General and Specific Plans

In a case of first impression published on October 25, 2019,  Denham, LLC v. City of Richmond,  Cal.App.5th __ (2019) (Case No. A154759), the First District Court of Appeal agreed with a trial court that a ballot initiative to preclude development on 430 acres in Richmond’s El Sobrante Valley caused the Richmond General Plan to become impermissibly inconsistent.  But the Court reversed as to the appropriate remedy, and it ordered the trial court to issue a writ of mandate directing the City to cure the inconsistency.

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Senate Bill 330, known as the Housing Crisis Act of 2019 and authored by State Senator Nancy Skinner (D-Berkeley), passed the California legislature on Friday, September 6, 2019, with strong support from numerous organizations supportive of the production of new housing.  For a five-year period ending January 1, 2025, SB 330 would require local governments to process housing permits faster, prevent local governments from “changing the rules in the middle of the game,” and suspend certain housing limits.  Although various local agencies and groups that favor strong local land use control opposed SB 330, Governor Gavin Newsom has publicly championed substantial housing production goals and is certain to sign the bill.

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On July 18, 2019, in Sacramentans for Fair Planning v. City of Sacramento, __ Cal.App.5th __ (2019), the Third District Court of Appeal affirmed a trial court decision denying a “vertical” consistency challenge filed by “Sacramentans for Fair Planning” after the City of Sacramento approved a15-story “high-rise” condominium building—known as the “Yamanee” project—in the City’s Midtown area.  The plaintiff group also challenged the City’s streamlined CEQA review of the project under a sustainable communities environmental assessment (“SCEA”).  My partner, Art Coon, analyzed those issues in the CEQA Developments blog.
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On October 1, 2018, in Westsiders Opposed to Overdevelopment v. City of Los Angeles, __ Cal.App.5th __ (2018) (Case No. B285458), the Second District Court of Appeal denied an appeal challenging the City of Los Angeles’ approval of the Martin Expo Town Center, an 800,000 square foot mixed-use project on a five-acre site in West Los Angeles.  The project includes the demolition of Martin Cadillac, along with the construction of 516 residential units in a seven story building, 99,000 of ground floor retail space, and 200,000 square feet of office floor area in a ten story building.

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On August 23, 2018, the California Supreme Court held, in City of Morgan Hill v. Bushey, __ Cal.4th __ (2018) (Case No. S243042), that a referendum petition to challenge a zoning ordinance amendment that would bring the ordinance into compliance with the county’s or city’s general plan is valid, even though such a referendum would temporarily leave in place zoning that does not comply with the general plan, at least if the local agency has other means to make the ordinance consistent with the plan.  The Court reasoned that such a referendum simply keeps the underlying inconsistency in place for a certain time––until the local agency can make the zoning ordinance consistent with general plan.

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On February 21, 2018, in Save Lafayette v. City of Lafayette, __ Cal.5th __ (2018) (Case No. A149342), the First District Court of Appeal overturned the City of Lafayette’s decision to not place a referendum petition on the ballot to challenge a rezoning for a 44-unit single-family residential development because the referendum, if successful, would resurrect prior zoning that would be inconsistent with a recently amended general plan.  (Ironically, the City has also been sued by a group that prefers a larger, 315-unit apartment project instead).  According to the City, because the referendum is the power of the voters to approve or reject new laws, a successful referendum would cause the zoning to revert from “Single Family Residential” to “Administrative Professional Office,” thereby creating an inconsistency with the general plan’s residential land use designation, in violation of state law that requires zoning ordinances to be consistent with general plans.

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American humorist Will Rogers once quipped, “The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.”  There are, of course, many other similarly amusing criticisms of legal writing.  According to former Yale Law School professor Fred Rodell, for example, “There are two things wrong with almost all legal writing.  One is its style. The other is its content.”

To the extent such assessments ever ring true, they are especially unfortunate when given life in the form of a poorly-written published court opinion addressing important legal issues.  The Fourth District Court of Appeal’s October 31, 2017 opinion in The Kennedy Commission v. City of Huntington Beach, __ Cal.App.5th __ (2017) serves as a prime recent example.  The saving grace is that the Court reached the right legal conclusion.


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We’ve come a long way since 1911, when the initiative and referendum processes were enshrined in the state constitution to address corruption in state government caused by special interests.  For some reason that reality reminds me of a scene in Seinfeld’s “The Subway” episode, which had Elaine standing on a New York subway car carrying a large present.  An older woman approaches Elaine and this dialogue ensues:

Woman: “I started riding these trains in the forties.  Those days a man would give up their seat for a woman. Now we’re liberated and we have to stand.”

Elaine: “It’s ironic.”

Woman: “What’s ironic?”

Elaine: “This, that we’ve come all this way, we have made all this progress, but you know we’ve lost the little things, the niceties.”

Woman: “No, I mean what does ironic mean?”


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Attorneys are undoubtedly familiar with the adage that “bad facts make bad law.”  When an agency makes a general plan consistency determination, bad facts can also result in a court concluding that the deference typically owed to the agency’s exercise of its land use discretion has exceeded its limits.

On December 15, 2016, in a case keenly followed by land use practitioners throughout California, the state Supreme Court rejected the City of Orange’s determination that a 39-unit residential development project in the Santa Ana Mountains is consistent with its current 2010 General Plan even though the plan designates the property as open space because a resolution from a 1973 specific plan purports to allow residential development on the property.  Orange Citizens for Parks and Recreation v. Superior Court of Orange County, __ Cal.4th __ (2016) (Case No. S212800).  The case is replete with facts that gave the Court reason to conclude the City abused its discretion because “no reasonable person could interpret that plan to include the 1973 resolution.”


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On November 7, 2016, the Court of Appeal for the Third Appellate District reversed and remanded a trial court decision addressing a neighborhood group’s challenge to a 328-unit infill residential project in the City of Sacramento.  East Sacramento Partnership for a Livable City v. City of Sacramento, __ Cal.App.5th __ (2016) (Case No. C079614).

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