Get CP&DR
  • Become a subscriber
    Get access to all CP&DR premium articles including the past article archives.
Connect with CP&DR

facebook twitter

Follow us on Facebook and Twitter

Articles by Category
Solimar Research

You Can't Sue Over Policies They Haven't Violated Yet

William Fulton on
Dec 22, 2018

Sometimes local governments adopt land-use policies knowing they’re not likely to actually stick by them in individual cases. But you can’t challenge the policy in court on the assumption that a local jurisdiction won’t follow it. At least that’s the implication of a new appellate court ruling.

Plumas County’s new general plan complies with the state’s Timberland Act and does not appear to open the county up to the threat of rural sprawl, the Third District Court of Appeal has ruled.

An environmentalist challenge to the general plan rests “on an unsupported assumption of rampant future growth in a County where population is expected to begin shrinking during the project’s time period,” wrote Justice Andrea Lynn Hoch for a unanimous three-judge panel.

To the extent that environmentalists suspect that the county’s promise to comply with the Tinderland Act is disingenuous, that assertion is not ripe for court review, the Third District concluded.

Located in a remote area three hours northeast of Sacramento, Plumas County has only about 20,000 residents; that number went down between 2000 and 2010 and is expected to decline again starting in 2025. Most of Plumas County is owned by government agencies and the county’s general plan – updated between 2005 and 2011 – calls for growth to be concentrated in the county’s “planning areas,” which make up about a third of the county’s privately owned land.

Although the general plan does anticipate some development in rural areas, the county’s planning documents don’t anticipate a significant level of such development. As evidence, the county noted that only 3% of development permits between 2000 and 2010 were located in rural areas.

The High Sierra Rural Alliance sued, claiming violations of both the Timberland Act and CEQA. In essence, High Sierra argued that the general plan and other county planning documents contain deliberate loopholes that will facilitate rural sprawl, especially for second-home development. The appellate court rejected all of High Sierra’s arguments, including a request to recirculate the general plan environmental impact report.

Regarding the Timberland Act, High Sierra argued that the county created a loophole in the general plan that conflicted with the state law in a way that would permit more residential development in rural areas. Local planning documents must conform with the Timberland Act and counties are charged with enforcing it.

Under the law, most land uses are prohibited in timberland production ones, but residences are permitted if they are “necessary for the management of land zoned as timberland production.”

Among other things, High Sierra argued that the county violated the Timberland Act by removing this specific language from its general plan policy. Other protections are in place, including a restriction that says a residence may be placed in the timberland zone only on parcels of 160 acres or more.

The county argued that it did not need to include the “necessary for the management” language because it is redundant with state law and the county must enforce the Timberland Act anyway. According to the appellate court, High Sierra doesn’t believe that the county will follow its own policy – but as the court pointed out, that doesn’t help the environmentalists’ argument in a challenge to the policy itself.

“Indeed, the gist of High Sierra’s concerns appears to be the County is simply “disingenuous” about its intent to follow state law,” the court wrote. “This concern, however, does not present a ripe claim for purposes of justiciability. High Sierra cites no evidence County staff are ignoring the requirements of the Timberland Act under the general plan update. And High Sierra has not presented a proper argument or record regarding the manner in which the County assesses whether a residence or structure is necessary to the management of timberland production zoned lands. A challenge to the County’s implementation of its general plan is not yet ripe.”

High Sierra also argued that the county’s ministerial permitting process for such residences violated the Timberland Act’s requirement that such projects be considered on a case-by-case basis, but the court accepted the county’s argument that this requirement is fulfilled by the county’s requirement to make findings of consistency with the Timberland Act.

High Sierra also sought recirculation of the general plan EIR, arguing that the EIR had not fully assessed the possibility that significant rural sprawl would occur under the general plan. But the court rejected that argument as well, saying: “Although High Sierra imagines a worst case scenario for rural sprawl in Plumas County, it does not demonstrate the County erred in relying on its experience and data showing minimal growth outside the planning areas would occur in the reasonably foreseeable future.”

The Case: 

High Sierra Rural Alliance v. County of Plumas, No. C082315 (November 15, 2018)

The Lawyers:

For High Sierra: Michael W. Graf, mwgraf@aol.com 

For Plumas County: James G. Moose, Remy Moose Manley, jmoose@rmmenvirolaw.com

 

0 Comments Posted Leave a comment

 

Add a comment:

Sign in to comment on this entry. (Required)