Federation of Hillside & Canyon Associations v. City of Los Angeles

Opinion

Federation of Hillside and Canyon Associations and Coalition Against the Pipeline (collectively Petitioners) appeal the denial of their petition for writ of mandate against City of Los Angeles and Los Angeles City Council (collectively the city). Petitioners challenged the city’s approval of a revised “General Plan Framework” and the city’s findings and statement of overriding considerations under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) in connection with that approval. We conclude that Petitioners have not shown error and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Prior General Plan Framework, EIR, and CEQA Findings

The General Plan Framework, an element of the city’s general plan, states policies, objectives, and goals for the long-term growth of the city. The

The proposed General Plan Framework included proposed operational and physical improvements to traffic systems and infrastructure, policies to encourage the use of public transit and reduce vehicle trips, and other measures to reduce traffic congestion and improve accessibility. It identified several programs necessary to implement the General Plan Framework, including a proposed “Transportation Improvement Mitigation Plan” (TIMP), described as a program to mitigate the transportation impacts of the General Plan Framework’s land use and growth policies. It also called for the development of a general plan transportation element, superseding the prior circulation element, to describe specific proposals in greater detail. The General Plan Framework provided for the city to continue to monitor population and employment growth and the effects on transportation.

The draft EIR analyzed the environmental impacts of the General Plan Framework, TIMP, and related planning and zoning code amendments. It stated that the General Plan Framework would result in significant increases in traffic congestion and would reduce average freeway speeds by as much as 50 percent by the year 2010. The draft EIR also stated, however, that the mitigation measures included in the TIMP would reduce those impacts to a level of insignificance. It also proposed further mitigation measures, including greater support for zero-emission and low-emission vehicles, greater expansion of bus and rail transit systems, and other measures. It stated that the mitigation measures would reduce the cumulative significant effects on transportation “to the extent feasible.”

The city completed the proposed TIMP in February 1995, after it had circulated the proposed General Plan Framework and draft EIR. The city made the TIMP available to the public in February 1995 but did not provide formal public notice or recirculate the draft EIR at that time. The TIMP included several proposals to improve the existing transportation infrastructure and increase its capacity, provide additional rail and bus transit, and encourage greater use of public transit and telecommuting. The TIMP stated that to implement the proposals would require the cooperative efforts of several state, local, and federal public agencies together with the city at a cost of approximately $12 billion over 20 years. It stated that a substantial portion of the cost must be borne by state and regional agencies, and that a preliminary analysis indicated that the city’s portion of the cost would far exceed its anticipated revenues, including revenues from Proposition C local

The city produced a final EIR in June 1996 and an amended General Plan Framework in July 1996. Both documents cited and relied in large part on the TIMP mitigation measures to alleviate the significant effects on transportation. The final EIR stated that the project-specific effects on transportation were significant but could be substantially reduced through mitigation. It also stated, however, that even with the mitigation measures the cumulative adverse impacts on the Los Angeles region would be significant and unavoidable.

The city also prepared a document entitled “Proposed CEQA Findings and Statement of Overriding Considerations” (Proposed Findings) in July 1996. The Proposed Findings stated that the General Plan Framework’s land use policy and the mitigation measures identified in the TIMP and final EIR would avoid or substantially reduce the significant impacts on transportation, but that even with mitigation the cumulative impact on transportation would be significant and unavoidable. The Proposed Findings discussed several alternatives to the General Plan Framework, concluded that they would not achieve the city’s central objectives and were infeasible, and found that specific overriding considerations outweighed the unavoidable significant effects on the environment.

The city council held a public hearing on the proposal in July 1996 and amended the General Plan Framework. After further public hearings before the planning commission and city council, the city approved the General Plan Framework, adopted the Proposed Findings, and certified the final EIR at a public hearing in December 1996.

2. Prior Litigation

Petitioners filed a petition for writ of mandate in the superior court in January 1997, challenging the sufficiency of the EIR and the city’s failure to recirculate the draft EIR after releasing the TIMP. They argued that in light of the statement in the TIMP that the city’s projected revenues were inadequate to meet its share of the TIMP’s substantial costs, the mitigation measures upon which the draft EIR relied were infeasible, that the mitigation measures depended upon the cooperation of other public agencies and funding from those agencies was highly speculative, and that there was no substantial evidence to support the finding that the significant effects on transportation would be mitigated. They also argued that there was no substantial evidence to support the city’s finding that water resources would be sufficient, that the EIR did not adequately address feasible alternative plans and the impact of

The city complied with the trial court’s order by circulating the TEMP for review and comment beginning in November 1998, while the appeal was pending. The city amended the final EIR by adding its responses to comments on the TIMP and certified the amended final EIR in September 1999.

On appeal, we determined that there was no substantial evidence to support the city’s finding that transportation impacts would be mitigated because the city had acknowledged that funding for the TIMP was higlfiy uncertain and made no provision to ensure that the TIMP would actually be implemented. (Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252 , 1261-1262 [ 100 Cal.Rptr.2d 301 ].) We rejected Petitioners’ challenges to other findings and to the EIR. (Id. at pp. 1262-1265.) We stated, “We find no fault with the EIR itself, but only with the GPF and the city’s finding on transportation impacts.” (Id. at p. 1266.) We concluded that the city’s appeal was moot because the city had complied with the trial court’s order to circulate the TIMP. (Id. at p. 1266.)

We therefore reversed the judgment denying the petition for writ of mandate and remanded the matter with directions to the superior court to grant the petition and order the city to vacate its approval of the General Plan Framework and its finding on transportation impacts. (Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th at pp. 1266-1267.) We stated, “The city may comply with CEQA by amending the GPF so that effective mitigation measures are required as a condition of the development allowed under the GPF or by restricting the scope of development and then making a finding under section 21081, subdivision (a)(1), or by making a finding of overriding considerations as to the significant effects on transportation. [Fn. omitted.]” (Id. at p. 1266.) On remand, the superior court ordered the city to vacate its approval of the General Plan Framework and to “comply with the California Environmental Quality Act,” and quoted the foregoing language from our opinion.

3. Revised General Plan Framework and CEQA Findings

The city council adopted several amendments to the General Plan Framework before we filed our opinion in Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th 1252 . Petitioners do not discuss or challenge those amendments. After our opinion and a new

The new findings state that the General Plan Framework will result in potentially significant impacts that will be mitigated in the areas of housing/population, solid waste, wastewater, water resources, utilities, flood control/drainage, police, recreation and open space, and geologic/seismic conditions, and unavoidable significant impacts in the areas of land use, urban form, air quality, and biological resources. The findings also state that the population, employment, and housing growth provided for in the General Plan Framework will result in significant impacts on transportation, that the mitigation measures in the TIMP and other mitigation measures were incorporated into the general plan’s transportation element in September 1999, and that, contrary to the statement in the TIMP, the city will be able to fund its share of the costs for those measures. The findings state that those mitigation measures also will require funding from county, state, and federal government sources, however, and that adequate funding from those sources is a reasonable expectation but cannot be guaranteed. Citing our prior determination in Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th 1252 that the city had failed to ensure that the mitigation measures would actually be implemented, the findings state that because the city cannot guarantee adequate funding from other government sources, the city has determined that the transportation mitigation measures are infeasible. The findings also state that the impacts on air quality will be significant and that full implementation of the TIMP would substantially lessen those impacts, but that unavoidable significant impacts will result if the TIMP is not fully implemented.

The city also adopted a statement of overriding considerations finding that the unavoidable significant environmental impacts, any potentially significant impacts due to the infeasibility of the TIMP and other transportation mitigation measures, and the cumulative adverse impacts are acceptable in light of particular project benefits. Among the benefits cited in the statement of overriding considerations are strengthening the city’s economic base, providing greater employment opportunities for city residents, protecting the character of low-density residential neighborhoods while accommodating future housing needs, enhancing the city’s role as a regional transportation hub, and accommodating regional growth more effectively and with less environmental impact than could other cities in the region.

Petitioners filed a petition for writ of mandate in the superior court in September 2001 challenging the city’s adoption of the General Plan Framework and the city’s CEQA findings and statement of overriding considerations. The petition alleges that the General Plan Framework, findings, and statement of overriding considerations render the general plan’s land use element inconsistent and noncorrelative with the circulation element in violation of Government Code section 65302, that the evidence does not support the findings and statement of overriding considerations in several respects, and that the city was required to revise and recirculate the EIR in light of the new findings and new information but failed to do so.

After a hearing on the merits, the superior court concluded that our statement in Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th at page 1266, that “the city may comply with CEQA ... by making a finding of overriding considerations as to the significant effects on transportation” was law of the case and therefore rejected Petitioners’ challenges under CEQA. The trial court requested further briefing on whether the cause of action under Government Code section 65302 was barred by either the statute of limitations or res judicata. After further briefing and hearing, the trial court concluded, based on the same statement in our prior opinion, that this court intended to allow the city to determine that the General Plan Framework is preferable to the alternatives, that the court must defer to the city’s determination as long as substantial evidence supports the determination, and that Petitioners’ cause of action under Government Code section 65302 does not challenge the evidence supporting that determination. The court therefore denied the petition and entered judgment for the city in February 2003. Petitioners appeal the judgment.

CONTENTIONS

Petitioners contend (1) the General Plan Framework provides no means to ensure that transportation infrastructure will be adequate to accommodate future population growth, and that inadequacy renders the land use and circulation elements of the general plan inconsistent and noncorrelative; (2) the city’s finding that the TIMP and other measures to mitigate transportation impacts are infeasible due to the uncertainty of funding from sources other than the city amends the General Plan Framework in a manner that will have a different or more severe effect on the environment, so the city must revise and recirculate the EIR; (3) the city failed to consider alternative measures to ensure that development and population growth will not overburden the city’s transportation infrastructure, so there is no basis for the statement of overriding considerations; (4) the evidence does not support the city’s findings

The city contends (1) Petitioners could have argued in the prior action that the general plan is internally inconsistent and noncorrelative but failed to do so, so res judicata bars that contention in this action; (2) the city did not revise the General Plan Framework in a manner that will have a different or more severe effect on the environment, so it had no obligation to revise and recirculate the EIR; (3) this court determined in the prior action that the city could adopt a statement of overriding circumstances on remand, and that determination is the law of the case, so Petitioners’ challenge to the city’s adoption of a statement of overriding considerations must fail; (4) the city’s findings support the statement of overriding considerations; (5) the city had no obligation to consider additional mitigation measures, and collateral estoppel bars any challenge to the EIR; and (6) collateral estoppel bars Petitioners’ challenges to policy statements in the EIR, challenges to the city’s findings concerning impacts on water resources, waste water, solid waste, open space, and utilities, and the challenge to the data supporting the city’s population and housing projections.

DISCUSSION

1. The General Plan Is Not Internally Inconsistent or Noncorrelative

A city or county must adopt a “comprehensive, long-term general plan” for its physical development. (Gov. Code, § 65300.) The general plan must include “a statement of development policies and . . . objectives, principles, standards, and plan proposals” and elements addressing land use, circulation, housing, conservation, open space, noise, and safety. (Gov. Code, § 65302.) The general plan serves as a “charter for future development” (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531 , 540 [ 277 Cal.Rptr. 1 , 802 P.2d 317 ]) embodying fundamental policy decisions (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 , 571 [ 276 Cal.Rptr. 410 , 801 P.2d 1161 ]). The policies in a general plan typically reflect a range of competing interests. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99 , 142 [ 104 Cal.Rptr.2d 326 ].)

The land use element must designate the proposed general distribution and general location and extent of land uses, provide population density and building intensity standards, and identify areas subject to flooding. (Gov. Code, § 65302, subd. (a).) The circulation element must designate “the

A general plan and each of its elements must “comprise an integrated, internally consistent and compatible statement of policies for the adopting agency.” (Gov. Code, § 65300.5.) Zoning and other decisions affecting land use and development also must be consistent with the general plan. (Gov. Code, § 65860, subd. (a); Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 570.)

A general plan is legally adequate if it substantially complies with the requirements of Government Code sections 65300 to 65307. (Gov. Code, § 65751.) “ ‘Substantial compliance . . . means actual compliance in respect to the substance essential to every reasonable objective of the statute,’ as distinguished from ‘mere technical imperfections of form.’ [Citations.]” (Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334 , 348 [ 176 Cal.Rptr. 620 ].) A petitioner may challenge a general plan on the ground that it does not substantially comply with these statutory requirements by way of petition for writ of mandate under Code of Civil Procedure section 1085. (Gov. Code, § 65751.)

The adoption or amendment of a general plan is a legislative act. (Gov. Code, § 65301.5.) A legislative act is presumed valid, and a city need not make explicit findings to support its action. (Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511 , 522 [ 169 Cal.Rptr. 904 , 620 P.2d 565 ]; Corona-Norco Unified School Dist. v. City of Corona (1993) 17 Cal.App.4th 985 , 993 [ 21 Cal.Rptr.2d 803 ].) A court cannot inquire into the wisdom of a legislative act or review the merits of a local government’s policy decisions. (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110 , 118 [ 109 Cal.Rptr. 799 , 514 P.2d 111 ].) Judicial review of a legislative act under Code of Civil Procedure section 1085 is limited to determining whether the public agency’s action was arbitrary, capricious, entirely without evidentiary support, or procedurally unfair. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352 , 361 [ 87 Cal.Rptr.2d 654 , 981 P.2d 499 ]; Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048 , 1070-1072 [ 33 Cal.Rptr.2d 875 ].) A court therefore cannot disturb a general plan based on violation of the internal consistency and correlation requirements unless, based on the evidence before the city council, a reasonable person could not conclude that the plan is internally consistent or correlative. (Cf. A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630 , 648 [ 20 Cal.Rptr.2d 228 ].)

Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90 [ 212 Cal.Rptr. 273 ] (Calaveras) is not on point. In that case, the circulation element stated that state highways were inadequate to accommodate future traffic growth and stated clearly and repeatedly that there were no funds available to construct needed improvements. The land use element provided for a 46 percent growth in population over 10 years and substantial development, but failed to discuss and offered no proposals to mitigate the inadequacy of state highways, other than to lobby the state and federal governments for funding. (Id. at pp. 101-103.) The court stated that the correlation requirement of Government Code section 65302, subdivision (b), means that the circulation element must include measures addressing changed demands on transportation infrastructure caused by changes in land use, and concluded that the proposed highway improvements were not meaningful proposals because the county had acknowledged that there were no funds to construct the improvements. (Calaveras, supra, at pp. 100, 103.) The court concluded that the land use element was not correlated with and was inconsistent with the circulation element because the land use element provided for unlimited population growth yet the circulation element provided no measures either to satisfy the additional transportation needs or to limit growth if state highways were inadequate for future traffic. (Id. at p. 103.)

Petitioners cite Calaveras, supra, 166 Cal.App.3d 90 , for the proposition that the city has an obligation either to limit population growth or to provide measures to manage increased traffic in the event that the TIMP is not fully funded. We do not construe Calaveras in that manner. Rather, we construe Calaveras to mean that the circulation element of a general plan must provide meaningful proposals to address changes reflected in the land use element, and the land use element must provide meaningful proposals to reflect changes reflected in the circulation element. The state highway improvements proposed in Calaveras could not reasonably be considered meaningful because in the circulation element the county clearly acknowledged its inability to fund the improvements. Here, in contrast, the

The agency may prepare a supplement to the EIR in lieu of a subsequent EIR if only minor changes or additions to the EIR are necessary to address the project changes, changed circumstances, or new information. (Guidelines, § 15163, subd. (a).) An agency must provide the same notice and opportunity for public review of a subsequent EIR or supplement to an EIR as is required for a draft EIR. (Guidelines, §§ 15162, subd. (d), 15163, subd. (c).) We review the city’s determination that the conditions requiring preparation of a subsequent EIR or supplement to an EIR were not present under the substantial evidence standard. (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004 , 1018 [ 100 Cal.Rptr.2d 413 ]; see Guidelines, § 15162, subd. (a).)

Petitioners characterize the city’s finding that the TIMP and other measures to mitigate transportation impacts are infeasible due to the uncertainty of funding from sources other than the city as an amendment to the General Plan Framework. We reject that characterization. The city’s finding did not amend the General Plan Framework. A public agency’s findings with respect to a proposed project (Pub. Resources Code, § 21081; Guidelines, § 15091) relate to the project but are separate and distinct from the project itself. (See Pub. Resources Code, § 21065; Guidelines, § 15378.) To the extent the city’s finding reflects changed circumstances surrounding the project, Petitioners have not shown that the changed circumstances compel the conclusion that the significant environmental effects will be different or more severe. The city’s stated goal to implement the TIMP and other mitigation measures remains the same. The city’s finding reflects a greater likelihood that the TIMP will be fully funded and implemented than the city believed at the time of the prior EIR approval, when the city stated that it could not meet its share of the TIMP’s costs. Moreover, the EIR discussed the significant transportation impacts of the General Plan Framework without the proposed mitigation, and Petitioners have not challenged the adequacy of that analysis in the EIR. We therefore conclude that the city’s finding that the mitigation measures are infeasible does not result in either new significant environmental effects or a substantial increase in the severity of significant effects identified in the EIR and does not otherwise trigger the need for a subsequent EIR or supplement to the EIR.

5. Res Judicata Bars Petitioners’ Challenges to Some Findings

The city’s current findings concerning impacts on water resources, waste water, solid waste, open space, and utilities are substantially identical to its prior findings on those matters. Petitioners either did not challenge those findings in the prior litigation or, in the case of water resources, unsuccessfully challenged the finding. (Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th at pp. 1262-1263.)

Res judicata or claim preclusion precludes the relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties or parties in privity with them. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888 , 896 [ 123 Cal.Rptr.2d 432 , 51 P.3d 297 ].) Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding. (Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967 , 974 [ 104 Cal.Rptr. 42 , 500 P.2d 1386 ].) Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated. (Id. at p. 975.)

Two proceedings are on the same cause of action if they are based on the same “primary right.” (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 904.) The plaintiff’s primary right is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. (Ibid.) The scope of the primary right therefore depends on how the injury is defined. A cause of action comprises the plaintiff’s primary right, the defendant’s corresponding primary duty, and the defendant’s wrongful act in breach of that duty. (Ibid.)

Similarly, the California Supreme Court in Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co (1993) 5 Cal.4th 854 , 860-861 [ 21 Cal.Rptr.2d 691 , 855 P.2d 1263 ] determined that the plaintiff suffered a single injury as a result of an attorney’s negligence in connection with a particular debt collection, even though the injury allegedly resulted from two different omissions. The court noted that the two omissions resulted in nonpayment of the same debt and that they “arose from the same transaction.” (Ibid.)

These authorities do not mean that injuries arising from the same set of facts can give rise to only one cause of action. The California Supreme Court has rejected the transactional theory of res judicata. (Agarwal v. Johnson (1979) 25 Cal.3d 932 , 954 [ 160 Cal.Rptr. 141 , 603 P.2d 58 ], disapproved on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563 , 574, fn. 4 [ 88 Cal.Rptr.2d 19 , 981 P.2d 944 ].) Rather, these authorities indicate that in defining the injury suffered, primary rights theory incorporates to some degree a transactional standard. (See Heiser, California’s Unpredictable Res Judicata (Claim Preclusion) Doctrine (1998) 35 San Diego L.Rev. 559 , 569-570.)

The decision in the prior litigation between these identical parties is final because the time to appeal the judgment by the superior court on remand has expired. (Castro v. Higaki (1994) 31 Cal.App.4th 350 , 356-357 [ 37 Cal.Rptr.2d 84 ]; see Sullivan v. Delta Airlines, Inc. (1996) 15 Cal.4th 288 , 303, & fn. 7 [ 63 Cal.Rptr.2d 74 , 935 P.2d 781 ].) The decision is on the merits because the judgment decided the merits of Petitioners’ challenges under CEQA. The CEQA cause of action in the prior proceeding and the CEQA cause of action in the present proceeding are based on the city’s alleged failure to comply with CEQA with respect to the same project, the same EIR, and substantially the same findings.

We see no reason to distinguish between actions and special proceedings (see Code Civ. Proc., §§ 22, 23) for purposes of res judicata if the requirements of the doctrine are satisfied and if the issues asserted in the later proceeding could have been asserted in the prior proceeding. Application of res judicata in those circumstances serves the purposes of the doctrine, to prevent inconsistent rulings, promote judicial economy by preventing repetitive litigation, and protect against vexatious litigation. (People v. Barragan (2004) 32 Cal.4th 236 , 254-255 [ 9 Cal.Rptr.3d 76 , 83 P.3d 480 ]; Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865 , 875 [ 151 Cal.Rptr. 285 , 587 P.2d 1098 ].) Code of Civil Procedure section 1908, a codification of the res judicata doctrine, states that “a judgment or final order in an action or special proceeding” is conclusive as to “the matter directly adjudged.” (Id., subd. (a) & (a)(2).) Moreover, the California Supreme Court has held that a judgment on the merits in a mandamus proceeding is res judicata and is conclusive on all issues that were raised or could have been raised in the proceeding. (Hollywood Circle, Inc. v. Department of Alcoholic Beverage Control (1961) 55 Cal.2d 728 , 733 [ 13 Cal.Rptr. 104 , 361 P.2d 712 ] [“It is settled that the doctrine of res judicata applies to judgments on the merits in proceedings in mandamus. [Citations.]”]; Caminetti v. Board of Trustees (1934) 1 Cal.2d 354 , 356 [ 34 P.2d 1021 ] [held that a superior court judgment in a mandamus proceeding was “conclusive not only as to issues raised but also as to those which could have been raised”].) Although those two cases involved the issue preclusion aspect of res judicata, the Supreme Court in making those statements did not distinguish issue preclusion from claim preclusion, and we conclude that for these purposes no distinction is warranted.

6. The Evidence Supports the City’s Findings on Air Quality Impacts

Petitioners contend the findings state that air quality impacts will be mitigated or avoided. Petitioners contend that finding conflicts with the finding that implementation of the TIMP is infeasible. The city’s finding of TIMP infeasibility differs from its prior finding on that issue, so res judicata

DISPOSITION

The judgment is affirmed. The city is entitled to costs on appeal.

Kitching, J., and Aldrich, J., concurred.

A petition for a rehearing was denied December 3, 2004, and appellants’ petition for review by the Supreme Court was denied February 16, 2005.