Orange Citizens for Parks & Recreation v. Superior Court of Orange Cnty.

Filed 12/15/16
IN THE SUPREME COURT OF CALIFORNIA
ORANGE CITIZENS FOR PARKS AND )
RECREATION et al., )
)
Petitioners, )
) S212800
v. )
) Ct.App. 4/3 G047013
THE SUPERIOR COURT OF )
ORANGE COUNTY, )
) Orange County
Respondent; ) Super. Ct. No. 30-2011-00494437
)
MILAN REI IV LLC et al., )
)
Real Parties in Interest. )
____________________________________)
ORANGE CITIZENS FOR PARKS AND )
RECREATION et al., )
)
Plaintiffs and Appellants, )
) Ct.App. 4/3 G047219
v. )
) Orange County
MILAN REI IV LLC et al., ) Super. Ct. No. 30-2011-00494437
)
Defendants and Respondents. )
)
In 2006, real party in interest Milan REI IV LLC (Milan) purchased over 50
acres of land (Property) in the Orange Park Acres area in the City of Orange
(City). Milan envisioned a 39-unit residential development (Project or Ridgeline
Project) on the Property, which was formerly the home of the Ridgeline Golf
Course and Country Club. But the Project was controversial because the private
development would replace public open space. Despite the controversy, the City
advanced the Ridgeline Project by approving Milan‘s request to amend its general
plan and permit development on the Property. In response, the Orange Parks
Association and a political action committee called Orange Citizens for Parks and
Recreation (together, Orange Citizens) challenged the City‘s amendment by
referendum. The City then changed course, arguing that there was no need to
amend its general plan to approve the Ridgeline Project because a resolution from
1973 permitted residential development on the Property. The City thus concluded
that the referendum, whatever its outcome, would have no effect. In November
2012, 56 percent of voters rejected the City‘s general plan amendment.
The main question before us is whether the 1973 resolution is part of the
City‘s current general plan. The City frames its approval of Milan‘s development
application and reliance on the 1973 resolution as an exercise of its legislative
discretion to which we owe deference. But deference has limits. In light of the
contents of the City‘s 2010 General Plan, no reasonable person could interpret that
plan to include the 1973 resolution. Because we conclude that the City abused its
discretion in interpreting the 2010 General Plan to permit residential development
on the Property, we reverse the Court of Appeal‘s judgment upholding the City‘s
approval of the Project.
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I.
Orange Park Acres covers over 1,500 acres of land in the foothills of the
Santa Ana Mountains. In 1973, Orange‘s city council (City Council) established
an Orange Park Acres development committee to resolve ongoing disputes among
local landowners, developers, and residents. After 10 weeks of outreach and
evaluation, the development committee adopted the Orange Park Acres Specific
Plan (OPA Plan). The OPA Plan designates the Property for use as a golf course
or, should that prove economically infeasible, for recreation and open space.
The City‘s planning commission considered the OPA Plan and, after a
hearing, adopted resolution No. PC-85-73 on November 19, 1973. This resolution
recommended that the City Council adopt the OPA Plan subject to amendments
providing, among other things, that the Property be designated as ―Other Open
Space and Low Density (1 acre)‖ instead of ―Open Space‖ and that the OPA Plan
be adopted as ―representing a portion of the land use element of the General Plan.‖
The City Council adopted the OPA Plan on December 26, 1973. The
pertinent legislative act, resolution No. 3915, upholds the ―recommendation of the
Planning Commission‖ and identifies the OPA Plan as ―the herein described
General Plan for the Orange Park Acres area . . . as set forth in that certain plan
prepared by J.L. Webb Planning Consultants [J.L. Webb], dated September 1973
and as amended by the Planning Commission on November 19, 1973.‖ Neither
the City Council‘s resolution No. 3915 nor the OPA Plan prepared by J.L. Webb
referred to the planning commission‘s resolution No. PC-85-73 by name or
described the planning commission‘s proposed amendments to the OPA Plan. In
1977, the City Council passed resolution No. 4448, which amended the general
plan‘s land use element to permit low-density residential development in Orange
Park Acres and removed the word ―Specific‖ from the title of the OPA Plan. It
also authorized the department of planning and development services to ―make the
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necessary changes to the official maps and text of the Orange Park Acres Area
Plan and Land Use Element of the General Plan so that both documents correctly
reflect‖ these changes.
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 was revised to
designate the Ridgeline Project site as ―Other Open Space and Low Density (1
acre)‖ instead of ―Open Space.‖ If any members of the public had requested a
copy of the OPA Plan, they would have received the unamended OPA Plan with
resolution No. 3915 attached. Neither of these documents included the planning
commission‘s proposed amendments in resolution No. PC-85-73. This oversight
bred confusion from the late 1970s onward. City planning documents and internal
analyses have referred to the OPA Plan in varying and inconsistent terms,
sometimes describing it as part of the general plan, sometimes as a specific plan,
and sometimes as a different type of plan altogether, such as an area,
neighborhood, or community plan.
The City has revised its general plan since the OPA Plan‘s adoption. In
1989, the City adopted a general plan intended to ―establish definitive land use and
development policy to guide the City into the next century.‖ On the 1989 land use
policy map, identified by the general plan as the ―single most important feature‖ of
the land use element, the Property is designated as ―OS/Golf‖ or ―Open
Space/Golf.‖ The 1989 General Plan incorporated the OPA Plan under the
heading ―Area Plans.‖ The publicly available OPA Plan also designated the
Property as ―Open Space.‖
In light of this history, both Milan and the City believed a general plan
amendment would be required to develop the Property. When Milan submitted a
development application in 2007, it requested a general plan amendment to change
the Property‘s land use designation from ―Open Space‖ to ―Estate Residential,‖ as
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well as a change in zoning from ―Open Space‖ to ―R-1-40.‖ In a September 2009
draft environmental impact report on the Project, the City agreed that Milan‘s
proposed changes were required. The report indicated that the existing general
plan designation for the Property is ―Open Space,‖ while finding that the Project
was otherwise consistent with the 1989 General Plan and the OPA Plan.
In late 2009, as the City was processing Milan‘s development application,
Milan‘s counsel discovered resolution No. PC-85-73 and conveyed it to the city
attorney, prompting the City to conduct a comprehensive review of planning
documents related to the Property. In a December 22, 2009, letter to the Orange
Park Acres Homeowners Association, the city attorney reached the following
conclusions: (1) the 1973 OPA Plan is part of the general plan, and (2) the OPA
Plan designates the golf course portion of the property as ―Other Open Space and
Low Density (1 acre).‖ The city attorney observed that the OPA Plan and the
Ridgeline Project were inconsistent with the City‘s general plan but asserted that
―[f]rom a processing standpoint, [the city attorney‘s] findings have little impact on
the Ridgeline project‖ because ―the Plan‘s designation for the golf course is Other
Open Space and Low Density (1 acre).‖
At that time, the City was also revising its general plan, a final version of
which was adopted in March 2010. The 2010 General Plan includes an
introduction and 11 enumerated elements. It refers to (but does not incorporate)
―[s]everal supporting documents [that] were produced during the development of
the General Plan, including‖ an environmental impact report (EIR), a land use
survey, a circulation model, inventories of historical and cultural resources, and
market studies. It states, ―The organization of the General Plan allows users to
identify the section that interests them and quickly obtain a perspective of the
City‘s policies on that subject . . . . Policies are presented as written statements,
5
tables, diagrams, and maps. All of these components must be considered together
when making decisions.‖
The 2010 General Plan also discusses ―ordinances, plans, and programs that
should be consulted in association with the General Plan when making
development and planning decisions.‖ The 2010 General Plan directs readers to
consult ―Specific Plans and Neighborhood Plans in Orange‖ that ―are intended to
provide more finite specification of the types of uses to be permitted . . . .‖ The
OPA Plan is listed as an ―Adopted Specific Plan[] and Neighborhood Plan[].‖
While citing the OPA Plan as an example of ―[e]arlier planning efforts that have
influenced the growth and change within Orange,‖ the 2010 General Plan states
that specific and neighborhood plans, including the OPA Plan, ―must be consistent
with the policies expressed‖ in the land use element.
Part of the land use element is the land use policy map, which ―indicates
the location, density, and intensity of development for all land uses citywide.‖ It
designates the Project site as ―Open Space‖ and defines ―Open Space‖ as ―[s]teep
hillsides, creeks, or environmentally sensitive areas that should not be developed.
Although designated as permanent open space, most areas will not be developed
as public parks with the exception of river and Creekside areas that promote
connectivity of the City‘s trails system.‖
In July 2010, the planning commission advised the City Council that a
general plan amendment was ―needed to (i) clarify and amend the original and
unchanged terms of the existing OPA Plan which permitted both golf course and
one-acre residential uses by amending the OPA Plan land use designation to Low
Density – One Acre Minimum, . . . and (iv) make the General Plan land use
designations for the subject property consistent throughout the General Plan.‖ The
planning commission recommended approval of such an amendment, general plan
amendment No. 2007-0001, and found that ―[u]pon approval of the proposed
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amendments to the General Plan, the project is consistent with the goals and
policies‖ of the 2010 General Plan.
On June 14, 2011, the City Council certified the final environmental impact
report (FEIR) for the Project. The FEIR concluded that the OPA Plan was part of
the general plan based on the city attorney‘s review of the City Council‘s actions
in 1973. The report found that at the time the OPA Plan was adopted, ―the very
specific intent‖ of the City Council was that ―one-acre residential lots be permitted
on the Property.‖ It explained that ―most likely through clerical oversight and
contrary to the express terms of resolution No. 3915, the textual changes
recommended by the Planning Commission and approved by the City Council
were never entered into any official copy of the OPA Plan. [¶] . . . In approving
[general plan amendment] 2007-0001, it is the intent of the City Council to
exercise its legislative discretion to honor the intent of the original adoption of the
OPA, remove any uncertainty pertaining to the permitted uses of the Property, and
allow uses on the Property which the City Council believes to be appropriate.‖
The FEIR concluded that ―contingent on passage of the proposed General Plan
Amendment the proposed project would be both consistent and in many cases
furthers the City‘s policies.‖
Also on June 14, 2011, the City Council adopted a general plan
amendment, stating that ―[u]pon approval of the proposed amendments to the
General Plan, the project is consistent with the goals and policies of the City‘s
General Plan that was approved by the City Council on March 9, 2010, including
the OPA Plan which is part of the General Plan Land Use Element pursuant to
City Council adoption of Resolution 3915 in 1973 that included the OPA Plan as
‗part of the required land use element to be included in a General Plan for the City
of Orange.‘ ‖
7
On June 17, 2011, Orange Citizens circulated a referendum petition
challenging the City‘s general plan amendment. Orange Citizens filed the
referendum with the city clerk on July 12, 2011, precluding the general plan
amendment from taking effect. (See Elec. Code, § 9241.) But that same day, the
City Council moved forward with the Ridgeline project, implementing Milan‘s
requested zoning change and approving the development agreement with Milan.
The City Council made several consistency findings, including a finding that the
zoning change was ―consistent with and further[ed] the objectives and policies of
the Orange Park Acres Plan, which is part of the land use element of the General
Plan, as amended by General Plan Amendment 2007-001,‖ and that the
development agreement was ―consistent with the objectives, policies, general land
uses, and programs specified in the . . . General Plan as amended by General Plan
Amendment 2007-001, which General Plan includes the Orange Park Acres Plan
as part of its land use element.‖
On August 18, 2011, counsel for Milan wrote to the city attorney with an
―elegant solution.‖ Counsel posited that City staff had inadvertently failed to
update the OPA Plan to conform to the planning commission‘s recommendations
in resolution No. PC-85-73 as adopted by the City Council in resolution No. 3915.
This clerical error, Milan suggested, could not change the fact that the true
designation for the Property was ―Other Open Space and Low-Density Residential
(1 acre).‖ Thus, the general plan amendment was not required to permit the
Project to go forward. Instead, the ―legal inadequac[y]‖ in the 2010 land use
policy map could be remedied through ―administrative correction.‖
The city attorney adopted this solution and, in an August 23, 2011 report,
suggested that the general plan amendment‘s defeat by referendum would ―not
necessarily negate the other actions the City Council took‖ to advance the
Ridgeline Project. While acknowledging that a general plan amendment would
8
make ―the OPA Plan more internally consistent than it is without‖ and ―more
consistent with the approval of the Project,‖ the city attorney reasoned that the
project ―would remain consistent [with the general plan] irrespective of repeal of
the [general plan amendment].‖
Meanwhile, on July 26, 2011, Milan filed a petition for writ of mandate and
complaint for injunctive and declaratory relief to stop the referendum. Orange
Citizens cross-complained, seeking to nullify the zone change and the Project‘s
approval as inconsistent with the Property‘s land use designation under the 2010
General Plan. Milan filed its own cross-complaint, seeking to establish that the
Project could proceed regardless of the outcome of the referendum because the
Property‘s land use designation was controlled by the 1973 OPA Plan.
Alternatively, Milan argued that the general plan amendment‘s defeat would be
devoid of any legal effect because it would result in an internally inconsistent
general plan.
In July 2012, the trial court entered judgment in favor of Milan. The court
ordered the City to remove the referendum from the ballot and allow Milan to
proceed with the Project ―in accordance with the actual and original General Plan
designation of the property as ‗Other Open Space and Low Density (1 Acre).‘ ‖
Orange Citizens filed a petition for writ relief, requesting that the Court of Appeal
vacate the trial court‘s orders, reinstate the referendum to the November 6, 2012
ballot, and enter judgment in their favor. On July 12, 2012, the Court of Appeal
issued an order to show cause and granted Orange Citizens‘ request for a stay of
the trial court‘s order, allowing the public to vote on the referendum.
The referendum appeared on the November 2012 ballot. The city
attorney‘s analysis in the ballot pamphlet stated that the amendment ―clarifies that
the Orange Park Acres Plan is part of the land use element of the City of Orange‘s
General Plan and that the land use designation of ‗Other Open Space and Low
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Density (1 acre)‘ is the existing General Plan land use designation on the 51 acres
of property.‖ It explained that the general plan amendment was enacted in
connection with the Ridgeline Project and concluded that the ―land use map,
which shows solely an ‗Open Space‘ land use designation on the 51-acre site,
would also be revised to reflect the ‗Other Open Space and Low Density (1 acre)‘
General Plan land use designation.‖ In November 2012, 56 percent of voters
rejected the general plan amendment.
Despite the referendum, the Court of Appeal affirmed the Project‘s
approval on July 10, 2013. Framing the central issue as ―whether the Project is
consistent with the City‘s pre-General Plan Amendment general plan,‖ the Court
of Appeal deferred to the City‘s consistency finding and found that substantial
evidence supported the City‘s decision. The Court of Appeal further found that
the land use designation in the 2010 land use policy map did not bar Milan‘s
requested zoning change because ―the Policy Map is not the end of the analysis.‖
The Court of Appeal identified ―contradictions and ambiguities that call into
question the possibility of definitively determining the land use designation of the
Property in the general plan,‖ including ―ambiguity in the land use classification
of the Property‖ and ―ambiguity in [the City‘s] planning documents.‖ But the
court found that this uncertainty counseled in favor of deferring to the City
Council‘s judgment.
With respect to the practical effect of the referendum, the Court of Appeal
held that despite the persistence of ―erroneous information‖ in the 2010 General
Plan, the vote ―does not alter the reasonableness of the City Council‘s conclusion
that the open space designation is an error and not a substantive inconsistency.‖
The court reasoned that because the City has the power to ―fix errors in the Orange
Park Acres Plan and the Policy Map by reference to previously adopted
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resolutions of the City Council,‖ the amendment did not ―matter with regard to the
major points of contention.‖
We granted review.
II.
The Legislature has recognized that ―decisions involving the future growth
of the state . . . are made and will continue to be made at the local level.‖ (Gov.
Code, § 65030.1; all undesignated references are to this code unless otherwise
indicated.) To ensure that localities pursue ―an effective planning process‖
(§ 65030.1), each city and county must ―adopt a comprehensive, long-term general
plan‖ for its own ―physical development‖ as well as ―any land outside its
boundaries which in the planning agency‘s judgment bears relation to its
planning.‖ (§ 65300.) When adopting general plans, localities must ―confront,
evaluate and resolve competing environmental, social and economic interests.‖
(Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 571
(Goleta Valley).) Because of its broad scope, long-range perspective, and primacy
over subsidiary land use decisions, the ―general plan has been aptly described as
the ‗constitution for all future developments‘ within the city or county.‖ (Id. at
p. 570.) Accordingly, ―[t]he process of drawing up and adopting these revisions
often becomes, essentially, a ‗constitutional convention,‘ at which many different
citizens and interest groups debate the community‘s future.‖ (Fulton & Shigley,
Guide to California Planning (4th ed. 2012) p. 118.) ―During the preparation or
amendment of the general plan, the planning agency shall provide opportunities
for the involvement of citizens, California Native American Indian tribes, public
agencies, public utility companies, and civic, education, and other community
groups, through public hearings and any other means the planning agency deems
appropriate.‖ (§ 65351.) A legislative body must refer its proposal to a number of
listed public entities before adopting or amending a general plan. (§ 65352.)
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Planning commissions must hold at least one public hearing and make a written
recommendation to the legislative body; legislators must hold at least one public
hearing before acting on the recommendation. (§§ 65353–65356; see § 65354.5 [a
planning agency authorized to approve or amend a general plan must ―establish
procedures for any interested party to file a written request for a hearing by the
legislative body‖ and must provide public notice of any hearings].)
A general plan may be issued in ―any format,‖ including ―a single
document‖ or ―a group of documents relating to subjects or geographic segments
of the planning area‖ (§ 65301, subds. (a), (b)), so long as it ―comprise[s] an
integrated, internally consistent and compatible statement of policies for the
adopting agency‖ (§ 65300.5). It also must include development policies,
―diagrams and text setting forth objectives, principles, standards, and plan
proposals,‖ and seven predefined elements — land use, circulation, conservation,
housing, noise, safety, and open space. (§§ 65302, subds. (a)–(g), 65303.)
Until 1971, the general plan was ― ‗just an ―interesting study,‖ ‘ ‖ which did
not bind local land use decisions. (deBottari v. City Council (1985) 171
Cal. App. 3d 1204, 1211 (deBottari).) But now ― ‗[t]he propriety of virtually any
local decision affecting land use and development depends upon consistency with
the applicable general plan and its elements.‘ ‖ (Goleta Valley, supra, 52 Cal.3d at
p. 570, quoting Resources Defense Fund v. County of Santa Cruz (1982) 133
Cal. App. 3d 800, 806; see §§ 65359 [requiring that specific plans be consistent
with the general plan], 66473.5 [same with respect to tentative maps and parcel
maps], 65860 [same with respect to zoning ordinances], 65867.5, subd. (b) [same
with respect to development agreements].) ―A zoning ordinance that conflicts
with a general plan is invalid at the time it is passed.‖ (Lesher Communications,
Inc. v. City of Walnut Creek (1990) 52 Cal. 3d 531, 544 (Lesher).) In addition, the
general plan must be internally consistent. ―Internal consistency requires that
12
diagrams in the land use, circulation, open space, and natural resource elements
reflect the written policies and programs of those elements.‖ (Barclay & Gray,
California Land Use & Planning Law (35th ed. 2016) p. 23.) In other words, ―the
requirement of consistency . . . infuse[s] the concept of planned growth with the
force of law.‖ (deBottari, supra, 171 Cal.App.3d at p. 1213.) ― ‗An action,
program, or project is consistent with the general plan if, considering all its
aspects, it will further the objectives and policies of the general plan and not
obstruct their attainment.‘ ‖ (Governor‘s Office of Planning & Research, General
Plan Guidelines (2003) p. 164.)
The Government Code guarantees the public a role in adopting and
amending a general plan. (§ 65300 et seq.) ―The process . . . is structured to
transcend the provincial. Public participation and hearings are required at every
stage, in order to obtain an array of viewpoints.‖ (Goleta Valley, supra, 52 Cal.3d
at p. 571.) The Governor‘s Office of Planning and Research encourages local
governments to structure their procedures to facilitate public involvement and
suggests making planning materials available in different languages, conducting
advertising and outreach to different segments of the community, holding events
in familiar and welcoming spaces, and providing ―access to information about the
issues that are being addressed by the process.‖ (Governor‘s Office of Planning &
Research, General Plan Guidelines, supra, at p. 144; see id. at pp. 144–148.) At a
more basic level, meaningful public participation in the planning process requires
that the public have access to the general plan. Since 1984, the Government Code
has mandated that ―[c]opies of the documents adopting or amending the general
plan, including the diagrams and text,‖ be made available to the public ―one
working day following the date of adoption‖ or ―two working days after receipt of
a request for a copy.‖ (§ 65357, subd. (b)(1), (2).)
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III.
In support of the City‘s approval of the Project, Milan emphasizes that
―[t]he OPA Plan was comprehensively reviewed and considered by the public
when it was adopted in 1973. There is no evidence in the record to indicate that
any of the subsequent General Plan amendments intended to change the
designation of the Ridgeline Property in the OPA Plan.‖ However, the relevant
land use designation for the Property is not the general plan designation from
1973, but rather the designation in effect in 2012 after the voters rejected the
City‘s general plan amendment. The import of that vote depends, in turn, on the
Property‘s status before the City sought to amend the general plan in 2011. Milan
contends that an amended OPA Plan has been continuously in effect since 1973,
so the voters‘ rejection of the general plan amendment in 2011 merely preserved
the status quo of the Property as zoned for open space and residential
development. Orange Citizens argues that the Property‘s designation is solely
open space, as determined by the text and maps in the publicly available version of
the 2010 General Plan, so the voters‘ rejection of the 2011 amendment means that
the Property remains open space. We conclude that Orange Citizens has the better
view.
As an initial matter, Milan and the City correctly contend that our review in
this case is confined to whether the City abused its discretion in finding the Project
consistent with the 2010 General Plan. A city‘s determination that a development
approval is consistent with its general plan has been described by some courts as
―adjudicatory‖ (San Franciscans Upholding the Downtown Plan v. City & County
of San Francisco (2002) 102 Cal. App. 4th 656, 678) and by others as ―quasi-
legislative‖ (Endangered Habitats League, Inc. v. County of Orange (2005) 131
Cal. App. 4th 777, 782). Where a consistency determination involves the
application of a general plan‘s established land use designation to a particular
14
development, it is fundamentally adjudicatory. In such circumstances, a
consistency determination is entitled to deference as an extension of a planning
agency‘s ― ‗unique competence to interpret [its] policies when applying them in its
adjudicatory capacity.‘ ‖ (San Franciscans Upholding the Downtown Plan, at
p. 678.) Reviewing courts must defer to a procedurally proper consistency finding
unless no reasonable person could have reached the same conclusion. (Id. at
p. 677; see Joshua Tree Downtown Business Alliance v. County of San Bernardino
(2016) 1 Cal.App.5th 677, 695–696; San Francisco Tomorrow v. City and County
of San Francisco (2014) 229 Cal. App. 4th 498, 514–515.)
Although the City and Milan contend that the City found the Project
consistent with the 2010 General Plan, the record shows that the City Council‘s
consistency finding was conditioned upon the general plan amendment in 2011
that was negated by referendum. The City Council found that the relevant zoning
change for the Property was ―consistent with and further[ed] the objectives and
policies of the Orange Park Acres Plan, which is part of the land use element of
the General Plan, as amended by General Plan Amendment 2007-001.‖ (Italics
added.) It also found that the relevant development agreement was ―consistent
with the objectives, policies, general land uses, and programs specified in the . . .
General Plan as amended by General Plan Amendment 2007-001, which General
Plan includes the Orange Park Acres Plan as part of its land use element.‖ (Italics
added.) But even if we assume that the City found the Project consistent with the
2010 General Plan, we cannot uphold its approval of the Project under the terms of
that plan.
The invalidity of the City‘s consistency finding is evident from the text of
the 2010 General Plan and the City‘s and Milan‘s own understanding of it.
Members of the public who requested the City‘s general plan at the time relevant
here would have received its 2010 General Plan, a document with an introduction,
15
11 elements, and several appendices. The introduction defines the General Plan as
consisting of these documents and explains how the document should be
interpreted. The introduction begins by clarifying that even if the reader is only
interested in a particular parcel, he or she may have to consult all of the 2010
General Plan‘s elements: ―The organization of the General Plan allows users to
identify the section that interests them and quickly obtain a perspective of the
City‘s policies on that subject. However, General Plan users should realize that
the policies in the various elements are interrelated and should be examined
collectively . . . . All of these components must be considered together when
making planning decisions.‖ The introduction refers to several supporting
documents but does not indicate that these documents have the authority of a
general plan. It expressly mentions the OPA Plan but makes clear that as a
specific plan ―[f]alling under the broader umbrella of the General Plan,‖ the OPA
Plan ―must conform to General Plan policy‖ and ―must be consistent with the
policies expressed in this Element.‖
One of those policies in the land use element is an unambiguous
designation of the Property as open space. The 2010 General Plan includes a land
use policy map within its land use element and notes that the map ―indicates the
location, density, and intensity of development for all land uses citywide.‖ The
map designates the Property as open space and defines ―Open Space‖ as ―[s]teep
hillsides, creeks, or environmentally sensitive areas that should not be developed.‖
No other element, appendix, or document incorporated into the 2010 General Plan
states otherwise. The publicly available OPA Plan, which ―must be consistent‖
with the land use element under the terms of the 2010 General Plan, also
designates the Property for use as a golf course and, in the alternative, as open
space.
16
With such a specific land use designation for the Property, and without any
competing designations, policies, or extant amendments to the contrary, no
reasonable person could conclude that the Property could be developed without a
general plan amendment changing its land use designation. Indeed, for several
years, both Milan and the City agreed that the Property was designated for use as
open space. Even after Milan identified resolution No. PC-85-73, the City
continued to recognize that the 2010 General Plan designated the Property solely
for open space, although it maintained that this defect would not be fatal to the
Project.
Milan and the City argue that the OPA Plan is a part of the City‘s general
plan and that the OPA Plan designates the Property‘s allowable land uses as
―Other Open Space and Low Density (1 acre).‖ But the 2010 General Plan
designates the OPA Plan as a specific plan, and the OPA Plan a citizen would have
received in 2010 would have shown, in text and graphics, that the disputed
property was not to be developed. The 1973 Resolution No. 3915 referred to the
J.L. Webb draft OPA plan, which designates the property as a golf course or, if
that should prove economically infeasible, for recreation and open space.
Resolution No. 4448, from 1977, amended the general plan and directed that the
OPA Plan be corrected to reflect that the property could be subject to low density
development, but that correction never occurred. As a result, not only does no
language permitting low density development appear in the publicly available
OPA Plan, but the language that does appear designates the property for use as a
golf course or open space. The 1973 planning commission amendment
authorizing residential development never became integrated into the publicly
available OPA Plan, let alone the 2010 General Plan. (See Gov. Code, § 65300.5;
see also id. §§ 65302, 65303.) Any reasonable person examining the documents
17
publicly available in 2010 would have concluded that the OPA Plan was consistent
with the General Plan map designating the Property as open space.
Even if Milan and the City were correct that the 1973 planning commission
amendment did properly amend the OPA Plan to authorize low-density residential
development on the Property, this would have made the OPA Plan inconsistent
with the 2010 General Plan‘s land use designation for the Property. The City
attempts to downplay the facial inconsistency between the 2010 General Plan, on
one hand, and its interpretation of the OPA Plan and the Project, on the other. It
stresses that no project is entirely consistent with a general plan ― ‗ ―[b]ecause
policies in a general plan reflect a range of competing interests .‖ ‘ ‖ (Friends of
Lagoon Valley v. City of Vacaville (2007) 154 Cal. App. 4th 807, 816.) For this
reason, ―[s]tate law does not require perfect conformity between a proposed
project and the applicable general plan.‖ (Id. at p. 817; see also id. at p. 816
[― ‗ ―A reviewing court‘s role ‗is simply to decide whether the city officials
considered the applicable policies and the extent to which the proposed project
conforms with those policies.‖ ‘ ‖].) Accepting this argument, the Court of Appeal
found that the City‘s history with the OPA Plan created ―contradictions and
ambiguities‖ in the City‘s general plan and thus deferred to the City‘s consistency
finding.
But here, while the Property is designated solely for open space in the
General Plan, the Ridgeline Project calls for low-density residential development.
No consistency between the 2010 General Plan and the Project can be found. The
City does not point to any countervailing policy consideration from the General
Plan that the Ridgeline Project furthers, nor does the City contend that it was
trying to balance various competing interests in its consistency finding. (Friends
of Lagoon Valley, at p. 816; see Families Unafraid to Uphold Rural etc. County v.
Board of Supervisors (1998) 62 Cal. App. 4th 1332, 1342 [planning agency abused
18
its discretion by finding consistency between a development and its land use
element where the development‘s ―inconsistency with [a] fundamental, mandatory
and specific land use policy [was] clear‖].) Contrary to the Court of Appeal‘s
suggestion, the OPA Plan‘s history does not inject ambiguity into the City‘s 2010
General Plan.
The City did not need to structure its general plan as it did in 2010. A city
may enact a general plan in any form it chooses. (§ 65301, subd. (a).) The City
could have vested an amended version of the OPA Plan with general plan
authority by adopting resolution No. PC-85-73 as a separate document that was
incorporated into the 2010 General Plan. The City could have decided to conduct
its general planning piece by piece, accumulating a general plan over time. But
that was not what the City did, and on this point, the 2010 General Plan is
unambiguous: The 2010 General Plan is an integrated document, authoritative
except as amended. The City may have manifested a contrary intention in older
documents such as resolution No. 3915 and resolution No. 4448. But the 2010
General Plan did not mention much less incorporate those resolutions. Instead, it
designated the Property for exclusive use as open space in its policy map.
Relying on Las Virgenes Homeowners Federation, Inc. v. County of Los
Angeles (1986) 177 Cal. App. 3d 300 (Las Virgenes), the Court of Appeal opined
that ―the Policy Map is not the end of the analysis.‖ In Las Virgenes, the county
approved a development agreement for a project that was inconsistent with the
land use designation apparently set forth in a high-level general plan land use map,
but consistent with the applicable area plan‘s land use map. (Las Virgenes, at pp.
310–311.) Upholding the county‘s approval, the Court of Appeal noted that the
general plan in that case provided that ―a proposal may be consistent even if not
literally supported by the map,‖ that ―mere examination of land use and other
policy maps is insufficient to determine consistency,‖ and that ―policy maps are
19
general in character and are not to be interpreted literally or precisely.‖ (Id. at
p. 310.) Further, the general plan ―was designed to include the more specific
areawide [sic] plans as component parts‖ (id. at p. 311), especially since the
countywide general plan land use map only displayed patterns that were 50 acres
or larger (id. at p. 310). ―The areawide plan serve[d] to complete, extend and
refine the General Plan land use policy, not contradict it.‖ (Id. at p. 312.)
Las Virgenes does not provide support for the City‘s approval of the Project
here. Las Virgenes simply illustrates that uses of a particular parcel of land must
be discernible from the general plan itself, however a city may choose to organize
it. The general plan in that case directed interested parties to the other relevant
documents, explained the relationship between the main body of the general plan
and those documents, and indicated that the land use policy map did not identify
the uses for every small parcel of land. In this case, the City chose to organize its
general plan differently. By its own terms, the 2010 General Plan contains only an
introduction, 11 elements, and several appendices. The introduction clarifies that
a reader must consult all of the General Plan‘s elements to be certain of a
particular parcel‘s use. The 2010 General Plan does not incorporate any extant
documents designating the Property‘s land use as anything other than open space,
and it notes that its policy map ―indicates the location, density, and intensity of
development for all land uses citywide.‖ Thus, residential development on the
Property is inconsistent with the 2010 General Plan under its express terms.
Milan argues that the City, after it adopted the 1973 resolution purporting
to make the OPA Plan part of the general plan, never gave notice that it intended
to change the general plan‘s designation of the Property. But why would the City
and interested members of the public over the past 35 years consider amending the
general plan‘s open space designation if the publicly available general plan
already reflects such a designation? We must conclude that the 2010 General Plan
20
means what it says: The Property is designated as open space (―[s]teep hillsides,
creeks, or environmentally sensitive areas that should not be developed‖), a
designation inconsistent with residential development like the Project.
Milan further argues that ―[t]he City is not bound by a clerical error‖
because clerical errors cannot invalidate the provisions of a general plan; they are
not legislative acts that comply with the Government Code‘s requirements for
general plan amendments. To hold otherwise, Milan argues, would give municipal
staff greater power than the City Council. But a city official cannot exercise a
―power‖ that is by definition exercised inadvertently. Nor is there any allegation
or evidence in the record indicating that a city official intentionally flouted the
City Council‘s directive to write resolution No. PC-85-73‘s proposed changes into
the OPA Plan in 1973. In any event, it is undisputed that the properly enacted
provisions of the 2010 General Plan could amend a general plan. So while ―[t]he
City is not bound by a clerical error,‖ it is bound by its failure to modify the OPA
Plan to conform to resolution No. PC-85-73‘s proposed changes and to incorporate
those changes into the 2010 General Plan.
CONCLUSION
A general plan and its specific plans have been described as a ―yardstick‖;
one should be able to ―take an individual parcel and check it against the plan and
then know which uses would be permissible.‖ (Barclay & Gray, Curtin‘s
California Land Use & Planning Law, supra, at p. 31.) ―[P]ersons who seek to
develop their land are entitled to know what the applicable law is at the time they
apply for a building permit. City officials must be able to act pursuant to the law,
and courts must be able to ascertain a law‘s validity and to enforce it.‖ (Lesher,
supra, 52 Cal.3d at p. 544.) That is why cities are directed to make their general
plans available to the public. (§ 65357, subd. (b).) Public access has little value if
the general plan‘s policies are not readily discernible. (See City of Poway v. City
21
of San Diego (1991) 229 Cal. App. 3d 847, 862–863 [―Even though the general
plan is always subject to change [citation], the material in the plan must have some
current utility in order for the public to become informed of the current and
projected land uses depicted in the plan.‖].)
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 put 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 intent to evade the effect of the referendum petition.‘ ‖
(Assembly v. Deukmejian (1982) 30 Cal. 3d 638, 678.)
22
For the reasons above, we reverse the judgment of the Court of Appeal.
LIU, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
23
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Orange Citizens for Parks and Recreation v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 217 Cal. App. 4th 1005
Rehearing Granted
__________________________________________________________________________________
Opinion No. S212800
Date Filed: December 15, 2016
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: Robert J. Moss
__________________________________________________________________________________
Counsel:
Daniel P. Selmi; Shute, Mihaly & Weinberger, Rachel B. Hooper, Robert S. Perlmutter and Susannah T.
French for Petitioners and for Plaintiffs and Appellants.
Kerr & Wagstaffe, Michael von Lowenfeldt for Professor Joseph F.C. Dimento, Terrell Watt, AICP,
Greenbelt Alliance and the Planning and Conservation League as Amici Curiae on behalf of Petitioners and
Plaintiffs and Appellants.
Zach Cowan, City Attorney (Berkeley); David Kahn, City Attorney (Brisbane), Teresa Stricker, Deputy
City Attorney; and Julia Hayward Biggs, City Attorney (Menifee) for City of Berkeley, City of Brisbane
and City of Menifee as Amici Curiae on behalf of Petitioners and Plaintiffs and Appellants.
Michelle Wilde Anderson and David Pettit for California Native Plant Society, Center on Biological
Diversity, Center on Race, Poverty & the Environment, Communities for a Better Environment,
Endangered Habitats League, Friends of Harbors, Beaches, and Parks, Hills for Everyone, Natural
Resources Defense Council and Sierra Club as Amici Curiae on behalf of Petitioners and Plaintiffs and
Appellants.
Linda Krop for Environmental Defense Center as Amicus Curiae on behalf of Petitioners and Plaintiffs and
Appellants.
Wayne W. Winthers, City Attorney; Woodruff, Spradlin & Smart and David A. DeBerry for Real Parties in
Interest and for Defendants and Respondents Mary Murphy, City Clerk of the City of Orange, City Council
of the City of Orange and City of Orange.
Duane Morris, Colin L. Pearce, Keith Zakarin, David E. Watson and Heather U. Guerena for Real Party in
Interest and for Defendant and Respondent Milan REI IV LLC.
Page 2 – S212800 – counsel continued
Counsel:
Nicholas S. Chrisos, County Counsel, and Leon J. Page, Deputy County Counsel, for Real Parties in
Interest and for Defendants and Respondents Neal Kelley and Orange County Registrar of Voters.
Jennifer B. Henning; Michael R.W. Houston City Attorney (Anaheim); Mark W. Steres, City Attorney
(Cerritos); Michael J. Shirey, Deputy City Attorney (Chula Vista); and Douglas C. Holland, City Attorney
(Palm Springs) for California State Association of Counties and the Cities of Anaheim, Cerritos, Chula
Vista and Palm Springs as Amici Curiae on behalf of Real Parties in Interest and Defendant and
Respondents.
No appearance for Respondent Superior Court.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Robert S. Perlmutter
Shute, Mihaly & Weinberger
396 Hayes Street
San Francisco, CA 94102
(415) 552-7272
David A. DeBerry
Woodruff, Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626-7670
(714) 558-7000
Colin L. Pearce
Duane Morris
Spear Tower
One Market Plaza, Suite 2200
San Francisco, CA 94105-1127
(415) 957-3000