tree).)
Even this high degree of deference, however, does not mean that local
authorities have carte blanche to disregard their general plan. When we ap-
ply the abuse of discretion standard of review “in determining whether a pro-
ject conflicts with a general plan, ‘the nature of the policy and the nature of
the inconsistency are critical factors to consider.’ [Citation.] A project is in-
consistent with a general plan ‘if it conflicts with a general plan policy that is
fundamental, mandatory, and clear.’ [Citations.] In other words, a project’s
consistency with a general plan’s broader policies cannot overcome a project’s
inconsistency with a general plan’s more specific, mandatory and fundamen-
tal policies.” (Spring Valley Lake Assn. v. City of Victorville (2016)
248 Cal.App.4th 91, 100-101 (Spring Valley Lake).) “A ‘clear’ inconsistency
with even a single ‘fundamental, mandatory and specific land use policy’ may
be ‘enough to scuttle a project.’ [Citation.] By contrast, a local agency has
‘ “some discretion” ’ when it comes to a relatively ‘amorphous’ policy (such as
a policy of ‘ “encourage[ing]” development “sensitive to natural land forms,
and the natural and build environment.” ’ ” (Joshua Tree, supra,
1 Cal.App.5th at p. 697.)
Our role requires us only to determine “whether the City abused its dis-
cretion in finding the Project consistent with the . . . General Plan.” (Orange
Citizens, supra, 2 Cal.5th at p. 154.) We “must defer to a procedurally proper
consistency finding unless no reasonable person could have reached the same
conclusion.” (Id. at p. 155.)
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II.
Friends’ SLVSP Claims
Friends advances a pair of contentions that are founded on
the City’s asserted non-compliance with its own SLVSP. We will address
each claim separately.
A. Setback Requirements
The parties agree that the SLVSP is a part of the City’s general plan
and treat it as such for purposes of addressing the consistency requirement.
The stated “Goal” of the SLVSP for commercial uses is “To provide for limited
small-scale commercial development that supports and enhances the South
Livermore Valley’s image as a premium wine-producing region.”
It is explained that “Commercial development in the planning area is
intended as an amenity that will enhance the experience of visitors to the
South Livermore Valley wine country. Only those commercial uses that
support wine-related tourism will be permitted. Commercial uses that
primarily serve local residents are more appropriate for neighborhood or
downtown commercial areas, and are therefore prohibited within the Specific
Plan area.” The plan identifies 15 sites as the ones that may be used for
“possible commercial” uses and “is very specific about what types of
commercial uses will be permitted on each site.” The permitted uses include
“boutique,” “small,” and “medium” wineries; a small olive mill; large and
small restaurants; “Bed-and-Breakfast” and “Wine Country Inn[s]”; and a
Wine Country Center providing wine-country related uses such as bicycle
rentals, art galleries, delis and restaurants. The plan states which uses will
be permitted on each of the subareas containing the identified sites and
limits the size of the nonagricultural developments by specifying a maximum
floor area ratio (ratio between floor space and lot size) or a total number of
square feet. These limitations are stated in the descriptions of the permitted
15
uses and also as general policies governing the commercial developments.
The FAR policy requires that commercial uses “maintain a small, pedestrian
scale.” Additional policies require that commercial uses provide 100-foot
building setbacks and that their facilities have designs “consistent with the
rural, wine country character of the area.” “Wine Country Inn”—the type of
development contemplated here—is described as follows: “Hotel facility with
no more than 30 guest rooms. May have a large restaurant associated with
it. Maximum site size is 3 acres. Maximum FAR is 0.25.”
The building setback policy, on which Friends relies, is “Policy 4-7.” It
reads: “Building setbacks for commercial uses shall be 100 feet from road
frontages, except for commercial site #3A, which shall be 25 feet. All setback
areas shall be planted with vineyards or orchards.” (Italics omitted.)
The policies are implemented by various “Commercial Design
Standards & Guidelines.” Under the section on “Site Layout,” is the
following: “A 100 foot planted building setback is required from all public
roadways for every commercial site except site 3A2 (small restaurant or
tasting room at the proposed Concannon-Wente intersection).” (Italics
omitted.)
In its opening brief, Friends notes other facts it deems pertinent:
“Notably the SLVSP itself specifies in a Table that the location of agricultural
buffers,[4] their minimum depths, and the requirement that they be planted
and cultivated with an agricultural crop are ‘fixed’ plan elements, not
‘flexible’ provisions that would be open to subjective interpretation.[5] . . . [¶]
4 The SLVSP refers to a setback as an “agricultural buffer.”
5 The “[p]recise dimensions of [the] buffer,” presumably meaning other
than the “minimum depth,” is in the “flexible” category, as is the “type of
planting,” which we presume means which kinds of agricultural crops, for
example, olive trees or grape vines.
16
The SLVSP includes a diagram for a commercial development scenario, a
‘wine country inn and restaurant’ on Site 5D2.[6] The diagram includes a
notation stating: ‘Required setback (agricultural buffer) 100 feet from Arroyo
Road.’ ”
Friends’ position, developed at length in its opening brief, reiterates its
stance in the trial court. Friends submits that when Policy 4-7 of the SLVSP
says that setbacks “shall” be 100 feet, which means it is a mandatory, “fixed”
and inflexible policy determination that the City is not competent to waive,
ignore, or compromise. This is a direct challenge to the trial court’s
conclusion that “a 100΄ landscaped setback from Hansen Road” did not
qualify as a “fundamental, mandatory and specific” land use policy of the
general plan. (Italics added.)
After considerable examination of the matter, we believe the trial court
posed the wrong question. The issue is not whether a single setback on
Hansen Road is “fundamental, mandatory and specific.” Nor is it, as the City
and real parties frame it, whether, in the abstract, “[t]he City’s determination
that the Project is consistent with the SLVSP is reasonable and is supported
by substantial evidence.” The latter question is the ultimate one, but our
6 To be strictly accurate, there are two diagrams in the SLVSP.
Friends quotes from the language next to the first diagram of the “Wine
Country Inn and Restaurant,” which identifies it as comprising “Sites 4C,
5D1, and 5D2,” all of which are to the west of Arroyo Road. The second
diagram has Site 4C located east of Arroyo. Friends has included the first
diagram in its brief, which we take to mean that Friends is representing that
the design depicted in this diagram is the one approved by the City Council.
While there are specific comments regarding each of the three sites, under
the heading “Analysis—All Sites,” the diagram states, “Required setback
(agricultural buffer): 100 feet from Arroyo Road.”
17
answer to it must rest on a determination of what the scope of the 100-foot
setback policy in the SLVSP is and whether that policy is fundamental,
specific and mandatory. (See FUTURE, supra, 62 Cal.App.4th at p. 1341
[framing questions as whether “the land use policy at issue here is
fundamental,” whether “the policy is also mandatory” and whether the policy
was specific (“anything but amorphous”)].)
Here, it appears beyond serious dispute that Policy 4-7, by using the
word “shall,” which is ordinarily accepted as a word of positive command
(e.g., California Correctional Peace Officers Assn. v. State Personnel
Bd. (1995) 10 Cal.4th 1133, 1143; Common Cause v. Board of Supervisors
(1989) 49 Cal.3d 432, 443), and the implementing design guidelines, which
specify that a 100-foot setback is “required,” make clear that setbacks from
public roads are not optional. In short, they are mandatory.
And the language of Policy 4-7, that “[b]uilding setbacks for commercial
uses shall be 100 feet from road frontages” and that “[a]ll setback areas shall
be planted with vineyards and orchards,” as well as the language of the
implementing guideline, that “[a] 100 foot planted building setback is
required from all public roadways for every commercial site” demonstrate
that the setback policy with its 100-foot and planting requirements was
intended to be universal. (Original italics omitted and italics added.) That
is, the requirements apply to all commercial developments fronting on public
roads throughout the area governed by the SLVSP. Further indicative of
their general applicability is the fact that the policy contains a single
exception, for “commercial site #3A.”7
7 The SLVSP requires that site to have a setback of 25 feet but does
not exempt it from the planting requirement. While the plan does not spell
out precisely why the smaller setback is required for parcel 3-A, it indicates
that “[s]ubarea #3, unlike most of the other subareas, adjoins existing
18
In short, the setback policy, including the number of feet required and
the further requirement that setbacks be planted with vines or other
specified vegetation, is mandatory and generally applicable throughout the
area covered by the SLVSP.
We also conclude that the setback provisions are “fundamental,” a
determination that requires consideration of the nature of the policy and its
centrality to the goals and objectives of the General and Specific Plans.
The SLVSP is not a hastily conceived or adopted measure. It was
adopted in 1997 and amended in 2004. It is a substantial enactment
numbering more than 400 pages, was the product of many years of effort and
was “developed with a thorough analysis of environmental conditions and
extensive input from City decision-makers, landowners, neighbors, and the
community-at-large.” It was intended not only to “provide[] a comprehensive
land use program,” but also the “goals, policies, and development standards
to guide future public and private actions” as well as “a strategy for insuring
the Plan’s implementation.” Thus, it aimed to “be used as both a policy and
regulatory document.”
The plan also stated what it was meant to be in practice: “When
private development proposals for the planning area are brought before the
City, the planning staff will use the Specific Plan as a guide for project
suburban uses” and that “[g]iven the adjacent residential subdivision and
community park, new development in Subarea#3 is likely to be perceived as a
logical extension of existing development patterns. The development concept
thus concentrates less on establishing a new ‘rural’ development patterns
[sic], and more on establishing a transition from the existing suburban
development to a permanent rural edge.” The plan goes on to discuss
pushing the development in this area as far to the north and west as possible,
near to existing subdivision development, and providing substantial
agricultural buffers on the south and east sides and a berm on the south side
to accommodate the planting and harvesting of vineyards.
19
review. Projects will be evaluated for consistency with the intent of plan
policies and for conformance with development standards and design
guidelines. For projects within the South Livermore Valley Specific Plan
area, policies and standards in the Specific Plan will take precedence over
more general policies and standards applied throughout the rest of the city.”
Finally, the SLVSP’s approach to setbacks makes it a subject where the
legislative purpose and intent are clear. A major thrust of the plan is to
preserve the character of the South Livermore Valley as a prime “grape-
growing and wine-producing area.” The plan was designed to preserve and
expand “viticultural acreage south of the city,” “enhance the recognition and
image of the area as an important premium wine-producing region,” and
“preserve the area’s unique rural, scenic and historic qualities.” Avoiding
new development that was “just an extension of existing suburban
development patterns,” the plan was designed to create “a new and
permanent ‘edge’ to the urban area” with “development patterns that provide
a more gradual and graceful transition from urban to rural.” “By carefully
integrating the new development with the agricultural setting, the plan
attempts to reduce the visual impact on the rural character of the Valley, and
increase the open space amenity value for the new development.”
The policies the plan sets forth for commercial development, including
the setbacks policy, are the means by which the plan furthers its overarching
goals of preserving and enhancing the rural, wine-country character and
image of the area.
Moreover, the standard for the depth of the setbacks and the
requirement that they be planted with vineyards or orchards are clear and
specific, not amorphous, imprecise or otherwise open to subjective
interpretation. Plainly, the City envisioned the 100-foot depth and the
20
agricultural planting would be the norm. Indeed, it is difficult to imagine
how the drafters of the SLVSP could have been more explicit.
Accordingly, unlike the trial court, we conclude the SLVSP’s setback
policy is a mandatory, fundamental and specific land use policy that does not
permit discretionary enforcement.
Nor can we agree with the trial court’s alternative ground for denying
Friends relief, namely, that “the section of Hansen Road that is at issue in
this case did not exist when the SLVSP was adopted.” Even if true, 8 this is
not legally relevant because there is nothing in the SLVSP indicating that its
provisions and policies applied only to existing roads. Again, the framers of
the SLVSP knew how to craft exemptions, and they did not do so for future
8 Both of the diagrams (dis. opn., post, page 3) clearly show Hansen
Road, thus indicating that it was in existence when the SLVSP was adopted
in 1997 or when it was amended in 2004. In fact, the trial court’s statement
of decision designates 2001 as the time when “Hansen Road was constructed
to the west of Arroyo Road.” However, the diagrams indicate that in 1997,
Hansen Road ended at Arroyo Road and did not proceed across Arroyo or
intersect site 5D. A potential “[f]uture entry road” was depicted on the
diagrams directly across from where Hansen ended at Arroyo and the SVLSP
provided that access to the development would be from this road.
By the time the City approved the project, Hansen Road had been
extended across the site and beyond. As the Planning Commission
Resolution states, “The project is bound by Hansen Road to the north and
Arroyo Road to the east. . . . [¶] . . . [¶] The site will be accessed from Hansen
Road, which provides adequate emergency vehicle access to the site. . . . [¶]
The local streets, including Arroyo Road and Hansen Road, have been
designed to handle the vehicle trips generated by the full build-out of the
Specific Plan, including development of a 30-room inn and restaurant with up
to 100 seats on the project site. Arroyo Road and Hansen Road are classified
as collector streets. According to the Circulation Element of the General
Plan, collector streets are medium capacity streets with volumes ranging
from 5,000 to 20,000 vehicles per day, which is sufficient to carry the
anticipated cumulative traffic volume for the project and existing and
planned developments in the vicinity . . . .”
21
roadways. Such an intent would be completely at odds with the SLVSP’s
aesthetic goals and its stated intent to “provide[] a comprehensive land use
program . . . to guide future public and private actions.” (Italics added).
Contrary to the trial court’s reasoning and the argument of the City
and real parties, the SLVSP could not be revised, altered, or relaxed by
reference to the Public Unit Development Permit, as the trial court appears
to have concluded. As already shown, the SLVSP, as part of the city’s general
plan, could only be amended in certain specified ways. Approving a permit is
not one of those ways. (See §§ 65350, 65353-65356; City of Sausalito, supra,
12 Cal.App.3d at p. 564 [amendment must be made in same mode as original
enhancement].)
Notwithstanding the policy of substantial judicial deference to munici-
pal decisions of this sort, the approval of this project falls outside the ambit of
that deference because there was no need to “ ‘weigh and balance the . . . poli-
cies when applying them’ ” (Golden Door Properties, LLC v. County of San Di-
ego, supra, 50 Cal.App.5th at p. 501) in the sense that there was nothing to
balance; all the City had to do was to apply its fixed policy of requiring 100-
foot setbacks. Accordingly, “no reasonable person could have reached the
same conclusion” as the City Council did here (Orange Citizens, supra,
2 Cal.5th at p. 155), that is, that in reducing the 100-foot setback to a 50-foot
setback on Hansen Road, it was acting in conformity with the SLVSP. Put
another way, the finding of the Planning Commission—which the City Coun-
cil adopted—that “[t]he site plan shows that the building meets all setback
standards” is not only legally erroneous, but also an abuse of the City Coun-
cil’s discretion (FUTURE, supra, 62 Cal.App.4th at p. 1342) and is not sup-
ported by substantial evidence. (See Pfeiffer v. City of Sunnyvale City Coun-
cil (2011) 200 Cal.App.4th 1552, 1563.)
22
The City and real parties tell us that it is the City, not Friends “or the
courts, [which] is in the best position to interpret the appropriate application
of its own Specific Plan.” In general this is a sound principle, one that courts
ordinarily respect. But the City will not be suffered to declare fundamental
policy and then fail to apply it. This is not an example of judicial microman-
aging. It is simply accepting the City’s own SLVSP at face value and requir-
ing that current City officials follow through in conformity with its own fun-
damental and mandatory policy. (See Endangered Habitats League, Inc. v.
County of Orange (2005) 131 Cal.App.4th 777, 789 [“a county cannot articu-
late a policy in its general plan and then approve a conflicting project”].)
B. Floor Area Ratio Calculations
The second SLVSP-related contention pressed by Friends is stated in
the caption of its brief as follows: “The City unlawfully omitted the attached
caretaker’s residence and hotel patios from the Project’s floor area ratio
calculations in violation of the SLVSP and Livermore Development Code.”
Friends reasons that SLVSP Policy 4-6 states that “Commercial
uses . . . will not exceed an FAR of 0.25.” Another provision in the “Land Use
Plans/Conceptual Site Plans” of the SLVSP, directed to “Wine Country
commercial,” states that “Floor Area Ratios (FAR’s) in this designation shall
not exceed 0.25.” There is nothing in the SLVSP that defines “floor area
ratio.” The parties tacitly accept that the term is as defined in the Livermore
Development Code (code): “Floor Area. The sum of the gross area of all
stories of a building, measured from the exterior faces of the exterior walls.
The floor area shall include any building that has a roof and is enclosed so as
to provide shelter from the elements on three or more sides.” The parties
apparently also agree that, applying that ratio to the 3.2-acre site on which
23
the development is to be built results in a maximum floor area of 32,500
square feet.
According to Friends: “The FAR calculations appear as annotations to
the Project’s site plan. They show the City and [real parties] calculated the
total gross square footage on both floors of the hotel to be 29,345 sq. ft., below
the 32,500 sq. ft. limit. However, the record discloses that the City entirely
omitted the 2,200 sq. ft. caretaker’s residence from the FAR calculation.
This omission was unlawful and material given that the [code] expressly
requires a FAR calculation to include ‘any building that has a roof and is
enclosed so as to provide shelter from the elements on three or more sides.’
Had the caretaker’s residence square footage been included in the calculation
as the [code] required, the total floor area is actually 38,367 sq. ft.—far
exceeding the 32,500 sq. ft. maximum.”
The numbers in the foregoing paragraph do not add up. If the square
footage of the hotel and restaurant building is 29,345, as Friends states, and
the caretaker’s residence has 2,200 square feet, the total would be 31,545—a
figure slightly below the maximum 32,500 square foot figure. However,
Friends asserts there was a second omission that, if included, would bring the
total square footage above the maximum. Specifically, Friends contends that
“the City also improperly excluded the square footage of the Project’s enclosed
balconies from the FAR calculations. These balconies, which attach to rooms
on both the first and second floor, contain square footage totaling
6,722 sq. ft.” There is no error in Friends’ math regarding the balconies, but
its argument about the balconies is predicated on two further assertions—
that the balconies are all enclosed on three sides and that the code required
them to be included in the FAR calculation.
24
Contrary to Friends’ argument, whether the code requires inclusion of
balconies is not entirely clear. The code defines “Floor area” as “The sum of
the gross areas of all stories of a building, measured from the exterior faces of
the exterior walls. The floor area shall include any building that has a roof
and is enclosed so as to provide shelter from the elements on three or more
sides.” Even assuming this definition includes any part of a building that
meets these criteria, Friends cites no evidence that the balconies were to be
covered by the roof of the building or that all of them are enclosed on three
sides.
The City and real parties argue that Friends failed to exhaust
administrative remedies on this issue and that in any event Friends failed to
meet its burden to show the City’s conclusions regarding the FAR are not
supported by substantial evidence.
We are not persuaded that Friends failed to exhaust administrative
remedies. As it points out, the issue was raised during the administrative
proceedings, albeit by another participant. In such circumstances, vicarious
exhaustion is permitted. (Cf. Pub. Resources Code, § 21177, subd. (a) [a
CEQA “action or proceeding shall not be brought . . . unless the alleged
grounds for noncompliance . . . were presented to the public agency orally or
in writing by any person,” italics added]; Banning Ranch Conservancy v. City
of Newport Beach (2012) 211 Cal.App.4th 1209, 1228, fn. 9.)
Turning to the merits, however, we are persuaded by the City’s and
real parties’ argument. They contend that the site plan on which Friends
relies for its assertion that the FAR requirement was not met does not specify
what is included in and excluded from the 29,345 square foot calculation, and
that the city manager testified at the administrative hearing that city staff
had included the enclosed balconies in its FAR calculation. They further
25
assert that the FAR limitations in the SLVSP apply only to the commercial
uses and do not apply to the caretaker residence, which is “a separate,
ancillary use.”
We agree that the evidence on which Friends relies fails to show the
City excluded required floor area from its FAR calculation. The evidence
cited by the parties is less than clear on the point, but as Friends concedes in
its reply brief, “it bears the burden of showing that the City’s determination
that the Project complies with the SLVSP’s FAR limitation is not supported
by substantial evidence.” (See San Franciscans Upholding the Downtown
Plan v. City & County of San Francisco (2002) 102 Cal.App.4th 656, 674
[parties seeking mandamus bear burden of proving error].)
Here, the record shows that the City considered the issue and
concluded the FAR standard was met, and the evidence Friends cites does not
show the calculations of the project’s FAR exceeded the 0.25 ratio of floor
area to building site square footage set forth in the SVLSP.
Because Friends has failed to demonstrate any inconsistency, its
argument fails even assuming the FAR policy is fundamental to the SLVSP
as well as mandatory and specific. Although the FAR policy is obviously
mandatory and specific, we need not decide whether it is fundamental.
III.
The CEQA Issue
Friends’ final contention proceeds like this: Assuming that its two
SLVSP arguments are correct—meaning that the City Council did not comply
with SLVSP policies 4-6 and 4-7—which were “adopted for the purpose of
avoiding or mitigating negative impacts on aesthetics and visual resources,”
the aesthetic and visual effects of failure to comply with those policies “are
indisputably considered environmental” under CEQA. It follows, Friends
argues, “that the Initial Study prepared [by the City] under CEQA wrongfully
26
determined the Project would have no significant impacts on land use and
planning.”
Resolution of this issue is predicated on the existence of adverse
environmental impacts if Friends prevails on its contentions that approval of
the project violated the SLVSP. Friends has established the first violation
but not the second. It is thus apparent that this final issue cannot be
resolved at this time but must await further action by the trial court.
DISPOSITION
The judgment is reversed, and the cause is remanded to the trial court
for further proceedings in accordance with this opinion. Friends shall recover
its costs on appeal.
27
STEWART, P.J.
I concur.
RICHMAN, J.
Friends of South Livermore v. City of Livermore (A162471)
28
Friends of South Livermore v. City of Livermore, A162471
Dissenting Opinion of Van Aken, J.
I agree with the majority that Friends has failed to show that the City
excluded required floor area from its FAR calculation and concur in the
majority’s affirmance of the trial court’s decision on this point. I also agree
with the majority’s recitation of the legal standards and governing law that
applies to this case. As the majority correctly sets out, a general plan
adopted pursuant to Government Code section 65300 is a “constitution for all
future developments” within the jurisdiction, and virtually any local
development decision must be consistent with it. (Citizens of Goleta Valley v.
Board of Supervisors (1990) 52 Cal.3d 553, 570–571.) A specific plan, like the
SLVSP at issue here, is used to implement the general plan within a smaller
geographic area (Gov. Code, §§ 65450, 65454), and all subordinate land use
decisions must be consistent with it. I also agree with the majority that
while judicial review of local land use decisions is deferential, we may not
countenance local approval of a project “ ‘if it conflicts with a general plan
policy that is fundamental, mandatory, and clear.’ [Citations.]” (Spring
Valley Lake Assn. v. City of Victorville (2016) 248 Cal.App.4th 91, 100–101.)
Our task is to determine whether a project directly conflicts with mandatory
and specific policies such that “ ‘no reasonable person’ ” could conclude they
were consistent. (San Francisco Tomorrow v. City and County of San
Francisco (2014) 229 Cal.App.4th 498, 518.)
I respectfully depart from the majority, however, in its conclusion that
a 100-foot setback, planted with agricultural crops, from the portion of
Hansen Road west of Arroyo Road is such a fundamental, mandatory, and
clear policy, for two reasons. First, in my view, the SLVSP does not
unambiguously and clearly state that there must be a 100-foot agricultural
1
setback from public roads that were not yet in existence at the time the
SLVSP was adopted. As the majority correctly points out, the SLVSP’s
“ ‘Policy 4-7’ ” states that “ ‘[b]uilding setbacks for commercial uses shall be
100 feet from road frontages . . . [and] planted with vineyards or orchards.’ ”
And the “ ‘Commercial Design Standards & Guidelines’ ” state that “ ‘[a] 100
foot planted building setback is required from all public roadways for every
commercial site . . . .’ ” (Maj. opn., ante, at p. 16.) Taken alone, these policies
might suggest a mandatory and specific command to set back commercial
uses from all past or future roadways, but the SLVSP also includes diagrams
of potential future developments as exemplary applications of the design
standards, and these diagrams suggest that the 100-foot setback requirement
does not apply to roadways that were not yet in existence, as the trial court
concluded. In particular, the diagram shown below depicts site 5D2, the site
at issue here planned for a wine country inn, with the planned but not-yet
extant extension of Hansen Road on its northern side between sites 5D2 and
5D1. The diagram depicts and labels a 100-foot agricultural setback on both
sides of Arroyo Road. But the plantings along the contemplated Hansen
Road extension are depicted differently in the diagram: they are narrower,
and appear to be planted with something other than even rows of agricultural
crops.
2
The other diagram of potential exemplary future uses of site 5D2 is
similar; it states that there is a “[r]equired setback” of “100 feet from Arroyo
Road,” but it does not state or label that setbacks are required from any other
road, including the planned future extension of Hansen Road, and it depicts a
shrub screen rather than agricultural crops along Hansen Road to the north
of site 5D2.
3
In my view, these SLVSP diagrams at a minimum create ambiguity in
the specific plan as to whether the plan commands a 100-foot agricultural
setback along the not-yet extant portion of Hansen Road, and they
undermine any claim that this command is mandatory and clear. Where a
specific plan is ambiguous, local officials are accorded “great deference” in
interpreting it. (Save Our Peninsula Committee v. Monterey County Bd. of
Supervisors (2001) 87 Cal.App.4th 99, 142.) Because I believe that a
reasonable person could interpret the SLVSP as the Livermore City Council
and the trial court did, I disagree with the majority’s contrary determination.
As a second and independent reason why I depart from the majority’s
view on this issue, I conclude that even if the SLVSP includes an
unambiguous and mandatory command that commercial uses have a 100-foot
agricultural setback from all existing and future public roadways, this policy
is not “fundamental” such that the Livermore City Council may not forego it
in order to serve other aims set out in the SLVSP. Here, the record reflects
that a PUD permit was approved in 2001 setting out commercial
development standards for site 5D2 and other nearby sites, and this permit
specified that 50-foot setbacks from Hansen Road were required. I agree
with the majority that the approval of a PUD permit cannot amend or modify
a general plan or a specific plan, but I view the 2001 PUD permit as casting
doubt on the claim that a 100-foot setback from Hansen Road is
“fundamental”; the permit was approved close in time to the 1997 SLVSP and
has stood for 20 years without apparent challenge. In my view, this suggests
that it is at least debatable how important a 100-foot setback from Hansen
Road was to the policies and goals of the SLVSP, and I would defer to the
Livermore City Council’s interpretation of the importance of this requirement
relative to other goals of the SLVSP, such as enabling the development of a
4
wine country inn as specified in the SLVSP. (See Clover Valley Foundation v.
City of Rocklin (2011) 197 Cal.App.4th 200, 239 [finding that “any
inconsistency that exists here is not fundamental” where deviation from
mandatory 50-foot buffers from creeks required by general plan would “likely
conflict[]” with other general plan policies].)
For these reasons, I respectfully dissent and would affirm the trial
court’s resolution of the SLVSP issues presented by this case.
5
_________________________
Van Aken, J.*
Friends of South Livermore v. City of Livermore (A162471)
* Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
6