WOODWARD PARK HOMEOWNERS ASSOCIATION, INC., v. CITY OF FRESNO

Filed 4/13/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Story continued from Part II

3. Exhaustion and preservation

We are satisfied that Woodward Park exhausted its administrative remedies with respect to the statement of overriding considerations and that it is appropriate to reach the merits of this issue on appeal.

Exhaustion of administrative remedies

There is no evidence in the record that the statement of overriding considerations was made available to the public before the day of the city council meeting at which it was adopted. No draft statement is attached to the draft EIRs that were distributed to the public earlier in the process. At least two of the comment letters stated that there were no overriding considerations mentioned in the final circulated version of the EIR. As far as we can tell from the record, the public had only the day of the meeting to review and analyze the statement. Under these circumstances, it is uncertain whether the exhaustion requirement even applies to objections to the statement of overriding considerations. Assuming it does, where the agencys own action severely limited the publics opportunity to review and analyze the document, it would be antithetical to the purposes of CEQA to require the public to articulate precise factual and legal objections to the statement as a precondition to litigating those issues. A more general enunciation of issues related to the statement, sufficient to put the agency on notice that the document may not satisfy legal requirements, is adequate to exhaust administrative remedies.

In light of this, the objections that were raised to the statement of overriding considerations at the city council meeting were sufficient. Woodward Parks attorney observed that the most significant thing in your overriding considerations is that you make a finding or purport to make a finding in your resolution that youve weighed and balanced the detriments caused by the environmental impact which are acknowledged as unavoidable and significant air quality and traffic congestion. A discussion during the meeting between Councilmember Boyajian and Planning Manager Haro explored the merits and demerits of the statement in some detail, however:

Boyajian Whats basically the overriding consideration, why we need a new, another shopping center in this area based on the fact that we dont, that we havent really complied and we cant mitigate the environmental impact?

Haro Attached to your staff report Mr. Boyajian is Exhibit B, its attached to the Resolution Certifying the Final EIR No. 10129. In Exhibit B you will find the Statement of Overriding Considerations for findings of significant and unavoidable impacts. The first listed finding related to this issue of Caltrans is called Transportation and Circulation. What those findings do is say they are overriding social and economic considerations and uh, that need to be considered in order to approve the project to override

Boyajian What does that, what does that mean, I dont understand the general

Haro What that means is and if you look at the details and Ill summarize them for you

Boyajian Yeah summarize them please.

Haro Summarize them for you? One of the overriding considerations, the same thing weve done for Armenian Town EIR, for the master EIR, for the general plan, is the economic job creation situation of this valley. That is an overriding consideration, legally acceptable under the CEQA guidelines.

Boyajian Ok the developments going to cause jobs?

Haro Development crealand development creates jobs, thats correct.

Boyajian Ok.

Haro And the other overriding consideration thats really important in this case is that this project is not generating by the controls weve placed on them, any more traffic than is as it stands now and as it was approved in 1990.

Boyajian Ok.

Haro 12,400 vehicle trips per day. That is a finding of fact that weve included in there.

Boyajian Ok. So basically those are the two overriding considerations.

Haro Those are the two major overriding considerations, thats correct.

Two things are significant about this conversation. First, it included a decision makers skeptical questions about whether the statement coherently set forth the ultimate justifications for the project. This shows that the agency was made aware of potential problems in the statement at that fundamental level.

Second, the city staff members response to the questions misrepresented the contents of the statement. The statement does not say the trip-generation estimate for the project (and a comparison of it with the trip cap previously approved) is an overriding consideration. Logically, it could not make that statement. The trip-generation estimate is a measurement of an environmental impact (or the lack of one) from the project. Overriding considerations are, by definition, not impacts or the lack of impacts. They are reasons for proceeding with a project despite impacts. What is more, the staff members comment was very misleading in light of what the statement did, in reality, say about traffic: that the project would have a significant unavoidable adverse impact on traffic congestion in spite of the mitigating measures the city would be requiring.

The city staff members comments reinforce our view that members of the public did all that was necessary to exhaust administrative remedies. The statement not only was presented to the public at the last possible momentthe same day the decision was madebut a city staff member undermined public efforts to understand the document in the short time available by misstating its contents at the meeting. This is even less understandable since it was city staff who prepared the statement.

For all these reasons, we conclude that administrative remedies were exhausted. Since the statement of overriding considerations was made available only a short time before the city councils vote, and because city staffs presentation of its contents at the meeting was misleading, the brief comments made about the statement at the meeting by members of the public and the council were enough to put the agency on notice. The purposes of the exhaustion doctrineto allow an agency, sufficiently notified of objections by an adequately notified public, to cope with those objections before litigation can occurwere served as well as they could be under the circumstances.

Preservation of statement-of-overriding-considerations issue for appeal

The issue of the adequacy of the statement of overriding considerations was not raised for the first time on appeal. Woodward Park challenged the statement in its fifth cause of action and the trial court ruled on that claim. Arguably, the issue raised by Woodward Park was not the same as the issue we have just discussed. In any event, we do not have to decide whether the relationship is close enough. The statement-of-overriding-considerations issue is as much a matter of law and of public interest as the EIR issues we discussed earlier. Addressing it even if raised for the first time on appeal is appropriate.

II. Treatment of specific environmental issues

In addition to the fundamental flaws in the environmental documents just discussed, the EIRs treatment of other environmental issues requires examination in this case.

A. Traffic: The Caltrans Freeway Mitigation Controversy

Perhaps the oddest component of this case is the issue Zinkin dubs the Caltrans Freeway Mitigation Controversy. Continuing a long-standing practice, the city chose not to require any form of mitigation for the projects impacts on freeway trafficnot because no impacts were identified, or the impacts were not significant, or mitigation was not feasible, but because the city has been dissatisfied with the performance of Caltrans in providing information and considers itself free to refuse to require mitigation so long as its dissatisfaction continues. Though the record shows that this has been a subject of vigorous debate over the years among the city, Caltrans, and opponents of development projects, the fundamental legal question it presents is not difficult. The city must require feasible mitigation measures for significant freeway traffic impacts, just as it must for other significant impacts.

1. Applicable law

An EIR must identify and focus on those environmental impacts of the project that it finds to be significant. (Guidelines,  15126.2, subd. (a).) If the agency has determined that possible impacts are actually not significant, the EIR must make a finding to that effect. (Guidelines,  15128.) The EIR also must describe feasible measures that could minimize significant impacts. (Guidelines,  15126.4, subd. (a)(1).) If more than one mitigation measure is available, the EIR must discuss each and describe reasons for the measure or measures it selects. (Guidelines,  15126.4, subd. (a)(1)(B).) If no mitigation measures are feasible, the EIR must say so. (Guidelines,  15091, subd. (a)(3).) An EIR can find that the feasible measures available to avoid or mitigate a significant impact are within the jurisdiction of another agency which has adopted them or can and should adopt them. (Guidelines,  15091, subd. (a)(2).) In any event, the EIRs findings must be supported by substantial evidence. ( 21081.5.)

In sum, an agency is forbidden to approve a project unless it finds there are no significant impacts; or imposes mitigation measures for all significant impacts; or finds mitigation measures infeasible or within the jurisdiction of another agency. ( 21081, subd. (a); Guidelines,  15091, subd. (a).) If the EIR finds that there are significant impacts for which no mitigation measures are feasible, it must adopt a statement of overriding considerations before approving the project. ( 21081, subd. (b); Guidelines,  15093.)

The one thing an agency cannot do is acknowledge a significant impact, refuse to do or find anything else about it, and approve the project anyway. If the agency does not find the impact insignificant, does not find mitigation infeasible, and does not find mitigation to be within another agencys jurisdiction, it must require mitigation.

2. Analysis: the citys practice regarding mitigation of traffic impacts

The draft EIR dated July 2004 included a table that identifie[d] the PM peak hour trips generated by the project that will impact various segments of the SR 41 mainline and interchanges at Friant and Herndon Avenues and the resulting fair share fee estimate by improvement. Caltrans identified the cost per peak hour trip in its comment letter dated June 1, 2004. The PM peak hour was used since more project trips affect SR 41 segments in the PM peak than trips generated during the AM peak. AM and PM peak hour project-related trips were estimated using the Fresno COG [Council of Governments] Regional Traffic Model. The table showed a total fair share estimate of $31,155.

The draft EIR then refused to require this or any other amount as mitigation on the ground that Caltrans had not provided information the city wanted. It is noted that Caltrans did not provide a source document or nexus study for the cost per trip by improvement or segment along SR 41 identified in [the table]. In the absence of such documentation by Caltrans, such fees have not been required as mitigation or conditions of approval by the City of Fresno. The term nexus study refers to a constitutional requirement described in Nollan v. California Coastal Commn (1987) 483 U.S. 825. As detailed in the Guidelines, this is the requirement that there be an essential nexus (i.e., connection) between the mitigation measure and a legitimate governmental interest. The Guidelines also require that mitigation measures be roughly proportional to impacts, as required by Dolan v. City of Tigard (1994) 512 U.S. 374. (Guidelines,  15126.4, subd. (a)(4).)

As an alternative reason for requiring no mitigation, the draft EIR stated that the project would generate less traffic at peak hours than build-out under existing zoning:

Finally, the proposed project is expected to generate fewer AM or PM peak hour trips than allowed under current zoning estimated to be 489,000 square feet of general office development and 163,000 square feet of office-related commercial development (see Section 3.1, Alternatives to the Proposed Project). Current zoning is expected to generate 931 AM peak hour trips and 1,338 [PM] peak hour trips. The project will generate 651 AM peak hour trips and 1,278 PM peak hour trips. Because the proposed project will generate fewer trips during the congested peak hours than existing zoning, the assessment of fees to address project-related impacts along SR 41 may not be appropriate. The City, however, does not object to the developer voluntarily paying the requested Caltrans fee.^[1]

A Caltrans District 6 official named Moses Stites filed a comment letter dated August 27, 2004, in response to the draft EIR. The letter explained that [v]arious improvements such as auxiliary lanes and additional ramp lanes are currently planned for the State Route 41 interchange at Friant Road, and that the impact mitigation fees Caltrans was proposing were the projects fair share of the costs of those improvements. The total projected cost of these improvements is not reflected in the record, but a later letter from Caltrans put the cost of one component of them, a southbound auxiliary lane between the Friant and Herndon exits, at $11,640,000.

Stites August 27 letter disputed the draft EIRs grounds for refusing to require mitigation. It asserted that basic CEQA principles barred the city from simply declining to require mitigation of an acknowledged impact:

Mitigation measures for a projects impacts must be included in an EIR. This determines if a projects impacts can be eliminated or reduced to a level of insignificance. Eliminating or reducing impacts to a level of insignificance is the standard pursuant to CEQA. The lead agency, in this case the City of Fresno, is responsible for administering the CEQA review process and has the principal authority for approving a local development proposal or land use change. Based on this, it is our understanding that it is the Citys responsibility under CEQA to conduct any necessary nexus study via the environmental process.

The letter also contended that comparing project-generated traffic with traffic that would be generated by a project allowable under existing zoning was not a correct way to measure the projects impact. Please note that at the time the project site was zoned to its current zoning (1990), mitigation for impacts to the State Highway System was not provided. Therefore, generating fewer trips with this rezone is not relevant. The project is responsible for mitigating its identified impacts.

The letter disputed the EIRs conclusion about the correct fee amount. In a table similar to the one in the draft EIR, it showed that the projects fair share was $445,817. The bulk of the difference was for project-generated trips using the proposed southbound auxiliary lane between the Friant and Herndon exists. The proposed mitigation fee for this improvement was $401,920 (157 trips at $2,560 per trip).

The final EIR, dated September 2004, responded to Caltrans comments. It continued to insist that the city was relieved of any obligation to require mitigation because it was not satisfied with the information provided by Caltrans. Other responsible agencies that may be impacted by development such as school and flood control districts had provided calculations that met with the citys approbation, and Caltrans should not abdicate the responsibility for calculating development costs and fees to the city. Further, existing zoning was the correct baseline even though no mitigation was paid when the city adopted existing zoning because the freeway and associated interchanges were not yet constructed then. When they were constructed, the state should at its own cost have designed them to accommodate a built-out landscape in accordance with then-existing zoning.

Although still refusing to require any mitigation, the final EIR included a revised calculation of what the fee would have been had it been imposed. The adjustment appears to correct a tabulation error in the draft EIRs table. Where the original table showed 24 trips on one ramp at $757 per trip and one trip on another ramp at $1,311 per trip, the revised table showed 24 at $1,311 and one at $757. The result was an increase in the total to $43,897.

The final EIR continued to show a fee of zero for the southbound auxiliary lane between Friant and Herndon. The final EIR admitted that the project would have an impact on that lane, confirming Caltrans figure of 157 evening peak-hour trips. These trips will not use 100% of the proposed auxiliary lane, however, so the project should only be responsible for a portion of the auxiliary lane . The city would not state a figure for that partial use because Caltrans needs to identify the per trip costs and methodology applied to derive the per trip fee for the various improvements before fair share costs can be assessed to the project.

Stites responded to these comments in a letter dated October 15, 2004. He agreed that the project should be responsible for only a portion of the 157 project-generated trips on the southbound auxiliary lane from Friant to Herndon. He revised Caltrans total fair-share estimate downward to $306,558. In response to the citys request for cost calculations and methodology, Stites included a detailed explanation of how the figures were derived and attached several worksheets from Caltrans Traffic Engineering Office. Stites also observed that the portion of State Route 41, including the Friant Road interchange, opened in 1989, before the 1990 rezoning, and that it had been designed over a period of years before that, so Caltrans could not possibly have accommodated the rezoning, even assuming it had been under some obligation to do so.

The record contains no response by the city to this last letter. Instead, city staff reported to the planning commission (on Nov. 17, 2004) and the city council (on Dec. 7, 2004) that the city was not obligated to require any form of freeway impact mitigation because Caltrans did not provide the right information. Ultimately, city staff came to the remarkable conclusion that requiring mitigation of freeway traffic impacts would be illegal:

The City has not recommended that the piecemeal application of a state facility traffic impact fee be imposed as a condition of project approval, as it is not evident that Caltrans has accurately documented a project description and cost, a reliable estimate of funding sources, a justifiable nexus or connection between a project and the need for the state facility improvements, and the reasonable proportionality of the projects share of the improvement costs that are necessary to justify the imposition of a traffic impact fee for the improvement of State facilities. This conclusion is based on Caltrans[] submission of varying descriptions of the necessary freeway improvements, the imprecise estimate of costs and probable funding sources, and the lack of adequate information to comply with Fee Mitigation Act requirements applicable to the City of Fresno. In the absence of this documentation it is not legally permissible for the City to impose the requested traffic impact fee.

For his part, Zinkin made clear that he believed there was no obligation to mitigate the freeway traffic impacts of his project in any way. In a letter to Caltrans dated October 20, 2004, an attorney representing the Owners of the property and writing on stationery of the Law Offices of DeWayne Zinkin stated that the Owners do not believe that they are required or obligated to pay any fee whatsoever and believe that they are in fact substantially improving the impact upon the interchange . The letter blamed a variety of factors unrelated to new development in the area for local freeway traffic problems. It then proposed to settle all freeway traffic impact mitigation claims for five Zinkin projects in North Fresno for $100,000. Stites forwarded this letter to the city, stating that he did not believe it was possible under CEQA to enter into a settlement regarding impacts of projects for which EIRs had never been prepared and had not been subject to CEQA review. He also stated that neither the Mitigation Fee Act nor the concepts of nexus and proportionality explained in Nollan v. California Coastal Commn, supra, 483 U.S. 825 and Dolan v. City of Tigard, supra, 512 U.S. 374 could serve as excuses for refusing to require any mitigation for an acknowledged significant impact.

The record reveals that the city refused to require mitigation for freeway traffic impacts. The city did so pursuant to a long-standing policy of refusing to do this, a policy based not on any analysis of what CEQA requires but on a disagreement between the city and Caltrans over what information Caltrans should supply to the city for use in calculating impact fees. Letters in the record and comments in the final EIR reflect action by the city on this basis going back at least as far at 1998.

Simply stated: The citys practice is illegal. There is no foundation for the idea that the city can refuse to require mitigation of an impact solely because another agency did not provide information. The seed of the citys confusion, as evidenced in the city staff report to the planning commission and city council, is its belief that the city needs to require mitigation of this category of impacts only if Caltrans proposes a mitigation measure and then proves to the citys satisfaction that the measure is legal. This is not how CEQA works. When the city identifies an impact of a project, CEQA gives it only four choices: (1) to find, based on substantial evidence, that the impact is insignificant; (2) to find, based on substantial evidence, that although the impact is significant, no mitigation is feasible and the project is justified by overriding considerations in spite of this; (3) to require a mitigation measure and find, based on substantial evidence, that the mitigation measure renders the impact insignificant; or (4) to find that mitigation measures are within another agencys responsibility and that the other agency has adopted them or can and should do so. Caltrans behavior does not create a fifth option.

The city has never claimed that mitigation of freeway impacts is another agencys responsibility, and, in fact, the resolution certifying the EIR recites that there are no unmitigated significant impacts that are the responsibility of another agency. ([T]he Council hereby finds that there are no mitigation measures identified in the [final EIR] that are within the responsibility of another public agency and have been, or can be and should be adopted by the other agency. (Section 21081(a)(2).)) The EIR does not contain a finding that no form of freeway traffic mitigation is feasible or that none can be legally imposed. (See Guidelines,  15126.4, subd. (a)(1), (5).) The record simply contains no legal basis upon which the city could decide to require no mitigation at all for the projects freeway traffic impacts.

Here is another way of putting the point. The city may view this matter as a conflict between it and Caltrans. In referring to Caltrans in the context of this issue at oral argument, counsel for the city said it was their issue and argued that this court should not reach it because Caltrans had not appeared as a party. In reality, the conflict between the city and Caltrans is irrelevant to the citys obligation to require mitigation of impacts. The citys failure to resolve the conflict and require mitigation of these acknowledged impacts only punishes the public. CEQA does not permit this to happen.

The city and Zinkin claim that, in the end, an impact mitigation fee of $45,000 actually was imposed, but the record does not support their claim. During the city councils meeting, Zinkins attorney stood up and proposed in a spirit of compromise that the council impose a freeway traffic impact mitigation fee of $45,000. When Council Member Duncan made his motion to certify the EIR and approve the project, he proposed a modification to accept the $45,000 for Caltrans . The city attorney asked for clarification, inquiring whether [t]he $45,000 voluntary mitigation fee, that would be something that would be added to the resolution adopting and certifying the final EIR. No clarification came. The $45,000 offer was mentioned again later and Council Member Duncans motion to approve the project was eventually seconded and carried. No freeway traffic mitigation impact fee, of $45,000 or any other amount, actually made it into the resolution certifying the EIR. Ironically, another last-minute change included in Duncans motiona prohibition on drive-through restaurantsmanaged to make it into the resolution approving the rezoning. However, the $45,000 freeway-impact fee appears nowhere in the executed resolution certifying the EIR, the exhibits to that resolution, or the changes to the final EIR referenced in the resolution and exhibits.

For these reasons, we cannot conclude that the $45,000 proposal ever became a mitigation measure required by the city. The Guidelines state that mitigation measures must be enforceable. (Guidelines,  15126.4, subd. (a)(2) [Mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments].) The transcript of the oral city council proceedings contains Zinkins donative promise to pay; it also includes an approved oral motion that made reference to the payment. It was never made clear in the oral proceedings, however, whether the council intended to impose this payment as a required mitigation measure or only to accept it as a voluntary contribution. With the mitigation measure omitted from the executed resolution and never incorporated into the EIR, it is doubtful whether an enforceable obligation to pay exists. We do not know why this mitigation measure never made it into the documents the city council formally approved, but the fact is that it did not.

Even if a $45,000 impact mitigation fee had been imposed as part of the project approval, the mitigation of the impact still would not be adequate, because the figure was not supported by substantial evidence. The city describes the difference between the final EIRs figure of $43,897 and Caltrans final figure of $306,558 as a mere difference of expert opinion; it says the city had discretion to rely on the EIR figure because substantial evidence supported that figure even if it also supported another figure. This is not correct. The only difference between the final EIR figure and the final Caltrans figure is that the final Caltrans figure includes a portion of the cost associated with project-generated trips that will use the southbound auxiliary lane between Friant and Herndon Avenues while the final EIR figure does not. As we have already said, the final EIR admits that project-generated traffic will have an impact on that lane but sets the mitigation fee for this impact at zero because of dissatisfaction with Caltrans performance in supplying information. In other words, the EIR admits that its calculation is incompletethat it leaves out a part of the impact that could be mitigatedand refuses to supply a complete calculation. This means the EIRs figure is not supported by substantial evidence.

Finally, as for the argument that the project actually would have no impact on freeway traffic at all, either because the projected daily trips would fall within the previously approved trip cap or because the project would generate fewer peak-hour trips than a built-out project under preexisting zoning, the baseline discussion earlier in this opinion disposes of this idea. The impact of the project had to be measured against vacant land, which of course generates zero trips.

3. Exhaustion and preservation

There is no question that administrative remedies have been preserved with respect to this issue. Caltrans comment letter dealt with the issue exhaustively. In addition, Woodward Park likely preserved this issue by litigating its fifth cause of action, even though it dismissed its first cause of action, which also addressed the issue. We do not rely on this point, however, because Woodward Parks dismissal of the first cause of action might reasonably have been understood as removing all contentions regarding freeway traffic from the trial courts purview. In fact, that is how the trial court understood it.

Due to the exceptions to the preservation doctrine for pure questions of law and issues of public interest, however, we need not decide this question. The issue of the citys illegal policy and its application here was within both exceptions. There is no reason to think a partys affirmative withdrawal (as opposed to its mere neglect) of an issue in the trial court trumps the application of the exceptions.

B. Air pollution

The EIRs air pollution discussion is inadequate for the reason we have already discussed: it proceeds from the wrong environmental baseline, assessing the projects impacts as slight because they are not much greater than the impacts of a built-out development under preexisting zoning and plan designations.

In addition to this, however, Woodward Park argues that the air pollution discussion is inadequate for another reason. It states that there is no disclosure and analysis whatsoever of the correlation of the identified adverse air quality impacts to resultant adverse health effects. Woodward Park relies on Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield), in which we addressed the same issue. In that case, we applied section 15126.2, subdivision (a), of the Guidelines, which requires EIRs to discuss health and safety problems caused by a projects physical impacts on the environment. (Bakersfield, supra, at pp. 1219-1220.)

Because the EIR is inadequate as a matter of law for the other reasons discussed in this opinion, we need not address this issue. We express no opinion about whether the EIRs discussion of the health effects of the proposed projects air pollution impacts satisfied CEQAs requirements.

C. General plan consistency: mix of uses

Woodward Parks claim that project approval was improper because it resulted in inconsistency in the general plan is based on the following provision of the Government Code:

In construing the provisions of this article, the Legislature intends that the general plan and elements and parts thereof comprise an integrated, internally consistent and compatible statement of policies for the adopting agency. (Gov. Code,  65300.5.)

Members of the public may obtain judicial review of the internal consistency of an agencys general plan; the court applies the deferential standard of review set forth earlier in this opinion. The appropriate remedy for inconsistency is a writ of mandate requiring the agency to take action to render the plan internally consistent. (Gov. Code,  65301.5; Murrieta Valley Unified School Dist. v. County of Riverside (1991) 228 Cal.App.3d 1212, 1235.) Woodward Park contends that the citys decision to approve the project, including the necessary changes to the general plan, rendered that plan inconsistent because the project included a smaller housing component than the general plan required for new developments of its kind in the Woodward Park neighborhood.

We agree with the trial courts conclusion that, at the time the city approved the project, the general plan did not require projects to include any specific quantity of housing. The general plan included an appendix titled Landscape of ChoicePrinciples and Strategies, prepared by an organization called Growth Alternatives Alliance. A model ordinance was allegedly attached to the appendix.^[2] This model ordinance, according to the trial court, provides that 20 to 50 percent of the built square footage of a mixed use project should be residential. Woodward Park claims that the model ordinance is binding law because, when the city council adopted the general plan, it also expressly adopted all text, policies, maps, tables and exhibits contained in the plan document. Policy C-8-b of the general plan, however, makes it clear that the model ordinance is only to be used as a source of guidance:

Utilize the model ordinances contained in the Liveable Neighborhood Development implementation guideline of October 2001 (prepared by the Growth Alternatives Alliance for A Landscape of Choice) for guidance in preparation of zoning regulations proposing mixing of residential with nonresidential land uses. (2025 Fresno General Plan (Feb. 1, 2002), ch. 4, p. 38.)

Even without policy C-8-b, we would not be inclined to treat the model ordinance as binding law. Including something called a model ordinance as an attachment to an appendix to a general plan is very different from enacting an actual ordinance. With policy C-8-b, it is apparent that the city did not intend to be bound by any specific ratio of housing to nonhousing uses in mixed-use projects.

This leaves only the general goals and principles for mixed uses set forth in the general plan, such as to [f]acilitate the development of mixed uses to blend residential, commercial and public land uses on one site, and [r]edesignate vacant land for higher density uses or mixed use . (2025 Fresno General Plan, supra, p. 38 & appen. A, p. 178.) We cannot say the city abused its discretion in finding that approval of the project was consistent with these general expressions of policy.

Woodward Parks further argument that the city should have enacted the model ordinance merits little discussion. The argument is that, because the general plan required the city to begin devising implementation measures within 90 days of the plans adoption, and the city did not adopt a mixed-use zoning ordinance until much later (after this case was tried), we should retroactively impose an obligation to adhere to the terms of a hypothetical ordinance requiring 20 to 50 percent housing. Even assuming a remedy like this is legally possible under some conceivable circumstances, nothing here authorizes us to impose the terms of the model ordinance and then reverse the citys action on the ground that it violates the terms we have imposed.

DISPOSITION

The judgment is reversed. The trial court shall issue a writ of mandate ordering the city to reverse its actions certifying the EIR, approving the rezoning, and approving the plan amendments. Appellants shall recover their costs on appeal.

_____________________

Wiseman, Acting P.J.

WE CONCUR:

_____________________

Cornell, J.

_____________________

Dawson, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1]This discussion confused the no-project alternativethe one meant to reflect build-out under existing zoningwith the Planned Office Development alternative. The square footage and peak-hour traffic figures the EIR cites here are the same as those set forth for the Planned Office Development alternative in the EIRs section on alternatives. It was nowhere claimed in the EIR that the Planned Office Development was compatible with existing zoning, so the claim that the proposed project had no freeway impact because the Planned Office Developments peak-hour impact was greater makes no sense. Absent this confusioni.e., if the EIR had compared the proposed project with the no-project alternative, representing existing zoningit is unlikely that the proposed project could be claimed to have less peak-hour freeway traffic. The no-project alternative generated half as many total trips as the proposed project, so a peak-hour spike exceeding that of the proposed project is improbable. All this means that, in addition to the difficulties discussed in the text above, the claim that the proposed project had a smaller peak-hour impact than existing zoning was unsupported by evidence.

^[2]The model ordinance is not included in the administrative record, nor is it part of the copy of the general plan included in the record. In his opening brief, Woodward Parks counsel claims he distributed copies of the ordinance at the city council meeting but admits it is not in the record on appeal. The copy of the general plan posted on the citys public web site (of which we take judicial notice) also does not include the model ordinance. (See .) We rely on the description of the ordinance in the trial courts order and on the trial courts assertion that the ordinance was made part of the appendix.