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.
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.
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?”
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.”
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).
Numerous California communities regulate broad economic development objectives through general plan goals and policies intended to encourage and support small businesses or to ensure the compatibility of new commercial development with the community or neighborhood. Such objectives are susceptible to a range of reasonable interpretations that are difficult to successfully challenge. On July 13, 2016, the Court of Appeal for the Fourth Appellate District partially published Joshua Tree Downtown Business Alliance v. County of San Bernardino, __ Cal.App.4th __ (2016) (Case No. E062479), a case that illustrates the key legal principles—including the correct standard of review—that can make such challenges a little like tilting at windmills. The case also addresses several CEQA issues (including whether the County adequately considered whether project had the potential to cause urban decay and whether an EIR was required because there was substantial evidence to support a fair argument that the project could cause urban decay) my partner Art Coon wrote on this in his CEQA Developments blog.
Continue Reading Court Rejects General Plan Consistency Challenge Regarding City’s Approval of Franchise Retail Store Where Applicable Economic Development Goals and Policies are Alleged to Favor Small, Independent Businesses
There is no question in California land use law that development projects need not comply with every goal or policy in a community’s general plan. While a city’s or county’s land use decisions must be consistent with the goals and policies in its general plan, the courts have consistently held that a finding of general plan consistency requires only that a project be “compatible with,” and “not frustrate,” the goals and policies of the applicable general plan. State law does not require precise conformity of a proposed project with the land use designation for a particular site or an exact match between the project and the general plan. Instead, development projects must simply be in agreement or harmony with the terms of the general plan.
These fundamental principles are easily understood when dealing with qualitative general plan policies such as those addressing community character or those requiring open space preservation and resource conservation. But general plan consistency principles are sometimes misapplied when the issue is whether a given project is consistent with quantitative general plan provisions, such as those dealing with a project’s size, if a proposed project would exceed such development standards.