Tag: Planning and Zoning Law

Fourth District Court of Appeal Holds City’s Scenic View Ordinance Is Considered a Zoning Ordinance under Gov. Code Section 65901 and Therefore Subject to 90-Day Service Deadline for Petition in Section 65009

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In a unanimous opinion, the court in Weiss v. City of Del Mar (2019) 39 Cal.App. 5th 609, upheld the trial court and found that the 90-day service deadline in Government Code section 65009 applied to a planning commission action on a municipal scenic view ordinance. As a result, the court held that a petition for writ of mandate that was served on the City three months after the deadline was time barred.

Background

In August 2016, Petitioner Shirli Weiss submitted an application to the City of Del Mar under its Scenic View Ordinance requesting that Torrey Pacific Corporation, her neighboring property owner, trim its “‘wildly overgrown’” vegetation and trees to restore the ocean view from her property. The Planning Commission held a hearing on the application and, though divided, denied her request. The City Council issued a 2-2 split decision on her appeal in July 2017 which, under the City’s rules, reinstated the Planning Commission’s decision to deny her request.

Weiss filed a petition for writ of mandate against the City and Torrey Pacific in September 2017, but did not serve the City with the petition until December 2017. The respondents jointly moved to dismiss under the 90-day service requirement in Government Code section 65009, subdivision (c)(1)(E). The trial court granted the motion and found it was “‘undisputed’” that this statutory deadline was not met. Weiss appealed. In her appeal, she acknowledged that she served the City more than 90 days after the City Council denied her appeal but contended that section 65009’s deadline did not govern her action.

Time Barred by Section 65009

The Court of Appeal considered the “‘usual and ordinary meanings’” of the plain language in section 65009 within the context of the entire statute. Section 65009, subdivision c, plainly states that a “challenger must file and serve the public entity within 90 days of the challenged decision.” This statute of limitations, the court explained, applies to adoption or amendments of specific plans, general plans, zoning ordinances, development agreements, and regulations attached to specific plans, and all actions “‘done or made prior to any of these decisions.’” (Gov. Code, § 65009, subd. (c)(1).) The service requirement also applies to “‘any decision on the matters listed in Sections 65901 and 65903.’” (Id.) Sections 65901 and 65903 primarily apply to actions related to a zoning ordinance, such as a conditional use permit, variance, or “‘any other powers granted by local ordinance’” to the board of zoning adjustment or zoning administrator. (Id. at § 65901, subd. (a).) The court noted that section 65903 includes zoning board of appeals decisions.

Weiss argued that the City’s Scenic View Ordinance is not a zoning ordinance because it is not within the Municipal Code zoning rules and regulations. The court disagreed, and determined that the Planning Commission was “functionally acting in a zoning board capacity” when it ruled on Weiss’s application. The court explained that the substance of the Scenic View Ordinance required the City to “undertake[] zoning and planning responsibilities,” and therefore it did not matter whether the ordinance was within the City’s Municipal Code. The court cited to Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, where the court held that a tree ordinance was a zoning ordinance. The court noted that any decision made under the Scenic View Ordinance is “quintessentially a public entity decision involving…a land use and zoning determination.” But, the court said, even if it were not a zoning/land use determination, the “‘any other powers’” clause in section 65901 is broad and includes decisions on “a range of issues outside” the categories listed in sections 65901 and 65903.

Weiss also argued that sections 65009 and 65901 only apply to planning or zoning decisions on a project or development, but do not apply to enforcement of an ordinance. Weiss cited section 65009’s stated purpose—to provide “’certainty regarding decisions’” so that owners and governments can “‘proceed with projects.’” The court disagreed with this argument because, particularly where statutory language is “clear and unambiguous,” general statements of statutory purpose “do[] not override the substantive portion” of a statute.  Weiss also argued that the 90-day deadline in section 65009 had only ever been applied to projects or development and never in circumstances like those at issue here. The court agreed with Weiss, but explained that there was no authority stating that section 65009 is triggered only for challenges to projects or developments.

The court also rejected several final arguments from Weiss. First, she argued that the court’s decision to apply the 90-day service rule here would render the statute applicable to all of the Planning Commission’s actions. The court disagreed, pointing back to statutory language that limits 65009 to “zoning and similar land use determinations.” Next, Weiss claimed that the lack of urgency of the current dispute, unlike the expedience necessary for development, precluded applicability of section 65009. The court rejected this argument as an attempt to add language that does not exist in the statute. Additionally, the court explained that tree removal and maintenance issues do need to be resolved promptly. Lastly, Weiss argued that the Scenic View Ordinance specifically mentions Code of Civil Procedure section 1094.6, but does not mention section 65009, so that section must not apply. The court explained that Code of Civil Procedure section 1094.6 addresses filing deadlines but is silent on service of a petition. Both regulations, the court said, can therefore apply simultaneously.

In First Opinion Addressing a Sustainable Communities Environmental Assessment, the Third District Upholds the City of Sacramento’s Approval of an Infill Project

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In Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698, the Third District Court of Appeal upheld the City of Sacramento’s reliance on a Sustainable Communities Environmental Assessment (SCEA), a relatively new method for conducting streamlined CEQA review for certain projects that help the state meet its greenhouse gas (GHG) reduction targets. (See Pub. Resources Code, § 21155.2, subd. (b).) The decision is the first published opinion addressing the propriety of an SCEA. The court held that the transit priority project at issue was consistent with the region’s sustainable communities strategy and therefore the City’s reliance on the SCEA complied with CEQA.

The court also upheld the City’s reliance on a unique provision in its general plan that allows the City to approve projects that are inconsistent with the City height and density limits if the projects offer significant community benefits.

Background

The Sustainable Communities and Climate Protection Act (SB 375) was created to integrate transportation and land use planning to reduce GHG emissions. SB 375 directed the California Air Resources Board to develop regional targets for automobiles and light trucks to reduce emissions. In turn, federally designated metropolitan planning organizations (MPOs) must now include a “sustainable communities strategy” (SCS) in their regional transportation plans/ metropolitan transportation plan (MTP). (Gov. Code, § 65080, subd. (b)(2)(B).) MTP/SCSs direct the location and intensity of future land use developments on a regional scale to reduce vehicle emissions. The Sacramento Area Council of Governments (SACOG) is the MPO for the Sacramento area. SACOG adopted an MTP/SCS for the region in 2012 and certified an EIR for the MTP/SCS at that time.

Under SB 375, the mandated reductions may be achieved through a variety of methods, including “smart growth planning.” The Legislature determined that one type of development that can help reduce vehicular GHG emissions is a “transit priority project.” This type of project contains at least 50% residential use, has a minimum density of 20 units per acre, and is located within one-half mile of a major transit stop.

To boost development of transit priority projects, SB 375 allows for streamlined CEQA review through an SCEA if the project: (1) is consistent with the general use designation, density, building intensity, and applicable policies specified for the project area’ in the strategy; and (2) incorporates all feasible mitigation measures, performance standards, and criteria set forth in the prior applicable environmental impact reports’ and which were adopted as findings. (Pub. Resources Code, §§ 21155, subd. (a), 21155.2, subds. (a), (b).)

The “Yamanee” project at issue in Sacramentans is a proposed 15-story multi-use building made up of one floor of commercial space, three levels of parking, residential condominiums on 10 floors, and one floor of residential amenities. The building is proposed to be located near public transit in Sacramento’s growing “Midtown” area, adjacent to the City’s downtown. The project is located in the MTP/SCS’s central city subarea of a “Center and Corridor Community.” Under the MTP/SCS, Center and Corridor Communities are typically higher density and more mixed than surrounding land uses. SAGOG organized the MTP/SCS in such a way that policies for reducing GHG emissions were embedded in the MTP/SCS’s growth forecast assumptions. Thus, projects that are consistent with the MTP/SCS’s growth forecasts are automatically consistent with the MTP/SCS’s emission-reduction policies.

The City determined that the Yamanee project qualified as a transit priority project and that the project was consistent with the general land use designation, density, building intensity, and applicable policies in the MTP/SCS. Therefore, the City used an SCEA to review the project under CEQA. The SCEA explained that, as a transit priority project, the Yamanee project would increase housing options near high quality transit and reduce vehicle miles traveled. It also explained that the project is consistent with the MTP/SCS’s forecast of low to high-density residential and mixed uses in the center subarea of the Center and Corridor Community.

The City Council upheld the City planning and design commission’s approval of the project and rejected the petitioner’s appeal of that decision. The petitioner sought a writ of mandate in the superior court, claiming that the City’s approval of the project violated CEQA and the planning and zoning law. The superior court denied the petition and the Court of Appeal affirmed.

CEQA

The Court of Appeal rejected the petitioner’s claim that the City erred by relying on SACOG’s MTP/SCS to justify using an SCEA. The petitioner argued that because the MTP/SCS lacked specific density and building intensity standards, the City could not rely on it as a basis for an SCEA. Further, claimed the petitioner, the MTP/SCS undermines the City’s general plan because it treats the City’s center as “higher density,” whereas the general plan sets forth a more nuanced approach under which building intensities and densities increase the closer a development gets to the downtown. These arguments, concluded the court, were premised on a misunderstanding of the MTP/SCS’s role. An MTP/SCS does not regulate land use. The purpose of an MTP/SCS is to establish a regional development pattern, not site-specific zoning. SB 375 authorized the City to review the project in an SCEA if the project was consistent with the regional strategy. Because it was, the city was allowed to rely on an SCEA. Although, as the petitioner contended, reliance on an SCEA could mean that certain projects receive less environmental review than traditionally required under CEQA, the court advised that the petitioner should take this concern to the Legislature, not the courts.

The court also rejected the petitioner’s claim that the City erred by relying on previous EIRs for the general plan and MTP/SCS to avoid analyzing the project’s cumulative impacts. In particular, the petitioner claimed that streamlined review was inappropriate in this case because no prior environmental analysis had considered the cumulative impacts of high-rise development in Sacramento’s midtown. The court explained that CEQA required the City to prepare an initial study (IS) before drafting the SCEA. The City’s IS for the project concluded that cumulative effects had, in fact, been adequately addressed and mitigated, and therefore did not need to be analyzed further in the SCEA. Additionally, the project included all applicable mitigation measures recommended in the prior EIRs. The petitioner failed to show that the City’s analysis was not factually supported. Accordingly, the City did not err by relying on prior cumulative impact analyses.

Planning and Zoning Law

The development proposed by the project is denser and more intense than what would ordinarily be allowed under the City’s general plan and zoning code. The City approved the project, however, under a provision in its general plan that allows the City to approve more intensive development when a project’s “significant community benefits” outweigh strict adherence to the density and intensity requirements. The City determined that the project would have several significant community benefits, including helping the City to achieve its goal of building 10,000 new residential units in the central city by 2025, and reducing dependency on personal vehicles. These, and other benefits, outweighed strict adherence to the City’s density and intensity limits.

The petitioner argued that the City’s decision to allow the Project to exceed the general plan and zoning code’s intensity and density standards constituted unlawful “spot zoning.” The court explained that spot zoning occurs where a small parcel is restricted and given fewer rights than the surrounding property (e.g., when a lot is restricted to residential uses even though it is surrounded by exclusively commercial uses). This case, explained the court, is not a spot-zoning case in that the property was not given lesser development rights than its neighboring parcels. The petitioner argued that the neighboring parcels had, in fact, been given lesser development rights through the City’s approval of the project, but there was no evidence in the record that any neighboring owner sought and was denied permission to develop at a greater intensity or that the City would arbitrarily refuse to consider an application for such development.

The petitioner also argued that the phrase “significant community benefit” as used in the City’s general plan was unconstitutionally vague. The court disagreed, explaining that zoning standards in California are required to be made “‘in accord with the general health, safety, and welfare standard,’” and that the phrase “significant community benefit” was no less vague than the phrase “general welfare.” Additionally, held the court, the phrase “significant community benefit” provides sufficient direction to implement the policy in accordance with the general plan.

The court also held that the City had articulated a rational basis for the policy allowing the City to waive the density and intensity standards for projects that provide significant community benefits, which is all that the Constitution required.

Conclusion

In this case, the City of Sacramento successfully employed CEQA’s streamlined provisions for transit priority projects to expedite and simplify its environmental review of an infill project that will help the City meet its aggressive new housing goal and reduce greenhouse gas emissions. The City’s general plan allowed the City to approve the project because the project would provide significant public benefits, even though the project is inconsistent with the general plan and zoning code’s density and intensity standards. As California continues to combat the dual threats of a housing shortage and climate change, cities and counties are likely to increasingly rely on streamlined approaches to the approval process for mixed-use projects near public transit.

First District Finds CEQA Claim Timely Filed in Case Challenging Approval of Tree Removal

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In Save Lafayette Trees v. City of Lafayette (Oct. 23, 2018, A154168)* ___ Cal.App.5th___, the First District Court of Appeal held that the 90-day statute of limitations period set forth in the Planning and Zoning Law did not apply to petitioners’ CEQA cause of action. Therefore, although the trial court correctly granted the demurrer to petitioners’ Planning and Zoning Law claim, the trial court erred in dismissing petitioners’ CEQA claim.

The case involves the City of Lafayette’s approval of an agreement with Pacific Gas and Electric Company (PG&E) authorizing the removal of up to 272 trees within PG&E’s natural gas pipeline rights-of-way. City staff and PG&E disagreed as to whether PG&E was required to comply with the city’s tree protection ordinance. Rather than requiring PG&E to comply with the city’s tree protection ordinance, however, the city agreed to allow PG&E to remove the trees under a provision of the Lafayette Municipal Code allowing removal of protected trees “to protect the health, safety, and general welfare of the community.”

Petitioners filed a lawsuit challenging the city’s approval of the tree-removal agreement. The petition alleged that the city failed to comply with the Planning and Zoning Law and CEQA in approving the agreement. It also alleged that the city violated the petitioners’ due process rights by failing to give sufficient notice of the hearing at which the agreement was approved.

PG&E filed a demurrer, in which the city joined, asserting that the petition was barred by Government Code section 65009, subdivision (c)(1)(E), which requires that an action challenging a zoning permit be filed and served within 90 days of the decision. The trial court sustained the demurrer without leave to amend, finding that the petition had not been served within the 90-day filing and service period. Based on this, the trial court dismissed the petition in full.

The Court of Appeal agreed with the trial court that petitioners’ Planning and Zoning Law claim was time-barred because petitioners had not served the petition within 90 days, as required by Government Code section 65009, subdivision (c)(1)(E). Government Code section 65009 applies to “any decision” by a legislative body regarding a permit. Although the approval of the agreement was not labeled a “permit,” it was, in effect, a permit authorizing the removal of trees, so section 65009, subdivision (c)(1)(E) applied. Although section 65009’s legislative findings discuss the need for a short limitations period to provide certainty to housing developers, nothing in section 65009 restricts its application to decisions involving houses. The longer statute of limitations found in the city’s Municipal Code did not apply because the shorter limitations period of the Government Code preempted that of the city’s code. Because the due process cause of action derived from the Planning and Zoning Law, the 90-day statute of limitations under the Planning and Zoning Law also barred petitioners’ due process claim.

The 180-day statute of limitations found in Public Resources Code section section 21167.6, subdivision (a), applied to the CEQA cause of action. Because the petition had been filed and served within that time, the trial court erred in dismissing the CEQA claim. Because the CEQA limitations period was twice as long as that of the Government Code, the two statutes of limitations could not be reconciled. Therefore, the statute of limitations under the Planning and Zoning Law did not control the CEQA cause of action.

*Previously published at: 28 Cal.App.5th 622, Rehearing Granted, Opinion Not Citeable November 26, 2018.

First District Holds that Claims that Could Have Been Raised in Prior Litigation Are Barred by the Doctrine of Res Judicata

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In Atwell v. City of Rohnert Park (2018) 27 Cal.App.5th 692,  the First District Court of Appeal upheld a lower court’s ruling in favor of the respondent city on a motion for judgment on the pleadings, finding that petitioner’s claims were barred by the doctrine of res judicata. The First District’s opinion, not originally slated for publication, held that subsequent individual petitioners were in privity with the Sierra Club in a prior suit, that the same claim of inconsistency with the general plan could have been raised in that prior suit, and the public interest exemption to the doctrine of res judicata did not apply in the circumstances of the instant case.

In 2010, the city certified an EIR and related approvals for Walmart to expand an existing store to include a 24-hour supermarket. The city found that the project was consistent with its General Plan’s Policy LU-7, concerning land use for grocery stores. Sierra Club filed suit in 2012 under the California Environmental Quality Act (CEQA) and the state Planning and Zoning law (“Sierra Club action”). While Sierra Club raised the general plan consistency issue in its initial pleading, it did not argue it in its briefing. The court in the Sierra Club action consequently did not address the issue in its decision invalidating the EIR.

The city prepared a revised EIR in 2015, but it did not alter the consistency analysis involving Policy LU-7. The city subsequently reapproved the project. In its 2015 findings, the city stated that the project was even more consistent with Policy LU-7 than before, as it would serve several neighborhoods that were now coming online in the store’s vicinity. Petitioners in the instant action, who had not participated in the prior Sierra Club action, filed this suit. The city successfully moved for a judgement on the pleadings, and this appeal followed.

Following a final judgment on the merits, the doctrine of res judicata bars a party, and persons in privity with that party, from relitigating a claim that was actually litigated or that could have been litigated in the prior action. At issue is whether the current petitioners are in privity with Sierra Club, and if the general plan consistency claim was litigated in the prior action.

The court concluded that the two petitions raised the same general issue, as both alleged inconsistencies with the same general plan policy. The court considered it irrelevant that Sierra Club did not argue this issue in its briefing, even though it raised it, as res judicata extends to claims that could have been litigated, even if they weren’t.

In reaching this decision, the court dismissed the petitioners’ argument that the claims were different because they challenged the newer 2015 findings. For purposes of res judicata, plaintiffs have suffered the same injury when the same primary right is at stake, even if there are different theories of recovery, different forms of relief sought, or if there are new facts supporting recovery. The court distinguished the instant case from other decisions in the land use and CEQA context, where the second suit was a factually-distinct attempt to comply with CEQA and concerned distinct episodes of noncompliance. That was not the case here. Even though the city’s 2015 resolutions were “new” and revisions were made to other sections of the EIR as a result of the Sierra Club action, the court decided that the later petition did not raise concerns about those revisions, and those revisions were unrelated to Policy LU-7.

The court found that the instant and previous parties were in privity, even though the later petitioners were unaffiliated with Sierra Club, did not otherwise coordinate with or collaborate with the Sierra Club, did not participate in the prior suit, and were seeking redress for both public and private harms.

A nonparty is in privity with a prior party if they have an interest so similar to that party’s interest that the party acted as the nonparty’s virtual representative in the first action, such that the nonparty can reasonably expect to be bound by the prior decision. The actual relationship between the parties is not the key question, but rather, those entities’ relationship to the subject matter of the litigation.

Here, both appellants’ petition and the prior petition alleged claims as members of the public and harms that would be suffered by the community. The petitioners failed to distinguish the harms that they would suffer, directly or indirectly, from the harms alleged in the Sierra Club action, nor could the court find meaningful distinction.

The petitioners were adequately represented in the prior suit, even though Sierra Club ultimately decided not to pursue the general plan consistency claim. Lack of adequate representation has been found when the prior petitioner abnegated its role as a public agent, committed a procedural error that prejudiced the outcome, or lacked the funding to pursue the claim. There was no such evidence in this case. The court therefore assumed that the Sierra Club diligently litigated their petition, and made an informed decision not to pursue the consistency argument. The current petitioners were bound by this tactical decision.

The court rejected the petitioners’ argument under the public policy exception. The public policy exception holds that when the issue is a question of law rather than of fact, the prior determination is not conclusive either if injustice would result or if the public interest requires that relitigation not be foreclosed. The petitioners argued that they raised a unique and important issue of statutory construction. But this situation was not a question of law regarding statutory interpretation. Rather, at issue was the interpretation of an ordinance as applied to a project approval. Such a claim inherently requires the court to consider the facts and circumstances surrounding the project, and not just questions of law.

Finally, the court stated that even if the claims were not barred by res judicata, the city’s finding of consistency was not arbitrary and capricious. The city had discretion to interpret its own policies, and could determine that the project would meet that policy’s goal of creating neighborhood-serving supermarkets.

Fourth District Rejects Challenge to the City of Huntington Beach’s Housing Element, Applying Charter City Exemption

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On October 31, 2017 in Kennedy Commission v. City of Huntington Beach  (2017) 16 Cal.App.5th 841, the Fourth Appellate District reversed the lower court,  finding for defendants on the first cause of action under state housing element, zoning, and planning laws. The court of appeal allowed plaintiffs leave to refile their third to sixth causes of actions, which had been dismissed without prejudice in the court below. A separate ruling on plaintiffs’ fee award from the court below is pending.

Background

The California Department of Housing and Community Development (HCD) determines each region’s Regional Housing Need Allocation (RHNA), including each region’s share of lower income housing. HCD then determines if the housing element of a general plan is compliant and reflects the agency’s share of the RHNA. HCD approved Huntington Beach’s general plan housing element in 2013. At the time, the majority of lower income housing was zoned for the Beach Edinger Corridor Specific Plan area (BECSP). Residents complained about the rapid pace of development in this area. In response, in 2015, the city amended the BECSP, cutting the amount of housing in this area by half. This resulted in a 350-unit shortfall of lower income housing for Huntington Beach. The city then sought to amend the housing element of the general plan to provide for lower-income housing in other areas of the city.

Plaintiffs, a fair housing advocacy organization and two lower-income Huntington Beach renters, filed a writ of mandate with six causes of action. The first cause of action was under state housing element law, for adopting a specific plan that was inconsistent with an approved general plan. The second cause of action was for failure to implement the general plan. The third and fourth causes of action were based on Article XI, section 7 of the California Constitution, alleging that the amended BECSP was preempted by state law. The fifth and sixth causes of action were allegations of housing discrimination, for adverse impacts to racial and ethnic minorities.

In an expedited trial, the trial court found that the amended BECSP violated state housing law because it no longer complied with the general plan (plaintiffs’ first cause of action). The trial court found that under Government Code section 65454, a municipality may not amend a specific plan unless the amendment is consistent with the general plan. The city, in violation of this provision, amended the specific plan without first amending the housing element to find other areas where lower income housing could be built. The BECSP amendment was void when passed and could not be enforced. The third through sixth causes of action were dismissed without prejudice. The second cause of action was not pursued on appeal.

Appellate Court Ruling

For the first time on appeal, the city raised the defense that as a charter city, Huntington Beach was exempt from requirements under Government Code sections 65860 and 65454, requiring that zoning ordinances and specific plans be consistent with the general plan. Charter cities with less than two million residents are exempt from these requirements, per Government Code 65803 (zoning) and 65700 (local planning). An exception to this exemption is when the charter city expressly states, in either its charter or by ordinance, that it intends to adopt the consistency requirement, which Huntington Beach alleged that it had not done. Therefore, the defendants argued, while they were required to provide for their share of lower income housing as determined by the RHNA, the city was permitted to amend the general plan to be compliant. To support this argument, the city moved for the appellate court to take judicial notice of the city’s charter and population, providing the factual basis for the city’s charter city exemption.

First, as a threshold matter, the court of appeal exercised its discretion to take judicial notice of documents that were not before the trial court, that are of substantial consequence in the determination of the action. The court chose to exercise its discretion here, because the trial court had not restricted the issues in its expedited hearing. Although this was not a justification for defendants’ failure to raise the issue, this decision afforded the defendants some latitude in this regard.

As to the merits, the court found that Huntington Beach met the requirements for the charter city exemption, and that the exception to this exemption was inapplicable. First, the court found that the consistency requirement was not adopted by the city in its charter. The court then examined Huntington Beach’s zoning ordinance concerning specific plans and determined that the city did not intend to adopt a consistency requirement there, either. In making this determination, the court heavily relied on its decision in Garat v. City of Riverside (1991) 2 Cal.App.4th 259. In Garat, Riverside, also a charter city, enacted two voter initiatives which changed the zoning to favor agricultural uses in specified areas, creating an inconsistency with the general plan.

In Garat, the court rejected the argument that the adoption of any specific plans, even if they were intended to be consistent with the general plan, creates either a presumption that all specific plans in the general plan area must also be consistent, or that a city has generally adopted the consistency requirement in its land use planning.

More importantly, Garat established that Government Code section 67000 exempts charter cities from local planning requirements, in virtually the same way that section 65803 exempts charter cities from the provisions requiring consistency with to specific plans, and these exemptions are strictly construed.

Turning to Huntington Beach’s zoning ordinance, the city did not explicitly state that any specific plan that was not consistent with the general plan was void. The ordinance did use language concerning consistency, but fell short of expressly adopting the language of Government Code section 65454. To adopt the consistency requirement, a zoning ordinance must state that “[n]o specific plan may be adopted or amended” unless it is consistent with the general plan, or else it is void. Absent this, plaintiffs’ attempt to imbue a consistency requirement in the zoning ordinance must fail, as it did in Garat.

The court also rejected plaintiffs’ argument that even if the charter city exemption applied, the amended BECSP should be considered void, as violating state law. Even if the court were to accept that the BECSP violated state law, the remedy would not be to render the BECSP void. Rather, the remedy would be to grant the city time to amend its housing element. The city is already implementing this remedy. The amendment process can proceed, while leaving the amended BECSP in force.

 The court noted while one may question the wisdom of creating the charter city exemption for certain aspects of land use planning, this was clearly the legislative intent.

The ruling is notable for several reasons. It set a high bar for plaintiffs in the Fourth District who are seeking to establish that a charter city has adopted specific plan consistency requirements, absent express adoption of the language of Government Code section 65454. Additionally, the city’s victory may be pyrrhic. As the city conceded, and the court concurred, the general plan’s housing element will ultimately require amendment to provide the city’s designated share of the RHNA. While the city achieved its goal of slowing down the pace of development, plaintiffs may yet refile and potentially prevail on their claims of housing discrimination, incurring liability for the city. Finally, although the court did decide to exercise its discretion and take judicial notice of the city’s charter, if it had not, the court would have had no basis for finding merit in the city’s defense under the charter city exemption. By not raising this defense in trial, the city came close to forfeiting this ultimately successful defense. Therefore, municipalities would do well to note if they are a charter city, and be prepared to argue that defense where applicable in the first instance.

California Supreme Court Rules that Land Use Designation Made by Decades-Old Resolution, but Not Referenced in General Plan Is Not Part of the General Plan

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In Orange Citizens for Parks and Recreation et al. v. Superior Court of Orange County (2016) 2 Cal.5th 141, the City of Orange approved a proposed 39-unit residential development on a former golf course. The project was controversial because the private development would replace open space. Nevertheless, the city approved the project’s proposed general plan amendment to allow residential development on the property. In response, petitioners Orange Citizens for Parks and Recreation et al. challenged the city’s amendment to the general plan by referendum. The city then changed its position, claiming that there was no need to amend its general plan for the development project in the first place, since a resolution from 1973 allowed residential development on the property. The city thus concluded that whatever the outcome of the referendum, it would have no effect on the development. In November 2012, a majority of voters rejected the project’s general plan amendment. The Supreme Court’s decision honored the voters’ intent, holding that the city abused its discretion in determining that the project was consistent with the city’s general plan.

Background

The case has a complicated—and, it is hoped, unique—factual background. Orange Park Acres, the property at issue in the case, is located in the foothills of the Santa Ana Mountains. In 1973, the city established an Orange Park Acres development committee to resolve disputes about what to do with the land. After several weeks of outreach, the development committee adopted the Orange Park Acres Specific Plan (OPA Plan). The OPA Plan designated the property at issue for use as a golf course, or should that prove economically infeasible, for recreation and open space.

The city planning commission considered the OPA Plan, and after hearing, in November 1973, adopted a resolution recommending the city council to adopt the OPA Plan, but with a significant amendment: the OPA Plan should designate the property for open space and low density (1 acre) instead of open space. The City Council adopted the OPA Plan on December 26, 1973. Curiously, however, neither the city council resolution approving the OPA Plan, nor the OPA Plan itself, described the planning commission’s proposed amendments to the OPA Plan.

In 1977, the city council passed a resolution that would allow low-density development in Oak Park Acres, and to update the land use map to reflect this change. Again, for reasons that are unclear, the city never made these changes. Neither the text of the OPA Plan, nor its attached land use policy map, were updated to designate the property low-density residential.

The city again revised its general plan in 1989. The intent of the 1989 General Plan was to establish “definitive land use and development policy to guide the City into the next century.” The 1989 land use policy map, which the general plan described as the “most important” feature of the land use element, designated the property for open space/golf. The 1989 General Plan also incorporated the OPA Plan under the heading “Area Plans”— but the version of the OPA Plan that was publically available designated the property as open space.

In view of these facts, in 2007, when the developer for the residential project at issue submitted its development application, the developer requested a general plan amendment to change the property’s land use designation from “open space” to “estate residential.” In 2009, while the city was still processing the application, the developer’s counsel discovered the 1973 resolution that recommended the OPA Plan designate the property for open space and low-density residential. The developer’s counsel promptly conveyed the resolution to the city attorney, prompting the city to conduct a comprehensive review of its planning documents concerning the property. Based on this investigation, the city attorney concluded: (1) 1973 OPA Plan is part of the general plan; and (2) the OPA Plan designates the property as “Other Open Space and Low Density (1 acre).”

Around that same time, the city was again in the process of revising its general plan. A final version of the general plan was approved in March 2010. The 2010 General Plan identifies the project site as “open space.” But it also references the OPA Plan and states that development must be consistent with the OPA Plan.

On June 14, 2011, the city council certified a final EIR for the project. The final EIR explained that the OPA Plan was part of the general plan, and that at the time the OPA Plan was adopted, the city council intended the project site to be designated for one-acre residential development. Due to a clerical oversight, however, this designation did not make it into the plan itself. The final EIR further reported that the project’s proposed general plan amendment would remove any uncertainty pertaining to the project site’s land use designation and honor the city council’s original intent for the project site.

The city council approved the project, including the project’s proposed general plan amendment. A few days later, the petitioners circulated a referendum petition challenging the city’s general plan amendment. The city council thereafter approved the project’s proposed zone change, concluding that the zone change was consistent with the 2010 General Plan.

Around that same time, the developer’s counsel wrote the city attorney with an “elegant solution” to the referendum: to take the position that the 1973 Planning Commission resolution designated the property for low-density residential, and the clerical error of not recording the designation did not alter the site’s true designation. The city attorney adopted this position, and prepared a report explaining that the project would remain consistent with the general plan regardless of the outcome of the referendum.

In November 2012, the voters rejected the project’s general plan amendment.

The Supreme Court’s Decision

The trial court and the Court of Appeal sided with the city and the developer, holding that the project was consistent with the 2010 General Plan because the 1973 designations applied to the project site, and the clerical failing to record the designations did not alter this fact. The Supreme Court reversed.

In the opinion, authored by Justice Liu, the court first explained that a local agency’s determination of whether a project is consistent with a general plan is a quasi-adjudicative, rather than a quasi-legislative determination. As such, the question before the court was whether the city abused its discretion in finding the project consistent with the 2010 General Plan. The court explained that reviewing courts “must defer to a procedurally proper consistency finding unless no reasonable person could have reached the same conclusion.” (Italics added.) The court determined that under the facts before it, no reasonable person could conclude the residential project was consistent with the city’s 2010 General Plan.

In reaching this conclusion, the court was especially swayed by the fact that members of the public, seeking to review the General Plan, would have no way of knowing that General Plan designated the project site for low-density residential. To the contrary, based on the publically available 2010 General Plan, members of the public would have thought the OPA Plan was consistent with the general plan map designating the property as open space. Indeed, even the city and the developer believed this to be the case—as evidence by the fact that the project proposed a general plan amendment.

The developer argued that the city should not be bound by a clerical error because doing so, in the developer’s view, would give greater power to staff than to the city council. But, explained the court, a city official cannot exercise a “power” that is by definition inadvertently exercised. Nor was there any evidence that staff purposely failed to carry out the intent of the 1973 resolution. And, in any event, the city council could have made it clear that the site was designated for low-density residential when it adopted the 2010 General Plan, but it did not.

Adding to the unreasonableness of the city’s conclusion that the project was consistent with the 2010 general plan was the fact that voters had rejected the project’s general amendment via referendum. As eloquently stated by Justice Liu:

The open space designation for the Property in the 2010 General Plan did not inform the public that the Property would be subject to residential development. The City’s proposed general plan amendment puts its citizenry on notice that such development would be possible. In response, Orange Citizens successfully conducted a referendum campaign against the amendment. If “legislative bodies cannot nullify [the referendum] power by voting to enact a law identical to a recently rejected referendum measure,” then the City cannot now do the same by means of an unreasonable “administrative correction” to its general plan undertaken “’with the intent to evade the effect of the referendum petition.’” [Citation.]

Conclusion

Although there is no specific format a general plan must take, a general plan must still comprise an integrated, internally consistent, and compatible statement of policies for future development. In this case, anyone reviewing the city’s general plan would have concluded that the project site was designated to remain in open space. While one can easily imagine the glee the developer and its attorney must have felt upon discovering the 1973 resolution designating the property low-density residential, in the view of the court, it was too little, too late. If the site was designated low-density residential, the planning documents should have reflected this. After voters expressed their intent not to have the site designated low-density residential, the city should have respected that intent, rather than attempting to re-write 35 years of planning documents. The opinion seems to affirm, however, that in general, the courts must defer to a city or county’s conclusion that a project is consistent with the general plan. Only where—as in this case—no reasonable person could conclude that the project is consistent with the general plan should the courts interfere with the city or county’s determination of general plan consistency.

First District Court of Appeal Applies Substantial Evidence Standard of Review to Subsequent MND and Upholds County’s Decision to Permit Expansion of Buddhist Retreat Center

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In Coastal Hills Rural Preservation v. County of Sonoma (2016) (previously published at 2 Cal.App.5th 1234)* the First District Court of Appeal upheld the trial court’s determination that the County of Sonoma did not violate CEQA or the Planning and Zoning law when it adopted a subsequent mitigated negative declaration (MND) and approved a master use permit to expand the existing Ratna Ling Buddhist retreat center and printing facility.

The Tibetan Nyingma Meditation Center (TNMC) has operated a monastery and retreat center in Cazadero since 1975. In 2004, TNMC purchased an additional property, which it designated the Ratna Ling Retreat Center. Since 2004 Ratna Ling has undergone numerous changes and expansions, including growing from a one-printing-press facility to operating six printing presses. In response to applications from Ratna Ling, the county adopted and approved a series of mitigated negative declarations in 2004, 2008 and 2012. In 2014, Ratna Ling applied for a third multiple-use permit, and the county adopted a subsequent MND to the 2004 and 2008 MNDs, superseding the 2012 MND. The 2014 subsequent MND analyzed Ratna Ling’s application to make permanent four storage tents for its printing-press operation, and construct a new six-bedroom residence and up to eight tent cabins.

Coastal Hills Rural Preservation (CHRP) filed suit, arguing that the county should have prepared an EIR because the project greatly expands the printing-press operation. CHRP also argued that the approval violated the county’s general plan and zoning provisions. The trial court denied the petition, and the First District Court of Appeal affirmed.

CHRP argued that the project was inconsistent with the county’s general plan and zoning provisions in violation of Government Code section 65300. The site is designated for “resources and rural development” under the county’s general plan, which is intended to “protect lands used for timber, geothermal and mineral resource production and for natural resource conservation.” Contrary to CHRP’s argument that the printing press included “extraordinary levels of manufacturing productions …, massive storage structures and commercial Internet sales,” the court found that substantial evidence supported the county’s determination that the proposed uses were consistent with the land use regulations. The court explained that an agency’s determination regarding consistency with its own general plan is given great deference because “the body adopting a general plan has unique competence to interpret those policies when applying them to a proposed project.” There was no evidence in the record that the printing activities were undertaken for profit, the printing press use had been permitted since 2004, and the Board fully considered the county’s land use policies and the extent to which the project conforms to those policies.

The Court of Appeal also affirmed the trial court’s determination that the Board did not violate CEQA. Because the court was considering the county’s decision to prepare a subsequent MND where an MND had already been prepared under Public Resources Code section 21166, the court applied the substantial evidence test rather than the fair-argument standard of review. The court noted that the issue of the standard of review is currently before the California Supreme Court in Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (Sept. 26, 2013, A135892 [nonpub. opn.]), review granted Nov. 5, 2013, S214061).

The court found that substantial evidence supported the Board’s conclusion that any fire risks posed by the storage tents were adequately mitigated: the membranes covering the tents met applicable fire protection standards, there was 200 to 300 feet of defensible space around each tent, and a condition of approval required Ratna Ling to provide and maintain its own onsite fire engine. In addition, the court held that, regardless of whether the county should have included the tents in the baseline for its analysis, substantial evidence in the record indicated that the Board fully considered the potential impacts of the tents.

The court also ruled against arguments put forth by amicus curiae Friends of the Gualala River and Forest Unlimited. Contrary to those arguments, the county’s Hazard Mitigation Plan was not effective until October 25, 2011, well after the storage tents were permitted and constructed, and therefore was inapplicable. In addition, the county did not improperly defer mitigation when it required Ratna Ling to coordinate with the fire district and comply with all fire-related conditions, because the mitigaton simply granted the county the right to impose new, stricter requirements if deemed necessary.

Finally, CHRP argued that the county engaged in impermissible spot zoning. The court explained that because the record and the relevant zoning regulations did not suggest that the authorized use for Ratna Ling is prohibited as to all other parcels in the same zone, this was not impermissible spot zoning in violation of Government Code section 65852.

*On November 22, 2016, the California Supreme Court granted review (210 Cal.Rptr.3d 14), depublished the decision, and transferred the case back to the First District, Division One, for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al. (2016) 1 Cal.5th 937, 957–959. On May 16, 2016, the First District filed an unpublished decision in matter, available at 2017 WL 2118370.

Court of Appeal Upholds Spot Zoning to Allow for Senior Housing

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In Foothill Communities Coalition v. County of Orange, the Fourth District Court of Appeal held that the Orange County Board of Supervisors’ spot zoning to allow senior citizen housing was permissible, reversing the decision below. Community groups and area homeowners had challenged the board’s creation and application of a new zoning definition for senior residential housing. The court upheld the board’s actions as consistent with the local general plan and the specific plan.

The Roman Catholic Diocese of Orange and Kisco Senior Living, LLC wanted to build a senior living community on a parcel of unincorporated land owned by the diocese. Under the North Tustin Specific Plan, the site was zoned as single-family residential. The Board of Supervisors amended the plan to create a new zoning district – the senior residential housing land use district – which it applied to the site. Foothill sought to prevent this development, and the trial court ruled in their favor.

The Court of Appeal reviewed the findings of plan consistency with deference to the board. The court concluded that although the board’s actions did constitute spot zoning, such zoning was permissible here. Spot zoning occurs where a small parcel of property is subject to either more or less restrictive zoning than the surrounding properties. Once a court has determined that spot zoning has occurred, it must then assess whether the zoning is in the public interest.

The court found the zoning amendment to be consistent with the state’s priority of developing senior citizen housing. The California Legislature encouraged senior housing by creating a density bonus for such projects. Furthermore, in Orange County there were 702,919 seniors in 2010, comprising nearly 22% of the county’s population. That figure is expected to increase to 945,081 by 2020 – an 86% increase in ten years. The county found that thousands of these citizens were living alone, dependent on fixed incomes and living with disabilities. Combined with the premise that specific plans “may be amended as often as deemed necessary by the legislative body” and that a project must merely be in agreement or harmony – not in rigid conformity – with a specific plan, the court found substantial evidence supported the board’s actions.

The court also disagreed with the petitioners’ argument that the project violated the Establishment Clause simply because the applicant was a religious organization. Applying the test for government entanglement in religion set forth in Lemon v. Kurtzman (1971) 403 U.S. 602, the court concluded that the zoning change and project approval had a secular legislative purpose: to provide needed housing alternatives for senior citizens in the county. The primary effect of the zoning change was not to advance religion, but rather, to create a senior residential facility. Finally, the zoning change did not create entanglement between government and religion just because the landowner was a religious organization.

The court remanded the matter to the trial court for further consideration of CEQA issues.

Third District Court of Appeal Finds Plaintiff’s Claims Time-Barred under Government Code Section 65009 Because the Suit was not Commenced Within 90 Days After Project Approval

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On November 13, 2012, the Third District Court of Appeal in Stockton Citizens for Sensible Planning v. City of Stockton (2012) __Cal.App.4th__ (Case No. C067164) affirmed a trial court’s judgment that claims brought under the State Planning and Zoning Law were time-barred because the suit was not commenced within 90 days after the City of Stockton approved the project at issue.

On February 17, 2004, the City filed a Notice of Exemption (NOE) regarding the City’s approval of a shopping center project. The NOE identified the project location and indicated that it fell within a fully entitled master planned development adopted on January 9, 2002. The City determined the site plan, grading plan, landscaping plan, and building elevations and design conformed to standards set forth in the master development plan. The City took the position that these determinations of compliance constituted ministerial actions not subject to CEQA review.

On July 22, 2004, the plaintiffs filed a petition for writ of mandate alleging that the City violated CEQA and planning and zoning laws. The Supreme Court ultimately held that the CEQA claims were untimely under the 35-day limitations period set forth in Public Resources Code, section 21167, subdivision (d). The Supreme Court declined to address the timeliness of the remaining causes of action, as neither the trial court nor the Court of Appeal had ruled on the issue. The remaining claims were remanded, and the trial court granted the City’s motion for judgment on the pleadings, holding the non-CEQA claims were barred by Government Code, section 65009, subdivision (c)(1)(E) because they were not brought within 90 days after the City’s approval of the project. The plaintiffs appealed.

On appeal, plaintiffs argued a letter of approval issued for the project did not trigger the 90-day statute of limitations because it was not a permit issued after a decision by a legislative body of the City. The appellate court found that plaintiffs’ argument ignored the express language of Government Code, section 65009, subdivision (c)(1)(E). This subdivision states that the 90-day limitations period applies to actions or proceedings “[t]o attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903…” Section 65901 enumerates the powers of the board of zoning adjustment or zoning administrator and states. In part, “The board of zoning adjustment or the zoning administrator may also exercise any other powers granted by local ordinance.”

The court determined the Stockton City Council, by local ordinance, created the office of Community Development Department Director and vested with this office the authority to review development projects “in compliance with” section 65901. The letter of approval was issued by the City’s Director, who the court found clearly qualified as the City’s “zoning administrator.”

The court also rejected the plaintiffs’ assertion that the Director’s letter or approval did not trigger the limitation period because section 65009 is only applicable to the decision of a legislative body. The appellate court found, when considered as a whole, the language of section 65009 supports a finding that the Legislature intended to include decisions by zoning administrators in the 90-day limitations period.

Finally, the plaintiffs argued the application of Government Code section 65009 requires a public procedure and an opportunity for hearing. Plaintiffs asserted this requirement was implied in the section. Real Parties pointed out that this assertion is refuted by the statute’s express language. Section 65009, subdivision (c)(1)(e), specifically applies to matters listed in section 65901. Section 65901 distinguishes cases involving the authority to hear and decide applications for conditional uses or other permits from the exercise of other powers granted by local ordinance. Additionally, section 65901 expressly authorizes local jurisdictions to allow the grant of certain variances without a public hearing. The appellate court agreed. After finding the plaintiffs’ planning and zoning claims time-barred, the court dismissed the remaining derivative claims.